Eabxe, J.
at this term delivered the opinion of the Court.
A constitutional question is involved in the consideration of this case, and before we enter upon the solution of it, we will state some positions preliminary to the subject.
The constitution of this State, composed of the declaration of rights and form of government, is the immediate work of the people, in their sovereign capacity, and contains standing evidences of their permanent will. ’ It portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise, and specifying that from the exercise of which it must abstain. The public functionaries move then in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorised, and being without warrant, are necessarily to be viewed as nullities. If considered as valid acts, the distinction between unlimited and circumscribed authority is done away, the derivative exerts original power, and of constitutional law nothing is left but the name.
The legislative department is nearest to the source of power, and is manifestly the predominant branch of the government. Its authority is extensive and complex, and being less susceptible on that account of limitation, is more liable to be exceeded in practice. Its acts, out of the limit of authority, assuming the garb of law, will be pronounced nullities by the courts of justice; it being their province to decide upon the law arising in questions judicially before them, and upon the constitution as the paramount law; but this is more in fulfilment of their own duty, than to restrain the excesses of a co-ordinate department of the government. The check to legislative' encroachments is to be [473]*473found in the declaration, that the legislative, executive, and judicial powers ought to be kept separate and distinct; and in the solemn obligations of fidelity to the constitution, under which all legislative functions are performed.
With these general views of constitutional law, we proceed to consider the questions more immediately before the court. On the argument of the cause, the courts attention was directed to act of Assembly passed in 1823, entitled, “An act for the relief of Mary Meginnis,” which the appellee’s counsel asserted to be in violation, in some of its provisions, of the constitution of the State. Should it be found to be so, the judgment of Kent County Court will be affirmed, the appeal having been taken in a suit founded wholly upon this act of Assembly. Whether the act is then an infringement of the constitution, is the main question to be determined by this court, and it rests upon the two following points: Is the enactment of the third section of the act of 1823, an exercise by the legislature of judicial power ? Is the exercise by ihe legislature of judicial power, in the passage of a law, repugnant to the constitution ?
The act of 1823 is an act of divorce, separating Mary Meginnis from the bed and board of her husband, and its third section is clothed in this language: “And be it enacted, that the said Casparus Meginnis shall annually hereafter pay to John Crane of (¿men Jinn's County, who is hereby made the trustee jn that behalf, to and for the use and benefit of the said Mary Meginnis, the sum of three hundred dollars, in two equal instalments, the first on the first day of March, and the second on the first day of September, in each and every year during the joint lives of the said Casparus Meginnis and- Mary Meginnis, and the said trustee shall be authorised to institute suit in his own name for any instalment which shall not be paid, on the day on which the same is hereby declared to be due, and it shall be the duty of the court before whom the suit is brought to try the same at the term to which the writ is made returnable.” This grant of an annuity, is called a grant of alimony, and it is contended, that after the legislative separation, it might have been recovered by the wife in the Court of Chancery, pursuant to [474]*474the laws of this State, if her case merited the interference of the Chancellor, and the circumstances of the husband justified the allowance of such a sum.
The investigation of this point led us into a general review of the British law of divorce and alimony. From the research it has appeared to us, that they are both of judicial cognizance in the Ecclesiastical Courts of that country; that the divorce a mensa et thoro separates the parties for unfitness for the marriage state, and the separation is the remedy administered for the injury to the suffering party, that alimony is the maintenance afforded to the separated wife for the injury done her by her husband, in neglecting or refusing to make her an allowance suitable to their station in life, and is treated as a consequence drawn from the divorce a mensa et thoro; and that each of those matrimonial causes is dependent on different facts, and is redressed by different judgments, although both are within the jurisdiction'of the same tribunal. In this State the act of divorcing man and wife has been performed by the legislature, for'the want perhaps of ecclesiastical authority to effect it, or borrowing perchance the power from the parliament of Great Britain, which sometimes granted divorces a vinculo matrimonii, for supervenient causes, arising ex post facto, a thing that the spiritual courts could not do. However this may be, 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 legislative power. The private acts passed for more that ten years back we have adverted to, and almost every divorce law has been found to be expressed in terms peculiar to itself. In some, the mere separation from bed and board is effected in the plainest and shortest way, as in the case of Francis B. Mitchell by the act of 1822, ch. 138, and in the case of Sarah Kerr by the act of 1824, ch. 118; and in other acts, separating the married parties, particular consequences of a continuing coverture are sedulously guarded against. In none, not even in the act of 1818, ch. 203, referred to by counsel, is there any thing like a provision for the future maintenance of the wife, graduated to the circumstances of the [475]*475husband, and the station in life of the parties, as the act of 1823 would appear to be. On the other hand, the suit for alimony in this State, as in Great Britain, is a distinct remedy from the proceedings to obtain a divorce, and for a series of years the wifes’ maintenance has been recoverable through the intervention of our judicial tribunals. So early as the year 1689, in the case of Galwith vs. Galwith, 4. Harr. & M'Hen. 477, it was asserted in the Supreme Court of the Province, that alimony is only recoverable in Chancery, or the Court of the Ordinary; and in the year 1777, the act of Assembly was passed, which expressly authorised the Chancellor to hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the Ecclesiastical Courts there. Since this last period, such causes have been continually acted upon by the Chancellor, and in some instances appeals have been taken to the Appellate Courts, and decided on by them.
