immense revolution by which it grasped, and eventually transferred to the State, the complete control of marriage, for that revolution was effected without the intervention of any law. It will be equally difficult to perceive the transference of the control of marriage from the State to the individuals concerned, and the more difficult because, as we shall see, although the essential and intimately personal fact of marriage is not a proper matter for State control, there are certain aspects of marriage which touch the interests of the community so closely that the State is bound to insist on their registration and to take an interest in their settlement.
The result of dissolving the formal stringency of the marriage relationship, it is sometimes said, would be a tendency to an immoral laxity. Those who make this statement overlook the fact that laxity tends to reach a maximum as a result of stringency, and that where the merely external authority of a rigid marriage law prevails, there the extreme excesses of license most flourish. It is also undoubtedly true, and for the same reason, that any sudden removal of restraints necessarily involves a reaction to the opposite extreme of license; a slave is not changed at a stroke into an autonomous freeman. Yet we have to remember that the marriage order existed for millenniums before any attempt was made to mould it into arbitrary shapes by human legislation. Such legislation, we have seen, was indeed the effort of the human spirit to affirm more emphatically the demands of its own instincts.[365] But its final result is to choke and impede rather than to further the instincts which inspired it. Its gradual disappearance allows the natural order free and proper scope.
The great truth that compulsion is not really a force on the side of virtue, but on the side of vice, had been clearly realized by the genius of Rabelais, when he said of his ideal social state, the Abbey of Thelema, that there was but one clause in its rule: Fay ce que vouldras. "Because," said Rabelais (Bk. i, Ch. VII), "men that are free, well-born, well-bred, and conversant in honest companies, have naturally an instinct and spur that prompts them unto virtuous actions and withdraws them from vice. These same men, when by base subjection and constraint they are brought under and kept down, turn aside from that noble disposition by which they freely were inclined to virtue, to shake off and break that bond of servitude." So that when a man and a woman who had lived under the rule of Thelema married each other, Rabelais tells us, their mutual love lasted undiminished to the day of their death.
When the loss of autonomous freedom fails to lead to licentious rebellion it incurs the opposite risk and tends to become a flabby reliance on an external support. The artificial support of marriage by State regulation then resembles the artificial support of the body furnished by corset-wearing. The reasons for and against adopting artificial support are the same in one case as the other. Corsets really give a feeling of support; they really furnish without trouble a fairly satisfactory appearance of decorum; they are a real protection against various accidents. But the price at which they furnish these advantages is serious, and the advantages themselves only exist under unnatural conditions. The corset cramps the form and the healthy development of the organs; it enfeebles the voluntary muscular system; it is incompatible with perfect grace and beauty; it diminishes the sum of active energy. It exerts, in short, the same kind of influence on physical responsibility as formal marriage on moral responsibility.
It is too often forgotten, and must therefore be repeated, that married people do not remain together because of any religious or legal tie; that tie is merely the historical outcome of their natural tendency to remain together, a tendency which is itself far older than history. "Love would exist in the world to-day, just as pure and just as enduring," says Shufeldt (_Medico-Legal Journal_, Dec., 1897), "had man never invented 'marriage.' Truly affined mates would have remained faithful to each other as long as life lasted. It is only when men attempt to improve upon nature that crime, disease, and unhappiness step in." "The abolition of marriage in the form now practiced," wrote Godwin more than a century ago (_Political Justice_, second edition, 1796, vol. i, p. 248), "will be attended with no evils. We are apt to represent it to ourselves as the harbinger of brutal lust and depravity. But it really happens in this, as in other cases, that the positive laws which are made to restrain our vices irritate and multiply them." And Professor Lester Ward, in insisting on the strength of the monogamic sentiment in modern society, truly remarks (_International Journal of Ethics_, Oct., 1896) that the rebellion against rigid marriage bonds "is, in reality, due to the very strengthening of the true bonds of conjugal affection, coupled with a rational and altogether proper determination on the part of individuals to accept, in so important a matter, nothing less than the genuine article." "If by a single stroke," says Professor Woods Hutchinson (_Contemporary Review_, Sept., 1905), "all marriage ties now in existence were struck off or declared illegal, eight-tenths of all couples would be remarried within forty eight hours, and seven-tenths could not be kept asunder with bayonets." An experiment of this kind on a small scale was witnessed in 1909 in an English village in Buckinghamshire. It was found that the parish church had never been licensed for marriages, and that in consequence all the people who had gone through the ceremony of marriage in that church during the previous half century had never been legally married. Yet, so far as could be ascertained, not a single couple thus released from the legal compulsion of marriage took advantage of the freedom bestowed. In the face of such a fact it is obviously impossible to attach any moral value to the form of marriage.
