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duties of such a post. This is so common and reasonable a regulation that it has never been questioned.?

The navigation of a vessel also requires some regulation by law to remove doubt and uncertainty, and to insure uniformity in the rules. The principal legal rules of navigation are those relating to the use of colored lights at night, the regulation of fog signals, and the rules for steering when two or more vessels come into close neighborhood. These regulations are designed to prevent collision, and a detailed discussion of them may be found in any work on shipping and admiralty. It is not necessary to mention them here. We are only concerned with a consideration of the constitutionality of such laws in general. This regulation by law of the rules of navigation consists chiefly in adopting as legal and binding rules those which had met with the approval of the best part of the marine world, and the object of the interference of the government is to secure fixity and uniformity. The constitutionality of these police regulations has never been questioned.

The navigation of a vessel in mid-ocean involves no special difficulty to any one who is at all skilled in navigation. But the entrance into a harbor does require a peculiar knowledge of the coast and of the currents in and out of the bay or river. It would, therefore, be reasonable to require all vessels, on entering a harbor, to be placed in charge of a licensed pilot, and, inasmuch as the law makes it obligatory upon the pilot to beat up and down the coast in search of vessels, which are bound for the port, it is held to be reasonable to compel the master or captain to accept the services of the first pilot who offers.?

1 See ante, $ 87, in respect to the police regulation of skilled trades and learned professions.

? Thompson v. Spraigue, 69 Ga. 409 (47 Am. Rep. 760). See Sherlock v. Alling, 93 U. S. 99. As to whether the United States or the States have the power to regulate the matter of pilotage, see post, 204.




SECTION 149. Marriage. a natural status, subject to police regulation

150. Constitutional limitations upon the police control of mar

riages. 151. Distinction between natural capacity and legal capacity. 152. Insanity as a legal incapacity. 153. The disability of infancy in respect to marriage. 154. Consanguinity and affinity. 155. Constitutional diseases. 156. Financial condition - Poverty. 157. Differences in race - Miscegenation. 158. Polygamy prohibited — Marriage confined to monogamy. 159. Marriage indissoluble — Divorce. 160. Regulation of the marriage ceremony. 161. Wife in legal subjection to the husband - Its justification. 162. Husband's control of wife's property. 163. Legal disabilities of married women.

$ 149. Marriage, a natural status, subject to police regulation. — Whatever may be one's views concerning the philosophical origin of the institution of marriage ; it matters not whether it is viewed as a divine institution and a sacrament, or as the natural result of the social and physiological forces; all are agreed that it has its foundations in nature, and is not a human contrivance. Mankind cannot be conceived as existing without this status, for the marital relation is co-existent with, and must have accompanied, the beginning of the creation. The natural element of marriage is discoverable in like relationships among mest, if not all, of the lower animals. It is, therefore, but a natural status, one that is brought into existence by natural forces, and cannot be successfully prevented or abolished. The natural status of marriage works for the good or woe of mankind, according as it is founded in purity and rests upon sound spiritual and physical foundations, or assumes a contrary character. The welfare of society is inseparably wrapped up with the success of the marital relations of its members : and ill-assorted marriages, marriages between persons who are either mentally or physically unfit to enter into the relation, will surely bring harm to society; while appropriate niarriages constitute the very foundation of society, and its welfare depends upon the fostering and encouragement of them. Indeed nations have often provided inducements to enter into the relation, at times when the general extravagance of the people deterred them from assuming the responsibilities of husband and wife. If, therefore, a happy marriage between competent parties redounds to the lasting benefit of society, and a marriage between persons, who through mental or physical deficiencies are incapable of contracting a happy marriage, produces harm to the State, surely the State is interested in promoting and encouraging the former, and discouraging and preventing the latter. The State may, therefore, institute regulations having that purpose in view, in the exercise of the ordinary police power. The right of the State to regulate marriages, determining the capacities of parties, and the conditions of marriage, has never been questioned. Indeed, it would be absurd to assert that the State could not prohibit polygamy, and deny the right of marriage to persons whose marriage, on account of their deficiencies, or on account of their near relationship to each other, is likely to be harmful to society in one or more ways. Mr. Bishop says:1 “ The idea, that any government could, consistently with the general well being, permit narriage to become merely a thing of bargain between men and women, and not regulate it by its own power, is too absurd to require refutation.” The tendency of modern thought is to recognize no limit to the power of the government to regulate marriage. Chief Justice Cockburn, in one case, said that the Parliament could deny the right of marriage altogether. It is not likely that others would go so far in recognition of the police power of the State, for it is generally conceded that marriage is “a thing of natural right,”'1 and cannot be denied except for some good legal reason. But it does not seem to be settled what are good reasons, and who shall determine what they are. Mr. Bishop says: “ Surely it (the government), will retain the right to regulate whatever pertains to marriage in its own way, and to modify the incidents of the relation from time to time as itself pleases.” ? And while he recognizes the natural right to marry, the only benefit derived from this recognition, is to throw all presumption in favor of the legality of the marriage, and requiring the courts to sustain the validity of a marriage, “ unless the legal rule which is set up to prevent this conclusion is distinct and absolute, or some impediment of nature intervenes.” 3 Judge Cooley admits that the State's control of marriage is not unlimited, but finds it difficult to determine the limitations. He says: “If the regulations apply universally and impartially, a question of constitutional law can scarcely arise upon them, for every independent State must be at liberty to regulate the domestic institutions of its people as shall seem most for the general welfare. A regulation, however, that should apply to one class exclusively, and which should not be based upon any distinction between that class and others which could be important to the relation, must be wholly unwarranted and illegal. This principle is conceded, but it is not easy to determine what regulation would come within it."'4

11 Mar. & Div., § 1

1 1 Bishop Mar. & Div., § 13; Cooley's Principles of Const. Law, p. 228.

2 1 Bishop Mar. & Div., $ 12. See, also, Pennoyer o. Neff, 95 U. S. 714. 3 1 Bishop Mar. & Div., $ 13. Cooley's Principle of Const. Laws 228.

$ 150. Constitutional limitations upon the police control of marriages. - It has been often asserted and explained in the preceding pages that the police power can only extend to the imposition of such restraints and burdens upon natural right as are calculated to promote the general welfare by preventing injury to others, individually or as a community. If this be the true limitation of police power generally, and the governmental regulation of marriage be conceded to be an exercise of police power, the constitutionality of a police regulation of marriage may be tested by determining whether the regulation is designed to, and does, prevent a threatening injury to society or to others. If there is no threatening injury and, so far as the judicial eye can discern, the regulation is arbitrary and unnecessary, the court would pronounce against the constitutionality of the regulation. Marriage being a natural right, one is deprived of his liberty and the pursuit of happiness if such a regulation is permitted to prevent his marriage. If it is only doubtful that the marriage would prove injurious to others or to society, it would, of course, be proper, in conformity with a general rule of constitutional construction, to solve the doubt in favor of the validity of the regulation. But in a clear case of arbitrary regulation, -i.e., where there is no threatening evil outcome of the marriage which the regulation is designed to prevent, it is clearly the duty of the court to declare the regulating law unconstitutional.

For the purpose of testing their constitutionality, regulations of marriage may be divided into those which are designed to prevent injury to society and to third persons, and those which are intended to afford protection to the parties to the contract of marriage. In order that a regulation may be constitutional, it must fall into one of these classes.

They may also be divided into the following classes : (1) Those which relate to the capacity of parties to enter

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