In Prussia an enlightened divorce law formerly prevailed by which it was possible for a couple to separate without scandal when it was clearly shown that they could not live together in agreement. But the German Code of 1900 introduced provisions as regards divorce which-while in some respects more liberal than those of the English law, especially by permitting divorce for desertion and insanity-are, on the whole, retrograde as compared with the earlier Prussian law and place the matter on a cruder and more brutal basis. For two years after the Code came into operations the number of divorces sank; after that the public and the courts adapted themselves to the new provisions (more especially one which allowed divorce for serious neglect of conjugal duties) and the number of divorces began to increase with great rapidity. "But," remarks Hirschfeld, "how painful it has now become to read divorce cases! One side abuses the other, makes accusations of the grossest character, employs detectives to obtain the necessary proofs of "dishonorable and immoral conduct," whereas, before, both parties realized that they had been deceived in each other, that they failed to suit each other, and that they could no longer live together. Thus we see that the narrowing of individual responsibility in s.e.xual matters has not only had no practical effect, but leads to injurious results of a serious kind."[343] In England a similar state of things has prevailed ever since divorce was established, but it seems to have become too familiar to excite either pain or disgust. Yet, as Adner has pointed out,[344] it has moved in a direction contrary to the general tendency of civilization, not only by increasing the inquisitorial authority of public courts but by emphasizing merely external causes of divorce and abolishing the more subtle internal causes which constantly grow in importance with the refinement of civilization.
In Austria until recent years, Canon law ruled absolutely, and matrimony was indissoluble, as it still remains for the Catholic population. The results as regards matrimonial happiness were in the highest degree deplorable. Half a century ago Gross-Hoffinger investigated the marital happiness of 100 Viennese couples of all social cla.s.ses, without choice of cases, and presented the results in detail. He found that 48 couples were positively unhappy, only 16 were undoubtedly happy, and even among these there was only one case in which happiness resulted from mutual faithfulness, happiness in the other cases being only attained by setting aside the question of fidelity.[345] This picture, it is to be hoped, no longer remains true. There is an influential Austrian Marriage Reform a.s.sociation, publishing a journal called Die Fessel, or The Fetter. "One was chained to another," we are told. "In certain circ.u.mstances this must have been the worst and most torturing penalty of all. The most bizarre and repulsive couplings took place. There were, it is true, many affectionate companionships of the chain. But there were many more which inflicted an eternity of suffering upon one of the pair." This quotation, it must be added, has nothing to do with what the Canonists, borrowing the technical term for a prisoner"s shackles, suggestively termed the vinculum matrimonii; it was written many years ago concerning the galleys of the old French convict system. It is, however, recalled to one"s mind by the t.i.tle which the Austrian Marriage Reform a.s.sociation has given to its official organ.
Russia, where the marriage laws are arranged by the Holy Synod aided by jurists, stands almost alone among the great countries in the reasonable simplicity of its divorce provisions. Before 1907 divorce was very difficult to obtain in Russia, but in that year it became possible for a married couple to separate by mutual consent and after living apart for a year to become thereby ent.i.tled to a divorce enabling them to remarry. This provision is in accordance with the humane conception of the s.e.xual relationship which has always tended to prevail in Russia, whither, it must be remembered, the stern and unnatural ideals of compulsory celibacy cherished by the Western Church never completely penetrated; the clergy of the Eastern Church are married, though the marriage must take place before they enter the priesthood, and they could not sympathize with the anti-s.e.xual tone of the marriage regulations laid down by the celibate clergy of the west.
Switzerland, again, which has been regarded as the political laboratory of Europe, also stands apart in the liberality of its divorce legislation. A renewable divorce for two years may be obtained in Switzerland when there are "circ.u.mstances which seriously affect the maintenance of the conjugal tie." To the Grand Duchy of Luxembourg, finally, belongs the honor of having firmly maintained throughout the great principle of divorce by mutual consent under legal conditions, as established by Napoleon in his Code of 1803. The smaller countries generally are in advance of the large in matters of divorce law. The Norwegian law is liberal. The new Roumanian Code permits divorce by mutual consent, provided both parents grant equal shares of their property to the children. The little princ.i.p.ality of Monaco has recently introduced the reasonable provision of granting divorce for, among other causes, alcoholism, syphilis, and epilepsy, so protecting the future race.
Outside Europe the most instructive example of the tendency of divorce is undoubtedly furnished by the United States of America. The divorce laws of the States are mainly on a Puritanic basis, and they retain not only the Puritanic love of individual freedom but the Puritanic precisianism.[346] In some States, notably Iowa, the statute-makers have been constantly engaged in adopting, changing, abrogating and re-enacting the provisions of their divorce laws, and Howard has shown how much confusion and awkwardness arise by such perpetual legislative fiddling over small details.
