
    NANCY JONES vs DARLING JONES.
    JONESBOROUGH,
    Sep 1804.
    Proceedings in a divorce; rules of construction, exposition of the expression, retrospective, used in the constitution.
    
      Divorce. The petition stated, the several causes which are expressed in the first and ninth sections of an act entitled " An act, concerning divorces,” 1799 c. 19 Ten. Laws 175-7.
    
      Kennedy, for defendant,
    objected to the reception of evidence to prove facts previous to the passage of the law, upon the principle that it would give a retrospective and ex post facto operation to the act, which would be contrary to the 11th and 20th sections of the declaration of rights.
    In order to show that it was not the meaning of the legislature to make facts which existed previous to the passage of the law, causes for divorces, he read the 11th section of the act. This section of itself divorces several persons whose names are mentioned—this clearly shows that these persons could not be divorced under the general principles of the act, for causes which had taken place, for if they could it would have been nugatory in the legislature, to have divorced, itself. It would have left it, as other cases, to the operation of the act.
   Overton, J.

Not having had any practice under this act, nor any occasion to consider it maturely, I may err in the construction, but the words of the second section are so clear and precise, that no doubt can be entertained of the meaning of the legislature—the words are “that if any person hath been or shall be injured” &c. but it does not seem necessary to give any decisive opinion upon this part of the act now, as it may be necessary to consider other parts of it, and then the whole can be taken under one view.

White, J.

In the construction of acts, it is necessary to consider the whole of the act together, so that a distinct view of what was the mind of the legislature may be had ; the act should be so construed, that each part may have its operation if possible. The meaning of the second section is unequivocal, when standing alone ; the words " hath been” are appropriate, and clear of ambiguity, and by it the legislature clearly meant to include causes of divorce which happened previous to the passage of the act; but it is urged, that the 11th section, shews that this was not the meaning: This section may have an operation upon the most rational principles, without interfereing with the meaning already stated. It is well known that the legislature had been frequently incommoded by numerous applications for divorces each session, and it was conceived, that much of the time of that body was injuriously exhausted by inquiries of this kind. No doubt but the cases referred to by the 11th section, were before the legislature at the time it was determined to pass a general law, vesting authority in the courts. The house having at that time made the inquiries in the cases embraced by the 11th section, and seeing there was propriety in divorcing the persons referred to, thought fit by a legislative act to do it. It was certainly not improper to do so, the facts being then in the possession of the legislative body, it was but little trouble or expence to insert this section; much less inconvenience would arise from this method, than by the subsequent institution of suits, when much of the useful time a court of justice would be employed.

Now these reasons, so far from being inconsistent with the second section entirely accord with it.

For my own part, I do not think, such a provision unconstitutional, nor does the act violate the sections of the bill of rights referred to. If it appeared that the act of assembly was inconsistent with the constitution, I feel no difficulty in saying, that I could not carry it into effect.

There is certainly a distinction, between acts, which are offences, and such as are indifferent in their own nature. In the last case no subsequent act can convert them into crimes. As to the first, consistent with the practice of every country, the legislature exercises the power of providing a special or more convenient remedy. Applying these ideas to the case before the court, it appears clear to me, that the act has only provided a remedy for an offence which was in its own nature such before the passage.

I agree with the counsel in thinking that this act ought to be construed strictly. I feel it my duty to reconcile the constitution with the acts of the legislature. It is certainly the sovereign power, and its acts should always be supposed to be consistent with the constitution, unless the contrary appear beyond any doubt.

Overton J.

It is certainly true that this act should be construed strictly. It is evident the legislature so designed it, and the public good requires it, for many reasons. This, however, it seems to me cannot affect the point under the consideration of the court, for the construction of all acts must be alike, when free from any kind of ambiguity. The words of the second section present such a case to my mind " that if any person hath been, or shall be injured in any of the ways above mentioned” meaning the causes pointed out in the first section, then such person shall be entitled to a divorce.

The opinion given of the meaning of the 11th section is certainly correct. It is perfectly compatible with the retrospective view of the second. They stand on the same footing, and there was no greater power under the constitution to enact the special retrospective principle contained in the 11th relative to particular persons, than a general principle of the same nature in the second section. If the constitution did not give it, the legislature could no more exercise such a power, as is manifested by the 11th section, than it could communicate a general power of a similar nature to the superior courts by the second section.

There is certainly a distinction between an act which is malum in se, and one which is in its own nature indifferent. The legislature ought to be competent to modify the means of suppressing vice, or affording a more competent remedy when requisite.

Adultery by the law of nature is an offence. It was so before the passage of this act, and an evil in any possible view of the subject. The act by affording relief for a matter which was criminal in itself, must be considered as so far remedial ; and not expost facto as has been contended. Blackstone and other law writers define, an expost facto law to relate to public punishment ; and this certainly was the sense in which the framers of the constitution received it, else why make use of the expression retrospective also.

This part of the act, may in a general sense, be called retrospective, but in legal phraseology it cannot be called ex post facto. In my view of the constitution it cannot be construed in violation of it. The constitution says that " no retrospective law or law impairing the obligation of contracts, shall be made."

Retrospective, here was inserted from abundant caution. It was intended to embrace, rights, and not modes of redress ; The last, from the nature of things must be left open to legislative modification. It is not possible for me to suppose that any body of enlightened men, ever intended to put it out of the power of the legislature to provide a remedy for many past transactions, which the immutable principles of justice might require, such an institution must suppose absolute foresight in man, which we all know is not one of his attributes, The wisest government that ever existed, could not possibly foresee many evils, which might require a remedy, consistent with justice, and the law of our nature. The legislature as it appears to me, meant that the word retrospective should be restrained in its acceptation, to contracts, but not marriage contracts, being incapable in its very nature of the application of such a principle.

The ninth section of this act, presents a distinct cause of divorce, a mensa et thoro which is entirely prospective; the causes expressed in the first section, are entirely, a vinculo matrimonii.

Upon an issue of fact being referred to a jury, they found the defendant guilty of adultery; whereupon the court gave judgment for a divorce, and appointed commissioners to divide the property according to the circumstances of the parties.  