A territorial statute of Oregon, passed in 1852, dissolving the
bonds of matrimony between husband and wife, the husband being at
the time a resident of the territory, was an exercise of "the
legislative power of the territory upon a rightful subject of
legislation," according to the prevailing judicial opinion of the
country and the understanding of the legal profession at the time
when the act of Congress establishing the territorial government
was passed, August 14, 1848, 9 Stat. 323. The general practice in
this country of legislative bodies to grant divorces stated.
The granting of divorces being within the competency of the
legislature of the territory, its motives in passing the act in
question cannot be inquired into. Having jurisdiction to legislate
upon the status of the husband,
Page 125 U. S. 191
he being a resident of the territory at the time, the validity
of the act is not affected by the fact that it was passed upon his
application, without notice to or knowledge by his wife, who, with
their children, had been left by him two years before in Ohio under
promise that he would return or send for them within two years.
Marriage is something more than a mere contract, though founded
upon the agreement of the parties. When once formed, a relation is
created between the parties which they cannot change, and the
rights and obligations of which depend not upon their agreement,
but upon the law, statutory or common. It is an institution of
society, regulated and controlled by public authority. Legislation,
therefore, affecting this institution and annulling the relation
between the parties is not within the prohibition of the
Constitution of the United States against the impairment of
contracts by state legislation.
Nor is such legislation prohibited by the last clause of Article
2 of the Ordinance of the Northwest territory, declaring that
"No law ought ever to be made or have force in said territory
that shall in any manner whatever interfere with or affect private
contracts or engagements
bona fide and without fraud,
previously formed,"
which clause was, by the organic act of Oregon, enacted and made
applicable to the inhabitants of that territory.
Under the Oregon Donation Act, 9 Stat. 496, c. 76, the statutory
grant took effect as a complete grant only on the termination of
the four years' term of residence and cultivation, and the wife of
a resident settling under the act as a married man, who was
divorced from him after the commencement of his settlement, but
before its completion, took no interest under the act in the title
subsequently acquired by him. He had, previous to that time, no
vested interest in the land, only a possessory right -- a right to
remain on the land so as to enable him to comply with the
conditions upon which the title was to pass to him.
The case, as stated by the Court, was as follows:
This is a suit in equity to charge the defendants, as trustees
of certain lands in King County, Washington Territory, and compel a
conveyance thereof to the plaintiffs. The lands are described as
lots 9, 10, 13, and 14, of section 4, and lots 6, 7, 8, and 9, of
section 5, in township 24 north, range 4 east, Willamette meridian.
The case comes here on appeal from a judgment of the supreme court
of the territory sustaining the defendants' demurrer and dismissing
the complaint. The material facts as disclosed by the complaint are
briefly these:
In 1828, David S. Maynard and Lydia A. Maynard intermarried in
the State of Vermont, and lived there together
Page 125 U. S. 192
as husband and wife until 1850, when they removed to Ohio. The
plaintiffs, Henry C. Maynard and Frances J. Patterson, are their
children and the only issue of the marriage. David S. Maynard died
intestate in the year 1873, and Lydia A. Maynard in the year 1879.
In 1850, the husband left his family in Ohio and started overland
for California, under a promise to his wife that he would either
return or send for her and the children within two years, and that
the meantime he would send her the means of support. He left her
without such means, and never afterwards contributed anything for
her support or that of the children. On the 16th of September
following, he took up his residence in the territory of Oregon, in
that part which is now Washington Territory, and continued ever
afterwards to reside there. On the 3d of April, 1852, he settled
upon and claimed, as a married man, a tract of land of 640 acres,
described in the bill, under the Act of Congress of September 27,
1850, "creating the office of surveyor general of public lands in
Oregon, and to provide for the survey, and to make donations to
settlers of the said public lands," and resided thereon until his
death. On the 22d day of December, 1852, an act was passed by the
legislative assembly of the territory purporting to dissolve the
bonds of matrimony between him and his wife. The act is in these
words:
"An act to provide for the dissolution of the bonds of matrimony
heretofore existing between D. S. Maynard and Lydia A. Maynard, his
wife."
"SEC. 1. Be it enacted by the Legislative Assembly of the
Territory of Oregon that the bonds of matrimony heretofore existing
between D. S. Maynard and Lydia A. Maynard be, and the same are
hereby, dissolved."
