Ponder, Executor, vs. Graham.-Opinion of Court. There is an important and well recognized distinction between the powers of the Federal and State Governments. The former was created by the States directly, not by the people; designed not as a government for the people, but of the States; with authority to legislate on questions of national policy in which the States, as sovereign communities, had and felt a national interest; in short, to represent, by its action, the united will of these distinct sovereignties. The domestic relations, and all questions affecting our civil institutions, remained where they were-with the people of the respective States. The powers of the General government are, therefore, purely derivative. The constitution is a mere delegation of power, and as a consequence, Congress can exercise none not expressly given, or which does not arise by necessary implication. The limitation of power contained in that instrument is, necessarily, applicable to the government created by the instrument itself. All power, therefore, not delegated by that instrument, or inhibited to the States, is reserved to the latter.— On the other hand, the legislature of a State, aside from any constitutional restriction, possesses the law-making power, and is undoubtedly vested with all the legislative powers possessed by the people themselves, and may exercise the same in any manner consistent with the great and fundamental principles of natural justice. The people, in organizing their respective State Governments, never contemplated, by their several constitutions, a grant of power, but a limitation of inherent power in the legislature, their legally constituted delegates. See Smith on the Constitution, and Story on the Constitution. The legislative department, unless restricted by constitutional provisions, possesses every power not delegated to some other department; although as to other departments, it is in the nature of a general grant of power. 2 Scammon's Reports, 81. Ponder, Executor, vs. Graham.-Opinion of Court. These general principles will be found not without their application to the case before us, and especially to the decisions of some of the State Courts on this subject, which I will hereafter notice. The Territorial Government of Florida was organized by act of Congress, approved 30th March, 1822. For several years subsequent, Congress passed several acts amendatory of this, but not altering any of its essential provisions. This government was formed under that clause of the Constitution of the United States, which vests in Congress the power "to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States." It is a question by no means free from doubt, whether it ever was contemplated by the use of these words, to vest in Congress the power to establish separate and distinct Territorial Governments. Be this as it may, the exercise of the power has been acquiesced in, and I know of no useful purpose to be gained by calling it in question. The act of Congress above referred to, being the organic law, is to be regarded, as it is in point of fact, the Constitution of the Territory. This organic law, unlike the Constitutions of the States, is a grant, and not a restriction of power primarily possessed, and in this respect, similar to the Constitution of the Federal Government. The Territorial Government being the creature of Congress, derives all its powers from this charter, giving it a political existence. It is to this grant, that we are mainly to look for a solution of the question before us-all powers not enumerated, or arising by implication, are reserved, and this is the correct rule in the construction of this grant. See 3 Story on Constitution, 133. The act provides that "the judicial power of the Territory shall be vested in two Superior Courts," &c. The legislative power shall be vested in the Governor and Council, and "shall extend to all rightful sub Ponder, Executor, vs. Graham.-Opinion of Court. jects of legislation." The question here arises, was the act of the Legislative Council, in 1832, divorcing the respondent from her husband, Solomon Canady, a legislative or judicial act? What are we to understand by rightful subjects of legislation? It is insisted in argument, that a legislature possesses inherent power, over and above that of making laws. If this were true, then the terms, "rightful subjects," are a restriction imposed by Congress on the grant itself, confining the action of the Council to such matters' as legitimately attach, and from necessity belong, to the law-making power. But the proposition is not true. The legislature and the law-making power are convertible terms, and the one has no greater or less import than the other. No legislature, as such, has any other power than that of making laws. Its inherent authority does not extend beyond this. Were those restrictive words erased from the grant, I know of no rule of construction which would, under the general terms, "legislative powers," vest in the Council any other power than that of enacting laws and special acts, which confer privileges without invading rights, (of course, excepting rules for its own government.) But from the plain and obvious import of the terms used in the grant, I believe it the only sound and consistent interpretation which the act is susceptible of. It is said that this act of the Legislative Council was a law, and, consequently, was a legitimate exercise of power. If this were true, it was competent for the Legislature to repeal it; for all laws can be repealed, (except where vested rights are created.) And it would scarcely be contended that any legislative body could dissolve the contract one day, and restore it the next. But the act was not a law in any sense. The term is defined by all legal writers to be a rule of civil conduct, prescribed for the future actions of menfrom its very nature, it must be prospective, otherwise it can Ponder, Executor, vs. Graham.-Opinion of Court. not be a rule of civil conduct, but partaking of a judicial proceeding as contra-distinguished from a legislative power. It is said by an eminent jurist, "that the very essence of a law is a rule for future cases." It must be of general and uniform application. If an act of the legislature, in terms, judicially determines a question of right, or of property, as the basis upon which the act is founded, so far the proceeding must be regarded as judicial. Smith on the constitution, § 347; or where the act determines matters of fact, or of right, dependent on matters of fact, it is the exercise of judicial powers. Smith on the constitution, § 351. An act which is limited in its operation, and which exhausts itself upon a particular person, or his rights, is, in its very spirit and terms, a judicial proceeding. 9th Gill and Johnson, 365. The judicial power of a State is that which administers justice, under the sanction and according to the forms of law. When speaking of the legislative and judicial departments of a government, our meaning is well defined and comprehensive-why should it be less so, when referring to their respective powers? The act of the counsel undertakes to determine questions of fact and law exclusively within the province of the courts. If, as is contended with much reason, there were no existing causes of divorce, as set forth in the preamble to this act, then the dissolution of the marriage contract was a mere assumption of power, exercised in the most arbitrary manner. An act declaring that to be a crime which, by the laws of the land, was no crime, and punishing an innocent party, by depriving him of important legal rights without a hearing, without notice, and who had not, in any mode, made himself amenable to our laws, such proceeding could not be justified, on any principle of natural right, or common justice. But assuming the fact to be so that the grounds. Ponder, Executor, vs. Graham.-Opinion of Court. on which the legislature acted were recognized by our law as causes for divorce-then the legislature, assuming the high prerogatives and character of a judicial tribunal, proceeds to determine the facts and administer the law-upon ex parte showing, pronounces judgment against an absent defendant, and declares a forfeiture of his marital rights, for causes happening in a foreign jurisdiction, and to whose laws he was alone amenable. Is there no distinction between making a law and expounding and administering a law? Between declaring that certain acts may work a forfeiture, and passing judgment of forfeiture? Between enacting a law affecting the remedy, and pronouncing a judgment dissolving a contract? Had any court dissolved this marriage contract, with the facts before it disclosed in this record, it would have been but a poor compliment to its own sense of justice, or the high and solemn trust with which the law had clothed it. Chancellor Kent (2d Commentaries, 106,) says, the question of divorce involves investigations which are of a judicial nature, and the jurisdiction over the subject ought to be confined to judicial tribunals. If the question of divorce be a rightful subject of legislation, then it is very clear that it is an improper subject for judicial cognizance, unless it can be shown that the right of the courts to legislate, is coextensive with that of the legislature to administer the laws. And if the courts have no jurisdiction, of what avail is that political maxim which we find engrafted in our declaration of rights, but which exists above and independent of all constitutions "that the courts of the country shall be open to every citizen for the redress of his wrongs, and enforcement of his rights." In this country, at least, no man can be compelled to surrender his rights, except by due course and process of law, administered by the courts. The case reported in 4th Condensed Supreme Court Re |