Beaufort County NcArchives Court.....Joel Dickinson, Louisa Dickinson V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 1, 2009, 5:39 pm

Source: Nc Reports
Written: 1819

Louisa Dickinson v. Joel Dickinson

From Beaufort

May Term 1819

Petition for divorce from the bonds of matrimony, for adultery committed in 
the years 1812 and 1813. The petition dismissed; for

The act of 1814, ch. 5. is the only law which gives authority to the Courts to 
take cognizance of the subject of divorce. The adultery charged was prior to 
the passage of this act; and the act shall not be so construed as to have a 
retrospective operation; because,

Before the passage of the act of 1814, adultery was punishable only by a fine. 
To superadd to this liability, a deprivation of the marital rights, under the 
act of 1814, would he to increase the punishment of the offence; and this 
would be contrary to the 24th section of the bill of rights, which declares 
that "no ex post facto laws ought to be made."

Ex post facto Laws are of different kinds.

1. Every law that makes an action done before the passing of the law, and 
which was innocent when done, criminal, and punishes such action.

2. Every law that aggravates a crime, or makes it greater than it was, when 
committed.

3. Every law that changes the punishment, and inflicts a greater punishment, 
than the law annexed to the crime when committed.

4. Every law that alters the legal rules of evidence, and receives less or 
different, testimony, than the law required at the time of the commission of 
the offence, in order to convict the offender.

The enhancement of a crime or penalty, seems to come within the same mischief 
as the creation of a crime or penalty.

To every petition for divorce there must be an affidavit appended, that the 
facts charged have existed and been known to the petitioner six months before 
the filing of the petition.

This was a petition filed under the act of 1814, ch. 5, praying for a divorce 
a vinculo matrimonii or a mensa et thoro at the discretion of the Court. To 
support the first prayer, the petition charged that the Defendant had 
separated himself from the petitioner and lived in a state of adultery in 1812 
or 1813, for the space of six months: and the Jury, upon an issue submitted to 
them, found this charge to be true. To support the second prayer, the petition 
charged the Defendant with cruel treatment to the petitioner, and with having 
offered to her person intolerable indignities. The Jury negatived these 
charges; and the question arose, whether the petitioner were entitled to have 
a decree made separating her from the bonds of matrimony, the adultery charged 
in the petition and found by the Jury, having been committed before the 
passage of the act of 1814, ch. 5.

Another question was made in the case, and that was as to the sufficiency of 
the affidavit made by the petitioner at the time of filing her petition. The 
affidavit set forth that "the facts stated in the petition were true, and that 
the complaint was not made out of levity or by collusion between the 
petitioner and her husband, for the purpose of a separation, but in truth and 
sincerity for the causes contained in the petition." It was contended, that 
the act of 1814, ch. 5, required the affidavit to set forth, that the facts 
which formed the ground of the complaint had existed and had been known to the 
petitioner at least six months prior to the filing of the petition.

Taylor, Chief Justice: Ch. 5, Laws 1814, is the only law which gives authority 
to the Courts to take cognizance of the subject of divorce. The first section 
of that act authorizes the Court to decree a divorce from bed and board, or 
from the bonds of matrimony, at the discretion of the Court, on proof of 
natural impotence, or that either party has separated him or herself from the 
other and is living in Adultery. And a subsequent section authorizes the Court 
to decree a divorce from bed and board, in cases where the husband either 
abandons his family, maliciously turns his wife out of doors, endangers her 
life by cruel treatment, or offers intolerable indignities to her person. The 
verdict of the Jury has negatived the charges in the petition, relative to the 
cruelty and personal ill treatment, and affirmed the charge of adultery; as to 
which, the Jury find that the Defendant did separate himself from the 
petitioner, and lived in a state of adultery, in 1812 or 1813, for the space 
of six months. And this brings forward the question, whether a decree can be 
pronounced under the act of 1814, for the adultery committed before that 
period.

From the language used in the first and second sections of the act, it would 
seem to have been the intention of the Legislature to authorize divorces for 
causes existing when the act was passed: for the first section speaks of "a 
marriage heretofore contracted," and then proceeds to specify a cause of 
divorce coeval with the marriage, to-wit, impotency; and the second section, 
not less distinctly, speaks of the injury which has been received from either 
of the causes stated in the first. In the fifth section, the language is 
changed, and in enumerating the causes of divorce from bed and board, the law 
is strictly prospective, and assumes the recognised form of a Legislative 
act, "futuris formam debet imponere, non praeteritis." 6 Bac. 370.

