It is, however, highly probable that the optional system of

celebration is too firmly grounded in popular sentiment to be soon

discarded. The practical reformer must perforce content himself

with striving to make it as effective as possible. At present the

law is very lax in providing proper safeguards for the religious

solemnization. In the first place, the qualified minister should be

authorized to act only within the local district of his permanent

residence, the limits thereof to be defined by statute. By the

early laws of New England, as we have already seen, the clergyman's

functions were carefully confined to his own town, district, or

county; and similar requirements appear elsewhere in some of the

older statutes. This wise policy has been gradually abandoned, so

that now in no instance is there such a restriction. Only in a

very few cases, as in Massachusetts, Rhode Island, and Vermont, is

authority conferred only upon ministers dwelling within the state.

Apparently in the great majority of states and territories, although

the statutes are often far from clear, all qualified ministers,

residing anywhere in the United States, may act. Indeed, Louisiana

is still more generous, granting full privilege to celebrate

wedlock to any clergyman or priest "whether a citizen of the

United States or not." Another useful lesson may be learned from

the early laws. Proofs of ordination by the filing of credentials

were often demanded. Some of the southern states went farther,

exacting from the minister a bond for the faithful performance

of his trust, in addition to credentials of ordination and good

standing. Both these conditions are still enforced by the statutes

of Kentucky,[661] Virginia, and West Virginia. Some other states

have contented themselves with less severe requirements. Rhode

Island has thus a careful system of local registration; in Maine

and New Hampshire the clerical celebrant must secure a "commission"

from the governor; in Minnesota, Wisconsin, Nevada, and Arkansas he

must file his credentials with the proper county officer and receive

a certificate; Ohio requires a license from the county judge of

probate; a license from the proper authority is also demanded in

Hawaii;[662] but in the majority of cases no such precautions are

specified in the statutes. Here is need of reform. Under present

social conditions, and considering the vast multiplication and

subdivision of religious sects, the Virginia system is not too

rigorous to justify its adoption throughout the land. Furthermore,

the future lawmaker may perhaps get a suggestion from English

legislation, which has had to deal with the same problem. The

ministers of every religious sect are authorized to celebrate

marriages according to its own rites; but, aside from Jews, Quakers,

and the Church of England, otherwise provided for in the statute,

they may do so only in a "registered building" and in the presence

of the civil registrar of the district and two witnesses.

[661] _Kentucky Stat._ (1903), 843, 844.

[662] _Civil Laws of the Hawaiian Islands_ (1897), 700.

The laws regarding the civil ceremony are also seriously defective,

if not in all respects equally lax. The magistrate in the exercise

of his functions is not usually restricted to a local district

sufficiently small to guarantee safe administration. In this regard

the colonial and early state legislation was superior. At present

in twenty-two states and territories the justice of the peace, or

the corresponding local officer, is confined to his own county or

district. Elsewhere he may act anywhere within the commonwealth;

and this is almost universally the rule with the higher judges and

officials who are granted the same authority. In no case, except

in Virginia, and in Massachusetts under the act of 1899, is there

any provision for the appointment of a person to celebrate wedlock

for an area of less extent than the county. Nor are the persons

to whom is confided this important social trust possessed of the

needful qualifications. They are not selected because of special

fitness. In no instance, unless in Virginia, does the law provide

for the separate office of marriage celebrant. The duties of such

a post are conferred, _ex officio_, in a haphazard fashion, upon

a great variety of functionaries, who are either incompetent or

else too busy with other matters to discharge them properly. As

a rule, the justice of the peace is thus notoriously unfit; and

there is something grotesque in giving authority to solemnize

marriages to aldermen and police justices, as in New York; to

speakers of the house and senate, as in Tennessee; or to the county

supervisors, as in Mississippi. In this regard we have much to learn

from European states, some of which have created special local

officers for this branch of administration. Thus in France[663]

all marriages are regularly celebrated before the mayor of the

commune; in Germany,[664] before the registrar of the district in

which one of the betrothed persons resides, or before some civil

officer designated by him in writing; while in England the legal

celebrant in case of civil procedure is also the district registrar,

whose presence is likewise requisite at the religious ceremony

when conducted according to the rites of the nonconformist sects.

Massachusetts alone has taken a step in the right direction. The

act of 1899, already summarized, not only provides that no justice

of the peace--except when the holder of a specified clerical

office--shall solemnize marriage unless specially designated

therefor by the governor's certificate, but it also limits the

number of justices who may be thus licensed. Touching another point

in this connection the American lawmaker is at fault. Often there

is no direct provision to secure evidence of the contract. Only

nineteen of the fifty-three[665] states and territories expressly

require the presence at the ceremony of even one witness; while in

two or three other cases the statute appears to take their presence

for granted.

[663] BODINGTON'S KELLY, _French Law of Marriage_, 12.

[664] By the law of 1875 marriages are thus celebrated before

the local _Standesbeamten_: KOHLER, _Das Eherecht des bürg_.

_Gesetzbuches_, 16, 17, 55 ff.

[665] Counting Hawaii which was not included in chap. xvi.

The license system is uncertain and complex in many of its features.

To guard against the clandestine marriage of minors, an affidavit

from either the bride or bridegroom ought to be made obligatory in

all cases, instead of leaving its requirement to the discretion

of the officer, as is now usually the practice where there is any

provision at all regarding the matter. In several instances the age

below which parental consent is required is still too low; and the

laws of some states are entirely silent on the subject. Throughout

the country the limit for each sex ought to coincide with the

attainment of legal majority.[666] More care should be taken to

prevent deception when consent of parent or guardian is produced in

writing. At the very least, in harmony with the requirement of many

states, the affidavit of one witness to the signature should always

be made obligatory; and in every such case it might be well as a

guaranty to exact a license bond.[667] There is a still graver fault

in the license laws of nearly the whole country. Nowhere, except in

Porto Rico, is there any adequate provision regarding notice or the

filing and trial of objections to a proposed marriage. Maine and

Wisconsin have each made a start in requiring the certificate or

license to be procured five days before the celebration. No other

state, except New Hampshire[668] and New Jersey in the case of

non-residents, seems to have provided for such a delay; and in all

cases apparently, except Porto Rico, the license is issued at the

time the notice of intention to marry is filed.[669] All this is

contrary to sound public policy. The notice of intention should be

recorded for a reasonable period, say ten days, before issuance of

the license; and during this term it should be officially posted,

and also published in the newspapers--not merely concealed in the

register or published at the discretion of the official, as is

now the usual course. Objections might then be filed, and in case

of need tried in a court clothed with proper jurisdiction, before

the celebration were allowed to proceed. Under the existing state

legislation it would be difficult, certainly awkward, to stop a

proposed marriage on the ground of alleged legal impediments.

To make an objection effective, it might be necessary either to

"anticipate the notice" or to interrupt the nuptial ceremony.[670]

There is also much confusion, and uncertainty regarding the

place of obtaining the license and that of making return. In no

instance is a definite term of residence for either the man or the

woman prescribed; and this is a fruitful source of clandestine

marriage.[671] A glance at the facts collected in the sixteenth

chapter will show that in some states the license must be secured

in the place of the bride's residence; in others, in that of the

marriage; while in a third group it may be issued in the place where

either dwells. Indeed, Pennsylvania, more liberal still, allows a

choice among all three places. The same laxity exists regarding the

place of return; and sometimes the place of return is not the same

as that of issue. A reasonable term of residence ought always to be

required; and, unless in cases of emergency, the license should be

issued by, and return made to, the same official in the district

where the woman dwells. Even the lack of uniformity in license fees

is sometimes the cause of migration to neighboring districts for

the sake of cheaper weddings.[672] Finally, a marriage entered into

without license, just as without authorized celebration, should be

declared null and void by the statute.

[666] In "Diagnostics of Divorce," _Jour. of Soc. Sci._ (Am.

Assoc.), XIV, 136, PROFESSOR ROBERTSON takes the extreme view

that "no person should be marriageable under the age of 21, and

a marriage ceremony celebrated between persons either of whom is

under age should be _ipso facto_ void."

[667] Neither in England nor anywhere in the United States is

a marriage declared void for want of parental consent. The

leading case on the point is Parton _v._ Hervey, 1 GRAY, 119.

"Some years ago a young girl, only thirteen years of age, named

Sarah Hervey, was enticed away from her widowed mother's house

by a young fellow, named Parton, of bad character and dissolute

habits, who by false representations as to the age of the girl,

procured a marriage license, and persuaded a magistrate to

formally marry them. She returned to the house of her mother

who forbade the young man to see her. Upon his petition against

the mother for writ of habeas corpus, the Supreme Court of

the Commonwealth, after full consideration, ordered the young

wife to be surrendered to the husband, and he bore her away in

triumph.... The mother then brought suit against a confederate

of the husband, who had aided in enticing away the girl and in

practising the fraud upon the magistrate; but the mother again

failed in her efforts to vindicate her rights to protect her

daughter, since it distinctly appeared that the marriage was

with the daughter's full and free consent."--Hervey _v._ Moseley

(1856), 7 GRAY, 449; as summarized by BENNETT, "Uniformity in

Mar. and Div. Laws," _Am. Law Register_, N. S., XXXV, 222.

[668] _Laws of N. H._ (1903), 79.

[669] Louisiana formerly had a law requiring notice of intention

to be filed fifteen days before issue of license; but it appears

to have been repealed. In Porto Rico the period of delay is ten

days.

[670] As suggested by COOK, "The Mar. Cel. in the U. S.,"

_Atlantic_, LXI, 687.

[671] The laxity of the law in this respect, coupled with that

of permitting the license to be issued without delay, is the

most fruitful source of clandestine marriages. There are many

so-called "Gretna Greens" in the United States. One is (or was)

at Aberdeen, O.: WHITNEY, _Marriage and Divorce_, 43; another at

Greenwich, Conn. Oct. 2, 1900, the San Francisco _Chronicle_ had

the following telegram: "Greenwich's reputation as a Gretna Green

and that of Judge Burns of Greenwich of the Borough court as one

who marries all who come, appears to have extended to the Pacific

Slope. On Saturday there arrived in town ---- ---- of Alameda,

California, and ---- ---- of Los Angeles, California. They went

to Judge Burns' office, arranged for the marriage ceremony,

and then secured a marriage license from the town clerk....

Immediately after the ceremony" they "left town, maintaining the

greatest secrecy as is the usual custom." Another wedding resort,

for the benefit of Chicago, is the little town of St. Joseph,

Mich., where in the four years, 1897-1900, 1,594 licenses are

said to have been issued to persons residing outside the state,

the ceremony being performed by ministers. In 1903 an attempt

to adopt the Wisconsin plan, requiring an interval of five days

between the issue of the license and the celebration, failed by a

very few votes.

[672] Examples are given by DIKE, "Statistics of Marriage and

Divorce," _Pol. Sci. Quart._, IV, 597.

During the last fifteen years considerable progress has been made in

the state systems of registration; but in most cases the laws are

still exceedingly lax; and too frequently they are badly executed,

or remain a "dead letter" on the statute book.[673]

[673] On the faults of the registration laws see _ibid._, 594,

595.

The radical reform of the administrative division of our matrimonial

laws on some such lines as those suggested will be a worthy task for

the future legislator. As a necessary antecedent of more detailed

action the official system should be entirely reconstructed. The

simplest mechanism is likely to prove the best. Its elements are

close at hand in the local constitution. Every county should be

divided into districts, for each of which a registrar should be

authorized to license, solemnize, and register all marriages

civilly contracted therein;[674] and to license, register, and

attend religious celebrations. His authority should be carefully

restricted to the district and no other person should be permitted

to share his functions. The district registrars should report at

short intervals to the county registrar, who in turn should annually

submit a summary of statistics to the registrar-general for the

state, by whom the local registrars should be commissioned. If

desirable for the sake of economy, especially in states of sparse

population, the collection and registry of all vital statistics

might be intrusted to the same series of officials.[675] The moral

influence of the creation of a distinct system, such as that

outlined, would itself be of great value. It would effectively

accent the high relative importance to society of matrimonial law

and of intelligent service in its administration.

[674] In his enlightening criticism of our matrimonial laws COOK,

"The Mar. Cel. in the U. S.," _Atlantic_, LXI, 688, has suggested

the division of the county into districts for the appointment of

registrars.

[675] In England the registration of births and deaths in the

district is intrusted to a separate registrar: Compare the

details of the British system as presented in chap. x, sec. iii.

By the law of Massachusetts towns of more than 2,000 inhabitants

may choose a separate registrar to record and license, but not to

celebrate, marriages: see chap, xvi, sec. i, _c_).

Aside from its public features, just considered, the future

matrimonial code of the United States will have to remedy numerous

defects in the substance of the law. These may be seen by reference

to the detailed examination elsewhere presented. In particular,

it will be necessary to get rid of the appalling chaos of state

regulations regarding void and voidable contracts. The absurd

conflicts touching the forbidden degrees of relationship are a

positive social menace. The most serious complications may arise.

For instance, a man and a woman who may be legally wed in the place

where they dwell might, should they move a mile across the state

line and then marry, be guilty of incestuous union and their

children become bastards. Surely it ought to be possible for an

enlightened people to agree upon a common rule in a matter of such

vital concern.[676]

[676] _Cf._ RICHBERG, _Incongruity of the Divorce Laws_, 65 ff.

In many of the states the laws governing the "age of consent"--that

is, the age below which a person may not legally consent to carnal

union[677]--are still very defective, although distinct progress

has been made since 1885. In that year Mr. W. T. Stead's exposure

of the frightful traffic in young girls then tolerated in London

aroused the social conscience on both sides of the sea. The "old

common law period of ten, sometimes twelve, years" was then "the

basis of the age of consent legislation of most of the states, and

also of the law of congress pertaining to rape in the District of

Columbia and other territory under the immediate jurisdiction of

the national government.... It was not until after the astounding

revelations made by Mr. Stead ... that the age of consent laws in

the United States began to attract attention.... Even then the age

of consent in England was thirteen years. One outcome of Mr. Stead's

shocking exposures was the speedy raising of the age by the British

parliament from thirteen to sixteen years, Mr. Gladstone and others

advocating eighteen." The New York Committee for the Prevention of

State Regulation of Vice was already engaged in its long struggle to

"thwart the periodical efforts[678] made to introduce in New York

and other American cities the odious old-world system of licensed

and state-regulated vice; but its members were quite unaware, until

Mr. Stead's startling London revelations suggested the inquiry

here, that, by the age of consent laws of New York and of most of

the states, young girls of ten years were made legally capable of

consenting to their own ruin, and that at that time in one state,

Delaware, the age was at the shockingly low period of seven years!

Bad as English law had been shown to be in its inadequate protection

of girlhood our own legal position ... was found to be still worse.

The New York committee, as soon as the facts were known, inaugurated

a campaign of petitions to sundry state legislatures and to the

congress of the United States, asking that the age be raised to at

least eighteen years, and the work was also entered into earnestly

and effectively by the Woman's Christian Temperance Unions and

the White Cross societies."[679] Under the leadership of Helen H.

Gardener, Frances E. Willard, and others, the women of the country

conducted a veritable "crusade" of education against the existing

state laws, which for zeal, ability, and effective method may well

serve as a model for future united efforts in favor of social

reforms. It was pointed out as a notorious fact "that brothels and

vice-factories get their recruits from the ranks of childhood--from

the ignorance which is unprotected by the law;" that "children's

lives are thus wrecked, and the state is burdened with disease and

vice and crime and insanity, which is transmitted and retransmitted

until its proportions appall those who understand;" and that it

is absurd to make the legal age for consent to a valid marriage

higher than that for consent to prostitution. It was urged that

the age of consent ought to be advanced to that of legal majority;

that girls "have a right to legal protection of their persons,

which is more imperative by far than is the protection which every

state has recognized as a matter beyond controversy when applied

to a girl's property or her ability to make contracts, deeds, and

wills, or to her control of herself in any matters which are of

importance to her as an individual, and to the state, because she

is one of its citizens whose future welfare is a matter of moment

to the commonwealth;" and that in respect to her person, as well

as regarding property or marriage, she should be protected even

against her own will.[680] As a result of the campaign of 1895

alone the age of consent was raised in no less than fifteen states

and territories; and in the outset it was significantly pointed

out that the "two states in which the age of legal protection for

girlhood has been raised to eighteen years are states in which women

vote--Wyoming, upon equal terms with men, and Kansas, in municipal

elections."[681] A brief summary of the laws of the states and

territories regarding the subject under consideration may now be

presented.

[677] "Age of consent laws, in their usual acceptation, refer

to the crime of rape, and designate the age at which a young

girl may legally consent to carnal relations with the other sex.

