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c. 25, § 4; 1698 (10 W. III.), c. 19; 1 Prov. Laws (State ed.), 15, 61, 354; Anc. Chart. 32, 243, 322. The governor and council having been thus constituted a supreme court of probate, and a court for the decision of cases of marriage and divorce, their proceedings as such, though not according to the course of the common law, were judicial, and were determined by a vote of a majority of those present, even if the governor was in the minority. This was settled by the privy council in England, after long differences between the governor and the council of the province, as appears from a message of Governor Hutchinson and the answer of the House of Representatives in 1774, the material parts of which are printed in a collection of Massachusetts State Papers, 1765-1775, published in Boston in 1818, 410, 411. See also Message of Governor Pownall to the Council in 1760, Quincy, 573; Peter: v. Peters, 8 Cush. 529, 541.

The only instance, known to us, in which the Legislature of Massachusetts passed an act dissolving a marriage, since the province charter and before the adoption of the Constitution, was during the Revolutionary War, after the departure of the royal governor and lieutenant governor, and while there was no court in the state authorized to grant divorces. St. March Session 1780, c. 7; Mass. State Laws, 1775–1780, 287. The legislature, in the execution of the power conferred upon it by the

, Constitution of the commonwealth, provided by the St. of 1783, c. 46, $ 3, that this court should be the supreme court of probate ; and by the St. of 1785, c. 69, that all questions of divorce and alimony should be heard and tried by this court, and that its decrees should be final; and the same jurisdiction has remained in this court to the present day. In 1792, Governor Hancock disapproved a resolve granting a divorce, as being beyond the constitutional power of the legislature ; and although a few similar resolves or acts have been passed in recent times, they have never been recognized as valid by this court. Shannon v. Shannon, 2 Gray, 285, 287; White v. White, 105 Mass. 325.

The legislature undoubtedly has the power by general laws to specify the grounds and regulate the forms of divorce in future cases ; and even to authorize this court to entertain applications for an absolute divorce for causes already occurred, and which at the time of their occurrence were grounds for å divorce from bed and board only. Stevens v. Stevens, 1 Met. 279.

But the legislature has no power under the Constitution of Massachusetts to grant divorces. Nor can it substantially alter the nature and effect of judgments or decrees already rendered by the courts, without violating the Constitution which prohibits it from exercising judicial power. Denny v. Mattoon, 2 Allen, 361.

The General Statutes, like the earlier statutes of the commonwealth, provided that for certain causes this court might grant a divorce from the bond of matrimony; for certain other causes, a divorce from bed and board ; and also, after such a divorce from bed and board, and the parties had lived separately for five consecutive years, a divorce from the bond of matrimony on the petition of the party who obtained the divorce from bed and board, or, after they had lived separately for ten years, on the application of either party. Gen. Sts. c. 107, SS 6, 7, 9, 10.

The St. of 1870, c. 404, substituted, for the decree of divorce from bed

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and board, a decree of divorce nisi under the provisions of that act, to become void if the parties should live together again at any time before it was made absolute, and to be made absolute by the court, on the application of either party, and proof that the parties had continued to live separately for five (or, at the discretion of the court, three) consecutive years next after the decree nisi. That statute did but change names and forms of proceeding, and shorten the time within which, after a decree of separation, an absolute and final decree of divorce might be rendered. The decree of divorce nisi was in substance and effect a divorce from bed and board ; it did not absolutely dissolve the marriage ; and it could be made absolute, even as regarded the innocent party, only on a further judicial hearing and determination upon a new petition by one party and notice to the other. Bigelow v. Bigelow, 108 Mass. 38; Graves v. Graves, Ib. 314; Edgerly v. Edgerly, 112 Mass. ; Garnett v. Garnett, 114 Mass.

