Now common-law marriage as recognized in New York State cons

OUR

CHANGING MORALITY

_A SYMPOSIUM_

EDITED BY

FREDA KIRCHWEY

ALBERT & CHARLES BONI

NEW YORK 1924

COPYRIGHT, 1924, BY ALBERT & CHARLES BONI, INC.

_Printed in the United States of America by_

J. J. LITTLE AND IVES COMPANY, NEW YORK

INTRODUCTION

BY FREDA KIRCHWEY

The subject of sex has been treated in this generation with a strange,

rather panic-stricken lack of balance. Obscenity hawks its old wares

at one end of the road and dogmatic piety shouts warnings at the

other--while between is chaos. And the chaos extends beyond ideas and

talk, beyond novels and scenarios and Sunday feature stories, into the

realm of actual conduct. Religion has indeed found substantial matter

for its words of caution and disapproval: never in recent generations

have human beings so floundered about outside the ropes of social and

religious sanctions.

But while John Roach Straton and Billy Sunday point a pleasant way

toward hell, while sensationalism finds in new manners of life subject

for five-inch headlines, and while modern novelists make their modern

characters stumble through pages of inner conflict to ends of darkness

and desperation, a few people are at work quietly sorting out the

elements of chaos and holding fragments of conduct up in the sun and

air to find what they really are made of.

No one seeks to argue chaos away. Certainly Mr. Straton and Mr. Sunday

are right: Men and women are ignoring old laws. In their relations

with each other they are living according to tangled, conflicting

codes. Remnants of early admonitions and relationships, the dictates of

custom, the behavior of their friends, their own tastes and desires,

elusive dreams of a loveliness not provided for by rules--all these are

scrambling to fill the gap that was left when Right and Wrong finally

followed the other absolute monarchs to an empty, nominal existence

somewhere in exile. But the traditional, ministerial method with chaos

was not Jehovah’s method. He brought order and light into the world;

but the way of our current moralists has been to clamp down the hatches

even though “sin” bubbled beneath. A few courageous, matter-of-fact

glances into the depths have been embodied in the articles in this

volume. The men and women who have written them have approached the

subject variously; the fragments they have brought up to examine do

not necessarily fit together. But none of these writers is afraid to

saunter up to the edge and see what moral disorder looks like.

Some of them find it thoroughly disagreeable. They believe that old

laws were born of old desires and find their sanctions in the emotions

of men. They seek for new and rational ways back to the sort of

stability provided by the traditional relationships of men and women.

Others find in contemporary manners merely the disorder incident to

reconstruction; they find there tentative beginnings rather than

ruinous endings. They see chaos as an interesting laboratory, filled

with strange ferments and the pungent odors of new compounds. None of

these writers offers dogmatic conclusions--and in this they differ

delightfully from our most popular novelists and preachers. They

present facts, they analyze and interpret; they suggest directions,

they even prophesy. But they never announce or warn or reprove. When

these chapters first appeared as articles in _The Nation_ it became

evident that this exercise of thought was itself commonly held to be

a simple blasphemy. Letters from readers came in scores charging the

articles with the sin of intelligence where only faith and conformity

were tolerable. Dogma is so deep in the bone of even the more

enlightened and adult members of our modern world that the most modest

doubt regarding the success of monogamy or the virtue of chastity

becomes in some way an insult to Moses or Saint Paul.

It is interesting to see how many of the authors of this group of

articles find a connection between the changing standards of sex

behavior and the increasing freedom of women. Are women forcing this

change? Or does freedom itself make change inevitable? Possibly only

the woman in the isolation of the home is able to sustain the double

load of her own virtue and her husband’s ideals. Out in the world,

in contact and competition with men, she is forced to discriminate;

questions are thrust upon her. The old rules fail to work; bewildering

inconsistencies confront her. Things that were sure become unsure. And

slowly, clumsily, she is trying to construct a way out to a new sort of

certainty in life; she is seeking something to take the place of the

burden of solemn ideals and reverential attitudes that rolled off her

shoulders when she emerged. That some such process may be going on is

hinted at in more than one of these articles. Certainly, of the factors

involved in modern sex relations, women and economic conditions are the

two that have suffered the most revolutionary change; and men’s morals

must largely shape themselves to the patterns laid down by these two

masters of life.

Much has been said about sex--and everything remains to be said.

Largely, new conclusions will be reached through new processes of

living. People will act--and then a new code will grow up. But along

the way guidance and interpretation are deeply needed, if only to take

the place of the pious imprecations of those who fear life and hate the

dangers and uncertainties of thought and emotion.