Statutes pertaining to rape provide, in varying phrase, for the

punishment of 'whoever ravishes and carnally knows a female by

force and against her will,' at any age; and also penalties for

whoever unlawfully and carnally knows a female child, with or

without consent, under a given age."--POWELL, in _Arena_, XI, 192.

[678] "In the New York senate, in 1890, a bill was introduced

to lower the age of consent from sixteen to fourteen years. It

was reported favorably by the senate judiciary committee, but

vigorous protests against the proposed retrograde legislation

were promptly sent to Albany by the friends of purity, and the

disreputable scheme was defeated. It was understood to have

originated with Rochester attorneys who sought thus to provide

a way of escape for a client, a well-to-do debauchee guilty

of despoiling a young girl under the legally protected age of

sixteen." A similar attempt, in the house, in 1892, in the

interest of the New York brothel-keepers, was barely defeated by

calling for the yeas and nays. "In the Kansas senate, in 1889, a

bill was introduced and passed to lower the age ... from eighteen

to twelve years. The house was flooded with earnest protests, and

its judiciary committee reported adversely the disgraceful senate

bill."--POWELL, _loc. cit._, 194, 195.

[679] AARON M. POWELL, editor of the _Philanthropist_, in the

_Arena_ (1895), XI, 192-94. The _Arena_ was the principal

medium of publication for the reformers: see the symposium by

POWELL, GARDENER, and others, "The Shame of America," _Arena_,

XI, 192-215; the symposium by GARDENER, ROBINSON, and others,

_ibid._, XIII, 209-25; the symposium by LEACH and CAMPBELL,

_ibid._, XII, 282-88; SMITH, "Age of Consent in Canada," _ibid._,

XIII, 81-91; and especially GARDENER, "A Battle for Sound

Morality," _ibid._, XIII, 353-71; XIV, 1-32, 205-20, 401-19.

_Cf._ FLOWER, "Wellsprings of Immorality," _ibid._, XII, 337-52.

[680] GARDENER, "A Battle for Sound Morality," _Arena_, XIII,

354, 355.

[681] POWELL, in _Arena_, XI, 195; _cf._ GARDENER, _ibid._, XIII,

358.

Encouraging progress has been made in New England, although, in

comparison with some of the new commonwealths of the West, the

facts are not very creditable. By the Rhode Island statute the

age of consent is sixteen.[682] In New Hampshire it was raised

from thirteen to sixteen in 1897;[683] in Vermont, from fourteen

to sixteen in 1898;[684] and in Connecticut, from fourteen to

sixteen in 1895, while in 1901 the maximum term of imprisonment for

abusing a girl under sixteen was increased from three to thirty

years.[685] The age limit was only ten in Maine until 1887. It

was then raised to thirteen, and in 1889 to fourteen years.[686]

In Massachusetts likewise the disgracefully low age of ten years

for a girl was sanctioned by statute from 1852 until 1886, when

thirteen was substituted. Two years later it was increased to

fourteen; and by an act of 1893 an offense against a female under

sixteen may be punished by imprisonment for life or for any shorter

term of years.[687] The results are even less satisfactory in the

southern and southwestern group of states. Florida now heads the

list, but with a rather inadequate penalty, the age of consent

being raised from sixteen to eighteen years in 1901.[688] Missouri

in 1889 increased the age from twelve to fourteen, and in 1895

advanced it nominally to eighteen; but the provisions of the law are

such as practically to leave the limit of protection at fourteen

years.[689] Previous to 1895 in Arizona the age of consent was

fourteen. In that year it was raised to eighteen; but unfortunately

it was reduced to seventeen in 1899.[690] In Arkansas[691] it was

raised from twelve to sixteen years in 1893; in Louisiana,[692]

from twelve to sixteen in 1896; in the District of Columbia[693]

and in Indian Territory[694] it has been sixteen since 1889; in

Oklahoma[695] it was increased from fourteen to sixteen in 1895; in

Maryland,[696] from ten to fourteen in 1890, and to sixteen in 1898;

in Tennessee,[697] from ten to sixteen years and one day in 1893;

but the statutes of the three states last named are so lax as really

to leave the age of consent at twelve in Tennessee and at fourteen

in Maryland and Oklahoma. Texas advanced the limit from ten to

twelve in 1891, and to fifteen in 1895;[698] South Carolina,[699]

from ten to fourteen, and Virginia,[700] from twelve to fourteen,

in 1896; West Virginia,[701] from twelve to fourteen in 1901;

North Carolina,[702] from ten to fourteen in 1895; Alabama,[703]

from ten to fourteen in 1897; while fourteen is likewise the age

in New Mexico[704] and possibly also in Georgia;[705] but because

of vicious clauses in their statutes a girl is in fact only given

effectual protection below the age of ten in Alabama and North

Carolina, and by common law at the same age in Georgia. Twelve is

the limit in Kentucky;[706] and Mississippi[707] still retains the

shamefully low age of ten years.

[682] _Gen. Laws of R. I._ (1896), 999.

[683] _Laws of N. H._ (1897), 30, 31; _Pub. Stat._ (1900), 832.

[684] _Vermont Stat._ (1895), 877; _Acts and Resolves_ (1898),

90, 91.

[685] _Gen. Stat. of Conn._ (1887), 325; _Pub. Acts_ (1887), 669;

_ibid._ (1895), 580; _ibid._ (1901), 1208; _Gen. Stat._ (1902),

350.

[686] _Rev. Stat. of Me._ (1884), 883; _Acts and Resolves_

(1887), 110; _ibid._ (1889), 170.

[687] _Mass. Acts and Resolves_ (1886), 270; _ibid._ (1888), 40;

_ibid._ (1893), 1381; _Rev. Laws_ (1902), II, 1745.

[688] _Laws of Fla._ (1901), 111; penalty, not less than ten

years' imprisonment, or a fine not exceeding $2,000, or both.

[689] Up to fourteen carnally knowing a girl is rape, punishable

by death or imprisonment for not less than five years, at the

discretion of the jury: _Rev. Stat._ (1899), I, 547. Between

fourteen and eighteen, not only must the girl be "of previously

chaste character"--which begs the whole question--but the penalty

is ridiculously light: imprisonment in the penitentiary for two

years; _or_ a fine of not less than $100 nor more than $500; _or_

confinement in the county jail not less than one month nor more

than six months or both such fine and confinement: _Laws_ (1895),

149; also in _Rev. Stat._ (1899), I, 547. _Cf._ _Rev. Stat._

(1889), I, 850; GARDENER, in _Arena_, XIV, 31.

[690] _Laws of Arizona_ (1895), 48; _ibid._ (1899), 29; the same

in _Rev. Stat._ (1901), 1226: penalty, imprisonment for life or

for not less than five years.

[691] Act of April 1, 1893: _Digest_ (1894), 572: penalty,

not less than five nor more than twenty-one years in prison.

In Arkansas rape is punished by death, and, by exception, the

execution is to be public; but this does not apply in case of

conviction under the consent law.

[692] Act 115 (1896), 165; also in _Rev. Laws_ (1897), 196: "if

any person over the age of 18 years shall have carnal knowledge

of any unmarried female between the ages of 12 and 16 with her

consent he shall be deemed guilty of felony," and be imprisoned

with hard labor not exceeding five years.

[693] Act of Feb. 9, 1889: 1 _Supp. to U. S. Stat._, c. 120, p.

641; also _Code of D. C._ (1902), 170: penalty not less than five

nor more than thirty years' imprisonment, or death when the jury

so determines.

[694] Act of Feb. 9, 1889, applying to all territory in exclusive

jurisdiction of the U. S.: 1 _Supp. to U. S. Stat._, c. 120, p.

641; _Ann. Stat. Ind. Ter._ (1899), 845: first offense, not more

than fifteen years in prison; each later offense, not more than

thirty years.

[695] When the girl is under fourteen the offense is rape

punishable by not less than ten years in the territorial prison;

between fourteen and sixteen the penalty is not less than five

years' such imprisonment, if she be of "previous chaste and

virtuous character": _cf._ _Stat. of Okla._ (1893), 467; and

_Laws_ (1895), 104, 105.

[696] Up to fourteen for the girl the penalty is death or

imprisonment for life or for any definite term from eighteen

months to twenty-one years: _cf._ _Pub. Gen. Laws of Md._ (1888),

I, 533, 534; with _Laws_ (1890), c. 410, p. 447. By the act of

1898, c. 218, abuse of a girl between fourteen and sixteen is

only a misdemeanor punishable by not _more_ than two years in

the house of correction _or_ by a fine not to _exceed_ $500:

PRENTISS'S _Supp. to Code_ (1898), 195.

[697] In Tennessee the offense against a girl below twelve years

of age is punishable, as in case of rape, by death or, if the

jury please, by imprisonment for life or not less than ten years;

from twelve to sixteen, it is a felony, with three to ten years

in prison, if the child be of previous chaste character, and if

she can bring witnesses to support her statements. The one day

was added by way of a joke! See the interesting account of the

passage of the act by DROMGOOLE, in _Arena_, XI, 209-12; and for

the act consult _Laws_ (1893), c. 129, § 1, 273, 274; _Code_

(1896), 1593, 1594.

[698] _Laws of Tex._ (1891), 96; _ibid._ (1895), 79, 104: not

less than two years in the penitentiary.

[699] _Acts of S. C._ (1896), 223: a felony; penalty, death or

imprisonment for life, unless the jury recommends the offender to

mercy, when the court shall reduce the punishment to imprisonment

for a term not exceeding fourteen years.

[700] Act of March 3, 1896: _Acts_ (1895-96), 673: penalty, death

or imprisonment from five to twenty-one years, as the jury may

determine.

[701] _Acts of W. Va._ (1901), 218: penalty, death or

imprisonment from seven to twenty years, as the jury may decide;

but the penalty does not apply to a boy under fourteen ravishing

a girl over twelve "with her free consent."

[702] By the _Code of N. C._ (1883), 444, the age is ten; raised

to fourteen by _Pub. Laws_ (1895), 374; but the crime is only

"punished by fine _or_ imprisonment at the discretion of the

court, provided she has never previously had sexual intercourse

with any male person."

[703] The _Code of Ala._ (1897), 460, punishes the abuse of a

girl below fourteen, at the discretion of the jury, either by

death or by not less than ten years in prison; but an act of

1897, also in the _Code_, punishes carnal knowledge of a female

between ten and fourteen only by a fine of $50 to $500, and the

offender "may be imprisoned in the county jail for six months."

This provision appears to reduce the protection of a child above

ten to little more than a pretense: _Acts_ (1897), 944.

[704] _Comp. Laws of N. M._ (1897), 344: penalty, five to ten

years' imprisonment.

[705] For Georgia, in 1895, the age of consent was reported as

fourteen, or any younger age if the jury finds that "by reason

of her intelligence she knows good from evil": see GARDENER, in

_Arena_, XIV, 415, 416; but I have not been able to find this

provision in the present _Code_. The penalty for rape is death,

unless the jury recommend to mercy, when it is one to twenty

years' imprisonment at hard labor: _Code_ (1896), III, 36, 39.

This penalty applies when the girl is under ten: 11 _Ga._, 227.

[706] _Ky. Stat._ (1899), 516: penalty, ten to twenty years in

prison.

[707] _Ann. Code_ (1892), 372: penalty, death, unless the jury

fix the punishment at life imprisonment. There is in Mississippi

an abduction law to protect girls below sixteen: but the

age-of-consent law stops at ten. _Cf._ GARDENER, _loc. cit._, 416.

The most enlightened legislation regarding the age of consent is

found among the states of the middle and western group. Kansas[708]

in 1887, and Wyoming[709] in 1890, set a good example by raising

it to eighteen years. The same limit was adopted by Nebraska,[710]

Colorado,[711] Idaho,[712] and New York[713] in 1895; by Utah[714]

in 1896; by Washington[715] in 1897; and by North Dakota in

1903.[716] Until 1889 Delaware sanctioned the barbarous age of seven

years. It was then advanced to fifteen, and in 1895 to eighteen,

for both sexes; but the penalties prescribed by the statute are

far too lenient to guarantee entire protection beyond the age of

seven.[717] Next come ten states and districts in which the age is

actually or nominally placed at sixteen years. Minnesota[718] in

1891, South Dakota[719] in 1893, Michigan,[720] Montana,[721] and

Oregon[722] in 1895, Ohio[723] in 1896, and California[724] in 1897,

each advanced to this limit from fourteen. Sixteen is also the age

in Alaska.[725] But in 1902 Ohio took a backward step, so lowering

the penalty for the offense as nearly to destroy the force of her

law. Pennsylvania[726] and New Jersey[727] each raised the age from

ten to sixteen in 1887; but in Pennsylvania the girl must prove

previous good character, and in both states the penalties are too

lax to secure adequate protection beyond the age of ten. Since 1896

the age of consent has been fifteen in Iowa.[728] In Illinois[729]

since 1887, Nevada[730] since 1889, Indiana[731] since 1893,

Wisconsin[732] since 1895, and in Porto Rico by the code of

1902,[733] it is fourteen; while in Hawaii it is but ten years.[734]

[708] _Laws of Kan._ (1887), c. 150, § 1: _Gen. Stat._ (1901),

437: penalty, five to twenty years in prison.

[709] Act of Dec. 18, 1890, amending an act of March 14, 1890,

which fixed the age at fourteen: _Laws of Wyo._ (1890), 130:

_ibid._ (1890-91), 85, 86; _Rev. Stat._ (1899), 1236; penalty,

rape, with imprisonment "not less than one year or during life."

[710] Raised from fourteen: _Laws of Neb._ (1895), 314, 315;

_Comp. Stat._ (1901), 1409: penalty three to twenty years in

prison. But the value of the law is lessened by the provision

that it shall not apply in case of a girl over fifteen if

"previously unchaste."

[711] _Laws of Col._ (1895), 155: penalty, one to twenty years in

prison; raised from sixteen to eighteen.

[712] Raised from ten to fourteen in 1893, and advanced to

eighteen in 1895: penalty, imprisonment for life or not less than

five years. Compare _Rev. Stat. of Idaho_ (1887), 733; _Laws_

(1893), 10, 11; _Laws_ (1895), 19; and _Penal Code_ (1901), 134,

139.

[713] Raised from sixteen: _Laws of N. Y._ (1895), c. 460;

BIRDSEYE'S _Rev. Stat._ (1901), III, 3012: rape in second degree;

penalty, not more than ten years in prison; rape in first degree,

with not less than twenty years in prison, when an imbecile, etc.

[714] _Laws of Utah_ (1896), 87; _Rev. Stat._ (1898), 902, 877:

felony, penalty, not more than five years in prison.

[715] From 1881 to 1897 the age in Washington was twelve: _cf._

_Laws_ (1897), 19; BALLINGER'S _Codes and Stat._ (1897), II,

1951, note. Present penalty, imprisonment for life or any term of

years.

[716] Abuse of a female below eighteen is now made rape in the

first degree: _Laws of N. D._ (1903), 200.

[717] _Laws of Del._ (1889), 951; _ibid._ (1895), 192; _Rev.

Stat._ (1893), 924: when below seven, rape, with death penalty:

when between seven and eighteen, misdemeanor, punished by not

more than seven years in prison or a fine of not exceeding $1,000

or both, at the discretion of the court. _Cf._ GARDENER, in

_Arena_, XIV, 411, 412.

[718] _Gen. Laws of Minn._ (1891), c. 90, § 1, p. 162; _Stat._

(1894), II, 1747: penalty, confinement in the state prison for

life, when the girl is under ten; when between ten and fourteen,

seven to thirty years; between fourteen and sixteen, one to seven

years in state prison, or in county jail three months to one year.

[719] _Laws of S. D._ (1893), c. 138; _Ann. Stat._ (1901), II,

1916, 1917: rape in second degree; penalty, not less than five

years in the state prison.

[720] _Pub. Acts of Mich._ (1895), 170: penalty, imprisonment for

life or any term of years.

[721] _Codes and Stat. of Mont._ (1895), 1062, 1063: penalty,

imprisonment for life or not less than five years.

[722] From 1864 to 1895 the age was fourteen: HILL'S _Codes_

(1892), I, 897; _Laws of Ore._ (1895), 67: penalty, three to

twenty years in prison.

[723] Ohio raised the age from ten to fourteen in 1887, and

advanced it to sixteen by the act of March 3, 1896: _Acts_

(1875), 93 (age made ten years); _ibid._ (1887), 65; _ibid._

(1896), 54: BATES'S _Ann. Stat._ (1897), II, 3144, 3145: rape

if the boy is over eighteen; penalty, three to twenty years in

prison; lowered by _Acts_ (1902), 344, to one to twenty years,

"or 6 months in the county jail or workhouse at the discretion

of the court, which is hereby authorized to hear testimony in

mitigation or aggravation of sentence." _Cf._ BATES, _Ann. Rev.

Stat._ (1903), III, 3307-8.