"Passed the House of Representatives, December 22, 1852."
"B. F. HARDING"
"
Speaker of the House of Representatives"
"Passed the council, December 22, 1852"
"M. P. DEADY"
"
President Council"
Page 125 U. S. 193
The complaint alleges that no cause existed at any time for this
divorce; that no notice was given to the wife of any application by
the husband for a divorce, or of the introduction or pendency of
the bill for that act in the legislative assembly; that she had no
knowledge of the passage of the act until July, 1853; that at the
time she was not within the limits or an inhabitant of Oregon; that
she never became a resident of either the Territory or State of
Oregon, and that she never in any manner acquiesced in or consented
to the act, and the plaintiffs insisted that the legislative
assembly had no authority to pass the act; that the same is
absolutely void, and that the parties were never lawfully
divorced.
On or about the 15th of January, 1853, the husband, thus
divorced, intermarried with one Catherine T. Brashears, and
thereafter they lived together as husband and wife until his death.
On the 7th of November, 1853, he filed with the Surveyor General of
Oregon the certificate required under the donation Act of September
27, 1850, as amended by the act of the 14th of February, 1853,
accompanied with an affidavit of his residence in Oregon from the
16th of September, 1850, and on the land claimed from April 3,
1852, and that he was married to Lydia A. Maynard until the 24th of
December, 1852, having been married to her in Vermont in August,
1828. The notification was also accompanied with corroborative
affidavits of two other parties that he had, within their
knowledge, resided upon and cultivated the land from the 3d of
April, 1852.
On the 30th of April, 1856, he made proof before the register
and receiver of the land office of the territory of his residence
upon and cultivation of his claim for four years, from April 3,
1852, to and including April 3, 1856. Those officers accordingly,
in May following, issued to him, and to Catherine T. Maynard, his
second wife, a certificate for the donation claim, apportioning the
west half to him and the east half to her. The certificate was
afterwards annulled by the Commissioner of the General Land Office
on the ground that as it then appeared, and was supposed to be the
fact,
Page 125 U. S. 194
Lydia A. Maynard, the first wife, was dead, and that her heirs
were therefore entitled to half of the claim.
On a subsequent hearing before the register and receiver, the
first wife appeared, and they awarded the east half of the claim to
her and the west half to the husband. From this decision an appeal
was taken to the Commissioner of the General Land Office, and from
the decision of that officer to the Secretary of the Interior. The
Commissioner affirmed the decision of the register and receiver so
far as it awarded the west half to the husband, but reversed the
decision so far as it awarded the east half to the first wife,
holding that neither wife was entitled to that half. He accordingly
directed the certificate as to the east half to be cancelled. The
Secretary affirmed the decision of the Commissioner, holding that
the husband had fully complied with all the requirements of the law
relating to settlement and cultivation, and was therefore entitled
to the west half awarded to him, for which a patent was accordingly
issued. But the Secretary also held that at the time of the alleged
divorce, the husband possessed only an inchoate interest in the
lands, and whether it should ever become a vested interest depended
upon his future compliance with the conditions prescribed by the
statute; that his first wife accordingly possessed no vested
interest in the property. He also held that the second wife was not
entitled to any portion of the claim, because she was not his wife
on the first day of December, 1850, or within one year from that
date, which was necessary, to entitle her to one-half of the claim
under the statute, and the plaintiffs insist that the decision of
the Commissioner and Secretary in this particular is erroneous and
founded upon a misapprehension of the law.
Subsequently the east half of the claim was treated as public
land, and was surveyed and platted as such under the direction of
the Commissioner of the General Land Office. The defendants Hill
and Lewis, with full knowledge, as the bill alleges, of the rights
of the first wife, located certain land scrip known as Porterfield
land scrip, upon certain portions of the land, and patents of the
United States were issued to
Page 125 U. S. 195
them accordingly, and they are applicants for the remaining
portion. The complaint alleges that the other defendant, Flagg,
claims some interest in the property, but the extent and nature
thereof are not stated.
