A faithless wife, impressed with the doctrine just stated, takes such steps as will, in her belief, compel her husband to compromise himself. He then is watched, snares are set about his feet, he is encompassed by enemies, and, alas! sharing as he does the views entertained by his wife, he soon furnishes such evidences of wrong-doing as justify a recourse to legal proceedings. We have stated the case briefly, but at sufficient length to indicate the lowness of the depths to which human nature, deprived of grace, can sink, and how ingeniously the law has constructed a pitfall for itself. One author says that “such stratagems are of frequent occurrence,” and the mournful testimony of our tribunals is overwhelming in proof of the appalling frequency with which this repulsive drama is enacted. But to wade through the putrescent mass of evidence were to make the cheek grow crimson and burn, so that a scant allusion to it is all that decency can permit. What we especially desire to impress upon our readers is the fact that the imagination is here powerless to compete with the reality, and that human ingenuity has exhausted itself in the contrivance of the most abominable devices in its successful efforts to overreach a stupid law. But it is not alone in thus inviting infraction of its provisions that the law of New York State is weak and faulty; it is, in addition, guilty of contradicting itself in a matter of vital importance. Marriage is either a contract for life or can be limited by previous mutual consent. Now, the law denounces such limitation as immoral and strictly forbids it. But does it therefore recognize marriage as in reality a contract for life? We emphatically answer in the negative, and for the following reason: It is of the nature of a contract that all its essential terms and conditions be such as to come within the jurisdiction of the authority appointed for the purpose of directing its fulfilment. But if the authority be so crippled as not to be able to take cognizance of conditions admitted to be essential to the proper fulfilment of the contract, the latter must be regarded as null and void, or binding only in foro interno. All outside authority, all outside jurisdiction over it, is at an end. This is precisely what happens in civil marriage. Ostensibly the law recognizes it as a contract for life; indeed, openly proclaims it to be so; even provides a penalty for its violation as such; and yet, by admitting its dissolubility on certain conditions, leaves it in reality as much the subject-matter of temporary stipulation as a lease or a business copartnership, and, in addition, baits it with the temptation to commit an enormous crime. What is there to prevent two persons from entering into a civil marriage with the understanding that they should live together for a certain time, be as other married persons before the law, sharing its protection and enjoying its privileges, and then separate by complying with the conditions on which the law allows a separation? The case is entirely possible—has, indeed, occurred time and again—so that we are forced to admit that among us the law virtually treats marriage as a temporary partnership, however much it may insist upon its being regarded as a life-long contract, and is thus guilty of the inconsistency of declaring a certain thing to be what it in reality treats as quite another.
Nor can it be contended, as against this argument, that the law will not grant a divorce where connivance is attempted; for the case, typical of thousands, supposes that neither party desires to reveal such connivance. Nor is it of any avail to affirm that the party proved to be guilty is debarred the right of contracting a new marriage. Technically the law so reads, but practically it is powerless to enforce its provision. In such a case, indeed, it may be said that love laughs law to scorn. Its hope to punish a transgressor of the sort is as futile as the
“Desire of the moth for the star.”
It is proper to assume that the purpose of the law is to punish the criminal partner and to restore to the injured one privileges which ought not to be forfeited because of another’s guilt. These two objects represent the policy and expediency of the law; and in view of its entire failure to work them out wisely and effectually, we will show that the law is neither politic nor expedient. We will grant, indeed, that the law is competent, in all cases coming under its notice, both to punish the wrong-doer and partially to redress the wrong; but what is the use, if, instead of effectually repressing the wrong, it tends rather to encourage its commission? And such is indeed the anomalous condition of the law, both as it reads and as it works. The easier and more numerous the terms on which the marriage contract can be dissolved, the greater, of course, will be the number of divorces sought; but whether it be for one reason or many, once given a gateway from marriage bonds, and none who are desirous of escape will find much trouble in passing through the portals which the law has flung open. The facts, as attested by the courts of Connecticut and Indiana, prove the truth of the first part of this proposition; for nowhere are cases looking to the absolute severance of the marriage tie more frequently argued, and in no other States are so many divorces granted. The reason obviously is because the conditions for obtaining such concessions are there easiest of all. Where the conditions for procuring divorce are more onerous fewer applications are made; and the facts, as occurring in New York State, verify this sum in proportion and thus prove the second part of our proposition.
In the State of New York adultery is the sole condition of divorce, and just in proportion as such a crime is less frequent than mere family jars and broils, so are divorces less frequently sought. The proposition is therefore true that the permission to dissolve marriage begets a demand to that effect in proportion to the ease with which it may be obtained. The corollary of this proposition is that, the more easily divorce may be obtained, the less regard is had to the obstacles which may stand in the way of its coming at our beck. Should marriage be declared to be absolutely indissoluble, and come to be viewed as such by the masses, few would dream of assuming its responsibilities in the hope that, should time render it irksome, they could slip the noose and again soar “in maiden meditation fancy free.” On the other hand, they would be disposed rather to approach the matter with deliberation, to take to heart the conditions of the contract, and seriously to study the surroundings of a state which is to endure till death. It is for this reason that the church advises her children to ponder long and deeply the consequences of the step they are about to take when proposing to cross this moral Rubicon. If Cæsar felt that, the traditionary river once crossed, fate had marked him for her own, or Cortez that, his ships ablaze, all hope of return was gone, more still does the church insist that sacramental marriage is a step that cannot be retraced. Divorce laws ignore these considerations, and make light thereby of that social institution on which all others depend for their perpetuity. They forget that—
“Marriage is a matter of more worth
Than to be dealt in by attorneyship.”
With siren voice they lure the unwary and unreflecting to a fate fraught with untold possibilities of unhappiness. The result is that persons take less account of the solemn nature of the contract. It suits their humor at the moment to get married, and little they reck of the future. Carpe diem. The rosy present bounds the view, and there is no thought of to-morrow. Time enough for the disillusioned groom to wail:
Miseri quibus intentata nites—
when “marriage vows have proved as false as dicers’ oaths,” and bitter hate succeeded the short-lived joys of the honeymoon. And why should it be otherwise? Is not the potent panacea of matrimonial ills ever within ken and reach? What need is there to cloud the golden prospect with thoughts of possible future wrangles and rancor, and in advance study to avert or mitigate them, since, should they come along, a benignant law is at hand to end them? We are convinced on the best of grounds that the frequency of divorce suits has its root in the neglect of duly considering the conditions essential to the happiness of married life. Were Dante’s words written over marriage portals: