A law under which the unsuccessful respondent in a divorce proceeding
may be forbidden to marry again during the life of the successful
complainant, the latter being subject to no such disability, is
unrighteous. If the disability is intended as a punishment it is
exceptional among legal punishments in that it is inflicted without
conviction, trial or arraignment, the divorce proceedings being quite
another and different matter. It is exceptional in that the period
of its continuance, and therefore the degree of its severity, are
indeterminate; they are dependent on no limiting statute, and on
neither the will of the power inflicting nor the conduct of the person
suffering. To sentence a person to a punishment that is to be mild
or severe according to chance or—which is even worse—circumstances
which but one person, and that person not officially connected with
administration of justice, can partly control, is a perversion of the
main principles that are supposed to underlie the laws.
It can be nothing to the woman—possibly herself remarried—whether the
man remarries or not; that is, can affect only her feelings, and only
such of them as are least creditable to her. Yet her self-interest is
enlisted against him to do him incessant disservice. By merely caring
for her health she increases the sharpness of his punishment—for
punishment it is if he feels it such; every hour that she wrests from
death is added to his “term.” The expediency of preventing a man from
marrying, without having the power to prevent him from making his
marriage desirable in the interest of the public and vital to that of
some woman, is not discussable here. If a man is ever justified in
poisoning a woman who was once his wife it is when, by way of making
him miserable, the state has given him a direct and distinct interest
in her death.