CONTENTS

PAGE

INTRODUCTION v

_By Freda Kirchwey_

STYLES IN ETHICS 3

_By Bertrand Russell_

MODERN MARRIAGE 19

_By Arthur Garfield Hays_

CHANGES IN SEX RELATIONS 37

_By Elsie Clews Parsons_

TOWARD MONOGAMY 53

_By Charlotte Perkins Gilman_

WOMEN--FREE FOR WHAT? 69

_By Edwin Muir_

VIRTUE AND WOMEN 85

_By Isabel Leavenworth_

WHERE ARE THE FEMALE GENIUSES? 107

_By Sylvia Kopald_

MAN AND WOMAN AS CREATORS 129

_By Alexander Goldenweiser_

DOMINANT SEXES 147

_By M. Vaerting_

MODERN LOVE AND MODERN FICTION 167

_By J. W. Krutch_

CAN MEN AND WOMEN BE FRIENDS? 183

_By Floyd Dell_

LOVE AND MARRIAGE 197

_By Ludwig Lewisohn_

COMMUNIST PURITANS 207

_By Louis Fischer_

STEREOTYPES 219

_By Florence Guy Seabury_

WOMEN AND THE NEW MORALITY 235

_By Beatrice M. Hinkle_

Styles in Ethics

By Bertrand Russell

Hon. Bertrand Arthur William Russell

_is a mathematician, writer, and lecturer on international affairs and

problems of government. Born at Trellech, England, May 18th, 1872.

F.R.S. 1908; Late Lecturer and Fellow Trinity College, Cambridge. Heir

presumptive to 2nd Earl Russell. Author of “German Social Democracy,”

1896; “Essay on the Foundation of Geometry,” 1897; “Philosophy of

Leibnitz,” 1900; “Principles of Mathematics,” 1903; with D. A. N.

Whitehead, “Principia Mathematica,” 1910; “Our Knowledge of the

External World as a Field for Scientific Method in Philosophy,” 1914;

“Principles of Social Reconstruction,” 1917; “Why Men Fight,” 1917;

“Mysticism and Logic,” 1918; “Roads to Freedom,” 1918; “Introduction

to Mathematical Philosophy,” 1919; “The Practice and Theory of

Bolshevism,” 1920; “The Analysis of the Mind,” 1921; “The Problem of

China,” 1922; “The A. B. C. of Atoms,” 1923; “Icarus, or the Future of

Science,” 1924._

OUR CHANGING MORALITY

STYLES IN ETHICS

BY BERTRAND RUSSELL

In all ages and nations positive morality has consisted almost wholly

of prohibitions of various classes of actions, with the addition

of a small number of commands to perform certain other actions.

The Jews, for example, prohibited murder and theft, adultery and

incest, the eating of pork and seething the kid in its mother’s

milk. To us the last two precepts may seem less important than the

others, but religious Jews have observed them far more scrupulously

than what seem to us fundamental principles of morality. South Sea

Islanders could imagine nothing more utterly wicked than eating

out of a vessel reserved for the use of the chief. My friend Dr.

Brogan made a statistical investigation into the ethical valuations

of undergraduates in certain American colleges. Most considered

Sabbath-breaking more wicked than lying, and extra-conjugal sexual

relations more wicked than murder. The Japanese consider disobedience

to parents the most atrocious of crimes. I was once at a charming spot

on the outskirts of Kioto with several Japanese socialists, men who

were among the most advanced thinkers in the country. They told me that

a certain well beside which we were standing was a favorite spot for

suicides, which were very frequent. When I asked why so many occurred

they replied that most were those of young people in love whose parents

had forbidden them to marry. To my suggestion that perhaps it would

be better if parents had less power they all returned an emphatic

negative. To Dr. Brogan’s undergraduates this power of Japanese parents

to forbid love would seem monstrous, but the similar power of husbands

or wives would seem a matter of course. Neither they nor the Japanese

would examine the question rationally; both would decide unthinkingly

on the basis of moral precepts learned in youth.

When we study in the works of anthropologists the moral precepts which

men have considered binding in different times and places we find the

most bewildering variety. It is quite obvious to any modern reader

that most of these customs are absurd. The Aztecs held that it was a

duty to sacrifice and eat enemies captured in war, since otherwise

the light of the sun would go out. The Book of Leviticus enjoins that

when a married man dies without children his brother shall marry the

widow, and the first son born shall count as the dead man’s son. The

Romans, the Chinese, and many other nations secured a similar result by

adoption. This custom originated in ancestor-worship; it was thought

that the ghost would make himself a nuisance unless he had descendants

(real or putative) to worship him. In India the remarriage of widows

is traditionally considered something too horrible to contemplate.

