Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1878-10-23
Marriage and Divorce Legislation.


Marriage and Divorce Legislation.
A good divorce law cannot well be made
without clear understanding of the nature
Of marriage, for divorce sewers the bond
formed in marriage. 1t is our present pur-
pose to set forth the true idea of marriage,
and show how this limits divorce legislation.
We shall not discuss the subject at this time
from religious point of view but rather in
i secular aspects, and as it appears before
the state for legislation.
What is marriage, as it calls for legisla-
ton Is it contract, an agreement
bargain between two parties by which
something is undertaken to be done by
them ? Is it this only, and therefore sub
ject to the law of contracts ? Or is it a con-
tract at all, but rather state in which peo-
pie live ? Or, again, is it a contract and
something more, which additional some
thing partially or wholly removes it from
the sphere of mere contract? How far does
contract enter into it, and how much is
there of something else This is the
question.
The term marriage has two-fold use.
In its simpler meaning it denotes that act
or rite by which man and woman are
united for this life for the discharge of
those duties and the enjoyment of those
privileges which the laws of God and man
give them to perform and enjoy in the rela-
ton that follows.
In its second and more complex meaning
it includes, possibly, the act, but especially
the continued condition or state in which the
parties united live. To this latter thing,
which the lawyers call status of marriage"
we apply the term matrimony. The diction-
aries say that marriage is properly the act
which unites the two parties, and matrmony
the state into which they enter" The YER
mont General Statutes also observe this
distinction. We believe that it is en-
inenty useful in preventing confusion of
thought. Our wonder is that it has been
so little used in law books We shall use
the term marriage to denote the act, and re-
fer to the state by the word matrimony, or
Now let us examine this thing matri-
mony, whose bond divorce would dissolve
and thus destroy its being. What are its
essentials ? A most important fact meets
us at the outset, in that it is based in the
natural distinction of sex. The two parties
marriage must be persons of opposite
sexes and suitable age. Though we may
not forget the element of sex in souls and al.
low for whatever there may be of it, yet
after all allowance it remains that marriage
is based largely upon natural physical
distinction of the most marked character.
This union is for the period of the natural
life of one or both parties, that is, so long as
they are possessed of their natural bodies
An act called in our stricter use of the
word marriage brings the union to pass,
ushers the parties into the state of marriage,
in word, into matrmony. This act is in
the form of contract so far as it is an
agreement to do certain things.
But see the result of this contract. 1t is
matrimony, not copartnership. 1t is a union,
not confederacy. New terms of the great
est significance are applied. The man be,
comes husband; the woman wife. They
may become father and mother-parents, hav-
ing children and creating home. That is,
itisin their new relation that they constitute
family in the most proper meaning of the
word and the family is new element, an
integral part of the state different in kind
from the individual in the Scriptures they be
come one flesh. In the eye of the law these
persons lose their individuality and become
one person except so far as it is necessary to
recognize their individual accountability
One vote represents them at the polls, and
they sue and are sued in the courts practi
cally as one party. This is the rule of the
new condition. The exceptions are Incl
dental to their natural rights as individual
beings and of those things unessential tC
their union in matrimony. Matrimony con
shutting the family, is the source of society
and the basis of the state. Its springs feeC
the streams of social forces, and its sanctu
airy is the guardian and protector of the
morals of the people.
Marriage, then, is contract only so fa
as reference is made to the ACT by which thu
parties are joined together, and no farther
Its basis in sex, its duties and privileges, it
Transformation of the parties into new anC
higher relations differing in kind as well a
degree from their old relation, its who'll
effect upon the persons involved and upol
10 60
tract and make it the state of matrimony
Contract is only the door by which pei
sons enter into matrimony. 1t is as mis-
leading to call the state one of contract a
it would be to call house a door because W
use a door to get into the house.
This point ought to be settled beyon
cavil by the fact that the parties are boun
to each other by the laws of matrimon
and not by the words of the contract. TIL
precise language of the marriage ceremon
is never made, either in law or moral
the standard of the duties of matrimonl
Whether married by the ritual of the Epi
copal church, or in the simplest languag
of the Congregational and Baptist churche;
whether the man promises to support h
wife or not, or whether the woman promis,
to obey her husband or declines to obey,
of not the slightest consequence. The la
is the same for each and all. The contra
substantially ended with the marriage vows
the state began then and continues ev
after until death. Its only value now is
its evidence of the state.
Matrimony, then, whether we regard it
the state of marriage, or in its effect upC
the persons concerned in it, Or in its relatio
TO society and the state, 10 sui generis. II
an organic state 1t is more than a natul
relation. 1t is natural relation of an
ganie kind. 1t has vitality OF its own