ceedings had before an intruder into a judicial office, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject-matter, would also be void.1

property from him and give it to another. Indeed, to do the one is to accomplish the other. By the decree in this case the will in question was declared void, and, consequently, if effect be given to the decree, the legacies given to those absent defendants by the will are taken from them and given to others, according to our statute of descents. Until the passage of the act in question, they were not bound by the verdict of the jury in this case, and it could not form the basis of a valid decree. Had the decree been rendered before the passage of the act, it would have been as competent to make that valid as it was to validate the antecedent proceedings upon which alone the decree could rest. The want of jurisdiction over the defendants was as fatal to the one as it could be to the other. If we assume the act to be valid, then the legacies which before belonged to the legatees have now ceased to be theirs, and this result has been brought about by the legislative act alone. The effect of the act upon them is precisely the same as if it had declared in direct terms that the legacies bequeathed by this will to these defendants should not go to them, but should descend to the heirs at law of the testator, according to our law of descents. This it will not be pretended that they could do directly, and they had no more authority to do it indirectly, by making proceedings binding upon them which were void in law."

1 In Denny v. Mattoon, 2 Allen, 361, a judge in insolvency had made certain orders in a case pending in another jurisdiction, and which the courts subsequently declared to be void. The legislature then passed an act declaring that they "are hereby confirmed, and the same shall be taken and deemed good and valid in law, to all intents and purposes whatsoever." On the question of the validity of this act the court say: "The precise question is, whether it can be held to operate so as to confer a jurisdiction over parties and proceedings which it has been judicially determined do not exist, and give validity to acts and processes which have been adjudged void. The statement of this question seems to us to suggest the obvious and decisive objection to any construction of the statute which would lead to such a conclusion. It would be a direct exercise by the legislature of a power in its nature clearly judicial, from the use of which it is expressly prohibited by the thirtieth article of the Declaration of Rights. The line which marks and separates judicial from legislative duties and functions is often indistinct and uncertain, and it is sometimes difficult to decide within which of the two classes a particular subject falls. All statutes of a declaratory nature, which are designed to interpret or give a meaning to previous enactments, or to confirm the rights of parties either under their own contracts or growing out of the proceedings of courts or public bodies, which lack legal validity, involve in a certain sense the exercise of a judicial power. They operate upon subjects which might properly come within the cognizance of the courts and form the basis of judicial consideration and judgment. But they may, nevertheless, be supported as being within the legitimate sphere of legislative action, on the ground that they do not declare or determine, but only confirm rights; that they give

Legislative Divorces.

There is another class of cases where it would seem that action ought to be referred exclusively to the judicial tribunals, but in respect to which the prevailing doctrine seems to be, that the legiseffect to the acts of parties according to their intent; that they furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or, by supplying defects and curing informalities in the proceedings of courts, or of public officers acting within the scope of their authority, they give effect to acts to which there was the express or implied assent of the parties interested. Statutes which are intended to accomplish such purposes do not necessarily invade the province, or directly interfere with the action of judicial tribunals. But if we adopt the broadest and most comprehensive view of the power of the legislature, we must place some limit beyond which the authority of the legislature cannot go without trenching on the clear and well-defined boundaries of judicial power.” "Although it may be difficult, if not impossible, to lay down any general rule which may serve to determine, in all cases, whether the limits of constitutional restraint are overstepped by the exercise by one branch of the government of powers exclusively delegated to another, it certainly is practicable to apply to each case as it arises some test by which to ascertain whether this fundamental principle is violated. If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in place of the well-settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the tribunal before which the suits are pending, no one can doubt that it would be an unauthorized act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is the exclusive province of the courts of justice to apply established principles to cases within their jurisdiction, and to enforce their jurisdiction by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held, that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right to a review, or to try anew facts which have been determined by a verdict or decree, depends on fixed and well-settled principles, which it is the duty of the court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action. Taylor v. Place, 4 R. I. 324, 337; Lewis v. Webb, 3 Me. 326; Dechastellux v. Fairchild, 15 Penn. St. 18. A fortiori, an act of the legislature cannot set aside or amend final judgments or decrees." The court further consider the general subject at length, and adjudge the particular enactment under consideration void, both as an exercise of judicial authority, and also because, in declaring valid the void proceedings in insolvency against the debtor, under which assignees had been appointed, it took away from the debtor his property, "not by due process of law or the law of the land, but by an arbitrary exercise of legislative will.”