Many primitive races feel horror at the thought of marrying any one

belonging to one’s own totem, though there may be only the most distant

blood-relationship. After studying these various customs it begins at

last to occur to the reader that possibly the customs of his own age

and nation are not eternal, divine ordinances, but are susceptible

of change, and even, in some respects, of improvement. Books such as

Westermarck’s “History of Human Marriage” or Müller-Lyer’s “Phasen

der Liebe,” which relate in a scientific spirit the marriage customs

that have existed and the reasons which have led to their growth and

decay, produce evidence which must convince any rational mind that

our own customs are sure to change and that there is no reason to

expect a change to be harmful. It thus becomes impossible to cling to

the position of many who are earnest advocates of _political_ reform

and yet hold that reform in our moral precepts is not needed. Moral

precepts, like everything else, can be improved, and the true reformer

will be as open-minded in regard to them as in regard to other matters.

Müller-Lyer, from the point of view of family institutions, divides

the history of civilization into three periods--the clan period, the

family period, and the personal period. Of these the last is only now

beginning; the other two are each divided into three stages--early,

middle, and late. He shows that sexual and family ethics have at all

times been dominated by economic considerations; hunting, pastoral,

agricultural, and industrial tribes or nations have each their own

special kinds of institutions. Economic causes determine whether a

tribe will practice polygamy, polyandry, group marriage, or monogamy,

and whether monogamy will be lifelong or dissoluble. Whatever the

prevailing practice in a tribe it is thought to be the only one

compatible with virtue, and all departures from it are regarded with

moral horror. Owing to the force of custom it may take a long time for

institutions to adapt themselves to economic circumstances; the process

of adaptation may take centuries. Christian sexual ethics, according to

this author, belong to the middle-family period; the personal period,

now beginning, has not yet been embodied in the laws of most Christian

countries, and even the late-family period, since it admits divorce

under certain circumstances, involves an ethic to which the church is

usually opposed.

Müller-Lyer suggests a general law to the effect that where the state

is strong the family is weak and the position of women is good,

whereas where the state is weak the family is strong and the position

of women is bad. It is of course obvious that where the family is

strong the position of women must be bad, and vice versa, but the

connection of these with the strength or weakness of the state is less

obvious, though probably in the main no less true. Traditional China

and Japan afforded good instances. In both the state was much weaker

than in modern Europe, the family much stronger, and the position of

women much worse. It is true that in modern Japan the state is very

strong, yet the family also is strong and the position of women is

bad; but this is a transitional condition. The whole tendency in Japan

is for the family to grow weaker and the position of women to grow

better. This tendency encounters grave difficulties. I met in Japan

only one woman who appeared to be what we should consider emancipated

in the West--she was charming, beautiful, high-minded, and prepared to

make any sacrifice for her principles. After the earthquake in Tokio

the officer in charge of the forces concerned in keeping order in the

district where she lived seized her and the man with whom she lived

in a free union and her twelve-year-old nephew, whom he believed to be

her son; he took them to the police station and there murdered them

by slow strangulation, taking about ten minutes over each except the

boy. In his account of the matter he stated that he had not had much

difficulty with the boy, because he had succeeded in making friends

with him on the way to the police station. The boy was an American

citizen. At the funeral, the remains of all three were seized by armed

reactionaries and destroyed, with the passive acquiescence of the

police. The question whether the murderer deserved well of his country

is now set in schools, half the children answering affirmatively.

We have here a dramatic confrontation of middle-family ethics with

personal ethics. The officer’s views were those of feudalism, which is

a middle-family system; his victims’ views were those of the nascent

personal period. The Japanese state, which belongs to the late-family

period, disapproved of both.

The middle-family system involves cruelty and persecution. The

indissolubility of marriage results in appalling misery for the wives

of drunkards, sadists, and brutes of all kinds, as well as great

unhappiness for many men and the unedifying spectacle of daily quarrels

for the unfortunate children of ill-assorted couples. It involves also

an immense amount of prostitution, with its inevitable consequence of

widespread venereal disease. It makes marriage, in most cases, a matter

of financial bargain between parents, and virtually proscribes love.

It considers sexual intercourse always justifiable within marriage,

even if no mutual affection exists. It is impossible to be too thankful

that this system is nearly extinct in the Western nations (except

France). But it is foolish to pretend that this ideal held by the

Catholic church and in some degree by most Protestant churches is a

lofty one. It is intolerant, gross, cruel, and hostile to all the best

potentialities of human nature. Nothing is gained by continuing to pay

lip-service to this musty Moloch.

The American attitude on marriage is curious. America, in the main,

does not object to easy divorce laws, and is tolerant of those who

avail themselves of them. But it holds that those who live in

countries where divorce is difficult or impossible ought to submit to

hardships from which Americans are exempt, and deserve to be held up to

obloquy if they do not do so. An interesting example of this attitude

was afforded by the treatment of Gorki when he visited the United

States.

