Gordon A. Stewart

“ Each State is its own authority, and determines for itself the conditions upon which the marriage relation of its people may be entered into or dissolved; and, perhaps, the social and moral sentiment of the people of a State can not be more equitably determined than by observing the character and use of its laws governing marriage and divorce; for the various degrees of restriction and laxity in marriage and divorce have marked the progress and decline of all peoples and nations ever since the days when Adam and Eve went out of paradise and Moses wrote the law on Mount Sinai. ”

“ Lawful marriage is the basis of the family relation, and the family relation is the fundamental principle of association upon which the superstructure of society and the State is built. And yet there is no contract of the value of twenty dollars, subject to the verdict of a jury or the decision of a court, that is so easily avoided and so shamefully dissolved as the contract of marriage. ”

“ When woman shall stand before the law equal with man in all her personal, property, and political rights, then indeed will marriage be a contract sanctioned by nature and approved by God. All the instincts of nature favor marriage, all the passions, desires, and affections of the human heart enter into it, and the highest development of the human race depends upon it. Yet, as a part of the contract, the law of divorce enters in ”

“ Marriage is not a contract to be entered into in haste and repented of at leisure. It is of more importance to the parties, and far more to society, than the acquirement of a good title to a piece of real estate. Yet no one would think it a hardship to comply with the law for the proper execution and registration of a deed of conveyance, and no court would hold, as a general rule, that a valid title passed, although the statute governing the transfer had not been complied with. ”

“ Thus, it will be seen that uniformity in the operation of the divorce laws, as a part of the marriage contract, is made necessary by the facility with which divorces are now "made easy, and without publicity." The cases where a husband or wife has abandoned home and family, and gone into a neighboring State to procure a divorce that could not be obtained at home, are so frequent and notorious, that the public conscience has ceased to be more shocked over such an occurrence than over a bank-president's embezzlement, or a willful murder. ”

“ Is the race-conflict so irrepressible in this country that they can not ever be merged in the white race? Or is it wiser for science and the law to recognize, in the process of the formation of races, that they are strictly a distinct and intermediate race? Already, in proportion to numbers, as many of them stand as high in intellectual development as white persons of the same class. ”

“ In New York, marriage, so far as its validity in law is concerned, is expressly declared to be a civil contract, to which the consent of the parties, who must be capable in law of contracting, is essential. Marriage between parents and children, and grandparents and grandchildren, of every degree, and between brothers and sisters of the half or whole blood, are declared to be incestuous and absolutely void. ”

“ The rural population is prosperous and happy in its Arcadian simplicity; and even in the great commercial metropolis of the State, where the opportunity for temptation and crime, corruption, and luxurious licentiousness, is so great, the intelligence and morals of the people are equal to those of any city in the world. Notwithstanding this, the laws of other States and the decisions of the courts make marriage in New York, as elsewhere, a contract subject to the caprice or dishonesty of either of the parties. ”

“ It is, however, to the credit of our humanity that the noble and enduring men and women of our race—those upon whom the world must ever rely for the true advancement of man toward social perfection and individual happiness seldom or never resort to the courts, even of their own State, for release from a contract which may have become onerous or even disgraceful to bear. ”

“ And while there should be other causes than adultery assigned for divorce, there is no other cause by which the family and society can be so deeply injured; no other cause that might not be adjusted between the parties, or removed by law, the same as if the marriage relation did not exist, or for which the innocent party might not suffer just as severely in his or her relation to society as in the relation of husband or wife. ”

“ But perhaps most persons, especially when young and looking forward to a long future of connubial happiness, consider the act of marriage more as a religious rite than a civil contract, and hence the forms and ceremonies of the Church accord more agreeably with the sentiment of love and affection than the business-like and informal words of the magistrate, who, in response to their acknowledgment of intention to marry, simply pronounces them man and wife. ”

“ But since the conditions of slavery have ceased to exist, and the freedmen have become citizens of the United States, endowed by the Constitution with all the political and civil rights enjoyed by their former masters, including the natural right of marriage, the reasons upon which the former black laws were based can have no application to the present social rights of these people. Still, the prejudice, deeply rooted in the interest of slavery, exists ”

“ In these extremes of the law, we have the tyranny of bigotry and the liberty of license, this opening the gates of temptation to the licentiousness of man, and the other driving in the victims. Surely there is a happy medium sufficiently circumscribed to restrain the vicious and dishonest, and yet liberal enough to afford relief to the innocent and injured! ”

“ For some fancied or real grievance that could easily be explained by love, or remedied by law; for the slightest incompatibility that could exist between any two independent individuals, and which might be softened by intelligent forbearance, but which must be endured by all under any form of contract; or, from a sensual desire to form another marriage relation, or for apparent causes that have no deeper root of evil than fashionable folly, petty jealousy, and irritability of temper—the laws of many of the States offer a way for the dissolution of the marriage contract. ”

“ Under the present liberal laws, regulating the relation of husband and wife, in some of the more progressive States, the parties stand so nearly equal before the law as individuals, in their personal and property rights, that there can not be the same excuses for resorting to divorce as a remedy for a real or supposed wrong, and certainly not the necessity for the assignment of so many statutory causes, as in former years. ”

“ This sentiment, no doubt, is largely the result of a lingering belief in marriage as a divine institution and a sacrament of the Church, as taught when the ecclesiastical court had exclusive jurisdiction of marriage and divorce. It is perhaps not until later, not until they have become dissatisfied with the conditions of the solemn obligation they had agreed to faithfully perform through life, that they discover it is simply a civil contract that binds them, and from which the law has generously provided unlimited means of escape. ”

