If this contract were within this provision of the constitution, the result would seem necessarily to follow, that nothing could ever be made by a State legislature a ground of divorce, which was not so at the time of the marriage. This has never been seriously claimed in any case.

Many of the State constitutions contain a clause prohibiting the passage of retrospective laws. Such a law is one prescribing the rules by which an existing cause is to be decided, upon facts existing previous to the making of the law. Many retrospective laws are not only unobjectionable, but founded upon the highest considerations, and entirely beneficial. Such are laws healing mistakes in deeds and grants; for rewarding past services to the State, &c. It has generally been held, that in order to bring a retrospective act within the prohibitory provision, it must either attach penalties to that which was innocent at the time it was done, or undertake to impair vested, property right. Changes affecting only the remedy, which a party had upon a contract at the time it was made, for example, those which exempt the body of the debtor from imprisonment, or alter the periods of limitation for the bringing of actions,-have not been held within the prohibition.

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Finally, it has sometimes been urged, that legislative divorces are wrong in principle, and should not be granted, because of their being an infringement upon the rights of the judiciary. In some of the States, it is expressly provided in their State constitution that legislative, judicial, and executive functions shall be vested in different functionaries, and exercised by distinct persons and tribunals. But the question still remains, whether the granting of a divorce involves investigations purely and specially of a judicial nature. Chancellor Kent says: "The questions of divorce involve 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." It will probably be agreed, that a judicial investigation of causes alleged as proper grounds of divorce will, in most cases, be likely to be more impartial, and the

result more just and equitable, than such investigations when conducted before a body so much more numerous, and selected with so much less reference to judicial qualities, as a legislature. If, however, it be granted that a legislature has the power to decree a divorce, exceptional cases, or cases which an injured party claims to be exceptional, will be likely, from time to time, to arise, in which judicial tribunals are unable to grant the relief sought, and which will be brought before the legislature. This is illustrated by the fact, that even in Connecticut, where the grounds upon which absolute divorces may be granted by the judicial tribunals are sufficiently liberal, applications are not unfrequently made to the legislature, and result in decrees of divorce.

The proper effect of a judicial divorce may be broader, and affect the rights of property of the parties in a different manner from one procured by legislative decree. We have seen, that a legislature is prohibited by the Constitution of the United States from divesting rights, which have become vested in parties under the obligations resulting from a contract but a judicial sentence of a court may. A legislative divorce, therefore, cannot divest the husband or wife of vested rights of property and bestow them on the other party. It cannot grant to the wife alimony, or anything of that nature, out of the estate of the husband. It merely dissolves the bond of matrimony; and the results, which necessarily attend upon such dissolution, to wit: that when one dies the other will not be entitled to dower or curtesy, &c., are incidental and accessory, and not provided for by legislative enactment.

SECTION 7.

Divorce by Judicial Decree,

On the other hand, may not only affect the status of the parties, by placing them both in the condition of single persons, but may affect the property rights of the parties in a variety of ways. 1st, Alimony may be granted, which is an allowance paid by a husband under an order of a court for her

maintenance while she is living separate from him. It is not usually a portion of his estate assigned to her absolutely, subject to her control and to be disposed of at her pleasure, but is that proportion of the husband's estate judicially allowed and allotted to a wife for her subsistence and livelihood during the period of their separation. It is, usually, a continuous allotment of sums, payable at regular periods, for her support from year to year. When it will be granted, its nature, incidents, and amount, and out of what it will be awarded, are fully discussed by Bishop, in chapters 27, 28, and 29, of his work on Marriage and Divorce, and by Kent, in his 27th chapter.

2d. A just and equitable division of property of the parties may be made upon divorce established by judicial decree, dividing the property as the law would have done if the marriage had never taken place, or in any other manner, which, under all the circumstances of the case, the court may deem just. This decree may extend to rights of dower and curtesy, and to all other property rights of the parties. Under such a decree, it is also competent, and customary, for the courts to assign the custody of the children to one or the other of the parties, as in the judgment of the court may seem best; subject to such provisions and conditions as will insure to the other party the rights and privileges, if any, which are included in the decree.

SECTION 8.

Of the Effect of Divorce in Another State.

See

The effect of a final judgment, establishing the validity or invalidity of a marriage or dissolving it, rendered in one country, is held good in every other, in all cases where the jurisdiction of the court over the cause is conceded. observation of Chief Justice Shaw upon this subject, in Harteau vs. Harteau, 14 Pick., 181, 187. The embarrassment arises out of the difficulty of determining when, and under what circumstances, the jurisdiction of the court, entering the judgment, should be conceded. The courts of several

of the States have refused to give effect to a divorce fraudulently procured by one of their own citizens, without an actual change of domicil; and, in some of the States, it is expressly provided by legislative enactment, that no divorce shall be granted for a cause occurring out of the State, unless the parties before such cause occurred, lived together as husband and wife in the State, nor unless one of the parties be at the time living in the State; and also, that if an inhabitant of the State goes out of it in order to obtain a divorce, for a cause occurring within it while the parties reside within it, or for any cause which would not authorize a divorce by its laws, a decree so obtained shall be of no force in the State. The universal enactment of similar provisions, by all the States in the Union, would materially aid in preventing the procurement of fraudulent divorces. The general subject of this Section is fully treated by Chancellor Kent, Vol. 2, pp. 83-95; and by Bishop, in Chapter 34 of his work on Marriage and Divorce.

SECTION 9.

Form of Solemnization of Marriage, and Certificate. Persons authorized to perform this ceremony should, when parties present themselves before them for its performance, be satisfied that they have a legal right to marry.

When performed by a minister or priest, it should be according to the forms and customs of the church to which he belongs. If by a magistrate, no particular form is requisite. The following form may be used by either:

FORM OF MARRIAGE.

The justice or minister may say:

J. S., do you take M. B. to be your wife? Do you promise to be to her a kind and faithful husband, so long as you both live?

To which the man assents.

The justice or minister may then address the woman:

M. B., do you take J. S. to be your husband? Do you

promise to be to him a kind and faithful wife, so long as you both live?

To which she assents.

The justice or minister may then declare them lawfully married.

The minister or magistrate performing the ceremony should ascertain the names of the parties, their ages and residences. These he should enter in a book, and also the date of the marriage, his own name, residence, and official station; and a record or certificate of the marriage should also be filed with the clerk of the city or town in which the marriage is solemnized.

MARRIAGE CERTIFICATE.

Mr.

of W., and Miss [Mrs.]

of W.,

were joined in marriage at B. by me, this

day of

18 .

G. P., Justice of the Peace.

SECTION 10.

Form of Ante-Nuptial Contract.

This agreement, made this 8th day of June, A. ̃D. 1869, between E. V. of the first part, C. D. of the second part, and G. H. of the third part, witnesseth: That whereas a marriage is intended to be had between the parties of the first and third part, and the said E. V. is possessed of certain real and personal estate, to wit: [here describe the property] which she is disposed, with consent of said party of the third part, to transfer to said party of the second part, in trust for her own proper use and benefit,

Now, therefore, in consideration of the premises, and of one dollar paid by said C. D. to said E. V., the said E. V. hereby assigns and transfers, to the said C. D., all the moneys, personal property and effects above mentioned; and hereby grants and conveys to the said C. D. the said real estate to hold the same, both real and personal, to him the