# Popular Science Monthly/Volume 23/September 1883/Our Marriage and Divorce Laws II

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* "OUR MARRIAGE AND DIVORCE LAWS."
By E. T. MERRICK.
AN article in the June number of "The Popular Science Monthly" for 1883, on the subject of "Our Marriage and Divorce Laws," it seems to me, is worthy of further notice.
We have no occasion to find fault with the picture which the writer draws of the divorce laws of many of the States. It is highly probable that the cause of the deplorable disregard of the binding force of the marriage tie, in certain of the Eastern States, must be sought for outside of the statute laws themselves. Laws or constitutions have but little value except public opinion demands their enforcement.
​When the universal sentiment of a free people is opposed to a statute, it might as well not be written; it is practically a dead letter. It therefore seems to be of little avail to contend about the adoption of laws distasteful to the community in which they are to be enforced, and little use in passing them. The only true mode of obtaining beneficial legislation is to educate the people, who are to enforce the laws among themselves, to understand their necessity or usefulness. Most communities, when left free to act, understand their own wants and necessities better than anybody else.
Still, it does not seem so absurd for intelligent and benevolent people of New York and New England to disturb themselves about the laws affecting the marriage relation of negroes with white people in the South (say in North and South Carolina, Alabama, and Virginia), as it would seem for a colored congregation, or a meeting of field hands in Louisiana, to pass resolutions condemning the divorce laws of Connecticut or Maine.
With the lawgiver, the contract of marriage—the most important of all contracts—may be supposed to rest upon the gravest considerations, and give rise to the most serious deliberations. He may well inquire:
1. What relations must be prohibited from marrying each other? 2. At how early an age may marriage be permitted, and what relations must be called upon to assent to the marriage of minors? 3. Ought the insane who have lucid intervals to be permitted to marry? 4. Are there any diseases—such as leprosy, elephantiasis, scrofula, or others—which ought to prevent the marriage of such diseased persons? 5. Ought marriage with inveterate drunkards to be prohibited? 6. Are there any crimes which ought to be considered as a bar to the marriage of the criminal? 7. Assuming, according to the prejudices of the largest number, that the white is the superior race, ought laws to be passed prohibiting marriage between white persons and Indians, negroes, Australians, or Chinese?
What will be the effect of such marriages on the welfare of the State? Will they drag down the assumed superior race, while they tend to build up the other race? Will such marriages offend the race prejudices alike of the black and white races? Or will such marriages be pleasing to the one race and displeasing to the other? Will not the violation of race prejudices by such marriages occasion unhappiness, and is there any advantage to the State to compensate the misery? What has been the result of the marriages of white women with negro men on the happiness of the wives and their offspring?
Such questions as these, it may be assumed, are in the mind and province of the Legislatures when marriage laws are framed, and who ​shall say that such grounds ought not to be considered? "When we bear in mind how difficult it is to pass laws through Congress, and how difficult it is to adopt uniform laws which do not operate harshly on some portion of our immense country, we may well question the advisability of amending the Constitution of the United States in order to put the subject of the marriage relation under the control of Congress. How many years has the Parliament of England been wrestling with the deceased-wife's-sister question!
So large a nation as ours, whether the laws are promulgated from Washington or the capitals of the several States, will always furnish the philanthropist with worry enough on a great variety of questions to make him comfortable, if not happy.
It is not probable that any laws which Congress could pass on the subject of marriage would be satisfactory to the advanced minority, and their passage would occasion the greater anxiety because such minority would suppose themselves in some manner directly responsible for the laws. It is, therefore, not at all strange that many of the State laws—such as those of Ohio, or Virginia, or Alabama, which prohibit marriage between the negro and white races—are supposed by people of other beliefs to contravene the fourteenth amendment of the Constitution of the United States. Hence, the writer of the article under consideration criticises the decisions of the Supreme Court of the United States for refusing to declare such laws null and void. He says the decision "abridges the privileges of a citizen on account of color; it denies the colored male citizen the equal privilege and protection of the law extended to the white male citizen—the right to marry a white woman. It denies the white female citizen the privilege and protection of the law granted the colored female citizen—the right to marry a colored man."
