Nathaniel Hillyer. Egleston.

The North American review (Volume 139) online

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force of this truth. A plurality of wives, when lawful (I have

80



MAERIAGE AND DIVORCE. 31

never observed that civilized man was ever sufficiently altruistic
to tolerate a plurality of husbands), may possibly conserve some
of the advantages of the family ; but that state of barbaric life
is not fairly under our discussion. We treat only of the union
of one husband with one wife, in the Hebraic-Christianized idea
of that union.

The subject of marriage is so deeply inwoven with the public
interest that the State, whatever be its form of government,
must, as a matter of self-preservation, take the institution into
its charge by provision of laws enacted for its control and pro
tection. The question at once suggests itself, whether it should
be treated as a religious or as a secular institution, or as one
combining both of those qualities. For my own part, I confess
to a leaning toward the religious side of the question. Not that
I am a religionist in any narrow sense of that term ; but because
I like the ceremony of religious solemnities in marrying and
giving in marriage, and the better provisions they usually afford
for preserving proper evidences of the transaction. This latter
reason is not of trifling significance, but of serious importance,
especially to the wife, and the children that may be born of the
marriage. But in our country, where no State religion does or
can exist, it is doubtless wiser that the State should recognize
marriage as a simple contract which may be entered into by
persons who are free from all legal, mental, and physical dis
abilities.

The State should, therefore, recognize the validity of .all mar
riages between competent persons, made in any mode or form
that indicates the making of a civil contract. It should prescribe,
by statute or by common law, the disabilities and incompetencies
that prevent the exercise of the general right to marry such
as infancy, consanguinity, mental or physical incapacity, and pre
vious marriage, but subject to them and in consonance with
public policy, accord the largest possible freedom to matrimony.
It should neither prescribe nor require any particular ceremony j
nor, on the other hand, should it interdict or disfavor any. It
should permit and recognize the validity of all forms of religious
ceremonial, and leave both the conscience and the judgment free
to select their own form, and the place and manner of its
administration. In short, it should require nothing but the one
essential element ; and that is, the consent to the matrimonial
contract of parties capable in law of making it. It is only when



32 THE NORTH AMERICAN REVIEW.

parties desire the registration of the evidence of the marriage
in some manner provided by statute, that the ceremony should
be performed by certain specified persons and officials and in
specified ways. All marriages solemnized by such persons or
officers could be authenticated and made matter of public record,
and be capable of proof by such record.

It ought also to be provided that all valid contracts of mar
riage, when reduced to writing, and subscribed to and ac
knowledged by the parties, or proved by a subscribing witness,
may be registered and made evidence like those solemnized by
the persons or officers. Restrictions ought also to be imposed
upon the marriage of infants. The common-law rule of twelve
years for females and fourteen for males is not a fit or decent
one for this country. The age should be at least fifteen and
eighteen years.

Again, in all suits between parties in the life-time of both, in
which the issue presented is the fact of the making of a contract of
marriage between them de verbis in prcesenti and without witness
thereto, such contract should not be provable without the testi
mony of one or both of such parties to the fact of making the
contract. Where either party is legally competent to testify to
the making of the contract, the necessity of inferring it from
circumstances alone is in large degree taken away. In most
litigations of that kind the alleged matrimonial contract springs
out of meretricious and illicit relations between the parties,
which the law should in every way discourage and condemn. It
is only where the rights of issue, or the claims of one party after
the death of the other, or the rights of third persons, are in con
troversy, that the present rule of inferring marriage from cir
cumstances alone should prevail. Clergymen and all official
persons should be prohibited by law from marrying persons un->
known to them, children and youth without consent of parents
or guardians, intoxicated persons, and all persons apparently unfit
or incapacitated.

"With these modifications the marriage laws would conserve
the nuptial relation, the interests of the public, and the de
mands of morality, without regard to the question whether
the solemnization of marriage ought to be deemed a sacrament,
a religious ceremony, or a simple contract, thus leaving every
person to the free exercise of his or her own conscience on
that question.