This restless precisianism has somewhat disguised the generally broad and liberal tendency of marriage law in America, and has encouraged foreign criticism of American social inst.i.tutions. As a matter of fact the prevalence of divorce in America is enormously exaggerated. The proportion of divorced persons in the population appears to be less than one per cent., and, contrary to a frequent a.s.sertion, it is by no means the rule for divorced persons to remarry immediately. Taking into account the special conditions of life in the United States the prevalence of divorce is small and its character by no means reveals a low grade morality. An impartial and competent critic of the American people, Professor Munsterberg, remarks that the real ground which mainly leads to divorce in the United States-not the mere legal pretexts made compulsory by the precisianism of the law-is the highly ethical objection to continuing externally in a marriage which has ceased to be spiritually congenial. "It is the women especially," he says, "and generally the very best women, who prefer to take the step, with all the hardships which it involves, to prolonging a marriage which is spiritually hypocritical and immoral."[347]
The people of the United States, above all others, cherish ideals of individualism; they are also the people among whom, above all others, there is the greatest amount of what Reibmayr calls "blood-chaos." Under such circ.u.mstances the difficulties of conjugal life are necessarily at a maximum, and marriage union is liable to subtle impediments which must forever elude the statute-book.[348] There can be little doubt that the practical sagacity of the American people will enable them sooner or later to recognize this fact, and that finally fulfilling the Puritanic drift of their divorce legislation-as foreshadowed in its outcome by Milton-they will agree to trust their own citizens with the responsibility of deciding so private a matter as their conjugal relationships, with, of course, authority in the courts to see that no injustice is committed. It is, indeed, surprising that the American people, usually intolerant of State interference, should in this matter so long have tolerated such interference in so private a matter.
The movement of divorce is not confined to Christendom; it is a mark of modern civilization. In j.a.pan the proportion of divorces is higher than in any other country, not excluding the United States.[349] The most vigorous and progressive countries are those that insist most firmly on the purity of s.e.xual unions. In the United States it was pointed out many years ago that divorce is most prevalent where the standard of education and morality is highest. It was the New England States, with strong Puritanic traditions of moral freedom, which took the lead in granting facility to divorce. The divorce movement is not, as some have foolishly supposed, a movement making for immorality.[350] Immorality is the inevitable accompaniment of indissoluble marriage; the emphasis on the sanct.i.ty of a merely formal union discourages the growth of moral responsibility as regards the hypothetically unholy unions which grow up beneath its shadow. To insist, on the other hand, by establishing facility of divorce, that s.e.xual unions shall be real, is to work in the cause of morality. The lands in which divorce by mutual consent has prevailed longest are probably among the most, and not the least, moral of lands.
Surprise has been expressed that although divorce by mutual consent commended itself as an obviously just and reasonable measure two thousand years ago to the legally-minded Romans that solution has even yet been so rarely attained by modern states.[351] Wherever society is established on a solidly organized basis and the claims of reason and humanity receive due consideration-even when the general level of civilization is not in every respect high-there we find a tendency to divorce by mutual consent.
In j.a.pan, according to the new Civil Code, much as in ancient Rome, marriage is effected by giving notice of the fact to the registrar in the presence of two witnesses, and with the consent (in the case of young couples) of the heads of their families. There may be a ceremony, but it is not demanded by the law. Divorce is effected in exactly the same way, by simply having the registration cancelled, provided both husband and wife are over twenty-five years of age. For younger couples unhappily married, and for cases in which mutual consent cannot be obtained, judicial divorce exists. This is granted for various specific causes, of which the most important is "grave insult, such as to render living together unbearable" (Ernest W. Clement, "The New Woman in j.a.pan," American Journal Sociology, March, 1903). Such a system, like so much else achieved by j.a.panese organization, seems reasonable, guarded, and effective.
In the very different and far more ancient marriage system of China, divorce by mutual consent is equally well-established. Such divorce by mutual consent takes place for incompatibility of temperament, or when both husband and wife desire it. There are, however, various antiquated and peculiar provisions in the Chinese marriage laws, and divorce is compulsory for the wife"s adultery or serious physical injuries inflicted by either party on the other. (The marriage laws of China are fully set forth by Paul d"Enjoy, La Revue, Sept. 1, 1905.)
Among the Eskimo (who, as readers of Nansen"s fascinating books on their morals will know, are in some respects a highly socialized people) the s.e.xes are absolutely equal, marriages are perfectly free, and separation is equally free. The result is that there are no uncongenial unions, and that no unpleasant word is heard between man and wife (Stefansson, Harper"s Magazine, Nov., 1908).
Among the ancient Welsh, women, both before and after marriage, enjoyed great freedom, far more than was afforded either by Christianity or the English Common law. "Practically either husband or wife could separate when either one or both chose" (Rhys and Brynmor-Jones, The Welsh People, p. 214). It was so also in ancient Ireland. Women held a very high position, and the marriage tie was very free, so as to be practically, it would appear, dissoluble by mutual consent. So far as the Brehon laws show, says Ginnell (The Brehon Laws, p. 212), "the marriage relation was extremely loose, and divorce was as easy, and could be obtained on as slight ground, as is now the case in some of the States of the American Union. It appears to have been obtained more easily by the wife than by the husband. When obtained on her pet.i.tion, she took away with her all the property she had brought her husband, all her husband had settled upon her on their marriage, and in addition so much of her husband"s property as her industry appeared to have ent.i.tled her to."
Even in early French history we find that divorce by mutual consent was very common. It was sufficient to prepare in duplicate a formal doc.u.ment to this effect: "Since between N. and his wife there is discord instead of charity according to G.o.d, and that in consequence it is impossible for them to live together, it has pleased both to separate, and they have accordingly done so." Each of the parties was thus free either to retire into a cloister or to contract another union (E. de la Bedolliere, Histoire des Murs des Francais, vol. i, p. 317). Such a practice, however it might accord with the germinal principle of consent embodied in the Canon law, was far too opposed to the ecclesiastical doctrine of the sacramental indissolubility of matrimony to be permanently allowed, and it was completely crushed out.
