236 CAMPBELL'S CASE.

sentence of divorce is not so properly a dissolution of the contract
as a declaration of its original absolute nullity, (t) Hence, it
seems to "have been generally admitted, that the constitutional
restriction, which declares, that no state shall pass any law impair-
ing the obligation of contracts, does not extend to a contract of
marriage; (u) and, therefore, that the general assembly may, by
law, grant a divorce from the bonds of matrimony, with all its
consequences, or in a limited manner, or upon any terms deemed
most proper; (w) or they may sanction a separation, by authorizing
the appointment of a trustee to take care of the estate of a fugi-
tive convict for the benefit of his wife and children; (x) or by
making provision for carrying into effect articles of separation, (y)

But although children may be thus deprived of capacities, which
would have been incident to their legitimacy, and be bastardized,
as a consequence of the divorce of their then living parents; (z)
yet, in regard to a law, which, without affecting a then existing
contract of marriage, or which has been passed after its dissolu-
tion by death, declares the issue to be bastards, other considera-
tions arise. Legitimacy is a legal capacity whereby property may
be acquired by descent, &c; or, indeed, it may itself be regarded
as a valuable kind of property, or a privilege of which the general
assembly cannot constitutionally deprive any one, since the legis-
lature cannot so judicially act upon the case as to deprive him of
any legal capacity, privilege, or property with which he has been
legally invested, (a) But, on the other hand, it may be admitted,
that the General Assembly may, prospectively and without preju-
dice to the rights of others, declare a marriage to be valid, and
any bastards to be legitimate, and thus confer upon such indivi-
duals a new and additional capacity; upon the same ground, that
they may grant to an alien a capacity to take and hold in any case
which may thereafter happen in like manner as a natural born
citizen, (b)

It may also be admitted, that the general assembly may, consti-

(t) Bac. Abr. tit. Marriage and Divorce, E. 3; Ryan v. Ryan, 1 Ecclesi. Rep.
274; February 1777, ch, 12rs. 15.—(u) Dartmouth College v. Woodward, 4 Wheat.
629, 693.—(w) 1790, eh. 25; 1807, ch. 20, 30, and 103; 1818, ch. 56.—(o:) 1821,
ch. 80.—-(y) Com. Dig. tit. Parliament, H. 3; Eyre t?. The Countess of Shaftsbury,
2 P. Will. 112; 1822, ch. 100.—(z) 1 Blac. Com. 457.—(a) 4 Inst. 36; Dash v.
Van Kleeck, 7 John. Rep. 504.—(6) 4 Inst. 36; Domat Civil Law, part 2, b. 1, tit.
1, s. 2, art. 81; 1784, ch. 6; May, 1788, ch. 8; November, 1788, ch. 21; 1807,
ch. 73 1808, eh. 13; 1814, ch, 120.