There are two different lines of argument by which it is possible to

attack the general belief that there are universal absolute rules of

moral conduct, and that any one who infringes them is wicked. One

line of argument emerges from the anthropological facts which we have

already considered. Broadly speaking the views of the average man on

sexual ethics are those appropriate to the economic system existing

in the time of his great-grandfather. Morality has varied as economic

systems have varied, lagging always about three generations behind. As

soon as people realize this they find it impossible to suppose that

the particular brand of marriage customs prevailing in their own age

and nation represents eternal verities, whereas all earlier and later

marriage customs, and all those prevailing in other latitudes and

longitudes, are vicious and degraded. This shows that we ought to be

prepared for changes in marriage customs, but does not tell us what

changes we ought to desire.

The second line of argument is more positive and more important.

Popular morality--including that of the churches, though not that of

the great mystics--lays down rules of conduct rather than ends of life.

The morality that ought to exist would lay down ends of life rather

than rules of conduct. Christ says: “Thou shalt love thy neighbor as

thyself”; this lays down one of the ends of life. The Decalogue says:

“Remember that thou keep holy the Sabbath Day”; this lays down a rule

of action. Christ’s conduct to the woman taken in adultery showed the

conflict between love and moral rules. All his priests, down to our own

day, have gone directly contrary to his teachings on this point, and

have shown themselves invariably willing to cast the first stone. The

belief in the importance of rules of conduct is superstitious; what

is important is to care for good ends. A good man is a man who cares

for the happiness of his relations and friends, and, if possible, for

that of mankind in general, or, again, a man who cares for art and

science. Whether such a man obeys the moral rules laid down by the Jews

thousands of years ago is quite unimportant. Moreover a man may obey

all these rules and yet be extremely bad.

Let us take some illustrations. I have a friend, a high-minded man,

who has taken part in arduous and dangerous enterprises of great

public importance and is almost unbelievably kind in all his private

relations. This man has a wife who is a dipsomaniac, who has become

imbecile, and has to be kept in an institution. She cannot divorce him

because she is imbecile; he cannot divorce her because she affords

him no ground for divorce. He does not consider himself morally bound

to her and is therefore, from a conventional point of view, a wicked

man. On the other hand a man who is perpetually drunk, who kicks his

wife when she is pregnant, and begets ten imbecile children, is not

generally regarded as particularly wicked. A business man who is

generous to all his employees but falls in love with his stenographer

is wicked; another who bullies his employees but is faithful to his

wife is virtuous. This attitude is rank superstition, and it is high

time that it was got rid of.

Sexual morality, freed from superstition, is a simple matter. Fraud and

deceit, assault, seduction of persons under age, are proper matters for

the criminal law. Relations between adults who are free agents are a

private matter, and should not be interfered with either by the law or

by public opinion, because no outsider can know whether they are good

or bad. When children are involved the state becomes interested to the

extent of seeing that they are properly educated and cared for, and it

ought to insure that the father does his duty by them in the way of

maintenance. But neither the state nor public opinion ought to insist

on the parents living together if they are incompatible; the spectacle

of parents’ quarrels is far worse for children than the separation of

the parents could possibly be.

The ideal to be aimed at is not life-long monogamy enforced by legal

or social penalties. The ideal to be aimed at is that all sexual

intercourse should spring from the free impulse of both parties, based

upon mutual inclination and nothing else. At present a woman who sells

herself successively to different men is branded as a prostitute,

whereas a woman who sells herself for life to one rich man whom she

does not love becomes a respected society leader. The one is exactly

as bad as the other. The individual should not be condemned in either

case; but the institutions producing the individual’s action should be

condemned equally in both cases. The cramping of love by institutions

is one of the major evils of the world. Every person who allows himself

to think that an adulterer must be wicked adds his stone to the prison

in which the source of poetry and beauty and life is incarcerated by

“priests in black gowns.”

Perhaps there is not, strictly speaking, any such thing as “scientific”

ethics. It is not the province of science to decide on the ends of

life. Science can show that an ethic is unscientific, in the sense that

it does not minister to any desired end. Science also can show how to

bring the interest of the individual into harmony with that of society.

We make laws against theft, in order that theft may become contrary to

self-interest. We might, on the same ground, make laws to diminish the

number of imbecile children born into the world. There is no evidence

that existing marriage laws, particularly where they are very strict,

serve any social purpose; in this sense we may say that they are

unscientific. But to proclaim the ends of life, and make men conscious

of their value, is not the business of science; it is the business of

the mystic, the artist, and the poet.

Modern Marriage and Ancient Laws

By Arthur Garfield Hays

Arthur Garfield Hays

_is an attorney practicing in New York City. He was manager of the New

York State La Follette campaign, 1924._

MODERN MARRIAGE AND ANCIENT LAWS

BY ARTHUR GARFIELD HAYS

“Are we married?” This was a query recently put to a New York lawyer.

The woman wanted to have been married, but wished not to be married

any longer; at the same time she rather objected to a divorce. The man

did not care much about it, so long as he could marry, or marry again,

without too much inconvenience arising from the earlier entanglement.

The lawyer’s answer was so obvious that it might have been made by a

layman: “How do I know?”

