cial power, in relation to this important contract, be exercised by the legislature? It is one of the maxims which lie at the foundation of the republican system, that the powers of government shall be equally distributed among the three departments-the legislative, the judicial, and the executive. At the commencement of our labors, this question was considered: it was conceded by all that such should be the division of powers, and that our government was predicated on that principle. The legisla ture, from the character of its organization, is not qualified to decide as to the law and the facts. There are those, however, who are competent to decide both as to law and fact. In our judicial department, evidence is to be obtained in conformity to established rules; and if the power of adjudication, in cases of divorce, be delegated to our courts of justice, there the causes are know to all, and are operative alike on all. The decisions are equal, and are common to all. It is the admitted policy of all enlightened countries, that the marriage contract is not to be dissolved for trivial causes. The stability of the marriage union, is regarded more than the contract itself; because, if regarded merely in the light of a contract, either party would have the power, with the consent of the other, to modify or dissolve it at pleasure. This the laws will not permit. It is a civil institution, established by the policy of all countries, involving the obligations of husband and wife, parent and child. In this state it is considered to be in the power of the legislature to provide for the dissolution of the contract. But it is a question which deserves our serious consideration, whether this power, which involves so many obligations, depending on the marriage contract, should not be exercised by a judicial tribunal. When the legislature exercises the power of granting divorces, it exercises it without any uniform rule, and frequently grants a divorce for causes, which, by a general law, have been delegated to the courts, and whenever this power is exercised by the legislature, it is too apt to be only for a certain class of society who can bring to bear on the legislature, the influence of their wealth, and their family and political connexions. It is a power, therefore, which in the legislature, is exercised only for one class, and not alike for all: the poor, and those who are without friends, cannot avail themselves of it. He would be disposed to require of the legislature to delegate this power to the courts, so that the causes might be made to operate alike in all cases. It was well known that in one case decided by the legislature, there were great abuses. It was not necessary for him to refer more particularly to Many and frequent were the applications, and there were many abuses which required a remedy. In the last legislature, three divorces were thrown into a single bill, which the governor vetoed. 'The influence of the log-rolling system was felt even here.

the case.

The practice, in reference to divorces, varied in the different states. In Georgia and Mississippi, it required two-thirds of the legislature to grant a divorce. In Tennessee, Arkansas and Michigan, there was, in their constitutions a provision similar to that which he now offered, restricting the legislature from the exercise of this power, and giving it to the courts alone. If we do this, all divorces will be granted in conformity to law, and after a legal investigation, by a judicial tribunal, and of the evidence and judgment there will be a record. This proposition he had submitted after some consideration. He believed the change would be conducive to the public interest, as it would give greater stability to the marriage contract. He offered it as an amendment after the thirteenth section.

Mr. Cox, of Somerset, would briefly assign a reason why he should vote against this amendment. It was not because he was opposed to the principles which were contained in the proposition; but he thought this was not the proper place to introduce it. If any thing of this kind was to be engrafted in the constitution, it seemed to him, that it ought to be inserted in the bill of rights. The framers of the constitution of 1789-90, were of the opinion that all restrictions on legislative action ought to be made in the ninth article. There were various restrictions on the legislature to be found in that article. One of these was the clause which prohibits the legislature from passing any ex post facto law: another was, that which restrained the legislature from granting any patent of nobility: and there are several others. Sections which restrained the action of the legislature should be all comprehended in the ninth article. For this reason, he would vote against the amendment.

Mr. FLEMING, of Lycoming, viewed this as a very important matter, which the convention seemed to be about to pass over very lightly. The effect of this amendment would be to close the door of the legislative halls against all such cases. It might be well, before we adopt so important a change, to go into some inquiry, and to see if it would benefit the public interest. It did not require much forecast to understand that circumstances may arise, under which, for the sake of the public peace, as well as individual happiness, it would be proper to grant a divorce; yet, where the courts of law could not take cognizance of the matter, and where the action of the legislature ought to be brought into operation, the courts, in all their proceedings, being framed by statute, are obliged to observe certain limits, and may be compelled to stop short at the precise point, where the necessity for their interference begins to develope itself. The legislature would not grant the courts such full powers as would meet every case which might arise. He did not think that such advantages would result from the amendment as the gentleman from Franklin contemplated. He could not agree that the change would produce any advantage to the community, that it would add to the peace of society, or make stronger that particular kind of contract. For the reasons therefore, which he had assigned, he should be obliged to vote against the amendment.

