The miscellaneous provisions regarding divorce and divorce actions are in character similar to those already mentioned for other states. In California, Hawaii, Illinois, Michigan, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota, and Wyoming the legitimacy of the children of the marriage is expressly recognized in case of divorce. Trial by jury in the finding of facts is allowed in Illinois, Nevada, New York,[581] Pennsylvania, and Wisconsin; while in Washington it is expressly denied; and in Colorado the guilt or innocence of the defendant must be determined by the verdict in every case.[582] The statutes of Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort to be a witness in the case; and by those of Illinois, Kansas, Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court may authorize the woman to change her name. She is granted this privilege in Alaska only when not the person in fault. In several instances special provision is made for defending the action. According to the Indiana law, "when a petition for divorce remains undefended, it shall be the duty of the prosecuting attorney to appear and resist" the same.[583] In Colorado, when the defendant fails to appear, the court must appoint an attorney who shall secure a fair and impartial hearing of the case.[584] By the law of Oregon the state is constituted a party in such suits, and it is the duty of the district attorney, "so far as may be necessary to prevent fraud or collusion," to control the proceedings for the defense.[585] Washington has a similar law;[586] and in special cases the prosecuting attorney in Idaho and Michigan is likewise required to oppose the granting of a decree.[587] Soliciting divorce business by advertising or otherwise is sometimes prohibited under severe penalty, such being the case in California, Illinois, Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588] Indiana has a unique enactment expressly declaring that a divorce legally granted in any other state shall have full effect in that commonwealth.[589] Everywhere due provision is made for alimony, care of the children, and the adjustment of property rights. There is great variation in matters of detail; but in general the laws of the middle and western states relating to these subjects are very similar to those of New England. For the purpose of the present chapter further notice may therefore be dispensed with. Only in Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in conclusion, has any adequate provision been made for the collection and publication of divorce statistics.
CHAPTER XVIII
PROBLEMS OF MARRIAGE AND THE FAMILY
[Bibliographical Note XVIII.—Materials for a more extended study of the questions touched upon in this chapter are set forth in Part IV of the Bibliographical Index. Wright's Report on Marriage and Divorce is, of course, indispensable. It may be supplemented from the Eleventh Census, U. S., I; the Census of Massachusetts, 1875, 1885, 1895; the Registration Reports of the New England states, of which the forty-first for Massachusetts is most important; and from those of Indiana, Illinois, Michigan, and Ohio. Useful summaries of statistics may also be found in Secretary Dike's Reports of the National Divorce Reform League, and its successor, the National League for the Protection of the Family (Montpelier and Boston, 1886-1903). An important statistical monograph is Willcox's Divorce Problem (2d ed., New York, 1897). This should be read in connection with his "Study in Vital Statistics," in Pol. Science Quarterly, VIII (New York, 1893); his "Marriage Rate in Michigan," in Pub. of Am. Stat. Association, IV (Boston, 1895); Crum's "Marriage Rate in Massachusetts," in the same volume; and Kuczynski's article in Quart. Jour. of Economics, XVI (Boston, 1902). See also Dike, "Statistics of Marriage and Divorce," in Pol. Science Quarterly, IV (New York, 1889), a study of the government report; idem, "Facts as to Divorce in New England," in Christ and Modern Thought (Boston, 1881); Wells, Divorce in Mass., extract from the 41st Registration Report (Boston, 1882); Abbott, "Vital Statistics," in 28th Rep. Mass. State Board of Health (Boston, 1897); Wright, Practical Sociology (New York and London, 1899); Mayo-Smith, Statistics and Sociology (New York and London, 1895); Loomis, "Divorce Legislation in Conn.," in New Englander, XXV (New Haven, 1866); and Allen, "Divorces in New England," in North Am. Rev., CXXX (New York, 1880). Important foreign statistical works are Bertillon, "Note pour l'étude stat. de divorce," in Annales de démographie internat., IV (Paris, 1880); idem, Étude démographique du divorce (Paris, 1883); idem, "Du sort des divorcés," in Jour. de la soc. de statistique (Paris, 1884); Oettingen, Die Moralstatistik (2d ed., Erlangen, 1874); Rubin and Westergaard, Statistik der Ehen (Jena, 1890); Bertheau, Lois de la population (Paris, 1892); Molinari, "Decline of the French Population," in Jour. of Royal Stat. Soc., L (London, 1887); Ogle, "Marriage-Rates and Marriage-Ages," ibid., LIII (London, 1890); Farr, "Influence of Marriage on the Mortality of the French People," in Trans. Nat. Assoc. for Promotion of Soc. Science, LVIII (London, 1859); idem, Vital Statistics, Parts I, II (London, 1885); Newsholme, Vital Statistics (3d ed., London, 1892); Cauderlier, Les lois de population (Brussels, 1900); Lindner, Die unehelichen Geburten als Sozialphänomen (Naumburg, 1899); Statistik der Ehescheidungen in der Stadt Berlin, 1885-94 (Berlin, n. d.); the parliamentary Return of the Number of Divorces in Foreign Countries, Misc., No. 4 (London, 1895), Part II, being for British Colonies; and Reports of the Laws of Marriage and Divorce, Parts I, II (London, 1894).