lature has complete control unless specially restrained by the State constitution. The granting of divorces from the bonds of matrimony was not confided to the courts in England, and from the earliest days the Colonial and State legislatures in this country have assumed to possess the same power over the subject which was possessed by the Parliament, and from time to time have passed special laws declaring a dissolution of the bonds of matrimony in special cases. Now it is clear that "the question of divorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law";1 and so strong is the general conviction of this fact, that the people in framing their constitutions, in a majority of the States, have positively forbidden any such special laws.2

12 Kent, 106. See Levins v. Sleaton, 2 Greene (Iowa), 607.

The following are constitutional provisions:— - Alabama: Divorces from the bonds of matrimony shall not be granted but in the cases by law provided for, and by suit in chancery; but decrees in chancery for divorce shall be final, unless appealed from in the manner prescribed by law, within three months from the date of the enrolment thereof. Arkansas: The General Assembly shall not have power to pass any bill of divorce, but may prescribe by law the manner in which such cases may be investigated in the courts of justice, and divorces granted. California: No divorce shall be granted by the legislature. The provision is the same or similar in Iowa, Indiana, Maryland, Michigan, Minnesota, Nevada, Nebraska, Oregon, New Jersey, Texas, and Wisconsin. Florida: Divorces from the bonds of matrimony shall not be allowed but by the judgment of a court, as shall be prescribed by law. Georgia: The Superior Court shall have exclusive jurisdiction in all cases of divorce, both total and partial. Illinois: The General Assembly shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law; provided that such laws be general and uniform in their operation. Kansas: And power to grant divorces is vested in the District Courts, subject to regulations by law. Kentucky: The General Assembly shall have no power to grant divorces, . . . . but by general laws shall confer such powers on the courts of justice. Louisiana: The legislature may enact general laws regulating the .... granting of divorce; but no special laws shall be enacted relating to particular or individual cases. Massachusetts: All causes of marriage, divorce, and alimony .... shall be heard and determined by the Governor and Council, until the legislature shall by law make other provision. Mississippi: Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, and by suit in chancery. New Hampshire: All causes of marriage, divorce, and alimony . . . . shall be heard and tried by the Superior Court, until the legislature shall by law make other provision. New York: No law shall be passed abridging the right of the people peaceably to assemble and petition the government, or any

Of the judicial decisions on the subject of legislative power over divorces there seem to be three classes of cases. The doctrine of the first class seems to be this: The granting of a divorce may be either a legislative or a judicial act, according as the legislature shall refer its consideration to the courts, or reserve it to itself. The legislature has the same full control over the status of husband and wife which it possesses over the other domestic relations, and may permit or prohibit it according to its own views of what is for the interest of the parties or the good of the public. In dissolving the relation, it proceeds upon such reasons as to it seem sufficient; and if inquiry is made into the facts of the past, it is no more than is needful when any change of the law is contemplated, with a view to the establishment of more salutary rules for the future. The inquiry, therefore, is not judicial in its nature, and it is not essential that there be any particular finding of misconduct or unfitness in the parties. As in other cases of legislative action, the reasons or the motives of the legislature cannot be inquired into; the relation which the law permitted before is now forbidden, and the parties are absolved from the obligations growing out of that relation which continued so long as the relation existed, but which necessarily cease with its termination. Marriage is not a contract, but a status; the parties cannot have vested rights of property in a domestic relation; therefore the legislative act does not come under condemnation as depriving parties of department thereof, nor shall any divorce be granted otherwise than by due judicial proceedings. North Carolina: The General Assembly shall have power to pass general laws regulating divorce and alimony, but shall not have power to grant a divorce or secure alimony in any particular case. Ohio: The General Assembly shall grant no divorce, nor exercise any judicial power, not herein expressly conferred. Pennsylvania: The legislature shall not have power to enact laws annulling the contract of marriage in any case where by law the courts of this Commonwealth are, or hereafter may be, empowered to decree a divorce. Tennessee: The legislature shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law; provided that such laws be general and uniform throughout the State. Virginia: The legislature shall confer on the courts the power to grant divorces, . . . . but shall not, by special legislation, grant relief in such cases, or in any other case of which the courts or other tribunals may have jurisdiction. Missouri: The legislature shall not pass special laws divorcing any named parties. Under the Constitution of Michigan it was held that, as the legislature was prohibited from granting divorces, they could pass no special act authorizing the courts to divorce for a cause which was not a legal cause for divorce under the general laws. Teft v. Teft, 3 Mich. 67. See also Clark v. Clark, 10 N. H. 387.

