“Marriage is in every view the most important institution of human society; it involves the most valued interests of every class; awakens the thoughts and engages the care of nearly every individual; and how it may be entered in, or how dissolved, or what is the effect of a pretended dissolution, is matter of almost constant legal inquiry and litigation."

The marriage here spoken of is that of the status, and not the contract merely. The status is preceded by the contract; that is, a contract between one man and one woman, both unmarried, mentally and physically competent to contract, and neither under any disability. Such contract, consummated under the forms of law and the usages of society, is merged in the higher and more enduring relation, which modern writers and jurists have, for want of a better term, designated as the status. As such it involves not only the rights and duties resulting between the parties to the contract, the husband and wife, but also the status of their children born in wedlock, with all the rights, privileges and duties to each other, society and the State as parents and children. By all classes of people having any religious faith it is held to be of Divine origin, and in all civilized communities it is considered to have its source in the law of Nature, and is recognized in all municipal law and in the general law of nations. Regarded as a contract, it is sui generis and publici juris, because it establishes domestic relations which necessarily, and regardless of the will or the wish of the parties to the contract, affect the harmony and well-being of the whole body of organized society, and therefore ought not to be set aside at the mere caprice or by the mere will of either or both the original contracting parties. In other words, if we were to consider nothing further than the mere contract, its relations to the public are such as necessarily require that its regulation and continuance or dissolution should be subjected in some form to the sovereign will and power of the State. Whether this should be done by compelling in any and every event its continuance during the life of the parties, or whether this sovereign power should under any given conditions, either upon the application of one or both the parties, or without or even against the will or wish of either, regulate or dissolve the marriage relation, considering it either as a contract or as a status, it is not within my present purpose to discuss. I start with the fact that in nearly all civilized governments there are some provisions for the exercise of the sovereign power over the marriage relation. That such provisions are made in every State of our Union, one, the single State of South Carolina, alone prohibiting its dissolution under any circumstances. I also start with the assumption that such control is in all human probability to continue, and generally with some provision for its dissolution by law providing

either for a separation or partial or absolute divorce. It is not because of any apprehension that these powers of the State will be taken away or improperly restricted that now causes any alarm or leads to any discussion, but it is the laxity of the divorce statutes in the several States and territories, and the increased and increasing frequency of divorce proceedings, the want of uniformity in the practice of the different courts, and the facility with which divorces are in many cases, if not generally, obtained, that does, in the view of very many thoughtful people, excite great apprehension of evil. The interest in this matter has been such that in the year 1884 petitions numerously signed by prominent citizens were presented to congress requesting the passage of a law providing for inquiry into the laws of the several States in reference to marriage and divorce and the collection of statistics from the records of the several courts. In the year 1887 such a law was passed, and during that and the following years a great body of statistics was gathered and embodied in a report by the commissioner of labor, completed and published in the year 1889. This report as published embraces a great mass of statistics, covering more than one thousand pages of printed matter. It covers a period of twenty years those of 1867 to 1886, both inclusive. I can here make but very limited reference to this report. Any one desiring to obtain it can do so by application to the commissioner of labor of the United States. Some brief summary I may give, however. The report covers statistics of forty-seven States and territories, and states the number of divorces in the year 1867 at 9,937, increasing year by year to 25,535 in the year 1886, and among the rest giving for our own State the number as 901 in 1867 and 1,889 in 1886. Referring in this connection to the reports of our own secretary of state for the number of divorces since the year 1886, I find the number to have so increased that it was in the year 1898, 3,352, not quite twice the number in 1886; so that the increase from 1867 to 1898 has been from 901 to 3,352, or more than three and two-thirds times the number that it was in the former year. The report to which I have referred gives tables showing the relative increase of divorces and of population. These I cannot stop now to give, but the increase in divorces is very much larger than the increase in population as appears from the figures already given, and this increase is evidently in an increasing ratio, and substantially, if not entirely, continuous; and no further argument is needed to substantiate reason for apprehension as to the future.

