Note 72 — Chapter XVII · A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES, 1776-1903

Case of West Cambridge v. Lexington (Oct., 1823), 1 Pickering, 507-12. The act of 1785 provides that the penalties for "polygamy," which it prescribes, shall not extend "to any person that is or shall be at the time of such marriage divorced, by sentence of any Court ... unless such person is the guilty cause of such divorce."—Acts and Laws (Reprint, Boston, 1784), 118; also in Perpetual Laws of the Com. of Mass., I, 217, 218. The act of 1786, chap. 69, provides that all "marriages where either of the parties shall have a former wife or husband living at the time of such marriage, shall be absolutely void."—Perpetual Laws of the Com., I, 301. This provision is ambiguous, and might of itself seem to make void the marriage even of the innocent party to a divorce; but, in the case just cited, the court held: "Supposing the legislature to have considered the parties to a marriage which had been dissolved as standing in the relation of husband and wife, so far as to bring them within the purview of the former statute [that of 1785], it will follow that a marriage of persons so situated would be void. It is true, that by this statute [that of 1786] standing by itself, the marriage of an innocent party to a divorce would not be protected; but the statutes, being in pari materia, must be construed together, and the exception in the first cited statute in favor of such persons, would avail."—1 Pickering, 509.