Page:Popular Science Monthly Volume 23.djvu/241

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OUR MARRIAGE AND DIVORCE LAWS.

although the statute governing the transfer had not been complied with.

In these three States, and in most of the States, the laws regulating the solemnization of marriages except from their general provisions certain religious denominations. This exception was an early spasm of religious toleration, entirely out of date in this tolerant age. Marriage being a civil contract between two persons, its conditions should be performed by them, of whatever religious faith they may be, the same as they would have to perform the conditions of any other civil contract or legal obligation. The exception is anti constitutional, in establishing a religious distinction even as against the Catholic Church, which still holds marriage as a divine institution, and its celebration a sacrament of the Church. No such exception is made in the execution of any other legal contract or in favor of other religious sects, and no hardship or violation of conscience or religious belief could follow the abolition of this incongruity. 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; its conditions are for life, and continue until dissolved by death or divorce. Once it might have been considered to end with the solemnization, and to take on the form of a status, but that was in those days when on the "nuptial day" all the identity of the woman, her personality, individuality, right of property, and control of offspring, were merged in the man, and he became her lord and master, leaving her without the right of appeal to any civil authority for the redress of any wrong. But the barbarism of those days is fading away, and the light of a new civilization is dawning, though still confused here and there by old forms and prejudices. 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; and, while it is over-rigid in some States, in others its laxity almost neutralizes the fundamental idea of the continuance and perpetuity of the marriage obligation.

As a relic of that "peculiar institution," with its concubinal practice between whites and blacks, South Carolina preserves its old laws which allow no cause for divorce. In New York there is one cause