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 Mœurs 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."