On the divorce problem see An Essay on Marriage; or, the Lawfulness of Divorce (Philadelphia, 1788), presenting the principal arguments in its favor; Westbrook, Marriage and Divorce (Philadelphia, 1883); idem, The Clerical Combination to Influence Civil Legislation on Marriage and Divorce (Philadelphia, 1887); Fisher, The Causes of the Increase of Divorce (Boston, 1883); Richard, Marriage and Divorce (London, 1888); Robinson, "The Diagnostics of Divorce," in Jour. of Soc. Science, No. 14 (Boston and New York, 1881); Janes, "Divorce: Sociologically Considered," in New Englander and Yale Review, LIV (New Haven, 1891); Phillips, "The Divorce Question," in International Review, XI (New York, 1881); Savage, "Matrimony and the State," in Forum, X (New York, 1890); Adler, "The Ethics of Divorce," in Ethical Record, II, III (Philadelphia, 1889-90); Wright, "Marriage and Divorce," in Christian Register, LXX, 655-58 (Boston, 1891); Lecky, Democracy and Liberty, I, chap. vii (New York and London, 1896); and Bryce, "Marriage and Divorce," in his Studies in Hist. and Jur. (New York and London, 1901). The following are very conservative: David Hume, "Of Polygamy and Divorces," in his Essays, I (London, 1875); Little, "Marriage and Divorce: the Doctrine of the Church of England," in Contemporary Review, LXVIII (London, 1895); Hurd, "Scriptural Ground of Divorce," in the New Englander and Yale Review, XLV (New Haven, 1886); Phelps, "Divorce in the United States," in Forum, VIII (New York, 1889); Caverno, Treatise on Divorce (Madison, 1899); Gladstone, symposium with Bradley and Dolph on "The Question of Divorce," in North Am. Review, CXLIX (New York, 1889); Greeley, "Marriage and Divorce: a Discussion with Robert Dale Owen," in Recollections of a Busy Life, 571 ff. (New York, 1869); idem, Love, Marriage, and Divorce, and the Sovereignty of the Individual (New York, 1853), a discussion with James and Andrews; Convers, Marriage and Divorce (Philadelphia, 1889), presenting the Catholic view; Dike, "Some Aspects of the Divorce Question," in Princeton Review, N. S., XIII (New York, 1884); and Woolsey, Divorce and Divorce Legislation (2d ed., New York, 1882).
