In re Justices' Opinion

Decision Date11 February 1840
Citation16 Me. 479
PartiesIn re Opinion of the Justices
CourtMaine Supreme Court

The Legislature have power to grant divorces, in cases where the Supreme Judicial Court have no jurisdiction; but where the Court have the jurisdiction, the constitution forbids the exercise of that power by the Legislature.

STATE OF MAINE.

IN SENATE, Feb. 11, 1840.

Ordered, That the Justices of the Supreme Judicial Court, be requested to give their opinion on the following questions, to wit:

QUES 1st. Have the Legislature the power to grant Divorces, in cases where the Supreme Judicial Court have jurisdiction?

QUES 2d. Have the legislature the power to grant Divorces, in cases where the Supreme Judicial Court have no jurisdiction.

To the Honorable the Senate of the State of Maine:

The Justices of the Supreme Judicial Court, in obedience to your order of the eleventh inst., have considered the questions thereby proposed to them, and now have the honor to transmit the following observations as their opinion.

The questions presented to the Justices under that clause of the constitution, which requires them " to give their opinion upon important questions of law and upon solemn occasions," are perhaps almost necessarily presented under circumstances indicating that an opinion is expected speedily. And they are received, when the mind, having been greatly exhausted by the pressing labors of other official duties, no longer possesses its natural vigor, and cannot exercise even its accustomed extent of thought or power of reason. And it cannot be allowed the time for that extensive research and patient examination and reflection, which the importance of the questions, often a little aside from the range of its accustomed studies and duties, may demand. And it is not excited to action and aided by the elaborate examination and forcible reasoning of other minds which have been interested to examine and argue them. Opinions formed under such circumstances, can scarcely claim the respect which might be readily yielded to those formed under more favorable auspices.

Marriage is usually and justly regarded in christendom as an institution of divine origin, and regulated to a certain extent, by the divine command. And in countries where neither the Jewish law nor christian religion has been received, regulations of it have been regarded as disclosed by the light, and existing in the law of nature. There can, however, be no doubt, that it is subject to the regulation of municipal law, in all those numerous incidents wherein the divine law is silent. The mode of entering into the contract; to what extent and in what manner it shall affect the personal liberty and safety of the parties, and in what manner these shall be protected and secured; the effect which it shall have upon their estates during its continuance and after it is terminated by death; the duties which it imposes upon each, and the obligations under which it places them to others, are some of the matters coming rightfully within the control of the legislative power. And they prove that it is also a civil institution to be regulated by law for the common good. The common law considers it in no other light than as a civil contract, leaving morality and religion to act upon it according to their own principles. This contract, to be binding, must, like others, be entered into by those having ability to contract, and who freely do so in the manner which the law prescribes or allows. When thus executed it confers upon the parties certain legal rights, according to the then existing state of the law. The rights of the parties to their property or estates, are no longer the same. Former rights are diminished or modified, and new ones are acquired. These rights the law recognizes as having been derived from the contract of marriage, and enforces them. Here then is a contract, valid in law, and from the obligations of which neither party can be freed, but by some course of procedure which the law admits to be effectual, to declare that it is no longer binding. Whatever this may be, it has the effect of depriving one party to the contract of legal rights, and of releasing the other party from legal obligations.

Such right and duties when acquired and existing by virtue of a deed, bond, promissory note, or other contract of similar character, cannot be destroyed or released by the legislative power. To do this, would violate that clause in the constitution of this State, which declares that the legislative power shall pass no " law impairing the obligation of contracts." The rights and obligations secure by this class of contracts, are precisely such as the parties to them, acting in obedience to the laws, choose to make them; and such as the contract itself sets forth and defines. The only proper proof of them is found in the language of the contract. The Legislature, by no law of general policy for the regulation of municipal affairs, or of moral or intellectual culture, would act upon or affect them. These contracts may be dissolved at the election of the parties interested. In all these respects, they are unlike and differ from the marriage contract--that cannot be dissolved by the consent of the parties. The State has an interest in it as a civil institution, designed to cherish virtue and to promote the happiness of the community. All the rights and duties arising out of it, except those occasioned by the difference of the sexes, are not provided for in the contract; nor are their existence proved by it. They are acquired solely by a law of the State, and are such as that determines that they ought to be. It is for the legislative power to determine what will promote the general welfare and the happiness of the people in the regulation of this relation in life, as well as in that of parent and child, and master and servant. It may by law declare, that the husband shall have no right to the estates of the wife, and the wife none to those of the husband. Such a law would change the rights of the parties as they have heretofore existed under the marriage contract, in all those cases where the title had not been changed by being reduced to actual possession. And in the same manner may every right and duty existing under it, saving those before excepted, be altered or destroyed by general laws regulating...

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3 cases
  • Wood v. Wood
    • United States
    • Maine Supreme Court
    • October 25, 1979
    ...474 (1887); Stratton v. Stratton, 73 Me. 481, 483 (1882); Henderson v. Henderson, 64 Me. 419, 421 (1875). See generally, Opinion of the Justices, 16 Me. 479 (1840). Although courts construing the divorce statutes properly display a special solicitude toward the minor children of divorced pa......
  • Peaslee v. Peaslee
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 19, 1888
    ...difficulty in obtaining that relief under this statute, and one desiring that relief should be permitted to seek it in any way he wishes. OPINION J. The first case is a writ of dower brought by Abby D. Peaslee as the widow of Hiram Peaslee against his devisees. The tenants deny the validity......
  • Whitmore v. Harden
    • United States
    • Utah Supreme Court
    • February 11, 1882
    ...Fenster, 2 Id. 15; Debell v. Foxworthy, 9 B. Mon. 228; Watson v. Wilson, 2 Dana, 406. EMERSON, J. HUNTER, C. J., and TWISS, J., concurred. OPINION EMERSON, The appeal is from the judgment, and only the judgment roll is before this court. It is claimed on the part of the appellant that the c......

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