I
Marriage, by a strictly technical definition, is a natural habit; that is to say, it is a relationship proceeding out of the common instinct of male and female to mate, and to remain together until after the birth of one or more children.[10] Organized society, on the other hand, always makes it a civil institution, and sometimes a religious institution. So long as man remained in the natural state, roaming about in search of his food as do the apes today, it may be supposed that marriage was based on personal preference and involved only the selective disposition of the individual man and woman and their common concern for the safety of their offspring. But as advancing civilization enabled mankind more easily to obtain and augment its food-supply, and consequently to secure greater safety and also to satisfy its gregarious instinct by living in numerous communities, the habit of marriage underwent a process of sanction and regulation by the group, and was thus transformed into a civil institution. While society remains ethnical, the family exercises supervision over the sexual relations of its members, but always subject to the approval or disapproval of the larger group—the tribe or clan. When the political State emerges, this function continues to be exercised by the family, but it is subject to sanction by the State and is gradually absorbed by it. Yet even where the State has usurped almost all the prerogatives of the family, custom continues to give powerful sanction to interference in marriage both by relatives and by the community.
Where the tribal religion takes on the form of ancestor-worship, or where much importance is attached to burial-rites, marriage and reproduction take on a religious significance. “As the dead,” says Dr. Elsie Clews Parsons, “are dependent on the living for the performance of their funeral rites and sacrificial observances, marriage itself as well as marriage according to prescribed conditions, child-begetting and bearing, become religious duties. Marriage ceremonial not infrequently takes on a religious character. Infanticide, abortion, celibacy other than celibacy of a sacerdotal character, and adultery, become sins. The punishment of the adulteress is particularly severe, although in some cases her value as property may guarantee her against punishment by death.”[11]
Thus there may be, and in most civilized societies there is, a fourfold interference in marriage: interference by the family, by the community, by the State, and by the Church. An old Russian song had it that marriages were contracted
By the will of God,
By decree of the Czar,
By order of the Master,
By decision of the community,
—with not a word about the two persons immediately concerned. Nor is this strange, for marriage is not generally conceived of among either primitive or highly civilized peoples as a personal relationship. It is an economic arrangement, an alliance between families, a means for getting children. To allow so unruly a passion as love to figure in the selection of a mate, is an irregularity which may under certain circumstances be tolerated, but one which is nevertheless likely to be regarded with extreme disapproval. As individualism makes progress against group-tyranny, the preliminaries and the actual contracting of marriage become less the affair of God, the State, the family and the community, and more the affair of the two people chiefly interested; but once contracted, the marriage can hardly be said, even in the most civilized community, to be free of considerable regulation by these four influences. The time which Spencer foresaw, when “the union by affection will be held of primary moment and the union by law as of secondary moment,” has by no means arrived. If the married couple be Roman Catholics, for example, they may not free themselves from an unhappy marriage without paying the penalty of excommunication; and if they live in a State dominated by the Catholic Church, they may be legally estopped from freeing themselves at all. Nor may they, save by continence, limit the number of their offspring without risking the same penalty. If they are Episcopalians or Lutherans they may divorce only on the ground of adultery, and the guilty party is forbidden to remarry. In communities where the influence of other Protestant sects predominates, and where, therefore, divorce and remarriage are not formally forbidden by the Church, the pressure of public opinion may yet operate to prevent them. The State not only prescribes the form that marriage shall take, but it may also either prohibit divorce—as in South Carolina, for example—or forbid it save in accordance with such regulations as it sees fit to make; and these regulations are not only of a kind that make divorce prohibitive to the poor, but they are often so humiliating as to constitute an effective barrier to the dissolution of unhappy unions. The State of New York offers an excellent illustration. Adultery is the only ground upon which divorce is allowed, and even then it may be refused if the action is taken by mutual consent. The couple who wish to be divorced must therefore, if there be no legal cause, go through the demoralizing business of making a case, which means that one or the other must provide at least the appearance of “misconduct”; and even then they are in danger of being found in collusion. But suppose one party to be giving legal ground; then the other party, in order to get proof, is obliged to resort to the lowest kind of espionage. Such disreputable methods, however much they be in keeping with the nature and practices of the State, are hardly becoming to civilized society, and civilized persons are indisposed towards them. Their general effect is therefore to discourage application for divorce in New York and encourage it elsewhere.