The fact that we so rarely find divorce by mutual consent in Christendom until the beginning of the nineteenth century, that then it required a man of stupendous and revolutionary genius like Napoleon to reintroduce it, and that even he was unable to do so effectually, is clearly due to the immense victory which the ascetic spirit of Christianity, as firmly embodied in the Canon law, had gained over the souls and bodies of men. So subjugated were European traditions and inst.i.tutions by this spirit that even the volcanic emotional uprising of the Reformation, as we have seen, could not shake it off. When Protestant States naturally resumed the control of secular affairs which had been absorbed by the Church, and rescued from ecclesiastical hands those things which belonged to the sphere of the individual conscience, it might have seemed that marriage and divorce would have been among the first concerns to be thus transferred. Yet, as we know, England was about as much enslaved to the spirit and even the letter of Canon law in the nineteenth as in the fourteenth century, and even to-day English law, though no longer supported by the feeling of the ma.s.ses, clings to the same traditions.
There seems to be little doubt, however, that the modern movement for divorce must inevitably tend to reach the goal of separation by the will of both parties, or, under proper conditions and restrictions, by the will of one party. It now requires the will of two persons to form a marriage; law insists on that condition.[352] It is logical as well as just that law should take the next step involved by the historical evolution of marriage, and equally insist that it requires the will of two persons to maintain a marriage. This solution is, without doubt, the only way of deliverance from the crudities, the indecencies, the inextricable complexities which are introduced into law by the vain attempt to foresee in detail all the possibilities of conjugal disharmony which may arise under the conditions of modern civilization. It is, moreover, we may rest a.s.sured, the only solution which the growing modern sense of personal responsibility in s.e.xual matters traced in the previous chapter-the responsibility of women as well as of men-will be content to accept.
The subtle and complex character of the s.e.xual relationships in a high civilization and the unhappy results of their State regulation were well expressed by Wilhelm von Humboldt in his Ideen zu einen Versuch die Grenzen der Wirksamkeit des Staates zu bestimmen, so long ago as 1792. "A union so closely allied with the very nature of the respective individuals must be attended with the most hurtful consequences when the State attempts to regulate it by law, or, through the force of its inst.i.tutions, to make it repose on anything save simple inclination. When we remember, moreover, that the State can only contemplate the final results of such regulations on the race, we shall be still more ready to admit the justice of this conclusion. It may reasonably be argued that a solicitude for the race only conducts to the same results as the highest solicitude for the most beautiful development of the inner man. For, after careful observation, it has been found that the uninterrupted union of one man with one woman is most beneficial to the race, and it is likewise undeniable that no other union springs from true, natural, harmonious love. And further, it may be observed, that such love leads to the same results as those very relations which law and custom tend to establish. The radical error seems to be that the law commands; whereas such a relation cannot mould itself according to external arrangements, but depends wholly on inclination; and wherever coercion or guidance comes into collision with inclination, they divert it still farther from the proper path. Wherefore it appears to me that the State should not only loosen the bonds in this instance and leave ampler freedom to the citizen, but that it should entirely withdraw its active solicitude from the inst.i.tution of marriage, and, both generally and in its particular modifications, should rather leave it wholly to the free choice of the individuals, and the various contracts they may enter into with respect to it. I should not be deterred from the adoption of this principle by the fear that all family relations might be disturbed, for, although such a fear might be justified by considerations of particular circ.u.mstances and localities, it could not fairly be entertained in an inquiry into the nature of men and States in general. For experience frequently convinces us that just where law has imposed no fetters, morality most surely binds; the idea of external coercion is one entirely foreign to an inst.i.tution which, like marriage, reposes only on inclination and an inward sense of duty; and the results of such coercive inst.i.tutions do not at all correspond to the intentions in which they originate."
A long succession of distinguished thinkers-moralists, sociologists, political reformers-have maintained the social advantages of divorce by mutual consent, or, under guarded circ.u.mstances, at the wish of one party. Mutual consent was the corner-stone of Milton"s conception of marriage. Montesquieu said that true divorce must be the result of mutual consent and based on the impossibility of living together. Senancour seems to agree with Montesquieu. Lord Morley (Diderot, vol. ii, Ch. I), echoing and approving the conclusions of Diderot"s Supplement au Voyage de Bougainville (1772), adds that the separation of husband and wife is "a transaction in itself perfectly natural and blameless, and often not only laudable, but a duty." Bloch (s.e.xual Life of Our Time, p. 240), with many other writers, emphasizes the truth of Sh.e.l.ley"s saying, that the freedom of marriage is the guarantee of its durability. (That the facts of life point in the same direction has been shown in the previous chapter.) The learned Caspari (Die Soziale Frage uber die Freiheit der Ehe), while disclaiming any prevision of the future, declares that if s.e.xual relationships are to remain or to become moral, there must be an easier dissolution of marriage. Howard, at the conclusion of his exhaustive history of matrimonial inst.i.tutions (vol. iii p. 220), though he himself believes that marriage is peculiarly in need of regulation by law, is yet constrained to admit that it is perfectly clear to the student of history that the modern divorce movement is "but a part of the mighty movement for social liberation which has been gaining in volume and strength since the Reformation." Similarly the cautious and judicial Westermarck concludes the chapter on marriage of his Origin and Development of the Moral Ideas (vol. ii, p. 398) with the statement that "when both husband and wife desire to separate, it seems to many enlightened minds that the State has no right to prevent them from dissolving the marriage contract, provided the children are properly cared for; and that, for the children, also, it is better to have the supervision of one parent only than of two who cannot agree."
In France the leaders of the movement of social reform seem to be almost, or quite, unanimous in believing that the next step in regard to divorce is the establishment of divorce by mutual consent. This was, for instance, the result reached in a symposium to which thirty-one distinguished men and women contributed. All were in favor of divorce by mutual consent; the only exception was Madame Adam, who said she had reached a state of skepticism with regard to political and social forms, but admitted that for nearly half a century she had been a strong advocate of divorce. A large number of the contributors were in favor of divorce at the desire of one party only (La Revue, March 1, 1901). In other countries, also, there is a growing recognition that this solution of the question, with due precautions to avoid any abuses to which it might otherwise be liable, is the proper and inevitable solution.
