Page:Popular Science Monthly Volume 23.djvu/245

This page has been proofread, but needs to be validated.
233
OUR MARRIAGE AND DIVORCE LAWS.

its own, determine the relation of a citizen of another State to its laws? How can it impair the obligation of a contract or annul a status between parties, over one of whom it has no jurisdiction, and at the same time give "full faith and credit" to the "public acts" of the other State?

That Congress has the constitutional power to pass a law establishing uniform rules of marriage and divorce in the District of Columbia and all the Territories of the United States is beyond question. That it has not the power to pass a law establishing such rules throughout the United States can only be asserted. "Congress shall have power to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States"; and who can conceive of a person being more of a bankrupt in home and fortune than one who has a faithless wife or husband? Certainly in that view, with the marriage declared a contract within the meaning of the Constitution and its violation a species of bankruptcy, a general bankrupt law might give the courts jurisdiction to relieve a faithful husband or dutiful wife of the onerous conditions of a contract by the assignment of such assets as a worthless wife or husband to a generous and forgiving public.

There is another mode by which uniformity in the marriage and divorce laws of the States might be attained, whether the opinions of the judiciary could ever be harmonized or not, and that without impinging on the delicate question of State rights. Let Congress appoint commissioners to prepare a code of marriage and divorce laws for the District of Columbia and Territories of the United States, and invite each of the States to appoint a commissioner in its own behalf to unite with the commissioners appointed by Congress in forming a commission to codify and prepare a system of marriage and divorce, which, when passed by Congress and adopted by the several States, or any of them, shall have a uniform operation in the District of Columbia and Territories, and throughout the United States, or in those States adopting it. 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.

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. The spirit of the Constitution and the principles of interstate jurisdiction adjudicated under it have been insidiously directed,