Читать книгу: «The Bay State Monthly, Volume 3, No. 1», страница 4

Honorable Stephen A. Douglas, in commenting upon the conduct of the State Department of 1849 and 1850, said: "When we surrendered this exclusive right we surrendered a great element of power, which in our hands would have been wielded in the cause of justice for the benefit of all mankind."

"But suppose," said Senator Clayton in reply, "that Great Britain and other European powers would not have consented to our exclusive control of a canal, in which they, as commercial nations, had as much, and more interest, that we had?"

"Well, then," in the language of Senator Douglas, "if Nicaragua desired to confer the privilege, as it appears she did, and we were willing to accept, it was purely an American question with which England or any other foreign power had no right to interfere, or claim to be consulted, no more than we could claim to be consulted when the Holy Alliance sought to establish the equilibrium of Europe. We were not consulted then, and in matters purely continental we have no occasion to consult them; and if England, or any other foreign power, should attempt to interfere, the sympathies of the rest of the civilized world would be with us."

The policy of England has always been an aggressive one. While for nearly seventy years she has professed a friendship and national harmony with the United States, she has not ceased to plant her colonies and establish sentry boxes on every sea-girt island, that she could control, within a short voyage of our coast; while she has Gibraltar to command the entrance to the Mediterranean, a garrison at the Cape of Good Hope to control the passage to the Indies, she also maintains on the Bahamas and the Bermudas, in her well-equipped garrisons, vigilant sentinels whose eyes are ever watching the western continent in obedience to the royal behest; and in the magnificent island of Jamaica she has established, and maintained at enormous expense, a fortified and well-garrisoned naval station, which practically controls the Caribbean sea, the Gulf of Mexico, Central America, and even the contemplated canal itself; and yet not content with all this readiness and armament for aggressive war, she creeps still nearer the coveted prize and on the Bay Islands, almost in sight of the proposed canal, she plants her royal banner, and holds the key as the mistress of the situation; so that in case of war between the two countries she is well prepared for a quick and vigorous blow at the life of this republic.

She may have no occasion for many years to strike such a blow, but she will wait in readiness; and woe be to that national simplicity which puts its faith in princes, and takes no heed for the future.

What, then, is the duty of this republic in regard to the Central American problem? Shall we abrogate the patriotic principles contained in the declarations of the Monroe doctrine, and confess that we have no definite American policy? Shall we withdraw from the honorable and patriotic position of defender and upholder of republicanism on this continent, and permit the royal wolves of devastation to run wild over our sister republics, because, forsooth, in an evil hour, we were led into an alliance which, under the name of a treaty, has embarrassed our action, clouded our judgment, and involved our self-respect? Shall the great American Nation, with its untold resources, its magnificent capabilities, and its sublime faith in the manifest destiny of this republic, calmly submit to the errors, mistakes, aye, blunders of its aforetime rulers, and under a mistaken sense of honor continue to be bound hand and foot by the terms of that pernicious treaty which might well be called the covenant of national disgrace?

I maintain that it is an utter impossibility for a treaty-making power to impose a permanent disability on the government for all coming time, which, in the very nature and necessity of the case, may not be outgrown and set aside by the laws of national progression, which all unaided will render nugatory and vain all the plans and intentions of men. In the language of Honorable Edward Everett, in his famous diplomatic correspondence with the Compte De Sartiges in relation to the Island of Cuba, in 1852, when asked to join England and France in a tripartite treaty, in which a clause was embodied forbidding the United States from ever acquiring or annexing that Island to this republic, "It may well be doubted, whether the Constitution of the United States would allow the treaty making power to impose a permanent disability on the American government for all coming time, and prevent it under any future change of circumstances from doing what has so often been done in the past. In 1803 the United States purchased Louisiana of France, and in 1819 they purchased Florida of Spain. It is not within the competence of the treaty-making power in 1852 effectually to bind the government in all its branches, and for all coming time, not to make a similar purchase of Cuba. There is an irresistible tide of affairs in a new country which makes such a disposition of its future rights nugatory and vain. America, but lately a waste, is filling up with intense rapidity, and is adjusting on natural principles those territorial relations which, on the first discovery of the continent, were, in a good degree, fortuitous. It is impossible to mistake the law of American progress and growth, or think it can be ultimately arrested by a treaty, which shall attempt to prevent by agreement the future growth of this great republic."