Upon these facts, the plaintiffs claim that they are the
equitable owners of the lands patented to the defendants Hill and
Lewis, and that the defendants are equitably trustees of the legal
title for them. They therefore pray that the defendants may be
adjudged to be such trustees and directed to convey the lands to
them by a good and sufficient deed, and for such other and further
relief in the premises as to the court shall seem meet and
equitable.
To this complaint the defendants demurred on the ground that it
did not state facts sufficient to constitute a cause of action. The
court sustained the demurrer and gave judgment thereon in favor of
the defendants. On appeal, the supreme court of the territory came
to the same conclusion -- that the complaint did not state a
sufficient cause of action, that no grounds for relief in equity
appeared upon it, and that the defendants' demurrer should be
sustained. Judgment was accordingly entered that the complaint be
dismissed. To review this judgment the case is brought to this
Court.
Page 125 U. S. 203
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
As seen by the statement of the case, two questions are
presented for our consideration: first, was the act of the
Legislative Assembly of the Territory of Oregon of the 22d of
December, 1852, declaring the bonds of matrimony between David S.
Maynard and his wife dissolved, valid and effectual to divorce the
parties?, and second, if valid and effectual for that purpose, did
such divorce defeat any rights of the wife to a portion of the
donation claim?
The Act of Congress creating the territory of Oregon and
establishing a government for it, passed on the 14th of August,
1848, vested the legislative power and authority of the territory
in an assembly consisting of two boards, a Council and a House of
Representatives. 9 Stat. c. 177, § 4. It declared that the
legislative power of the territory should "extend to all rightful
subjects of legislation not inconsistent with the Constitution and
laws of the United States," but that no law should be passed
interfering with the primary disposal of the soil; that no tax
should be imposed upon the property of the United States; that the
property of nonresidents should not be taxed higher than the
property of residents, and that all the laws passed by the assembly
should be submitted to Congress, and, if disapproved, should be
null and of no effect. It also contained various provisions against
the creation of institutions for banking purposes or with authority
to put into circulation notes or bills, and against pledging the
faith of the people of the territory to any loan. These exceptions
from the grant of legislative power have no bearing upon the
Page 125 U. S. 204
questions presented. The grant is made in terms similar to those
used in the act of 1836, under which the Territory of Wisconsin was
organized. It is stated in
Clinton v.
Englebrecht, 13 Wall. 444, that that act seemed to
have received full consideration, and from it all subsequent acts
for the organization of territories have been copied, with few and
inconsiderable variations. There were in the Kansas and Nebraska
Acts, as there mentioned, provisions relating to slavery, and, in
some other acts, provisions growing out of local circumstances.
With these and perhaps other exceptions not material to the
questions before us, the grant of legislative power in all the acts
organizing territories since that of Wisconsin was expressed in
similar language. The power was extended "to all rightful subjects
of legislation," to which was added in some of the acts, as in the
act organizing the Territory of Oregon, "not inconsistent with the
Constitution and laws of the United States," a condition
necessarily existing in the absence of express declaration to that
effect.
What were "rightful subjects of legislation" when these acts
organizing the territories were passed is not to be settled by
reference to the distinctions usually made between legislative acts
and such as are judicial or administrative in their character, but
by an examination of the subjects upon which legislatures had been
in the practice of acting with the consent and approval of the
people they represented. A long acquiescence in repeated acts of
legislation on particular matters is evidence that those matters
have been generally considered by the people as properly within
legislative control. Such acts are not to be set aside or treated
as invalid because, upon a careful consideration of their
character, doubts may arise as to the competency of the legislature
to pass them. Rights acquired or obligations incurred under such
legislation are not to be impaired because of subsequent
differences of opinion as to the department of government to which
the acts are properly assignable. With special force does this
observation apply when the validity of acts dissolving the bonds of
matrimony is assailed, the legitimacy of many children, the peace
of many families, and the settlement of many estates depending
Page 125 U. S. 205
upon its being sustained. It will be found from the history of
legislation that while a general separation has been observed
between the different departments, so that no clear encroachment by
one upon the province of the other has been sustained, the
legislative department, when not restrained by constitutional
provisions and a regard for certain fundamental rights of the
citizen which are recognized in this country as the basis of all
government, has acted upon everything within the range of civil
government.
Loan Association v.
