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occupy territory, needs not to be discussed here. The power existed and the power was plenary. Congress might have chosen not to parcel out into three separate and clear-cut departments, the legislative, executive, and judicial functions. It might have imposed on the legislature much business ordinarily done by a court, or it might have devolved all legislation upon the governor or judiciary. It saw fit, however, to distribute the governmental business into executive, legislative, and judicial departments. This it did, doubtless, in analogy to the forms of the constitutions prevailing throughout the states of the Union. The mere distribution has significance in every inquiry as to what the legislature may constitutionally do. Under such a distribution the judiciary cannot take upon itself the functions of the legislature, nor can the legislature do that which properly belongs to a court. But does it logically follow that a fact, such, for example, as the dissolution of a marriage, which might be effected as the conclusion of the action of a court of justice, cannot lawfully be brought about immediately by the legislature? We would not be understood to confound the provinces of court and legislature. A distinction exists between the two bodies, and it is a radical distinction. It does not seem to us to arise from dissimilarity of modes of procedure, nor yet from dissimilarity of results attained. Legislators and judges both deal with men and things as socially and politically related. Neither can act well without understanding, deliberation, and judgment.

If inquiry be necessary to inform the understanding, then there must be inquiry also. Inquiry may be made and all proceedings conducted under the same forms, and the same end may be reached in one body as might be in the other. And yet all this will not change a court to a legislature, nor metamorphose a legislature into a court. It is said that a legislature may be arbitrary; but so may a court. So, too, both legislatures and courts may be mistaken about facts. But every good piece of legislation, as well as every sound judicial decision, is a piece of good judgment naturally resulting from fair deliberation applied to trustworthy facts. The true distinction between a legislature and a court is not to be found in subject-matter, processes, or results. Legislation and adjudication might be confided to the same body, and yet the distinction would remain intact. It could not be destroyed without destruction of one or the other function. For it consists in diversity of the deep seated organic relations which court and legislature respectively bear to the central sovereignty which speaks and acts through them. The sovereign power, through its legislative organ, speaks spontaneously, and imposes on that organ no obligation to reply to any petition. It speaks through its courts upon petition only, and obliges its courts to answer every petition. The voice of the court is explanitory and assertive of that of the legislature; the voice of the legislature is determinative of that of the court. Legislatures declare

about persons and things in general, and in particular what the sovereign will is; courts declare what, according to that will, the parties before them are bound or free to do or suffer. In fine, the legislature gives, the court applies, the law. The sovereign's will is sovereign will to which, when expressed, all must conform. If the sovereign has a will, and wishes spontaneously to announce it, there is no organ, but the law-giving body through which to do it.

One might inconsiderately and pertly say that the state has no business to have any will about what are called the private contracts and relations of individuals within it; or if it has a will, no business to utter it until appealed to by a party privately interested, and then not until due notice to all parties privately concerned. Private sovereignty as to private affairs is, however, an idea that does not consist with the idea of political association; speaking with accuracy, a sovereign commonwealth may be truly said to have an interest in every act, every contract, and every relation of every individual that composes it. Itself is a party, by its sufferance or promotion, to every act, every contract, and every relation which exists under the allowance or direction of its laws. Being such a party, it may truly be said to have engaged to allow or promote everything its laws allow or promote. But its engagements with individuals are all subject to its supreme engagements with them all, whereby both it and they are to seek the welfare of the community as a whole. This subjection of every private affair to the general good is imparted into every contract, and involved in the very notion of allegiance. The state or commonwealth has an interest, not only in the institution of marriage contracts which bind those within its jurisdiction, no matter under what jurisdiction those contracts may have been originally formed; its interest is a paramount interest. Paramount, not merely in the sense of being highest in dignity, but in the sense of including, duly weighed and proportioned, all private interests whatsoever to make up the aggregate and resultant which itself is. Because paramount, it must be controlling. State will may be very urgent and decided that a particular marriage be dissolved, even against the will of the private parties to it. Suppose, in England, a nobleman of high rank, heir presumptive to the crown, had for a wife a Messalina, would any one, however much opposed to the policy of promiscuous and frequent legislative divorce, say that such was not a case in which the nation, through its legislature, as a legislature, could spontaneously utter its will about that marriage? Salus populi suprema lex. What the welfare of the people demands, whether it consume property, obliterate contracts, or destroy life, it is perfectly competent for a legislature of unbounded powers to do. But of course there is a difference between legislatures with defined and legislatures with undefined powers, and the difference is one of range of power. A legislature with undefined powers has all legislative It can lay down the laws in every direction, moulding all

persons and things, and each particular person and thing, conclusively to what it says; determining absolutely and finally every question by its fiat. Its voice is the voice of the governing power, and the voice of the governing power is the voice of God. From that there is no appeal. Great Britian's parliament is an example of such a legislature, and British parliamentary divorces, which are indisputably legislative, are examples of such legislation. American legislatures are different, simply because limited. Higher legislation than any one of them is capable of has at one breath called them into being and circumscribed their activities. The national and state legislatures have their bounds set by what the people have enacted in the national and state constitutions. The legislature of Oregon territory had its powers granted and restrained by the act of congress creating it. That act granted to the legislature, with certain exceptions, a legislative power extending to "all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." 9 St. p. 325, § 16.