The good faith of this nation demands that we should live up to all our treaties and agreements, so far as it is possible to do so; but when in the course of events, and by reason of the fixed decrees of growth, we are not able to do so, then it becomes us, in honor and fairness to others, as well as to ourselves, to take immediate measures to modify, and if necessary entirely rescind them, let the consequences be what they may.

The genius of America is progressive, and the pluck and activity of the average American is unsurpassed. Who shall say, then, that Central America shall never become part of this Republic, which now increases its population over a million each year? What statesman shall now in the light of experience seek to bind this nation within the limits of a treaty, that these United States will not annex, occupy, or colonize any new territory? If the Nicaragua Canal shall ever be constructed, will not American citizens settle along its line, and Yankee enterprise colonize, and build Yankee towns, and convert that whole section into an American state? Will not American principles and American institutions be firmly planted there? And how long will it be before the laws of progress shall require us to extend our jurisdiction and laws over our citizens in Central America—even as we were obliged to do in Texas? Perhaps not in our day and generation, but in the words of the lamented Douglas, "So certain as this republic exists, so certain as we remain a united people, so certain as the laws of progress, which have raised us from a mere handful to a mighty nation, shall continue to govern our action, just so certain are these events to be worked out, and you will be compelled to extend your protection-in that direction. You may make as many treaties as you please, to fetter the limits of this great republic, and she will burst them all from her, and her course will be onward to a limit which I will not venture to prescribe. Having met with the barrier of the ocean in our western course, we may yet be compelled to turn to the North and to the South for an outlet."

With a distinctly American policy, such as the Father of his Country foreshadowed and advised, when in his farewell address he warned us against "entangling alliances with foreign powers;" such as President Monroe bequeathed to us in the declarations of the "Monroe Doctrine," we shall be more likely to achieve honor and renown; national prosperity and universal respect, than can ever be ours, while fettered and bound, by the galling chains of an entangling, unwise, and unfair treaty.

THE DIVORCE LEGISLATION OF MASSACHUSETTS

By Chester F. Sanger

There evidently exists just at the present time a great and increasing interest in the old and much debated subjects of divorce, and divorce legislation; an interest which is intensified as the population of our younger states with their widely varying laws governing this matter increases and the dangers and opportunities for fraud grow more apparent. Naturally enough, therefore, public attention is invited to these different laws of the several states of our Union, some allowing divorce for one cause, others refusing it upon the same ground, and one state, at least, refusing to grant a divorce for any cause whatever. The remedy for this seems to many to be a national divorce law, establishing in all the states a uniform mode of procedure and a uniform basis upon which all petitions for divorce must be grounded; it must also fix the status of the parties in every state and prescribe the several property rights of each after the entry of the judicial decree which separates them from a union, not of God, as some would try to teach, but often from fetters, the weight and horror of which are known to the parties alone, or to those, who, unlike our theoretical reformers, have had some practical experience in the actual operation of our divorce courts.

While it is a fact, overlooked by the enthusiasts on this subject, that no such national law can be passed without an amendment to the constitution, since the passage of such an act would be an invasion of the rights reserved to the several states; yet in view of this widespread interest in the question, the development and present condition of the laws regulating divorce in our own Commonwealth becomes an interesting matter of inquiry. While such a discussion has little or nothing to do directly with the moral aspects of the subject, it is well to note in passing that the doctrine of the indissolubility of the marriage relation was not made a tenet of the church until as late as 1653. The Mosaic Law made the husband the sole judge of the cause for which the woman might lawfully be "put away," and many Bibical scholars of great attainments have maintained that when rightly interpreted the words of Christ do not restrict divorce to the single cause of actual adultery, while elsewhere in the New Testament divorce for desertion is expressly sanctioned.

