Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1873-09-04
decree of divorce from the bonds of mat

l cause, at the time mentioned, why al
| imony aoende7ate lite should not be allowed
| her.
In answer to this order the defendant
comes into Court by his counsel, and in
ssts that this Court has no original iur-
isdlction in divorce cases, when the
cause or causes for which divorce is
sought are statutory.
In 1852 the Legislature of this Tori
tory passed an act entitled ''An Act in
relation to Bills of Divorce" and in the
act gave to the Probate Court in the
country where the plaintiff resides, juris-
diction in all cases of divorce and ali
mony, and declared for what causes
decree of divorce from the bonds of mat
rimony might be granted.
The act contains other provisions in
relation to the manner of proceeding,
the custody of minor children, distribu-
ton of property, etc.
1t is claimed on the part of the com
plainant that so much of said act as
gives the Probate Courts jurisdiction
over this class of cases is void, being in
in violation of the provisions of the or
ganic act of the Territory: that the re-
naming sections of the act are valid, and
give a right, but fail to create or appoint
a tribunal to enforce that right that
therefore the jurisdiction devolves ne
cessity and right upon some of the trib-
unals of the country, and that the equity
side of this court is the natural and APP
propriate tribunal for the trial of divorce
suits.
In the United States, jurisdiction in
divorce cases is statutory. 1t has been
held. however, that courts of chancery,
in virtue of their inhereRt equity powers,
have jurisdiction to declare marriages
null for fraud, mistake or mental inca
pacity. That is as far as cases have ever
been carried. There is a distinction to
be observed between declaring marriages
null, alb SnitiO, and decreeing divorces
from valid bonds of matrimony because
of misconduct of one of the parties
This matter is statutory. 1t is true the
Legislature has created no judicial trib-
unal, but 1t has given to one already Gre
ated, viz the Probate Court, the power
in divorce cases.
Legislatures, both colonial and State,
have assumed to give divorces, having
drawn that authority from Parliament,
but it has been decided that matters of
divorce require a judicial determination
and should be submitted to a judicial
tribunal, and the people have guarded
against it in nearly all States by clause
in the constitution forbidding the legis-
latures to grant divorces.
BY the bill, and so far as the Court
could know, the complainant is the legal
and the only wife of the defendant, and
she seeks divorce from the bonds of
matrimony upon statutory grounds sole
ly, namely, desertion and cruel treat
ment. ...
am compelled to say, after mature
deliberation and study, that this Court
has no original jurisdiction in divorce
cases and the question as to alimony
is incidental entirely upon the applica-
ton for divorce. In considering this
case, l have separated myself from all
of its surroundings, and [ am quite salts
fed with my conclusion. There are rea-
soLs in this Territory, as in all States,
why judge of Probate should be well
versed in the law, as that Court has so
much to do with our domestic relations
But these reasons address themselves to
the wisdom of the legislature. This
court can have no will in the matter.
The judicial power has no will. Its
function is to apply the course of justice
to the will of others, when called upon
to do so, and not otherwise In other
words, it is to give effect to the legisla-
tive will when that win is legitimately
expressed.
The other slip furnished US was an
editorial notice of this case in the Salt
Lake Herald, as follows:
The interest in, and temporary excite
ment over, the decision of Judge Elmer
son, yesterday in the Ann Eliza Webb
divorce case, is singularly significant.
That a decision according to law should
create a sensation, however limited,
shows how unusual such occurrences
have been for some time. The organic
act of the territory says that ''the legis-
latiye power of said Territory shall ex-
tend to all rightful subjects of legisla-
ton consistent with the Constitution of
the United States and the provisions of
the act" But, for length of time, the
powers of the legislature have been
limited by the peculiar notions of courts
with mission, and such small fry law
yers as Waite and Drake, Hawley and
Strickland. We do not suppose that
there is a lawyer at the bar who ques-
lions the soundness of Judge. Emerson's
decision, and we have the best reasons
for saying that it is in accordance with
the expressed opinion of two of the
three lawyers against whom it acts. Yet,
with all this, there was surprise that
such decision should be given. Law
yers and laymen have become so accus-
toned to see judicial decisions rendered
on considerations other than legal ones;
TO have questions of policy and the re-
ligious faith of litigants or parties before
the court, obtrude themselves into rul-
ings and findings, that we can well COM
| prehend why there should be some sur
| prise felt. But it argues a terrible de-
moralized condition of society, so far as
judicial proceedings are concerned.
The whole question of the Jurisdiction
of the Probate Courts, was argued last
spring before the Supreme Court of the
United States, and it was understood that
decision was arrived at, but its publ
cation was postponed until the meeting
of the court in October 1t that deci-
sion does not sustain the full jurisdiction
conferred upon the Probate Courts by
the Legislature, and, as a consequence,
go far beyond the latest decision by
Judge Emerson, because embracing
wider range of subject matter, we shall
certainly be disappointed. Meantime
we congratulate those who have been di-
vorced by the Probate Courts, and have
contracted other matrimonial alliances,
that the decision declares the legality of
their later marriages and the legitimacy.
of the children resulting from such
unions.