Divorce.—In cases in which one partner to a marriage suffers from disease, divorce should be rendered as easy as possible. The interests of the children are often put forward as reasons against this course. There is no doubt that many married couples to-day refrain from separation or divorce solely because they regard it as to their children’s interest that they should continue to live together. But it is precisely on the ground of the children’s interest that such marriages ought to be dissolved, and that the child or children should remain with the healthy parent. The opposite course would only destroy the happiness of the healthy parent, without doing the other parent any good.
Marriage-Prohibitions in Past Times.—The marriage-prohibitions of former times may be classified under two heads, ecclesiastical and civil. The leading principle of the canon law of marriage is the limitation to monogamy of the permissible forms of the sexual relationship. More strictly, indeed, we may say, the limitation to ecclesiastical marriage. Marriage is a sacrament, and therefore indissoluble; it conforms to ecclesiastical law only when certain formalities have been observed, and when no ecclesiastical prohibition has been infringed (differences in religious belief, broken vows, &c.).
Civil marriage prohibitions date chiefly from the seventeenth and eighteenth centuries. They owe their origin to the fear lest parents should allow their offspring to become chargeable to the community, and especially to the poor-law authorities. Such marriage-prohibitions, of course, concerned chiefly the lower classes of the population, and especially mendicants, prostitutes, persons in receipt of poor relief, persons of disorderly life, offenders against the criminal law. A marriage concluded in defiance of such prohibitions involved the deprivation of certain legal rights, and also rendered the offenders liable to punishment.
To-day, in the sphere of marriage-law, ecclesiastical law has largely lost significance, and continues to lose what little it still possesses, so that its marriage-prohibitions are coming to possess little more than historical interest. The civil marriage prohibitions were repealed in the nineteenth century, because they were found to have no other effect than to increase the number of illegal unions and the births of illegitimate children, and because they merely increased the burdens upon the poor-law. Even in the nineteenth century, however, certain political parties—the Conservatives, for example—desire that these civil prohibitions should be reintroduced, but in this form, that the marriage of persons actually in receipt of poor relief should be forbidden, or that persons belonging to the lower classes should be allowed to marry only when able to demonstrate the possession of a small capital.
Marriage-prohibitions still exist to-day. The difference is merely this, that in place of the ecclesiastical prohibitions and the civil prohibitions affecting members of the lower classes, moral, hygienic, and economic prohibitions and hindrances have come into being, affecting the middle classes. The State, as a rule, insists upon absolute celibacy in the case of its female employees. Soldiers and officers are hemmed in by rigid regulations, by which marriage is to a large extent rendered impossible; in the case of the proletariat, the liability to compulsory military service offers the greatest obstacle to early marriage. From Catholic priests, ecclesiastical prohibitions demand absolute celibacy. As the result of these various marriage-prohibitions, many persons who would probably have been able to procreate healthy children are prevented marrying. But there is to-day hardly any difficulty in the way of the marriage of persons whose union is likely to lead to the procreation of defective children. At most, minors, certified lunatics, confirmed drunkards, wards in chancery, and near relatives are forbidden to marry.
Proposed Reforms.—Increasing attention is, however, being paid to the possible legal applications of the doctrine of evolution. Even those who are opposed to any radical reforms see that persons suffering from communicable venereal disease must be unconditionally forbidden, on pain of very severe punishment, not merely to contract marriage, not merely to practise sexual intercourse, but to perform any act, of whatever kind, by which they could communicate infection. The existing state of the law, by which, notwithstanding the great frequency of such occurrences, isolated instances only of the transmission of venereal diseases are punished (for example, the case of the nurse who infects the child entrusted to her care), is altogether unsatisfactory; the communication of any kind of venereal infection, in any possible way, should be severely punished.
Those who recognise the need for improving the human species by purposive selection go much further than this. They desire that every person with regard to whom there is strong reason to believe that his or her offspring would be diseased, and every man or woman in a state in which he or she would transmit infection to the sexual partner, should be stringently forbidden to marry. Such persons are: those with disease of the central nervous system, mental disorder, mental weakness, epilepsy, hysteria, idiocy; those with diminished moral responsibility; those suffering from syphilis, gonorrhœa, tuberculosis, rachitis; cripples, &c.
Objections.—The following objections are raised by those who are adverse to the institution of such marriage prohibitions as these: (a) They limit personal freedom, and even in some cases actually abolish it. (b) By means of marriage-prohibitions, it is possible to limit the number of legitimate children born, but not the number of children as a whole, since persons to whom legal marriage is forbidden will in that case procreate illegitimate children. But it is far from being desirable that this should happen. All the defects previously enumerated would be present in such children, and their birth would be unconditionally harmful to society. It is statistically proved that marriage-prohibitions lead to an increase in the number of illegitimate births. In Bavaria, for example, down to the year 1868, the local authorities imposed an unconditional veto upon the marriage of persons supported solely by wage-earning; against this prohibition there was no appeal whatever. In the year 1868 was passed the law relating to marriage and domicile, by which most of the former marriage-prohibitions were repealed. The sequel of this was that, whereas from 1854 to 1868 illegitimate births constituted 22 per cent. of all births, in the seven years following 1868 the percentage of illegitimate births fell to 12·6 per cent. (c) It is better, say the objectors, that a man suffering from venereal disease should marry, for in that case he makes only one woman unhappy and procreates a few children only. But if he is forbidden to marry, he has intercourse with numerous women, especially with prostitutes, he infects many women, and procreates more children. (d) Marriage-prohibitions do not prevent unhappy marriages only, but also those which would be likely to prove happy. Many couples enter into marriage for other reasons than desire for sexual intercourse. There are also many sick persons upon whom marriage exercises a curative influence—curing, or at least alleviating, the disease from which they suffer. For example, many alcoholics become abstemious or temperate as a result of marriage; many weakly and delicate girls become strong and healthy women when they marry. Many marriages are happy although husband and wife do not practise sexual intercourse; and it is by no means uncommon for a woman to marry a sick man simply because she pities him, and wishes to act as his sick-nurse. (e) Marriage-prohibitions accentuate class contrasts. (f) Diseased persons commonly have no offspring. (g) Diseased persons to whom, after consideration of their case, marriage is permitted, have the responsibility taken out of their hands, and consequently tend to lose all sense of responsibility. (h) Marriage-prohibitions interfere with natural selection, inasmuch as they render impossible the acquirement of immunity to disease and the process of regeneration. (i) It would be a logical counterpart to marriage-prohibitions to compel healthy persons to enter upon marriage—a course that is obviously impracticable.
The Right View.—The prohibitions suggested in the section on “[Proposed Reforms]” are sound in principle. The prevention of the birth of such children as are born in the absence of effective prohibitions of this kind, effects an enormous social economy. The children of thoroughly healthy parents, who have married from love, are the healthiest; such marriages are, therefore, to be promoted. But it does not follow that all other marriages than these should be prevented. This would go too far, and would, moreover, be utterly impracticable. Marriage-prohibitions must not err by excess, and too energetic intervention in these matters is undesirable. For such a course of action would render it impossible for very many persons to marry; and, in fact, no one with any disease, mild or severe, and no one with any kind of defect of body or mind, could enter upon marriage. All that is practicable is, in the first place, to prevent the marriage of those who are obviously suffering from serious disease; and, in the second place, to prevent the marriage of persons exhibiting defects of bodily development, or in whom the sexual characters are inadequately developed, even though such persons cannot be said to be suffering from disease (e.g. women with weakly-formed breasts, with poor hips, with a badly-formed pelvis, &c.)