It is not my purpose, however, in bringing these facts and considerations before this association, simply to arouse sympathy or alarm; but in order to suggest the inquiry whether this body of lawyers has not laid upon it some duty if we continue to lay claim to be leaders in reformatory law, and

cannot, so far as I have been able to discover, be found in any other State or territory in the Union. The nearest to it is a provision in Kansas — evidently copied from the statute of Ohio as it stood at the time Kansas was admitted as a State which is "Gross neglect of duty," the word "any" having since been inserted and now a part of our statute. It is this last provision of our statute of which I make special complaint. The statutes of some of the States specify particular grounds that might be classed under this head, but none of them, aside from the State of Washington, give any such unlimited range as this: "Any gross neglect of duty." Experience shows that when a divorce is wanted, either by a husband or wife, and no specific ground can be alleged, that this clause is fallen back upon; or when some other grounds are alleged, it is also put in, to be relied upon in case of failure to prove any of those specially alleged and the most trifling private and personal matters, are under this allegation paraded before the gaping crowd of court loungers that habitually fill the back seats of the court-room on divorce days, and these trifling matters, of which no one should ever hear outside of the privacy of the home, are magnified by the parties and their friends in their passion and prejudice, so as to bring them within the view that some judge may have of "gross neglect of duty." It seems to me that abundant reason is developed almost daily in the trial of these cases to in the interests of society, to say nothing of the interests of innocent children — call for the total repeal of this provision, or for a more definite statement as to what shall be considered and allowed to be brought in under it.

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It is true, not only as to this provision, frame it as you will, but also as to other provisions of the statute for instance, extreme cruelty" that there always would remain room for construction by the courts of the meaning of the provisions; and one of the glaring defects in our statutes, in my judgment, is that there is no means whatever whereby any rules of construction of the statutes can be given any general authority throughout the State. The Court of Common Pleas is, without doubt, the proper forum for the trial of divorce cases. The several Common Pleas Courts of the State are presided over by more than eighty different judges, each having equal jurisdiction and power, and no decision by any of them being subject to review either in the Circuit Court or the Supreme Court of the State. Each of these judges is therefore a law unto himself in the construction which he shall give to the statutes, as well as in the determination of the facts in each given case which shall be claimed to bring the case within one or the other of the grounds for divorce. That there should be any uniformity of construction by these different judges could not be excepted; and that there is none will, I presume, be a conceded

fact. That there ought to be some rule of construction which should be recognized in Ashtabula, Lucas and Hamilton, or any other county in the State, will also not be questioned, and it is an undoubted fact that parties seeking a divorce not infrequently seek to bring it to trial before such judge as they may think most liberal in his construction. I don't know whether it is so in any other State in the Union or not. It is apparent from the reports of cases in the Supreme Courts of other States that some power of review is provided in at least some of the States, and I strenuously contend that there should be some such provision in the statute of Ohio.

And there is still another defect in our practice under the decisions of our own Supreme Court, dating as far back as the case of Bascom v. Bascom, decided in 1836 and reported in the 7 Ohio. In that case Judge Lane, in delivering the opinion. of the court, says:

"Where a divorce is granted, upon which one of the parties contracts new relations, and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequence of which would be a severance of all those new relations. Such anomalous mischief cannot be engrafted on the practice of our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place." (See, also, Parish v. Parish, 9 Ohio, 534.)

This same reason may be given why the decree may not be reviewed on appeal or petition in error in a higher court. An illustration of the working of this rule is given in a case in Lucas county, in which a wife, having been divorced on the ground of adultery, such decree still remains of record, notwithstanding the fact that the prevailing husband and one of the witnesses have since been convicted, by different juries, of the crime of perjury upon testimony given by them upon the trial, and incarcerated in the penitentiary.

These last named difficulties, of course, can only be overcome by some provisions of our statutes either for review by the trial court, upon sufficient ground shown to it, or upon error or appeal to the Circuit Court or the Supreme Court. In order to do this it would be necessary to make some provision limiting the right of divorced parties to re-marry within such period of time as might be deemed essential to provide for the commencement of such proceedings in review; with provision also that upon such proceedings being commenced, the prohibition should continue until they were finally terminated.

