Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-08-25
SUPREME COURT DECISION
john A. Lanicr VS., Jane Lanter-
rnR Dissenting Opinion.

John A. Lanicr VS., Jane Lanier
nn Dissenting Opinion.
OPINION.
II cannot concur with the majority c
!. the Court in the opinion granting the d
vorce in this case. . 1s U
My obse rvation has been, that at ever
Chsncery and Circuit Govt attended b
me for numbsr of years, and up t
within the last twelve months, from on
| to half dozen, and some times more
y suits for divorce were pending, with th,
mania fortheir institution and prosecution
: on the increase, all attributable alone Il
| the loose and unmatured legislation of the
State. A similar condition of things ex
lists in most of the States of the Union,
making the name of the North American
people almost if not in fact by-word.
4 agree with Mr.. Shelford, that seThs
general advantages of indissolubility as
opposed to an unlimited right of divorce,
are elegantly and clearly demonstrated by
Hume in his Essay of POlygamy and Di,
vorces, where he observes, If it be true
on the one hand that the heart of man
naturally delights in liberty, and hates
everything to which it is confined, it is
also true, on the other, that the heart of
man naturally submits to necessity, and
soon loses an inclination when there ap-
pears an absolute impossibilIty of graft
flying it. Perhaps 1t will be said that
these principles of human nature are con-
Trajectory; but what is man but heap
of contradictiont2 Though it is remark
able that where principles are, after this
manner, contrary in their operation, they
do not always destroy each other, but the
one or the other may predominant on any
particular occasion, according as circum-
stances are more or less favorable to it.
For instance, love is restless and impa-
tient passion, full of caprices and varia-
tons, arising in moment from feature,
from an air, from nothing, and suddenly
extinguishing after the same manner.
But friendship is a calm and sedate affec-
| ton, conducted by reason and ceneBted
by habit, springing from long acquaint-
ance ana mutual obligations, without
Jealousies and without those feverish fits
Of heat and cold which cause such an
agreeable torment in the amOrous passion.
SO sober an affection, therefore, as friend
ship rather thrives under constraint, and
never rises to such height as when any
strong interest or necessity binds two per-
sons together and gives them some com.
mon object of pursuit. We need not,
therefore, be afraid of drawing the mar
risge knot which chiefly subsists by
friendship-the closest possible. The
amity between the persons, where it is
solid and sincere, will rather gain by if,
and where it is waveriDg and uncertain,
this is the best expedient for fixing 1t.
How many frivolous quarrels and dis
gusts are there which people of common
prudence endeavor to forget when they
lie under the necessity of passing their
lives together, but which would soon be
famed into the most deadly hatred were
they pursued to the utmost under the pro.
spect of an easy separation.
We must consider that nothing is more
dangerous than to unite two persons 80
closely in all their interests and concerns
as man and wife, without rendering the
union entire and total.
The least possibility of separate in
terest must be the source of endless quar-
rels and suspicious. The wife, not Sc
cure of her establishment, will still be
driving come separate end or profit; and
the husbands selfishness, being accompa-
MED with more power, may still be more
dangerous"
l will add to the argument, faVoring
drawing the marriage knot closest pos
sible."
There cannot be doubt that our loose
cnh
looser administration of the law ofdiyorce,
has cursed the State with crime and mis-
cry in bringing about thoughtless and
hasty marriages, q large proportion of the
unfortunates taking upon themselves their
marriage vows and obligations the more
readily and carelessly, because of the slip
shod provisions of the statute and their
rickety administration. 1t can be very
well seen how one of the low instincts or
OF morals not the best Glasses not to be
overlooked by the Legislature and judi
Cisry), would secure him or herself in
reflection, on the eve of an engagement
or even marriage, that the law of divorce
is easy, with many causes provided for
its obtention, and they of character
quick of improvisation. So, if am not
satisfied with a probationary welded life,
will appeal to the courts, and through
them dissolve my experimental union.
On the other hand, if it is understood
that marriage is not to be treated so
lightly, but that it is the most solemn and
binding of al contracts, and when once
coDsummated ia dissoluble for but the
one cause, we will find males AMI fe-
Tnolaa not oplv mora nSut,ouc fhouphtf1I
and honorable in their alliances and mar
riages, but much of other crimes will fail
TO publish itself through the courts, be-
cause it shall have passed away.
To borrow from Lord Stowell, "When
people understand that they must live
together except for very few reasons
known to the law, they learn 10 soften
by mutual accommodation, that yoke
which they know they cannot shake off;
they become good husbands and good
wives from the necessity of remaining
husbands and wives, for necessity is a
powerful master in teaching the duty it
imposes. If it were once understood that
upon mutual disgust married people might
be legally separated, many couples who
now pass through the world with mutual
comfort, with attention to their common
offspring and to the moral order of civil
society, might have been at this moment
living IN a state of mutual unkindness, in
state of estrangement from their COM
mon offspring, and in state of the most
licentious ana unreserved immortality"
OF this last picture drawn by the
learned Judge, there are but few members
of the bar with experience in the prac-
tice, who cannot call to their recollections
exact representatives.
Statutory Innovation upon the SOL
emuity and n3iGg effect of the mar
rage relation has been of glow growth
and of great popular disfavor, until with
in comparatively recent period in the
history of the law.
Blackstone, book l, p. 440-41, says:
SIN cases of total divorce, the marriage
is declared null as having been absolutely
unlawful alb initio, and the parties are
therefore separated prosslute animarum,
for which reason no divorce can be OBJ
tanned but during the life of the parties. ="
The issue Of such marriage as Is thus
entirely dissolved, are bastards.
Divorce mensa ct thoro is when the
marriage is just and lawful alb iniuo, and
therefore the law ia tendar of 6;osoIv;pcr