As to the exact method by which divorce by mutual consent should be effected, opinions differ, and the matter is likely to be differently arranged in different countries. The j.a.panese plan seems simple and judicious (see ante, p. 461). Paul and Victor Margueritte (Quelques Idees, pp. 3 et seq.), while realizing that the conflict of feeling in the matter of personal a.s.sociations involves decisions which are entirely outside the competence of legal tribunals, recognize that such tribunals are necessary in order to deal with the property of divorced persons, and also, in the last resort, with the question of the care of the children. They should not act in public. These writers propose that each party should choose a representative, and that these two should choose a third; and that this tribunal should privately investigate, and if they agreed should register the divorce, which should take place six or twelve months later, or three years later, if only desired by one of the parties. Dr. Shufeldt ("Psychopathia s.e.xualis and Divorce") proposes that a divorce-court judge should conduct, alone, the hearing of any cases of marital discord, the husband and wife appearing directly before him, without counsel, though with their witnesses, if necessary; should medical experts be required the judge alone would be empowered to call them.
When we realize that the long delay in the acceptance of so just and natural a basis of divorce is due to an artificial tension created by the pressure of the dead hand of Canon law-a tension confined exclusively to Christendom-we may also realize that with the final disappearance of that tension the just and natural order in this relationship will spring back the more swiftly because that relief has been so long delayed. "Nature abhors a vacuum nowhere more than in a marriage," Ellen Key remarks in the language of antiquated physical metaphor; the vacuum will somehow be filled, and if it cannot be filled in a natural and orderly manner it will be filled in an unnatural and disorderly manner. It is the business of society to see that no laws stand in the way of the establishment of natural order.
Reform upon a reasonable basis has been made difficult by the unfortunate retention of the idea of delinquency. With the traditions of the Canonists at the back of our heads we have somehow persuaded ourselves that there cannot be a divorce unless there is a delinquent, a real serious delinquent who, if he had his deserts, would be imprisoned and consigned to infamy. But in the marriage relationship, as in all other relationships, it is only in a very small number of cases that one party stands towards the other as a criminal, even a defendant. This is often obvious in the early stages of conjugal alienation. But it remains true in the end. The wife commits adultery and the husband as a matter of course a.s.sumes the position of plaintiff. But we do not inquire how it is that he has not so won her love that her adultery is out of the question; such inquiry might lead to the conclusion that the real defendant is the husband. And similarly when the husband is accused of brutal cruelty the law takes no heed to inquire whether in the infliction of less brutal but not less poignant wounds, the wife also should not be made defendant. There are a few cases, but only a few, in which the relationship of plaintiff and defendant is not a totally false and artificial relationship, an immoral legal fiction. In most cases, if the truth were fully known, husband and wife should come side by side to the divorce court and declare: "We are both in the wrong: we have not been able to fulfil our engagements to each other; we have erred in choosing each other." The long reports of the case in open court, the mutual recriminations, the detectives, the servant girls and other witnesses, the infamous inquisition into intimate secrets-all these things, which no necessity could ever justify, are altogether unnecessary.
It is said by some that if there were no impediments to divorce a man might be married in succession to half a dozen women. These simple-minded or ignorant persons do not seem to be aware that even when marriage is absolutely indissoluble a man can, and frequently does, carry on s.e.xual relationships not merely successively, but, if he chooses, even simultaneously, with half a dozen women. There is, however, this important difference that, in the one case, the man is encouraged by the law to believe that he need only treat at most one of the six women with anything approaching to justice and humanity; in the other case the law insists that he shall fairly and openly fulfil his obligations towards all the six women. It is a very important difference, and there ought to be no question as to which state of things is moral and which immoral. It is no concern of the State to inquire into the number of persons with whom a man or a woman chooses to have s.e.xual relationships; it is a private matter which may indeed affect their own finer spiritual development but which it is impertinent for the State to pry into. It is, however, the concern of the State, in its own collective interest and that of its members, to see that no injustice is done.
But what about the children? That is necessarily a very important question. The question of the arrangements made for the children in cases of divorce is always one to which the State must give its regulative attention, for it is only when there are children that the State has any real concern in the matter.
At one time it was even supposed by some that the existence of children was a serious argument against facility of divorce. A more reasonable view is now generally taken. It is, in the first place, recognized that a very large proportion of couples seeking divorce have no children. In England the proportion is about forty per cent.; in some other countries it is doubtless larger still. But even when there are children no one who realizes what the conditions are in families where the parents ought to be but are not divorced can have any doubt that usually those conditions are extremely bad for the children. The tension between the parents absorbs energy which should be devoted to the children. The spectacle of the grievances or quarrels of their parents is demoralizing for the children, and usually fatal to any respect towards them. At the best it is injuriously distressing to the children. One effective parent, there cannot be the slightest doubt, is far better for a child than two ineffective parents. There is a further point, often overlooked, for consideration here. Two people when living together at variance-one of them perhaps, it is not rarely the case, nervously abnormal or diseased-are not fitted to become parents, nor in the best condition for procreation. It is, therefore, not merely an act of justice to the individual, but a measure called for in the interests of the State, that new citizens should not be brought into the community through such defective channels.[353] From this point of view all the interests of the State are on the side of facility of divorce.