Akin to this is the question whether, in all cases where a divorce is granted, both parties should be at liberty to re-marry. Should the party by whose aggression the divorce is granted be equally free with the aggrieved party to take upon himself anew the marital obligations? There can, I think, be no doubt but that it frequently happens that

husbands or wives to whom the bonds of matrimony have become irksome, for some reason their own fault or that of the other party-deliberately enter upon a course of life with a view to compelling the other party to commence proceeding for divorce against them. That no such proceeding should be possible is, of course, true. I am not prepared, however, to say that there should be an absolute prohibition against the person by reason of whose aggression the divorce was granted from ever re-marrying. Public policy might not be subserved by such an absolute prohibition. Further than that, the door should always be left open for the sinning party to reform. Even the repentant adulteress, taken in the very act, was told to go and sin no more; but what I do contend for is that the court trying the case should be given a discretion as to whether or under what circumstances, or within what time, if at all, the party in the wrong should be permitted to marry again. Difficulties in the enforcement, of course, can be easily foreseen, but provision might be made by stringent penal statutes which night render the violation of the order of the court at least dangerous.

Another idea I would be glad to enlarge upon somewhat, and I refer to an address on "Divorce Reform” delivered by the Hon. George W. Houk before this association at the meeting in 1891. quote from this valuable paper as published in the proceedings for that year at page 160, the following:

to aid the judge in arriving at the exact truth of the matters alleged; and such officer should also be required, either of his own motion or by direction of the court, to institute any such proceeding as might seem necessary for the purpose of punishing the offending party.

To very briefly summarize in closing, I would amend our statutes in the following particulars:

1. I would give jurisdiction to the Probate Court to refuse license to marry in certain cases where the protection of society or the State might require it.

2. Either wholly repeal or materially modify and make more definite the seventh ground for divorce "Any gross neglect of duty."

3. Provide for review of divorce decrees by the court in which granted, or by error or appeal, substantially as in other cases, the right to re-marry being denied until the time for such review had elapsed.

4. Give the divorce court the discretion to determine by its decree whether the party for whose aggression it is granted should re-marry and the length of time after decree before which, if at all, the right might be exercised.

"I would make every proceeding in divorce a quasi-criminal proceeding; with a jury, of course, to determine upon a regular trial the question of guilt or innocence. The petition should be in the nature of an information, and if it should be found necessary under the Constitution the action of a grand jury should be had."

My experience confirms me in fully indorsing this recommendation of this able lawyer and legislator; and in this connection I take this further position, that either the prosecuting attorney or some other officer or attorney to be named by the court should be required in every divorce case to appear in the interest of the public. The judge trying the case, knowing nothing of the parties and having no time or opportunity to make any investigation or examination other than by virtue of the questions that he may put of his own motion to the witnesses, may very easily be, and no doubt very often is, grossly deceived and misled as to the facts in the case. It is no rash assertion to say, not only that the testimony of witnesses in this class of cases is, in a great many, if not in the majority, of divorce trials, so exaggerated and magnified by the feelings, passions and prejudices of parties and their friends as to be unreliable, and that not infrequently direct perjury is committed. It should be the duty of some officer, by investigation and examination, not only in but out of court,

NEGLIGENCE OF MASTER. DUTY TO INSPECT MACHINERY.

NEW YORK COURT OF APPEALS. Decided June 19, 1900.

PATRICK BYRNE, Appellant, v. THE EASTMANS COMPANY OF NEW YORK, Respondent.

It is the duty of an employer to furnish to his em

ployes good and suitable appliances and to use reasonable care to keep them so. Reasonable care involves proper inspection, and the failure of the employer to properly inspect appliances which are subjected to hard usage and liable to become broken and fall upon and injure workmen, without any negligence on their part, is a neglect of duty on the part of the employer which is for the jury to consider in an action for damages resulting from such an injury.

Appeal from a judgment of the Appellate Division, First Department, entered upon its order overruling the plaintiff's exceptions and directing that the plaintiff's complaint be dismissed upon