The Roman Catholic Church, while it pronounced the marriage tie indissoluble, at the same time reserved to the Pope the right to grant absolute divorce, a right which was often exercised for reward, while her Ecclesiastical Courts in the meantime declared many marriages null and void upon so-called impediments established solely upon the confession of one or the other of the parties seeking divorce. This course is hard to explain satisfactorily if we admit a sincere belief in the justice of her own dogma. It was from this practice of the Church that came the custom of granting partial divorce, or, as it was termed, divorce from bed and board—a divorce which was one only in name, and made a bad matter worse, surrounding both parties with temptations, and being, as it has been said, an insult to any man of ordinary feelings and understanding. It was, to be sure, an attempt to comply with the established doctrine of the Church, but it was a compromise with common-sense. To this same source may be traced the curious procedure in England, known as a suit for the restoration of conjugal rights, wherein a husband or wife, who, being unable to obtain a a genuine divorce, had separated from his or her partner for cause, might be compelled by the power of the law to return to the "bliss too lightly-esteemed."

There is one state in our Union in which, as one of her Judges puts it, "to her unfading honor," not a single divorce has been granted for any cause since the Revolution. But the fact remains, not so much to her unfading honor, perhaps, that she has found it necessary to regulate by statute the proportion of his property which a married man may bestow upon his concubine, while at the same time adultery is not an indictable offence. Another of her Judges has said from the bench, "We often see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and wives still."

This judicial utterance makes an excellent basis for the statement that it is better to adapt the law to facts as we find them, than to proceed on the principle that as there is no redress called for save where there is a wrong, if we do not allow the redress, there will, of course, be no wrong. There is no escape from the conclusion that divorce or irregular connections will prevail in every community; why not agree with Milton that honest liberty is the greatest foe to dishonest license?

When the founders of the new Commonwealth came to these shores they brought with them of necessity the laws of the mother country, and so we shall find that the divorce laws of England, as they existed at that time, were the early laws of the colonies of Plymouth and Massachusetts Bay. The Ecclesiastical courts of England were invested with full jurisdiction of all matters of divorce, but from about the year 1601 they had steadily refused to grant an absolute divorce for any cause whatever, although they as constantly granted divorce from bed and board, allusion to which has already been made; that is, they decreed a judicial separation of man and wife, which freed the parties from the society of each other, but at the same time left upon them all the obligations of the marriage vow as to third parties. Finally, when divorce was sought for cause of adultery, resort was had to parliament, and in 1669 an absolute divorce for that cause was granted by that body for the first time. This mode of procedure was, of course, a most expensive one, and during the seventeenth century but three decrees absolute were granted, the parties in each belonging to the peerage and the cause being the same.

In cases arising in the early history of the colonies we should therefore expect to find the law as I have briefly sketched it as existing in England, and as there were then no courts exercising the functions of the Ecclesiastical Courts we might safely look for the exercise of these powers by the Court of Deputies, or General Court, which was at that time not simply a deliberative body, but also a court of most extensive and varied jurisdiction, in matters both civil and criminal. This was precisely the fact; the records show that in 1652 Mrs. Dorothy Pester presented to the General Court her petition for leave to marry again, giving as her reason the fact that her husband had sailed for England some ten years before, and had not been heard from since. The court decreed that liberty be granted her to marry, "when God in his providence shall afford her the opportunity." In 1667 the same court refused to grant a like petition, for the reason that they were not satisfied by the evidence that the husband had not been heard from for three years.

One year prior to this appears the first record of a divorce in the Plymouth colony, which, taken in connection with the two cases just referred to, throws a bright light on the unwritten laws then regulating this matter. Elizabeth, wife of John Williams, appeared with a petition asking for a divorce, and complaining of her husband because of his great abuse of, and "unaturall carryages towards her, in that by word and deed he had defamed her character and had refused to perform his duty towards her according to what the laws of God and man requireth." Her husband appeared and demanded trial of the issue by jury, who found the complaint to be just and true. Thereupon the deputies "proseeded to pase centance" against him as follows: "that it is not safe or convenient for her to live with him and we doe give her liberty att present to depart from him unto her friends untill the court shall otherwise order or he shall behave himself in such a way that she may be better satisfyed to returne to him againe." He must also "apparell her suitably at present and provide her with a bed and bedding and allow her ten pounds yearly to maintaine her while she shall bee thus absent from him," and to ensure the faithful performance of the decree of the court he must "put in cecurities" or one third of his estate must be secured to her comfort. As he has also defamed his wife and otherwise abused her, it is further decreed that he must stand in the market place near the post, with an inscription in large letters over his head which shall declare to all the world his unworthy behavior towards his wife. And as though the poor man was not yet sufficiently punished they go on to say that "Inasmuch as these his wicked carriages have been contrary to the lawes of God and man, and very disturbing and expensive to this government, we doe amerce him to pay a fine of twenty pounds to the use of the Colonie." One is inclined to think upon reading this rather severe "centance" that if the law of our day was somewhat similar the divorce docket would not be so long as at present.

