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. 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 fromthe 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, (329) 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, *Page 245 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 (330) 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 *Page 246 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 postfacto 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 (331) 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. *Page 247