MAEEIAGE AND DIVOECE. 33

But the question of the manner of forming the relation is of
little significance when compared with that of the nature of the
relation when formed. That is not a mere copartnership of
individualities created to intensify individual advantages and
enjoyments, but a God-ordained union of bodies, hearts, minds
and souls consecrated to the perpetuation of the race by the
creation of the family, through which organized society obtains
its surest and holiest guarantees of happiness and progress.
Whether created by simple contract or the most solemn religious
ceremonies, it is an institution public as well as private in its
nature, because of its intimate relations to society and posterity.
In this light only, I insist, can the marriage relation be rightly
viewed.

But there seems to be no great good in this world without
some great antagonizing evil. Every Eden has its serpent.
Marriage is no exception, for over against it stands its antipodal
foe, Divorce. The State, society, good government, good order,
and all their attendant blessings are, from the necessities of their
nature, hostile to divorce. A few words may demonstrate this,
for divorce disintegrates and destroys the condition of things
out of which these spring and grow to their supremest beauty
and strength. If a state of society could be found in which no
present recognized ground of divorce did or could exist, the folly
and crime of inventing a ground would be monstrous. All the
conditions of perpetuity through the family, by growth, prosper
ity, and power, other things being equal, would be guaranteed to
such a state ; and the introduction of divorce would be, like the
dynamite of modern Irish warfare, a devil's ingenuity. As it
is the State society that is most deeply interested in the
existence and continuance of the family, and marriage its founder,
so it is society that is most deeply wounded when divorce dis
rupts and terminates those conditions of life j because it invades
the home, denies its sanctities, lays open its privacy, dishonors
its parentage, shames its childhood, and arrests the only pure
revenues of human life.

Therefore, in considering the subject of divorce, the interests
of society are first and paramount ; those of individuals are sub
ordinate and secondary. In entering upon the marriage relation,
the parties contract with society to respect and perform all the
functions and duties of that relation for the welfare of society:
to set up the family, to create a lineage and rear it to good citi-

VOL. cxxxix. NO. 332. 3



34 THE NORTH AMERICAN REVIEW.

zenship for service in war, and in peace, in order to maintain
the State. This contract they have no power or right to annul
without the consent of the State.

Herein lies the fallacy of the notions of some of the modern
advocates of free-and-easy divorce. They ignore the supreme
conditions and purposes of marriage, and elevate the individuality
of the parties above the supremacy of society and the State.
They treat marriage as a simple contract, affecting them only
who make it, and who, they say, can therefore unmake it at
pleasure. They wholly discard the idea of the life-unity of one
man and one woman in a relation sacredly consecrated to any
high, or holy, or other purposes than those of caprice or passion.
They ignore the family and exaggerate the individual, and
wholly discard the claims of the State. This is no new idea.
It has always been a central idea of barbarism. It has prevailed
through the most licentious eras of all peoples. It is the culmi
nating thought of the harem. It has been the curse and deg
radation of woman, making her the slave and man the master, a
creature for the shambles, bought and sold at the price of lust
higher in her bloom, lower in her decay, than " the dumb driven
cattle."

But you will say : " Do you argue, then, for no divorce ? "
Better, infinitely better, that than the result to which we are
madly hastening in this country. But no : I do not take that
stern and stronger ground. I know that the weakness and
wickedness of human nature are such that some system of
divorce must be tolerated by society to protect injured innocence ;
but it should greatly differ from those systems that now prevail.
Our present systems are barbarous and degrading. They have
led to a large increase of divorces in proportion to marriages.
In some States the ratio has advanced from, say, one in thirty-
five to one in ten ; in some to one in six, and in some cities the
proportion is even greater.

It is safe to say, says one writer, that divorces have doubled
in proportion to marriages in most of the Northern States, and
present figures indicate a greater increase. There are remark
able contrasts between the States, attributable to the difference
of statutes and modes of procedure ; the percentages of increase
being largest in States furnishing the readiest facilities as to
grounds of divorce, and the ease and cheapness of obtaining
decrees.



