A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
It appears, then, although in many cases the statutes are very
imperfect, that of the fifty-three states and territories twelve
have actually or nominally advanced the age of consent to eighteen;
one to seventeen; twenty-two to sixteen; two to fifteen; thirteen
to fourteen; while two still retain the low age of twelve and one
that of ten years. It should everywhere be raised to eighteen or
twenty-one--the age of legal majority for a woman in her business or
political relations--by a statute as rigorous as that of Idaho or
Kansas. A wide field for beneficent legislation therefore remains;
and, although morality "can not be legislated into a people," it is
precisely by wise measures of this character that the lawmaker can
render powerful aid in the creation of an environment favorable to
moral and social progress.
_c_) _Resulting character of divorce legislation._--What has just
been said regarding the function of social legislation applies
with special force to the laws relating to divorce. Here, as in
the case of marriage, there is a wide sphere of useful activity
for the lawmaker. He cannot, it is true, reach the root of the
matter: the fundamental causes of divorce which are planted
deeply in the imperfections of the social system--particularly in
false sentiments regarding marriage and the family--and which, as
will presently appear, can only be removed through more rational
principles and methods of education. He can, however, by carefully
drawn and uniform statutes render the external conditions--the
legal environment--favorable for the operation of the proper
remedy. In this sense it is possible to have "good divorce laws,"
just as we may have good charity laws, good laws for the check of
contagious diseases, or good laws in any department of remedial
social legislation.[735] So far as their ethical content is
concerned, good divorce laws, like any other, will not lead, but
must follow at some distance, the highest moral sentiment of the
community. They should, however, follow as closely as practicable
in order to secure the obedience of all. In this field it is highly
essential that the laws should be simple, certain, and uniform.
They should not from their very nature become a dead letter, or
even an encouragement to domestic discord, by offering opportunity
for evasion, collusion, or lax interpretation. Statutes which are
not in good faith executed, like those of France under the old
_régime_, are always a fruitful source of social disorder. They
tend to destroy the reverence for law itself. In this respect the
divorce laws of many of the states are still defective, although
decided progress has been made during the last twenty years. Within
this period the foundation of what may some time become a common and
effective divorce code for the whole Union has slowly been laid.
Little by little, as the detailed discussion already presented in
the seventeenth chapter reveals, more stringent provisions for
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