There is a final argument which is often brought forward against facility of divorce. Marriage, it is said, is for the protection of women; facilitate divorce and women are robbed of that protection. It is obvious that this argument has little application as against divorce by mutual consent. Certainly it is necessary that divorce should only be arranged under conditions which in each individual case have received the approval of the law as just. But it must always be remembered that the essential fact of marriage is not naturally, and should never artificially be made, an economic question. It is possible-that is a question which society will have to consider-that a woman should be paid for being a mother on the ground that she is rearing new citizens for the State. But neither the State nor her husband nor anyone else ought to pay her for exercising conjugal rights. The fact that such an argument can be brought forward shows how far we are from the sound biological att.i.tude towards s.e.xual relationships. Equally unsound is the notion that the virgin bride brings her husband at marriage an important capital which is consumed in the first act of intercourse and can never be recovered. That is a notion which has survived into civilization, but it belongs to barbarism and not to civilization. So far as it has any validity it lies within a sphere of erotic perversity which cannot be taken into consideration in an estimation of moral values. For most men, however, in any case, whether they realize it or not, the woman who has been initiated into the mysteries of love has a higher erotic value than the virgin, and there need be no anxiety on this ground concerning the wife who has lost her virginity. It is probably a significant fact that this anxiety for the protection of women by the limitation of divorce is chiefly brought forward by men and not by women themselves. A woman at marriage is deprived by society and the law of her own name. She has been deprived until recently of the right to her own earnings. She is deprived of the most intimate rights in her own person. She is deprived under some circ.u.mstances of her own child, against whom she may have committed no offence whatever. It is perhaps scarcely surprising that she is not greatly appreciative of the protection afforded her by the withholding of the right to divorce her husband. "Ah, no, no protection!" a brilliant French woman has written. "We have been protected long enough. The only protection to grant women is to cease protecting them."[354] As a matter of fact the divorce movement appears to develop, on the whole, with that development of woman"s moral responsibility traced in the previous chapter, and where divorce is freest women occupy the highest position.
We cannot fail to realize as we grasp the nature and direction of the modern movement of divorce that the final tendency of that movement is to efface itself. Necessary as the Divorce Court has been as the inevitable corollary of an impossible ecclesiastical conception of marriage, no inst.i.tution is now more hideous, more alien to the instinctive feelings generated by a fine civilization, and more opposed to the dignity of womanhood.[355] Its disappearance and its subst.i.tution by private arrangements, effected on their contractive sides, especially if there are children to provide for, under legal and if necessary judicial supervision, is, and always has been, the natural result of the attainment of a reasonably high stage of civilization. The Divorce Court has merely been a phase in the history of modern marriage, and a phase that has really been repugnant to all concerned in it. There is no need to view the project of its ultimate disappearance with anything but satisfaction. It was merely the outcome of an artificial conception of marriage. It is time to return to the consideration of that conception.
We have seen that when the Catholic development of the archaic conception of marriage as a sacrament, slowly elaborated and fossilized by the ingenuity of the Canonists, was at last nominally dethroned, though not destroyed, by the movement a.s.sociated with the Reformation, it was replaced by the conception of marriage as a contract. This conception of marriage as a contract still enjoys a considerable amount of credit amongst us.
There must always be contractive elements, implicit or explicit, in a marriage; that was well recognized even by the Canonists. But when we treat marriage as all contract, and nothing but contract, we have to realize that we have set up a very peculiar form of contract, not voidable, like other contracts, by the agreement of the parties to it, but dissoluble as a sort of punishment of delinquency rather than by the voluntary annulment of a bond.[356] When the Protestant Reformers seized on the idea of marriage as a contract they were not influenced by any reasoned a.n.a.lysis of the special characteristics of a contract; they were merely anxious to secure a plausible ground, already admitted even by the Canonists to cover certain aspects of the matrimonial union, on which they could declare that marriage is a secular and not an ecclesiastical matter, a civil bond and not a sacramental process.[357]
Like so much else in the Protestant revolt, the strength of this att.i.tude lay in the fact that it was a protest, based on its negative side on reasonable and natural grounds. But while Protestantism was right in its attempt-for it was only an attempt-to deny the authority of Canon law, that attempt was altogether unsatisfactory on the positive side. As a matter of fact marriage is not a true contract and no attempt has ever been made to convert it into a true contract.
Various writers have treated marriage as an actual contract or argued that it ought to be converted into a true contract. Mrs. Mona Caird, for instance ("The Morality of Marriage," Fortnightly Review, 1890), believes that when marriage becomes really a contract "a couple would draw up their agreement, or depute the task to their friends, as is now generally done as regards marriage settlements. They agree to live together on such and such terms, making certain stipulations within the limits of the code." The State, she holds, should, however, demand an interval of time between notice of divorce and the divorce itself, if still desired when that interval has pa.s.sed. Similarly, in the United States Dr. Shufeldt ("Needed Revision of the Laws of Marriage and Divorce," Medico-Legal Journal, Dec., 1897) insists that marriage must be entirely put into the hands of the legal profession and "made a civil contract, explicit in detail, and defining terms of divorce, in the event that a dissolution of the contract is subsequently desired." He adds that medical certificates of freedom from hereditary and acquired disease should be required, and properly regulated probationary marriages also be inst.i.tuted.
In France, a deputy of the Chamber was, in 1891, so convinced that marriage is a contract, like any other contract, that he declared that "to perform music at the celebration of a marriage is as ridiculous as it would be to send for a tenor to a notary"s to celebrate a sale of timber." He was of quite different mind from Pepys, who, a couple of centuries earlier, had been equally indignant at the absence of music from a wedding, which, he said, made it like a coupling of dog and b.i.t.c.h.