In Italy divorce is favored by Gioja, Teoria civile e penale del divorzio (Milan, 1803); Mazzoleni, La famiglia nei rapporti coll individuo e colla società (Milan, 1870); Bianchi, Il divorzio (Pisa, 1879); Bernardo, Il divorzio nella teoria e nella pratica (Palermo, 1875); Marescalchi, Il divorzio e la instituzione sua in Italia (Rome, 1889); and opposed by Giudici, Memoria sul divorzio (Milan, 1798); Rosmini, Des lois civiles concernant le mariage des chrétiens (trans., Paris, 1853); Zamperini, Il divorzio considerato nella teoria e nella pratica di D. di Bernardo (Verona, 1876); and Gabba, "The Introduction of Divorce in Italy," in Am. Church Review, XXXIII (New York, 1881). In France the rise of a sentiment favoring divorce may be traced in Cri d'une honnête femme qui reclame le divorce (London, 1770); Contrat conjugal (Paris, 1781; Neuchatel, 1783); Bouchotte, Observations sur le divorce (Paris, 1790); Hennet, Du divorce (Paris, 1792); Tissot, Le mariage, la séparation, et le divorce (Paris, 1868), giving an account of the principal French and Italian writers; Naquet, Le divorce (Paris, 1877); Bertillon, in the works above cited; Cavilly, La séparation de corps et le divorce (Paris, 1882); Fiaux, La femme, le mariage, et le divorce (Paris, 1880); and Dumas, La question du divorce (Paris, 1879; 5th ed., 1880). Divorce is opposed by Madame Necker, Réflexions sur le divorce (Paris, 1792; or Lausanne, 1794); Bonald, Du divorce (Paris, 1801); Malleville, Du divorce (Paris, 1801); Chrestien, Dissertation historique (Paris, 1804); Hennequin, Du divorce (Paris, 1832); Ozanam, "Du divorce," in his Mélanges, I (Paris, 1859); Daniel, Le mariage chrétien et le Code Napoléon (Paris, 1870); Durrieux, Du divorce (Paris, 1881); Vidieu, Famille et divorce (Paris, 1879). This book was answered by Dumas in the work just cited; and he in turn was replied to by Féval, Pas de divorce (11th ed., Paris, 1880); and Hornstein, Le divorce (Paris, 1880). Kellen, Was ist die Frau? (Leipzig, 1892) gives an account, with extracts, of Dumas's utterances on social questions.
Problems of the family are discussed by Allen, "The New England Family," New Englander, XLI (New Haven, 1882); Dike, Perils to the Family (Auburndale, 1887); idem, The Family in the History of Christianity (New York, 1886); idem, "Problems of the Family," in Century, XXXIX (New York, 1890); idem, "The Religious Problem of the Country Town," in Andover Review, II, III, IV (Boston, 1884-85); Mathews, "Christian Sociology: the Family," in Amer. Jour. of Sociology, I (Chicago, 1896); Blaikie, The Family: Its Scriptural Ideal and its Modern Assailants (London, 1889); Mulford, The Nation, chap. xv (New York, 1871); Bushnell, "The Organic Unity of the Family," in his Christian Nurture (New York, 1861); Potter, "The Message of Christ to the Family," in his Message of Christ to Manhood (Boston, 1899); Peabody, "Teachings of Jesus Concerning the Family," in his Jesus Christ and the Social Question (New York, 1900); Buckham, "The Relation of the Family to the State," in International Review, XIII (New York, 1882); Pearson, "Decline of the Family," in his National Life and Character (London, 1893); answered by Muirhead, "Is the Family Declining?" in Internat. Jour. of Ethics, VII (Philadelphia, 1896); Commons, "The Family," chap. 10 of his "Sociological View of Sovereignty," in Am. Jour. of Sociology, V (Chicago, 1900); Stewart, Disintegration of the Families of the Workingmen (Chicago, 1893); Salter, The Future of the Family (Chicago, 1885); Devas, Studies of Family Life (London and New York, 1886); Henderson, Social Elements (New York, 1898); Small and Vincent, Study of Society (New York, Cincinnati, and Chicago, 1894); Ward, Dynamic Sociology, I, chap, vii (New York, 1883); Thwing, The Family (Boston, 1887); Planta, Reconstruction der Familie (Chur, 1886); Hermann, Die Familie vom Standpunkte der Gesammtwirthschaft (Berlin, 1889); Thiersch, Ueber Christliches Familienleben (8th ed., Augsburg, 1889); Naumann, Christenthum und die Familie (Berlin, 1892); Riehl, Die Familie (11th ed., Stuttgart, 1897); Gasparin, Die Familie (Gütersloh, 1870); Koenigswarter, Hist. l'org. de la famille en France (Paris, 1851); Godelle, Des principes fond. de la famille (Metz, 1869); Grevin, L'égalité dans la famille (Douai, 1876); Bobbio, Sulle origini e sul fond. della famiglia (Turin, 1891); Assirelli, La famiglia e la società (Milan, 1887); Janet, La famille (10th ed., Paris, 1877); Le Play, L'organisation de la famille (4th ed., Tours and Paris, 1895); Durkheim, Int. à la sociologie de la famille (Bordeaux, 1888); Bonjean, Enfants révoltés et parents coupables (Paris, 1895); Baudrillart, La famille et l'éducation en France (Paris, 1874); Morillot, Condition des enfants nés hors mariage (Paris, 1865); Lallemand, Hist. des enfants abandonnés (Paris, 1885); idem, La question des enfants abandonnés (Paris, 1885); Milhaud, Protection des enfants sans famille (Paris, 1896); Gaume, Hist. de la société domestique (Paris, 1844), presenting the strong Catholic view; Pelletan, La famille: la mère (Paris, n. d.). For Germany and England see Biographical Note XI.
