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.
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
institution 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 substitution 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 associated 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 analysis 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 attitude
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
passed.
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 instituted.
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 bitch.
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 Japan, 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 Japanese custom,
_Sexual 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
constitute 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 co