Topeka, 20 Wall. 655,
87 U. S. 663.
Every subject of interest to the community has come under its
direction. It has not merely prescribed rules for future conduct,
but has legalized past acts, corrected defects in proceedings, and
determined the status, conditions, and relations of parties in the
future.
Marriage, as creating the most important relation in life, as
having more to do with the morals and civilization of a people than
any other institution, has always been subject to the control of
the legislature. That body prescribes the age at which parties may
contract to marry, the procedure or form essential to constitute
marriage, the duties and obligations it creates, its effects upon
the property rights of both, present and prospective, and the acts
which may constitute grounds for its dissolution.
It is conceded that to determine the propriety of dissolving the
marriage relation may involve investigations of a judicial nature,
which can properly be conducted by the judicial tribunals. Yet such
investigations are no more than those usually made when a change of
the law is designed. They do not render the enactment, which
follows the information obtained, void as a judicial act because it
may recite the cause of its passage. Many causes may arise,
physical, moral, and intellectual -- such as the contracting by one
of the parties of an incurable disease like leprosy, or confirmed
insanity, or hopeless idiocy, or a conviction of a felony, which
would render the continuance of the marriage relation intolerable
to the other party and productive of no possible benefit to
society. When the object of the relation has been thus defeated and
no jurisdiction is vested in the judicial tribunals to grant a
divorce,
Page 125 U. S. 206
it is not perceived that any principle should prevent the
legislature itself from interfering and putting an end to the
relation in the interest of the parties as well as of society. If
the act declaring the divorce should attempt to interfere with the
rights of property vested in either party, a different question
would be presented.
When this country was settled, the power to grant a divorce from
the bonds of matrimony was exercised by the Parliament of England.
The ecclesiastical courts of that country were limited to the
granting of divorces from bed and board. Naturally the legislative
assemblies of the colonies followed the example of Parliament and
treated the subject as one within their province. And until a
recent period, legislative divorces have been granted, with few
exceptions, in all the states. Says Bishop in his Treatise on
Marriage and Divorce:
"The fact that at the time of the settlement of this country,
legislative divorces were common, competent, and valid in England,
whence our jurisprudence was derived, makes them conclusively so
here except where an invalidity is directly or indirectly created
by a written Constitution binding the legislative power."
§ 664. Says Cooley in his Treatise on Constitutional
Limitations:
"The granting of divorces from the bonds of matrimony was not
confided to the courts in England, and from the earliest days the
colonial and state legislatures in this country have assumed to
possess the same power over the subject which was possessed by the
Parliament, and from time to time they have passed special laws
declaring a dissolution of the bonds of matrimony in special
cases."
P. 110. Says Kent in his Commentaries:
"During the period of our colonial government, for more than a
hundred years preceding the revolution, no divorce took place in
the colony of New York, and for many years after New York became an
independent state, there was not any lawful mode of dissolving a
marriage in the lifetime of the parties but by a special act of the
legislature."
2 Kent Com. 97. The same fact is stated in numerous decisions of
the highest courts of the states. Thus, in
Cronise v.
Cronise, 54 Penn.St. 260, the Supreme Court of Pennsylvania
said:
"Special divorce laws
Page 125 U. S. 207
are legislative acts. This power has been exercised from the
earliest period by the legislature of the province, and by that of
the state, under the constitutions of 1776 and 1790. The continual
exercise of the power after the adoption of the Constitution of
1790 cannot be accounted for except on the ground that all men,
learned and unlearned, believed it to be a legitimate exercise of
legislative power. This belief is further strengthened by the fact
that no judicial decision has been made against it.
Communis
error facit jus would be sufficient to support it, but it
stands upon higher ground of contemporaneous and continued
construction of the people of their own instrument."
In
Crane v. Meginnis, 1 G. & J. 474, the Supreme
Court of Maryland said:
"Divorces in this state from the earliest times have emanated
from the General Assembly, and can now be viewed in no other light
than as regular exertions of the legislative power."
