one's mind by the title which the Austrian Marriage Reform Association 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 entitled to a divorce enabling them to remarry. This provision is in accordance with the humane conception of the sexual 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-sexual 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 "circumstances 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 principality 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 institutions. 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 assertion, 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 Münsterberg, 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 circumstances 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 Japan 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 sexual 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 sanctity 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 sexual 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 Japan, 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 Japan," _American Journal Sociology_, March, 1903). Such a system, like so much else achieved by Japanese 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 sexes 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 (Stefánsson, _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 petition, 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 entitled 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 document to this effect: "Since between N. and his wife there is discord instead of charity according to God, 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 Bedollière, _Histoire des Moeurs des Français_, 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 institutions 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 masses, 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 assured, the only solution which the growing modern sense of personal responsibility in sexual 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 sexual 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 institutions, 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 institution 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 circumstances 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 institution which, like marriage, reposes only on inclination and an inward sense of duty; and the results of such coercive institutions 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 circumstances, 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. Sénancour seems to agree with Montesquieu. Lord Morley (_Diderot_, vol. ii, Ch. I), echoing and approving the conclusions of Diderot's _Supplément 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 (_Sexual Life of Our Time_, p. 240), with many other writers, emphasizes the truth of Shelley'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 über die Freiheit der Ehe_), while disclaiming any prevision of the future, declares that if sexual 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 institutions (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 Japanese plan seems simple and judicious (see _ante_, p. 461). Paul and Victor Margueritte (_Quelques Idées_, pp. 3 et seq.), while realizing that the conflict of feeling in the matter of personal associations 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 Sexualis 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 assumes 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 sexual 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 sexual 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 attitude towards sexual 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 circumstances 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.