The two had been living together, had called each other husband and

wife, and had in general passed as such, but at the beginning of the

relationship each had felt that if one wanted to be free the other

would not hold him or her; it was agreed that they should have no

financial responsibility for each other and that there should be

nothing about the arrangement which would make it last “till death

do us part.” In speaking of themselves as “husband and wife” they had

intended the words to represent merely a formula of their own.

Now common-law marriage as recognized in New York State consists in a

meeting of the minds--a contract. Thus, if two people live together

as husband and wife this may be evidence of a common-law marriage. No

formal agreement is necessary. But if there has not been even a private

agreement of marriage their living together would be unimportant. If

they wished to separate they would need no divorce, for they would

never have been married. By passing as husband and wife they might

gain the social advantages that come from a recognized relationship,

and, since there had been no definite agreement, they might save the

inconvenience of divorce if they wished to separate. Difficulty arises

only when both parties do not agree that there was no agreement.

Sometimes one party claims there was and the other that there was not.

Then the very indefiniteness of the tie means added difficulty and

publicity in breaking it.

In order to avoid future disagreement one couple made a contract in

which they stated that they lived as husband and wife in order to avoid

social stigma, but that as between themselves there was no agreement

of marriage. The situation was trying because they always felt they

were living a lie. Their answer was that society foolishly demanded

either a penalty or a form and they preferred to provide the form.

Fortunately, neither ever had to swear to the status and they felt that

this contract--which provided for future maintenance of the wife and

custody of the children--solved the problem or doubt of a life-long

relationship. To those who made ethical objection, they answered that

they were willing to contract on matters which concerned their wills,

but knew it was contrary to human nature to contract on matters which

concerned their emotions.

Not long ago in New York City a young woman who had scruples about

promising to love a man forever expressed to the city clerk her

unwillingness to use the form of marriage ceremony which he had

produced committing her to love, honor, and cherish the man for the

rest of his or her life. She said she was in good faith willing to

contract to marry, and that she would do the best she could to make the

marriage successful, but that was all; to which the clerk answered that

if she were entering marriage in that spirit she should not be married

at all. He was finally persuaded that the parties could be tied merely

by agreement on her part to become the man’s wife and on his part to

become her husband.

If the law seems full of vagaries on the problem of entering marriage

it is still more perplexing and technical when it concerns the question

whether or not two people are still legally married when one has

obtained a supposed divorce--so much so that it is not at all uncommon

for a lawyer to be faced by a client asking whether or not he, or she,

is really married. Some years ago a man was married in Philadelphia

and later, having separated from his wife, went to New York. She

obtained a decree of divorce in Pennsylvania, the papers having been

served on him in New York. He married again and died a generation

later, leaving a considerable fortune and three children by his second

marriage. The first wife, or her attorneys, then discovered that the

original divorce was not legal, since the Pennsylvania courts had not

acquired a jurisdiction which would be recognized in New York. Since

the man had left the estate to his “wife,” there were complications.

As the question involved the meaning of a will, the matter was one of

intention and it was not difficult to prove that the deceased intended

as his beneficiary the woman whom he regarded as his wife. But had

he owned real estate at the time of his divorce the first wife might

have had a dower interest, and had his status become one of public

importance his enemies might successfully have charged him with bigamy.

Ordinarily, people are satisfied with a decree of divorce. It gives

them the desired social status. Its technical legality becomes of

importance only in connection with estates or the legitimacy of

children. But a difficult question arises in case of remarriage.

Legality depends upon the jurisdiction of the court. This can be

acquired by personal service of papers upon the defendant within the

State or a voluntary submission to the jurisdiction by appearing

in the case personally or by attorney. But State courts claim and

recognize their own jurisdiction even though papers are served outside

the State. Under these latter circumstances, suppose a divorce granted

a man in Utah is not recognized in New York. If he remarries in Utah he

will have one wife there, while in New York another woman would be his

wife and he would be obliged to support her there. If his wife in New

York married again, she would be guilty of bigamy. In Utah it would be

his duty to live with one woman. New York would attempt to make it his

pleasure to live with another, and this on the ground of morality, for,

although, ordinarily, the law of the place of the new marriage (in this

case, Utah) would apply, yet this would result in his having two wives

in New York. So on legal grounds we disregard the divorce, and on moral

grounds we negative the second marriage.