A frequent demand of those who insist that marriage must be regarded as a contract is marriage contracted for a term of years. Marriages could be contracted for a term of five years or less in old j.a.pan, and it is said that they were rarely or never dissolved at the end of the term. Goethe, in his Wahlverwandtschaften (Part I, Ch. X) incidentally introduced a proposal for marriages for a term of five years and attached much moral significance to the prolongation of the marriage beyond that term without external compulsion. (Bloch considers that Goethe had probably heard of the j.a.panese custom, s.e.xual Life of Our Time, p. 241.) Professor E. D. Cope ("The Marriage Problem," Open Court, Nov. 15 and 22, 1888), likewise, in order to remove matrimony from the domain of caprice and to permit full and fair trial, advocated "a system of civil marriage contracts which shall run for a definite time. These contracts should be of the same value and effect as the existing marriage contract. The time limits should be increased rapidly, so as to prevent women of mature years being deprived of support. The first contract ought not to run for less than five years, so as to give ample opportunity for acquaintance, and for the recovery from temporary disagreements." This first contract, Cope held, should be terminable at the wish of either party; the second contract, for ten or fifteen years, should only be terminable at the wish of both parties, and the third should be permanent and indissoluble. George Meredith, the distinguished novelist, also, more recently, threw out the suggestion that marriages should be contracted for a term of years.
It can scarcely be said that marriages for a term of years const.i.tute a very satisfactory solution of the difficulties at present encountered. They would not commend themselves to young lovers, who believe that their love is eternal, nor, so long as the union proves satisfactory, is there any need to introduce the disturbing idea of a legal termination of the contract. On the other hand, if the union proves unhappy, it is not reasonable to insist on the continuation for ten or even five years of an empty form which corresponds to no real marriage union. Even if marriage is placed on the most prosaic contractive basis it is a mistake, and indeed an impossibility, to pre-ordain the length of its duration. The system of fixing the duration of marriage beforehand for a term of years involves exactly the same principle as the system of fixing it beforehand for life. It is open to the same objection that it is incompatible with any vital relationship. As the demand for vital reality and effectiveness in social relationships grows, this fact is increasingly felt. We see exactly the same change among us in regard to the system of inflicting fixed sentences of imprisonment on criminals. To send a man to prison for five years or for life, without any regard to the unknown problem of the vital reaction of imprisonment on the man-a reaction which will be different in every individual case-is slowly coming to be regarded as an absurdity.
If marriage were really placed on the basis of a contract, not only would that contract be voidable at the will of the two parties concerned, without any question of delinquency coming into the question, but those parties would at the outset themselves determine the conditions regulating the contract. But nothing could be more unlike our actual marriage. The two parties are bidden to accept each other as husband and wife; they are not invited to make a contract; they are not even told that, little as they may know it, they have in fact made a very complicated and elaborate contract that was framed on lines laid down, for a large part, thousands of years before they were born. Unless they have studied law they are totally ignorant, also, that this contract contains clauses which under some circ.u.mstances may be fatal to either of them. All that happens is that a young couple, perhaps little more than children, momentarily dazed by emotion, are hurried before the clergyman or the civil registrar of marriages, to bind themselves together for life, knowing nothing of the world and scarcely more of each other, knowing nothing also of the marriage laws, not even perhaps so much as that there are any marriage laws, never realizing that-as has been truly said-from the place they are entering beneath a garland of flowers there is, on this side of death, no exit except through the trapdoor of a sewer.[358]
When a woman marries she gives up the right to her own person. Thus, according to the law of England, a man "cannot be guilty of a rape upon his lawful wife." Stephen, who, in the first edition of his Digest of Criminal Law, thought that under some circ.u.mstances a man might be indicted for rape upon his wife, in the last edition withdrew that opinion. A man may rape a prost.i.tute, but he cannot rape his wife. Having once given her consent to s.e.xual intercourse by the act of marrying a man, she has given it forever, whatever new circ.u.mstances may arise, and he has no need to ask her consent to s.e.xual intercourse, not even if he is knowingly suffering at the time from a venereal disease (see, e.g., an article on "s.e.x Bias," Westminster Review, March, 1888).
The duty of the wife to allow "conjugal rights" to her husband is another aspect of her legal subjection to him. Even in the nineteenth century a Suffolk lady of good family was imprisoned in Ipswich Goal for many years and fed on bread and water, though suffering from various diseases, till she died, simply because she continued to disregard the decree requiring her to render conjugal rights to her husband. This state of things was partly reformed by the Matrimonial Causes Bill of 1884, and that bill was pa.s.sed, not to protect women, but men, against punishment for refusal to restore conjugal rights. Undoubtedly, the modern tendency, although it has progressed very slowly, is against applying compulsion to either husband or wife to yield "conjugal rights;" and since the Jackson case it is not possible in England for a husband to use force in attempting to compel his wife to live with him. This tendency is still more marked in the United States; thus the Iowa Supreme Court, a few years ago, decided that excessive demands for coitus const.i.tuted cruelty of a degree justifying divorce (J. G. Kiernan, Alienist and Neurologist, Nov. 1906, p. 466).
The slender tenure of the wife over her person is not confined to the s.e.xual sphere, but even extends to her right to life. In England, if a wife kills her husband, it was formerly the very serious offence of "pet.i.t treason," and it is still murder. But, if a husband kills his wife and is able to plead her adultery and his jealousy, it is only manslaughter. (In France, where jealousy is regarded with extreme indulgence, even a wife who kills her husband is often acquitted.)