[724] Compare _Stat. and Amend. to Codes_ (1889), 223, and

_ibid._ (1897), 201: penalty, not less than five years in prison.

[725] _Laws of Alaska_ (1900), 4.

[726] _Pub. Laws of Pa._ (1887), 128; PEPPER AND LEWIS, _Digest_

(1896), I, 1318, 1319: penalty, when the woman child is between

ten and sixteen, fine not exceeding $1,000 and imprisonment not

exceeding fifteen years, if she "was of good repute;" below ten,

without this condition. Thus there is no sure protection beyond

ten. No conviction when boy is under sixteen.

[727] _Laws of N. J._ (1887), 230; _Gen. Stat._ (1896), I, 1096:

penalty, not exceeding $1,000, or imprisonment at hard labor not

more than fifteen years, or both. There is also an abduction law

to protect a female under fifteen: _Gen. Stat._ (1896), I, 1064.

The age is ten in _Rev. Stat._ (1874), 148.

[728] Raised from thirteen; _Acts of Ia._ (1896), 71; _Ann. Code_

(1897), 1888: penalty, imprisonment for life or any term of years.

[729] _Laws of Ill._ (1887), 171; HURD'S _Rev. Stat._ (1901),

634: penalty, when male is above sixteen, imprisonment for life

or not less than one year.

[730] Raised from twelve: _Stat. of Nev._ (1889), 74; _Comp.

Laws_ (1900), 914, 915: rape when the boy is fifteen or more;

penalty, imprisonment for life or not less than five years.

[731] Raised from twelve: _Acts of Ind._ (1893), 22; BURNS'S

_Ann. Stat._ (1901), I, 790: penalty, one to twenty-one years in

prison.

[732] Raised from twelve: _Laws of Wis._ (1895), c. 370, sec. 1;

_Wis. Stat._ (1898), 2668: penalty, five to thirty-five years in

prison.

[733] _Rev. Stat. and Codes of Porto Rico_ (1902), 532, 533:

penalty, not less than five years in the penitentiary.

[734] _Penal Laws of Hawaiian Islands_ (1897), 73.

It appears, then, although in many cases the statutes are very

imperfect, that of the fifty-three states and territories twelve

have actually or nominally advanced the age of consent to eighteen;

one to seventeen; twenty-two to sixteen; two to fifteen; thirteen

to fourteen; while two still retain the low age of twelve and one

that of ten years. It should everywhere be raised to eighteen or

twenty-one--the age of legal majority for a woman in her business or

political relations--by a statute as rigorous as that of Idaho or

Kansas. A wide field for beneficent legislation therefore remains;

and, although morality "can not be legislated into a people," it is

precisely by wise measures of this character that the lawmaker can

render powerful aid in the creation of an environment favorable to

moral and social progress.

_c_) _Resulting character of divorce legislation._--What has just

been said regarding the function of social legislation applies

with special force to the laws relating to divorce. Here, as in

the case of marriage, there is a wide sphere of useful activity

for the lawmaker. He cannot, it is true, reach the root of the

matter: the fundamental causes of divorce which are planted

deeply in the imperfections of the social system--particularly in

false sentiments regarding marriage and the family--and which, as

will presently appear, can only be removed through more rational

principles and methods of education. He can, however, by carefully

drawn and uniform statutes render the external conditions--the

legal environment--favorable for the operation of the proper

remedy. In this sense it is possible to have "good divorce laws,"

just as we may have good charity laws, good laws for the check of

contagious diseases, or good laws in any department of remedial

social legislation.[735] So far as their ethical content is

concerned, good divorce laws, like any other, will not lead, but

must follow at some distance, the highest moral sentiment of the

community. They should, however, follow as closely as practicable

in order to secure the obedience of all. In this field it is highly

essential that the laws should be simple, certain, and uniform.

They should not from their very nature become a dead letter, or

even an encouragement to domestic discord, by offering opportunity

for evasion, collusion, or lax interpretation. Statutes which are

not in good faith executed, like those of France under the old

_régime_, are always a fruitful source of social disorder. They

tend to destroy the reverence for law itself. In this respect the

divorce laws of many of the states are still defective, although

decided progress has been made during the last twenty years. Within

this period the foundation of what may some time become a common and

effective divorce code for the whole Union has slowly been laid.

Little by little, as the detailed discussion already presented in

the seventeenth chapter reveals, more stringent provisions for

notice have been made, longer terms of previous residence for the

plaintiff required, and more satisfactory conditions of remarriage

after the decree prescribed; while some of the "omnibus" clauses

in the list of statutory causes have been repealed. Much of the

best of this work has been accomplished, it is but just to record,

through the activity of the National Divorce Reform League and its

successor, the National League for the Protection of the Family,

under the able guidance of its alert and zealous corresponding

secretary, Rev. Samuel Dike, of Auburndale.[736] By this league

was suggested the compilation of the elaborate report of Hon.

Carroll D. Wright, commissioner of labor, published in 1889; and

this has had a powerful influence for good, providing the body of

facts needful for the wise direction of legal reform. But in many

ways in various states lax legislation is still a demoralizing

social factor. Thus, until the statute of 1902 has perhaps put a

stop to the traffic, Rhode Island was a favorite resort of persons

from New York who were able to escape the marital bond through

the institution of "fake suits" for nonsupport. Reno, Nev., has

continued to be the Mecca of newly divorced people from California

and elsewhere, seeking to evade their own laws by flight to a place

where there are no legal obstacles to immediate remarriage.[737]

Greenwich, Conn., sustains a similar relation to New York. Sioux

Falls, S. D.--to produce one more from the many examples which might

be mentioned--appears still to have a flourishing "divorce colony;"

yet it may be true, as strongly urged, that the laws of this state,

though liberal, are honestly and strictly interpreted.[738] Nor

must it be inferred in such cases that those who seek relief in a

foreign jurisdiction are for that reason unworthy people. There are

sometimes wrongs committed under shelter of the marriage bond so

monstrous as to warrant any legal means of gaining relief. Indeed,

the evil of clandestine divorce in the United States has been much

exaggerated. "A vital question connected with divorce," declares

Commissioner Wright in 1891, "relates to the real or supposed

migration of parties from one state to another for the purpose of

seeking divorce. The popular idea is that a great deal of migration

takes place for the purpose named. This idea is dispelled in some

degree by the statistics that are available upon this point, and

getting at the truth as nearly as possible, it is found that but

little less than 20 per cent, of all the couples in the country were

divorced in other states than those in which they were married.

But the ordinary migration of parties for legitimate purposes,

especially from the older to the newer states, which in 1870 showed

that 23+ per cent. of the native born population, and for 1880 22+

per cent. of such population were living in states other than the

ones in which they were born, would apparently reduce the percentage

of persons migrating for the purpose of divorce to a point even less

than that stated."[739] In fact, for the reason assigned by Mr.

Wright, it seems highly probable that the number of such persons

must be placed at considerably less than 10 per cent. of the whole

number of persons divorced in the United States.[740] Accordingly,

it has been inferred that uniformity of law throughout the country

would do little to lower the divorce rate. "The establishment of

uniform laws," concludes Mr. Dike, "is not the central point of

the problem."[741] Furthermore, there is another important fact

bearing on the evil of clandestine divorce. In a number of cases

arising in various states the courts have declared null and void

decrees secured in jurisdictions where the plaintiffs were not _bona

fide_ residents, even when they had dwelt in such jurisdictions

for the statutory term prescribed as a condition for obtaining a

divorce.[742]

[735] "When the question is asked, 'What is the best divorce

law?' the only answer can be, 'There is no good divorce law.'

There are some faults in human nature which always have existed

and apparently always will exist; and there is no satisfactory

method of dealing with them."--BRYCE, _Studies in Hist. and

Jurisprudence_, 853. This assertion would apply equally well to

the whole body of laws dealing with questions arising in human

conduct or social relations. It is misleading, and instead of

helping to a solution tends to befog the issue.

[736] See the _Reports_ of the league and the numerous papers of

MR. DIKE mentioned in the fourth division of the "Bibliographical

Index."

[737] The evils which may result from conflicts of this kind

in the divorce laws are discussed in a lively way by RICHBERG,

_Incongruity of the Divorce Laws_, 69, 70. But the California act

of 1903, if constitutional, may check the abuse: see pp. 150,

151, above.

[738] See REALF, "The Sioux Falls Divorce Colony and Some Noted

Colonists," _Arena_, IV, Nov., 1891, 696-703, and compare the

remarks of DIKE, in _Rep. of Nat. Div. Ref. League_ (1891), 12,

who has taken pains to correct the exaggerated accounts of the

newspapers; those of HARE, _Marriage and Divorce_, 16 ff.; and

see the articles of A. R. KIMBALL and R. OGDEN mentioned in Part

IV of the Bibliographical Index.

[739] Extract from an address delivered by HON. CARROLL D. WRIGHT

before the fourteenth National Conference of the Unitarian

Society, Saratoga, N. Y., 1891: in _Arena_, V, 143; printed

entire in the _Christian Register_, Oct. 8, 1891; based on the

statistics collected in his _Report_, 193-206. Commenting on the

passage quoted the editor of the _Arena_ says (142):

"Another charge made against our divorce laws is that, not being

uniform, certain states are being overrun with persons of loose

moral character, who seek release from marriage ties. Those who

make this charge seem to overlook the fact that persons of loose

moral character would not be liable to go to the trouble of

leaving their home and state in order to gratify guilty passions.

But those who find the marriage tie too galling for endurance and

yet who wish to be law-abiding citizens presumably, will take

advantage of liberal, enlightened, and humane laws, framed with a

view to increase the happiness of the people rather than made in

such a way as to foster immorality and enforced prostitution."

[740] According to the method of determining the amount of

interstate migration for the purpose of securing divorce

suggested by WILLCOX, "A Study in Vital Statistics," _Pol. Sci.

Quart._, VIII, 90-92.

[741] DIKE, "Statistics of Marriage and Divorce," _Pol. Sci.

Quart._, IV, 608-12.

[742] See Streitwolf _v._ Streitwolf (1900), _Opinions of U. S.

Supreme Court_, No. 13, p. 553, involving a decree of divorce

granted in North Dakota to a resident of New Jersey; Bell _v._

Bell (1900), _ibid._, 551, voiding a similar judgment secured in

Pennsylvania by a resident of New York; and S. _v._ Armington

(1878), 25 _Minn._, 29-39, in which a divorce granted in Utah

to a resident of Minnesota in 1876 was declared void for want

of jurisdiction. Similar decisions, involving the notorious

fraudulent divorces obtained in Utah before the change of the

law in 1878, "have been reached in criminal trials in New York,

Indiana, and Iowa, and in civil suits in Massachusetts, Kansas,

and Tennessee"--the earliest in 1877: WILLCOX, "A Study in Vital

Statistics," _Pol. Sci. Quart._, VIII, 86 n. 1.

To some extent the evil of lax administration of the divorce laws is

exaggerated by popular opinion. In the main the courts are careful

and conscientious in the trial of suits. According to the report

of Commissioner Wright, in seventy counties scattered over twelve

states but 67.8 per cent. of the petitions for divorce were granted.

From this fact it is inferred that "judges exercise a reasonable

care before issuing a decree." For the counties investigated "it

is certain that in about 30 per cent. of the cases of petition a

decree has been denied. The number of cases involved is sufficiently

large and the localities sufficiently different to lead one to

the conclusion that the same state of affairs exists throughout

the country, and that our courts, instead of being careless in

the matter of granting decrees, weigh well the causes alleged,

and do not grant decrees unless the allegations of the libellants

are fairly sustained."[743] Still, under the laws as they exist

there is plenty of opportunity for abuse, even when the court is

cautious. The service of notice on the absent defendant through

the mails or through publication in the newspapers, allowed in

many states, and the fact that only in a few instances is there

any provision requiring the prosecuting attorney to resist an

undefended libel, afford occasions for fraud.[744] Some of the

usual statutory causes of divorce, under the refinement of judicial

interpretation, seem virtually to invite divorce.[745] This is to

some extent true of "nonsupport," "wilful absence," "desertion,"

and "gross neglect of duty;" while "cruelty" has become almost an

"omnibus clause." Under plea of "constructive cruelty" or "mental

anguish" the grievances admitted as valid grounds for dissolution

of wedlock are often trivial or even absurd, although it is likely

that they are sometimes put forward as a shield or substitute for

graver wrongs which the plaintiff is reluctant to disclose.[746]

The general introduction of the decree _nisi_, giving opportunity

for reflection, might prove a wholesome correction of the almost

necessarily liberal policy of the courts in such cases. Divorce

suits are sometimes too hastily disposed of by the judges because

of the pressure of other litigation. The creation of a limited

number of special divorce courts in each of the states might prove a

remedy, if care were taken not to so increase the cost of actions as

virtually to discriminate against the poor.

[743] WRIGHT, _Report_, 162-64. In the whole country, during

the years 1867-86, 328,716 decrees were granted, representing

probably 484,683 petitions.

[744] In forty-five counties in twelve states, for the period

1867-86, notice was served by publication in 9,944 cases; in

17,040 cases personal service was made; and in 2,681 cases no

evidence on the point was obtainable: WRIGHT, _Report_, 201, 202.

[745] For a good discussion of the scope of various statutory

grounds of divorce, with the defenses, as actually interpreted

by the courts, see WHITNEY, _Marriage and Divorce_, 108-56; and

compare BISHOP, _Mar., Div., and Sep._, I, 610 ff., II, 1 ff.;

STEWART, _Law of Mar. and Div._, 203 ff.; LLOYD, _Law of Div._,

147 ff., 180 ff.; CONVERS, _Mar. and Divorce_, 180 ff.

[746] The ninety-nine illustrations of the allegations of the

plaintiff presented in WRIGHT'S _Report_, 172-78, constitute

very interesting reading. Some of them are quoted by BRYCE,

_Studies in Hist. and Jurisp._, 835, 836. The frauds arising in

the procedure are forcibly described by JUDGE JAMESON, "Divorce,"

_North Am. Rev._, CXXXVI, 323, 324; and the conflicts in laws by

PHILLIPS, "Divorce Question," _Internat. Rev._, XI, 139-52.

The appearance of the government report in 1889 revealed for the

first time something like the real facts regarding divorce in the

United States. In the entire country during the period of twenty

years (1867-86) covered by the report, 328,716 petitions for full

or partial divorce were granted. From 9,937 decrees in 1867, the

number rose to 11,586 in 1871, 14,800 in 1876, 20,762 in 1881,

and to 25,535 in 1886, showing an increase in twenty years of

157 per cent., while there was a gain in population of but 60

per cent. during the same period. Comparing the last year with

the first, only four states in the Union--Delaware, Connecticut,

Maine, and Vermont--show a decrease in the divorce rate; while,

more fairly, comparing the fourth quinquennium with the first,

only the three states last named show such a "decrease in their

divorce movement."[747] Of the whole number of divorces during the

twenty years, 112,540 were granted to the husband and 216,176 to

the wife. Among the principal causes, at each stage of the wedded

life, only for adultery were more decrees granted on the husband's

petition than on the wife's.[748] "As regards the ratio of divorces

to marriages, six states report marriages fully enough for a

trustworthy comparison. Of these, Connecticut has for the entire

period a divorce to 11.32 marriages and for the worst year, 1875,

one to 8.81; Rhode Island gives one to 11.11 for the period and one

to 9.36 in 1884, closely approaching that for the preceding years;

Vermont one to 16.96 for the period and at its worst, in 1871, one

to 13; Massachusetts gives one to 31.28 for the period, its worst

being one to 22.54 in 1878; Ohio averages one to 20.65, with an

almost unvarying progress downward to one to 15.16 in 1886;" and

in the District of Columbia the rate for the period is 31.28, while

at the best it is 74.65 in 1868 and at the worst 20.82 in 1877.

"In some other states where marriages are less fully reported, the

ratios are as follows: Illinois one to 14.76 for the period, while

Cook county gives one to 13.6; Michigan one to 12.92; Minnesota one

to 30.05; New Hampshire one to 9.74 (its lowest, one to 7.6 in 1880,

being evidently due to very imperfect returns of marriages); New

Jersey shows one to 49.39; Kansas one to 17.42; Wisconsin one to

21.07; and Delaware one to 36.99. These last, it should be noted,

are some of them for shorter periods than twenty years."[749] This

method of comparing the number of divorces granted with the number

of marriages celebrated is not very satisfactory. "It is vicious in

this, that the marriages celebrated each year cannot be compared

scientifically with the divorces drawn from the whole volume of

marriages celebrated in the past thirty or forty years, many of

which even took place in foreign countries."[750] The commissioner

has therefore adopted another method of comparison, not entirely

free from error, based on the estimated number of existing married

couples. From this it appears that in 1870, for the entire country,

there were 664 married couples to one divorce granted, while in 1880

the number of such couples to one decree had fallen to 481.[751]

Estimated another way, on the basis of the eleventh census, in 1867

there were 173 divorces to 100,000 couples and 250 in 1886.[752]

[747] WRIGHT, _Report_, 139-42.

