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Topic: The American Revolution and Constitution

CHAPTER XII.: STATE REGULATION OF THE RELATION OF HUSBAND AND WIFE. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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CHAPTER XII.

STATE REGULATION OF THE RELATION OF HUSBAND AND WIFE.

SECTION180.Marriage, a natural status, subject to police regulation.
181.Constitutional limitations upon the police control of marriages.
182.Distinction between natural capacity and legal capacity.
183.Insanity as a legal incapacity.
184.The disability of infancy in respect to marriage.
185.Consanguinity and affinity.
186.Constitutional diseases.
187.Financial condition—Poverty.
188.Differences in race—Miscegenation.
189.Polygamy prohibited—Marriage confined to monogamy.
190.Marriage indissoluble—Divorce.
191.Regulation of the marriage ceremony.
192.Wife in legal subjection to the husband—Its justification.
193.Husband’s control of wife’s property.
194.Legal disabilities of married women.

§ 180.

Marriage, a natural status, subject to police regulation.—

Whatever may be one’s views concerning the philosophical origin of the institution of marriage; it matters not whether it is viewed as a divine institution and a sacrament, or as the natural result of the social and physiological forces; all are agreed that it has its foundations in nature, and is not a human contrivance. Mankind cannot be conceived as existing without this status, for the marital relation is co-existent with, and must have accompanied, the beginning of the creation. The natural element of marriage is discoverable in like relationships among most, if not all, of the lower animals. It is, therefore, but a natural status, one that is brought into existence by natural forces, and cannot be successfully prevented or abolished. The natural status of marriage works for the good or woe of mankind, according as it is founded in purity and rests upon sound spiritual and physical foundations, or assumes a contrary character. The welfare of society is inseparably wrapped up with the success of the marital relations of its members; and ill-assorted marriages, marriages between persons who are either mentally or physically unfit to enter into the relation, will surely bring harm to society; while appropriate marriages constitute the very foundation of society, and its welfare depends upon the fostering and encouragement of them. Indeed nations have often provided inducements to enter into the relation, at times when the general extravagance of the people deterred them from assuming the responsibilities of husband and wife. If, therefore, a happy marriage between competent parties redounds to the lasting benefit of society, and a marriage between persons, who through mental or physical deficiencies are incapable of contracting a happy marriage, produces harm to the State, surely the State is interested in promoting and encouraging the former, and discouraging and preventing the latter. The State may, therefore, institute regulations having that purpose in view, in the exercise of the ordinary police power. The right of the State to regulate marriages, determining the capacities of parties, and the conditions of marriage, has never been questioned. Indeed, it would be absurd to assert that the State could not prohibit polygamy, and deny the right of marriage to persons whose marriage, on account of their deficiencies, or on account of their near relationship to each other, is likely to be harmful to society in one or more ways. Mr. Bishop says:1 “The idea, that any government could, consistently with the general well being, permit marriage to become merely a thing of bargain between men and women, and not regulate it by its own power, is too absurd to require refutation.”

The tendency of modern thought is to recognize no limit to the power of the government to regulate marriage. “Chief Justice Cockburn, in one case, said that the Parliament could deny the right of marriage altogether. It is not likely that others would go so far in recognition of the police power of the State, for it is generally conceded that marriage is a thing of natural right,”1 and cannot be denied except for some good legal reason. But it does not seem to be settled what are good reasons, and who shall determine what they are. Mr. Bishop says: “Surely it (the government), will retain the right to regulate whatever pertains to marriage in its own way, and to modify the incidents of the relation from time to time as itself pleases.”2 And while he recognizes the natural right to marry, the only benefit derived from this recognition is to throw all presumption in favor of the legality of the marriage, and require the courts to sustain the validity of a marriage, “unless the legal rule which is set up to prevent this conclusion is distinct and absolute, or some impediment of nature intervenes.”3 Judge Cooley admits that the State’s control of marriage is not unlimited, but finds it difficult to determine the limitations. He says: “If the regulations apply universally and impartially, a question of constitutional law can scarcely arise upon them, for every independent State must be at liberty to regulate the domestic institutions of its people as shall seem most for the general welfare. A regulation, however, that should apply to one class exclusively, and which should not be based upon any distinction between that class and others which could be important to the relation, must be wholly unwarranted and illegal. This principle is conceded, but it is not easy to determine what regulation would come within it.”4

§ 181.

Constitutional limitations upon the police control of marriages.—

It has been often asserted and explained in the preceding pages that the police power can only extend to the imposition of such restraints and burdens upon natural right as are calculated to promote the general welfare by preventing injury to others, individually or as a community. If this be the true limitation of police power generally, and the governmental regulation of marriage be conceded to be an exercise of police power, the constitutionality of a police regulation of marriage may be tested by determining, whether the regulation is designed, to, and does, prevent a threatening injury to society or to others. If there is no threatening injury and, so far as the judicial eye can discern, the regulation is arbitrary and unnecessary, the court would pronounce against the constitutionality of the regulation. Marriage being a natural right, one is deprived of his liberty and the pursuit of happiness, if such a regulation is permitted to prevent his marriage. If it is only doubtful that the marriage would prove injurious to others or to society, it would, of course, be proper, in conformity with a general rule of constitutional construction, to solve the doubt in favor of the validity of the regulation. But in a clear case of arbitrary regulation,—i. e., where there is no threatening evil outcome of the marriage which the regulation is designed to prevent, it is clearly the duty of the court to declare the regulating law unconstitutional.