It must not, however, be supposed that all the legal inequalities involved by marriage are in favor of the husband. A large number of injustices are also inflicted on the husband. The husband, for instance, is legally responsible for the libels uttered by his wife, and he is equally responsible civilly for the frauds she commits, even if she is living apart from him. (This was, for instance, held by an English judge in 1908; "he could only say he regretted it, for it seems a hard case. But it was the law.") Belfort Bax has, in recent years, especially insisted on the hardships inflicted by English law in such ways as these. There can be no doubt that marriage, as at present const.i.tuted, inflicts serious wrongs on the husband as well as on the wife.
Marriage is, therefore, not only not a contract in the true sense,[359] but in the only sense in which it is a contract it is a contract of an exceedingly bad kind. When the Canonists superseded the old conception of marriage as a contract of purchase by their sacramental marriage, they were in many respects effecting a real progress, and the return to the idea of a contract, as soon as its temporary value as a protest has ceased, proves altogether out of harmony with any advanced stage of civilization. It was revived in days before the revolt against slavery had been inaugurated. Personal contracts are out of harmony with our modern civilization and our ideas of individual liberty. A man can no longer contract himself as a slave nor sell his wife. Yet marriage, regarded as a contract, is of precisely the same cla.s.s as those transactions.[360] In every high stage of civilization this fact is clearly recognized, and young couples are not even allowed to contract themselves out in marriage unconditionally. We see this, for instance, in the wise legislation of the Romans. Even under the Christian Emperors that sound principle was maintained and the lawyer Paulus wrote:[361] "Marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity." In so far as the essence and not any accidental circ.u.mstance of the marital relationships is made a contract, it is a contract of a nature which the two parties concerned are not competent to make. Biologically and psychologically it cannot be valid, and with the growth of a humane civilization it is explicitly declared to be legally invalid.
For, there can be no doubt about it, the intimate and essential fact of marriage-the relationship of s.e.xual intercourse-is not and cannot be a contract. It is not a contract but a fact; it cannot be effected by any mere act of will on the part of the parties concerned; it cannot be maintained by any mere act of will. To will such a contract is merely to perform a worse than indecorous farce. Certainly many of the circ.u.mstances of marriage are properly the subject of contract, to be voluntarily and deliberately made by the parties to the contract. But the essential fact of marriage-a love strong enough to render the most intimate of relationships possible and desirable through an indefinite number of years-cannot be made a matter for contract. Alike from the physical point of view, and the psychical point of view, no binding contract-and a contract is worthless if it is not binding-can possibly be made. And the making of such pseudo-contracts concerning the future of a marriage, before it has even been ascertained that the marriage can ever become a fact at all, is not only impossible but absurd.
It is of course true that this impossibility, this absurdity, are never visible to the contracting parties. They have applied to the question all the very restricted tests that are conventionally permitted to them, and the satisfactory results of these tests, together with the consciousness of possessing an immense and apparently inexhaustible fund of loving emotion, seem to them adequate to the fulfilment of the contract throughout life, if not indeed eternity.
As a child of seven I chanced to be in a semi-tropical island of the Pacific supplied with fruit, especially grapes, from the mainland, and a dusky market woman always presented a large bunch of grapes to the little English stranger. But a day came when the proffered bunch was firmly refused; the superabundance of grapes had produced a reaction of disgust. A s.p.a.ce of nearly forty years was needed to overcome the repugnance to grapes thus acquired. Yet there can be no doubt that if at the age of six that little boy had been asked to sign a contract binding him to accept grapes every day, to keep them always near him, to eat them and to enjoy them every day, he would have signed that contract as joyously as any radiant bridegroom or demure bride signs the register in the vestry. But is a complex man or woman, with unknown capacities for changing or deteriorating, and with incalculable apt.i.tudes for inflicting torture and arousing loathing, is such a creature more easy to be bound to than an exquisite fruit? All the countries of the world in which the subtle influence of the Canon law of Christendom still makes itself felt, have not yet grasped a general truth which is well within the practical experience of a child of seven.[362]
The notion that such a relationship as that of marriage can rest on so fragile a basis as a pre-ordained contract has naturally never prevailed widely in its extreme form, and has been unknown altogether in many parts of the world. The Romans, as we know, explicitly rejected it, and even at a comparatively early period recognized the legality of marriage by usus, thus declaring in effect that marriage must be a fact, and not a mere undertaking. There has been a widespread legal tendency, especially where the traditions of Roman law have retained any influence, to regard the cohabitation of marriage as the essential fact of the relationship. It was an old rule even under the Catholic Church that marriage may be presumed from cohabitation (see, e.g., Zacchia, Questionum Medico-legalium Opus, edition of 1688, vol. iii, p. 234). Even in England cohabitation is already one of the presumptions in favor of the existence of marriage (though not necessarily by itself regarded as sufficient), provided the woman is of unblemished character, and does not appear to be a common prost.i.tute (Nevill Geary, The Law of Marriage, Ch. III). If, however, according to Lord Watson"s judicial statement in the Dysart Peerage case, a man takes his mistress to a hotel or goes with her to a baby-linen shop and speaks of her as his wife, it is to be presumed that he is acting for the sake of decency, and this furnishes no evidence of marriage. In Scotland the presumption of marriage arises on much slighter grounds than in England. This may be connected with the ancient and deep-rooted custom in Scotland of marriage by exchange of consent (Geary, op. cit. Ch. XVIII; cf., Howard, Matrimonial Inst.i.tutions, vol. i, p. 316).