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Eabxe, J.
at this term delivered the opinion of the Court.
A constitutional question is involved in the consideration of this case, and before we enter upon the solution of it, we will state some positions preliminary to the subject.
The constitution of this State, composed of the declaration of rights and form of government, is the immediate work of the people, in their sovereign capacity, and contains standing evidences of their permanent will. ’ It portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise, and specifying that from the exercise of which it must abstain. The public functionaries move then in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorised, and being without warrant, are necessarily to be viewed as nullities. If considered as valid acts, the distinction between unlimited and circumscribed authority is done away, the derivative exerts original power, and of constitutional law nothing is left but the name.
The legislative department is nearest to the source of power, and is manifestly the predominant branch of the government. Its authority is extensive and complex, and being less susceptible on that account of limitation, is more liable to be exceeded in practice. Its acts, out of the limit of authority, assuming the garb of law, will be pronounced nullities by the courts of justice; it being their province to decide upon the law arising in questions judicially before them, and upon the constitution as the paramount law; but this is more in fulfilment of their own duty, than to restrain the excesses of a co-ordinate department of the government. The check to legislative' encroachments is to be [473]*473found in the declaration, that the legislative, executive, and judicial powers ought to be kept separate and distinct; and in the solemn obligations of fidelity to the constitution, under which all legislative functions are performed.
With these general views of constitutional law, we proceed to consider the questions more immediately before the court. On the argument of the cause, the courts attention was directed to act of Assembly passed in 1823, entitled, “An act for the relief of Mary Meginnis,” which the appellee’s counsel asserted to be in violation, in some of its provisions, of the constitution of the State. Should it be found to be so, the judgment of Kent County Court will be affirmed, the appeal having been taken in a suit founded wholly upon this act of Assembly. Whether the act is then an infringement of the constitution, is the main question to be determined by this court, and it rests upon the two following points: Is the enactment of the third section of the act of 1823, an exercise by the legislature of judicial power ? Is the exercise by ihe legislature of judicial power, in the passage of a law, repugnant to the constitution ?
The act of 1823 is an act of divorce, separating Mary Meginnis from the bed and board of her husband, and its third section is clothed in this language: “And be it enacted, that the said Casparus Meginnis shall annually hereafter pay to John Crane of (¿men Jinn's County, who is hereby made the trustee jn that behalf, to and for the use and benefit of the said Mary Meginnis, the sum of three hundred dollars, in two equal instalments, the first on the first day of March, and the second on the first day of September, in each and every year during the joint lives of the said Casparus Meginnis and- Mary Meginnis, and the said trustee shall be authorised to institute suit in his own name for any instalment which shall not be paid, on the day on which the same is hereby declared to be due, and it shall be the duty of the court before whom the suit is brought to try the same at the term to which the writ is made returnable.” This grant of an annuity, is called a grant of alimony, and it is contended, that after the legislative separation, it might have been recovered by the wife in the Court of Chancery, pursuant to [474]*474the laws of this State, if her case merited the interference of the Chancellor, and the circumstances of the husband justified the allowance of such a sum.