“ So, if any person, whose husband or wife shall have absented himself or herself for the space of five consecutive years without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time its nullity is pronounced by a court of competent authority. The law authorizing a legal separation, or a limited divorce, in New York, has been repealed, and the only causes arising after marriage for which a legal marriage can be annulled are adultery and imprisonment for life ”

“ True, the punishment was equal without distinction of color, as it would have been in a case of larceny. But the law in prohibiting the marriage could not be constitutional, because it abridges the privileges of the citizen on account of color; it denies to the colored male citizen the equal privilege and protection of the law extended to the white male citizen—the right to marry a white woman. It also denies the white female citizen the equal privilege and protection of the law granted the colored female citizen—the right to marry a colored man. ”

“ THE worst of our social evils, personal wrongs, and political sins arise from the ununiform operation of our marriage and divorce laws. The loose manner in which a contract of marriage may he entered into and the reckless facility with which a marriage contract may be dissolved are a disgrace to our high civilization and professed Christianity. ”

“ Before emancipation there was no legal marriage between slaves—a slave not being competent to enter into a contract—so that the relation of husband and wife depended wholly upon the will and caprice of the master. And the children of such marriages were neither legitimate nor illegitimate, coming into the world independent of all marriage laws. ”

“ And as the great mass of mankind, white and black, must ever be laborers and followers, and as all the avenues of trade and commerce, learning, culture, and civil and political distinctions, are open to all, this "mixed race" must eventually become sharp competitors for the supremacy in this country. ”

“ As members of society and citizens of the State, all persons should conform to the same civil law, leaving the individual parties free to supplement the civil ceremony with a religious one, according to the rules of the religious society to which they belong.
There is a peculiarity in the marriage contract, that does not enter into any other contract in the ordinary commercial transactions of life. While others may be, it must be between one man and one woman only. The contract does not end with the marriage ceremony ”

“ Several States still retain upon their statute-books the common-law prohibition of marriage between persons related by consanguinity, or affinity, nearer than the third degree; while other States have progressed to that degree of liberality on the road to individual freedom and universal happiness which permits a person to marry, if not his grandmother, at least the daughter of his wife by a former husband. ”

“ In these States the international and interstate rule, that a marriage legally contracted in one State is valid in every other State, is outraged and defied; and parties lawfully married in a State which does not prohibit the intermarriage of white and colored persons removing into these States are not recognized as husband and wife, but are made subjects of a law punishing fornication and adultery. ”

“ It is discreditable to civilization not to reverse a decision or principle of law, though of long standing, which is more evil in its continuance than inconvenient in its reversal or repeal. A thing which has outlived its influence for good, or a principle that has no longer an application to the progress of the age, in religion or law, should be abandoned. ”

“ In Ohio the statute declares that "a person of pure white blood, who intermarries with any negro, or person having a distinct and visible admixture of African blood, and any negro or person having a distinct and visible admixture of African blood, who intermarries with any person of pure white blood, shall be fined not more than one hundred dollars, or imprisoned not more than three months, or both." And the judge who knowingly issues the license and the person who knowingly solemnizes the marriage are subject to the same penalties. ”

“ But the conservative judicial mind is the last phase of energy in which the theory of evolution evolves, and "general principles of law" handed down by judicial prejudice from generation to generation are the last to give way in matters of progress and reform, not only when the reasons on which they were based no longer exist, but when other and better reasons demand a change. ”

“ While the laws of these three States differ—and, perhaps, no two States in the Union agree as to who are competent to contract marriage—the provisions of the statutes of each regulating its solemnization would seem to be sufficient to protect society against hasty and indiscriminate alliances, to guard either party against fraud, and to furnish record evidence in any case where proof of marriage might be required. ”

“ That there is an urgent necessity for Congress alone, or for Congress and the States united, to move earnestly in this matter, is not only seen in the ineffectual efforts of Congress every year to suppress polygamy, which is fast spreading from Utah into the other Territories, but also in an almost similar condition of society in the States, brought about by the ununiform laws and the conflicting decisions of the courts. ”

“ Every person who shall join any persons in marriage shall certify upon the license certificate the fact, time, and place of such marriage, and return it to the register of the town where it was issued, before or during the first week of the month next succeeding such marriage, and upon failure thereof shall forfeit ten dollars. The certificate shall be prima facie evidence of such marriage. All judges, justices of the peace, and ordained or licensed clergymen while in the ministry, may join persons in marriage, and all marriages attempted to be celebrated by any other person shall be void ”

“ In Ohio, "male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer kin than second-cousins, and not having a husband or wife living, may be joined in marriage," provided that if the male person is under the age of twenty-one, and the female person is under the age of eighteen, they shall first obtain the consent of their parents, respectively. The marriage may be solemnized by an ordained minister of any religious congregation who has first obtained a license authorizing him to solemnize marriages ”

“ Parties who legally marry know the conditions of the contract into which they have entered. In New York they know that, as a part of the contract, so long as they reside in the State there is one cause only, except death, for its dissolution. ”

“ It is possible, however, on the common-law principle, that a marriage of this kind, followed by the parties living together as man and wife, would be held valid, though they would be subject to the penalties of the law. But in a number of other States—mostly Southern—such a marriage is declared absolutely void, and the parties living together under it are punishable by imprisonment in the penitentiary for "lascivious cohabitation." ”