rights contrary to the law of the land, but, as in other cases within the scope of the legislative authority, the legislative will must be regarded as sufficient reason for the rule which it promulgates.1

1 The leading case on this subject is Starr v. Pease, 8 Conn. 541. On the question whether a divorce is necessarily a judicial act, the court say: A further objection is urged against this act, viz. that, by the new constitution of 1818, there is an entire separation of the legislative and judicial departments, and that the legislature can now pass no act or resolution not clearly warranted by that constitution; that the constitution is a grant of power, and not a limitation of powers already possessed; and, in short, that there is no reserved power in the legislature since the adoption of this constitution. Precisely the opposite of this is true. From the settlement of the State there have been certain fundamental rules by which power has been exercised. These rules were embodied in an instrument called by some a constitution, by others a charter. All agree that it was the first constitution ever made in Connecticut, and made, too, by the people themselves. It gave very extensive powers to the legislature, and left too much (for it left everything almost) to their will. The constitution of 1818 proposed to, and in fact did, limit that will. It adopted certain general principles by a preamble called a Declaration of Rights; provided for the election and appointment of certain organs of the government, such as the legislative, executive, and judicial departments; and imposed upon them certain restraints. It found the State sovereign and independent, with a legislative power capable of making all laws necessary for the good of the people, not forbidden by the Constitution of the United States, nor opposed to the sound maxims of legislation; and it left them in the same condition, except so far as limitations were provided. There is now and has been a law in force on the subject of divorces. The law was passed a hundred and thirty years ago. It provides for divorces a vinculo matrimonii in four cases, viz. adultery, fraudulent contract, wilful desertion, and seven years' absence unheard of. The law has remained in substance the same as it was when enacted in 1667. During all this period the legislature has interfered like the Parliament of Great Britain, and passed special acts of divorce a vinculo matrimonii; and at almost every session since the Constitution of the United States went into operation, now forty-two years, and for the thirteen years of the existence of the Constitution of Connecticut, such acts have been, in multiplied cases, passed and sanctioned by the constituted authorities of our State. We are not at liberty to inquire into the wisdom of our existing law upon this subject; nor into the expediency of such frequent interference of the legislature. We can only inquire into the constitutionality of the act under consideration. The power is not prohibited either by the Constitution of the United States or by that of this State. In view of the appalling consequences of declaring the general law of the State, or the repeated acts of our legislature, unconstitutional and void, consequences easily perceived, but not easily expressed, such as bastardizing the issue and subjecting the parties to punishment for adultery, the court should come to the result only on a solemn conviction that their oaths of office and these constitutions imperiously demand it. Feeling myself no such conviction, I cannot pronounce the act void." Per Daggett, J., Hosmer, Ch. J., and Bissell, J., concurring. Peters, J., dissented. Upon the same subject, see Crane v.