The Social Relations of Divorce [pp. 352-355]

THE SOCIAL RELATIONS OF DIVORCE.
friends of the innocent and unsuspecting no
opportunity to detect and expose profligate designs. It treats marriage so lightly that the
people soon learn to look upon it with the same
levity, and it is not at all surprising if the parties
to hasty and ill-assorted unions, after their
plans are accomplished, easily slide into the
current of divorce; and when, as is so widely
the case, the divorce itself may be easily obtained, no wonder that in time we have an increasing multitude of hasty and ill-assorted
unions.
2. With regard to divorce itself, there are
three aspects in which the legislator should
view it. First, there may be injustice and great
individual wrong in the marriage itself. There
may have been certain obstacles existing at the
time of marriage, fraudulently kept from the
knowledge of one of the parties, or even obstacles
unknown to either party, sufficient to vitiate the
contract. For firauds or vital mistakes in the
marriage itself, the State certainly has the right
of interference for the protection of its subjects.
Hence jurists are nearly all agreed that certain
caulses invalidate the marriage from the beginning, and several of the States make provisions
for this. Most of the New England States, and
others, provide that, on account of forbidden
consanguinity, insufficiency of age, lunacy, or
idiocy of one of the parties existing before marriage, force or fraud used to obtain consent, etc.,
the court, on sufficient proof, may declare the
marriage void from the beginning.
Secondly, even when adultery is not charged,
there may undoubtedly be cases where the law
should interfere for the protection of oppressed
and wronged citizens. Certain cases of intolerable hardship, of violent and shameful treatment, of abuse and indignity, of habitual drunkenness, of convicted crime and long imprisonment, of willful and continued desertion, and of
other gross conduct which ruins all the moral
purposes of marriage, evidently call for the interposition of the civil law. And in such cases
the State, by virtue of that authority by which
she protects the lives, the property, and the
public order of her citizens, may justly separate
the husband and wife, and deliver the oppressed
party from all legal rights and claims held by
the oppressor. But the State is not hereby
justified in granting absolute divorce. It may
and should decree a legal separation, because
the marriage contract is a legal contract; but it
is more than a legal contract, it is a divinely
appointed joining together of God, and what
God has joined together let not man put asunder, except as God himself declares the union
annulled. The State may declare null and void
VOL. XXVII.-33*
the legal claims of a wrong-doer over the oppressed party, for the State is to a great extent
the creator and preserver of these legal claims.
The power of the State in these cases justly extends to a divorce a mensa et thoro, and no farther. Beyond this the divine law prevails. Thle
State goes too far when for such causes it declares such a dissolution of the bond as permits
either of the parties to marry again during the
lifetime of the other. This limitation is not only
required by the divine law, but we are satisfied
it is absolutely necessary for the preservation
of the sanctity of marriage and the purity and
safety of society. Absolute divorces for causes
of this kind is exactly what is now demoralizing
society, and is the evil that is awaking alarm in
thoughtful minds. The law of sefiaration oZly
may bear heavily on a limited number of individuals, but less heavily of course than the evil
from which it delivers them, or they would not
seek the remedy, while no human laws can avert
entirely, even from innocent persons, the consequences of wrong doing by others; and in this
case the hardship of the individual is a vast
less evil than would be the demoralization of
marriage from frequency of absolute divorce to
society at large.
3. There remains the third ground for interference on the part of the State; namely, the
right of the State to annul absolutely the marriage, when its whole moral significance has
been subverted by connubial infidelity. On
this ground all are agreed, and the laws of man
are sanctioned by the higher laws of God. But
here still are grave questions which we have
not space to discuss, and on which we can only
affirm our own conviction; first, that the law
should be equally emphatic in condemning connubial infidelity on the part of the husband as
on the part of the wife, and, secondly, that a
divorce a vinculo zmarirnonii, by which the
marriage is utterly dissolved, should either confer the right of remarriage only on the innocent
person, or the statute law should make provision
for the punishment of the crime of adultery;
otherwise it is not difficult to see the danger of
inducing the commission of adultery as a means
of dissolving a hated marriage, and bringing
about a union with a new and preferred partner.
Such protection and interference we believe
are demanded of the State for the preservation
of the sacredness of this vital institution, and
for the guardianship of her own subjects from
oppression and fraud. She has a right to demand that all marriages shall be matters of
publicity, and shall be known to the State.
She has the right to declare marriages accomplished through fraud and force, or deception,
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