The St. of 1873, c. 371, expressly repealed the provisions of the St. of 1870 as to granting a divorce nisi and making the same absolute, and the effect of the parties living together again ; and authorized this court to grant an absolute divorce from the bonds of matrimony, either for any cause for which a divorce nisi might then be granted, or on the petition of any party to whom a divorce nisi or from bed and board had been decreed, with this limitation only, that when the cause was desertion, the desertion, in the first alternative, and the living apart since the qualified divorce, in the second alternative, must have continued three consecutive years. This statute, while it multiplied the causes which would warrant the granting of a divorce from the bonds of matrimony, so as to include those which had previously been grounds of divorce nisi or from bed and board only; and abridged the time in which a party who had obtained a divorce of the latter character might apply for an absolute one ; still left the question, whether an absolute divorce should be granted, to be determined by the judicial discretion of the court, as applied to the facts of each case.

The provision of the St. of 1870, which declared that a decree of divorce nisi under that act should become void if the parties lived together again before it was made absolute, having been repealed by the St. of 1873, such cohabitation, after the passage of this statute, would not of itself avoid or annul the decree of divorce nisi ; but it was a fact to be allowed such weight and effect, in connection with the other circumstances of the case, as the court, at the hearing of a petition for an absolute divorce, should adjudge it to be legally entitled to.

The provision of the St. of 1874, c. 397, § 1, that “all divorces nisi heretofore decreed " under the St. of 1870 " shall be deemed and taken to be and have the force and effect of absolute divorces from the bonds of matrimony," goes beyond all former statutes. Giving it effect according to its terms, husbands and wives, who, having been divorced from bed and board under the St. of 1870, had come together again since the St. of 1873 took effect, would find their marriage dissolved, and their children, born or begotten during such cohabitation, illegitimate. And, apart from such extreme cases, it would, in all to which it purports to apply, sever, without judicial process, hearing, or decree, the existing bond of matrimony between the parties ; make those, who were still husband and wife,

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no longer such; and effect this result by attributing to judicial decrees, rendered before its passage, a force and operation which they did not have when they were made. We are unanimously of opinion that this exceeds the power of the legislature under the Constitution of the Commonwealth.

The further provision of the same section, that the court, upon petition filed by the party against whom a divorce nisi has been granted, may authorize such party to marry again, is so based upon and connected with the previous provision, that it cannot be deemed to have been intended by the legislature to have any separate force. The whole section is therefore unconstitutional and void. Warren v. Mayor f Aldermen of Charlestown, 2 Gray, 84. To hold otherwise would be to impute to the legislature the

purpose that a man who was still the husband of one wife might be authorized by this court to marry another. Petitions dismissed.




[MARCH, 1875.]

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EMMONS, C. J., delivered the following charge to the grand jury :

Gentlemen of the Jury: It is to be regretted that a question of such exceptional importance, and one which is producing so much excitement should come before the court in this form. At an early day, however, and during the term, we are compelled by law to decide the matter you lay before us.

The severe penalties imposed by this law upon prosecuting attorneys and other officials will, we are advised, be attempted to be enforced should the grand jury fail to indict, in the assumption that their action will be controlled by such officers unless the court acts. Every consideration makes it a duty to answer your questions at once.

You ask whether it is a crime for which you have a right to find an indictment, that a negro has been denied “ the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of the theatres and inns” of the state. Such a denial is not an offence over which Congress can give this court jurisdiction. Those are matters which the state government alone control.

The parties who think themselves aggrieved can bring their civil action in this court at once. Any decision we may then make can be reviewed by the supreme court.

In ordinary circumstances, this brief reply is all which we should make. It is all which, as a very general rule, the proprieties of such occasions

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authorize. But such are the exceptional conditions which attend these complaints before you, and such the excited condition of those classes whom the law was intended to affect, that after much hesitation we have yielded to an earnest request to state in a simple and untechnical form the reason upon which our advice rests. To do this successfully, in haste, and without preparation, is still more difficult for a judge than to treat the matter technically when addressing the judicial and professional mind.

Until the three recent amendments to the national Constitution, which abolished slavery and attempted to protect the civil and political rights of the freedmen, all parties conceded that the federal government had 10 power whatever to restrain such an offence as this. The punishment of murder, arson, assaults and batteries, trespasses, frauds, injuries to reputation, of obstructions to the right of attending church, public schools, theatres, and forcing the right of being accommodated in inns, and by common carriers within the state, were matters not only not granted to the general government, but in the Constitution itself expressly reserved to the states. The vast mass of civil and political rights included in the compendious phrase, the right of “ life, liberty, and the pursuit of happiness, rested entirely under state protection. To this familiar and unquestioned truism, there was universal assent then, and is now.

