It is clear how these provisions of the law are totally opposed to the
demands of reason and morality. Yet at the same time it is equally clear
how no efforts of the lawyers, however skilful or humane those efforts may
be, can bring the present law into harmony with the demands of modern
civilization. It is not the lawyers who are at fault; they have done
their best, and, in England, it is entirely owing to the skilful and
cautious way in which the judges have so far as possible pressed the law
into harmony with modern needs, that our antiquated divorce laws have
survived at all. It is the system which is wrong. That system is the
illegitimate outgrowth of the Canon law which grew up around conceptions
long since dead. It involves the placing of the person who imperils the
theoretical indissolubility of the matrimonial bond in the position of a
criminal, now that he can no longer be publicly condemned as a sinner. To
aid and abet that criminal is itself an offence, and the aider and abettor
of the criminal must, therefore, be inconsequently punished by the curious
method of refraining from punishing the criminal. We do not openly assert
that the defendant in a divorce case is a criminal; that would be to
render the absurdity of it too obvious, and, moreover, would be hardly
consistent with the permission to claim damages which is based on a
different idea. We hover uncertainly between two conceptions of divorce,
both of them bad, each inconsistent with the other, and neither of them
capable of being pushed to its logical conclusions.

The result is that if a perfectly virtuous married couple comes forward to
claim divorce, they are told that it is out of the question, for in such a
case there must be a "defendant." They are to be punished for their
virtue. If each commits adultery and they again come forward to claim
divorce, they are told that it is still out of the question, for there
must be a "plaintiff." Before they were punished for their virtue; now
they are to be punished in exactly the same way for their lack of it. The
couple must humor the law by adopting a course of action which may be
utterly repugnant to both. If only the wife alone will commit adultery, if
only the husband will commit adultery and also inflict some act of cruelty
upon his wife, if the innocent party will descend to the degradation of
employing detectives and hunting up witnesses, the law is at their feet
and hastens to accord to both parties the permission to remarry. Provided,
of course, that the parties have arranged this without "collusion." That
is to say that our law, with its ecclesiastical traditions behind it,
says to the wife: Be a sinner, or to the husband: Be a sinner and a
criminal--then we will do all you wish. The law puts a premium on sin and
on crime. In order to pile absurdity on absurdity it claims that this is
done in the cause of "public morality." To those who accept this point of
view it seems that the sweeping away of divorce laws would undermine the
bases of morality. Yet there can be little doubt that the sooner such
"morality" is undermined, and indeed utterly destroyed, the better it will
be for true morality.

There is an influential movement in England for the reform of
divorce, on the grounds that the present law is unjust,
illogical, and immoral, represented by the Divorce Law Reform
Union. Even the former president of the Divorce Court, Lord
Gorell, declared from the bench in 1906 that the English law
produces deplorable results, and is "full of inconsistencies,
anomalies and inequalities, amounting almost to absurdities." The
points in the law which have aroused most protest, as being most
behind the law of other nations, are the great expense of
divorce, the inequality of the sexes, the failure to grant
divorces for desertion and in cases of hopeless insanity, and the
failure of separation orders to enable the separated parties to
marry again. Separation orders are granted by magistrates for
cruelty, adultery, and desertion. This "separation" is really the
direct descendant of the Canon law divorce _a mensa et thoro_,
and the inability to marry which it involves is merely a survival
of the Canon law tradition. At the present time
magistrates--exercising their discretion, it is admitted, in a
careful and prudent manner--issue some 7,000 separation orders
annually, so that every year the population is increased by
14,000 individuals mostly in the age of sexual vigor, and some
little more than children, who are forbidden by law to form legal
marriages. They contribute powerfully to the great forward
movement which, as was shown in the previous chapter, marks the
morality of our age. But it is highly undesirable that free
marriages should be formed, helplessly, by couples who have no
choice in the matter, for it is unlikely that under such
circumstances any high level of personal responsibility can be
reached. The matter could be easily remedied by dropping
altogether a Canon law tradition which no longer has any vitality
or meaning, and giving to the magistrate's separation order the
force of a decree of divorce.

New Zealand and the Australian colonies, led by Victoria in 1889,
have passed divorce laws which, while more or less framed on the
English model, represent a distinct advance. Thus in New Zealand
the grounds for divorce are adultery on either side, wilful
desertion, habitual drunkenness, and conviction to imprisonment
for a term of years.