[748] According to the table by classified causes: WRIGHT,

_Report_, 181-83. However, the relative number of divorces

granted on the wife's petition varies greatly among the states:

from 39.3 per cent. in North Carolina to 77.9 in Nevada: compare

the table in WILLCOX, _The Divorce Problem_, 34-37.

[749] DIKE, "Statistics of Marriage and Divorce," _Pol. Sci.

Quart._, IV, 607, summarizing the tables and figures in WRIGHT,

_Report_, 135-39.

[750] WRIGHT, _Report_, 137.

[751] _Ibid._, 147-49.

[752] WILLCOX, _The Divorce Problem_ (2d ed.), 16-19, and

Appendix.

The divorce rate in the United States is higher than in any other

country for which statistics are collected and published, with the

single exception of Japan,[753] being lowest in the southeastern

and highest in the western and southwestern states.[754] As in

Europe the divorce rate is higher and the marriage rate lower in

the cities than in the country.[755] Again, while the marriage rate

per capita of population is steadily descending, the divorce rate

is on the average rising, although the "North Atlantic group of

states, from Maine to Pennsylvania inclusive, shows no increase" in

the twenty years, the growth of divorce just keeping pace "with the

population."[756] For some of the western states the more recent

statistics are sufficiently startling. "Divorces in Ohio increased

from 2,270 in 1889 to 3,217 in 1899, and the ratio to marriages

has become 1 to 10.9. There were 2,418 divorces in Michigan in

the year 1900, or 1 to 9.6 marriages. Here about two-thirds of

the applications are granted. In some states three-fourths of the

suits are successful. In Michigan the statistics show that nearly

all the divorces are granted to residents of the state. Indiana

shows a remarkable change for the worse. Almost a generation ago

Indiana was notoriously bad. Then the laws were improved and her

divorce rate was no worse than that of some states in the east;

but for some unexplained reason divorces of late have increased

rapidly. In 1899 there were granted no less than 4,031 divorces, and

4,699 in the year 1900. In the last year the ratio of divorces to

marriages of the same year became 1 to 5.7 for the entire state,"

and 1 to 3.8 in the county of Marion containing Indianapolis.[757]

In Europe likewise the marriage rate is decreasing and the divorce

rate increasing, each in some countries with even greater rapidity

than on the average in the United States. Moreover, the growth of

divorce in recent years is a remarkable phenomenon in Catholic as

well as Protestant lands. Thus in the entire German Empire divorces

rose from 5,342 in 1882 to 6,677 in 1891, the population during

the same decade rising from 45,719,000 to 49,767,000. In Holland

there were together 271 divorces and separations in 1883 and 474 in

1892, the population at the same time advancing from 4,225,065 to

4,669,576. During the same ten years divorces in Sweden rose from

218 to 316, the population being 4,603,595 at the beginning and

4,806,865 at the end of the period. In this decade, the population

making but slight advance, the aggregate number of divorces and

separations in Switzerland decreased from 1,013 to 953. In France

for each 1,000 marriages celebrated 14 divorces were decreed in

1885 and 24 in 1891, the population showing a very small increase.

For the decennium beginning in 1884 and closing in 1893 the number

of divorces decreed in Belgium mounted from 221 to 497, while

the population grew from 5,784,958 to 6,262,272. During the same

period in Greece the number rose from 88 to 103. In Bavaria--like

Greece or Belgium a Catholic state--there is also a rapid growth

of divorce, the number of decrees advancing from 218 in 1882 to

308 in 1891, thus giving a rate of one divorce for 24,490 of the

population at the commencement as compared with 18,279 at the close

of the decade.[758] "In England divorces rose from 127 in 1860 to

390 in 1887, an increase much more rapid than that of population or

of marriages. Judicial separations rose between the same years from

11 to 50. In Scotland divorces which in 1867 numbered 32 had, in

1886, grown to 96, a still more rapid rise, as it covers only twenty

instead of twenty-seven years. It is worth noting that in England

it is usually the husband who petitions for a divorce, and almost

always the wife who seeks a judicial separation."[759]

[753] According to WILLCOX, "A Study in Vital Statistics," _Pol.

Sci. Quart._, VIII, 78, the "number of persons divorced (not

the number of divorces) to every 100,000 of the population" is

as follows for various countries, the date being 1886 unless

otherwise stated: Ireland, 0.28; Italy (1885), 3.75; England

and Wales, 3.79; Canada, 4.81; Australia (including New Zealand

and Tasmania), 11.14; German Empire, 25.97; France, 32.51;

Switzerland, 64.49; United States, 88.71; Japan, 608.45. "In the

year 1886," he adds, "there were in Japan 315,311 marriages and

117,964 divorces, more than one divorce to every three marriages

and more than four and a half times as many divorces as there

were in the United States, although the population of Japan was

only about two-thirds as great."

[754] WILLCOX, _op. cit._, 92-96.

[755] WRIGHT, _Report_, 158-63: WILLCOX, _op. cit._, 74,

75; BERTILLON, _Étude démographique du divorce_, 54-57; and

_Statistik der Ehescheidungen der Stadt Berlin_, vi, vii, showing

that for each 10,000 married persons living in Berlin in 1867

29.85 divorces were granted, while in 1894 the rate had risen to

37.93.

[756] WILLCOX, _op. cit._, 73 ff., 93 ff. _Cf._ WRIGHT, _Report_,

145, 146. Within this group the New England states show a small

decrease in the divorce rate; "while in New York, New Jersey,

and Pennsylvania as a whole it has slightly increased, the two

offsetting each other."

[757] DIKE, in _Rep. of Nat. League for Protection of the Family_

(1901), 6, 11. But in 1902, for the state, the ratio was 1

divorce to 7.6 marriages; _ibid._ (1903), 10.

In 1896 the number of marriages celebrated to one divorce granted

was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut,

9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in

Rhode Island had fallen to 8.2; while it had risen in Connecticut

to 15.8 and in Massachusetts to 20.2: _Registration Report_ (Me.,

1896), 91; _ibid._ (Vt., 1896), 96; DIKE in _Report_ (1901), 11.

In 1902 the number of marriages to one divorce was sixteen in

Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about

six in Maine; while in 1901 it was 8.3 in New Hampshire: DIKE,

_op. cit._ (1903), 9, 10.

[758] For these facts see the parliamentary _Return of the

Number of Divorces in Foreign Countries_ (Part I, being Misc.

No. 4, 1895), 3-5, 8, 9, 10, 12, 15, 16. See also BERTILLON,

_Étude démographique du divorce_, 58 ff., 74 ff.; the table in

_Statistik der Ehescheidungen der Stadt Berlin_, vi, vii, giving

figures (1867-94) for German and other lands as well as for

the city; OETTINGEN, _Die Moralstatistik_, 134-62, _passim_;

RUBIN AND WESTERGAARD, _Statistik der Ehen_ (relating chiefly

to Denmark and particularly to Copenhagen); CADET, _Le mariage

en France_ (containing many statistical tables for marriage

and divorce); NAQUET, _Le divorce_ (giving two tables for

marriage and divorce, 1840-74); WOOLSEY, _Divorce and Divorce

Legislation_, 181-93; MUIRHEAD, "Is the Family Declining?"

_Internat. Jour. of Eth._, Oct., 1896, 33 ff.; MAYO-SMITH,

_Statistics and Sociology_, 101 ff., 124; WRIGHT, _Report_, 981

ff.; and the mass of marriage statistics in CAUDERLIER, _Les lois

de la population et leur application à la Belgique_.

[759] BRYCE, _Studies in Hist. and Jurisp._, 841.

It has long been observed that in Europe the marriage rate falls in

hard times and rises again on the return of prosperity. "According

to all experience," declares Mill, "a great increase invariably

takes place in the number of marriages in seasons of cheap food and

full employment."[760] The middle and upper classes, says Fawcett,

"do not often marry unless they have reasonable prospect of being

able to bring up a family in a state of social comfort.... But the

laborers, who form the majority of the population, are but slightly

influenced by such cautious foresight. Even a trifling temporary

improvement in their material prosperity acts as a powerful impulse

to induce them to marry; for it is a demonstrated statistical

fact that the number of marriages invariably increases with the

decline in the price of bread."[761] Farr and Bodio reach the same

conclusion.[762] Ogle on the other hand, while agreeing entirely

with these writers as to the favoring influence of prosperity and

the depressing effect of hard times on the number of marriages,

finds in England, so far as the price of bread alone is concerned,

that the reverse is true, more marriages there taking place among

the laboring class when bread is dear. In this case, he urges,

the higher cost of bread may itself be an incident of increased

industrial activity, depending in part on the rise of freight

charges on imported wheat. So he concludes that "the marriage rate

rises and falls with the amount of industrial employment, which

in its turn is determined by the briskness of trade, as measured

by the values of exports, which also rise and fall concomitantly,

and produce by their effect upon freights a simultaneous rise or

fall in the price of wheat."[763] The researches of Oettingen,

Bertillon, and especially those of Cauderlier, have also disclosed

a general variation in the marriage rate corresponding with the

rise or fall in the price of the necessaries of life.[764] War

in particular has a powerful influence in lowering the marriage

rate, while on the restoration of peace the loss may be largely

or entirely recovered. "In 1864 Denmark was at war with Prussia,

and its marriage rate fell from 15.0 to 11.13" for each 1,000

inhabitants, "the lowest point it has ever yet reached, but in the

next year, the war being over, rose to 17.8, and was higher than it

has ever been again. In 1866 Austria was at war with Prussia, and,

while the Prussian rate fell from 18.2 to 15.6, the Austrian rate

fell from 15.5 to 13.0, but on the cessation of hostilities rose

in 1867 to 19.3, a higher level than in any earlier year."[765]

According to Willcox,[766] the same rule appears to hold good in the

United States. In Massachusetts for the period 1850-90 the marriage

rate was low in the years of industrial depression and during the

Civil War. Furthermore, the same writer has for the first time

demonstrated that the average divorce rate for the whole country is

affected in the same way, sinking in hard times and rising again

on the restoration of business. Represented graphically, the curve

for the Massachusetts marriages and the curve for United States

divorces (1867-86), with slight exceptions, "uniformly ascend and

descend together and reach their maxima and minima in the same

years. Depressions in trade have had a tendency to decrease divorces

as well as marriages;" whereas in England, while the marriage rate

falls the divorce rate rises in hard times. But in that country

divorce is notoriously very expensive and hence mainly a luxury

for the rich. So it is concluded that "this difference between the

effect of hard times in England and in the United States, together

with the very rapid increase of divorce among the southern negroes,

and the fact that only about one wife in six of those obtaining

divorces receives any alimony, are among the indications that

divorce has become very frequent and perhaps most frequent among

our lower middle classes, and has reached for weal or woe a lower

stratum than perhaps anywhere in Europe."[767]

[760] MILL, _Prin. of Pol. Econ._ (Boston, 1848), I, 413.

[761] FAWCETT, _Manual of Pol. Econ._ (4th ed., London, 1874),

143.

[762] BODIO, _Del Movimento della populazione in Italia e in

altri stati d'Europa_ (1876), 136, 137; FARR, _Vital Statistics_,

68-75; and _idem_, in _Report of the Registrar General_:

quoted by OGLE, "On Marriage Rates," etc., _Jour. of the Royal

Statistical Society_, LIII, 254 ff. _Cf._ NEWSHOLME, _Vital

Statistics_, 45, 46.

[763] OGLE, _op. cit._, 256-63. CAUDERLIER, _Les lois de la

population_, 71-74, 113, 114, has also shown in the case of

England that foreign commercial relations must be considered in

determining the condition of material well-being.

[764] OETTINGEN, _Die Moralstatistik_, 89-94, and authorities

there cited; BERTILLON, _Annales de démographie internationale_,

I, 24; CAUDERLIER, _op. cit._, 61-78, 102 ff., giving statistics

for Germany, Belgium, England, and France. _Cf._ MAYO-SMITH,

_Statistics and Sociology_, 100, 101.

[765] OGLE, _op. cit._, 255; _cf._ OETTINGEN, _op. cit._, 93, 94.

[766] WILLCOX, "A Study in Vital Statistics," _Pol. Sci. Quart._,

VIII, 76, 77. _Cf._ _idem_, "The Marriage Rate in Michigan,"

_Pub. Am. Stat. Assoc._, IV, 7; and CRUM, "The Marriage Rate in

Massachusetts," _ibid._, 328, 329.

[767] WILLCOX, _loc. cit._, 76, 77, 79-82. On the increase of

divorce among the southern negroes see _idem_, _The Divorce

Problem_, 21-23, 29-32.

Whether the number of divorces is directly influenced by legislation

is a question which has given rise to decided difference of opinion.

Bertillon, writing in 1883 in favor of the new divorce law of

France then under consideration, took the position that statutes

extending the number of causes of divorce or relaxing the procedure

in divorce suits have little influence "upon the increase in the

number of decrees."[768] Yet, for obvious reasons, he predicted

that the first, though not the lasting, result of a change in the

law allowing absolute divorce instead of mere separation would be

the opposite of this conclusion. Such, in fact, was the case. In

1883 there were 3,010 separations; while, after the new code took

effect, 4,478 divorces and separations were granted in 1884, 6,245

in 1885, and 6,211 in the following year.[769] Only a part of this

can be accounted for by the change in law, for there had been a

rapid increase during the preceding fifty years.[770] For the

United States this point has been examined by Professor Willcox,

and his results go to show that the difference in the divorce rate

existing among the states cannot very largely be accounted for by

the difference in the number of grounds of petition sanctioned by

the respective statutes. Thus in 1880 New York admitted one cause,

New Jersey two causes, and Pennsylvania four; yet on the average

in that year for each 100,000 married couples New York was granting

81 divorces, New Jersey 68, and Pennsylvania 111.[771] "This means

that more divorces for adultery are granted in New York, relatively

to population, than for adultery and desertion in New Jersey, and

almost as many as for adultery, desertion, cruelty, and imprisonment

in Pennsylvania. Assume the number of married couples in the three

states in 1875 to be a mean between the estimates for 1870 and 1880,

and compare with this mean the total number of divorces for adultery

in the three states for the twenty years. Pennsylvania had annually

16 such divorces to 100,000 couples, New Jersey had 26, and New York

78. Judging from the court records, one would say that adultery was

about three times as frequent in New York as in New Jersey, and

about five times as frequent as in Pennsylvania. No such inference

is warranted. The true conclusion is that limiting the causes

increases the number of divorces in those which remain, but without

materially affecting the total number. A certain proportion of the

married couples in the three states desired divorce, and was willing

to offer the evidence required in order to obtain the decree. The

number of causes, then, seems to have affected the grounds urged

for divorce, but in no large degree the total number."[772] It is

possible that this conclusion is somewhat too emphatic. The problem

is very complex, and it is hard to make allowance for all its

conditions. For example, it should not be forgotten that New Jersey

has but one tribunal, the court of chancery, authorized to grant

divorce, whereas New York has many; and if states sanctioning a

wider range of causes were selected for comparison, the result might

be changed, though scarcely to any wide extent.

[768] BERTILLON, _op. cit._, 20-28, 88-102; WRIGHT, _Report_, 150.

[769] See table in WRIGHT, _Report_, 145.

[770] See the table in BOTTET, _La famille_, 47 ff. His figures

do not agree with those quoted from WRIGHT'S _Report_: According

to his table, 3,010 separations were granted in 1883; 3,790

separations and divorces in 1884; 4,640 in 1885; 6,270 in 1886;

7,983 in 1887; and 7,430 in 1888. Compare KELLER, "Divorces in

France," _Procds. of the Am. Stat. Assoc._, I, 469 ff., who

summarizes TURQUAN, _Résultats statistiques de cinq années de

divorce_. See also "Divorce: from a French Point of View," _North

Am. Rev._, CLV, 721-30, by NAQUET, author of the law of 1884; and

the vigorous criticism of BRUN, "Divorce Made Easy," _ibid._,

CLVII, 11-17. In 1897, 7,460 divorces were decreed; while in

1900 there were only 7,157; DIKE, _Rep. of the Nat. League for

Protection of the Family_ (1903), 11.

[771] WILLCOX, _The Divorce Problem_, 37, 38.

[772] _Ibid._ (2d ed.), 45, 46; WRIGHT, _Report_, 148, 169.