The only question presented for judicial determination is, have these amendments completely revolutionized the whole character of our government? Because it is entirely evident that if Congress has the power of regulating the theatre and other places of amusement” in Memphis and other cities of the Union, this necessarily involves the power of protecting the more sacred and important rights of the colored citizen.

The thirteenth amendment abolished slavery only, it did no more. It gave the freedman no right of protection from the federal government superior to that of his white fellow-citizens, and no exemption from the power of state control which might be exercised against others. The right of legislation secured to Congress in the amendment was that only of creating penalties for a violation of its provisions, and providing securities against the reëstablishment of slavery, either generally or in particular instances. It accords no more authority to enact that he should have the right to vote, to testify, to make contracts, to hold real estate, exercise trades, attend public schools, or any other matter or thing within the limits of a state, than it does to enact the same thing in reference to white

The utmost effect of this great provision in our Constitution was to make the colored man a citizen, equal before the laws with the race which had enslaved him. For this purpose the fourteenth amendment was by no means necessary. So far as the control of Congress is concerned, the states were still free to legislate in reference to' what persons should attend theatres, be accommodated at inns, or be transported by common carriers within the states. As an illustration of unquestioned local state power anterior to this amendment, we suggest a fact in the history of the State of Michigan : By the voice of the people, it three times denied the colored race, though taxed, the right of voting. The supreme court of that state sustained as lawful the action of a steamboat master excluding a colored person from the steamer's cabin, compelling him to take passage


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on the deck. These judges were high-toned gentlemen, of far more than ordinary legal culture and ability, and elected to their places by a then strongly predominant anti-slavery party in the state. They sustained the action of the carrier, as a wholesome police regulation, calculated, in view of our American education and prejudices, to secure peace and harmony in that department of commerce and business under his control. It was deemed injudicious that the law should interfere with his action. The state legislature, also overwhelmingly anti-slavery in sentiment, might have changed this rule, but refused to do so. Against this action, political and judicial, a large and influential portion of the people earnestly struggled and protested. But all understood, from the numerous rulings of the supreme court, there was no power in Congress to interfere with the decision of the judges and the people of the state. Like conditions, in a greater or less degree, characterized nearly every free state in the Union. A nearly similar judgment, arising upon facts since the amendment, has recently been pronounced by the learned judge of the superior court of Cleveland, Ohio, in which he ruled that the manager of a theatre might lawfully exclude from the dress-circle a colored person of ever so much respectability. It would seem to be clear that the abolition of slavery placed the negro in the former slave states just where he had before stood in the free states. What Congress could not do in reference to a free negro in a Northern state, where slavery never existed, before the abolition of slavery, it could not afterward do in regard to one living in the South. We conclude with confidence that the thirteenth amendment did not authorize Congress to interfere with the private and internal regulations of theatre managers, hotel-keepers, or common carriers within the state, in reference to colored persons, any more than it did in regard to their white fellow-citizens.

It will simplify the subject, before considering the fourteenth amendment; to say that the clauses forbidding the "states to deprive any person of life, liberty, or property, without due process of law, or deny to any person the equal protection of the laws,” have no application to this subject. They are intended solely to prevent the arbitrary transfer of property from citizen to citizen without legal adjudication or process, and to prevent the establishment of tribunals for one class of persons varying from those which determine the rights of all. These inhibitions, too, beyond all controversy, are aimed at the action of the state only, and have no reference to individuals.

The only provision of the fourteenth amendment which affects this question is that which provides that "no state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States.” It would be as useless as it would be improper, in view of the authoritative judgment of the court of last resort, to do more than to explain just what it announces. In what are known as the Slaughter-house Cases (16th Wallace) two points were established : First, that this clause prohibited the action of the state alone, and gave Congress no power to legislate against the wrongs and personal violence of the citizen ; Second, that the privileges and immunities which a state could not abridge were only that limited class which depended immediately upon the Constitution of the United States. They are few in number,


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