Foreign divorces raise the question not only of jurisdiction but

of recognition by treaty of a judgment of the particular foreign

country. For instance, judgments of French courts are not absolutely

binding upon the courts of this country, as are the judgments of

sister-States. In the case of Russia, where any two parties by

agreement or a single person by request may become divorced, there is

no treaty whatever. Occasionally, cases arise where persons abroad have

obtained a decree for a rabbinical divorce. Under the old Jewish custom

a rabbi could pronounce a divorce and the law of the state permitted a

decree to be entered upon his pronouncement. Some states and countries

make bids for the divorce business; not long ago an advertisement

appeared announcing that a divorce might be had in Yucatan for $25,

not, of course, including the expense of travel. Questions of the

effect of interlocutory and final judgments, of the provisions of

a divorce decree forbidding remarriage within a certain period, of

the _bona fides_ of residence, of the jurisdiction of the court, of

treaties with foreign countries may make it difficult to answer the

question whether or not two people are legally married.

All this confusion represents a beating of wings against a cage--an

endeavor to obtain a legal paper with a red seal which will avoid a

situation which two people find intolerable. We are tending toward a

new moral conception of the marriage relationship, well expressed by

Premier Zahle of Denmark when submitting a new liberal divorce law: “It

is based on the fundamental conception that it is morally indefensible

to maintain a marriage relation by legal statute where all the real

bonds between the parties are broken. This is a measure which certainly

means a great step forward in the recognition of marriage as a moral

relation.”

Marriage is a status resulting from a civil contract, but very few

people who enter into it know what this contract is. It assumes

certain rights and obligations. What are they? That the wage-earner

will provide. This is enforcible, at least theoretically. What else?

That the parties live in an emotional and mental state designated by

an agreement “to love, honor, and cherish,” and, sometimes, “obey.”

This is obviously unenforcible. (I make this assertion despite the

recent Texas case in which a husband obtained an injunction restraining

his wife’s employer from flirting with her.) The contract continues

for life, subject to termination for causes which depend chiefly

upon the place of residence, actual or acquired. If they live in

South Carolina and stay there, the contract is indissoluble. In New

York the contract may be terminated for adultery, unless the other

party has likewise sought refuge outside of marriage; in Alabama, for

habitual drunkenness; in Nevada, for neglect to provide for one year;

in Kentucky and New Hampshire, for joining a religious sect which

believes marriages unlawful; in New Jersey, for extreme cruelty; in

Wisconsin, if the parties have voluntarily lived separately for five

years; in Massachusetts and a host of other States, for desertion; in

Pennsylvania and Oregon, for personal indignities or conduct rendering

life burdensome; in Vermont, for intolerable severity; in France, if

the parties have other emotional interests; in Denmark, by consent;

in Russia, by request. Of course, in most of these states there are

other grounds, but the result is that either party can bring about a

situation which permits divorce or can make life so intolerable for

the other that he or she consents to it. But these grounds must arise

subsequent to marriage; the agreement cannot be made in advance.

In life the duration of marriage depends upon the desires or consent

of individuals. In law it is perpetual, subject to termination not

by agreement made at the outset, or by later consent, but by court

decree. At the time of entering into marriage people usually know

merely that somehow, somewhere, some time there is a way out if the

situation becomes too strained. Technically, since the contract is

for life, a divorce is granted for a breach. Thus there is an implied

term, as there is in every contract, that relief is granted for a

breach--but what constitutes a breach depends not upon the terms of the

contract or the law of the place where the contract is made but upon

the jurisdiction where relief is sought--a matter of which the parties

ordinarily know nothing when they make the contract. Convention seems

to demand that the parties know not what they do.

Modern society, this summary seems to show, has been moving toward

freedom of contract in marriage. Those phases which concern the state,

such as economic provision and children, must be conserved. But time

was--and still is in some places--when marriage itself was a tribal

or a state matter. Then it became a family matter, determined by

the parents, and property and family rights and interests were the

important considerations. But parents, knowing by experience that

there can be no happiness without security--although there might

be unhappiness with it--failed to take into sufficient account the

emotional content, and, particularly in the Western World, there

developed a certain freedom of contract in making a choice. To-day,

when people have come to recognize the necessity of sexual and social

compatibility, which cannot be determined in advance, there has come

a demand for a further freedom of contract, to which society has

responded by more liberal divorce laws. The laws which permit a divorce

where parties have not lived together for a certain length of time make

the duration of the marriage relation really a matter of consent. They

mean in effect that a contract of marriage contains an implied term

that it is to continue until the parties consent to its end, and in

human relations this means until one party demands its end.

If a person proposed that the law recognize a marriage contract which

was to continue until either party desired its termination, he would

be regarded as a wrecker of our institutions; but society is doing

this very thing--obscurely, perhaps, as an after-effect, not as a

preconceived design; blindly, and not with intelligent forethought.

Many have suggested that marriages be made harder and divorces easier.