For the purpose of testing their constitutionality, regulations of marriage may be divided into those which are designed to prevent injury to society and to third persons, and those which are intended to afford protection to the parties to the contract of marriage. In order that a regulation may be constitutional, it must fall into one of these classes.

They may also be divided into the following classes: (1) Those which relate to the capacity of parties to enter into a perfect marriage state; (2) those which require certain forms of ceremony; and (3) those which are intended to provide for proper harmony and conduct of the parties to each other in the marriage state, in respect to their actions generally, and also in respect to the control of their property. The constitutionality of police regulations of marriage will be discussed in this order.

§ 182.

Distinction between natural capacity and legal capacity.—

While marriage, when consummated, constitutes a status, as a result of the execution of the contract to marry, a valid contract must precede a valid marriage; and the validity of the contract of marriage is determined by the same principles which govern ordinary contracts. Among those elementary principles are the requirement of two persons competent to contract, the agreement, and a consideration, which in the case of the contract of marriage constitutes each other’s promise respectively.

The law cannot compel an individual to marry against his will, for it is not a duty to the State to marry. His consent or agreement is necessary to the validity of the contract. When, therefore, the consent is not present, whether it arises from mental inability to give the consent, or from duress or fraud, the contract of marriage, and hence the marriage itself, must be declared void. Hence the marriages of the insane, except during a lucid interval, or of a child of such tender age and immature mind that he cannot be supposed to understand the nature of the contract, and therefore cannot be held to have given his consent, are void or voidable, from the very nature of the case. The rules of law, which provide for the avoidance of such marriages, only lend the aid of the courts to the more effective enforcement of the laws of nature, and do not involve the exercise of police power, since there are no restrictions imposed upon the right of marriage but those which nature herself commands. Police power is exerted only when an artificial incapacity is created.

§ 183.

Insanity as a legal incapacity.—

If the parties to the contract of marriage are of sane mind when the contract of marriage is made and performed, the subsequent or previous insanity does not affect the validity of the marriage status. Having entered into the status through a valid contract, the capacity to contract ceases to be of value, since the contract is merged by its performance into a status. But if the blood of either of the parties is tainted with insanity, there is imminent danger of its transmission to the offspring, and through the procreation of imbecile children the welfare of the State is more or less threatened. It may not be the policy of the State to impose restrictions upon the marriage of those who suffer from mental unsoundness of a constitutional character, or the danger to the State may not be sufficiently threatening; but if the proper legislative authority should determine upon the establishment of such restrictions, even though they amounted to absolute prohibition, there can be no question as to their constitutionality. The danger to the State, arising from the imbecility of the offspring, has always been considered an all-sufficient justification of the State interference and regulation of marriage.

§ 184.

The disability of infancy in respect to marriage.—

In the general law of contracts, all minors are declared incapable of making a valid contract, and the law determines the age when they attain their majority and are freed from this disability. In most of the States the age of twenty-one is selected for both sexes, while in some of the States females become of age at eighteen. It matters not what may be the age determined upon, the imposition of the disability is an exercise of police power, and is justified on the ground, that on account of his immaturity the minor is not on equal terms with the adult, and for his own protection he is rendered unable to subject himself to possible extortion or imposition. If it were the policy of the law to impose the same liability upon the right of marriage, the further, and perhaps more important, reason may be urged that persons of such youthful age are unable to provide properly for the wants of a family, and as a protection to the State against pauperism the youth may be prohibited from marriage altogether until he arrives at the age of twenty-one, and his marriage declared absolutely void. But for various cogent reasons, especially the danger of increasing immorality and the delicacy of the situation of both parties, arising from the avoidance of the marriage of persons under age, infancy is no disqualification1 to the entrance into a completely valid marriage. If the minor is of the requisite physical capacity, the marriage will be valid, notwithstanding infancy; while the contract to marry, like all other executory contracts, is voidable by the infant, although binding upon the adult with whom he may have contracted.2 But, arising out of the parental control, authorized by the law, a minor may be prevented by his parents from marrying, if he does not elude them. The law requires the consent of the parents to the marriage, only as a preliminary justification of the marriage; but the want of the consent does not invalidate the marriage if it is actually consummated. The present policy of the law is opposed to such stringency, but it would be a lawful exercise of police power to make the consent of the parents necessary to the validity of the marriage.

While infancy in itself does not furnish any ground for invalidating a marriage, the physical incapacity arising from a tender age constitutes a natural incapacity, like general impotence, to perform one of the obligations of the marital relation, and more or less affects the validity of the marriage. The physical incapacity of a child renders the marriage inchoate, and it is completely valid only when there is cohabitation after his arrival at the age of puberty. The incapacity is natural; but in order to avoid the necessity of an actual investigation, in each particular case, into the physical capacity of the infant bride or bridegroom, the law provides that males under fourteen, and females under twelve, shall be held to be physically incapable of performing the marital functions. This regulation was derived from the civil Roman law; and, in the warm southern climate, the law no doubt represented correctly the physiological fact that at these ages the average child attained the full powers of a man or woman. But in the more northern latitudes the growth is slower, and children are usually immature at these ages; and changes have constantly been made in the law, in order that it may more readily conform to the actual age of puberty. Such a change has been made in North Carolina and Iowa, and perhaps in other States.1 But the appointment of an age, when the physical capacity will be presumed, is a police regulation, and is plainly justifiable on the ground that it promotes the general welfare, to avoid the delicate examinations that would otherwise be necessary to establish the fact of capacity; and the law cannot be called into question if it should vary from the physiological facts.