Marriage problems are discussed by Giles, Treatise on Marriage (London, 1771); Ryan, Philosophy of Marriage (3d ed., London, 1839); Amat, Treatise on Matrimony (San Francisco, 1864); Watkins, Holy Matrimony (London, 1895); Potwin, "Should Marriage be Indissoluble?" in New Englander and Yale Review, LVI (New Haven, 1892); Malcome, The Christian Rule of Marriage (Philadelphia, 1870); Pomeroy, Ethics of Marriage (New York, 1889); Gray, Husband and Wife (2d ed., Boston, 1886); Lea, Christian Marriage (London, 1881); Harte, Laws and Customs of Marriage (London, 1870); Quilter, Is Marriage a Failure? (Chicago, 1889); Colfavru, Du mariage ... en Angleterre et aux États-Unis (Paris, 1868); Carlier, Le mariage aux États-Unis (Paris, 1860); Cook, "Marriage Celebration in the U.S.," and "Reform of the Marriage Celebration," both in Atlantic, LXI (Boston, 1888); Snyder, The Geography of Marriage (2d ed., New York and London, 1889); Chavassé, Traité de l'excellence du mariage (Paris, 1685); Gasparin, Le mariage au point de vue chrétien (2d ed., Paris, 1844); Picot, Le mariage (Paris, 1849); Cadet, Le mariage en France (Paris, 1870); Acollas, Trois leçons ... du mariage (Geneva and Berne, 1871); idem, Le mariage (Paris, 1880); Sincholle, Le mariage civil et le mariage religieux (Poitiers, 1876); Legrand, Le mariage et les mœurs en France (Paris, 1879); Hayem, Le mariage (Paris, 1872); Schoelcher, La famille, la propriété, et le christianisme (Paris, 1875); Hippel, Ueber die Ehe (4th ed., Frankfort and Leipzig, 1794); Volkmar, Philosophie der Ehe (Halle, 1794); Krug, Philosophie der Ehe (Reutlingen, 1801); Jörg and Tzschirner, Die Ehe aus dem Gesichtspunkte der Natur, der Moral, und der Kirche (Leipzig, 1819); Stäudlin, Geschichte der Vorstellungen und Lehren von der Ehe (Göttingen, 1826); Liebetrut, Die Ehe nach ihrer Idee und nach ihrer geschichtlichen Entwicklung (Berlin, 1834); Marr, Der Mensch und die Ehe (Leipzig, 1848); Hoffmann, Die christliche Ehe (Berlin, 1860); Glock, Die christliche Ehe und ihre modernen Gegner (Karlsruhe and Leipzig, 1881). Socialistic writers on the subject are Robert Owen, Marriages of the Priesthood of the Old Immoral World (4th ed., Leeds, 1840); Robert Dale Owen, "Marriage and Placement," in Free Inquirer, May 28 (New York, 1831); Pearson, Ethic of Free Thought (London, 1888); Besant, Marriage; As It Was, As It Is, and As It Should Be; Gronlund, The Co-operative Commonwealth (3d ed., London, 1891); Morris and Bax, Socialism (London and New York, 1893); Carpenter, Love's Coming of Age; Stürmer, Moderner Eheschacher (Leipzig, 1894); Proudhon, Amour et mariage (Brussels and Leipzig, n. d.); and Bebel, Die Frau und der Sozialismus (31st ed., Stuttgart, 1900), whose book is discussed by Oettingen, Zur Theorie und Praxis des Heiratens (Leipzig, n. d.). See also Oettingen's Obligatorische und fakultative Civilehe nach den Ergebnissen der Moralstatistik (Leipzig, 1881); Coulon, De la réforme du mariage (Paris, 1900); Kuhlenbeck, Reform der Ehe (Leipzig, 1891); Ewart, Die Emancipation in der Ehe (Hamburg and Leipzig, 1895); Vortmann, Die Reform der Ehe (Zürich, 1894); Lacombe, Le mariage libre (Paris, 1867); Löwenherz, Prostitution oder Production, Eigentum oder Ehe (Neuwied, n. d.); especially the able and radical works of Caird, The Morality of Marriage (London, 1897); Stetson, Women and Economics (Boston, 1900); and Schreiner, "The Woman Question," in Cosmopolitan, XXVIII (Irvington, 1899); idem, "The Woman's Movement of Our Day," in Harper's Bazar, XXXVI (New York, 1902). Swedenborg's system is set forth in his Conjugal Love and its Chaste Delights (new ed., London, 1862); it is summarized by Hayden, Ten Chapters on Marriage (2d ed., Boston, 1863); and expounded by Mann, Five Sermons on Marriage (New York, 1882).