MAEEIAGE AND DIVORCE. 35

One great evil of this state of things is that the public mind
is becoming habituated to look upon divorces without shock, and
without a thought of their injury to public morals. The press
teems with scandalous reports of such suits, often giving prurient
and disgusting details, which the youth of neither sex can safely
read; and thus our conception of the marital relation and its
duties is becoming alarmingly debased. It is even doubtful
if marriage is not often entered upon now with much prelim
inary consideration of the chances of easy divorce.

Another and by no means a less evil is found in the effect the
general looseness of marital obligation has on the growth of fam
ilies. A large family of children is a safeguard against divorce.
Parental love, with ail the mutual and tender affections with which
it surrounds and hallows the family circle, hovers like a guardian
angel over the sanctity of conjugal love. Seldom, indeed, does
Satan's device the dissolution of the ties of marriage invade
such a home. But I have no doubt its possibility often goes far
to prevent the existence of . such homes. Children have come to
be considered obstacles to the freedom of separation ; and when
ever that is the case, the malaria of divorce is fatal to maternity.
All right preceptions of Nature's law, which is God's law, and of
that righteous patriotism which seeks to make our own virtuous
and well-trained posterity the strong hope of a nation's purity
and greatness, are in danger of being sacrificed to our petty con
ceptions of individual ease, to an extent which, by the laws of
sociology, prefigures barrenness. And so we Americans by
descent are fast handing over our country with all its mighty
interests to the races of immigration and their descendants who
are happily taught obedience to the laws of nature as a religious
duty.

I cannot dwell upon these evils, yet I will denounce them as
fatally injurious, not only to the morality but also to every good
interest of society. Doubtless, the evils I have named prevail
most largely wherever the grounds of divorce are most numer
ous. We have one State, South Carolina, where no divorce,
either legislative or judicial, can be or has ever been granted,
though by strange political perversion that State has never
been over-attached or faithful to another union. I am greatly
misinformed if in that State the peace, purity, and felicity
of families do not maintain a far higher standard than in
States where divorces are the chronic mischief and misery of



36 THE NORTH AMERICAN REVIEW.

domestic life. In the Colonial history of the State of New
York for more than a century divorces were unknown. Who
asserts that conjugal unhappiness was greater in that period
than after divorce became the law and rule speaks without
proof.

All precedent shows that human life, and especially woman's
life, is happier as a rule in countries where divorce is not lawful
and not permitted than in those where it is most common and
free. For divorce is an evil that always grows by what it feeds
upon. It feeds upon the baser vices of our nature, and they prop
agate and increase as the demand enlarges to meet an inordi
nate and depraved appetite. A striking illustration of this fact
has just been disclosed by the discovery of a manufactory of
forged divorces in the city of Brooklyn, from which it is said two
hundred decrees have lately issued with the apparent formalities
of judicial procedure ; the parties obtaining them looking and
caring for nothing but expedition, cheapness, and secrecy. Such
a state of things could not exist, but for the appalling moral
laxity bred by the frequency of divorces. Both physically and
morally, men accommodate themselves to the rule and necessity
of conditions. So, if the condition of life and law be such that
the marriage tie may be easily disrupted, men speedily come to
think of its disruption as a process of relief, proper and defensi
ble. This fact speedily operates to change the harmonies of
wedded life into discords; and conjugal jars, which otherwise
might only be considered as new starting-points for closer and
tenderer affiliations, are nursed into irreconcilable and fatal quar
rels. But when the rule and necessity are the opposite, both
husband and wife are taught by that condition to adhere to the
true nature of marriage by turning discords out-of-doors and
studying the conciliations due to mutual happiness.