It is natural that an Englishman should feel acutely sensitive to this
blot in the law of England and desire the speedy disappearance of a system
so open to scathing sarcasm. It is natural that every humane person should
grow impatient of the spectacle of so many blighted lives, of so much
misery inflicted on innocent persons--and on persons who even when
technically guilty are often the victims of unnatural circumstances--by
the persistence of a mediæval system of ecclesiastical tyranny and
inquisitorial insolence into an age when sexual relationships are becoming
regarded as the sacred secret of the persons intimately concerned, and
when more and more we rely on the responsibility of the individual in
making and maintaining such relationships.

When, however, we refrain from concentrating our attention on particular
countries and embrace the general movement of civilization in the matter
of divorce during recent times, there cannot be the slightest doubt as to
the direction of that movement. England was a pioneer in the movement half
a century ago, and to-day every civilized country is moving in the same
direction. France broke with the old ecclesiastical tradition of the
indissolubility of matrimony in 1885 by a divorce law in some respects
very reasonable. The wife may obtain a divorce on an equality with the
husband (though she is liable to imprisonment for adultery), the
co-respondent occupies a very subordinate position in adultery charges,
and facility is offered for divorce on the ground of simple _injures
graves_ (excluding as far as possible mere incompatibility of temper),
while the judge has the power, which he often successfully exerts, to
effect a reconciliation in private or to grant a decree without public
trial. The influence of France has doubtless been influential in moulding
the divorce laws of the other Latin countries.

In Prussia an enlightened divorce law formerly prevailed by which it was
possible for a couple to separate without scandal when it was clearly
shown that they could not live together in agreement. But the German Code
of 1900 introduced provisions as regards divorce which--while in some
respects more liberal than those of the English law, especially by
permitting divorce for desertion and insanity--are, on the whole,
retrograde as compared with the earlier Prussian law and place the matter
on a cruder and more brutal basis. For two years after the Code came into
operations the number of divorces sank; after that the public and the
courts adapted themselves to the new provisions (more especially one which
allowed divorce for serious neglect of conjugal duties) and the number of
divorces began to increase with great rapidity. "But," remarks Hirschfeld,
"how painful it has now become to read divorce cases! One side abuses the
other, makes accusations of the grossest character, employs detectives to
obtain the necessary proofs of 'dishonorable and immoral conduct,'
whereas, before, both parties realized that they had been deceived in each
other, that they failed to suit each other, and that they could no longer
live together. Thus we see that the narrowing of individual responsibility
in sexual matters has not only had no practical effect, but leads to
injurious results of a serious kind."[343] In England a similar state of
things has prevailed ever since divorce was established, but it seems to
have become too familiar to excite either pain or disgust. Yet, as Adner
has pointed out,[344] it has moved in a direction contrary to the general
tendency of civilization, not only by increasing the inquisitorial
authority of public courts but by emphasizing merely external causes of
divorce and abolishing the more subtle internal causes which constantly
grow in importance with the refinement of civilization.

In Austria until recent years, Canon law ruled absolutely, and matrimony
was indissoluble, as it still remains for the Catholic population. The
results as regards matrimonial happiness were in the highest degree
deplorable. Half a century ago Gross-Hoffinger investigated the marital
happiness of 100 Viennese couples of all social classes, without choice of
cases, and presented the results in detail. He found that 48 couples were
positively unhappy, only 16 were undoubtedly happy, and even among these
there was only one case in which happiness resulted from mutual
faithfulness, happiness in the other cases being only attained by setting
aside the question of fidelity.[345] This picture, it is to be hoped, no
longer remains true. There is an influential Austrian Marriage Reform
Association, publishing a journal called _Die Fessel_, or The Fetter. "One
was chained to another," we are told. "In certain circumstances this must
have been the worst and most torturing penalty of all. The most bizarre
and repulsive couplings took place. There were, it is true, many
affectionate companionships of the chain. But there were many more which
inflicted an eternity of suffering upon one of the pair." This quotation,
it must be added, has nothing to do with what the Canonists, borrowing the
technical term for a prisoner's shackles, suggestively termed the
_vinculum matrimonii_; it was written many years ago concerning the
galleys of the old French convict system. It is, however, recalled to
one's mind by the 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.

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 contract contains clauses which under
some circumstances may be fatal to either of them. All that happens is
that a young couple, perhaps little more than children, momentarily dazed