Perhaps the easiest way to set the matter right with those who might be inclined to think, from the adverse criticism, that the Supreme Court of the United States had erred, will be to state the facts of the case, and repeat what that high tribunal has said on the subject in the case of Tony Pace vs. Alabama, 106 United States Reports, pages 584, 585. Adultery and fornication, by section 4,184 of the Alabama code, are prohibited by a fine of one hundred dollars and imprisonment, with or without hard labor, in the county jail, for six months. Section 4,189 of the same code declares that, "if any white person and any negro, or the descendant of any negro to the third generation inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than seven years."
The provisions of the fourteenth amendment to the Constitution of the United States prohibit any State from making or enforcing ​any law "which shall abridge the privileges and immunities of citizens of the United States," or denying "to any person within its jurisdiction equal protection of the law." This amendment required congressional legislation to carry it into effect. It did not provide for its own execution. To give effect to the amendment, the famous Civil Rights Bill was passed in 1870, which is referred to in the opinion of the court.
In November, 1881, Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4,189 of the code of Alabama, and were convicted, and each sentenced to two years' imprisonment in the penitentiary. The State Supreme Court having affirmed the sentence, Pace sued out a writ of error to the Supreme Court of the United States. After full argument, through Mr. Justice Field, its organ, that court said: "The counsel of the plaintiff in error compares sections 4,184 and 4,189 of the code of Alabama, and assuming that the latter relates to the same offense as the former, and, prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a State from denying to any person within its jurisdiction the equal protection of the laws.
"The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating State legislation against any person or class of persons.
"Equality of protection under the law implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of Congress in the enactment of the Civil Rights Act of May 31, 1870, chap. 114, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every State and Territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares in section 16 that they "shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.
"The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense, for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person.
​"The two sections of the code are entirely consistent.
"The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4,184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4,189 applies the same punishment to both offenders, the white and the black.
"Indeed, the offense against which this latter section is aimed can not be committed without involving the persons of both sexes in the same punishment.
"Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same."
The writer of the article referred to thinks it is a great hardship that one eighth of the people of the United States are prohibited by law from marrying with the other seven eighths.
We think he is mistaken about the fact of prohibition, and that the legal prohibition is very far from universal in the several States. We think, further, that the general sentiment of the negro race, where they dwell in large bodies, is at present opposed to marriage between the races. At all events, such marriages rarely take place where they are legally permitted. Negroes certainly have a higher regard for persons of full blood of both races, and seem in the main entirely unconscious of the injuries which the laws of some of the States are supposed to inflict on them. If the laws are to be changed so they can intermarry in order to elevate the races, why should not some sentimental white people be sent out to Dahomey in order to elevate Africa by the same process?
Let us rest assured of one thing: If the colored race has any virtue in it, it will assert itself. Sturdy integrity, sturdy intelligent industry, and patience, will command respect and will be accorded consideration everywhere. I know of no instance in history where a people has attained eminence without exhibiting energy on its own part. All great peoples have earned their positions. Recognition of the African race, for all it is worth, will come (if it is not now here) in due time.
There is one other matter contained in the article under consideration which ought also to be noticed. It is therein supposed that Congress has power to pass a law declaring the "marriage contract" to be of that kind "within the meaning of the Constitution, which declares that no State shall pass any law impairing the obligation of contracts."
As legal minds are not yet readjusted to the "newer condition of ​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 looking 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 affecting 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.
Laws 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 prevents the party who has violated it from enforcing it against the innocent 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. The party who violates the contract is he who impairs it.
lie will ask the courts in vain to enforce what he himself has willfully 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 severed.
But here, again, other considerations may be interposed. In ordinary contracts, damages are given the innocent party to compensate 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 degradation 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.