On questions of heredity and selection consult Nisbet, Marriage and Heredity (London, 1890); Laurent, Mariages consanguins et dégénérescences (Paris, 1895); Féré, La famille névropathique (Paris, 1894); Strahan, Marriage and Disease (London, 1892); Reibmayr, Die Ehe Tuberculoser (Leipzig and Vienna, 1894); Fournier, Syphilis und Ehe (Berlin, 1881); Stanley, "Artificial Selection and the Marriage Problem," in Monist, II (Chicago, 1891); idem, "Our Civilization and the Marriage Problem," in Arena, II (Boston, 1890); criticised by Wallace, "Human Selection," in Fortnightly Review, XLVIII (London, 1890); Wertheimer, "Homiculture," in Nineteenth Century, XXIV (London, 1898); and especially Wood, Some Controlling Ideals of the Family Life of the Future (New York, 1902).
Sex problems are treated by Clarke, Sex in Education (Boston, 1873), who is criticised in the works of Brackett, Howe, and Greene; Geddes, Evolution of Sex and Sex in Education (1899-1900); Maudsley, Sex in Mind and Education (New York, 1884); Ames, Sex in Industry (Boston, 1875); Lyttelton, Training of the Young in the Laws of Sex (London and New York, 1900); Blackwell, The Human Element in Sex (new ed., London, 1894); Brown, Gunethics (New York and London, 1887); Trall, Sexual Physiology and Hygiene (Glasgow and London, 1897); Gardner, The Conjugal Relations (Glasgow and London, 1898); Walker, Intermarriage (Birmingham, 1897); Heinzen, The Rights of Women and the Sexual Relations (Chicago, 1898); Tait, Magdalenism (2d ed., Edinburgh, 1842); Lecour, La prostitution à Paris et à Londres, 1789-1877 (Paris, 1882); Guyot, La prostitution (Paris, 1882); Parents-Duchatelet, De la prostitution dans la ville de Paris (Paris, 1837); Dühren, Das Geschlechtsleben in England (Charlottenburg and Berlin, 1901-3); Klebs, Verhältniss des männ. und weib. Geschlechts in der Natur (Jena, 1894); Herman, Sexualismus und Aetiologie (Leipzig, 1899); Lindwurm, Geschlechtsliebe (Leipzig, 1879); Debay, Philosophie des Ehelebens (Berlin, 1895); Mantegazza, Hygiene der Liebe (3d ed., n. p., n. d.); Nemmersdorf, Der Kampf der Geschlechter (Leipzig, 1891); Daalen, Die Ehe und die geschlecht. Stellung der Frau (Berlin, 1896); Gardener, "A Battle for Sound Morality, or the Hist. of Recent Age-of-Consent Legislation in the U. S.," in Arena, XIII, XIV (Boston, 1895); Flower, "Wellsprings of Immorality," ibid., XI, XII (Boston, 1894-95); idem, "Social Conditions as Feeders of Immorality," ibid., XII (Boston, 1895); idem, "Prostitution within the Marriage Bond," ibid., XIII (Boston, 1895); Pearson, "Socialism and Sex," in his Ethic of Free Thought (London, 1888). Early German works of interest are Der rechte Gebrauch und Missbrauch des Ehe-Bettes (Leipzig, 1734); being a translation of Defoe's Use and Abuse of the Marriage Bed (London, 1727); Hencke, Volles entdecktes Geheimniss der Natur (Braunschweig, 1786); Josephi, Ueber die Ehe und physische Erziehung (Göttingen, 1788); Heydenreich, Mann und Weib: ein Beytrag zur Philosophie über die Geschlechter (Leipzig, 1798); Butte, Die Biotomie des Menschen (Bonn, 1829). See also the works of Stetson, Caird, Bebel, and Schreiner above mentioned.
