that such notice was actually given. But by the general laws of Rhode Island upon this subject, no notice is required to be, or is in practice, given to heirs or devisees, in cases of sales of this nature; and it would be strange if the legislature might not do, without notice, the same act which it would delegate authority to another to do without notice. If the legislature had authorized a future sale by the executrix for the payment of debts, it is not easy to perceive any sound objection to it. There is nothing in the nature of the act which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate instead of the legislature. It is remedial in its nature to give effect to existing rights."

§ 356. In Rice et al. v. Parkman,(a) it was held that the legislature had power to license the sale of the real estate of minors, notwithstanding they had delegated the same power to the judicial courts. It was in this case conceded by Parker, Ch. J., that if the powers by which the resolve authorizing the sale was passed, were of a judicial nature, it was clear that they could not be exercised by the legislature. But that it was not of this description, as it was not a case of controversy between party and party, nor was it a decree or judgment affecting the title to property. The object of the authority granted by the legislature, was to transmute real into personal estate, for purposes beneficial to all who were interested therein. This power had been frequently exercised by the legislature of the province and of the colony, while under the sovereignty of Great Britain, analogous to the power exercised by the British parliament on similar subjects, time out of mind. It was absolutely necessary for the interest of those who, by the

(a) 16 Mass. R. 326.

general rules of law, were incompetent to dispose of their property. This power must rest in the legislature; that body being competent to act as the general guardian and protector of those who were disabled to act for themselves. It did not follow, because the power had been delegated by the legislature to courts of law, it was judicial in its character. It was doubtless included in the general authority granted by the people to the legislature in the constitution. For full power and authority was given from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and institutions, as they should judge to be for the good and welfare of the commonwealth, and for the subjects thereof.

§ 357. In Connecticut an act of the legislature passed upon the application of a wife, alleging criminal intimacies of her husband with another woman, not amounting to adultery, which found the fact alleged, and absolved the petitioner from all obligation by virtue of the marriage, was held not to be an assumption of judicial powers by the legislature, so as to render the act unconstitutional. This case was resisted on the ground, that by the constitution of 1818, there was an entire separation of the legislative and judicial departments, and that the legislature could not now pass an act or resolution not clearly warranted by the constitution. That the constitution was a grant of power, and not a limitation of power already possessed. In short, that there was no reserved power in the legislature since the adoption of this constitution. Chief Justice Daggett, in answer to this argument, held, that precisely the opposite of this was true. From the settlement of the state there had been certain fundamental rules, by which power had been exercised. These rules were embodied in an instrument, called by some a constitution, by others a

charter. All agreed, that it was the first constitution ever made in Connecticut, and made too, by the people themselves. It gave extensive powers to the legislature, and left too much, (for it left every thing almost,) to their will. The constitution of 1818, professed to, and in fact did limit that will. It adopted certain general principles, by a preamble, called a declaration of rights; provided for the election and appointment of certain agents of government, such as the legislative, executive and judicial departments, and imposed upon them certain restraints. It found the state sovereign and independent, with a legislative power capable of making all laws necessary for the good of the people, not forbidden by the constitution of the United States, nor opposed to the sound maxims of legislation; and it left them in the same condition, except so far as limitations were provided. There was then, and had been, a law in force, on the subject of divorces, for one hundred and thirty years. It provided for divorces a vinculo matrimonii, in four cases, viz: adultery, fraudulent contract, wilful desertion, and seven years' absence unheard of. The law had remained in substance the same as it was when enacted in 1667. During all this period, the legislature had interposed, like the parliament of Great Britain, and passed special acts of divorce a vinculo matrimonii, and at almost every session since the constitution of the United States went into operation, then forty-two years, and for thirteen years of the existence of the constitution of Connecticut, such acts had been, in multiplied cases, passed and sanctioned by the constituted authorities of the state. The court were not at liberty to inquire into the wisdom of the existing laws on that subject, nor into the expediency of such frequent interference by the legislature. They were only to inquire into the constitutionality of the act under consideration, The power was not prohibited either by the constitution of the

United States, or of that state. In view of the appalling consequences of declaring the general law of the state, or the respective acts of the legislature, unconstitutional and void-consequences easily conceived, but not easily expressed—such as bastardizing the issue, and subjecting the parties to punishment for adultery-the court should come to the result only on a solemn conviction that their oaths of office and the constitution imperiously demand it. Feeling no such conviction, for one he could not pronounce the act void. In this case, Mr. Justice Peters said: "Upon general principles, he had no doubt that the act of divorce in this case was repugnant to the constitution of the United States, as impairing the obligation of a contract; and that it was void under the constitution of this state, as an assumption of judicial power by the legislature. But in view of decisions in analogous cases, and of the appalling consequences of nullifying all legislative acts of divorce, he should acquiesce in the opinion of the court."

§ 358. In reference to acts of the nature we have been considering, each act must depend upon its peculiar phraseology and provisions. The court will look to the particular circumstances of the parties applying for, and to be affected by it, as well as their intention, and the intention of the legislature, and the object to be accomplished. If from these, it be manifest that the legislature has but exercised a remedial power, in enabling the parties to do with their own property what they had not power before to do, and that it has not adjudicated that they should do what they were unwilling to do, such acts will be deemed within legislative competency.(a)

§ 359. There is another class of cases which it is proper we should consider in this connection. In the

(a) Edwards v. Pope et al., 3 Scam R. 473.

case of Holden v. Jame's Administrator,(a) the statute of limitation had run against the plaintiff's demand. Upon his petition to the legislature, an act was passed authorizing him to commence and prosecute his suit, "In the same manner as he might or could have done, if the same had been commenced within the time prescribed by law;" and the court was authorized to give judgment, any thing in any law to the contrary notwithstanding. This power of dispensing with, and suspending the general laws for particular cases, and authorizing judgment non obstante any statute, was held to be unconstitutional.(b)

§ 360. In Maine, Vermont, and New Hampshire, it has been repeatedly held, that the legislature could not constitutionally pass an act granting an appeal, or a review, or a new trial, in any case between private persons.(c) In the state of Maine the legislature, in 1824, passed an act granting an appeal from a decree theretofore made by the judge of probate, and directing the judge of probate to allow, and the supreme court to sustain, proceed, and decree in the same in the like manner as if the appeal had been claimed and granted pursuant to an existing law on the day of making the decree. The constitutionality of this act came in question in the case of Lewis et al. v. Webb, above cited. One point made was, that it was a judicial act, and therefore transcended the powers of the legislature, to which this authority was expressly interdicted by art. 3, secs. 1, 2, of the constitution of Maine. In the decision of this question, Mellen, Ch. J., said: "What is the nature of the

(a) 11 Mass. R. 400.

(b) See also, Lyman v. Mower, 2 Vt. R. 517. Ward v. Barnard, 1 Aik. R. 121.

(c) Lewis v. Webb, 3 Greenl. R. 326. R. 140. Bates v. Kimball, 2 Chip. R. 77.

314.

Dunham v. Lewiston, 4 Greenl.

Stanford v. Barry, 1 Aik. R.