It is certainly inevitable that during a period of transition the natural order is to some extent disturbed by the persistence, even though in a weakened form, of external bonds which are beginning to be consciously realized as inimical to the authoritative control of individual moral responsibility. We can clearly trace this at the present time. A sensitive anxiety to escape from external constraint induces an under-valuation of the significance of personal constraint in the relationship of marriage. Everyone is probably familiar with cases in which a couple will live together through long years without entering the legal bond of marriage, notwithstanding difficulties in their mutual relationship which would have long since caused a separation or a divorce had they been legally married. When the inherent difficulties of the marital relationship are complicated by the difficulties due to external constraint, the development of individual moral responsibility cuts two ways, and leads to results that are not entirely satisfactory. This has been seen in the United States of America and attention has often been called to it by thoughtful American observers. It is, naturally, noted especially in women because it is in women that the new growth of personal freedom and moral responsibility has chiefly made itself felt. The first stirring of these new impulses, especially when associated, as it often is, with inexperience and ignorance, leads to impatience with the natural order, to a demand for impossible conditions of existence, and to an inaptitude not only for the arbitrary bondage of law but even for the wholesome and necessary bonds of human social life. It is always a hard lesson for the young and idealistic that in order to command Nature we must obey her; it can only be learnt through contact with life and by the attainment of full human growth.
Dr. Felix Adler (in an address before the Society of Ethical Culture of New York, Nov. 17, 1889) called attention to what he regarded as the most deep-rooted cause of an undue prevalence of divorce in America. "The false idea of individual liberty is largely held in America," and when applied to family life it often leads to an impatience with these duties which the individual is either born into or has voluntarily accepted. "I am constrained to think that the prevalence of divorce is to be ascribed in no small degree to the influence of democratic ideas--that is, of false democratic ideas--and our hope lies in advancing towards a higher and truer democracy." A more recent American writer, this time a woman, Anna A. Rogers ("Why American Marriages Fail," _Atlantic Monthly_, Sept., 1907) speaks in the same sense, though perhaps in too unqualified a manner. She states that the frequency of divorce in America is due to three causes: (1) woman's failure to realize that marriage is her work in the world; (2) her growing individualism; (3) her lost art of giving, replaced by a highly developed receptive faculty. The American woman, this writer states, in discovering her own individuality has not yet learnt how to manage it; it is still "largely a useless, uneasy factor, vouchsafing her very little more peace than it does those in her immediate surcharged vicinity." Her circumstances tend to make of her "a curious anomalous hybrid; a cross between a magnificent, rather unmannerly boy, and a spoiled, exacting _demi-mondaine_, who sincerely loves in this world herself alone." She has not yet learnt that woman's supreme work in the world can only be attained through the voluntary acceptance of the restraints of marriage. The same writer points out that the fault is not alone with American women, but also with American men. Their idolatry of their women is largely responsible for that intolerance and selfishness which causes so many divorces; "American women are, as a whole, pampered and worshipped out of all reason." But the men, who lend themselves to this, do not feel that they can treat their wives with the same comradeship as the French treat their wives, nor seek their advice with the same reliance; the American woman is placed on an unreal pedestal. Yet another American writer, Rafford Pyke ("Husbands and Wives," _Cosmopolitan_, 1902), points out that only a small proportion of American marriages are really unhappy, these being chiefly among the more cultured classes, in which the movement of expansion in women's interests and lives is taking place; it is more often the wife than the husband who is disappointed in marriage, and this is largely due to her inability to merge, not necessarily subordinate, her individuality in an equal union with his. "Marriage to-day is becoming more and more dependent for its success upon the adjustment of conditions that are psychical. Whereas in former generations it was sufficient that the union should involve physical reciprocity, in this age of ours the union must involve a psychic reciprocity as well. And whereas, heretofore, the community of interest was attained with ease, it is now becoming far more difficult because of the tendency to discourage a woman who marries from merging her separate individuality in her husband's. Yet, unless she does this, how can she have a complete and perfect interest in the life together, and, for that matter, how can he have such an interest either?"
