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 look- 

 ing 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 affect- 

 ing 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. 



LaAvs 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 pre- 

 vents the party who has violated it from enforcing it against the inno- 

 cent 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. Hie party who violates the contract is he who im- 

 pairs it. 



lie will ask the courts in vain to enforce what he himself has will- 

 fully 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 sev- 

 ered. 



But here, again, other considerations may be interposed. In or- 

 dinary contracts, damages are given the innocent party to compen- 

 sate 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 degra- 

 dation 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. 



