Year: 1871

John A. Lanicr vs.. Jane Lanicr Dis
1 rr scnting Opinion.


OPINION.
/ Icahnot concur with the majOrit


of the court in the opinion grantin
the divorce in this case.


/ My observation has been, that Q


every chancery and circuit court al


tended by me for O number of year


and up to within the last twelv


months, from one to q half-dozcr
and. .sometimcs more, suits for divorc


were pending with the mania fo


their institution and prosecution o


the increase, all attributable alone +


the loose and unmatured Legislation


Of the State. A similar condition Q


things exists in most of the othe


States of the Union, making the nam


of the North American people almos


If not in fact by-word. r
/ agree with Mr.. Shelford, tina
sThe general advantages OF iisilssofu


6ility as opposed to an unlimite,
right of divorce, are elegantly an,
clearly demonstrated by Hume il
his Essay of Polygamy and Divorces
where he observes, ''If it be truc-oI
the one hand that the heart of maj
naturally delights in liberty, ant
hates everything to which it is.con
fined, it is also true, on the other
that the heart of man naturally sub
mits 10 necessity, and soon loses 81
inclination when there appears al
absolute impossibility of gratifying
it." Perhaps it will be said that these
principles of human nature are con
Trajectory but what is man but q
heap of contradictions? Though il
is remarkable that where principles
are, after this manner, contrary in
their operation, they do not always
destroy each other, but the one o.
the other may predominant on any
particular occasion, according as cir.
cumstances are more or less favora-
BILE to it. For instance, love is a
restless and impatient passion, full
Of canrices and variations, arising in
q moment from q feature, from an
air, from nothing, and suddenly ex-
tinguishing after the same manner.
But friendship is a calm and sedate
affection, conducted by reason and
ccmented by habit, springing from
long acquaintance and mutual Obli-
cations, without jealousies and with
out those fevcrish fits of heat and
cold which cause such an agreeable
torment in the amOroas passion.
So sober an affection, therefore, as
friendship rather thrives under con-
traint, and never rises to such a height
as when any strong interest or neces-
sity binds two persons together and
gives them some common object of
pursuit. We need not, therefore, be
afraid of drawing the marriage knot
which chiefly subsists by friendship
the closest possible. The amity
between the persons, where it is solid
and sincere, will rather gain by it.
and where it is wavering and uncer-
tain, this is the best expedicnt for
fixing it. How many frivolous quar-
rels and disgusts are there which
people of common prudence endeav-
or to forget when they lie under the
necessity of passing their lives to-
gether, but which would soon be
famed into the most deadly hatred
were they pursued to the utmost
under the prospect of an easy spara-
ton.


We must consider that nothing is
more dangerous than to unite two
persons so closely in all their inter-
ests and concerns as man and wife,
without rendering the union entire
and total.


The least possibility of a separate
interest must be the source of endless
quarrels and suspicious. The wife,
nOtsecure of her establishment, will
still be driving some separate end or
profit and the husbands selfishness,
being accompanied with more power,
may still be more dangerous"


l will add to the argument, favor
ing drawing the marriage knot clos
est possible"


There cannot be a doubt that our
loose legislation upon the subject,
and still looser administration of the
law of divorce, has cursed the State
with crime and misery in bringing
about thoughtless and hasty marri-
ages, large proportion of the un-
fOrtunates taking upon themselves
their marriage vows and obligations
the more readily and carelessly, be-
cause of the slip-shod provision of
the statute and their rickety admin-
istration. 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
judiciary, would secure him or her.
self in reflection, on the eve of an
engagement, or even marriage, that
the law of divorce iseasy, with many
causes provided tor its obtention,
and they of a character quick of i'm
provisation. So, if / am not satisfi-
ed with a probationary welded life, l
will appeal to the courts, and through
them dissolve nay experimental
union.


On the other hand, if it is under
stood that marriage is not to be treat
cd so lightly, but that it is the most
solemn and binding of all contracts,
and when once consummatedis is disso-
luble for but the one cause. We will
find m ales and females not only more
cautious, thoughtful and honorable in
their Alliances and marriages, but
much of other crimes will fail to pub
lish itself through the courts, because
it shall have passed away.


To borrow from Lord Stowcll,
"When people understand that they
must live together except for a very
few reasons known to the law, they
learn to soften by mutual accommO.
dation, 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 power


full master in teaching the duty i
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, will


attenti. to their common Offsprin:


and to the moral order of civil society


might have been at this moment liv


ing in a state of mutual unkindness


i'll state of estrangement from thei


common offspring, and in a state Q


the most liccntious and unrescrve'


immortality"


Of this last picture drawn by tn


learned Judge, there are bnt fe,
members of the bar with experienc


in the practice, who cannot call t


their recollections exact representa-