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.
There is always a tendency, at certain stages of
civilization, to
insist on a merely formal and external uniformity,
and a
corresponding failure to see not only that such
uniformity is
unreal, but also that it has an injurious effect, in
so far as it
checks beneficial variations. The tendency is by no
means
confined to the sexual sphere. In England there is,
for instance,
a tendency to make building laws which enjoin, in
regard to
places of human habitation, all sorts of provisions
that on the
whole are fairly beneficial, but which in practice
act
injuriously, because they render many simple and
excellent human
habitations absolutely illegal, merely because such
habitations
fail to conform to regulations which, under some
circumstances,
are not only unnecessary, but mischievous.
Variation is a fact that will exist whether we will
or no; it can
only become healthful if we recognize and allow for
it. We may
even have to recognize that it is a more marked
tendency in
civilization than in more primitive social stages.
Thus Gerson
argues (_Sexual-Probleme_, Sept., 1908, p. 538) that
just as the
civilized man cannot be content with the coarse and
monotonous
food which satisfies the peasant, so it is in sexual
matters; the
peasant youth and girl in their sexual relationships
are nearly
always monogamous, but civilized people, with their
more
versatile and sensitive tastes, are apt to crave for
variety.
Sénancour (_De l'Amour_, vol. ii, "Du Partage," p.
127) seems to
admit the possibility of marriage variations, as of
sharing a
wife, provided nothing is done to cause rivalry, or
to impair the
soul's candor. Lecky, near the end of his _History
of European
Morals_, declared his belief that, while the
permanent union of
two persons is the normal and prevailing type of
marriage, it by
no means follows that, in the interests of society,
it should be
the only form. Remy de Gourmont similarly (_Physique
de l'Amour_,
p. 186), while stating that the couple is the
natural form of
marriage and its prolonged continuance a condition
of human
superiority, adds that the permanence of the union
can only be
achieved with difficulty. So, also, Professor W.
Thomas (_Sex and
Society_, 1907, p. 193), while regarding monogamy as
subserving
social needs, adds: "Speaking from the biological standpoint
monogamy does not, as a rule, answer to the
conditions of highest
stimulation, since here the problematical and
elusive elements
disappear to some extent, and the object of
attention has grown
so familiar in consciousness that the emotional
reactions are
qualified. This is the fundamental explanation of
the fact that
married men and women frequently become interested
in others than
their partners in matrimony."
Pepys, whose unconscious self-dissection admirably
illustrates so
many psychological tendencies, clearly shows how--by
a logic of
feeling deeper than any intellectual logic--the
devotion to
monogamy subsists side by side with an irresistible
passion for
sexual variety. With his constantly recurring
wayward attraction
to a long series of women he retains throughout a
deep and
unchanging affection for his charming young wife. In
the privacy
of his _Diary_ he frequently refers to her in terms
of endearment
which cannot be feigned; he enjoys her society; he
is very
particular about her dress; he delights in her
progress in music,
and spends much money on her training; he is
absurdly jealous
when he finds her in the society of a man. His
subsidiary
relationships with other women recur irresistibly,
but he has no
wish either to make them very permanent or to allow
them to
engross him unduly. Pepys represents a common type
of civilized
"monogamist" who is perfectly sincere and extremely convinced in
his advocacy of monogamy, as he understands it, but
at the same
time believes and acts on the belief that monogamy
by no means
excludes the need for sexual variation. Lord
Morley's statement
(_Diderot_, vol. ii, p. 20) that "man is
instinctively
polygamous," can by no means be accepted, but if we interpret it
as meaning that man is an instinctively monogamous
animal with a
concomitant desire for sexual variation, there is
much evidence
in its favor.
Women must be as free as men to mould their own
amatory life.
Many consider, however, that such freedom on the