Uniform Marriage and Divorce Laws

By HON. WALTER GEORGE SMITH, OF PHILADELPHIA

Mr. President, Ladies, and Gentlemen of the Ohio State Bar Association:

The conservatism of the legal profession has often been an obstacle to real reform, but we may well believe it has also been a barrier against ill-judged visionary and hasty schemes for settling the inevitable evils arising from the conflict of human passions. It is well known that the classical Commentaries of Blackstone, because of their excessive praise of the existing law of England at the time of their publication, provoked the protest of Bentham and were probably the cause of his directing his genius towards the reform of a law which had become moss-grown and in many respects a travesty of justice. By reason of the peculiar conditions arising from our social and political institutions, and especially the absence of an hereditary aristocracy charged with the responsibility of the management of large estates and with the duty of legislating in a House of Peers, the American people from the infancy of the Republic have been led, and sanely led, by lawyers. All of the constructive work of our political constitutions has come from them, and they are and must continue to be to a great extent the moulders of thought on all subjects involving the relations of men to each other with regard to their property rights and their responsibility to the state in the sphere of the domestic relations. There are few men possessed of property and occupying the position of heads of families who do not find it necessary sooner or later to be advised as to their duties and responsibilities by a lawyer, and the aggregate influence of the 100,000 active practitioners of law upon the habits of thought of the American communities is second only to that of the clergy.

Therefore, when lawyers meet together to consult about the duties resting upon them, individually and collectively, to seek remedies for existing evils in the administration of human justice, to increase the power of "The Gladsome Light of Jurisprudence," they must of necessity deal with problems of the most searching character. It has happened that the changing conditions of human life have made it necessary to amend the fundamental law which is supposed to contain all of the vital principles upon which depend the liberties of the people, and it will happen again. Before such a radical step is taken, it is for lawyers to say whether the powers of the legislature and the courts have been exhausted in their efforts to remedy an acknowledged evil.

The past century has brought about changes in the habits of life of all civilized people, and more especially those who dwell upon this continent, that could not possibly have been anticipated by those who laid the foundation of our institutions. With changed habits of life have come changed habits of thought. Institutions that have been interwoven in the fabric of political and social life have been questioned, their utility denied; the courage of theorists has not been daunted by anything, social or political, ethical or religious. The vigorous attack now being made on the institution of the family is the natural outcome of a gradually weakening religious faith, which has resulted from the loss of the old ideal of duty as the main purpose of life and the frank substitution of individual pleasure in its stead.

The purpose of this paper is to point out some proposed changes in the laws of the different states that will tend to correct some of the evils that have developed because of the peculiar structure of our dual system of government. The defects in our marriage laws are to a great, but not a controlling, extent the cause of the divorce evil. It lies deeper. It has come partly, no doubt, by reason of the gradual weakening of the ties of religion, and partly by reason of the growing tendency towards individualism, marked by the destruction

109

of the fiction of the law that husband and wife are in many respects but a single juridical person, and by the gradual recognition of woman's right to the ownership of her property, whether acquired by her labor or by inheritance. It is obvious to the most casual observer that a new and growing school of thought is attacking the old common law doctrine that marriage is monogamous and indestructible until the death of one of the parties, and is seeking to substitute for it the teaching that the ideal marriage is an equal partnership between persons of opposite sexes, to be dissolved at the will of either of them when the purposes for which it was formed are, or seem to be, impossible of attainment, the purposes being not necessarily the propagation of the race and the creation of a family life, but certainly always the individual pleasure and happiness of the participants.

The report of the Director of the Census of divorce statistics in the United States from 1887 to 1906 is impressive. It shows that, compared with the growth of population, the increase of divorces for the period between 1880 and 1900 has The total number of divorces been more than three-fold. during the twenty years from 1887 to 1906 was 945,625, whereas from 1867 to 1886 it was 328,716. The annual average in 1870 with a population of 38,558,371 shows divorces per 100,000 population to be twenty-nine. In 1905 the annual average with a population of 82,574,195 shows the divorces per population to be eighty-two.

A recent writer on this subject who seems to find himself in full accord with the new school of thought, Professor George E. Howard, of the University of Nebraska, after a careful examination of the statistics of the Census report,

says:

"Of a truth, to the serious student of social evolution the accelerated divorce movement appears clearly as an incident in the mighty process of spiritual liberation which is radically changing the relative positions of man and woman in the family and in society. Through a swift process of individualization for the sake of socialization

the corporate unity of the patriarchial family has been broken up or even completely destroyed. More and more wife and child have been released from the sway of the house-father and placed directly under the larger social control. The new solidarity of the state is being won at the expense of the old solidarity of the family. The family bond is no longer coercion, but persuasion.'

In other words, the old fashioned notion that the husband and father is the ruler of his family, that his wife and children owe him a peculiar and special allegiance and duty, is rapidly disintegrating, and in place of it there is to be some vague recognition of obligation to the community as represented by the state. How this is to be worked out in all its details does not yet appear. Whether we agree with their views, or not, we cannot be inattentive to the logic and courage with which the advocates of this doctrine pursue it to conclusions.

Certainly the highest test of any civilization is the treatment accorded to women. The cruelty of the Middle Ages was redeemed and its civilization lifted to the highest plane of spirituality in very many instances by the teaching of chivalry, which had its origin in the devotion of the Church to the Blessed Mother of God. Recognizing the absolute equality of the soul of a woman to that of a man, but carefully discriminating between her and his respective spheres of duty, nothing has done more for the amelioration of natural selfishness than the Christian teaching of the respective duties of man and woman towards each other, especially in the matrimonial relation. In modern times the pressure of circumstance, the artificial conditions of society brought about by the rapid increase of population, the growth of manufacturing industries, and many other causes, have made it necessary for women, especially in the United States, to become wagelearners, and it is one of the finest evidences of the inherent excellence of the American character that the tendency of legislation in all of the states has been to protect women

from injustice and oppression and to throw the aegis of the law over their natural weakness. It would seem that the divorce laws have been written especially with the idea of protecting women and saving them as far as possible from the consequences of a mistaken marriage. It would be vain in the present temper of the American people to attempt to argue against the existence of divorce laws or to have them repealed. Indeed, among those who reject the teachings of Christianity, and we cannot deny they are a large and influential class, the tendency sets more strongly towards divorce by mutual consent than towards restriction.

It might be thought that the purpose in view has been to some extent attained from the fact that 66 per cent. of divorce cases are brought by women. How far the tendency towards freer divorce will go before the masses realize that it is bringing about a revolution greater than any known among civilized people since the days of the Roman Empire, no one can predict. We may well believe that no human custom of habit of life, whether crystallized under the form of law, or not, can ever change the eternal law of nature which has made human beings, men and women, with different endowments, different limitations, and different capacities; nor will it ever be possible for human legislation to prevent the consequences that follow from a final act. The status of matrimony may be stripped of its incidents by the municipal law,but no decree of any court or act of legislature can restore the natural status of one who has been married to that of one who never has been married. Life is full of finalities and, as has been finely said, there is something tragic in everything that is final.

Without searching deeply after the causes, there has been a feeling of uneasiness for many years in the community as to the growth of divorce. It has been so abnormal in the United States as compared with all the countries of the world (except in Japan) that as early as 1879 the American Bar Association directed its attention to the subject and dealt with one evil at least that it seemed possible for the legal profession