It is significant of the unspiritual estimate generally put upon marriage, that incompatibility is rarely allowed as a legal ground of divorce. Violation of the sexual monopoly that marriage implies; pre-nuptial unchastity on the part of the woman; impotence; cruelty; desertion; failure of support; insanity; all of these or some of them are the grounds generally recognized where divorce is allowed at all. This is to say that society demands a specific grievance of one party against the other, a grievance having physical or economic consequences, as a prerequisite to freedom from the marriage-bond. The fact that marriage may be a failure spiritually is seldom taken into account. Yet there is no difficulty about which less can be done. Infidelity may be forgiven and in time forgotten; the deserter may return; the delinquent may be persuaded to support his family; the insane person may recover; even impotence may be cured. But if two people are out of spiritual correspondence, if they are not at ease in one another’s society, there is nothing to be done about it. “Anything,” says Turgenev, “may be smoothed over, memories of even the most tragic domestic incidents gradually lose their strength and bitterness; but if once a sense of being ill at ease installs itself between two closely united persons, it can never be dislodged.” Modern society is slowly, very slowly, coming into the wisdom which prompted this observation. The gradual liberalization of the divorce-laws which our moralists regard as a symptom of modern disrespect for the sacredness of marriage, is in fact a symptom of a directly opposite tendency—the tendency to place marriage on a higher spiritual plane than it has hitherto occupied.
The State assumes the right either to allow artificial limitation of offspring or to make it a crime; and it exercises this assumption according to its need for citizens[12] or the complexion of its religious establishment. It also fixes the relative status and rights of the two parties. In several American States, for instance, a married woman is incompetent to make contracts or to fix her legal residence. The Virginia law recognizes the primary right of the father to the custody of the child, yet it makes the mother criminally liable for the support of children. On the other hand, the husband is everywhere required by law to support his wife. Such laws, of course, like most laws, are felt only when the individual comes into conflict with them. The State does not interfere in many cases where married couples subvert its regulations—for example, the law which entitles the husband to his wife’s services in the home and permits him to control her right to work outside the home, does not become binding save in cases where the husband sees fit to invoke it. As a rule the State forbids fornication and adultery.[13] In case of separation and divorce, if the parties disagree concerning financial arrangements or the custody of children, it exercises the right to arbitrate these matters.
The sanctions of interference by the family, save in the contracting of marriage by minors, are at present those of custom, affection, and (in so far as it exists and may be made effective) economic power. When two persons have decided to marry, for instance, it remains quite generally customary for the man to go through the formality of asking the woman’s nearest male relation for her hand. This is of course a survival from the period when a woman’s male guardian had actual power to prevent her marrying without his consent. The influence of affection is too obvious to require illustration; it is the subtlest and most powerful sanction of family interference. Economic power is perhaps most commonly used to prevent or compel the contracting of marriage. It may make itself felt, where parents or other relatives are well-to-do, in threats of disinheritance if prospective heirs undertake to make marriages which are displeasing to them. A striking instance of the use of this power is the will of the late Jay Gould, which required each of his children to obtain consent of the others before marrying. It is not uncommon for legators to stipulate that legatees shall or shall not marry before a certain age under penalty of losing their inheritance.
These influences do not always, of course, take the same direction. At present, for example, artificial limitation of offspring receives irregular but effective community-sanction in face of opposition by Church and State. Or again, public opinion almost universally condemns the idea that a father may, by his will, remove his children from the custody of their mother, although the State, as in Maryland and Delaware, may sanction such an act. But, however much they may check one another, these influences are all constantly operating to restrict and regulate marriage away from its original intention as a purely personal relationship, and to keep it in the groove of economic and social institutionalism. The reasons for this are to be found in the vestigiary fear of sex, love of power, love of the habitual, religious superstition, and above all in the notion that the major interests of the group are essentially opposed to those of the individual and are more important than his. A combination of two of these motives has recently come under my own observation in the case of a young woman whose parents can not forgive her for having divorced a man whom she did not love and married a man whom she did. They were accustomed to their first son-in-law, and resent the necessity of adjusting themselves to the idea of having a new one. Moreover, they feel that their daughter should have spared them the “disgrace” of a divorce. The fact that she was unhappy in her first marriage and is happy in her second seems to have little weight with them. They did their best to prevent her second marriage and are at present exerting every effort to make it unsuccessful. It is needless to emphasize the fact that this order of interference can not be expected to disappear while the notion persists that the actions of one adult member of a family or group can possibly reflect credit or discredit upon all the other members.