Page:Popular Science Monthly Volume 23.djvu/686

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668
THE POPULAR SCIENCE MONTHLY.

life" and "a higher civilization," there is an obstacle in the way: The Supreme Court of the United States, and not Congress, is invested with the august power of declaring what the Constitution of the United States means. But this may not be a satisfactory way of looking at the question. Let us take a step further.

A marriage contract, as viewed by the law, is only a contract in solemn form between two persons of different sexes, to live together in the state of matrimony until one of them shall die. In this aspect the contract is simply between two persons and binds only two. But another view may be taken: it may be considered as a contract affecting the public order, so that the public authorities are to be consulted as to the forms of its solemnization, and the causes and the proof needed for its dissolution.

Laws in force in a State are considered as forming a part of all contracts made during the existence of such laws. We may assume for this country, that there is no State in which it is not fundamental; that the willful violation of a contract in its essential particulars prevents the party who has violated it from enforcing it against the innocent party. Statutes which authorize the setting aside of contracts for their willful violation, or for fraud in their inception, come more properly within the police power, and as touching questions of morals and status, than as laws infringing a sound contract, and such laws are never thought to impair the obligation of a contract in the sense of the Constitution. The party who violates the contract is he who impairs it.

lie will ask the courts in vain to enforce what he himself has willfully destroyed. So, too, the innocent victim ought not to be bound, where the other party refuses to be bound. But suppose the State steps in and says of the contract of marriage: This matter respects the welfare of the State; it is the interest of the State that the family should not be broken up; the children must have a home; scandal must be prevented, and, therefore, the marriage tie must not be severed.

But here, again, other considerations may be interposed. In ordinary contracts, damages are given the innocent party to compensate for their violation. But money can not atone for the continued desecration of a home or restore a blasted life. Suppose a case where the husband maltreats the wife, and her home is made intolerable and her life a burden. To condemn her to live with the brute is to punish the innocent and reward the guilty. An involuntary life-long degradation worse than servitude is imposed on the unhappy wife for the vices of her husband. Such an administration of law is revolting to our sense of justice.

The above brief suggestions may indicate some of the difficulties which environ the complex questions which "our marriage and divorce laws" evoke.