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.