Commissioner Wright has attempted to discover the general influence

of legislation by examining every change in the laws during

twenty years in connection with the divorce statistics. Often a

sudden increase, and occasionally a slight decrease, in the rate

is observed without any alteration in the statutes. In fourteen

instances, however, he believes it "quite apparent that the lines of

statistics are curved in accordance with laws enacted just previous

to the curves."[773] The changes effected by these laws are of many

kinds, including the addition and repeal of causes and various

alterations in the procedure, some of them complex. But under

careful scrutiny in some instances the statistics reveal no certain

causal relation between the change in the divorce rate and the

antecedent change in the statute. Indeed, in the light of Professor

Willcox's detailed criticism of the figures, four of Mr. Wright's

test cases must be rejected, so far as evidence afforded by the

statistics is concerned;[774] four or five others show considerable

influence of legislation; while in the rest that influence is

slight, temporary, or questionable.[775] Contrary to the popular

opinion, restrictions upon the remarriage of divorced persons would

not affect in a large degree the divorce rate, although only foreign

statistics are available to test the point. These show that within

the first two or three years after dissolution of marriage divorced

men are not much more inclined to remarry than are widowers, while

during the same period a considerably greater number of divorced

women than widows renew the nuptial ties.[776] With an increasing

rate, which does not advance uniformly, it is perhaps impossible

to measure exactly the effects of lax or restrictive legislation.

The divorce movement is dependent upon social forces which lie far

beyond the reach of the statute-maker. Yet it seems almost certain

that there is a margin, very important though narrow, within which

he may wisely exert a restraining influence. Good laws may, at any

rate, check hasty impulse and force individuals to take proper time

for reflection. They may also by securing publicity prevent manifold

injustice in the granting of decrees.

[773] WRIGHT, _Report_, 150 ff.

[774] Including the repeal in 1878 of the celebrated Connecticut

"omnibus clause" introduced in 1849. On the alleged influence

of this clause see DIKE, "Facts as to Divorce in New England,"

in _Christ and Modern Thought_, 197-202; _idem_, "Some Aspects

of the Divorce Problem," _Princeton Review_, March, 1884, 170,

171; and especially LOOMIS, "Divorce Legislation in Conn.," _New

Englander_, XXV, 436 ff., 441, 442, giving a table of Connecticut

divorces by counties, 1849-65; and ALLEN, "Divorce in New

England," _North Am. Rev._, CXXX, 547 ff., giving statistics for

the period 1860-78.

[775] For example, Massachusetts created four new causes of

divorce in 1870; and in 1873 reduced the time of desertion

necessary to constitute a ground of divorce from five to three

years. Divorces increased from 337 in 1872 to 611 in 1874. A part

of this gain was probably due to the change in law, although

in all the entire group of north Atlantic states there was at

the same time a large increase which cannot be thus accounted

for. The lax law of residence in Utah previous to 1878, and the

reduction of the term of desertion from two years to one by the

Dakota legislature in 1881, were each responsible for an increase

in the divorce rate: compare WRIGHT, _Report_, 152 ff., 156, 203

ff.; WILLCOX, _A Study in Vital Statistics_, 85-90; _idem_, _The

Divorce Problem_, 41-61; with the criticism of DIKE, "Legislation

and Divorce," _New York Eve. Post_, July 2, 1891.

[776] See BERTILLON, _Note pour l'étude statistique du divorce_,

464 ff., 471-73, giving Berlin statistics for 1878 which show

that divorced men remarry within the first three years at about

the same rate as widowers, while divorced women remarry more

rapidly than widows. The results obtained from Swiss statistics

are nearly the same: see the table in BERTILLON, "Du sort des

divorcés," _Jour. de la société de statistique de Paris_, June,

1884; reproduced by WILLCOX, _The Divorce Problem_, 27. On the

other hand, OETTINGEN, _Die Moralstatistik_, 153-62, on the

basis of statistics for Saxony (1834-49) and the Netherlands

(1850-54), shows a strong tendency to remarry on the part of

divorced persons of either sex, as compared with widows and

widowers, the divorced women remarrying much more frequently than

the men. DIKE, _Rep. of the Nat. Div. Ref. League_ (1891), 18,

gives some facts for Connecticut. In 1889, 286 divorced persons

were married, "135 men and 151 women, which is a little above

one-third of the number divorced in the year. In 1890 there were

477 divorces granted, or 954 individuals divorced: and there

were 350 divorced persons"--143 men and 207 women--"who married

again." To be of much value these figures should be compared

with the number of marriages of widowers and widows for the same

period.

After all, in this fact do we not catch a glimpse of the proper

sphere of divorce legislation? Divorce is a remedy and not the

disease. It is not a virtue in a divorce law, as appears to be often

assumed, to restrict the application of the remedy at all hazards,

regardless of the sufferings of the social body. If it were always

the essential purpose of a good law to diminish directly the number

of _bona fide_ divorces, the more rational course would be to

imitate South Carolina and prohibit divorce entirely. Divorce is not

immoral. It is quite probable, on the contrary, that drastic, like

negligent, legislation is sometimes immoral. It is not necessarily

a merit, and it may be a grave social wrong, to reduce the legal

causes for a decree to the one "scriptural" ground. The most

enlightened judgment of the age heartily approves of the policy of

some states in extending the causes so as to include intoxication

from the habitual use of strong drinks or narcotics as being equally

destructive of connubial happiness and family well-being. Indeed,

considering the needs of each particular society, the promotion

of happiness is the only safe criterion to guide the lawmaker in

either widening or narrowing the door of escape from the marriage

bond. The divorce movement is a portentous and almost universal

incident of modern civilization. Doubtless it signifies underlying

social evils vast and perilous. Yet to the student of history it is

perfectly clear that this is but a part of the mighty movement for

social liberation which has been gaining in volume and strength ever

since the Reformation. According to the sixteenth-century reformer,

divorce is the "medicine" for the disease of marriage. It is so

today in a sense more real than Smith or Bullinger ever dreamed

of; for the principal fountain of divorce is bad matrimonial laws

and bad marriages. Certain it is that one rises from a detailed

study of American legislation with the conviction that, faulty

as are our divorce laws, our marriage laws are far worse; while

our apathy, our carelessness and levity, regarding the safeguards

of the matrimonial institution are well-nigh incredible. Indeed,

there has been a great deal of misdirected and hasty criticism of

American divorce legislation. Even thoughtful scholars sometimes

indulge in the traditional arraignment. The laws of the American

states produced since 1789, declares Bryce, present "the largest

and the strangest, and perhaps the saddest, body of legislative

experiments in the sphere of family law which free self-governing

communities have ever tried."[777] Such sweeping assertions are

in many ways misleading and fail to advance the solution of the

divorce problem. There is, of course, in the aggregate a "large"

body of statutes; for each of the fifty-three commonwealths, on

this subject as on all others, has a separate code; but the harm

resulting either from the bulk or the perplexity of the laws, while

needing a remedy, is not so serious as is commonly assumed. More

and more in their essential features the divorce laws of the states

are duplicating each other; and there is already ground for hope

that in reasonable time they may attain to practical uniformity.

Furthermore, it may well be questioned whether the complexity or the

conflict in the American codes is so pronounced as in the numerous

systems of divorce law maintained in the states of the German Empire

until the enactment of the imperial code of 1900. In some cases in

German lands the law was obscure and well-nigh past finding out.

Prussia alone had three different systems; and Bavaria was in the

same plight.[778] If American legislation is on the average more

liberal in extending the enumerated grounds of divorce, it would

surely be rash to assume that it is the "sadder" on that account.

The question is: Has American social liberalism, in this regard as

in so many other respects, increased the sum of human happiness?

Besides, "laxity" in this connection is not exclusively a feature

of American legislation. It may be reasonably doubted whether any

"omnibus clause" in the country gives wider discretion to the court

than the fourth of the five causes sanctioned by the new uniform law

of Germany, allowing divorce when "either spouse has been guilty

of grave violation of the obligations based on the marriage or of

so deeply disturbing the marital relation through dishonorable or

immoral behavior that the continuance of the marriage cannot be

expected from the other."[779] Even broader provisions formerly

existed in the codes of some of the separate German states, and may

still be found elsewhere in Europe.

[777] BRYCE, _Studies in Hist. and Jur._, 830.

[778] See WRIGHT, _Report_, 1030, 1033 ff.

[779] "Wenn der andere Ehegatte durch schwere Verletzung der

durch die Ehe begründeten Pflichten oder durch ehrloses oder

unsittliches Verhalten eine so tiefe Zerrüttung des ehelichen

Verhältnisses verschuldet hat, dass dem Ehegatten die Fortsetzung

der Ehe nicht zugemuthet werden kann."--_Reichsgesetzbuch_, Tit.

7, § 1568. For discussion see KOHLER, _Das Eherecht des bürg,

Gesetzbuchs_, 42-46.

But the statistics seem to show that the law is conservatively

administered. The number of divorces is decreasing. "For the

years 1891-95, inclusive, the annual average was 7,258. In

1896 there were 8,601; in 1897 there were 9,005; in 1898 there

were 9,143; and in 1899 they had become 9,563. But under the

new law in 1900 they dropped to 8,934, and in 1901 they were

8,037."--DIKE, _Report_ (1903), 8, 9, on the authority of the

Chief of the Statistical Bureau of Berlin.

The other grounds of divorce allowed by the imperial statute are

adultery, attempt on the life of either spouse by the other,

malicious desertion, and insanity (Geisteskrankheit) of three

years' standing. Divorce for malicious desertion is decreed only

after a preliminary suit for the re-establishment of marital

relations and a year's delay to allow the deserter to return to

conjugal duty: _Reichsgesetzbuch_, Tit. 7, § 1567.

The achievement of a wisely conceived and carefully drafted uniform

law for the entire country, would be of great advantage, although

it might not directly cause a very great decrease in the average

divorce rate, and certainly would not produce the same rate for

the individual states.[780] How may such a uniform law be secured?

The method of procuring the enactment of a federal law under a

constitutional amendment--once much in favor[781]--has for the

present been almost abandoned by active workers. Instead, it is

preferred, through the state commissions on uniform legislation, to

urge the adoption of a model statute by the separate commonwealths.

These commissions, now thirty-five in number, have prepared a

bill for a law governing divorce procedure; and its temperate and

practical provisions ought to gain its general adoption.[782]

All this is well; but it is still more needful to strive for a

common marriage law. In the end it may be found necessary, under

a constitutional amendment, to appeal to the federal power. What

service could a national legislature render more beneficent than the

creation of a code embracing every division of the intricate law of

marriage and divorce? Aside from its educational value as a moral

force, such a code in material ways would prove a powerful guaranty

of social order and stability.

[780] The uniform divorce law for the Swiss cantons, which went

into effect in 1876, has not tended to produce a uniform rate.

In 1885, for instance, Appenzell, Outer Rhodes, "has forty-nine

times as much divorce as Unterwalden o. d. W., while with all

the divergences of law in this country the differences of rate

are much less."--WILLCOX, _The Divorce Problem_, 59, giving a

table of the decrees granted in the twenty-six cantons, 1876-85;

compiled from _Die Bewegung der Bevölkerung in der Schweiz im

Jahre 1885_ (Beilage I).

[781] DIKE, "Uniform Marriage and Divorce Laws," _Arena_, II,

399-408, gives a valuable discussion of the two methods of

procedure. See also BENNETT, "National Divorce Legislation,"

_Forum_, II, 429-38; STEWART, "Our Mar. and Div. Laws," _Pop.

Sci. Monthly_, XXIII, 232, 233; and JAMESON, "Divorce," _North

Am. Rev._, CXXXVI, 325, all favoring a constitutional amendment;

also NORTH, "Uniform Mar. and Div. Laws," _ibid._, CXLIV,

429-31; LLOYD, _Law of Divorce_, 269 ff.; JOHNSON, _Remarks upon

Uniformity of State Legislation_; SNYDER, _Problem of Uniform

Legislation_, 3 ff., favoring state action. In his _Geography

of Marriage_, 182 ff., SNYDER favors concert of action among

the states and a prohibitory amendment restricting or defining

the maximum number of causes for divorce which a state might

sanction. See also the articles by STANWOOD AND STANTON mentioned

in the Bibliographical Index, IV; and consult the _Reports of the

Conferences of the State Boards of Commissioners for Promoting

Uniformity of Legislation in the U. S._

[782] See _Reports of the Nat. League for the Protection of the

Family_ (1900), 7; (1901), 8.

In the meantime it is essential to fix the attention upon causes

rather than effects. For the wise reformer, who would elevate and

protect the family, the center of the problem is marriage and not

divorce.

II. THE FUNCTION OF EDUCATION

It is needful in the outset, as already suggested, frankly to accept

marriage and the family as social institutions whose problems must

be studied in connection with the actual conditions of modern social

life. It is vain to appeal to ideals born of old and very different

conditions. The guiding light will come, not from authority,

but from a rational understanding of the existing facts. Small

progress can be expected while leaning upon tradition. The appeal

to theological criteria is, no doubt, matter of conscience on the

part of many earnest men. Nevertheless the vast literature which

seeks to solve social questions through the juggling with ancient

texts seems in reality to be largely a monument of wasted energy.

Much of it is sterile, or but serves to retard progress or to befog

the issue. Witness the perennial discussion of the "scriptural"

grounds of divorce, or of the Levitical sanction or condemnation of

marriage with a deceased wife's sister! Witness the vapid homilies

and treatises on the wedded life! There is, in truth, urgent need

that the moral leaders of men should preach actual instead of

conventional social righteousness. It is high time that the family

and its related institutions should be as freely and openly and

unsparingly subjected to scientific examination as are the facts of

modern political or industrial life.

From the infancy of the human race, we have already seen, the

monogamic family has been the _prevailing_ type. There have been,

it is true, many variations, many aberrations, from this type

under diverse conditions, religious, economic, or social. Under

changing influences the interrelations of the members of the

group--of husband and wife, of parent and child--and their relations

individually and collectively to the state, have varied from age

to age or from people to people. There have been wife-capture,

wife-purchase and the _patria potestas_. But in essential

character--at first for biological, later for ethical or spiritual

reasons--the general tendency has always been toward a higher,

more clearly differentiated type of the single pairing family.

Moreover, setting aside all question of special priestly sanctions,

the healthiest social sentiment has more and more demanded that the

"pairing" should be lasting. Whether of Jew or gentile, the highest

ideal of marriage has become that of a lifelong partnership. Are

these tendencies to remain unbroken? Is the stream of evolution

to proceed, gaining in purity and strength? Are marriage and the

family doomed; or are they capable of adaptation, of reform and

development, so as to satisfy the higher material and ethical

requirements of the advancing generations? Seemingly they are

now menaced by serious dangers. Some of them have their origin

in the new conditions of a society which is undergoing a swift

transition, a mighty transformation, industrially, intellectually,

and spiritually; while others, perhaps the more imminent, are

incident to the institutions themselves as they have been shaped or

warped by bad laws and false sentiments. Apparently, if there is

to be salvation, it must come through the vitalizing, regenerative

power of a more efficient moral, physical, and social training of

the young. The home and the family must enter into the educational

curriculum. Before an adequate sociological program can be devised

the facts must be squarely faced and honestly studied. In the sphere

of domestic institutions, even more imperatively than in that of

politics or economics, there is need of light and publicity.

The family, it is alleged, is in danger of disintegration through

the tendency to individualism which in many ways is so striking a

characteristic of the age.[783] Within the family itself there are,

indeed, signs that a rapid transition from status to contract is

taking place in a way which Maine scarcely contemplated; for he

appears to have imagined that precisely in this sphere the process

was already virtually complete. The bonds of paternal authority

are becoming looser and looser. In America in particular young

men and even young women earlier than elsewhere tend to cut their

parental moorings and to embark in independent business careers. So

also more and more clearly the wife is showing a determination to

escape entirely from _manu viri_--still sustained by the relics of

mediæval law and sentiment--and to become in reality as well as in

name an equal partner under the nuptial contract. The state also has

intervened to abridge the parental authority. Minor children are

no longer looked upon as the absolute property of the father. For

the purpose of education, society removes them for a considerable

part of the period of nonage from home and immediate parental

control; and, on the other hand, it forbids their employment in

mines, factories, or other injurious vocations during their tender

years. Under child-saving laws they may even be removed from home,

when they are cruelly treated or exposed to vicious influences,

and placed under the protection of the state. Thus, little by

little, to use the phrase of a thoughtful writer, the original

"coercive" powers of the family under the patriarchal _régime_ have

been "extracted" and appropriated by society. In the education of

the young the family retains the lesser part. "The state has here

interfered in the private ordering of the household by taking the

child from its parents for one-third of its waking hours, and has

introduced order and system into the training of children, together

with the assertion of rights on their part. The family becomes

therefore less a coercive institution, where the children serve

their parents, and more a spiritual and psychic association of

parent and child based on persuasion. A more searching interference

on the part of the state, together with a new set of governmental

organizations for its enforcement, is found in the boards of

children's guardians, the societies for the prevention of cruelty

to children, orphans' asylums, state public schools, with their

investigating and placing-out agents, empowered under supervision

of the courts to take children away from parents and to place

them in new homes. A large part of the unlimited coercion of the

_patria potestas_ is here extracted from the family and annexed to

the peculiar coercive institution where it is guided by notions

of children's rights, and all families are thereby toned up to

a stronger emphasis on persuasion as the justification of their

continuance."[784] Here we catch a glimpse of the direction of

future evolution in the family. At the same time it appears that

the disintegration of paternal and marital coercive power is not a

serious menace to the family. It has cleared the way for a higher

and nobler spiritual domestic life. The real danger is that the

family and the home will surrender an undue share of their duty and

privilege to participate in the culture and training of the young.

