Passing now to consider the objections in detail, (a) is true. But the mode of action of a State which introduces such marriage-prohibitions differs quantitatively only, not qualitatively, from the mode of action of other States to-day. The marriage-prohibitions now in existence certainly limit personal freedom; but in other departments of the activity of the modern State we encounter numerous institutions by which individual liberty is far more seriously impaired. Consider, for instance, compulsory military service: the modern State insists that all young men shall undergo a medical examination, and that those found to be physically fit shall devote the best years of their life to the service of the State. Besides, when we are considering the common weal, the question of individual liberty is no longer decisive. The notion that it is an inalienable right of every human being to found a family may be quietly dismissed as a piece of egregious sentimentality. (b) By punitive measures, and by the diffusion of enlightenment, it is possible to prevent the classes of persons here mentioned from entering into illegitimate sexual relationships. Women will not allow themselves to become entangled with men to whom, for the reasons here considered, marriage is forbidden; first of all, because such men are considered to be of inferior worth; in the second place, because, in view of the fact that an intimacy (liaison) cannot lead to marriage, the intimacy is regarded as fruitless, (c) The probability of transmitting venereal infection and the probability of procreating children are both considerably greater in cases of long-enduring intimacy than where there are numerous, brief, frequently-changed sexual relationships. (d) It is altogether exceptional for marriage to exercise a curative influence upon the progress of a disease, and this probability is one which can never be counted upon. Once the marriage is contracted, sexual intercourse and the procreation of children cannot be prevented. (f) As regards persons suffering from tuberculosis and alcoholism, the reverse of what was stated in objection (f) is definitely established. (h) The data available as to the immunising influence of inherited diseases against the same diseases accidentally acquired (e.g. of congenital syphilis against acquired syphilis) are extremely debatable. They seem, indeed, to show provisionally that such an immunising effect is non-existent. The question of regeneration is still obscure, and requires thorough investigation. It is certainly possible that in some cases intermarriage between the diseased and the healthy may lead, not to the deterioration, but to the improvement of the race, owing to the fact that thereby favourable elements are introduced into the family. The principal argument against this idea of regeneration is that, from marriages in which both parties are healthy, healthier offspring unquestionably result, than from marriages in which one or both parties are diseased. The resulting postulate is, that the healthy should marry the healthy.
How to Effect Reforms.—No general rules can be formulated regarding the marriage of persons suffering from disease. The majority of diseases are of such a nature that their existence can be established only by means of direct medical examination. In most cases, medical examination will not justify the assertion that the particular person must be altogether forbidden to marry, but only that this particular person ought not to marry some other specifically indicated individual; should the question arise regarding another proposed marriage (that is to say, with a different individual), then a fresh medical examination will be desirable. For example, we cannot lay it down as a general rule that the marriage of persons suffering from tuberculosis must be unconditionally forbidden; all we are able to say is, that when anyone suffering from tuberculosis desires to marry, that person ought first to submit to a thorough medical examination. It is therefore necessary that prior to marriage there should be a medical examination made by one of a number of doctors officially appointed for this purpose. As a result of their examination, these officials will give an opinion, whether the marriage of the person they have examined with some other person specifically named is or is not desirable in the interest of the common weal.
There is yet another way in which this idea might be carried out. (a) Everyone wishing to marry should provide, in addition to the various documents which are now requisite to the official sanction of marriage, a medical certificate to the effect that he is free from any disease which should prevent his marriage with the other party named in the certificate. Many, indeed, wish that, in addition to this certificate, another should be provided, to the effect that of the two parties about to enter into marriage, the woman will be presumably competent to suckle her child, to bring it up, and to educate it; the man, that he will presumably be competent to undertake the two duties last named. (b) Before the marriage is solemnised, the physicians of both parties should hold a consultation, and decide jointly whether the marriage is permissible. (c) Everyone who enters into marriage should be under statutory obligation to insure his life, and this also involves a complete medical examination. (d) Many consider that the following method of procedure would suffice. Before the marriage is solemnised, both parties should be medically examined, and the result of the medical examination of each should be communicated to the other. If they then wish to proceed with the marriage, no further obstacles should be interposed.