While this is more true and apparent where no divorce can
be obtained, it is proportionately so where the grounds of divorce
are strictly limited. Hence it is true policy, if the evil of divorce
must exist, to confine it, so far as absolute divorces are con
cerned, to the single ground of infidelity. Some writers would
limit this to the infidelity of the wife alone, because of the
shadow that her wrong may cast upon the paternity of offspring.
But to this theory I say emphatically, No ! Both sexes enter the
relation on equal terms. For both the vow of chastity is the
same, and the guilt of its breach lies not in a possible conse-



MARRIAGE AND DIVORCE. 37

quence, but in a wrongful act. And so the law, to be just, must
be equal and equally enforced.

Accepting the remedy of divorce on the ground of infidelity
as a necessary, if not justifiable, evil, the question arises, how
shall it be used and applied? On this question our laws are
altogether at fault. They are as well guarded in New York,
perhaps, as anywhere. But even in that State there is posi
tively less danger of fraud in the procedure to collect a prom
issory note than in one to annul the most sacred civil contract
men can make. It is possible under our present laws that
a husband and wife may rise from their lawful bed in the
morning bound by the bonds of matrimony to each other, and
each lie down at night of the same day the lawfully wedded
husband or wife of another party. Accordant desires are
all that are necessary to produce this result, if there has-been
guilty infidelity on the part of either. For a summons and
complaint may be served at one hour; an appearance and
answer by attorney and consent to refer in another ; an order of
reference forthwith j a hearing, report, and motion for judgment
a few hours afterward j and a marriage by the injured party here,
while the guilty party slips across to New Jersey and returns
the wife or husband, perhaps, of a paramour. This is true, and
yet it seems almost as ludicrous as the imaginary announcement
to passengers by the conductors of trains approaching Chicago :
" Twenty minutes for divorce."

But if this can be done by willing parties, what cannot be
done by fraudulent ones ? The frauds are mostly perpetrated on
wives ; but Eve's adroitness is not always at a loss to commend
the fruit to the lips of Adam. The courts strive earnestly to
guard against such wrongs ; but their very safeguards are some
times made the weapons of fraud ; and this especially where,
as in many cases, the proceeding is instigated by a strong desire
to marry somebody else. This was shown in the forged divorces
I have already referred to. I recall some special instances in
which I have had occasion to set aside decrees for fraud. In one
case the husband, a farmer, astonished his aging wife, broken
down with hard work, by insisting on her making a visit of
rest to her relatives in Massachusetts. She gladly went, and
remained at his request some two or three months. Meanwhile
he began his suit for divorce by publication, and by false testi
mony obtained it ; and when the wondering wife, after weeks



38 THE NOETH AMERICAN REVIEW.

of silence, reached her home, she found another woman installed
in her place, and she was driven ruthlessly away. In another
case the summons was served " personally " by a tool of the hus
band, by placing it between the leaves of a book and carelessly
handing the book to the wife. In each of these cases the fraud
was discovered and the decree annulled, but not until the
villainous husband had entrapped another innocent woman into
marriage with him by displaying his ill-gotten decree. I refer to
these cases to strengthen my position that the laws of procedure
in actions for divorce ought to be changed.

First. So that no judgment could be entered until it appeared
clearly that the suit had been actually pending at least six
months after service of the process. This not only to prevent
frauds, but to give the parties a breathing spell for possible recon
ciliation, and to prevent immediate and shameful remarriages.

Second. In all cases the defendant should have the right to
insist that the alleged paramour be brought in and made a party
to the action, so that an unjust accusation could be met and con
futed by both of the accused who are interested in maintaining
innocence.

Third, and above all, inasmuch as society is deeply inter
ested in all such actions, the State should be made a party so
that it shall be able to prevent the wrongs that are inflicted upon
the public, and upon children and innocent persons; and no
judgment should be allowed until it appears that some lawful
representative of the State has been served with process and has
had opportunity to appear and resist the divorce. This mode of
conserving the rights of society ought to be carefully secured,
and over the question of the cost of securing such protection
the courts should have adequate power. Now it often occurs
that by such actions helpless children are bastardized or made
homeless and thrown upon the public for support by the de
struction of family relations, with no one to speak a word in
their behalf or for the public.

