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Subject Area: Law
Topic: The American Revolution and Constitution

§ 190.: Marriage indissoluble—Divorce.— - 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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§ 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

[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.