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the law of marriage, in respect to the formality of its sol. emnization, as it was in all Christendom before the Council of Trent, which declared it to be a sacrament and enjoined a religious ceremony, viz. : that no particular ceremony is required, simply a valid contract in verba de præsenti, by which the parties assume to each other the relation and duties of husband and wife. And where statutes provide for the issue of a marriage license, they do not make the license necessary to the validity of the marriage, the only effect of the statute being that the minister or magistrate who performs the ceremony is subject to a fine, if he officiates in a case in which no license has been granted.' But the present state of the law furnishes no argument against the constitutionality of a statute which required some formal ceremony, subject to the exceptions and limitations already mentioned.


§ 161. Wife in legal subjection to the husband justification. — As a matter of abstract or natural justice,

the husband and wife must stand on a plane of equality; neither has the right of control, and both can claim the enjoyment of the same general rights. There are many conscientious people who think differently; but apart from the influence or teachings of the Bible on this subject, with every such person the thought is but the resultant of his desires and prejudices. Considering the married couple in a state of isolation, eliminating every influence they may exert upon other individuals, their offspring for example, or upon the general welfare of the State, the conclusion is irresistible, that any subjection by law of the wife to the commands of the husband would be a deprivation of the wife's liberty without due process of law, and, therefore,

1 See State o. Madden, 81 Mo. 421, in which the constitutionality of a law was contested and sustained, which made it a misdemeanor for any one to solemnize a marriage where the parties have not previously obtained a license.

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void under our constitutional limitations. And such would likewise be the conclusion, considering the couple in their relation to society and to their offspring, if the ideal marriage became the rule, and absolute harmony and compatibility of temper prevailed in every household. This is,

, however, at least for the present, an unattainable ideal. There are many individual couples, who have attained this ideal of the domestic relation, where each is “ solicitous of the rights of the other,” and where “ committing a trespass is “the thing feared, and not being trespassed against,” and self-sacrifice, not encroachment, the ruling principle. With such couples there is no subjection of the wife to her husband, and there is never any inequality of position, where the true, genuine sentiment of love inspires every act; for the subjection of one to the other is incompatible with the reign of love. But this is not always the case. Indeed, such a relation between husband and wife constitutes the exception, rather than the rule. In the words of Herbert Spencer," “ to the same extent that the triumph of might over right is seen in a nation's political institutions, it is seen in its domestic ones. Despotism in the State is necessarily associated with despotism in the family." The remnant of the savage within us still nurses the desire to rule, and the instinct of selfishness, when unchastened by the principles of altruism, is displayed in the dealings of husband with wife, as of man with man. Might is right, between whatever parties the question may arise. Left, therefore, in a state of nature, it will be a rare exception that the parties to a marriage will sustain an equality of rights ; as a general rule, one of them will be the ruler while the other will be the subject, sometimes submissive, but usually more or less rebellious. In most cases, in which this state of affairs exists at all, the contention and discord continue during life, unless before death a beneficent divorce law enables the parties to take leave of each other and go their way alone. Discord in the family destroys all the benefits that might be expected to accrue to the community, even if it does not amount to a positive breach of the peace. It demoralizes the offspring as well as the p:rties themselves ; and if by a regulation of their conduct towards each other the State could secure a reasonable degree of harmony, the result would justify the interference as tending to promote the general welfare. How shall this intercourse be regulated ? Shall the State require the maintenance of substantial equality between two people whom nature has endowed unequally, both mentally and physically? I do not mean in this connection to assert and defend the position, often taken, that women are essentially and radically inferior to men. I merely desire to make the statement, that as a general proposition the man rules, it may be by greater intellectual strength, or it may be by brute force, probably in most cases by the latter. It sometimes happens, but it is the exception, that the woman is the strongest, and she then rules, whatever the law might have to say upon the subject. The maintenance of a fictitious equality, one that is not the legitimate product of the social forces, by the mandate of the law, even if that were possible, and it is not, would not tend to increase harmony in the domestic relations. Left to themselves the stronger will rule, and the stronger will rule notwithstanding the law proclaims an equality. Harmony can only be approximated by legalizing the rule of the stronger, at the same time placing around it such safeguards as will secure for the weaker protection against the tyranny and cruelty of the stronger. The wife is not subjected by the law to the control of the husband, because the husband has a right to rule, but because he is generally the stronger, and will have the mastery even though the law might give the control to the weaker. If women were

1 Spencer's Social Statics, p. 188.

Social Statics, p. 179.

usually the stronger sex, the husbands would be in subjection to them, as they are now, when the husband finds more than his match in his wife. In the management of the things and interests which they hold in common, the husband rules by nature as by law.

Legalizing his natural control, the ancient law in many countries held him responsible to others for all the acts of trespass which the wife may commit. Even to this day, in most of the States, a husband is responsible to third persons for all wrongs against them committed by his wife; while he is to a certain extent responsible to the State for all the crimes committed by his wife in his presence. Whichever of these facts, the husband's control or his responsibility for his wife's acts, be considered the primal fact, the other must be the legitimate and necessary consequence. In proportion that his power of control is diminished, must his responsibility for her acts be lessened, until the happy era is reached, when there will be neither control nor responsibility. But wbat degree of control and responsibility is to be permitted is left to the legislative discretion.

§ 162. Husband's control of wife's property. Starting out with the proposition, that in the eye of the law husband and wife are looked upon as one person, a duality of which the husband is the head and legal representative, the legal personality being merged in that of her husband, the necessary logical consequence is that he acquires, either absolutely or during coverture, all the rights of property which she possessed, for rights can only be predicated of a. legal personality. For this reason, therefore, in the days when the study of law was an exercise in the rigid rules of logic, instead of an earnest effort to discover the means by which substantial justice may be meted out, the wife's property passed upon marriage, with herself, under the control of the husband. There were other reasons, which might have appeared important in the primeval days of the common law, and justified in the minds of the framers of the law this legal absorption by the husband of the wife's property, as well as herself. Under the early law as now, the husband was obliged to support the wife, and it was thought but fair that he should have the management and control of all the property that she might have, in consideration of this obligation to support. But probably the best reason for this rule may be found in the fact, that when the feudal system prevailed, there wereno obligations of citizenship, except such as arose out of the relation of lord and vassal in respect to the land which the latter may hold under the lord, and for which the vassal had to render services of various kinds, usually of such a nature that only a man could perform them. When, therefore, lands were acquired by a woman, by descent or otherwise, who subsequently married, her husband had to perform the services due to the lord, and it was but just that he should have the credit of it. The same reasons did not apply to personal property, but in this rude age personal property was inconsiderable ; and consisted chiefly of such that a married couple would use in common, bousehold goods and domestic animals, which after a long use in common with like property of the husband, would well nigh pass beyond the possibility of identification, and because of this difficulty the law gave to the legal representative of th duality all such property that was not capable of easy identification as constituting part of the wife's paraphernalia. These reasons are not presented as the justification of such a law at the present day. So grossly unjust has it been felt to be for years and centuries, that with the aid of equity's corrective influence over the common law, whereby the hard logic of the common law may be respected and yet substantial justice be within the reach of all, it has been

1 See Tiedeman on Real Property $ 20; 1 Washb. on Real Prop. 46, citing 3 Guizot Nat. Hist. Civ. 108.

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