Aside from the special circumstances of this case, which have been already alluded to and disposed of, we understand it to be conceded in argument that if granting a divorce was acting upon a rightful subject of legislation, and not inconsistent with the constitution and laws of the United States, then it was a legitimate exercise of power under the organic act. We will first discover, if we can, whether it was a rightful subject of legislation within the sense that must be accorded to that phrase, and afterwards proceed to inquire whether it was inconsistent with the constitution and laws of the United States. The language of the organic act, declaring that the legislative power shall extend to all rightful subjects of legislation, implies that there are some subjects of legislation that are not rightful. What are rightful and what are not, congress has not undertaken to define. Are we, therefore, to understand that to us, as a court, is referred for discussion and determination the fundamental political question what subjects, in a distributive and complex form of government like ours, it is expedient that a limited territorial legislature should be permitted to act upon, and what it should not be permitted to touch? Or are we to understand that by the phrase "rightful subjects of legislation" are meant subjects already sufficiently defined by the general consent and practice of the people who in congress have mentioned them? We think the latter. That which the words "rightful subjects of legislation" stood for, in the mind of the people, at the time they were speaking them, is the meaning that belongs to them in this statute, and is the meaning we must regard. To find it out, we have recourse to the most solemn and authoritative utterances current among that people, namely, their written constitutions, statutes, and adjudications. From these we gather that the people of the United States, at the date of the organic act, thought and still think individual marriages to be rightful subjects of legislation, and legislative

divorces valid unless there be some express constitutional provision to the contrary. This seems to us conclusively to establish the proposition that the territorial legislature, in passing this special act of divorce, was acting upon a subject which, within the sense of the organic act, was a rightful subject of legislation.

Thus far we have considered the phrase "rightful subjects of legislation" as if the word "legislation" stood in the statute unqualified. In fact, according to the tenor of the act, "legislation not inconsistent with the constitution and laws of the United States" is the only range of legislation to rightful subjects whereof the legislative power is extended. We come, therefore, to inquire whether the divorce act was inconsistent with any provision of the constitution or laws of the United States. An inconsistency is suggested with only one clause of the constitution; it is the clause forbidding any state to pass any law impairing the obligations of contracts. Const. art. 1, § 10. Adhering to the analogy between the state governments and territorial governments laid down in the case of The City of Panama, 1 Wash. T. 518, 525, we are prepared to hold that whatever it would be inconsistent with the constitution of the United States for a state legislature to do, it would also be inconsistent for a territorial legislature, under an organic act like that of Oregon, to do. If the marriage contract between Maynard and appellant contained obligations such as the constitution prohibits any state, by law, to impair, and the contract could not be set aside without impairment of those obligations, then it was one that the legislature of Oregon never had power to annul. But we are of opinion that the contract of marriage was not within the purview of the constitutional clause. Not but that we believe a marriage to be a contract; it certainly is a very important contract. It not only most intimately affects the married persons in their private affairs, but it changes their social and political status. It brings them into new relationships to society and to the staterelationships which wise law-givers have oftentimes recognized with favor and distinction. It is so peculiar in its office and effects that ordinarily, when contracts are talked of, no reference is understood to be made to the contract of marriage. It is so unique that if all contracts possible were to be classified scientifically into varieties, species, genera, classes, etc., it would stand alone in the most comprehensive subdivision to which it should be assigned.

Ever since the adoption of the federal constitution the general current of legal opinion in this country, as evidenced by law-writers, legislative enactments, and judicial decisions, is opposed to the idea that the provision against impairing the obligations of contracts had any bearing upon marriage. It is not necessary to cite from the numerous text-writers. Their opinions upon this point are well nigh unanimous. The legislatures of the various states have, from the date of the constitution, continued to pass divorce acts unconscious of restraint. The state courts have upheld such acts, and under state

statutes, creating causes of divorce, have granted divorces upon grounds which, at the time of marriage, were not good in law. In Butler v. Pennsylvania, 10 How. 402, 416, the supreme court of the United States, through DANIEL, J., say: "The contracts designed to be protected by the tenth section of the first article [of the federal constitution] are contracts by which perfect rights, certain, definite, fixed, private rights of property, are vested." According to this definition, property rights which are not still inchoate or imperfect, and which became vested by marriage, and only such rights, could not be constitutionally divested by dissolution of marriage. Such rights no divorce act avails or professes to divest. The act divorcing Maynard from appellant did not profess to divest any such rights, nor did it accomplish any such divestiture. If the rights existed, it would not be necessary to maintain for the future the marriage, in order to maintain the rights. Such rights are freely separated from such a contract as that of marriage, and may be preserved without preserv ing any future marital relations between the parties. It is therefore untenable that the act professing to snap the marriage tie is void because impairing the obligations of a contract.

But appellant argues that if the act be not void for inconsistency with this constitutional provision, it is for inconsistency with two clauses of the ordinance for the government of the territory southwest of the river Ohio, commonly called the ordinance of 1787. By the fourteenth section of the organic act all the provisions of that ordinance were extended over Oregon, so that any inconsistency with those provisions would be, doubtless, an inconsistency with the laws of the United States. The last clause of article 2 of the ordinance declares "that no law ought ever to be made or have force in said territory that shall in any manner whatsoever interfere with or affect private contracts or engagements bona fide and without fraud previously formed." This is the first clause on which appellant bases his argument. We take it that the language of the article is intended, like that of the constitutional provision we have been considering, to forbid the passage of laws which would impair rights of property vested under private contracts or engagements. We see no reason why the phrase "private contracts or engagements" here occurring should have more compass given it than the word "contracts" in the constitution. Perhaps some restrictive force should be allowed to the word "private." If so, then it may be worth while to notice that contracts relating simply to property or service can be privately made, and privately rescinded, varied, or released. They are left perfectly within the control of the private parties concerned. Not so among us with the contract of marriage. In that, as soon as formed, the state asserts its interest as controlling, and permits no rescission, variation, or release save by its own express consent. But whatever office be assigned to the word "private," we are clear that the clause under consideration was not intended to apply to the contract of

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