Professor Münsterberg, the distinguished psychologist, in his frank but appreciative study of American institutions, _The Americans_, taking a broader outlook, points out that the influence of women on morals in America has not been in every respect satisfactory, in so far as it has tended to encourage shallowness and superficiality. "The American woman who has scarcely a shred of education," he remarks (p. 587), "looks in vain for any subject on which she has not firm convictions already at hand...The arrogance of this feminine lack of knowledge is the symptom of a profound trait in the feminine soul, and points to dangers springing from the domination of women in the intellectual life...And in no other civilized land are ethical conceptions so worm-eaten by superstitions."
We have seen that the modern tendency as regards marriage is towards its recognition as a voluntary union entered into by two free, equal, and morally responsible persons, and that that union is rather of the nature of an ethical sacrament than of a contract, so that in its essence as a physical and spiritual bond it is outside the sphere of the State's action. It has been necessary to labor that point before we approach what may seem to many not only a different but even a totally opposed aspect of marriage. If the marriage union itself cannot be a matter for contract, it naturally leads to a fact which must necessarily be a matter for implicit or explicit contract, a matter, moreover, in which the community at large has a real and proper interest: that is the fact of procreation.[366] The ancient Egyptians--among whom matrimonial institutions were so elastic and the position of woman so high--recognized a provisional and slight marriage bond for the purpose of testing fecundity.[367] Among ourselves the law makes no such paternal provision, leaving to young couples themselves the responsibility of making any tests, a permission, we know, they largely avail themselves of, usually entering the legal bonds of marriage, however, before the birth of their child. That legal bond is a recognition that the introduction of a new individual into the community is not, like sexual union, a mere personal fact, but a social fact, a fact in which the State cannot fail to be concerned. And the more we investigate the tendency of the modern marriage movement the more we shall realize that its attitude of freedom, of individual moral responsibility, in the formation of sexual relationships, is compensated by an attitude of stringency, of strict social oversight, in the matter of procreation. Two people who form an erotic relationship are bound, when they reach the conviction that their relationship is a real marriage, having its natural end in procreation, to subscribe to a contract which, though it may leave themselves personally free, must yet bind them both to their duties towards their children.[368] The necessity for such an undertaking is double, even apart from the fact that it is in the highest interests of the parents themselves. It is required in the interests of the child. It is required in the interests of the State. A child can be bred, and well-bred, by one effective parent. But to equip a child adequately for its entrance into life both parents are usually needed. The State on its side--that is to say, the community of which parents and child alike form part--is bound to know who these persons are who have become sponsors for a new individual now introduced into its midst. The most Individualistic State, the most Socialistic State, are alike bound, if faithful to the interests, both biological and economic, of their constituent members generally, to insist on the full legal and recognized parentage of the father and mother of every child. That is clearly demanded in the interests of the child; it is clearly demanded also in the interests of the State.
The barrier which in Christendom has opposed itself to the natural recognition of this fact, so injuring alike the child and the State, has clearly been the rigidity of the marriage system, more especially as moulded by the Canon law. The Canonists attributed a truly immense importance to the _copula carnalis_, as they technically termed it. They centred marriage strictly in the vagina; they were not greatly concerned about either the presence or the absence of the child. The vagina, as we know, has not always proved a very firm centre for the support of marriage, and that centre is now being gradually transferred to the child. If we turn from the Canonists to the writings of a modern like Ellen Key, who so accurately represents much that is most characteristic and essential in the late tendencies of marriage development, we seem to have entered a new world, even a newly illuminated world. For "in the new sexual morality, as in Corregio's _Notte_, the light emanates from the child."[369] No doubt this change is largely a matter of sentiment, of, as we sometimes say, mere sentiment, although there is nothing so powerful in human affairs as sentiment, and the revolution effected by Jesus, the later revolution effected by Rousseau, were mainly revolutions in sentiment. But the change is also a matter of the growing recognition of interests and rights, and as such it manifests itself in law. We can scarcely doubt that we are approaching a time when it will be generally understood that the entrance into the world of every child, without exception, should be preceded by the formation of a marriage contract which, while in no way binding the father and mother to any duties, or any privileges, towards each other, binds them both towards their child and at the same time ensures their responsibility towards the State. It is impossible for the State to obtain more than this, but it should be impossible for it to demand less. A contract of such a kind "marries" the father and mother so far as the parentage of the individual child is concerned, and in no other respect; it is a contract which leaves entirely unaffected their past, present, or future relations towards other persons, otherwise it would be impossible to enforce it. In all parts of the world this elementary demand of social morality is slowly beginning to be recognized, and as it affects hundreds of thousands of infants[370] who are yearly branded as "illegitimate" through no act of their own, no one can say that the recognition has come too soon. As yet, indeed, it seems nowhere to be complete.