But how revolutionary would seem a suggestion that marriage contracts

be made in advance, conforming to the teachings of experience,

providing for maintenance and custody of children and limited by the

understanding of the parties; that those who, for religious or ethical

reasons, wished to enter into a life contract be permitted to do so;

that those who wished to enter into a contract to terminate by joint

consent or at the option of either party likewise be permitted to do

so? An objection that this would be dangerous assumes that people

choose the present form only because compelled to do so. Individuals

are breaking from the old conventions, and the law, usually a laggard

by a generation, is following them. In forty-three States desertion is

a ground for divorce; in twenty of them, desertion for one year. In

seven States, failure or neglect to provide is a ground; in four of

them, the period is one year. In some States, if the parties live apart

for a certain length of time--in three of them for five years--that

is ground for divorce. Is not this divorce by agreement? And by

implication, since living together requires the willingness of two

parties, the result is a contract which may be ended by either of the

parties at any time he or she sees fit--after an intervening cooling

period. Thus does freedom creep in by the back door.

Does this work harm to society? There is little difference in the

marital or social conditions or in the welfare of children in Norway

and Sweden, where there are liberal laws, and in England, where divorce

is a long, complicated, and expensive process. No one could discover

that he had crossed the State line from New York to Pennsylvania by

observation of the state of society, the happiness or apparent duration

of marriage, the welfare of children, or the social conventions of

the people. Yet in Pennsylvania there was one divorce for every 10.2

marriages in 1922 and only one for every 22.6 in New York. In South

Carolina there are no divorces; in Oregon, the number of marriages

to one divorce was 2.6; in Wyoming, 3.9; in California, 5.1. In the

District of Columbia, the banner section, there were 35.8 marriages

to one divorce. There, as in New York, the only ground is adultery.

Yet San Francisco society seems as stable as that of Washington. Of

course, the figures do not mean that seven times as many Washington

couples as California couples, and four times as many New York couples,

make a success of marriage or live together when it has ceased to be a

success; but rather, that New Yorkers and Washingtonians solve their

marital troubles elsewhere than at home. Thus, in Nevada in 1922 there

were more divorces than marriages, because people married in other

States repented in Nevada.

Whatever effect it may have on society, the extension of grounds for

divorce which has taken place in the last decade, and the modern

improvement in communication and travel, which opens other States or

foreign countries to an increasing number, brings about a situation

by which people, though not free to contract, do avail themselves

of means which have the same effect. Revolutionary changes occur

unnoticed, while our delusions persist and our sense of conservatism is

gratified.

Changes in Sex Relations

By Elsie Clews Parsons

Elsie Clews Parsons

_is widely known as an anthropologist and writer. She has contributed

largely to scientific journals and in 1922 edited the volume on

American Indian Life by various students of the subject. Graduated

from Barnard 1896; Ph.D. Columbia 1899. Fellow and Lecturer in

Sociology at Barnard; Lecturer in Anthropology in New School for

Social Research. She is editor of the_ Journal of American Folklore;

_Treasurer of American Ethnological Society; President of Folk Lore

Society. Is author of “The Family”; “The Old-Fashioned Woman”; “Fear

and Conventionality”; “Social Freedom” and “Social Rule.”_

CHANGES IN SEX RELATIONS

BY ELSIE CLEWS PARSONS

The other day I listened to a conversation on marriage and divorce

between a well-known feminist, her daughter, and an Episcopal

clergyman. The celibate cleric and the younger woman were in fair

accord: the institution of marriage was invaluable to society and had

to be protected. Let there be no divorce, said the cleric, on any

ground, at least within the church; children should be cared for by

both parents, divorce being sought only as an ultimate recourse, said

the girl, who was two years married and had a son.

The feminist was biding her time. Finally she said: “So much for the

institution. What of the actual sex life? No divorce and continence or

no divorce and intimacy with another?”

“The first, of course,” said the cleric.

“Not at all; the second,” said the girl. “And you, mother?”

“Oh, on the whole I’m for the brittle marriage as against the lax, the

American way against the European. But most of all I am for tolerance

in sex relations and for respecting privacy. Why not all kinds of

relations for all kinds of persons? Just as there are now, but with

respect or tolerance for the individual and without hypocrisy.”

“Even if we did not agree,” the cleric said later to the feminist, “we

could talk about it as twenty years ago we could not. So much to the

good.”

“So much to the bad,” said the girl’s father, still later; “better for

all of us the old reserve.” The speaker was a lawyer with divorce cases

in his practice.

Had we not here a mingling of currents from law, the church, feminism,

and the younger generation which illustrates what divergency of

attitude on sex and sex institutions or practices may exist to-day,

even within the same cultural and local circle? Include circles of

different education and locality and although the range of difference

would be no larger the expressions of opinion would vary. Is the

variation in opinion due to variation in experience or is it due

to that contemporaneous lifting of the taboo on discussion which

characterizes not only our talk about sex but about other interests as

well? A remarkable and indisputable change of attitude, this release

from verbal taboo, which often gives us a sense of change in general

greater perhaps than the facts themselves warrant.