The common law also provides that the marriage of persons, either of whom is under the age of seven, is a mere nullity.2 Probably the prohibition rests in this case upon the ground of absolute mental and physical incapacity.

In all of these cases of police regulation of marriage between or by minors, the immaturity of mind or body constitutes the justification for the interference with the natural right, and their constitutionality admits of no question.

§ 185.

Consanguinity and affinity.—

In all systems of jurisprudence, beginning with the laws of Moses, marriages between persons of the nearer degrees of relationship by consanguinity have been prohibited; and in some of these cases, notably that of parent and child, the act of marriage has been declared a crime and punishable as such. The legal justification of this prohibition lies in the birth of imbecile and frail offspring, which is the constant if not invariable fruit of such marriages. The injury to be avoided by the prohibition consists not only of that which threatens the State in the increase of pauperism through the birth of persons likely to become paupers, but also the injury to the offspring. One might, if allowed a certain latitude of speech, be said to have a natural right to come into this world with normal faculties of mind and body; and the prevention of the birth of issue is justifiable, when the parties cannot transmit, at least to a reasonable degree, a mens sana in corpore sano. It can never be questioned that the marriage of very near relations has this disastrous effect, although it may be a proper subject for debate at what degree of relationship marriage would be safe. Still, granting the danger of such marriages, the determination of the degrees of relationship, within which marriage is to be prohibited, must be left to the legislative discretion; and although it is strictly a judicial question, whether consanguinity is likely to make a particular marriage disastrous or dangerous, it must be a flagrant case of arbitrary exercise of legislative power, in order to justify judicial interference. It is a general rule of constitutional construction that all doubts as to the constitutionality of a legislative act must be solved in favor of the legislature.1

In England, the relationship by affinity, i. e., by marriage, has been held to be a ground for prohibiting marriage with the relations of the deceased wife or husband, within the same degrees in which consanguinity constitutes a bar to a valid marriage.2 The reason for this prohibition is set forth in the leading case of Butler v. Gastrill,3 in this language: “It was necessary in order to perfect the union of marriage, that the husband should take the wife’s relations in the same degree, to be the same as his own, without distinction and vice versa; for if they are to be the same person, as was intended by the law of God, they can have no difference in relations, and by consequence the prohibition touching affinity must be carried as far as the prohibition touching consanguinity; for what was found convenient to extinguish jealousies amongst near relations, and to govern families and educate children amongst people of the same consanguinity, would likewise have the same operation amongst those of the same affinity. And when we consider who are prohibited to marry by the Levitical law, we must not only consider the mere words of the law itself, but what, by a just and fair interpretation, may be deduced from it.” If the tests, heretofore given for determining the constitutionality of laws for the regulation of marriage be reliable, no such reasoning as this would justify the prohibition in this country. It would have to be demonstrated that marriages between persons nearly related by affinity produce imbecile or weak offspring, or will otherwise antagonize the public interests, in order that their prohibition may be constitutionally unobjectionable. But there will be very little occasion for testing the constitutionality of this law in this country. Affinity was, and probably still is, in Virginia, a ground for invalidating marriages, to the same extent as consanguinity,1 but marriages with the deceased wife’s sister, as Mr. Bishop expresses it, “in most of the States, are not only not forbidden, but deemed commendable. It would be difficult to find a person who would object to such a union, or pretend that the laws permitting it had wrought injury.”2

§ 186.

Constitutional diseases.—

If the possibility or probability of the procreation of imbecile offspring be a justification of the laws, which prohibit the marriage of near relations and of those afflicted with constitutional insanity; so, likewise, the danger of transmission to the offspring will justify the enforcement of laws which prohibit the marriage of those who are suffering from constitutional diseases, which may be transmitted to the fruit of the marriage, or which so deplete the constitutions of the parents that the birth of healthy, vigorous children becomes impossible. Such would be leprosy, syphilis, and tuberculosis. The same reasoning, which has been presented to support the impediments of insanity and consanguinity, applies to the proposed impediment of constitutional diseases, and a repetition of it is unnecessary. This power has not been exercised in this country to the writer’s knowledge.

§ 187.

Financial condition—Poverty.—

Not only is the welfare of society threatened by the transmission of a shattered mental or physical constitution to the children, but also by bringing them into the world, when the parents are not possessed of the means sufficient to provide for them. The only difficulty in the enforcement of such a law, as in the cases of constitutional insanity and disease, lies in determining in what cases the danger is threatening enough to justify the interference of the law; and in the case of poverty, there is the further difficulty of proving the condition of pauperism, which would operate as a bar to marriage. It would probably be impossible to enforce the rule against any but public paupers, those who are dependent upon the public alms, and can, therefore, be easily identified. Such a regulation at one time prevailed in Maine, and it was held, when the constitutionality of the law was called into question, that the State may by statute prohibit the marriage of paupers.1

§ 188.

