Following precedents furnished by the British parliament, legislatures in this country granted divorces, but those which have been sustained by the courts, in nearly every case, were for cause, and therefore judicial, and can not be claimed as the rightful subject of legislation. The Pennsylvania Constitution of 1838, sec. 14, art. I., provided: "The legislature shall not have power to enact laws annulling the contract of marriage in any case where, by the laws, the courts of this commonwealth are, or hereafter may be, empowered to decree a divorce;" "from which," the court in the case of Jones v. Jones, supra, held, "an implication results of a power to annul the marriage contract in the non-enumerated cases;" and, further, that it was admissible to show on what charge the legislature proceeded, with a view to determine whether it was one upon which the courts were authorized to grant the divorce. In the case of Starr v. Pease, 1 Conn. 540, the divorce questioned was granted upon notice, and upon evidence, and for cause. The act was as follows: "Upon the petition of Martha M. Lewis, representing to this assembly that she was lawfully married to John L. Lewis on the twenty-third day of September, 1799, and that on or about the fifteenth day of January, 1826, the said John L. Lewis indulged in such criminal intimacies with one Nancy B. Jones as amounts to adultery, as nearly as could be without the actual perpetration of the crime, and praying for a divorce as per petition on file, and the said allegations, after hearing the said petitioner and said John L. Lewis, with their witnesses and counsel, being found true, Resolved, by this assembly, that the said Martha M. Lewis be, and she is hereby, divorced from her said husband, the said John L. Lewis, and is hereby released and absolved from all obligations by virtue of said marriage."

The court said the act "affirms the contract of marriage and declares that the acts proved were such as ought to dissolve it," and resolved accordingly. In answer to the objection that the act was not within the jurisdiction of the legislature, because the Constitution separated the legislative from the judicial powers, the court, in sub

stance, said that the Constitution does not so separate them, as to prevent the legislature from exercising judicial powers in certain cases.

The mixed powers of the Connecticut legislature came under discussion in the supreme court of the United States in Calder v. Bull, 3 Dall. 386. Paterson, J., said that the legislature acted "in a double capacity as a house of legislation with undefined authority, and also as a court of judicature in certain exigencies. From the best information, however, which I have been able to collect on this subject, it appears that the legislature or general court of Connecticut, originally possessed and exercised all legislative, executive and judicial authority." And it would appear that the divorce in question has been granted in the exercise of judicial authority.

Thus it will be found, upon further examination, that nearly all of the divorces granted by legislatures, and sustained by the courts, were so granted in the exercise of judicial power that they were recognized as judicial subjects, and not as legislative.

A divorce granted for cause is not a legislative divorce. Mr. Bishop says: "A divorce, like every other statute, would appear, necessarily, to flow merely from the sovereign will. It is not the ascertainment of a right, but the creation of one:" 1 Bish. on Mar. and Div. 689.

But the purpose of laws is to protect rights and enforce duties, not to destroy the former nor to relieve from the latter; municipal law does not create rights. A divorce granted without cause would destroy the lawful rights of one party and release the legal duties of the other, and hence law is invoked to abrogate them. "A wife has a right to the love and protecting care of her husband; she has a right to share his bed and board; she has a right to support, consisting of necessary food and clothing, according to her position in life." And these rights are answered by corresponding duties from the husband.

In the absence of misconduct on her part, it is impossible for him to shake them off; they exist for life, and if he dies first, her rights survive to his estate. The petitioner is now contending for the latter.

The legislature of the territory of Idaho attempted to try petitioner's case without evidence, and, at one blow, to make the law and the decision which severed all her rights as wife. By the common law, marriage is for life, and indissoluble except for cause.

In the case of Smith v. Smith, 13 Gray 209, Shaw, C. J., said: "Marriage is undoubtedly a contract, but it is a contract sanctioned by law, controlled by considerations of public policy vital to the order and harmony of social life, and in its nature indissoluble except by violation of duty on the one part, to be taken advantage of in a special manner provided by law on the other."

From the point of view from which we are considering this case, it is immaterial whether marriage is held to be a contract or a status. In either case the rights which the relation affords, and the duties which it imposes, are equally under the protection of the law.

Marshall, C. J., in Gaines v. Gaines, 9 B. Mon. 295, said: "It is the province of the legislature, so far as individual rights are concerned, to pass laws as a rule of action for the community at large, or for a particular class, or for individuals, under certain circumstances to be defined by law. It is the province of the judicial power to administer these laws, by applying them to the facts in individual cases, for the ascertainment of the right, and the redress or repression of the wrong. It is essential to the stability and security of individual rights that they should be determined by pre-existing laws under which they have originated, and by general laws operating upon similar rights, and not by laws made merely for their decision, when they come to be contested. It is to avoid the danger of individual rights being determined, not by preexisting laws, but by a law first promulgated in the decision itself, or made for it, or by the secret law of will or discretion, that the judicial department, entrusted with the power of ascertaining and enforcing private rights, as created and sustained by law, is prohibited from exercising legislative power; and it is for the same reason that the legislative department, entrusted with the power of making, altering and repealing laws, is prohibited from