"Hear! Hear!" remarked Tutt. "But I don't see why it isn't a contract--or very much like one," he persisted.
"It is like one in that its validity, like that of civil contracts generally, is determined by the law governing the place where it was entered into," went on Mr. Tutt oracularly, as if addressing the court of appeals. "But it differs from a contract for the reason that the parties are not free to fix its terms, which are determined for them by the state; that they cannot modify or rescind it by mutual consent; that the nature of the marriage status changes with the state and the laws of the state where the parties happen to be domiciled; and that damages cannot be recovered for a breach of marital duty."
"Do you know I never thought of that before," admitted Tutt. "But it's perfectly true."
"It is to the interest of society to have the relationship orderly and permanent," continued his partner. "That is why the state is so alert with regard to divorce proceedings and vigilant to prevent fraud or collusion. You may say that the state is always a party to every matrimonial action--even if it is not actually interpleaded--and that such proceedings are triangular and minus many of the characteristics of the ordinary civil suit."
"I suppose another reason for that is that originally marriage and divorce were entirely in the hands of the church, weren't they?" ruminated Tutt.
"Exactly. From very early days in England the church claimed jurisdiction of all matters pertaining to marriage, on the ground that it was a sacrament."
"Did the ecclesiastical courts take the position that all marriages were made in heaven?"
"'Once married, always married,' was their doctrine."
"Then how did people who were unhappily married get rid of one another?"
"They didn't--if the courts ruled that they had actually been married--but that left a loophole. When was a marriage not a marriage? Answer: When the parties were closely enough related by blood or marriage, or either of them was mentally incapable, under age, victims of duress, fraud, mistake, previously contracted for, or--already married."
"Ah!" breathed Tutt, thinking of Mr. Higgleby.
"The ecclesiastical law remained without any particular variation until after the American Revolution and the colonies separated from Great Britain, and as there was no union of church and state on this side of the water, and so no church to take control of the subject or ecclesiastical courts to put its doctrines into effect, for a while there was no divorce law at all over here, and then one by one the states took the matter up and began to make such laws about it as each saw fit. Hence the jolly old mess we are in now!"