I have cited this case at considerable length for the reason that it shows that the divorces then granted, even in aggravated cases, were from bed and board, and that the right of the wife to a certain portion of the property of her husband was recognized and enforced. The other cases show that cruel and abusive treatment and absence unexplained for the term of three years were then as now considered good grounds on which to seek separation.

The first legislation in our state bearing directly on our subject appears to have been in 1692, when it it was provided that all controversies concerning marriage and divorce should be heard and determined by the Governor and Council, thus changing simply the tribunal without affecting the existing laws. Curiously enough, although the tribunal which should determine the controversies was thus fixed, there was no provision made for enforcing its decrees, and it was thus left practically powerless for sixty-two years, or until 1754, when this defect in the law was remedied by a provision that refusal or neglect to obey the decrees of the Governor and Council might be punished like contempt of courts of law and equity by imprisonment.

In 1693 were passed the first statutes regulating the subject of marriage in the colony, the preamble to which was as follows: "Although this court doth not take in hand to determine what is the whole bredth of the divine commandment respecting marriage, yet, for preventing the abominable dishonesty and confusion which might otherwise happen," certain marriages are declared to be unlawful and the issue thereof illegitimate, and severe and degrading punishments are provided for all offenders, even although innocent of any wrong intent.

As the population of the colony increased and spread over the country at a distance from Boston, the fact that the only court having jurisdiction of matters of divorce and marriage was held only in that town was the cause of ever-increasing inconvenience, and accordingly it was enacted in 1786 that "whereas, it is a great expense to the people of this state to be obliged to attend at Boston upon all questions of divorce, when the same might be done within the counties where the parties live, and where the truth might be better discovered by having the parties in court," jurisdiction in all matters of divorce should be vested in the Supreme Judicial Court, where it has ever since remained in spite of efforts made at various times to give to other courts concurrent or even exclusive jurisdiction. As the Supreme Judicial Court is now overworked, and as it is not deemed advisable, for various reasons, to increase its numbers, it is more than probable, in view of the increase in the number of libels annually filed, that some modification of our laws will soon be made which shall give the entire jurisdiction of this matter either to the Superior Court or to the Judges of Probate in the several counties. Governor Robinson called the attention of the Legislature to the importance of some change in this direction in his last message, and urged speedy action.

The act of 1786, above alluded to, fixed the causes of divorce at two—adultery or impotency of either of the parties, but allowed a divorce from bed and board for extreme cruelty. To this was added in 1810 the further cause of desertion, or refusal to furnish proper support to the wife. To the two causes above named the Legislature of 1836 added a third, namely, the imprisonment of either party for the term of seven years or more at hard labor.

In 1698 it had been provided that in case of three years' absence at sea, when the voyage set out upon was not usually of more than three months' duration, the man or woman whose relation was in this way parted from him might be considered single and unmarried. In 1838 wilful desertion for five years was added to the then existing causes for absolute divorce, in favor of the innocent party, and in 1850 yet another cause was added by providing that if either party separated from the other and for three years remained united with any religious sect or society believing or professing to believe that the relation of husband and wife is void and unlawful, a full divorce might be granted to the other.

The law remained thus for ten years, or until the adoption of the General Statutes in 1860, when desertion for five years was made ground for granting a divorce to the deserting party also, provided it could be shown that such desertion was due to the cruelty of the other, or in case of the wife, to the failure of the husband to properly provide for her. Divorce from bed and board was also authorized for extreme cruelty, complete desertion, gross and confirmed habits of intoxication, if contracted after the marriage, and neglect of the husband to provide for his wife. Such limited divorces might be made absolute after five years' separation, on petition of the party to whom the divorce was granted, and after ten years on that of the guilty party. There was no change in these laws until 1870, when limited divorce, a relic of churchly superstition, was done away with entirely in this State, the grounds upon which it had been granted being at the same time made cause for absolute divorce, with the condition, however, that all such divorces should be in the first instance nisi, that is, conditional, to be made absolute after three years in the discretion of the court, and after five years as of right. Prior to this time, in 1867, it had been enacted that all decrees of divorce should be first entered nisi, to be made absolute in six months in the discretion of the court, and this act of 1870 therefore left nine causes for absolute divorce; but in all cases for cruelty, desertion, intoxication, or neglect or refusal to support, the decree must remain conditional for at least three years. Since that date there have been many changes in the statutes, but all in the direction of regulating the entry of the decree, without affecting the causes therefor, except that in 1873, habits of intoxication, even if contracted before marriage, were made good grounds for a decree.