In the text an account is given of the early literature of the movement for woman's emancipation in its relation to marriage. For further study may be consulted Stanton, Anthony, and Gage, History of Woman Suffrage (New York and Rochester, 1881-87); Fawcett, Hirsch, et al., in Theodore Stanton's Woman Question in Europe (New York, London, and Paris, 1884); Ostrogorski, Rights of Women (London, 1893); Johnson, Woman and the Republic (New York, 1897), strongly anti-suffrage; Legouvé, Hist. morale des femmes (8th ed., Paris, n. d.); Cohn, Die deutsche Frauenbewegung (Berlin, 1896), containing a select bibliography; Duboc, Fünfzig Jahre Frauenfrage in Deutschland; Sybel, Ueber die Emancipation der Frauen (Bonn, 1870); Richter, Das Recht der Frauen auf Arbeit (2d ed., Vienna, 1869); Büchner, Ueber weibliche Berufsarten (Darmstadt, 1872); Morgenstern, Frauenarbeit in Deutschland (Berlin, 1893); Hertzberg, Der Beruf der Frau (Leipzig, 1892); Jastrow, Das Recht der Frau (Berlin, 1897); Bridel, Le droit des femmes (Paris, 1893); Günther (R.), Weib und Sittlichkeit (Berlin, 1898); Günther (C.), Das Recht der Frau auf Arbeit (Berlin, 1899); Mont, Das Weib (2d ed., Leipzig, 1880); Gamble, Evolution of Woman (New York, 1894); Bücher, Die Frauenfrage in dem Mittelalter (Tübingen, 1882); and Mary Roberts Smith's able study of the "Statistics of College and Non-College Women," in Pubs. of Am. Stat. Assoc., VII (Boston, 1901). For further material see Bibliographical Notes IX, X, XI.]
I. THE FUNCTION OF LEGISLATION
In the United States, not less clearly than elsewhere in countries of western civilization, marriage and the family are emerging as purely social institutions. Liberated in large measure from the cloud of mediæval tradition, their problems are seen to be identical in kind with those which have everywhere concerned men and women from the infancy of the human race. Accordingly, the extension of the sphere of secular legislation practically to the entire province of these institutions is a phenomenon of surpassing interest. Consciously or unconsciously, it is a recognition of the fact that matrimonial forms and family types are the products of human experience, of human habits, and are therefore to be dealt with by society according to human needs. In this regard the Reformation marks the beginning of a social revolution. From the days of Luther, however concealed in theological garb or forced under theological sanctions, however opposed by reactionary dogma, public opinion has more and more decidedly recognized the right of the temporal lawmaker in this field. In the seventeenth century the New England Puritan gave the state, in its assemblies and in its courts, complete jurisdiction in questions of marriage and divorce, to the entire exclusion of the ecclesiastical authority. Even the Council of Trent, by adjusting the dogma regarding the minister of the sacrament, had already left to Catholic states the way open for the civil regulation of matrimony—a way, as already seen, on which France did not hesitate to enter.[591] Later the French Revolution wrested from the church judicial and legislative authority in matrimonial law and administration, and placed it in the hands of the state. In 1792, by a wise and tolerant enactment, civil marriage and civil registration were established; but at the same time the revolt against the old ecclesiastical régime led to the sanction of free divorce. Absolute dissolution of wedlock was then authorized at the mutual desire of both husband and wife, for incompatibility of temper on the petition of either spouse, and for seven other specified causes.[592] The natural result was a vast number of decrees.[593] Accordingly, in 1803 the Code Napoléon, while retaining civil marriage, adopted a more conservative policy regarding divorce. Incompatibility was no longer recognized; mutual consent was admitted under limitations; and the whole number of specified causes was reduced to five. The divorce law of 1803 was abrogated in 1816, and only restored in its essential features in 1884; but the liberal policy of France, as expressed in the Code Napoléon, has undoubtedly had a powerful influence in the extension of civil marriage and divorce throughout Europe, where, as in America, the modern statute-maker has recovered and passed beyond the point gained by the Roman imperial constitutions between Augustus and Justinian.