Most attempts or proposals for the avoidance of illegitimate births are concerned with the legalizing of unions of a less binding degree than the present legal marriage. Such unions would serve to counteract other evils. Thus an English writer, who has devoted much study to sex questions, writes in a private letter: "The best remedy for the licentiousness of celibate men and the mental and physical troubles of continence in woman would be found in a recognized honorable system of free unions and trial-marriages, in which preventive intercourse is practiced until the lovers were old enough to become parents, and possessed of sufficient means to support a family. The prospect of a loveless existence for young men and women of ardent natures is intolerable and as terrible as the prospect of painful illness and death. But I think the old order must change ere long."
In Teutonic countries there is a strongly marked current of feeling in the direction of establishing legal unions of a lower degree than marriage. They exist in Sweden, as also in Norway where by a recent law the illegitimate child is entitled to the same rights in relation to both parents as the legitimate child, bearing the father's name and inheriting his property (_Die Neue Generation_, July, 1909, p. 303). In France the well-known judge, Magnard, so honorably distinguished for his attitude towards cases of infanticide by young mothers, has said: "I heartily wish that alongside the institution of marriage as it now exists we had a free union constituted by simple declaration before a magistrate and conferring almost the same family rights as ordinary marriage." This wish has been widely echoed.
In China, although polygamy in the strict sense cannot properly be said to exist, the interests of the child, the woman, and the State are alike safeguarded by enabling a man to enter into a kind of secondary marriage with the mother of his child. "Thanks to this system," Paul d'Enjoy states (_La Revue_, Sept., 1905), "which allows the husband to marry the woman he desires, without being prevented by previous and undissolved unions, it is only right to remark that there are no seduced and abandoned girls, except such as no law could save from what is really innate depravity; and that there are no illegitimate children except those whose mothers are unhappily nearer to animals by their senses than to human beings by their reason and dignity."
The new civil code of Japan, which is in many respects so advanced, allows an illegitimate child to be "recognized" by giving notice to the registrar; when a married man so recognizes a child, it appears, the child may be adopted by the wife as her own, though not actually rendered legitimate. This state of things represents a transition stage; it can scarcely be said to recognize the rights of the "recognized" child's mother. Japan, it may be added, has adopted the principle of the automatic legitimation by marriage of the children born to the couple before marriage.
In Australia, where women possess a larger share than elsewhere in making and administering the laws, some attention is beginning to be given to the rights of illegitimate children. Thus in South Australia, paternity may be proved before birth, and the father (by magistrate's order) provides lodging for one month before and after birth, as well as nurse, doctor, and clothing, furnishing security that he will do so; after birth, at the magistrate's decision, he pays a weekly sum for the child's maintenance. An "illegitimate" mother may also be kept in a public institution at the public expense for six months to enable her to become attached to her child.
Such provisions are developed from the widely recognized right of the unmarried woman to claim support for her child from its father. In France, indeed, and in the legal codes which follow the French example, it is not legally permitted to inquire into the paternity of an illegitimate child. Such a law is, needless to say, alike unjust to the mother, to the child, and to the State. In Austria, the law goes to the opposite, though certainly more reasonable, extreme, and permits even the mother who has had several lovers to select for herself which she chooses to make responsible for her child. The German code adopts an intermediate course, and comes only to the aid of the unmarried mother who has one lover. In all such cases, however, the aid given is pecuniary only; it insures the mother no recognition or respect, and (as Wahrmund has truly said in his _Ehe und Eherecht_) it is still necessary to insist on "the unconditional sanctity of motherhood, which is entitled, under whatever circumstances it arises, to the respect and protection of society."
It must be added that, from the social point of view, it is not the sexual union which requires legal recognition, but the child which is the product of that union. It would, moreover, be hopeless to attempt to legalize all sexual connection, but it is comparatively easy to legalize all children.
There has been much discussion in the past concerning the particular form which marriage ought to take. Many theorists have exercised their ingenuity in inventing and preaching new and unusual marriage-arrangements as panaceas for social ills; while others have exerted even greater energy in denouncing all such proposals as subversive of the foundations of human society. We may regard all such discussions, on the one side or the other, as idle.