In
Stone v. Pease, 8 Conn. 541, decided in 1831, the
question arose before the Supreme Court of Connecticut as to the
validity of a legislative divorce under the constitution of 1818,
which provided for an entire separation of the legislative and
judicial departments. The court, after stating that there had been
a law in force in that state on the subject of divorces, passed 130
years before, which provided for divorces on four grounds, said,
speaking by Mr. Justice Daggett:
"The law has remained in substance the same as it was when
enacted in 1667. During all this period, the legislature has
interfered like the Parliament of Great Britain, and passed special
acts of divorce
a vinculo matrimonii. And at almost every
session since the Constitution of the United States went into
operation, now forty-two years, and for the thirteen years of the
existence of the Constitution of Connecticut, such acts have been,
in multiplied cases, passed and sanctioned by the constituted
authorities of our state. We are not at liberty to inquire into the
wisdom of our existing law on this subject nor into the expediency
of such frequent interference by the legislature. We can only
inquire into the constitutionality of the act under consideration.
The power is not prohibited either by the Constitution
Page 125 U. S. 208
of the United States or by that of the state. In view of the
appalling consequences of declaring the general law of the state or
the repeated acts of our legislature unconstitutional and void --
consequences easily conceived but not easily expressed, such as
bastardizing the issue and subjecting the parties to punishment for
adultery -- the court should come to the result only on a solemn
conviction that their oaths of office and these constitutions
imperiously demand it. Feeling myself no such conviction, I cannot
pronounce the act void."
It is to be observed that the divorce in this case was granted
on the petition of the wife, who alleged certain criminal
intimacies of her husband with others, and the act of the
legislature recited that her allegation, after hearing her and her
husband, with their witnesses and counsel, was found to be true.
The inquiry appears to have been conducted with the formality of a
judicial proceeding, and might undoubtedly have been properly
referred to the judicial tribunals, yet the supreme court of the
state did not regard the divorce as beyond the competency of the
legislature.
The same doctrine is declared in numerous other cases, and
positions similar to those taken against the validity of the act of
the legislative assembly of the territory, that it was beyond the
competency of a legislature to dissolve the bonds of matrimony,
have been held untenable. These decisions justify the conclusion
that the division of government into three departments, and the
implied inhibition through that cause upon the legislative
department to exercise judicial functions, was neither intended nor
understood to exclude legislative control over the marriage
relation. In most of the states, the same legislative practice on
the subject has prevailed since the adoption of their constitutions
as before, which, as Mr. Bishop observes, may be regarded as a
contemporaneous construction that the power thus exercised for many
years was rightly exercised. The adoption of late years, in many
constitutions, of provisions prohibiting legislative divorces would
also indicate a general conviction that without this prohibition,
such divorces might be granted notwithstanding the separation of
the powers of government into departments, by which judicial
Page 125 U. S. 209
functions are excluded from the legislative department. There
are, it is true, decisions of state courts of high character, like
the Supreme Court of Massachusetts and of Missouri, holding
differently, some of which were controlled by the peculiar language
of their state constitutions.
Sparhawk v. Sparhawk, 116
Mass. 315;
State v. Fry, 4 Mo. 120, 138. The weight of
authority, however, is decidedly in favor of the position that in
the absence of direct prohibition, the power over divorces remains
with the legislature. We are therefore justified in holding --
more, we are compelled to hold -- that the granting of divorces was
a rightful subject of legislation according to the prevailing
judicial opinion of the country, and the understanding of the
profession at the time the organic act of Oregon was passed by
Congress, when either of the parties divorced was at the time a
resident within the territorial jurisdiction of the legislature. If
within the competency of the legislative assembly of the territory,
we cannot inquire into its motives in passing the act granting the
divorce; its will was a sufficient reason for its action. One of
the parties, the husband, was a resident within the territory, and,
as he acted soon afterwards upon the dissolution and married again,
we may conclude that the act was passed upon his petition. If the
assembly possessed the power to grant a divorce in any case, its
jurisdiction to legislate upon his status, he being a resident of
the territory is undoubted, unless the marriage was a contract
within the prohibition of the federal Constitution against its
impairment by legislation, or within the terms of the Ordinance of
1787, the privileges of which were secured to the inhabitants of
Oregon by their organic act -- questions which we will presently
consider.
The facts alleged in the bill of complaint, that no cause
existed for the divorce and that it was obtained without the
knowledge of the wife, cannot affect the validity of the act.
Knowledge or ignorance of parties of intended legislation does not
affect its validity if within the competency of the legislature.