Differences in race—Miscegenation.—

When the negro race in this country was for the most part held in slavery, the degradation of a state of servitude operated to create a most powerful prejudice against the black man, although he was a free man. As an outcome of this prejudice, and a popular sense of superiority, the legislatures of very many of the States of this country, particularly in the South, passed laws for the prohibition of marriages between whites and blacks. These laws for the most part still remain upon the statute book, notwithstanding the full and complete recognition of the rights of citizenship of the black man. In some of the States, marriages between the Indian and white race are also prohibited. Although, occasionally, an attempt is made to show some physiological reason for the prohibition, it cannot be denied that the real cause is an uncontrollable prejudice against the black man, and a desire to maintain the inequality of his present social condition. Whatever other reason may be proclaimed, this is the controlling reason. If this be true, if the law has no better foundation than racial prejudice, is the State justified, under the general constitutional limitations, in prohibiting the marriage of a white man and a black woman, or vice versa, when the prejudice is not felt by them? Is it not an unwarrantable act of tyranny to prohibit such a marriage, simply because the community is prejudiced against it? Some attempt has been made to show that the mixture of blood will cause a general decay of the national strength, either through enfeebled constitutions or sterility; but it does not appear that the truth of the proposition has ever been established. At any rate, in no other country, except where slavery has lately prevailed, has such a law ever been enacted. Unless it can be established beyond a reasonable doubt that the intermarriage of white and black may be expected to produce frail and sterile offspring, or threaten the general welfare in some other well defined way, the duty of the courts is to pronounce these laws unconstitutional, because they deprive the parties, so disposed to marry, of their right of liberty without due process of law. But the prejudice of race has been too strong even in the judicial minds of the country to secure for these laws a scientific consideration, and hence they have been repeatedly held to be constitutional.1

§ 189.

Polygamy prohibited—Marriage confined to monogamy.—

While voicing the universal moral sentiment of a higher civilization, the laws against polygamy likewise furnish to society a protection against the evils arising from the degradation of its females and the procreation of more children than one man is able to support. In monogamy, it is often difficult for the husband and father to provide the proper means of support for the offspring of his only wife; and in polygamy the difficulty would be greatly increased, if the system did not make plodding slaves of the women. There can be no question that the system of polygamy brings about a moral degradation of the women, treating them as mere animals, designed simply to gratify the animal passions of the man who owns them. The wife of a many-wived husband cannot feel for him the noble and ennobling sentiment of love in its higher phase, for the relation she bears to him is anything but ennobling. Then, again, it is estimated, with a reasonable show of accuracy, that the population of the world is nearly equally divided between the two sexes, the adult female predominating to a small extent. If polygamy were legalized, the logical consequence would be that a proportion of men, the number increasing in proportion to the average number of wives to each married man, would be prevented from entering into the marriage state; because through competition a wife had become a luxury, if one could be procured at all, and such men would seek the gratification of their sexual desires in illicit concubinage. Polyandry is and must be the invariable complement of polygyny.

But, at this late day, it is not necessary to point out the evils of polygamy, for the accumulated experience of the oriental world confirms the injurious character of the system which the moral consciousness of the occidental world had discovered, as if by inspiration. So generally and naturally is the evil character of polygamy recognized, that the leading American authority on the law of marriage, without any qualification or preliminary explanation, defines marriage to be “the civil status of one man and one woman united in law for life, for the discharge, to each other and the community, of the duties legally incumbent on those whose association is founded on the distinction of sex.1 There can be no doubt as to the constitutionality of laws against polygamy, under the general constitutional provisions; but of late the right of government to prohibit and punish polygamy in cases, where its practice is commanded, or at least sanctioned by one’s religion, is questioned on the ground that it is a violation of religious liberty, and hence contravenes the constitutional provision, relating to religious liberty. The question has been raised under the United States statutes, which relate to the practice of polygamy among the Mormons of Utah. It has been held by the Supreme Court of the United States that the constitutional guaranty of religious liberty does not extend its protection to the crimes committed under the sanction of religion.2

§ 190.

Marriage indissoluble—Divorce.—

Free from legal limitations, in other words, in the absence of police regulations, the status of marriage would not be of any fixed or definite duration. On the contrary, its continued existence would depend upon the mutual good will of the parties; and it could be dissolved at any time that either of them declines to continue the relation, or its duration could be determined by the agreement of the parties: it would require no great degree of imagination, under such a state of affairs, to classify marriages, in reference to their duration, into those for life, for an uncertain period which may last during life, for years, from year to year, or at will. And this was practically the condition of the law of marriage at one time in the Roman empire.1