These, with the jurisdictional provisions of our statutes,
strictly observed, would bring actions of divorce within the
bounds of actual guilt and necessity, and not leave them so
completely to the caprice of parties, or their frauds or perjuries.

But the greatest evil in this country grows out of the differ
ing laws of the several States touching the grounds and effect of
divorce. I need not point out these differences. They run the



MAEEIAGE AND DIVORCE. 39

gamut of conjugal infelicities, ranging from adultery down to
incompatibility of temper, including the discretion of the courts,
sometimes denned to be " the measure of the Chancellor's foot."

All who think upon the subject will agree that uniformity of
the grounds of divorce ought to exist throughout all the States.
This alone will prevent the incessant hegira from State to State
of persons seeking to escape the bonds of matrimony, and that
vast procession of evils that follows such efforts.. It is a mon
strous truth that a person can quit the State of his residence,
and, leaving his wife and children behind, in a brief time obtain
in the courts of another State a decree of divorce entirely valid
in that State, but absolutely void in the courts of other States.
His remarriage is lawful there. It is felony elsewhere ; and his
guilt or innocence depends upon which side of an imaginary
State line he happens to stand. This would be less impor
tant if the status of his wife and children, past, present, and
future, were not to be seriously affected by the decree. Let
me illustrate.

A is married in New York, where he has resided for years, and
has a family and is the owner of real and other estate. He de
sires divorce and goes to Indiana, where that thing is cheap and
easy. Upon complying with some local rule, and with no actual
notice to his wife, he gets a decree of divorce, and presently is
married in that State to another wife who brings him other chil
dren. He again acquires new estates ; but, tiring of his second
wife, he deserts her and goes to California, where in a brief space
he is again divorced, and then marries again, forming a new
family and acquiring new real and personal estates. In a few
years his fickle taste changes again, and he returns to New
York, where he finds his first wife has obtained a valid divorce
for his adulterous marriage in Indiana, which sets her free and
forbids his marrying again during her lifetime. He then slips
into an Eastern State, takes a residence, acquires real property
there, and after a period gets judicially freed from his California
bonds. He returns to New York, takes some new affinity, crosses
the New Jersey line, and in an hour is back in New York, enjoy
ing so much of his estate as the courts have not adjudged to his
first wife, and gives new children to the world. At length his
Master takes him. He dies intestate. Now, what is the legal
status and the condition of the various citizens he has given to
our common country ? And what can the States of their birth
or domicile do for them



40 THE NORTH AMERICAN REVIEW.

A few words will show how difficult and important these
questions are. The first wife's children are doubtless legitimate
and heirs to his estate everywhere. The Indiana wife's children
are legitimate there, but probably illegitimate everywhere else.
The California children are legitimate there and in New York
(that marriage having taken place after his first wife had ob
tained her divorce), but illegitimate in Indiana and elsewhere,
while the second crop of New Yorkers are legitimate in the Eastern
States and New York, and illegitimate in Indiana and Calif ornia.
There is real and personal property in each of these States.
There are four widows, each entitled to dower and distribution
somewhere, and to some extent, and a large number of surely
innocent children, whose legitimacy and property are at stake.
All these legal embarrassments spring from want of uniformity
of laws, on a subject which should admit of no more diversity
than the question of citizenship itself.

The only direct and eifective way is to authorize the estab
lishment of uniformity by the only power that can have univer
sality of jurisdiction. It needs but two words added to the fourth
subdivision of section 8 of the Constitution of the United States,
so that it shall read: "Congress shall have p6wer to establish a
uniform rule of naturalization, and uniform laws on the subject
of bankruptcies and divorce throughout the United States."
But we are told that this would produce " centralization," what
ever that may mean, and ought not to be done. But it is one
of the very subjects on which centralization ought to exist;
because, while it would leave the State courts free to act in their
respective spheres, Congress could so define the grounds of
divorce and the jurisdiction of the subject that judgments



Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 4 of 60)