The Tendency of Evolution.—The importance of marriage-prohibitions on hygienic grounds is continually increasing. Recent legislation in many States of the American Union furnish us with the best examples of this evolutionary tendency. In the social life of the future, marriage-prohibitions on hygienic grounds will play a very important part. The detailed treatment of this question at any particular time and in any particular country will of course depend upon the acquirements of medical science. It is probable that the general principles will be statutorily determined, and that medical examination will ultimately be made compulsory in the case of everyone contemplating marriage.
[CHAPTER III]
THE PROTECTION OF ILLEGITIMATE CHILDREN
The Legal Position of the Illegitimate Child.—The legal position of the illegitimate child is regulated by civil law only in respect of certain relationships; and the brief and restricted enactments on this subject are in sharp contrast with the great importance of the matter. Even in those countries in which the position of illegitimate children is relatively favourable, it is only in relation to the mother and to the blood-relatives of the mother that the legal position of the illegitimate child corresponds with that of the legitimate child; no further duty is imposed upon the father of any illegitimate child than to provide for the child until it is sixteen years of age an allowance for maintenance corresponding to the social position of the mother. Even in these countries the proof of paternity is apt to be a matter of considerable difficulty. The father of a natural child can raise various objections; for instance, he may allege loose conduct on the part of the mother (exceptio plurium concumbentium), and the proof of this will discharge him of his duty of maintenance.
In civil law there are various institutions by which the position of the illegitimate child may be improved; for example, recognition, adoption of the child, and, above all, legitimisation. But of course these will redound to the advantage of those children only towards whom the natural father has no feeling of hostility. By legitimisation, the illegitimate child acquires the position of the legitimate child. There are two chief methods of legitimisation, viz., legitimatio per subsequens matrimonium, and legitimatio per rescriptum principis. About 25 to 30 per cent. of all illegitimate children are legitimised. Of children legitimised during the first year of life, the process is effected in the great majority during the second and third months after birth. The older the child, the less likelihood is there of its legitimisation; and legitimisation is less probable in towns than in the country.
Reasons for these Legal Disabilities.—The defenders of the existing legal order, when asked why it is that the civil law deals so harshly with the illegitimate child, are accustomed to answer as follows. Marriage is the foundation of society; if the legal position of the illegitimate child were as good as that of the legitimate child, this foundation would be shattered. Those who enter into illegitimate sexual relationships, and even the issue of such relationships, must incur serious legal disabilities; for otherwise the principal motive to marriage would be removed, and people would light-heartedly enter into illegitimate sexual unions. Ordinarily, it is only upon the basis of permanent marriage that a groundwork can be erected providing for those moral principles which are the indispensable preconditions of the legal rights and duties of family life; only in permanent marriage, and the family life which is the outcome of permanent marriage, do we obtain adequate guarantees for the fulfilment of these duties and for the proper exercise of these rights. It is only in an insignificant minority of instances that the natural association between an illegitimate child and its father leads to the formation of a more intimate bond between the two. In most cases, the father is indifferent and even hostile to his illegitimate child. He regards it as a burden, and has no interest in its well-being, or in its bodily and mental development. Only in the rarest cases does an illegitimate child share directly in the family life and in the property of the father; and if the father does take over the care for and upbringing of the child, he often does this solely in his own financial interest, in order subsequently to hand over the care of the child to the person who will undertake this at the cheapest rate. In such cases the moral and circumstantial prerequisites to the foundation of true family relationships are utterly lacking; and this is true above all of those cases in which the fatherhood of the child is not voluntarily acknowledged, but is admitted as the sequel of a successful bastardy suit. It has also to be remembered that the proof of the fatherhood of an illegitimate child, though it cannot be regarded as impossible, is nevertheless beset by numerous and considerable practical difficulties; and, in addition, that the adoption of legal measures to enable the paternity of an illegitimate child to be established with comparative ease would involve very grave social dangers, if the acceptance of extensive family responsibilities were to be made consequent upon such proof of paternity. The laws of inheritance protect the institution of private property and the institution of legal marriage; for the integrity of both of these institutions would be threatened if the illegitimate child were endowed with the right to inherit its father’s property.