The investigation of this point led us into a general review of the British law of divorce and alimony. From the research it has appeared to us, that they are both of judicial cognizance in the Ecclesiastical Courts of that country; that the divorce a mensa et thoro separates the parties for unfitness for the marriage state, and the separation is the remedy administered for the injury to the suffering party, that alimony is the maintenance afforded to the separated wife for the injury done her by her husband, in neglecting or refusing to make her an allowance suitable to their station in life, and is treated as a consequence drawn from the divorce a mensa et thoro; and that each of those matrimonial causes is dependent on different facts, and is redressed by different judgments, although both are within the jurisdiction'of the same tribunal. In this State the act of divorcing man and wife has been performed by the legislature, for'the want perhaps of ecclesiastical authority to effect it, or borrowing perchance the power from the parliament of Great Britain, which sometimes granted divorces a vinculo matrimonii, for supervenient causes, arising ex post facto, a thing that the spiritual courts could not do. However this may be, 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 legislative power. The private acts passed for more that ten years back we have adverted to, and almost every divorce law has been found to be expressed in terms peculiar to itself. In some, the mere separation from bed and board is effected in the plainest and shortest way, as in the case of Francis B. Mitchell by the act of 1822, ch. 138, and in the case of Sarah Kerr by the act of 1824, ch. 118; and in other acts, separating the married parties, particular consequences of a continuing coverture are sedulously guarded against. In none, not even in the act of 1818, ch. 203, referred to by counsel, is there any thing like a provision for the future maintenance of the wife, graduated to the circumstances of the [475]*475husband, and the station in life of the parties, as the act of 1823 would appear to be. On the other hand, the suit for alimony in this State, as in Great Britain, is a distinct remedy from the proceedings to obtain a divorce, and for a series of years the wifes’ maintenance has been recoverable through the intervention of our judicial tribunals. So early as the year 1689, in the case of Galwith vs. Galwith, 4. Harr. & M'Hen. 477, it was asserted in the Supreme Court of the Province, that alimony is only recoverable in Chancery, or the Court of the Ordinary; and in the year 1777, the act of Assembly was passed, which expressly authorised the Chancellor to hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the Ecclesiastical Courts there. Since this last period, such causes have been continually acted upon by the Chancellor, and in some instances appeals have been taken to the Appellate Courts, and decided on by them. And we cannot permit ourselves for a moment to doubt, that if Mary Meginnis, like Francis B. Mitchell and Sarah Kerr, had obtained simply an act of divorce, she might have recovered, having merits, a maintenance suitable to her station in life, and to quadrate with the situation of her husband, by a bill in Chancery, or an application to the equity side of Kent County Court. If she could have been thus redressed by an exercise of judicial authority, we would ask, is It not fair to conclude that the redress granted to her by the legislature, is an exercise of judicial authority ? The nature of the power employed must be judged of, by having an eye to the like power exercised by a co-ordinate department. Should the executive try and sentence a felon to punishment, the judicial authority exercised could not be mistaken: and should the judiciary undertake to enact and promulgate a law, and exact obedience to it, the act would doubtlessly be pronounced, at once, an usurpation upon the functions of the legislature.
K': The enactment of the third section of the act of 1823, being-in our opinion an exercise by the legislature of judicial power, our attention will now be engaged for a short time with the en[476]*476quiry, whether the exercise by the legislature of judicial power in the passage of a law, is repugnant to the constitution.
The decision of this point must depend upon the sound construction of the sixth section of the bill of rights, which says, “that the legislative, executive, and judicial powers of government, ought to be forever separate and distinct from each other.” This political maxim made its appearance, in some form, in all the state constitutions formed about the time of the war of the revolution, and is said to have been borrowed by them of the celebrated Montesquieu’s Spirit of Laws, vol. I. p. 181. In whatever terms they have adopted it, in none of these constitutions are the several departments kept wholly separate and unmixed. In some of them, as in the constitution of this State, the executive is appointed by the legislature, and the judiciary by the executive, and in others, the powers of the several departments are still more blended and mingled together. Upon a full consideration of each of them, it seems to us to have been the intention to ingraft this invaluable maxim of political science on their respective systems, only as far as comported with free government, and to prohibit the exercise by one department of the powers of another department, or to confine each department to the exclusive exercise of its own powers. This last is admirably expressed in the constitution of Massachusetts, and evinces a perfect acquaintance of its framers with the pages and doctrines of Baron Montesquieu. It is worded thus: “That the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them.” The inhibition goes to the practical exercise of powers conferred by the constitution, and to be used after it is in operation, and does not apply singly to the original distribution of powers among the departments of the government. In the same sense: we construe the sixth article of our bill of rights, which has the same objects in view with the constitution of Massachusetts, although somewhat different terms are employed to express them. The one imitates the language, and the other dives into and ex [477]*477presses the meaning of the venerated author from which they both copied. Their common purpose is to confine in "practice, the action of each department to its own appropriate sphere, by forbidding to it the use of powers allotted to the co-ordinate departments.
We have already determined the first point, and we have now to add our perfect conviction, that the exercise by the legislature of judicial power in the passage of a law, is repugnant to the constitution. Our conclusion from all this reasoning is, that the third section of the act of 1823 is a nullity, and was rightly considered unavailable to support the plaintiffs action in the County Court where the suit originated, and that the judgment therefore ought to be affirmed.
In acting upon this case, we wish to be understood to decide nothing but the points before mentioned—only to adjudge that the exercise by the legislature of judicial power, is in opposition to the constitution, and that the enactment of the third section of the act of 1823, was an exertion of judicial power, and is necessarily a void act.
judgment affirmed.