Marriage, in so far as it is the partnership for mutual help and consolation of two people who in such partnership are free, if they please, to exercise sexual union, is an elementary right of every person who is able to reason, who is guilty of no fraud or concealment, and who is not likely to injure the partner selected, for in that case society is entitled to interfere by virtue of its duty to protect its members. But the right to marry, thus understood, in no way involves the right to procreate. For while marriage per se only affects the two individuals concerned, and in no way affects the State, procreation, on the other hand, primarily affects the community which is ultimately made up of procreated persons, and only secondarily affects the two individuals who are the instruments of procreation. So that just as the individual couple has the first right in the question of marriage, the State has the first right in the question of procreation. The State is just as incompetent to lay down the law about marriage as the individual is to lay down the law about procreation.
That, however, is only one-half of the folly committed by those who would select the candidates for matrimony by statute. Let us suppose—as is not indeed easy to suppose—that a community will meekly accept the abstract prohibitions of the statute book and quietly go home again when the registrar of marriages informs them that they are shut out from legal matrimony by the new table of prohibited degrees. An explicit prohibition to procreate within marriage is an implicit permission to procreate outside marriage. Thus the undesirable procreation, instead of being carried out under the least dangerous conditions, is carried out under the most dangerous conditions, and the net result to the community is not a gain but a loss.
What seems usually to happen, in the presence of a formal legislative prohibition against the marriage of a particular class, is a combination of various evils. In part the law becomes a dead letter, in part it is evaded by skill and fraud, in part it is obeyed to give rise to worse evils. This happened, for instance, in the Terek district of the Caucasus where, on the demand of a medical committee, priests were prohibited from marrying persons among whose relatives or ancestry any cases of leprosy had occurred. So much and such various mischief was caused by this order that it was speedily withdrawn.[[452]]
If we remember that the Catholic Church was occupied for more than a thousand years in the attempt to impose the prohibition of marriage on its priesthood,—an educated and trained body of men, who had every spiritual and worldly motive to accept the prohibition, and were, moreover, brought up to regard asceticism as the best ideal in life,[[453]]—we may realize how absurd it is to attempt to gain the same end by mere casual prohibitions issued to untrained people with no motives to obey such prohibitions, and no ideals of celibacy.
The hopelessness and even absurdity of effecting the eugenic improvement of the race by merely placing on the statute book prohibitions to certain classes of people to enter the legal bonds of matrimony as at present constituted, reveals the weakness of those who undervalue the eugenic importance of environment. Those who affirm that heredity is everything and environment nothing seem strangely to forget that it is precisely the lower classes—those who are most subjected to the influence of bad environment—who procreate most copiously, most recklessly, and most disastrously. The restraint of procreation, and a concomitant regard for heredity, increase pari passu with improvement of the environment and rise in social well-being. If even already it can be said that probably fifty per cent. of sexual intercourse—perhaps the most procreatively productive moiety—takes place outside legal marriage, it becomes obvious that statutory prohibition to the unfit classes to refrain from legal marriage merely involves their joining the procreating classes outside legal matrimony. It is also clear that if we are to neglect the factor of environment, and leave the lower social classes to the ignorance and recklessness which are the result of such environment, the only practical method of eugenics left open is that by castration and abortion. But this method—if applied on a wholesale scale as it would need to be[[454]] and without reference to the consent of the individual—is entirely opposed to modern democratic feeling. Thus those short-sighted eugenists who overlook the importance of environment are overlooking the only practical channel through which their aims can be realized. Attention to procreation and attention to environment are not, as some have supposed, antagonistic, but they play harmoniously into each other's hands. The care for environment leads to a restraint on reckless procreation, and the restraint of procreation leads to improved environment.
Legislation on marriage, to be effectual, must be enacted in the home, in the school, in the doctor's consulting room. Force is helpless here; it is education that is needed, not merely instruction, but the education of the conscience and will, and the training of the emotions.
Legal action may come in to further this process of education, though it cannot replace it. Thus it is very desirable that when there has been a concealment of serious disease by a party to a marriage such concealment should be a ground for divorce. Epilepsy may be taken as typical of the diseases which should be a bar to procreation, and their concealment equivalent to an annulment of marriage.[[455]] In the United States the Supreme Court of Errors of Connecticut laid it down in 1906 that the Superior Court has the power to pass a decree of divorce when one of the parties has concealed the existence of epilepsy. This weighty deliverence, it has been well said,[[456]] marks a forward step in human progress. There are many other seriously pathological conditions in which divorce should be pronounced, or indeed, occur automatically, except when procreation has been renounced, for in that case the State is no longer concerned in the relationship, except to punish any fraud committed by concealment.
The demand that a medical certificate of health should be compulsory on marriage, has been especially made in France. In 1858, Diday, of Lyons, proposed, indeed, that all persons, without exception, should be compelled to possess a certificate of health and disease, a kind of sanitary passport. In 1872, Bertillon (Art. "Demographic," Dictionnaire Encyclopédique des Sciences Médicales) advocated the registration, at marriage, of the chief anthropological and pathological traits of the contracting parties (height, weight, color of hair and eyes, muscular force, size of head, condition of vision, hearing, etc., deformities and defects, etc.), not so much, however, for the end of preventing undesirable marriages, as to facilitate the study and comparison of human groups at particular periods. Subsequent demands, of a more limited and partial character, for legal medical certificates as a condition of marriage, have been made by Fournier (Syphilis et Mariage, 1890), Cazalis (Le Science et le Mariage, 1890), and Jullien (Blenorrhagie et Mariage, 1898). In Austria, Haskovec, of Prague ("Contrat Matrimonial et L'Hygiène Publique," Comptes-rendus Congrès International de Médecine, Lisbon, 1906, Section VII, p. 600), argues that, on marriage, a medical certificate should be presented, showing that the subject is exempt from tuberculosis, alcoholism, syphilis, gonorrhœa, severe mental, or nervous, or other degenerative state, likely to be injurious to the other partner, or to the offspring. In America, Rosenberg and Aronstam argue that every candidate for marriage, male or female, should undergo a strict examination by a competent board of medical examiners, concerning (1) Family and Past History (syphilis, consumption, alcoholism, nervous, and mental diseases), and (2) Status Presens (thorough examination of all the organs); if satisfactory, a certificate of matrimonial eligibility would then be granted. It is pointed out that a measure of this kind would render unnecessary the acts passed by some States for the punishment by fine, or imprisonment, of the concealment of disease. Ellen Key also considers (Liebe und Ehe, p. 436) that each party at marriage should produce a certificate of health. "It seems to me just as necessary," she remarks, elsewhere (Century of the Child, Ch. I), "to demand medical testimony concerning capacity for marriage, as concerning capacity for military service. In the one case, it is a matter of giving life; in the other, of taking it, although certainly the latter occasion has hitherto been considered as much the more serious."
The certificate, as usually advocated, would be a private but necessary legitimation of the marriage in the eyes of the civil and religious authorities. Such a step, being required for the protection alike of the conjugal partner and of posterity, would involve a new legal organization of the matrimonial contract. That such demands are so frequently made, is a significant sign of the growth of moral consciousness in the community, and it is good that the public should be made acquainted with the urgent need for them. But it is highly undesirable that they should, at present, or, perhaps, ever, be embodied in legal codes. What is needed is the cultivation of the feeling of individual responsibility, and the development of social antagonism towards those individuals who fail to recognize their responsibility. It is the reality of marriage, and not its mere legal forms, that it is necessary to act upon.