This function for the good of society may be vastly developed,

though mainly on new lines bearing directly on the nature of

marriage and the family. Of this function some further mention will

presently be made.

[783] PEABODY, "The Teaching of Jesus Concerning the Family,"

in his _Jesus Christ and the Social Question_, 129 ff.; DIKE,

"Problems of the Family," _Century_, XXXIX, 392, 393; _idem_,

_Some Aspects of the Divorce Question_, 177 ff.; _idem_, _Perils

of the Family_; MULFORD, _The Nation_, 276-83; BUSHNELL, "The

Organic Unity of the Family," in his _Christian Nurture_, 90-122;

HENDERSON, _Social Elements_, 71 ff.; ALLEN, "Divorces in New

England," _North Am. Rev._, CXXX, 559 ff.; POTTER, "The Message

of Christ to the Family," in his _Message of Christ to Manhood_;

SALTER, _The Future of the Family_; MATHEWS, "The Family," _Am.

Journal of Sociology_, I, 457-72; PEARSON, "The Decline of the

Family," in his _National Life and Character_, 227 ff.; and the

reply of MUIRHEAD, "Is the Family Declining?" _Int. Jour, of

Ethics_, Oct., 1896, 33 ff.; ROSS, _Social Control_, 405, 433.

The ablest appreciation of the value of individualism is that of

MILL, _On Liberty_ (2d ed.), 100 ff.

[784] COMMONS, "The Family," in his "Sociological View of

Sovereignty," in _Am. Jour. of Sociology_, V, 683 ff., 688,

689. On the future of the family compare SPENCER, _Principles

of Sociology_, I, 737 ff., 788; LETOURNEAU, _L'évolution du

mariage_, 444 ff.; PEARSON, "The Decline of the Family," in his

_National Life and Character_, 255, 256; MUIRHEAD, "Is the Family

Declining?" _Int. Jour. of Ethics_, Oct., 1896, 53-55; TILLIER,

_Le mariage_, 283 ff., 316.

More threatening to the solidarity of the family is believed to

be the individualistic tendencies arising in existing urban and

economic life.[785] With the rise of corporate and associated

industry comes a weakening of the intimacy of home ties. Through the

division of labor the "family hearth-stone" is fast becoming a mere

temporary meeting-place of individual wage-earners. The congestion

of population in cities is forcing into being new and lower modes

of life. The tenement and the "sweating system" are destructive of

the home. Neither the lodging-house, the "flat," nor the "apartment"

affords an ideal environment for domestic joys. In the vast hives

of Paris, London, or New York even families of the relatively

well-to-do have small opportunity to flourish--for self-culture and

self-enjoyment. To the children of the slum the street is a perilous

nursery. For them squalor, disease, and sordid vice have supplanted

the traditional blessings of the family sanctuary. The cramped,

artificial, and transient associations of the boarding-house are a

wretched substitute for the privacy of the separate household.[786]

For very many men club life has stronger allurements than the

connubial partnership. Prostitution advances with alarming speed.

For the poor, sometimes for the rich, the great city has many

interests and many places more attractive than the home circle. The

love of selfish indulgence and the spirit of commercial greed, not

less than grinding penury, restrain men and women from wedlock.

Yet the urban environment has also the opposite effect. In the

crowded, heterogeneous, and shifting population of the great

towns marriages are often lightly made and as lightly dissolved.

Indeed, the remarkable mobility of the American people, the habit

of frequent migration, under the powerful incentives of industrial

enterprise, gold-hunting, or other adventure, and under favor of the

marvelously developed means of swift transportation, will account

in no small degree for the laxity of matrimonial and family ties

in the United States. May not one gather courage even from this

untoward circumstance? Assuredly the present thus clearly appears to

be an age of transition to a more stable condition of social life.

Furthermore, the perils to the family of the kind under review need

not be fatal. They are inherent mainly in economic institutions

which may be scientifically studied and intelligently brought into

harmony with the requirements of the social order. Already in great

municipal centers, through improved facilities for rapid transit,

the evils resulting from dense population are being somewhat

ameliorated. Of a truth, every penny's reduction in street-railway

fares means for the family of small means a better chance for

pure air, sound health, and a separate home in the suburbs. The

dispersion of the city over a broader area at once cheapens and

raises the standard of living. Every hour's reduction in the period

of daily toil potentially gives more leisure for building, adorning,

and enjoying the home.

[785] _Cf._ PEABODY, _Jesus Christ and the Social Question_,

162-79; MUIRHEAD, _Is the Family Declining?_ 35.

[786] In the great centers of Germany, we are assured, the

family of the blood-kindred has yielded to the family composed

of kindred and strangers. For lack of space in the closely

packed districts people are forced to live almost in common:

GÖHRE, _Drei Monate Fabrikarbeiter_, 12 ff., 37 ff. _Cf._

BEBEL, _Die Frau und der Sozialismus_, 123, 124; and RADE, _Die

sittlich-religiöse Gedankenwelt unserer Industriearbeiter_, 117

ff.; STEWART, _Disintegration of the Families of the Workingmen_;

HENDERSON, _Social Elements_, 73.

To the socialist the monogamic family in its present form is

decidedly a failure. "To those who would substitute common ownership

for industrial liberty, the institution of the family presents one

of the most persistent obstacles. Domestic unity is inconsistent

with the absolute social unity vested in the state."[787] The larger

social body must be composed of individual members, free and equal;

and it will not tolerate within itself a smaller body with special

group-interests of its own, much less with any vestige of coercive

authority over its constituent parts. There must be no _imperium

in imperio_. Writers like Engels[788] seek consolation and support

in Bachofen's theory of a universal stage of mother-right before

the monogamic family with the institution of private property had

brought domestic slavery into the world. They "hold that the

monogamic family is a relic of decaying civilization. All ideas

on which it rests, the subordination and dependence of women, the

ownership of children, the belief in the sacredness of marriage as a

divine institution, above all respect for the individual ownership

of property and the rights of inheritance as permanent elements in

our social organization--have been undermined. The foundations are

sapped and the superstructure is ready to topple in."[789]

[787] PEABODY, _op. cit._, 140.

[788] See ENGELS, _Der Ursprung der Familie_, 4 ff.; and his

follower, BEBEL, _Die Frau und der Sozialismus_, 1 ff., 93 ff.

[789] MUIRHEAD, _Is the Family Declining?_ 37.

Woman in particular has been the devoted victim of the greed of

individual possession upon which the monogamic family rests. "Far

back in history," according to Edward Carpenter, "at a time when in

the early societies the thought of inequality had hardly arisen, it

would appear that the female, in her own way--as sole authenticator

of birth and parentage, as guardian of the household, as inventress

of agriculture and the peaceful arts, as priestess and prophetess

or sharer in the councils of the tribe--was as powerful as man in

his, and sometimes even more so. But from thence down to today what

centuries of repression, of slavehood, of dumbness, of obscurity

have been her lot!"[790]

[790] CARPENTER, _Love's Coming of Age_; quoted from MUIRHEAD,

_op. cit._, 37. The views of various socialists regarding woman

and marriage are criticised by HERTZBERG, _Der Beruf der Frau_,

43-57.

Under socialism, declare Morris and Bax, marriage and the family

will be affected "firstly in economics and secondly in ethics. The

present marriage system is based on the general supposition of

economic dependence of the woman on the man, and the consequent

necessity of his making provision for her." In the new social order

this degrading condition must disappear. "Property in children

would cease to exist, and every infant that came into the world

would be born into full citizenship, and would enjoy all its

advantages, whatever the conduct of its parents might be. Thus a

new development of the family would take place, on the basis, not

of a predominant life-long business arrangement, to be formally and

nominally held to, irrespective of circumstances, but on mutual

inclination and affection, an association terminable at the will of

either party." Thus a higher morality would be sanctioned. There

would be no "vestige of reprobation for dissolving one tie and

forming another."[791]

[791] MORRIS AND BAX, _Socialism: Its Growth and Outcome_, 299,

300.

A similar demand for liberty is made by Laurence Gronlund.

Economically "the coming commonwealth" will place woman "on an equal

footing with man." But she will be "equal," not "alike;" for in the

new society the sexes will no longer be free industrial competitors,

but each will have its special vocation. Physiological differences

will not be ignored. "Woman will become a functionary, she will

have suitable employment given her, and be rewarded according to

results, just the same as men." Like men she will have suffrage,

not as a right or a privilege, but as a trust. "The new order

will necessarily, by the mere working of its economic principles,

considerably modify" the marriage relation; and "is that relation

such an ideal one now, that it would be a sacrilege to touch it?

Is marriage not now, at bottom, an establishment for the support

of woman? Is not maintenance the price which the husband pays for

the appendage to himself? And because the supply generally exceeds

the demand--that is, the effective demand--has woman not often

to accept the offer of the first man who seems able to perform

this pecuniary obligation?" If it be objected that this is taking

"rather a commercial view" of the "holy" relation, is not, "as

a matter of fact, marriage regarded by altogether too many as a

commercial institution? Do not, in fact, the total of young women

form a matrimonial market, regulated by demand and supply?" "Now the

Co-operative Commonwealth will dissipate this horror," enabling

every healthy adult man and woman to find a mate. Thus, contrary

to false charges, socialists are not trying to destroy the family:

"they want to enable every man and woman to form a happy family!"

Modern democracy revolts against the patriarchal constitution of

the family, upon whose model all feudal and ancient societies were

organized. In the "very nature of things family-supremacy will

be absolutely incompatible with an interdependent, a solidaric,

commonwealth; for in such a state the first object of education

must be to establish in the minds of the children an indissoluble

association between their individual happiness and the good of

all."[792]

[792] GRONLUND, _The Co-operative Commonwealth_, 193-206.

The manifold social evils which take their rise directly or

indirectly in marriage as it is--be the actual causes what they

may--have always justly aroused the unsparing criticism of

socialistic writers. Thus to Robert Owen--whose pure life was

unreservedly and courageously devoted to the social good, as he

understood it--marriage was a member of his "trinity of causes of

crime and immorality among mankind."[793] With almost the fanatical

zeal of an apostle of a new religion, he railed at the "single"

family.[794] He proclaimed the glad tidings of the swift approach of

the new moral order. Then "the imaginative laws of the marriages of

the priesthood must be among the first to be abolished, by reason of

their extended injurious influence upon human nature, poisoning all

the sources of the most valuable qualities which Nature has given to

infant man. These marriages have dried up the fountain of truth in

human nature; they perpetually insinuate that man can love and hate

at his pleasure, and that to be virtuous he must live according to

the dictates of the laws and ceremonies devised by the priesthood,

that he must hate according to the same dictation, and that if

he does not thus love and hate, he is vicious, and he will be

eternally punished in another world," while on earth he will suffer

from the human laws and by the public opinion which priests have

inspired.[795] Under the new moral order all this will be changed.

Marriages will be more lasting than now. "Every individual will be

trained and educated, to have all his powers cultivated in the most

superior manner known; cultivated too under a new combination of

external objects, purposely formed, to bring into constant exercise

the best and most lovely qualities only of human nature." Wealth for

all will be "produced in superfluity." Therefore all will be "equal

in their education and condition," and without any distinction

except as to age. "There will be then no motive or inducement for

any parties to unite, except from pure affection arising from the

most unreserved knowledge of each other's character.... There will

be no artificial obstacles in the way of permanent happy unions of

the sexes; for ... the affections will receive every aid which can

be devised to induce them to be permanent;" and the wedded pair

"will be placed as far as possible in the condition of lovers during

their lives." In "some partial instances," however, happiness might

not even thus be secured. In such event, "without any severance

of friendship between the parties, a separation may be made, the

least injurious to them and the most beneficial to the interests of

society."[796] In fine, Robert Owen's book, although often vague

in expression and violent in tone, contains in its statements,

and still more in its suggestions, practically the whole program

of later socialistic writings on the subject of marriage and the

family, except the argument based on historical evolution.[797]

[793] OWEN, _Marriages of the Priesthood of the Old Immoral

World_, 54: "I resume the subject of marriage because it is

the source of more demoralization, crime, and misery, than any

other single cause, with the exception of religion and private

property; and these three together form the great trinity of

causes of crime and immorality among mankind." For examples

of the bitter denunciations which Owen's doctrines naturally

provoked see the tract of BRINDLEY, _The Marriage System of

Socialism_ (Chester, 1840); and that of BOWES, _The 'Social

Beasts'_ (Liverpool, 1840).

[794] For examples see _Marriages of the Priesthood_, 41, 43, 44,

81.

[795] OWEN, _op. cit._, 81.

[796] _Ibid._, 86, 87, giving an extract from his six lectures

delivered at Manchester in 1837.

[797] Owen's book was written in 1835, just before the passage

of the new civil-marriage law; and the violence of its tone may

in part have been provoked by the injustice and intolerance

sanctioned by the Hardwicke act of 1753, at that time in force.

In 1840 he declared, as regards the _form_ of marriage, that the

law of 1836 had "exactly" met his "ideas and wishes;" and that

all which he then desired was "to see another law enacted, by

which _Divorces_, under wise arrangements, and on principles of

common sense, may be obtained equally for rich and poor."--_Op.

cit._, 90. He himself outlines marriage and divorce laws which

possess some excellent features: _ibid._, 88-90.

Robert Dale Owen followed in his father's footsteps. He finds even

the Haytian institution of "placement"--an informal union made and

dissolved at the pleasure of the contracting persons--far superior

in its morality and its stability to the sacramental marriage which

exists by its side.[798]

[798] ROBERT DALE OWEN, "Marriage and Placement," _Free

Inquirer_, May 28, 1831; and his letter to Thomas Whittemore,

editor of the Boston _Trumpet_, May, 1831; both quoted by BESANT,

_Marriage_, 23, 24, 26, 27. The _Free Inquirer_ was founded in

New York city by Robert Dale Owen and Frances Wright in 1829:

JOHNSON, _Woman and the Republic_, 121.

August Bebel, in his able book on _Woman and Socialism_, draws a

powerful indictment of matrimonial relations under the existing

order. To this source, in his view, may be traced the prevalence

of sexual crimes and the most dangerous tendencies now threatening

the integrity of society. Infanticide, abortion, and prostitution;

the decline in the birth and marriage rates; the increase in the

number of divorces; the subjection of woman--all these, he says,

are due mainly to the influence of the present "coercive marriage."

This is so because that "marriage is an institution bound up in the

closest way with the existing social order and with it must stand

or fall." Coercive marriage is the creature of economic conditions,

the "normal marriage" of the present bourgeois society; and with

that society it is already in process of disruption. "Since all

these unnatural conditions, being especially harmful to woman, are

grounded in the nature of the bourgeois society and are growing

with its duration, that society is proving itself incapable of

remedying the evil and of emancipating woman. Another social

order is therefore needful for this purpose." In the new state,

economically and socially, woman will be entirely independent. She

will no longer be the subject of authority and of exploitation; but,

free and equal by man's side she will become "mistress of her own

destiny."[799]

[799] BEBEL, _Die Frau und der Sozialismus_, 93 ff., 175, 176,

427 ff., 431; or the same in WALTHER'S translation, 43 ff., 229

ff. Compare KARL PEARSON'S discussion of "Socialism and Sex" in

his _Ethic of Free Thought_, 427-46; and CAIRD, _Morality of

Marriage_, 123-27.

Whatever may be thought of the remedy suggested by socialistic

writers, whether or not our only hope lies in the co-operative

commonwealth, it is certain that they have rendered an important

public service. They have earnestly studied and set forth the

actual facts. With unsparing hand they have laid bare the flaws in

our domestic institutions as they really exist. They have clearly

proved that the problems of marriage and the family can be solved

only by grasping their relations to the economic system. They have

shown that progress lies along the line of the complete emancipation

of woman and the absolute equality of the sexes in marriage. In

accomplishing all this they have in effect done much to arouse in

the popular mind a loftier ideal of wedded life.