The facts mentioned as to the neglect of the husband to send to his
wife, whom he left in Ohio, any means for her support or that of
her children, in disregard of his promise,
Page 125 U. S. 210
shows conduct meriting the strongest reprobation, and if the
facts stated had been brought to the attention of Congress, that
body might and probably would have annulled the act. Be that as it
may, the loose morals and shameless conduct of the husband can have
no bearing upon the question of the existence or absence of power
in the assembly to pass the act.
The organic act extends the legislative power of the territory
to all rightful subjects of legislation "not inconsistent with the
Constitution and laws of the United States." The only inconsistency
suggested is that it impairs the obligation of the contract of
marriage. Assuming that the prohibition of the federal Constitution
against the impairment of contracts by state legislation applies
equally, as would seem to be the opinion of the supreme court of
the territory, to legislation by territorial legislatures, we are
clear that marriage is not a contract within the meaning of the
prohibition. As was said by Chief Justice Marshall in the
Dartmouth College Case, not by way of judgment, but in
answer to objections urged to positions taken:
"The provision of the Constitution never has been understood to
embrace other contracts than those which respect property or some
object of value and confer rights which may be asserted in a court
of justice. It never has been understood to restrict the general
right of the legislature to legislate on the subject of
divorces."
4 Wheat.
17 U. S. 629.
And in
Butler v.
Pennsylvania, 10 How. 402, where the question arose
whether a reduction of the
per diem compensation to
certain canal Commissioners below that originally provided when
they took office was an impairment of a contract with them within
the constitutional prohibition; the Court, holding that it was not
such an impairment, said:
"The contracts designed to be protected by the tenth section of
the first article of that instrument are contracts by which perfect
rights, certain, definite, fixed private rights of property, are
vested."
It is also to be observed that while marriage is often termed by
text writers and in decisions of courts as a civil contract,
generally to indicate that it must be founded upon the agreement of
the parties, and does not require any religious ceremony for its
solemnization, it is something more
Page 125 U. S. 211
than a mere contract. The consent of the parties is, of course,
essential to its existence, but when the contract to marry is
executed by the marriage, a relation between the parties is created
which they cannot change. Other contracts may be modified,
restricted, or enlarged, or entirely released upon the consent of
the parties. Not so with marriage. The relation once formed, the
law steps in and holds the parties to various obligations and
liabilities. It is an institution in the maintenance of which in
its purity the public is deeply interested, for it is the
foundation of the family and of society, without which there would
be neither civilization nor progress. This view is well expressed
by the Supreme Court of Maine in
Adams v. Palmer, 51 Me.
481, 483. Said that court, speaking by Chief Justice Appleton:
"When the contracting parties have entered into the married
state, they have not so much entered into a contract as into a new
relation, the rights, duties, and obligations of which rest not
upon their agreement, but upon the general law of the state,
statutory or common, which defines and prescribes those rights,
duties, and obligations. They are of law, not of contract. It was a
contract that the relation should be established, but, being
established, the power of the parties as to its extent or duration
is at an end. Their rights under it are determined by the will of
the sovereign, as evidenced by law. They can neither be modified
nor changed by any agreement of parties. It is a relation for life,
and the parties cannot terminate it at any shorter period by virtue
of any contract they may make. The reciprocal rights arising from
this relation, so long as it continues, are such as the law
determines from time to time, and none other."
And again:
"It is not, then, a contract within the meaning of the clause of
the Constitution which prohibits the impairing the obligation of
contracts. It is rather a social relation like that of parent and
child, the obligations of which arise not from the consent of
concurring minds, but are the creation of the law itself, a
relation the most important, as affecting the happiness of
individuals, the first step from barbarism to incipient
civilization, the purest tie of social life, and the true
Page 125 U. S. 212
basis of human progress."