But the best interests of society, as well as those of the offspring, require that the relation should be permanent; and the teachings of morality and religion made this economic necessity a divine command and procured legislative interference, sweeping away all doubts as to the right of the State to interfere. Indeed, morals, religion, political economy and law were so intimately blended together at the time when marriages were first regulated by the State (the beginning antedates the historic age), that probably the reader of the present volume will be astonished to find reasons presented and urged as a justification of this State interference. But it is clear that but for the evil to society or to the offspring, society could not exact of a married couple the duty to maintain the relation any longer than they chose to do so. The moral or religious element cannot in itself furnish a foundation for legislation, although I am sure that the religious teachings on the subject were themselves prompted by a consideration of the evils flowing from marriages, loosely contracted and easily dissolved. So many, and such great evils were supposed to flow from them, that in past time we find churchmen, moralists, and jurists, alike demanding that marriages be declared absolutely indissoluble, except for causes arising before marriage, which invalidated the marriage itself. But since it was not in the power of the State to compel ill-suited couples to live in harmony, or bring them together, if they had separated, they sanctioned the separation and legalized it; while the bond of marriage, still held them together, and prevented their remarriage to others. Such was the English and American common law. The State of South Carolina makes it a subject of loud boasts that she clings to these views of social and moral necessity, even in these degenerate days of easy divorces. “The policy of this State has ever been against divorces. It is one of her boasts that no divorce has ever been granted in South Carolina.”1 But this State stands alone in its adherence to the old law of divorces; while all of her sister States permit divorces for one or more causes, arising subsequent to the marriage, which, under the common law, justified only a divorce a mensa et thoro; a separation, which deprived the parties of all their marital rights, but kept them bound together, unable to contract a new marriage. The weakness of human nature being considered, but one moral result might be expected from a denial of the right of divorce, in cases where the parties are unable to live together in peace, viz.: illicit connections increase in number to an alarming extent. In speaking of the position taken by South Carolina, Mr. Bishop says:2 “So it has become necessary to regulate, by statute, how large a proportion a married man may give of his property to his concubine,3 —superfluous legislation, which would never have been thought of, had not concubinage been common. Statutes like this are unknown, because not required in States where divorces are freely granted.”4

On the other hand, it might well be said that the facility with which divorces can be obtained is calculated to make the parties more uneasy under the friction that is present in different quantities in almost all marriages, and less disposed to sacrifice self-will on the altar of their common good; while the remarriage of divorced parents to others must certainly have a demoralizing influence over the offspring. It has also been asserted that loose divorce laws tend to diminish the growth of population by making it more difficult to provide for the rearing of the children of the divorced and remarried parents. Perhaps laws which grant divorces to a limited extent, for breaches of the marital duties, and yet keep distinctly in view the stability of the marital relation, are best calculated to avoid both the Scylla and Charybdis of this vexed and much discussed problem of society. “It is the policy of the law, and necessary to the purity and usefulness of the institution of marriage, that those who enter into it should regard it as a relation permanent as their own lives; its duration not depending upon the whim or caprice of either, and only to be dissolved when the improper conduct of one of the parties (the other discharging the duties with fidelity as far as practicable under the circumstances) shall render the connection wholly intolerable, or inconsistent with the happiness or safety of the other.”1 Whatever view may be entertained as to the wisdom of denying or granting divorces, and there are all shades of opinion on this subject, the right of the State to regulate the matter has never been seriously questioned. Whether divorces shall be granted or not, is a matter that addresses itself to the discretion of the legislature.

Even the dissolution of a marriage by a special act of the legislature is not unconstitutional in those States in which there is no constitutional prohibition of special or class legislation. It has been held by the Supreme Court of the United States that such a statutory dissolution of the marriage does not impair the obligation of a contract in the constitutional sense.1 The facts of this case are exceedingly interesting, because it would seem that they place the United States Supreme Court, in the light of the decision, and of the language employed by the court, in opposition to the principle of the text, that there must be some justifiable reason for decreeing a dissolution of a marriage, in order to make a divorce a lawful interference with a status and the rights growing out of it, which have been made fixed and durable during a lifetime. The territorial legislature of Oregon, by a special act, dissolved the marriage of a resident of the territory with a non-resident wife; the court holding that the statutory dissolution of the marriage was a valid act of the legislature, even if there was no cause for the divorce, and the wife was not notified of the pending legislation. The act of Congress relating to the acquisition of public lands, required four years’ residence on and cultivation of the land, as a condition precedent to the acquisition of full title to the land; and if the resident was a married man, at the expiration of this required period of residence and cultivation, the title should be vested in the husband and wife in equal parts. It seems that the wife in this case did not share the husband’s trials and privations as a pioneer; and it would not be in opposition to the principles of the text, if this legislative divorce had been upheld on the ground that desertion of the wife had justified the dissolution of the marriage. The suit was brought by the son as heir of the deceased mother, for the recovery of her share of the land under the statute; and this divorce, which had been decreed by special act of the legislature, prior to the termination of the four years’ residence, and to the vesting of the title to the land, was set up as a defense.

Somewhat along the same line of thought, have the New York courts held it to be constitutional to empower a court to increase the allowance of alimony after rendering its final judgment of divorce, even though the judgment had been given and entered up before the enactment of the statute, which gave this authority to the court.1

Where there is a constitutional prohibition of special or class legislation, the laws which bear upon the same subject-matter are required to be general and uniform in character, and to apply to all persons who may fairly be included in the class to which the laws relate. This general rule finds application to divorce laws in a case from New Jersey. The legislature had provided by an amendatory statute for a limited divorce for certain causes, whenever the petitioner for divorce had conscientious scruples against an absolute divorce; but the provision did not apply in any other case. The statute also provided for the effect of the limited divorce upon the rights of property of the husband and wife. This statute was declared to come within the definition of class legislation, and was for that reason unconstitutional and void.2

§ 191.