The liberation of woman in every one of its aspects profoundly

involves the destiny of the family. It signifies in all the larger

activities of life the relative individualization of one-half of

human kind. This means, of course, a weakening of the solidarity

of the family group, so far as its cohesion is dependent on

the remnants of mediæval marital authority. Will the ultimate

dissolution of the family thus become the price of equality and

freedom? Or rather, is it not almost certain that in the more

salubrious air of freedom and equality there is being evolved a

higher type of the family, knit together by ties--sexual, moral,

and spiritual--far more tenacious than those fostered by the régime

of subjection? How remarkable, in England as well as in America, is

the revolution already accomplished! Few facts in social history

are more instructive than the change which has taken place in the

tone of the literature dealing with woman and her relations to

marriage and the family. In the eighteenth century and until far

down into the nineteenth it is for the most part utterly frivolous

or sentimental. Vapid satire abounds. Erotic or facetious verse at

the expense of the "fair sex" or "wedded love" finds ready popular

response. Even in what is meant for earnest discussion woman is

treated as a helpless being, to be petted, cajoled, or corrected,

not too harshly, by her superior lord; or else she is edified with

endless lectures on the sacred duty of guarding her virtue--a fact

which throws a lurid and unintentional light on the moral standards

of the age. Imagine an _Essay on Old Maids_,[800] tediously spun

out in three volumes; or a book like Eliza Haywood's _Female

Spectator_,[801] which, although in four volumes, had already

reached its seventh edition in 1771.

[800] _A Philosophical, Historical, and Moral Essay on Old Maids,

by a Friend of the Sisterhood_ (London, 1785). Some of the

gleanings from history in the second and third volumes are not

entirely devoid of permanent interest.

[801] HAYWOOD, _The Female Spectator_ (7th ed., London, 1771).

This is a fairly representative compilation of gossip and

literary anecdote regarding woman, but without a trace of

sociological perception.

For examples of the lighter productions referred to see _An

Essay on Marriage, in a cautionary Epistle to a Young Gentleman,

wherein the Artifices and Foibles of the Fair_, etc. (London,

1750); _The Deportment of a Married Life: Laid down in a

Series of Letters ... to a Young Lady ... lately Married_

(2d ed., London, 1798; 3d ed., 1821); _Boone_, _The Marriage

Looking-Glass: written as a Manual for the Married and a Beacon

to the Single_ (London, 1848); GUTHRIE, _Wedded Love_ (London,

1859), a volume of sentimental verse. Some of them have a pious

or theological tone: _The Advantages and Disadvantages of the

Married State ... under the Similitude of a Dream_ (5th ed.,

London, 1760); _Conjugal Love and Duty_ (4th ed., Dublin and

London, 1758); _Reflections on Celibacy and Marriage, in Four

Letters to a Friend_ (London, 1771); SANDEMAN, _The Honour of

Marriage opposed to all Impurities_ (London, 1777); BEAN, _The

Christian Minister's Affectionate Advice to a New Married Couple_

(4th ed., London, 1809). Others contain valuable passages, while

vividly reflecting the contemporary view regarding woman's

inferior position: "Philogamus," _The Present State of Matrimony_

(London, 1739); _The Art of Governing a Wife; with Rules for

Batchelors_ (London, 1747).

Nevertheless, the beginning of an efficient agitation for woman's

rights was then made. As early as 1696 appeared Mary Astell's

vigorous _Defense of the Female Sex_, further developing views

which she had expressed two years earlier.[802] The next year

Defoe, advocating an "academy for women," made a strong plea for

the equal education of the sexes.[803] A singularly clear and

incisive exposure of the _Hardships of the English Laws in relation

to Wives_ was published in 1735. The writer, apparently a woman,

while protesting that her adversaries for want of arguments resort

to "points of wit, smart jests, and all-confounding laughter,"

presents many striking proofs from judicial annals and elsewhere to

show that in England the "estate of wives is more disadvantageous

than slavery itself;" that they "may be made prisoners for life at

the discretion of their domestick governors;" and that they "have no

property, neither in their own persons, children, or fortunes."[804]

In 1739 an anonymous writer, signing herself "Sophia," produced a

forceful _Vindication of the natural Right of the Fair-Sex to a

perfect Equality of Power, Dignity, and Esteem with the Men_, in

which, appealing to "rectified reason," she urged that difference

in sex relates to the "propagation of human nature," whereas in

"soul there is no sex," and diversity must therefore come from

education and environment.[805] Mary Wollstonecraft's better known

and much more elaborate _Vindication of the Rights of Woman_,[806]

published in 1792, was therefore not without helpful predecessors.

But it is immensely superior to them in its literary power and

its intellectual grasp. The fearless, direct, and unaffected way

in which the subject is handled, especially the questions of sex

and education, discloses the dawn of a new era of discussion. More

clearly than ever before the liberation of woman appears as a

sociological problem of the greatest moment to mankind. True, much

space is devoted to combating objections which may now seem trivial;

but to the average mind of Mary Wollstonecraft's day they were by no

means trivial, and they had to be cleared away before the full light

could come in.

[802] ASTELL, _An Essay in Defense of the Female Sex_ (London,

1696; 3d ed., 1697). _Cf._ her _Serious Proposal to the Ladies_

(London, 1694; 3d ed., 1697); and her _Reflections upon Marriage_

(London, 1700; 4th ed., 1730).

[803] DEFOE, _An Essay upon Projects_ (London, 1697).

[804] _The Hardships of the English Laws in relation to Wives_

(London, 1735), 4 ff.

[805] "SOPHIA," _Woman not Inferior to Man; or, A short and

modest Vindication of the natural Right of the Fair-Sex to a

perfect Equality of Power, Dignity, and Esteem with the Men_

(London, 1739; 2d ed., 1740). This tract was answered by a

"GENTLEMAN," _Man Superior to Woman; or, a Vindication of Man's

Natural Right of Sovereign Authority over the Woman_ (London,

1739), insisting that woman was not created at all, but is "a

sort of after-produced being" who must not "presume to call in

question the great duty of vassalage" to man, under penalty of

the withdrawal of his heart from her power. To this "SOPHIA"

rejoined in _Woman's Superior Excellence over Man_ (London, 1740).

[806] A new edition of this book, with an introduction by

MRS. FAWCETT, appeared in London in 1890. _Cf._ PENNELL, "A

Century of Women's Rights," _Fort. Rev._, XLVIII, 408 ff.;

RAUSCHENBUSCH-CLOUGH, _A Study of Mary Wollstonecraft and the

Rights of Woman_; OSTROGORSKI, _The Rights of Women_, 40;

RICHTER, _Mary Wollstonecraft die Verfechterin der "Rechte der

Frau."_

The foundations were thus laid upon which, chiefly during the last

half-century,[807] a vast literary superstructure--controversial,

historical, and scientific--has been erected; a many-sided

literature worthily embodying the thought of a great transitional

stage in social progress. The opponents of woman's liberation have

been forced to choose new weapons. Satire and mockery are no longer

in vogue. Both sides are very much in earnest. The tone of present

discussion is nothing if not serious. Moreover, while the battle

for sexual equality in the family and in the state is very far from

being yet fought out, the ultimate victory seems already assured.

[807] In Germany DOROTHEA CHRISTINE ERXLEBEN, in her _Gründliche

Untersuchung der Ursachen, die das weibliche Geschlecht vom

Studium abhalten_ (Berlin, 1742); _Vernünftige Gedanken vom

Studiren des schönen Geschlechts_ (Frankfort and Leipzig, 1749);

and HIPPEL, _Bürgerliche Verbesserung der Weiber_ (Berlin,

1792); followed by his _Nachlass über weibliche Bildung_

(Berlin, 1801), were already beginning the agitation for woman's

liberation. A remarkably clear and incisive essay in defense

of woman, entitled _De l'égalité des deux sexes_, appeared in

Paris in 1673. CONDORCET, _Lettres d'un bourgeois de New Haven à

un citoyen de Virginie_ (1787) compressed into a few sentences

the basic arguments for the movement. In the same year appeared

MARY WOLLSTONECRAFT'S _Thoughts on the Education of Daughters_,

a forerunner of her _Vindication_ five years later. During the

next fifty years a few earnest champions of woman's freedom came

forward. First was MARY ANNE RADCLIFFE, _Female Advocate, or an

attempt to recover the Rights of Women from Male Usurpation_

(London, 1799); followed by HANNAH MATHER CROCKER, _Observations

on the Real Rights of Women_ (Boston, 1818); WILLIAM THOMPSON

AND MRS. WHEELER, _Appeal ... of Women_ (London, 1825), a book

written in reply to a statement in JAMES MILL'S article on

_Government_, and possibly influencing John Stuart Mill's later

thoughts on the subject; SARAH M. GRIMKE, _Letters on Equality

of the Sexes_ (Boston, 1838); LADY SYDNEY MORGAN, _Woman and her

Master_ (London, 1840); MRS. ELLIS, _Woman's Rights and Duties_

(London, 1840). The movement took organic form in 1848, when the

first convention was held at Seneca Falls, New York. This was

followed in 1850 by conventions in Ohio and Massachusetts. In

1851 MRS. JOHN STUART MILL'S powerful article in the July number

of the _Westminster Review_ on the "Enfranchisement of Women"

supplied the agitation with a definite program. See FAWCETT, _The

Woman Question in Europe_, 273, note; STANTON, ANTHONY, AND GAGE,

_Hist. of Woman Suffrage_, I, 70 ff.; OSTROGORSKI, _Rights of

Women_, 54 ff.; JOHNSON, _Woman and the Republic_, 39 ff.; WADE,

_Women, Past and Present_, 247.

It would, indeed, be very strange if some incidental harm should

not result from the veritable revolution in the condition of

American women which little more than a generation has produced.

This is the inevitable penalty which social progress has always to

pay. Yet in the present case the transitional loss to the family

or to the larger social body is exceedingly slight compared even

with the immediate gain. This is especially true of woman's new

intellectual life with all its manifold activities. It matters

not whether she is showing herself mentally man's equal. If any

justification of her new rôle were needed it might suffice to affirm

that she has precisely the same right as man to free and unhampered

self-development in whatever direction and in whatever manner she

herself shall find most conducive to her happiness. But it is amply

justified by its social results. It cannot be seriously doubted that

woman's admission to equal privilege of higher education is enabling

her better to share with man in doing the world's work. Besides, in

spite of the vain imaginings of misogynistic philosophers,[808]

the problem of special sexual function in its relation to mental

capacity is being settled in woman's favor. "Science," declares

Lourbet, in completing his valuable survey, "is incapable of

demonstrating the 'irremediable' mental inferiority of woman.... The

pretended antagonism between mental power and sexual power, which

does not withstand rigorous analysis, appears definitively to be

destroyed by experience, by the tangible facts which incessantly

strike the eye."[809] Herbert Spencer reaches the conclusion that

"were liberties to be adjusted to abilities, the adjustment, even

could we make it, would have to be made irrespective of sex."[810]

[808] According to HARTMANN, _The Sexes Compared_, 3, 6 ff.,

there is between man and woman a fundamental and irremovable

distinction: The woman rules sexually and therefore "we must, by

way of compensation, uphold the legal superiority of man." In

establishing sexual equality the progress of culture receives

a severe blow. More wonderful is the teaching of SCHOPENHAUER.

"Women," he says, "are directly adapted to act as the nurses

and educators of our childhood, for the simple reason that they

themselves are childish, foolish, and short-sighted--in a word

are big children all their lives, something intermediate between

the child and the man, who is a man in the strict sense of the

word."--_On Women_: in DIRCKS'S _Essays of Schopenhauer_, 65; or

his _Sämmtliche Werke_, III, 649 ff.

[809] LOURBET, _La femme devant la science contemporaine_, 157,

161. See especially BEBEL, _Die Frau und der Sozialismus_, 233 ff.

[810] SPENCER, _Justice_, 186. For an elaborate discussion of

woman's mental capacity see MILL, _Subjection of Women_, 91-146.

It is singular what acute anxiety is felt by adherents of the

old régime[811] lest woman's new intellectual life should prove

disastrous to her physical constitution, unmindful of the fact

that even now for the majority of married women the burdens of the

orthodox "natural sphere" are far more harmful. The tables are

decidedly turned by a radical writer who with truth declares that

"evidence is rapidly accumulating which makes it almost impossible

to deny that the feminine constitution has been disastrously injured

during the long ages of patriarchal rule, and that this beloved

'sphere' of woman, where she was thought so safe and happy, has,

in fact, been a very seed-bed of disease and misery and wrong;"

that "through these ages of overstrain of every kind--physical,

emotional, nervous--one set of faculties being in perpetual activity

while the others lay dormant, woman has fallen into a state that is

more or less ailing and diseased; that upon her shoulders has been

laid the penalty of the injustice and selfishness of men."[812]

Even if the participation of woman in the mental activities and

the public vocations which men have hitherto monopolized should

prove harmful to her, has she not a right to discover the fact by

experience? "I consider it presumptuous," said John Stuart Mill in

the outset of the organized emancipation movement, "in anyone to

pretend to decide what women are or are not, can or cannot be by

natural constitution. They have always hitherto been kept, as far as

regards spontaneous development, in so unnatural a state that their

nature cannot but have been greatly distorted and disguised, and no

one can safely pronounce that if woman's nature were left to choose

its direction as freely as men's, and if no artificial bent were

attempted to be given to it except that required by the conditions

of human society, and given to both sexes alike, there would be

any material difference, or perhaps any difference at all, in the

character and capacities which would unfold themselves."[813]

[811] For example, see DR. STRAHAN, "The Struggle of the Sexes:

its Effect upon the Race," _Humanitarian_, III (Nov., 1893),

349-57; replying to an article entitled "Sex Bias" in the same

journal for July of that year; EDSON, "Women of Today," _North

Am. Rev._, CLVII, 440-51; who is criticised by ICHENHAEUSER, _Die

Ausnahmestellung Deutschlands in Sachen des Frauenstudiums_, 8

ff.; an article entitled "'Woman's Rights' Question Considered

from a Biological Point of View," _Quart. Jour. of Sci._, XV,

469-84; which is effectually disposed of by WARD, "Our Better

Halves," _Forum_, VI, 266-75. Ward is attacked by ALLEN, "Woman's

Place in Nature," _Forum_, VII, 258-63. ROMANES, "Mental

Differences of Men and Women," in _Pop. Sci. Monthly_, XXXI,

383-401, takes a conservative or intermediate position. A liberal

view is held by BROOKS, "The Condition of Women Zoölogically,"

_ibid._, XV, 145 ff., 347 ff.; and by WHITE, "Woman's Place in

Nature," _ibid._, VI, 292-301.

[812] CAIRD, _Morality of Marriage_, 13, 174, 175.

[813] Quoted by CAIRD, _op. cit._, 14. For a trenchant discussion

of this point compare MILL, _Subjection of Women_, 38-52, 111

ff., _passim._

It is vain for "scientific optimism" to seek in "nature" a

justification for woman's sexual subjection. "Independently ...

of its false facts and false premises, this pretended scientific

defense of the undue inequality of the sexes in man is fundamentally

unsound in resting upon a thoroughly false assumption, which is

only the more pernicious because widely prevalent. It assumes that

whatever exists in nature must be the best possible state.... The

only practical use to which we put science is to _improve upon

nature_, to control all classes of forces, social forces included,

to the end of bettering the conditions under which we inhabit the

earth. This is true civilization, and all of it."[814]

[814] WARD, _Dynamic Sociology_, I, 662.

The fear that the education of woman, in connection with her growing

economic independence, will prove harmful to society through her

refusal of matrimony or maternity appears equally groundless.

According to Dike, "the demand for her enfranchisement, either

as a right or on the ground of expediency, grows out of this way

of treating her as an individual whose relations to society are

less a matter of condition and more of personal choice. And this

principle is carried into a sphere entirely her own. A partial

loss of capacity for maternity has, it is said, already befallen

American women; and the voluntary refusal of its responsibilities

is the lament of the physician and the moralist."[815] It is true

that the birth-rate is falling.[816] So far as this depends upon

male sensuality, a prevalent cause of sterility; upon selfish love

of ease and luxury--of which men even more than women are guilty;

or upon the disastrous influence of the present extremes of wealth

and poverty--of which women as well as men are the victims--it is a

serious evil which may well cause us anxiety; but so far as it is

the result of the desire for fewer but better-born children--for

which, let us hope, the advancing culture of woman may in part be

responsible--it is in fact a positive social good.[817] It is true

also that, while fewer and fewer marriages in proportion to the

population are taking place, men as well as women are marrying later

and later in life.[818] Here again, for the reasons just mentioned,

the results are both good and bad. Certain it is that early

marriages and excessive child-bearing have been the twin causes

of much injury to the human race. "To the superficial observer,"

declares a writer very conservative as to the effects of woman's

emancipation, "it may appear that every marriage must enrich the

state, and that early marriages must lessen the amount of sexual

immorality, but inquiry will prove conclusively how fallacious are

those views. Early marriages certainly tend to the production of

large families, but then a family, to be a source of wealth to the

state, must at least be self-supporting, which is exactly what the

feeble, degenerate children of the great mass of our early marriages

are not. They are brought forth ill-developed and unhealthy; their

immature, improvident parents are unable to either feed or educate

them as they ought to be fed and educated; hence, instead of being a

source of wealth to the state, they prove a serious drain upon her

resources. A large percentage of these miserable children succumb

during infancy, but a great number drag out a pitiful existence,

only to become inmates of our workhouses and infirmaries, our

asylums and prisons, and, after being supported at the public

expense for a longer or shorter period, to die prematurely, leaving

the state poorer than they found it and no better. It is indeed a

small percentage of the children of the immature that ever become

robust useful, self-supporting citizens."[819]

[815] DIKE, "Some Aspects of the Divorce Question," _Princeton

Rev._, March, 1884, 180. Compare ALLEN, "The New England Family,"

_New Englander_, March, 1882, 146 ff.; CREPAZ, _Die Gefahren der

Frauen-Emancipation_, 24 ff.