Pp. 484-485. And the Chief Justice cites in support of this view
of the case of
Maguire v. Maguire, 7 Dana, 181, 183, and
Ditson v. Ditson, 4 R.I. 87, 101. In the first of these,
the Supreme Court of Kentucky said that marriage was more than a
contract; that it was the most elementary and useful of all the
social relations, was regulated and controlled by the sovereign
power of the state, and could not, like mere contracts, be
dissolved by the mutual consent of the contracting parties, but
might be abrogated by the sovereign will whenever the public good,
or justice to both parties, or either of the parties, would thereby
be subserved; that being more than a contract, and depending
especially upon the sovereign will, it was not embraced by the
constitutional inhibition of legislative acts impairing the
obligation of contracts. In the second case, the Supreme Court of
Rhode Island said that
"
marriage, in the sense in which it is dealt with by a
decree of divorce, is not a contract, but one of the domestic
relations. In strictness, though formed by contract, it
signifies the
relation of husband and wife, deriving both
its rights and duties from a source higher than any contract of
which the parties are capable, and, as to these, uncontrollable by
any contract which they can make. When formed, this relation is no
more a contract than 'fatherhood' or 'sonship' is a contract."
In
Wade v. Kalbfleisch, 58 N.Y. 282, the question came
before the Court of Appeals of New York whether an action for
breach of promise of marriage was an action upon a contract within
the meaning of certain provisions of the Revised Statutes of that
state, and in disposing of the question, the court said:
"The general statute,"
"that marriage, so far as its validity in law is concerned,
shall continue in this state a civil contract, to which the consent
of parties, capable in law of contracting, shall be essential,"
"is not decisive of the question. 2 R.S. 138. This statute
declares it a civil contract, as distinguished from a religious
sacrament, and makes the element of consent necessary to its legal
validity, but its nature, attributes, and distinguishing features
it does not interfere with or attempt to define. It is declared a
civil contract for certain
Page 125 U. S. 213
purposes, but it is not thereby made synonymous with the word
'contract' employed in the common law or statutes. In this state
and at common law, it may be entered into by persons respectively
of fourteen and twelve. It cannot be dissolved by the parties when
consummated, nor released with or without consideration. The
relation is always regulated by government. It is more than a
contract. It requires certain acts of the parties to constitute
marriage independent of and beyond the contract. It partakes more
of the character of an institution regulated and controlled by
public authority, upon principles of public policy, for the benefit
of the community."
In
Noel v. Ewing, 9 Ind. 37, the question was before
the Supreme Court of Indiana as to the competency of the
legislature of the state to change the relative rights of husband
and wife after marriage, which led to a consideration of the nature
of marriage, and the court said:
"Some confusion has arisen from confounding the contract to
marry with the marriage relation itself. And still more is
engendered by regarding husband and wife as strictly parties to a
subsisting contract. At common law, marriage as a status had few
elements of contract about it. For instance, no other contract
merged the legal existence of the parties into one. Other
distinctive elements will readily suggest themselves which rob it
of most of its characteristics as a contract and leave it simply as
a status or institution. As such, it is not so much the result of
private agreement as of public ordination. In every enlightened
government it is preeminently the basis of civil institutions, and
thus an object of the deepest public concern. In this light,
marriage is more than a contract. It is not a mere matter of
pecuniary consideration. It is a great public institution, giving
character to our whole civil polity."
Pp. 49-50. In accordance with these views was the judgment of
Mr. Justice Story. In a note to the chapter on marriage in his work
on the Conflict of Laws, after stating that he had treated marriage
as a contract in the common sense of the word, because this was the
light in which it was ordinarily viewed by jurists, domestic as
well as foreign, he adds:
"But it appears to me to be something more than a mere contract.
It is rather to be
Page 125 U. S. 214
deemed an institution of society founded upon consent and
contract of the parties, and in this view it has some peculiarities
in its nature, character, operation, and extent of obligation
different from what belong to ordinary contracts."
§ 108
n.
The 14th section of the organic act of Oregon provides that the
inhabitants of the territory shall be entitled to all the rights,
privileges, and advantages granted and secured to the people of the
territory of the United States northwest of the River Ohio by the
articles of compact contained in the Ordinance of July 13, 1787,
for the government of the territory. The last clause of article 2
of that ordinance declares
"That no law ought ever to be made or have force in said
territory that shall, in any manner whatever, interfere with or
affect private contracts or engagements,
bona fide and
without fraud, previously formed."
This clause, though thus enacted and made applicable to the
inhabitants of Oregon, cannot be construed to operate as any
greater restraint upon legislative interference with contracts than
the provision of the federal Constitution. It was intended, like
that provision, to forbid the passage of laws which would impair
rights of property vested under private contracts or engagements,
and can have no application to the marriage relation.