Regulation of the marriage ceremony.—

It requires no painstaking elucidation of the grounds upon which to justify State regulation of the ceremony, by which is established an institution, in which the welfare of the State is so vitally concerned, as marriage. It is certainly not unreasonable for the State to provide a fixed, certain mode of entering into marriage, provided the ceremony, thus selected, is of such a character, that no one would be prevented from entering into the status, on account of religious scruples, or an inability to comply, which did not arise from his legal incapacity for marriage. According to the old English law, the marriage was held to be invalid, unless the ceremony was performed by a clergyman of the Church of England.1 So, also, in the Papal States, before their annexation to the kingdom of Italy in 1870, no marriage was valid unless it was solemnized by one in holy orders in the Catholic Church. A religious ceremony has been required in other countries. It is manifest that, while the State may prescribe that a religious ceremony, possessing certain features, shall constitute a valid solemnization of the marriage, it would be a violation of the religious liberty, guaranteed to all by the American constitutions, if the State compelled one, against his will, to submit to a religious ceremony of marriage, or else be denied the privilege of entering into the marriage state. The ceremony prescribed by the State, and made obligatory upon all, must be of such a character that all can conscientiously, comply. A regulation, like the German law of marriage, which makes a ceremony before a civil magistrate necessary to the validity of a marriage, would not violate any constitutional right, not even of those who view marriage in the light of a religious sacrament, for the religious ceremony is not forbidden.

The policy of our country, in the main, has been to leave the law of marriage, in respect to the formality of its solemnization, as it was in all Christendom, before the Council of Trent, which declared it to be a sacrament and enjoined a religious ceremony, viz.: that no particular ceremony is required, simply a valid contract in verba de præsenti, by which the parties assume to each other the relation and duties of husband and wife. And where statutes provide for the issue of a marriage license, they do not make the license necessary to the validity of the marriage, the only effect of the statute being that the minister or magistrate who performs the ceremony is subject to a fine, if he officiates in a case in which no license has been granted.1 But the present state of the law furnishes no argument against the constitutionality of a statute which requires some formal ceremony, subject to the exceptions and limitations already mentioned.

§ 192.

Wife in legal subjection to the husband—Its justification.—

As a matter of abstract or natural justice, the husband and wife must stand on a plane of equality; neither has the right of control, and both can claim the enjoyment of the same general rights. There are many conscientious people who think differently; but apart from the influence or teachings of the Bible on this subject, with every such person the thought is but the resultant of his desires and prejudices. Considering the married couple in a state of isolation, eliminating every influence they may exert upon other individuals, their offspring for example, or upon the general welfare of the State, the conclusion is irresistible, that any subjection by law of the wife to the commands of the husband would be a deprivation of the wife’s liberty without due process of law, and, therefore, void under our constitutional limitations. And such would likewise be the conclusion, considering the couple in their relation to society, and to their offspring, if the ideal marriage became the rule, and absolute harmony and compatibility of temper prevailed in every household. This is, however, at least for the present, an unattainable ideal. There are many individual couples, who have attained this ideal of the domestic relation, where each is “solicitous of the rights of the other,” and where “committing a trespass” is “the thing feared, and not being trespassed against,” and self-sacrifice, not encroachment, the ruling principle.1 With such couples there is no subjection of the wife to her husband, and there is never any inequality of position, where the true, genuine sentiment of love inspires every act; for the subjection of one to the other is incompatible with the reign of love.

But this is not always the case. Indeed, such a relation between husband and wife constitutes the exception, rather than the rule. In the words of Herbert Spencer,2 “to the same extent that the triumph of might over right is seen in a nation’s political institutions, it is seen in its domestic ones. Despotism in the State is necessarily associated with despotism in the family.” The remnant of the savage within us still nurses the desire to rule, and the instinct of selfishness, when unchastened by the principles of altruism, is displayed in the dealings of husband and wife, as of man with man. Might is right, between whatever parties the question may arise. Left, therefore, in a state of nature, it will be a rare exception that the parties to a marriage will sustain an equality of rights; as a general rule, one of them will be the ruler while the other will be the subject, sometimes submissive, but usually more or less rebellious. In most cases, in which this state of affairs exists at all, the contention and discord continue during life, unless before death a beneficent divorce law enables the parties to take leave of each other and go their way alone. Discord in the family destroys all the benefits that might be expected to accrue to the community, even if it does not amount to a positive breach of the peace. It demoralizes the offspring as well as the parties themselves; and if by a regulation of their conduct towards each other the State could secure a reasonable degree of harmony, the result would justify the interference as tending to promote the general welfare.

How shall this intercourse be regulated? Shall the State require the maintenance of substantial equality between two people whom nature has endowed unequally, both mentally and physically? I do not mean in this connection to assert and defend the position, often taken, that women are essentially and radically inferior to men. I merely desire to make the statement, that as a general proposition the man rules, it may be by greater intellectual strength, or it may be by brute force or financial inequality, probably in most cases by the latter. It sometimes happens, but it is the exception, that the woman is the stronger, and she then rules, whatever the law might have to say upon the subject. The maintenance of a fictitious equality, one that is not the legitimate product of the social forces, by the mandate of the law,—even if that were possible, and it is not,—would not tend to increase harmony in the domestic relations. Left to themselves the stronger will rule, and the stronger will rule notwithstanding the law proclaims an equality. Harmony can only be approximated by legalizing the rule of the stronger, at the same time placing around it such safeguards as will secure for the weaker protection against the tyranny and cruelty of the stronger. The wife is not subjected by the law to the control of the husband, because the husband has a right to rule, but because he is generally the stronger, and will have the mastery even though the law might give the control to the weaker. If women were usually the stronger sex, the husband would be in subjection to them, as they are now, when the husband finds more than his match in his wife. In the management of the things and interests which they hold in common, the husband rules by nature as by law.