Before the enactment of this law, the offense charged in the petition was 
punishable only under the act of 1805, which imposed a fine on the party 
convicted; and therefore the Defendant was liable to no other punishment in 
1812 or 1813, when he committed the offense; and to that extent he yet 
continues liable. But the Court is not called upon to superadd to this 
liability, a deprivation of the marital rights, and an allowance to the 
petitioner out of her husband's estate, under the authority of the act of 
1814. But as that law increased the punishment of the offense, though it did 
not create its criminality, it appears to be, in relation to this case, 
unauthorized by the Declaration of Rights; if not by the very words, at least 
by their fair meaning and spirit. "Retrospective laws, punishing acts 
committed before the existence of such laws, and by them only declared 
criminal, are oppressive, unjust, and incompatible with liberty: Wherefore, no 
ex post facto law ought to be made." — sec. 24 of the Declaration of Rights. 
It is true that the fact of adultery was declared criminal by the act of 1805; 
but to aggravate the punishment of a crime, by a law posterior to its 
commission, is forbidden by the same reason that restrains the Legislature 
from converting into a crime, an act innocent when committed. Punishments are 
designed to suppress crimes, and the degree in which each individual is liable 
for specific violations of the law, is promulgated to the citizens, under a 
constitutional assurance, that they are irresponsible beyond the existing 
enactments when the crime was committed. The construction has been put upon 
the term ex post facto laws, by the Supreme Court of the United States, in 
Calder v. Bull - 3 Dall. 386. Mr. Justice Chase says. "I will state what laws 
I consider ex post facto laws, within the words and the intent of the 
prohibition. 1st. Every law that makes an action, done before the passing of 
the law, and which was innocent when done, criminal, and punishes such action. 
2d. Every law that aggravates a crime, or makes it greater than it was when 
committed. 3d. Every law that changes the punishment, and inflicts a greater 
punishment, than the law annexed to the crime when committed. 4th. Every law 
that alters the legal rules of evidence, and receives less or different 
testimony, than the law required at the time of the commission of the offense, 
in order to convict the offender." Mr. Justice Patterson says, in the same 
case, "the enhancement of a crime or penalty, seems to come within the same 
mischief as the creation of a crime or penalty; and therefore, they may be 
classed together." Mr. Justice Iredell, speaking of the power of the Federal 
and State Legislatures, says, "they shall not pass any ex post facto law; or, 
in other words, they shall not inflict a punishment for any act, which was 
innocent at the time it was committed; nor increase the degree of punishment 
previously denounced for any offence."

Without referring to other authorities for an exposition of these terms, I 
think it may be taken as an incontrovertible position, that the act of 1814, 
so far as it is relied upon to sustain this application, is substantially at 
variance with a most important constitutional provision, the preservation of 
which inviolate, is vitally connected with every principle and bulwark of 
civil liberty. For this reason, therefore, the petition must be dismissed.

But as another question is presented by the case, the determination of which 
at this time, may serve to prevent fruitless litigation, and settle the 
practice in other cases, the Court will give an opinion upon it. The sixth 
section of the act of 1814, enacts that no petition shall be sustained, unless 
the petitioner shall state and swear, that, the facts forming the ground of 
the complaint, have existed to his or her knowledge, at least six months prior 
to the filing of the petition. The affidavit in this case, simply affirm the 
truth of the facts according to the best of the petitioner's knowledge and 
belief, and that the petition is not filed out of collusion or levity, but for 
the causes stated in the petition. Nor does the body of the petition state the 
facts in the manner required by the act. It should, however, be distinctly 
stated in the affidavit, that the petitioner knew of the facts charged, six 
months before the filing of the petition; and this, that the application may 
appear to the Court not dictated by passion or resentment, but an affair of 
deliberation.

Cited: S. v. Bond, 49 N. C. 11; S, v. Bell, 61 N. C. 82; Nichols v. Nichols, 
128 N. C. 109.


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