But it is contended that Lydia A. Maynard, the first wife of
David A. Maynard, was entitled, notwithstanding the divorce, to the
east half of the donation claim. The settlement, it is true, was
made by her husband as a married man in order to secure the 640
acres in such case granted under the donation act. But that act
conferred the title of the land only upon the settler who at the
time was a resident of the territory, or should be a resident of
the territory before December 1, 1850, and who should reside upon
and cultivate the land for four consecutive years. The words of the
act that "there shall be, and hereby is, granted to every white
settler or occupant," is qualified by the condition of four years'
residence on the land and its cultivation by him. The settler does
not become a grantee until such residence and cultivation have been
had, by the very terms of the act. Until then, he has only a
promise of a title; what is sometimes vaguely called
Page 125 U. S. 215
an inchoate interest. In some of the cases decided at the
circuit, the fourth section of the act was treated as constituting
a grant
in praesenti, subject to the conditions of
continued residence and cultivation -- that is, a grant of a
defeasible estate.
Adams v. Burke, 3 Sawyer 418. But this
view was not accepted by this Court. In
Hall v. Russell,
101 U. S. 503, the
nature of the grant was elaborately considered, and it was held
that the title did not vest in the settler until the conditions
were fully performed. After citing the language of a previous
decision that
"It is always to be borne in mind in construing a congressional
grant that the act by which it is made is a law as well as a
conveyance, and that such effect must be given to it as will carry
out the intent of Congress,"
the Court said:
"There cannot be a grant unless there is a grantee, and
consequently there cannot be a present grant unless there is a
present grantee. If, then, the law making the grant indicates a
future grantee, and not a present one, the grant will take effect
in the future, and not presently. In all cases in which we have
given these words the effect of an immediate and present transfer,
it will be found that the law has designated a grantee qualified to
take according to the terms of the law, and actually in existence
at the time. . . . Coming, then, to the present case, we find that
the grantee designated was any qualified settler or occupant of the
public lands . . . who shall have resided upon and cultivated the
same for four consecutive years, and shall otherwise conform to the
provisions of the act. The grant was not to a settler only, but to
a settler who had completed the four years of residence, etc., and
had otherwise conformed to the act. Whenever a settler qualified
himself to become a grantee, he took the grant and his right to a
transfer of the legal title from the United States became vested.
But until he was qualified to take, there was no actual grant of
the soil. The act of Congress made the transfer only when the
settler brought himself within the description of those designated
as grantees. A present right to occupy and maintain possession, so
as to acquire a complete title to the soil, was granted to every
white person in the territory having the other requisite
qualifications,
Page 125 U. S. 216
but beyond this nothing passed until all was done that was
necessary to entitle the occupant to a grant of the land."
In
Vance v. Burbank, 101 U. S. 521,
the doctrine of the previous case was reaffirmed, and the Court
added:
"The statutory grant was to the settler, but if he was married,
the donation, when perfected, inured to the benefit of himself and
his wife in equal parts. The wife could not be a settler. She got
nothing except through her husband."
When, therefore, the act was passed divorcing the husband and
wife, he had no vested interest in the land, and she could have no
interest greater than his. Nothing had then been acquired by his
residence and cultivation, which gave him anything more than a mere
possessory right to remain on the land so as to enable him to
comply with the conditions, upon which the title was to pass to
him. After the divorce, she had no such relation to him as to
confer upon her any interest in the title subsequently acquired by
him. A divorce ends all rights not previously vested. Interests
which might vest in time upon a continuance of the marriage
relation were gone. A wife divorced has no right of dower in his
property; a husband divorced has no right by the courtesy in her
lands unless the statute authorizing the divorce specially confers
such right.
It follows that the wife was not entitled to the east half of
the donation claim. To entitle her to that half, she must have
continued his wife during his residence and cultivation of the
land. The judgment of the supreme court of the territory must
therefore affirmed, and it is so ordered.
MR. JUSTICE MATTHEWS and MR. JUSTICE GRAY dissented.
MR. JUSTICE BRADLEY was not present at the argument, and took no
part in the decision.