Legalizing his natural control, the ancient law in many countries held him responsible to others for all the acts of trespass which the wife may commit. Even to this day, in most of the States, a husband is responsible to third persons for all wrongs against them committed by his wife; while he is to a certain extent responsible to the State for all the crimes committed by his wife in his presence. Whichever of these facts, the husband’s control or his responsibility for his wife’s acts, be considered the primal fact, the other must be the legitimate and necessary consequence. In proportion that his power of control is diminished, must his responsibility for her acts be lessened, until the happy era is reached, when there will be neither control nor responsibility. But what degree of control and responsibility is to be permitted is left to the legislative discretion.

§ 193.

Husband’s control of wife’s property.—

Starting out with the proposition, that in the eye of the law husband and wife are looked upon as one person, a duality of which the husband is the head and legal representative, the legal personality being merged in that of her husband, the necessary logical consequence is that he acquires, either absolutely or during coverture, all the rights of property which she possessed, for rights can only be predicated of a legal personality. For this reason, therefore, in the days when the study of law was an exercise in the rigid rules of logic, instead of an earnest effort to discover the means by which substantial justice may be meted out, the wife’s property passed upon marriage, with herself, under the control of the husband. There were other reasons, which might have appeared important in the primeval days of the common law, and justified in the minds of the framers of the law this legal absorption by the husband of the wife’s property, as well as herself. Under the early law as now, the husband was obliged to support the wife, and it was thought but fair that he should have the management and control of all the property that she might have, in consideration of this obligation to support.1

But probably the best reason for this rule may be found in the fact, that when the feudal system prevailed, there were no obligations of citizenship, except such as arose out of the relation of lord and vassal in respect to the land which the latter may hold under the lord, and for which the vassal had to render services of various kinds, usually of such a nature that only a man could perform them.1 When, therefore, lands were acquired by a woman, by descent or otherwise, who subsequently married, her husband had to perform the services due to the lord, and it was but just that he should have the credit of it. The same reasons did not apply to personal property, but in this rude age personal property was inconsiderable; and consisted chiefly of such that a married couple would use in common, household goods and domestic animals, which after a long use in common with like property of the husband, would well-nigh pass beyond the possibility of identification; and, because of this difficulty, the law gave to the legal representative of the duality all such property that was not capable of easy identification, as constituting part of the wife’s paraphernalia.

These reasons are not presented as the justification of such a law at the present day. So grossly unjust has it been felt to be for years and centuries, that with the aid of equity’s corrective influence over the common law, whereby the hard logic of the common law may be respected and yet substantial justice be within the reach of all, it has been possible for any one about to convey property, whether real or personal, to a woman, or for the young woman herself, before marriage, to so settle her property, that it shall remain her separate property, free from the control of her husband, notwithstanding the rules of the common law. And it is probably on account of the means, furnished by equity jurisprudence, of escape from the hardships of the common law in this respect, that the statutory changes, now so common, were not made ages ago. Indeed, it is the firm conviction of many jurists that statutes, which give to married women the same absolute and exclusive control over their property, which they had when single, do not confer upon woman an unmixed good. For while she is thus given the unlimited power of control over her property, she may ruin herself financially, by giving heed to the persuasions of her husband, against which she cannot usually hold out, more readily than she could when, under the rules of equity, her separate property is settled upon her, with limitations upon her power of control, imposed for her own protection. But there can be no doubt that the common law in respect to the property rights of married women, in the present age, cannot be justified by any rule or reason known to constitutional law, however just it may have been under the feudal system. But it is to be supposed that in consequence of the proverbial conservatism of the law, and the remarkable longevity of common-law principles, the wrong can only be remedied by statutory changes.1

§ 194.

Legal disabilities of married women.—

It is also a consequence of the legal theory, that the personality of the wife is lost in that of the husband, that married women are placed under various legal disabilities, the most important of which is that they cannot make a valid contract. If they could not hold property in their individual capacity, it would hardly be consistent to give them the power to make contracts in their own names. As agents of their husbands, they could make any contracts that came within the scope of their expressed or implied authority; but they were not allowed to make contracts, the performance of which they could not guarantee, since their property was not subject to their control. When equity provided a way, in which a married woman could hold separate property, she was permitted in equity to make contracts in respect to such property, and the creditors could enforce such claims against the separate estate by instituting the proper action in a court of equity. This was but just, for the disability to contract was but a consequence of the common-law rule, which gave to the husband the complete control of her property. When, therefore, by statutory changes her property rights are secured to the married woman, free from the control of her husband, there can be no reason or justice in retaining the common-law disability to make a contract, except as a protection to herself against the evil designs of her husband. It is no doubt permissible for the law to provide this protection by making void all her contracts and gifts of property to her husband; but the disability must be kept within these limits, in order to be consonant with common justice.

[1]1 Mar. & Div., § 1.

[1]1 Bishop Mar. & Div., § 13; Cooley’s Principles of Const. Law, p. 228.

