It is too often forgotten, and must therefore be repeated, that married people do not remain together because of any religious or legal tie; that tie is merely the historical outcome of their natural tendency to remain together, a tendency which is itself far older than history. "Love would exist in the world to-day, just as pure and just as enduring," says Shufeldt (Medico-Legal Journal, Dec., 1897), "had man never invented 'marriage.' Truly affined mates would have remained faithful to each other as long as life lasted. It is only when men attempt to improve upon nature that crime, disease, and unhappiness step in." "The abolition of marriage in the form now practiced," wrote Godwin more than a century ago (Political Justice, second edition, 1796, vol. i, p. 248), "will be attended with no evils. We are apt to represent it to ourselves as the harbinger of brutal lust and depravity. But it really happens in this, as in other cases, that the positive laws which are made to restrain our vices irritate and multiply them." And Professor Lester Ward, in insisting on the strength of the monogamic sentiment in modern society, truly remarks (International Journal of Ethics, Oct., 1896) that the rebellion against rigid marriage bonds "is, in reality, due to the very strengthening of the true bonds of conjugal affection, coupled with a rational and altogether proper determination on the part of individuals to accept, in so important a matter, nothing less than the genuine article." "If by a single stroke," says Professor Woods Hutchinson (Contemporary Review, Sept., 1905), "all marriage ties now in existence were struck off or declared illegal, eight-tenths of all couples would be remarried within forty eight hours, and seven-tenths could not be kept asunder with bayonets." An experiment of this kind on a small scale was witnessed in 1909 in an English village in Buckinghamshire. It was found that the parish church had never been licensed for marriages, and that in consequence all the people who had gone through the ceremony of marriage in that church during the previous half century had never been legally married. Yet, so far as could be ascertained, not a single couple thus released from the legal compulsion of marriage took advantage of the freedom bestowed. In the face of such a fact it is obviously impossible to attach any moral value to the form of marriage.
It is certainly inevitable that during a period of transition the natural order is to some extent disturbed by the persistence, even though in a weakened form, of external bonds which are beginning to be consciously realized as inimical to the authoritative control of individual moral responsibility. We can clearly trace this at the present time. A sensitive anxiety to escape from external constraint induces an under-valuation of the significance of personal constraint in the relationship of marriage. Everyone is probably familiar with cases in which a couple will live together through long years without entering the legal bond of marriage, notwithstanding difficulties in their mutual relationship which would have long since caused a separation or a divorce had they been legally married. When the inherent difficulties of the marital relationship are complicated by the difficulties due to external constraint, the development of individual moral responsibility cuts two ways, and leads to results that are not entirely satisfactory. This has been seen in the United States of America and attention has often been called to it by thoughtful American observers. It is, naturally, noted especially in women because it is in women that the new growth of personal freedom and moral responsibility has chiefly made itself felt. The first stirring of these new impulses, especially when associated, as it often is, with inexperience and ignorance, leads to impatience with the natural order, to a demand for impossible conditions of existence, and to an inaptitude not only for the arbitrary bondage of law but even for the wholesome and necessary bonds of human social life. It is always a hard lesson for the young and idealistic that in order to command Nature we must obey her; it can only be learnt through contact with life and by the attainment of full human growth.