In the first place marriage customs are far too fundamental, far too intimately blended with the primary substance of human and indeed animal society, to be in the slightest degree shaken by the theories or the practices of mere individuals, or even groups of individuals. Monogamy--the more or less prolonged cohabitation of two individuals of opposite sex--has been the prevailing type of sexual relationship among the higher vertebrates and through the greater part of human history. This is admitted even by those who believe (without any sound evidence) that man has passed through a stage of sexual promiscuity. There have been tendencies to variation in one direction or another, but at the lowest stages and the highest stages, so far as can be seen, monogamy represents the prevailing rule.
It must be said also, in the second place, that the natural prevalence of monogamy as the normal type of sexual relationship by no means excludes variations. Indeed it assumes them. "There is nothing precise in Nature," according to Diderot's saying. The line of Nature is a curve that oscillates from side to side of the norm. Such oscillations inevitably occur in harmony with changes in environmental conditions, and, no doubt, with peculiarities of personal disposition. So long as no arbitrary and merely external attempt is made to force Nature, the vital order is harmoniously maintained. Among certain species of ducks when males are in excess polyandric families are constituted, the two males attending their female partner without jealousy, but when the sexes again become equal in number the monogamic order is restored. The natural human deviations from the monogamic order seem to be generally of this character, and largely conditioned by the social and economic environment. The most common variation, and that which most clearly possesses a biological foundation, is the tendency to polygyny, which is found at all stages of culture, even, in an unrecognized and more or less promiscuous shape, in the highest civilization.[371] It must be remembered, however, that recognized polygyny is not the rule even where it prevails; it is merely permissive; there is never a sufficient excess of women to allow more than a few of the richer and more influential persons to have more than one wife.[372] It has further to be borne in mind that a certain elasticity of the formal side of marriage while, on the one side, it permits variations from the general monogamic order, where such are healthful or needed to restore a balance in natural conditions, on the other hand restrains such variations in so far as they are due to the disturbing influence of artificial constraint. Much of the polygyny, and polyandry also, which prevails among us to-day is an altogether artificial and unnatural form of polygamy. Marriages which on a more natural basis would be dissolved cannot legally be dissolved, and consequently the parties to them, instead of changing their partners and so preserving the natural monogamic order, take on other additional partners and so introduce an unnatural polygamy. There will always be variations from the monogamic order and civilization is certainly not hostile to sexual variation. Whether we reckon these variations as legitimate or illegitimate, they will still take place; of that we may be certain. The path of social wisdom seems to lie on the one hand in making the marriage relationship flexible enough to reduce to a minimum these deviations--not because such deviations are intrinsically bad but because they ought not to be forced into existence--and on the other hand in according to these deviations when they occur such a measure of recognition as will deprive them of injurious influence and enable justice to be done to all the parties concerned. We too often forget that our failure to recognize such variations merely means that we accord in such cases an illegitimate permission to perpetrate injustice. In those parts of the world in which polygyny is recognized as a permissible variation a man is legally held to his natural obligations towards all his sexual mates and towards the children he has by those mates. In no part of the world is polygyny so prevalent as in Christendom; in no part of the world is it so easy for a man to escape the obligations incurred by polygyny. We imagine that if we refuse to recognize the fact of polygyny, we may refuse to recognize any obligations incurred by polygyny. By enabling a man to escape so easily from the obligations of his polygamous relationships we encourage him, if he is unscrupulous, to enter into them; we place a premium on the immorality we loftily condemn.[373] Our polygyny has no legal existence, and therefore its obligations can have no legal existence. The ostrich, it was once imagined, hides its head in the sand and attempts to annihilate facts by refusing to look at them; but there is only one known animal which adopts this course of action, and it is called Man.
Monogamy, in the fundamental biological sense, represents the natural order into which the majority of sexual facts will always naturally fall because it is the relationship which most adequately corresponds to all the physical and spiritual facts involved. But if we realize that sexual relationships primarily concern only the persons who enter into those relationships, and if we further realize that the interest of society in such relationships is confined to the children which they produce, we shall also realize that to fix by law the number of women with whom a man shall have sexual relationships, and the number of men with whom a woman shall unite herself, is more unreasonable than it would be to fix by law the number of children they shall produce. The State has a right to declare whether it needs few citizens or many; but in attempting to regulate the sexual relationships of its members the State attempts an impossible task and is at the same time guilty of an impertinence.