[2]1 Bishop Mar. & Div., § 12. See, also, Pennoyer v. Nuff, 95 U. S. 714.

[3]1 Bishop Mar. & Div., § 13.

[4]Cooley’s Principles of Const. Law, 228.

[1]1 Bishop Mar. & Div., § 144; Gavin v. Burton, 8 Ind. 69.

[2]1 Bishop Mar. & Div., § 143; Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 17 Cow. 22; Hamilton v. Lomax, 26 Barb. 615; Cannon v. Alsbury, 1 A. K. Mar. 76; Kester v. Stark, 19 Ill. 328; Warwick v. Cooper, 5 Sneed, 659; Schouler Dom. Rel. 32.

[1]1 Bishop Mar. & Div., § 142.

[2]1 Bishop Mar. & Div., § 147

[1]Cooley Const. Lim. 218.

[2]1 Bishop Mar. & Div., §§ 314, 315, 316.

[3]Gilb., ch. 156, 158.

[1]Com. v. Perryman, 2 Leigh, 717; Hutchins v. Com., 2 Va. Cas. 331; Com. v. Leftwich, 5 Rand. 657; Kelly v. Scott, 5 Gratt. 479.

[2]1 Bishop Mar. & Div., § 319.

[1]Brunswick v. Litchfield, 2 Me. 28.

[1]See Bailey v. Fiske, 34 Me. 77; Medway v. Natick, 7 Mass. 88; Medway v. Needham, 16 Mass. 157. In Massachusetts the statute was repealed in 1843. State v. Hooper, 5 Ire. 201; State v. Ross, 76 N. C. 242; State v. Kennedy, 67 N. C. 25. “It is stated as a well authenticated fact that the issue of a black man and a white woman, and that of a white man and black woman intermarrying, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.” State v. Jackson, 80 Mo. 175. It has been held that the fourteenth amendment of the constitution of the United States does not apply to such laws, since the prohibition is upon white and black alike. State v. Hariston, 63 N. C. 451; State v. Reinhardt, 63 N. C. 547; State v. Kenny, 76 N. C. 251 (22 Am. Rep. 683); State v. Gibson, 36 Ind. 389 (10 Am. Rep. 42); Lonas v. State, 3 Heisk. (Tenn.) 287; Ex rel. Hobbs, 1 Woods, 537; Green v. State, 58 Ala. 190 (29 Am. Rep. 739); Hoover v. The State, 59 Ala. 59; Frasher v. State, 3 Tex. App. 263 (30 Am. Rep. 131); Kinney’s Case, 30 Gratt. 858. Judge Cooley says: “Many States prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against the other; it merely forbids marriages between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede or prevent it. Race prejudice no doubt has had something to do with establishing it, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.” Cooley Principles of Const. Law, 228, 229.

[1]1 Bishop Mar. & Div., § 3.

[2]See Reynolds v. United States, 98 U. S. 145.

[1]See Saudar’s Justinian, p. 102, to the effect that marriage under Roman law was dissoluble by mutual consent, otherwise at the instance of one party only for certain violations of the marriage vow.

[1]Ch. Dargan in Hair v. Hair, 10 Rich. Eq. 163, 174.

[2]1 Bishop Mar. & Div., § 38.

[3]See Denton v. English, 3 Brev. 147; Canady v. George, 6 Rich. Eq. 103; Cusack v. White, 2 Mill, 279.

[4]“In this county,” says Judge Nott, “where divorces are not allowed for any cause whatever, we sometimes see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and virtuous wives still. Yet they are considered as living in adultery, because a rigorous and unyielding law, from motives of policy alone, has ordained it so.” Cusack v. White, 2 Mill, 279, 292.

[1]Simpson, J., in Griffin v. Griffin, 8 B. Mon. 120.

[1]Maynard v. Hill, 125 U. S. 190.

[1]Walker v. Walker, 47 N. Y. S. 513; 21 App. Div. 219.

[2]Middleton v. Middleton (N. J.), 35 A. 1065.

[1]See Reg. v. Millis, 10 Cl. & F. 534. The decision in this case was by a divided court, and the conclusion has been warmly opposed, although acquiesced in, in England. See 1 Bishop Mar. & Div., §§ 270-282.

[1]See State v. Madden, 81 Mo. 421; State v. Walker, 36 Kans. 297, in which the constitutionality of a law was contested and sustained, which made it a misdemeanor for any one to solemnize a marriage where the parties have not previously obtained a license.

[1]Spencer’s Social Statics, p. 188.

[2]Social Statics, p. 179.

[1]See Addoms v. Marx, 50 N. J. L. 253, in which it was held that a statute, which made the husband liable for and on the debts and contracts of the wife, was unconstitutional so far as it was made to apply to marriages, which had been contracted before the enactment of the law. This is a singular retrogression to the policy of the old English common law.

[1]See Tiedeman on Real Property, § 20; 1 Washb. on Real Prop. 46, citing 3 Guizot Nat. Hist. Civ. 108.

[1]“Marriage is not simply a contract; but a public institution, not reserved by any constitutional provision from legislative control; and all rights in property, growing out of the marital relation, are alike subject to regulation by the legislative power.” Noel v. Ewing, 9 Ind. 37. See ante, § 135, for a full discussion of the power of the legislature to change the marital rights of husband and wife in the property of each other.