Dr. Felix Adler (in an address before the Society of Ethical Culture of New York, Nov. 17, 1889) called attention to what he regarded as the most deep-rooted cause of an undue prevalence of divorce in America. "The false idea of individual liberty is largely held in America," and when applied to family life it often leads to an impatience with these duties which the individual is either born into or has voluntarily accepted. "I am constrained to think that the prevalence of divorce is to be ascribed in no small degree to the influence of democratic ideas—that is, of false democratic ideas—and our hope lies in advancing towards a higher and truer democracy." A more recent American writer, this time a woman, Anna A. Rogers ("Why American Marriages Fail," Atlantic Monthly, Sept., 1907) speaks in the same sense, though perhaps in too unqualified a manner. She states that the frequency of divorce in America is due to three causes: (1) woman's failure to realize that marriage is her work in the world; (2) her growing individualism; (3) her lost art of giving, replaced by a highly developed receptive faculty. The American woman, this writer states, in discovering her own individuality has not yet learnt how to manage it; it is still "largely a useless, uneasy factor, vouchsafing her very little more peace than it does those in her immediate surcharged vicinity." Her circumstances tend to make of her "a curious anomalous hybrid; a cross between a magnificent, rather unmannerly boy, and a spoiled, exacting demi-mondaine, who sincerely loves in this world herself alone." She has not yet learnt that woman's supreme work in the world can only be attained through the voluntary acceptance of the restraints of marriage. The same writer points out that the fault is not alone with American women, but also with American men. Their idolatry of their women is largely responsible for that intolerance and selfishness which causes so many divorces; "American women are, as a whole, pampered and worshipped out of all reason." But the men, who lend themselves to this, do not feel that they can treat their wives with the same comradeship as the French treat their wives, nor seek their advice with the same reliance; the American woman is placed on an unreal pedestal. Yet another American writer, Rafford Pyke ("Husbands and Wives," Cosmopolitan, 1902), points out that only a small proportion of American marriages are really unhappy, these being chiefly among the more cultured classes, in which the movement of expansion in women's interests and lives is taking place; it is more often the wife than the husband who is disappointed in marriage, and this is largely due to her inability to merge, not necessarily subordinate, her individuality in an equal union with his. "Marriage to-day is becoming more and more dependent for its success upon the adjustment of conditions that are psychical. Whereas in former generations it was sufficient that the union should involve physical reciprocity, in this age of ours the union must involve a psychic reciprocity as well. And whereas, heretofore, the community of interest was attained with ease, it is now becoming far more difficult because of the tendency to discourage a woman who marries from merging her separate individuality in her husband's. Yet, unless she does this, how can she have a complete and perfect interest in the life together, and, for that matter, how can he have such an interest either?"
Professor Münsterberg, the distinguished psychologist, in his frank but appreciative study of American institutions, The Americans, taking a broader outlook, points out that the influence of women on morals in America has not been in every respect satisfactory, in so far as it has tended to encourage shallowness and superficiality. "The American woman who has scarcely a shred of education," he remarks (p. 587), "looks in vain for any subject on which she has not firm convictions already at hand.... The arrogance of this feminine lack of knowledge is the symptom of a profound trait in the feminine soul, and points to dangers springing from the domination of women in the intellectual life.... And in no other civilized land are ethical conceptions so worm-eaten by superstitions."
We have seen that the modern tendency as regards marriage is towards its recognition as a voluntary union entered into by two free, equal, and morally responsible persons, and that that union is rather of the nature of an ethical sacrament than of a contract, so that in its essence as a physical and spiritual bond it is outside the sphere of the State's action. It has been necessary to labor that point before we approach what may seem to many not only a different but even a totally opposed aspect of marriage. If the marriage union itself cannot be a matter for contract, it naturally leads to a fact which must necessarily be a matter for implicit or explicit contract, a matter, moreover, in which the community at large has a real and proper interest: that is the fact of procreation.[[366]]
The ancient Egyptians—among whom matrimonial institutions were so elastic and the position of woman so high—recognized a provisional and slight marriage bond for the purpose of testing fecundity.[[367]] Among ourselves the law makes no such paternal provision, leaving to young couples themselves the responsibility of making any tests, a permission, we know, they largely avail themselves of, usually entering the legal bonds of marriage, however, before the birth of their child. That legal bond is a recognition that the introduction of a new individual into the community is not, like sexual union, a mere personal fact, but a social fact, a fact in which the State cannot fail to be concerned. And the more we investigate the tendency of the modern marriage movement the more we shall realize that its attitude of freedom, of individual moral responsibility, in the formation of sexual relationships, is compensated by an attitude of stringency, of strict social oversight, in the matter of procreation. Two people who form an erotic relationship are bound, when they reach the conviction that their relationship is a real marriage, having its natural end in procreation, to subscribe to a contract which, though it may leave themselves personally free, must yet bind them both to their duties towards their children.[[368]]
The necessity for such an undertaking is double, even apart from the fact 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.