Mr. BANKS, of Mifflin, felt an inclinction to support the proposition of the gentleman from Franklin. He would not add much to what had been said on this subject. But, while the powers of government were distributed among three distinct branches, the legislative, the executive and the judicial—it was right that the courts should have cognizance of these cases. In the course of his life, he had seen many cases of this kind, in which divorces had been passed by the legislature, which would not have been granted in the courts of justice. The legislature always took into consideration the propriety of granting this application, or refusing that.

The courts are the best places to obtain a judgment according to the merits of the case. There, the parties are heard pro and con, and the courts always grant relief where it is important that it should be granted. There was always a desire in the human heart to redress wrongs, wherever they exist. We have known cases of legislation where the cause was an improper one; and, I think (said Mr. B.) that the only tribunal

which ought to separate husband and wife, is the courts. I have know a hundred cases, in the course of my legislative experience, in which the courts of justice could never have granted a divorce, where the application to the legislature has obtained the object. He might quote cases which occurred in Montgomery county, in the city of Philadelphia, and in almost every county of the commonwealth, in which divorces had been granted by the legislature, in solemn mockery of this simple contract. He could not see that any injustice could possibly arise from the adoption of this amendment. Redress is readily granted in every other case of complaint, by the courts, and why should it not be granted in these cases?

Mr. Cox moved to postpone the further consideration of this amendment, until the report of the committee on the ninth article shall be considered.

Mr. CHAMBERS expressed his hope that the motion for postponement would not prevail. The exception which has been taken to the amendment by the gentleman from Somerset, is that this is not the proper place for its insertion. To the provision itself, the gentleman has no objection, but merely to the place. I apprehend (said Mr. Chambers) that this is the proper place. And the reason why there are two or three restrictions introduced into the ninth article, probably is, that they may not have attracted the notice of the convention, until the first article had been passed upon. From all the consideration he had been able to give to the subject, he had come to the conclusion, that the place he had selected, was the proper one, and he hoped the convention would agree to the amend

ment.

Mr. BIDDLE, of Philadelphia, rose, but disclaimed at this time any intention to enter into a full discussion of this subject. He did not know that we ought to depart from the course of the old constitution. The restrictions on the legislature, are all contained in the ninth article; that no ex post facto law, nor any law impairing contracts shall be made, &c. &c. All the restrictions are contained in that article. It is convenient that they should be together; and, if there was propriety in inserting this restriction in any part of the constitution, it ought to be made a part of the seventeenth section of the ninth article, which he had just read.

Mr. CUNNINGHAM said, the amendment ought not to be adopted in any part of the, constitution. It was said that the legislature ought not to have this power. He had some experience in the matter. In many cases it was said that much injury had doubtless been done by the hasty action of the legislature on this subject. He had known fifty cases of divorces, and there had been a complaint only in one case. The amendment went to restrict the legislature. The law of 1814, embraced almost all the cases of legislative action on the subject of divorce. He had no doubt, that many cases might arise in which it would be indecorous to take an application for divorce into court. Females and others must necessarily, be examined as witnesses. In the cases examined before the senate, the galleries were cleared of their auditors. There might be many cases, which it would be improper to take into a court of justice. It was necessary that the law should provide relief somewhere, and no objection had been stated against the law of 1814.

He had known cases in which the vote in favor of a divorce was almost

nnanimous. The marriage contract was one of the highest sanction; but, there were cases where it might be and ought to be dissolved. He was the chairman of the standing committee on two occasions, and it was the universal practice of the chairman to give notice to the parties, and to permit them to make their defence against any charges alleged against them; and he had never heard any complaint of unfair or hasty proceedings. If he thought that injustice had been done in any case, he would put a restrint upon, the action of the legislature; but, that was not his opinion. He was, therefore, in favor of postponing the further consideration of this subject.

Mr. BELL said, he could easily conceive of cases in which the legislature ought to exercise the power of divorce. He was not in favor of the section; but, he knew that there had been some just complaint as to the manner in which the legislature had exercised their power in this matter. It was a subject of just complaint that the legislature had, in some cases, taken this subject out of the courts and decided upon ex parte testimony.