In the conversation I quoted the women were on the whole the radicals,

the men on the whole the conservatives. This alignment was far from

typical, I think, and yet in contemporaneous life, whether or not

in opinion, women have been the exponents of cultural change in sex

relations. The increase in the divorce rate, it seems probable, has

been effected predominantly by women; about two-thirds of the total

number of divorces are granted to women. (Of course the tradition that

it is decent for the man to let the woman get the divorce must not be

ignored in this connection.) This increase in divorce may indicate a

changing attitude toward the criteria of marriage on the part of women.

Women may be demanding more of marriage than in the day when they had

little to expect but marriage. In other words, marriage standards mount

as marriage has other relations to compete with. At any rate in the

talk of women it seems to me that desire for integral satisfaction

in marriage is more consciously or realistically expressed than ever

before. Emotional and sexual appeasements are considered as well as

social or economic advantage. What of the part played by women in

changes in sex relations outside marriage?

Unfortunately, we have no dependable statistics of prostitution, but

whatever decrease there has been in prostitution, and opinion is that

with the passing of segregated districts there has been a decrease,

may be, on the whole, put down to women, if only indirectly through an

increase in illicit relations. Illicit relations are not subject to

statistics, but that there has been an increase in them in this country

in this century will be generally accepted, likewise that in this, too,

the increase is due to women, alike more willing to participate in such

relations and more tolerant of them in others. Again those curious

suits for alienation of affection appear to be brought against women

as much as against men; and theories of seduction by men have long

since been sounding archaic to our ears. Even on the screen, the great

present vehicle of traditional manners and morals, although rape is

always in order, seduction is infrequent. Seduction with its complement

of marital honor has been rendered an anachronism, through women.

The theory of seduction is affiliated with the proprietary theory of

woman and, needless to say, this general theory has been undergoing

considerable change for several decades. To-day women are not only not

property, they are property holders, and property holding has become a

significant factor in the social independence of women. Of this social

independence, independence in mating is the most recent expression,

more recent even than political independence, and less fully realized

or accomplished. Indeed it would be rash to predict how this type of

independence may be expected to come about; apart from the gesture,

sometimes gay, sometimes merely comic, of keeping one’s name in

marriage, there is no conscious feministic movement, in this country at

least, toward freedom in sex. The political emancipation of women came

to us as a reflex from abroad, largely through England. Whatever the

political effect of militancy in England, without the advertisement

of the British suffragette American women would be voteless to-day.

Quite likely the direction of emancipation in mating may be determined

likewise from abroad, perhaps from innovating Scandinavia or from

Soviet Russia, where the last legal word has been said on sex equality.

In the soviet laws on marriage and domestic relations there is no

mention of suit for breach of promise or for alimony whereby woman

proclaims herself a chattel, and according to the soviet code husband

as well as wife is entitled to support if incapacitated for work.

Incapacity for work is the sole condition which entitles either spouse

to support. In other words, the Russian state has interested itself

not in maintaining the proprietary theory of woman; but in providing

for the care of man or woman in distress. Of such clear distinction

American law is innocent. In American law the husband is still the

provider and in this law lags but little behind current opinion, which

holds that a married woman should work only when she has to. Dr.

Herskowits tells me that this American attitude is so well represented

in the Negro population of Harlem that in gathering statistics of

employment as soon as he learns the occupation of the husband he can

predict whether or not the wife is at work. Low-paid employment for

the husband means wage-earning by the wife, and highly paid employment

means that the woman is not a wage-earner. Surveys in other parts of

the country have shown the same condition. These surveys have been

made among wage-earners, and concerned primarily with the margin of

subsistence; but familiar enough is the record in other economic

classes of the persuasion that marriage exempts a woman from industry

or professional activity. The standing controversies about married

women as school-teachers are fully documented instances. The Harvard

prize play acted last year on Broadway hinged on the rigidity of the

alternative of a man marrying and sacrificing his career or pursuing

his career and sacrificing his love. There was not the faintest

suggestion that the woman might contribute to the family income and so

render marriage and career economically compatible. The young couple,

to be sure, belonged to smart Suburbia, economically a conservative

circle; but there was no indication in the play that the university

intelligentsia did not hold to the theory of wifely parasitism, nor

that audiences might question the theory. And I incline to think that

few in those Broadway audiences, although drawn as they were from

fairly composite circles, did question. Wifely parasitism is holding

its own.

In less invidious terms, where income permits, the wife continues to

be the consumer, the husband the producer. Conjugal partnership in

production, familiar in Europe, remains by and large unfamiliar in

this country. Outside of marriage, on the other hand, the last years

have seen considerable lessening in our American forms of segregating

the sexes. Not only has there been an increase of women in gainful

occupations together with an increase of occupations open to women, but

between men and women in business and in the professions relations are

increasingly less restricted, influenced less by sex taboo. There is

more coöperation, more goodwill, more companionship.

Our Changing Morality: A Symposium · 第 1 / 9 段