Page:Popular Science Monthly Volume 23.djvu/243

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OUR MARRIAGE AND DIVORCE LAWS.

Although New York has experimented with both a prohibitory and a liberal policy of divorce, long years of experience have demonstrated that the peace and happiness of the family and the purity of public morals are best subserved by a restrictive policy; yet no State in the Union can boast of a larger personal freedom of its citizens, or a higher standard of intelligence and morality. The percentage of illiteracy is comparatively small; woman is held in the highest esteem, and on all school questions has the equal right of suffrage; she is better protected in her personal and property rights than elsewhere; and, so far as the domestic relations are concerned, no State has a happier or a more contented people. 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.

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. And so long as one of the parties to a marriage continues to reside in the State in which the contract was made, and under the protection of its laws, no other State, into which the other party may have removed for the purpose of obtaining a divorce, should assume jurisdiction of the contract, or change its terms, so as to annul it for any other cause than that which existed in the State where the contract was made, and then only after obtaining personal service upon the non-resident defendant. It is questionable, as a matter of individual right, whether any State into which the parties may have mutually agreed to remove should assume jurisdiction to set aside the marriage contract for any other cause than could be assigned in the State in which the contract was made. Certainly one State should respect the laws of another, as it would have its own laws respected by the other. But the question of jurisdiction and domicile in interstate divorce has perplexed the courts almost endlessly. The general principle of law that the domicile of the wife remains with or follows the husband is limited by the reasons on which it rests, and must be varied according to the circumstances of the case, so that for the purpose of divorce each party is said to have a separate domicile. When one of the parties removes into another State for the purpose of divorce, and, after gaining a legal residence there, commences proceedings for divorce, how can the court, if marriage is a contract, get personal service upon the defendant so as to affect the rights of this non-resident party? Or, if marriage is a status, and the court takes cognizance only of the condition of the plaintiff, it, the condition of