Mr. HOPKINSON hoped, he said, that the subject would not be postponed. He trusted that it would meet with the serious attention of the convention. It was certainly very important in regard to the morality of the legislature, that this question should be settled. The constitution prohibited laws infringing upon the obligation of contracts. The marriage contract could not be avoided for any reason of misconduct. The question was a very simple one-whether the legislature or the courts of justice, should exercise the power of dissolving the marriage contract? For what reason was the judiciary, which decides upon every other question of the violation of contracts, to be deprived of the power of acting upon these cases? The question is, whether the subject is not a proper one for the examination of the courts of justice? The gentleman says there has been no abuse of the power by the legislature.

Sir, the manner in which the legislature have exerted their power in granting divorces, has been a constant subject of complaint. A party wants a divorce, and he goes to the legislature and exercises his personal influence with that body to obtain it. The other party may be absent, and is tried without notice or opportunity for defence. A case lately happened, wherein the parents of two young persons procured their divorce, but the parties were again married afterwards. In that case, the legislature undertook to grant a divorce, upon the application of interested persons, without reference to the parties. There had been cases of divorce granted by the legislature upon the application of friends. Abuses were constantly practiced and were a perpetual subject of complaint. There was a case in which a gentleman was divorced from his wife, and knew nothing of it, until it was done. In courts of justice, such cases were tried upon evidence, and not upon rumor, and the proceedings could not be altogether ex parte, as in the legislature they had been, in many

cases.

Will you permit the most solemn of all contracts to be broken by the legislature, through intrigue, and without proper evidence to justify the dissolution of the contract? What is to become of the children in such cases? Will the public take care of them? It has been said that the

public concurred with the legislature in their action upon this subject, and had made no complaiut of injustice. But, the public have nothing to do with the subject. It is wholly a matter of private concern. The contract must be held sacred and inviolable, without just cause for breaking it, whether the public assent or not, to its dissolution. There may be cases of individual hardship, in other contracts, but the legislature has not interfered. Can the legislature break a bond, on account of hardship? Can a man come to the legislature and say, I have a hard bargain, and wish to be discharged from my bonds? The legislature has no power to grant such an application. All such contracts must be brought before courts of justice. Ought we to be less careful of this sacred contract, than of other contracts ? The preservation of the obligation of the marriage contract, interests the whole country? If there have been abuses of any kind practiced by the legislature, they have been in these

cases.

In one case of hopeless insanity of thirty years' continuance a gentleman applied for a divorce, and it was refused; but, at the same session, a man, who had been twelve months absent from the country, was divorced upon the application of his wife. Management and intrigue prevailed with the legislature, in such cases, where a just and proper application was rejected. If you have a law providing that, for such and such crimes, a divorce may be obtained, it will enter into the contract and become a part of it. But, the law ought to be administered, as laws in relation to other contracts are, upon strict rules of evidence, and with uniformity and impartiality. That the legislature was an unfit repository for this power, and was likely to abuse it, he had no doubt; and, he was in favor of taking it from them.

Mr. REIGART said he thought the legislature should have all the necessary power in relation to this subject. Why should we assume that they are incapable of exercising it with discretion and impartiality, and deprive them of it? It had been fashionable here of late, to distrust the wisdom and integrity of the legislature on every subject, to endeavor so to restrict them and tie their hands, as to prevent any unlawful action in regard to many subjects. He was sorry to have the legislature charged with injustice and intrigue in regard to the subject of divorce. There had been, but one or two cases in forty years, in which the action of the legislature, on this subject, had been complained of. Why should we upon that ground, charge the legislature with injustice, management, and intrigue, and deny them the right of exercising any power over the subject? He knew the circumstances attending the application for a divorce on account of the insanity of one of the parties. The legislature had the firmness to reject that application, and they did so, upon the ground that insanity, being God's act, and not the fault of the party, afforded no ground for a dissolution of the contract.

The gentleman had given another instance in which he charged the legislature with acting upon ex parte testimony. He knew something of that matter and could assure the gentleman that the legislature, in that case, so far from proceeding ex parte, acted with the most perfect firmness and impartiality, and the fullest deliberation. After a deliberate and impartial hearing, they granted the divorce; and they did so, upon good and sufficient grounds. The cases referred to, afforded no grounds for alter