The right of society to deal freely with the whole province of marriage, divorce, and the family may be conceded. To determine the proper character and sphere of legislation is a very different matter. What is the quality of the existing laws under the interpretation given to them by the courts? Are they adequate to secure proper social control? What is the legitimate aim, and what are the needful limits of future legislation? Should the laws be uniform for the fifty-three states and territories; and, if so, how is uniformity to be attained? These are practical questions with whose solution it is high time that society should more earnestly concern itself.
a) The statutes and the common-law marriage.—The defects in the matrimonial laws of the United States are many and grave; but perhaps the chief obstacle in the way of securing a proper social control is the general recognition of the validity of the so-called "common-law marriage." Almost everywhere the public celebration of wedlock is intended by the statute; and in nearly all the states a license or certificate is required before the solemnization may take place. Yet, according to the prevailing doctrine, as expressed in judicial decisions or in the statutes themselves, these provisions are interpreted as merely "directory," not "mandatory;" and marriage contracts made in total disregard of them, by words of mutual present consent, are sustained as valid, although the prescribed penalties may be enforced for violation of the written law. In short, the vicious mediæval distinction between validity and legality is retained as an element of common matrimonial law in the United States.[594]
The doctrine that an informal marriage per verba de praesenti is valid unless expressly declared void by "words of nullity" in the statute is not an invention of the American courts. It is the doctrine maintained by the English judges previous to the decision in the case of the Queen v. Millis in 1844; and from the evidence already presented[595] it seems almost certain, if indeed it be not demonstrated, that it was the accepted doctrine in the English colonies. According to an able writer, the colonial statutory "system" entirely superseded the common law; and this system has been "destroyed" by a revolution, effected through the decisions of the American courts, "which has introduced into our law much of the insecurity, the irreverence, the license, of the Middle Ages," our common law today being "the canon law that existed prior to the Council of Trent."[596] No doubt our common-law marriage is thoroughly bad, involving social evils of the most dangerous character; and no doubt the colonial legislative system was a remarkable advance upon anything which had elsewhere appeared. But the common-law marriage was not introduced by the American judges; nor is it historically correct to say that in the English colonies it had been entirely supplanted by legislation, however admirable in its intent and quality that legislation may have been. For the colonial period, as elsewhere shown, the relation of the statutes governing marriage to the common law can only partially be determined from the court records. In the southern colonies the judicial history of the subject is almost a complete blank.[597] Other evidence, however, is available. Only during the thirty-five years between 1661 and 1696 does any statute of Virginia expressly declare a marriage void if not contracted according to its provisions. The new law of 1696, enacted in place of the statute of 1661/2, which was then repealed, declares that "many great and grievous mischeifes ... dayly doe arise by clandestine and secret marriages to the utter ruin of many heirs and heiresses;" and yet it is significant that the words of nullity contained in the earlier act are omitted. Indeed, by the terms of this law the validity of an irregular marriage thereafter contracted by a female between the ages of twelve and sixteen is clearly implied, although she is to be severely punished.[598] Dissenters had refused to marry according to the statute which they regarded as oppressive; and their resistance, perhaps with a feeling that the act of 1661/2 was itself invalid as being in conflict with the English common law, may have led to the omission of the words of nullity in all subsequent statutes of Virginia. After 1696 irregular marriages were probably regarded as valid, as they certainly were previous to 1661/2; for an act of 1642/3, while prescribing severe penalties for the secret marriage of indented servants, shows beyond question that such a contract, or one between a freeman and an indented maid servant, is looked upon as binding.[599] The facts are much the same for the other southern colonies. After 1692 the invalidating clause disappears from the statutes of Maryland. Only between 1766 and 1778, in North Carolina, is a marriage contracted without previous license expressly declared to be null and void; and it is enlightening that even during this short period of twelve years the penalty of invalidity is not extended to illegal celebration. It was mainly a device of the lawmaker to secure the governor in his revenue from the license fees. The South Carolina act of 1706 merely prescribes penalties for its violation; and, besides, its provisions relating to the celebration were entirely disregarded in the western country, where the various religious sects made use of civil forms or practiced their own peculiar rites. In both the Carolinas as well as in Georgia, since marriages illegally celebrated before unauthorized laymen or ministers seem to have been valid, there is little reason to doubt that clandestine and other informal contracts by present consent of the parties were likewise good; but regarding this point we have no positive information.[600]