In the Bredalbane case (Campbell v. Campbell, 1867), which was of great importance because it involved the succession to the vast estates of the Marquis of Bredalbane, the House of Lords decided than even an adulterous connection may, on ceasing to be adulterous, become matrimonial by the simple consent of the parties, as evidenced by habit and repute, without any need for the matrimonial character of the connection to be indicated by any public act, nor any necessity to prove the specific period when the consent was interchanged. This decision has been confirmed in the Dysart case (Geary, loc. cit.; cf. C. G. Garrison, "Limits of Divorce," Contemporary Review, Feb., 1894). Similarly, as decided by Justice Kekewich in the Wagstaff case in 1907, if a man leaves money to his "widow," on condition that she never marries again, although he has never been married to her, and though she has been legally married to another man, the testator"s intentions must be upheld. Garrison, in his valuable discussion of this aspect of legal marriage (loc. cit.), forcibly insists that by English law marriage is a fact and not a contract, and that where "conduct characterized by connubial purpose and constancy" exists, there marriage legally exists, marriage being simply "a name for an existing fact."
In the United States, marriage "by habit and repute" similarly exists, and in some States has even been confirmed and extended by statute (J. P. Bishop, Commentaries, vol. i, Ch. XV). "Whatever the form of the ceremony, and even if all ceremony was dispensed with," said Judge Cooley, of Michigan, in 1875 (in an opinion accepted as authoritative by the Federal courts), "if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient.... This has been the settled doctrine of the American courts." (Howard, op. cit., vol. iii, pp. 177 et seq. Twenty-three States sanction common-law marriage, while eighteen repudiate, or are inclined to repudiate, any informal agreement.)
This legal recognition by the highest judicial authorities, alike in Great Britain and the United States, that marriage is essentially a fact, and that no evidence of any form or ceremony of marriage is required for the most complete legal recognition of marriage, undoubtedly carries with it highly important implications. It became clear that the reform of marriage is possible even without change in the law, and that honorable s.e.xual relationships, even when entered into without any legal forms, are already ent.i.tled to full legal recognition and protection. There are, however, it need scarcely be added here, other considerations which render reform along these lines incomplete.
It thus tends to come about that with the growth of civilization the conception of marriage as a contract falls more and more into discredit. It is realized, on the one hand, that personal contracts are out of harmony with our general and social att.i.tude, for if we reject the idea of a human being contracting himself as a slave, how much more we should reject the idea of entering by contract into the still more intimate relationship of a husband or a wife; on the other hand it is felt that the idea of pre-ordained contracts on a matter over which the individual himself has no control is quite unreal and when any strict rules of equity prevail, necessarily invalid. It is true that we still constantly find writers sententiously a.s.serting their notions of the duties or the privileges involved by the "contract" of marriage, with no more attempt to a.n.a.lyze the meaning of the term "contract" in this connection than the Protestant Reformers made, but it can scarcely be said that these writers have yet reached the alphabet of the subject they dogmatize about.
The transference of marriage from the Church to the State which, in the lands where it first occurred, we owe to Protestantism and, in the English-speaking lands, especially to Puritanism, while a necessary stage, had the unfortunate result of secularizing the s.e.xual relationships. That is to say, it ignored the transcendent element in love which is really the essential part of such relationships, and it concentrated attention on those formal and accidental parts of marriage which can alone be dealt with in a rigid and precise manner, and can alone properly form the subject of contracts. The Canon law, fantastic and impossible as it became in many of its developments, at least insisted on the natural and actual fact of marriage as, above all, a bodily union, while, at the same time, it regarded that union as no mere secular business contract but a sacred and exalted function, a divine fact, and the symbol of the most divine fact in the world. We are returning to-day to the Canonist"s conception of marriage on a higher and freer plane, bringing back the exalted conception of the Canon law, yet retaining the individualism which the Puritan wrongly thought he could secure on the basis of mere secularization, while, further, we recognize that the whole process belongs to the private sphere of moral responsibility. As Hobhouse has well said, in tracing the evolutionary history of the modern conception of marriage, the sacramental idea of marriage has again emerged but on a higher plane; "from being a sacrament in the magical, it has become one in the ethical, sense." We are thus tending towards, though we have not yet legally achieved, marriage made and maintained by consent, "a union between two free and responsible persons in which the equal rights of both are maintained."[363]
It is supposed by some that to look upon s.e.xual union as a sacrament is necessarily to accept the ancient Catholic view, embodied in the Canon law, that matrimony is indissoluble. That is, however, a mistake. Even the Canonists themselves were never able to put forward any coherent and consistent ground for the indissolubility of matrimony which could commend itself rationally, while Luther and Milton and Wilhelm von Humboldt, who maintained the religious and sacred nature of s.e.xual union-though they were cautious about using the term sacrament on account of its ecclesiastical implications-so far from believing that its sanct.i.ty involved indissolubility, argued in the reverse sense. This point of view may be defended even from a strictly Protestant standpoint. "I take it," Mr. G. C. Maberly says, "that the Prayer Book definition of a sacrament, "the outward and visible sign of an inward and spiritual grace," is generally accepted. In marriage the legal and physical unions are the outward and visible signs, while the inward and spiritual grace is the G.o.d-given love that makes the union of heart and soul: and it is precisely because I take this view of marriage that I consider the legal and physical union should be dissolved whenever the spiritual union of unselfish, divine love and affection has ceased. It seems to me that the sacramental view of marriage compels us to say that those who continue the legal or physical union when the spiritual union has ceased, are-to quote again from the Prayer Book words applied to those who take the outward sign of another sacrament when the inward and spiritual grace is not present-"eating and drinking their own d.a.m.nation.""