The law of 1841, which remained in force until 1853, forbad the marriage of the party for whose fault divorce was granted during the lifetime of the innocent partner; but in the latter year the court was authorized to allow the guilty party, except in cases of adultery, to remarry; and in 1864 it was provided that even in such cases the guilty one might marry after three years, unless actually tried and convicted of the crime. In 1873 even this restriction of three years was removed, and the law remained so until 1881, when it was enacted that the guilty party in all cases might marry after two years without the formality of applying to the court for leave so to do.

From this brief review of the history of our law there is but one conclusion to be drawn, that slowly but surely the doors to divorce have been opened until it has become a comparatively easy matter to obtain that relief which for so many years was absolutely refused. A few statistics will illustrate this: In the year 1863 there were in the state 10,873 marriages and 207 divorces; in 1882 there were 17,684 marriages and 515 divorces, or an increase in the former of 62.6 per cent., and of the latter of 147.6 per cent., while the population of the state increased in the same time 53.4 per cent. Since the legislation of 1870, which, as we have seen above, made divorce obtainable on nine grounds, the increase in the number of decrees granted has been 36 per cent., while in the same period marriages have increased but 20 per cent.

During this twenty years 79 per cent. of all divorces granted were for adultery and desertion, and of those granted for the first-mentioned cause only a trifle over one-half were for the fault of the man; while, contrary to a widely-prevalent belief, the record shows that of the decrees entered for that cause the proportion is greater in the country districts than in our cities. In the same period the highest ratio of divorce to marriage has been one to twenty-three, and the lowest one to thirty-three, the average for the whole time being one to thirty-one; but in Suffolk County, comprising the cities of Boston and Chelsea and the towns of Winthrop and Revere, the average has been only one to forty-one and nine-tenths. These statistics are indeed startling, and may be easily used as a foundation for an argument that our laws governing the matter are far too lenient, since the number of divorces is so apparently excessive.

But on the other hand is it not as fair an inference from all the facts, that beyond and deeper than any provisions of the law there is something wrong in society itself; that we must look for the real root of the trouble in the influences which are operating upon our social life as a people? Our Judges who administer the law are learned, of great experience in the matter of weighing evidence, careful and conscientious. The laws are carefully framed to prevent collusion between the parties, and especially to render it difficult to obtain a divorce for the groundless desertion of the party seeking the separation; in fact they are far in advance of the laws of many of our sister states, and it has been truly said that the divorce laws of this Commonwealth have kept pace with the improved understanding of the condition of the people, and have been wisely framed to meet the many causes which exist in modern life to break up the domestic relations.

There is not one of our statutory causes for divorce which could be stricken out without a certainty of inflicting legal cruelty in the future. Of all our divorces nearly seventy per cent, are upon petition of the wife; and it can be safely said that nearly all will agree that to compel a woman to submit to the cruelty and brutalities of a drunken or profligate husband, is not only inflicting upon her legal cruelty, but has an influence which extends beyond the individual and is powerful for evil upon those who are to come after us.

Strangely enough as our educational advantages have increased, as more avenues of self support have been opened to women, so has the ratio of divorce to marriage also grown larger, thus apparently furnishing conclusive proof that it is not legislative reform that is now needed. It is not necessary to argue that no legislation can operate in any way to strengthen those family ties which have their foundation in the social and domestic affections. On the other hand, any thing in the direction of education of the young tending to strengthen love of home and domestic life, and to do away with the prevalent tendency to what has been termed individualism, will be a step in the right path and will aid in lessening the evils which so many wrongly ascribe to faulty legislation. If any further proof of this fact is needed it is found in the knowledge that by far the larger part of the seekers for relief come from our native population, while none but those who have some practical experience in the realities of the divorce court room can know how intolerable are the burdens from which this relief is sought.