9 Tenn. 110 | Tenn. | 1826
Opinion of the court delivered by
Mary Dickson filed her petition in the county court of Dickson, for dower of the real estate of John Dickson, to
The act referred to in the decree, was passed in 1808, ch. 31; the first and second sections of which give the circuit courts power to grant divorces for different causes; one of which is the abandonment of the bed and board of the husband by the wife fyr three years next before the filing of the bill; and the sixth section provides — “That j such divorce shall not operate so as to release the offend-fing party, who shall, nevertheless, remain subject to all the pains and penalties which the law prescribes, against a marriage while a former husband or wife is living; nor shall it authorize the injured party again to contract matrimony within two years from the time of pronouncing :■ such final decree.”
Whilst Benjamin May was living, to wit, in 1821, the said Mary intermarried with John Dickson: on the 20th of July, 1822, John Dickson died.1 The marriage between John and the petitioner took place in the county of Dickson and State of Tennessee, where the parties then resided, and where John Dickson resided at the time of his death.
John Dickson died seised and possessed of a tract of land, lying in Dickson county in this State, of which the petitioner prays to have dower assigned her, which is opposed by the heirs of John Dickson, on the ground, that the marriage be’jyyeen him and Mary May was void, on account of her former marriage with Benj. May, in the State of Kentucky.
This cause has been argued with great ability and perseverance, both for and against the petitioner, and presents a question of great political importance to the people of this State. Before the divorce of Mary May, had she come to this .State and married John Dickson, she would have been guilty of bigamy, for it matters not in . what community the first marriage has taken place, or in what form, so that it was legal in the country where it was solemnized; if the second were to take place here, it would be bigamy. Act of 1820, ch. 12, 1 Hawk. 174. 1 East’s cr. law, 464.
In every known Christian country,polygamy is prohibited, under severe penaltie|, and marriages encouraged and protected. By the English Canon and Ecclesiastical law, this union of marriage is of a nature so widely differing from ordinary contracts, creating disabilities and conferring privileges between the husband and wife, producing interests, attachments and feelings, partly from necessity, but mainly from a principle in our nature, which together, form the strongest ligament in human society;
Every honest and prudent man, who wishes well to the society in which he lives, ought to shudder whenever he sees the supreme power of the country legislating upon this subject. Nor should he as a judge, (if legally to be avoided,) give any aid to such as grossly offend against the solemnities of the marriage compact in a sister state, in considering of which, he would do well to adopt for his guide, and as a standard of his moral rectitude, the doctrine laid down by Mr. Paley, in his treatise on moral philosophy, chs. 7 and 8, on divorce and marriage.
If the petitioner is permitted, by the judgment of this court, to marry after her divorce in Kentucky, which restrained her from doing so there, without being subject to pains or forfeiture of any kind in this state, the consequence will be an invitation to every divorced man or woman, who has been the offending party, and is disabled from marrying at home, in every state in the union, and all other countries, to impose themselves as adventurers upon the population of this state; which, in a few years, will run the hazard of becoming the receptacle of-the refuse, proscribed, and prostituted vagabonds, outcasts from a population of fifteen or twenty millions in our sister states. The wretch who, for an infamous crime, has b een foi v^-ar- confined in a state prison, and his wife divorced
The statute of Kentucky provides, that the offending party (the petitioner in this case) shall not be released from the marriage contract, but shall be subject to all the pains and 'penalties of bigamy. It is impossible, in- the nature of things, that all the relations of wife shall exist when she has no husband; who, as soon as the decree dissolving the marriage was pronounced, was an unmarried and single man, freed from all connections and rela- ■ tions to his former wife: and equally so was the petitioner freed from all marriage ties and relations to Benjamin May, in reference to whom she stood like unto every man in the community. Therefore, he has no right to complain of the second marriage: — who has? — Not the commonwealth of Kentucky, whose penal laws cannot extend.beyond her own territorial jurisdiction, and cannot be executed or noticed in this state, where the second
I Had Mary May married a second time in Kentucky, ’feuch second marriage would not be void because she ,continued the wife of Benjamin May, but because such second marriage in that state would have been in violation of a highly penal law against bigamy; and it being a well settled principle of law that any contract which violates the penal laws of the country where made shall be void.
The inquiry with this courtis not, however, nor cannot be whether the laws of Kentucky have been violated by this second marriage — but have our own laws been violated? The act of 1820, ch. 18, against bigamy, declares it felony for any person to marry having a former husband or wife living. Mary May had no husband living, and is not guilty of bigamy by our statute; nor has she violated the sanction of any penal law oí this state.
No principle of comity amongst neighboring communities, can be extended to give force and effect to the penal laws of the one society, ex-territorially of the other; and, for many reasons, it would be equally inconvenient, not to say impracticable, to a'dopt the principle among sister states of the American union; for which this court has the conclusive authority of the supreme court of the U. S. in Hutton vs. Moore, 5 Wheaton, 68.
Therefore, Mary Dickson was lawfully married to John Dickson, and is entitled to dower.
Decree accordingly.