Most attempts or proposals for the avoidance of illegitimate births are concerned with the legalizing of unions of a less binding degree than the present legal marriage. Such unions would serve to counteract other evils. Thus an English writer, who has devoted much study to sex questions, writes in a private letter: "The best remedy for the licentiousness of celibate men and the mental and physical troubles of continence in woman would be found in a recognized honorable system of free unions and trial-marriages, in which preventive intercourse is practiced until the lovers were old enough to become parents, and possessed of sufficient means to support a family. The prospect of a loveless existence for young men and women of ardent natures is intolerable and as terrible as the prospect of painful illness and death. But I think the old order must change ere long."
In Teutonic countries there is a strongly marked current of feeling in the direction of establishing legal unions of a lower degree than marriage. They exist in Sweden, as also in Norway where by a recent law the illegitimate child is entitled to the same rights in relation to both parents as the legitimate child, bearing the father's name and inheriting his property (Die Neue Generation, July, 1909, p. 303). In France the well-known judge, Magnard, so honorably distinguished for his attitude towards cases of infanticide by young mothers, has said: "I heartily wish that alongside the institution of marriage as it now exists we had a free union constituted by simple declaration before a magistrate and conferring almost the same family rights as ordinary marriage." This wish has been widely echoed.
In China, although polygamy in the strict sense cannot properly be said to exist, the interests of the child, the woman, and the State are alike safeguarded by enabling a man to enter into a kind of secondary marriage with the mother of his child. "Thanks to this system," Paul d'Enjoy states (La Revue, Sept., 1905), "which allows the husband to marry the woman he desires, without being prevented by previous and undissolved unions, it is only right to remark that there are no seduced and abandoned girls, except such as no law could save from what is really innate depravity; and that there are no illegitimate children except those whose mothers are unhappily nearer to animals by their senses than to human beings by their reason and dignity."
The new civil code of Japan, which is in many respects so advanced, allows an illegitimate child to be "recognized" by giving notice to the registrar; when a married man so recognizes a child, it appears, the child may be adopted by the wife as her own, though not actually rendered legitimate. This state of things represents a transition stage; it can scarcely be said to recognize the rights of the "recognized" child's mother. Japan, it may be added, has adopted the principle of the automatic legitimation by marriage of the children born to the couple before marriage.
In Australia, where women possess a larger share than elsewhere in making and administering the laws, some attention is beginning to be given to the rights of illegitimate children. Thus in South Australia, paternity may be proved before birth, and the father (by magistrate's order) provides lodging for one month before and after birth, as well as nurse, doctor, and clothing, furnishing security that he will do so; after birth, at the magistrate's decision, he pays a weekly sum for the child's maintenance. An "illegitimate" mother may also be kept in a public institution at the public expense for six months to enable her to become attached to her child.
Such provisions are developed from the widely recognized right of the unmarried woman to claim support for her child from its father. In France, indeed, and in the legal codes which follow the French example, it is not legally permitted to inquire into the paternity of an illegitimate child. Such a law is, needless to say, alike unjust to the mother, to the child, and to the State. In Austria, the law goes to the opposite, though certainly more reasonable, extreme, and permits even the mother who has had several lovers to select for herself which she chooses to make responsible for her child. The German code adopts an intermediate course, and comes only to the aid of the unmarried mother who has one lover. In all such cases, however, the aid given is pecuniary only; it insures the mother no recognition or respect, and (as Wahrmund has truly said in his Ehe und Eherecht) it is still necessary to insist on "the unconditional sanctity of motherhood, which is entitled, under whatever circumstances it arises, to the respect and protection of society."
It must be added that, from the social point of view, it is not the sexual union which requires legal recognition, but the child which is the product of that union. It would, moreover, be hopeless to attempt to legalize all sexual connection, but it is comparatively easy to legalize all children.
There has been much discussion in the past concerning the particular form which marriage ought to take. Many theorists have exercised their ingenuity in inventing and preaching new and unusual marriage-arrangements as panaceas for social ills; while others have exerted even greater energy in denouncing all such proposals as subversive of the foundations of human society. We may regard all such discussions, on the one side or the other, as idle.
In the first place marriage customs are far too fundamental, far too intimately blended with the primary substance of human and indeed animal society, to be in the slightest degree shaken by the theories or the practices of mere individuals, or even groups of individuals. Monogamy—the more or less prolonged cohabitation of two individuals of opposite sex—has been the prevailing type of sexual relationship among the higher vertebrates and through the greater part of human history. This is admitted even by those who believe (without any sound evidence) that man has passed through a stage of sexual promiscuity. There have been tendencies to variation in one direction or another, but at the lowest stages and the highest stages, so far as can be seen, monogamy represents the prevailing rule.
It must be said also, in the second place, that the natural prevalence of monogamy as the normal type of sexual relationship by no means excludes variations. Indeed it assumes them. "There is nothing precise in Nature," according to Diderot's saying. The line of Nature is a curve that oscillates from side to side of the norm. Such oscillations inevitably occur in harmony with changes in environmental conditions, and, no doubt, with peculiarities of personal disposition. So long as no arbitrary and merely external attempt is made to force Nature, the vital order is harmoniously maintained. Among certain species of ducks when males are in excess polyandric families are constituted, the two males attending their female partner without jealousy, but when the sexes again become equal in number the monogamic order is restored. The natural human deviations from the monogamic order seem to be generally of this character, and largely conditioned by the social and economic environment. The most common variation, and that which most clearly possesses a biological foundation, is the tendency to polygyny, which is found at all stages of culture, even, in an unrecognized and more or less promiscuous shape, in the highest civilization.[[371]] It must be remembered, however, that recognized polygyny is not the rule even where it prevails; it is merely permissive; there is never a sufficient excess of women to allow more than a few of the richer and more influential persons to have more than one wife.[[372]]