When this country was settled, the power to grant a divorce from the bonds of matrimony was exercised by the parliament of England. The ecclesiastical courts of that country were limited to the granting of divorces from bed and board. Naturally, the legislative assemblies of the colonies followed the example of parliament and treated the subject as one within their province... Says Bishop, in his Treatise on Marriage and Divorce: 'The fact that at the time of the settlement of this country legislative divorces were common, competent, and valid in England, whence our jurisprudence was derived, makes them conclusively so here, except where an invalidity is directly or indirectly created by a written constitution binding the legislative power.' Section 664. Says Cooley, in his Treatise on Constitutional Limitations: 'The granting of divorces from the bonds of matrimony was not confided to the courts in England, and, from the earliest days, the colonial and state legislatures in this country have assumed to possess the same power over the subject which was possessed by the parliament, and from time to time they have passed special laws declaring a dissolution of the bonds of matrimony in special cases.' Page 110. Says Kent, in his Commentaries: 'During the period of our colonial government, for more than a hundered years preceding the revolution, no divorce took place in the colony of New York, and for many years after New York became an independent state there was not any lawful mode of dissolving a marriage in the life-time of the parties but by a special act of the legislature.' Volume 2, p. 97. The same fact is stated in numerous decisions of the highest courts of the states. Thus, in Cronise v. Cronise, 54 Pa. St. 260, the supreme court of Pennsylvania said: 'Special divorce laws [125 U.S. 190, 207] are legislative acts. This power has been exercised from the earliest period by the legislature of the province, and by that of the state, under the constitutions of 1776 and 1790. The continual exercise of the power, after the adoption of the constitution of 1790, cannot be accounted for except on the ground that all men, learned and unlearned, believed it to be a legitimate exercise of legislative power. This belief is further strengthened by the fact that no judicial decision has been made against it. Communis error facit jus would be sufficient to support it, but it stands upon higher ground of contemporaneous and continued construction of the people of their own instrument.' In Crane v. Meginnis, 1 Gill & J. 474, the supreme court of Maryland said: 'Divorces in this state from the earliest times have emanated from the general assembly, and can now be viewed in no other light than as regular exertions of the legislative power.' In Starr v. Pease, 8 Conn. 541, decided in 1831, the question arose before the supreme court of Connecticut as to the validity of a legislative divorce under the constitution of 1818, which provided for an entire separation of the legislative and judicial departments. The court, after stating that there had been a law in force in that state on the subject of divorces, passed 130 years before, which provided for divorces on four grounds, said, speaking by Mr. Justice DAGGETT: 'The law has remained in substance the same as it was when enacted in 1667. During all this period the legislature has interfered 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, now 42 years, and for the 13 years of the existence of the constitution of Connecticut, such acts have been, in multiplied cases, passed and sanctioned by the constituted authorities of our state.