[816] KUCZYNSKI, "Fecundity of the Native and Foreign Born Pop.

of Mass.," _Quart. Jour. of Economics_, XVI, 1-36; CRUM, "The

Birth-Rate in Mass.," _ibid._, XI, 248-65; DUMONT, "Essai sur le

natalité en Mass.," _Jour. de la soc. stat. de Paris_, XXXVIII

(1897), 332-53, 385-95; XXXIX (1898), 64-99; MOLINARI, "Decline

of the French Population," _Jour. of the Royal Stat. Soc._, LIII,

183-97; MAYO-SMITH, _Statistics and Sociology_, 67 ff.; USSHER,

_Neo-Malthusianism_, 137-64; EDSON, "Women of Today," _North Am.

Rev._, CLVII, 446 ff.

[817] Sometime, it is to be hoped, society may seriously

take in hand the problem of restraining the propagation of

criminals, dependents, and the other unfit: see WARNER, _American

Charities_, 132, 133.

[818] WILLCOX, "A Study of Vital Statistics," in _Pol.

Sci. Quart._, VIII, 76, 77; OGLE, "On Marriage-Rates and

Marriage-Ages," _Jour. of the Royal Stat. Soc._, LIII, 272 ff.;

KUCZYNSKI, "Fecundity of the Native and Foreign Born Pop. in

Mass.," _Quart. Jour. of Economics_, XVI, 1-36; MAYO-SMITH,

_Statistics and Sociology_, 103 ff., 124; CRUM, "The Marriage

Rate in Mass.," _Pub. of Am. Stat. Assoc._, IV, 331 ff.; WALLACE,

"Human Selection," _Fort. Rev._, XLVIII, 335 ff.

[819] STRAHAN, _Marriage and Disease_, 245 ff., giving

statistics. _Cf._ EDSON, "The Evils of Early Marriages," _North

Am. Rev._, CLVIII, 230-34; USSHER, _Neo-Malthusianism_, 213

ff.; WALLACE, "Human Selection," _Fort. Rev._, XLVIII, 333 ff.;

LEGOUVÉ, _Hist. morale des femmes_, 74-84.

It is not marriage or maternity which educated women are shunning;

but they are declining to view marriage as their sole vocation or

to become merely child-bearing animals. Let us not worry about the

destiny of college women.[820] It is simply wrong wedlock which

they are avoiding. They have, suggests Muirhead, a careful regard

for the "kind" of marriage. They are determined to have only "the

genuine article." They "look in marriage not only for the old

fashioned 'union of hearts,' but for the union of heart and head in

some serious interest which will survive the mere attractions of

sex and form a solid bond of union even in the absence of others

which, like the birth of children, depend on fortune." So "far from

being hostile" to the family, "they are only preparing the way for

a purer and more beneficent form of family life." The "maternal

instinct is happily not confined to the uneducated."[821] The rise

of a more refined sentiment of love has become at once a check and

an incentive to marriage.[822][820] See especially the excellent

paper of MARY ROBERTS SMITH, "Statistics of College and Non-College

Women," _Pub. of the Am. Stat. Assoc._, VII, 1-26, whose conclusions

support the view taken in the text; and SIDGWICK, _Health Statistics

of Women Students of Cambridge and Oxford and Their Sisters_

(Cambridge, 1890), who reaches similar general results. _Cf._

THWING, "What Becomes of College Women?" _North Am. Rev._, CLXI,

546-53, taking a very favorable view of the influence of higher

education on woman in her domestic relations; and SHINN, "The

Marriage Rate of College Women," _Century_, L, 946-48. Consult also

the articles of F. M. ABBOTT, C. S. ANGSTMAN, G. E. GARDNER, and F.

FRANKLIN mentioned in the Bibliographical Index, IV; and read CLARA

E. COLLET'S "Prospects of Marriage for Women," _Nineteenth Century_,

XXXI, 537-52.

[821] MUIRHEAD, "Is the Family Declining?" _Int. Jour. of

Ethics_, Oct., 1896, 47-50.

[822] There are many reasons why all persons do not marry. Among

these is a loftier ideal of love. "Persons often live single a

whole life-time because they are unable to obtain the only one

in the world for whom they can ever experience a throb of pure

passion.... We see then that this more diffused and elevated form

of love becomes at once the greatest incentive and the greatest

barrier to marriage. It differs wholly from the localized passion

in being _selective_. While it is less selfish, it must be called

out by, and exclusively directed toward, one definite object.

From this circumstance it may be called the _objective_ form of

love."--WARD, _Dynamic Sociology_, I, 626.

Long ago Mrs. John Stuart Mill explained how essential are knowledge

and equality to render woman the real companion of man in the

struggle for existence; how the subjection and ignorance of the wife

degrade not only her own character, but that of the husband as well.

"There is hardly any situation more unfavorable to the maintenance

of elevation of character, or force of intellect, than to live in

the society, and seek by preference the sympathy, of inferiors in

mental endowments."[823]

[823] MRS. MILL, "Enfranchisement of Women," _Westminster

Review_, July 1851; or _Dissertations and Discussions_, III, 117,

118. "While far from being expedient, we are firmly convinced,

that the division of mankind into castes, one born to rule over

the other, is in this case, as in all cases, an unqualified

mischief; a source of perversion and demoralization, both to the

favored class and to those at whose expense they are favored;

producing none of the good which it is the custom to ascribe to

it, and forming a bar, almost insuperable while it lasts, to

any really vital improvement, either in the character or in the

social condition of the human race."--_Ibid._, 101. _Cf._ MR.

MILL'S masterly discussion of the relative effects of equality

and inequality in marriage, in _Subjection of Women_, 53-90, 146

ff.

If woman's even partnership with man in the nurture of the family

and in facing the exigencies of external life depends mainly on

equal education, never was such education more urgently required

than at the present hour. Social and industrial problems are

constantly demanding higher and higher mental training for their

solution. The same is true of the problem of the family. It is very

largely a question of reform and development in home education.

Clearly, then, husband and wife have great need of intelligent

sympathy and counsel in the discharge of their joint, yet partially

differentiated, tasks. Hence, it should be the high function of

public education to promote this healthy companionship in social

duty. Furthermore, American experience appears to show that it can

best do so by training young men and women together. Indeed, in this

regard the sociological value of coeducation is very important.

Theoretically it seems reasonable to assume that those who are to

work together in later life may gain some advantage by spending the

years of study side by side. The practical result of coeducation in

the western states, where it has been given the freest opportunity,

appears to demonstrate that such is actually the case. The majority

of those who have had extended experience, after making all due

allowance for special difficulties to be surmounted, are emphatic in

their opinion that mentally and morally both sexes are the gainers

by it, as compared with training in separate institutions.[824]

It is true that eventually marriages very often result from such

associations. That is precisely the gist of the matter. Are not the

conditions entirely favorable to the fostering of happy unions?

Under what better auspices can attachments be formed than when

young men and women are learning to gauge each other's character

through the varied social and intellectual rivalries of the years of

scholastic life?

[824] "Yet coeducation wisely managed is almost indispensable

to the training of noble men and women; for education in its

broadest sense takes account of all the influences that go to

form character. It is not wholly intellectual, but is moral

and social, and can best be carried forward, under a proper

_régime_, where young men and women are educated and trained

together."--LIVERMORE, _What Shall We Do with Our Daughters?_ 44

ff. _Cf._ KUHNOW, _Frauenbildung und Frauenberuf_, 7 ff.; and

especially WOLLSTONECRAFT, _Vindication of the Rights of Woman_,

361 ff., 381-413.

Educational equality, however, is but one aspect of the movement for

woman's liberation. There are other factors of the ideal partnership

of the sexes in the uplifting of society. Intellectual emancipation

is proceeding, and necessarily must proceed, hand in hand with

political and economic emancipation. The three movements are in

large measure blended and interdependent. The participation of

woman in the new vocations--industrial, artistic, professional, or

administrative--implies a great advance in mental training. It means

a distinct unfoldment of faculties and character. "No sociological

change equal in importance to this clearly marked improvement of

an entire sex has ever taken place in one century."[825] It is a

revolution in which one-half of the human race is becoming an equal

factor with the other in intellectual and economic production. At

last woman is gaining a share in the social consciousness; she is

entering into the social organization as a new and regenerative

force. Doubtless, in the process of readjusting new functions and

conditions to the old some temporary harm may ensue. Yet happily

the alarm is subsiding lest by her entrance on the new vocations

woman should permanently wreck her physical constitution, refuse to

marry, or cause industrial disaster through over-competition.[826]

With far greater justice a century ago it was complained that the

"intrusion of men-traders" into woman's work was driving her to

destitution and thus fostering the "social evil."[827] The callings

into which women are charged with "intruding" were, many of them,

women's callings before they were men's.

[825] STETSON, _Women and Economics_, 151. On the woman

labor question see the very enlightening discussion of OLIVE

SCHREINER, "The Woman's Movement of Our Day," _Harper's Bazar_,

XXXVI (1902), 3-8, 103-7, 222-27; and her "Woman Question,"

_Cosmopolitan_, XXVIII (1899-1900), 45-54, 182-92, emphasizing

the danger of woman's "sex-parasitism," through her economic

dependence. Compare GÜNTHER, _Das Recht der Frau auf Arbeit_, 6

ff.

[826] The hardships which women as well as men endure under the

present industrial conditions have little connection with their

economic emancipation. "What some call a woman's movement for

industrial liberty is not quite what it is claimed to be. It

is largely an incident in the movement of property, which is

seeking its own ends, caring very little for either sex or age.

In order to find an easier place under the common industrial

yoke that rests upon the neck of every individual, women seek

more and more employments. But it is not so much womanhood as it

is property that is the real impelling cause."--DIKE, "Problems

of the Family," _Century_, XXXIX, 392. _Cf._ LEGOUVÉ, _Hist.

morale des femmes_, 366-90; GRAFFENRIED, "The Condition of

Wage-Earning Women," _Forum_, XV, 68 ff.; EDSON, "American Life

and Physical Deterioration," _North Am. Rev._, CLVII, 440 ff.,

referring to the alleged evil effects of woman's new activities;

DILKE, "Industrial Position of Women," _Fort. Rev._, LIV, 499

ff., discussing the condition of factory workers; PHILLIPPS,

"The Working Lady in London," _ibid._, LII, 193 ff.; BREMNER,

"The Financial Dependence of Women," _North Am. Rev._, CLVIII,

382 ff., protesting against regarding the economic "dependence

of the wife as degradation;" and COLLET, "Official Statistics on

the Employment of Women," _Jour. of the Stat. Soc._, LXI, 216-60.

MRS. MILL, "Enfranchisement of Women," _Dissertation_, III, 109

ff., effectually disposes of the objection based on the alleged

effects of woman's industrial competition with men. _Cf._ the

elaborate discussion of BEBEL, _Die Frau und der Sozialismus_,

202 ff.

[827] MARY ANNE RADCLIFFE, _The Female Advocate_ (London, 1799).

A petition of women to Louis XVI. in 1789 prays "that men may

not ply the trades belonging to women, whether dressmaking,

embroidery, or haberdashery. Let them leave us, at least the

needle and the spindle, and we will engage not to wield the

compass or the square."--OSTROGORSKI, _The Rights of Women_, 26,

27; following LEFAURE, _Le socialisme pendant la révolution_, 122.

It is within the family itself that the growing economic

independence of woman is producing the highest sociological

results. Under the old domestic régime on both sides of the sea

the woman who married entered legally, potentially, upon a life of

financial bondage. In the theory of the common law the wife, with

her children, her goods, and the fruits of her toil, was the sole

property of the husband. Only in 1886 did the mother in England

gain legal capacity for the partial custody of her offspring;[828]

and in but few of the American states has she been placed on equal

footing with the father in this regard.[829] Even now the "husband

in England can claim damage from the man who has ruined his family

life, but the woman can claim none from the rival who has supplanted

her."[830] In both England and the United States notable progress

has already been made in equalizing the property rights of the

sexes; but the process is yet far from complete. The prevailing

conception of marriage as a status in which the wife is "supported"

by the husband is degrading in its influence on the woman's

character. It tends to deaden her moral perceptions and to paralyze

her mental powers. Girls are trained, or they are forced by

poverty, to look upon wedlock as an economic vocation, as a means of

getting a living. The result is that under the old order marriage

tends to become a species of purchase-contract in which the woman

barters her sex-capital to the man in exchange for a life-support.

The man--not the woman as originally--has become the chooser in

sex-selection. In the family, therefore, the sex-motive has become

excessively pronounced, thrusting into the background higher social

and spiritual ideals.[831] The liberation movement thus means in

a high degree the socialization of one-half of the human race.

Woman declines longer to be restricted to the dwarfing environment

of sexual seclusion; and demands the means and the privilege of

engaging in the larger activities of self-conscious society.[832]

[828] By the Custody of Infants Act, 1886: see the discussion of

CAIRD, _Morality of Marriage_, 49, 55 ff.

[829] BISHOP, _Marriage, Div., and Sep._, II, 452 ff.

[830] PEARSON, "The Decline of the Family," in his _National Life

and Character_, 240, 234, 235. In many of the American states the

wife may bring action against the seducer of her husband: BISHOP,

_Mar., Div., and Sep._, I, 568.

[831] This fact is seized upon in one of the most powerful books

produced in recent sociological discussion. According to Mrs.

Stetson "we are the only animal species in which the female

depends on the male for food, the only animal species in which

the sex-relation is also an economic relation. With us an entire

sex lives in a relation of economic dependence upon the other

sex." The wife may toil unceasingly; but the labor which she

"performs in the household is given as a part of her functional

duty, not as employment." She is therefore not her husband's

"business partner;" for as an intended equivalent for what she

gets she contributes neither labor nor capital nor experience

nor even motherhood. She contributes her sex-attractions.

Sex-distinctions are therefore excessively developed; and the

"sexuo-economic relation" becomes inevitable. "By the economic

dependence of the human female upon the male, the balance of

forces is altered. Natural selection no longer checks the action

of sexual selection, but coöperates with it;" for "man, in

supporting woman, has become her economic environment." Under

"sexual selection the human creature is of course modified to

its mate, as with all creatures. When the mate becomes also the

master, when economic necessity is added to sex-attraction,

we have the two great evolutionary forces acting together to

the same end; namely, to develop sex-distinction in the human

female. For, in her position of economic dependence in the

sexual relation, sex-distinction is with her not only a means

of attracting a mate, as with all creatures, but a means of

getting a livelihood, as is the case with no other creature under

heaven. Because of the economic dependence of the human female

on her mate she is modified to sex to an excessive degree. This

excessive modification she transmits to her children; and so is

steadily implanted in the human constitution the morbid tendency

to excess in this relation, which has acted so universally upon

us in all ages, in spite of our best efforts to restrain it."

While in man the immediate dominating force of sexual passion

may be more conspicuous, in woman it holds more universal sway.

"For the man has other powers and faculties in full use, whereby

to break loose from the force of this; and the woman, specially

modified to sex and denied racial activity, pours her whole life

into love." Useful to the race as was this evolution originally,

its influence for good has long since reached its limit.

Excessive sex-energy has threatened to "destroy both individual

and race." Hence woman is declining longer to be confined

to her highly specialized sexual function and is demanding

an equal place in the social organization. She is gaining a

social consciousness: STETSON, _Women and Economics_, 5, 12

ff., 37 ff., 48, 122-45. _Cf._ SCHREINER, "The Woman Question,"

_Cosmopolitan_, XXVIII, 183 ff., on "sex-parasitism."

[832] _Cf._ STETSON, _op. cit._, 156 ff. "The woman's club

movement is one of the most important sociological phenomena of

the century--indeed, of all centuries--marking as it does the

first timid steps toward social organization of these so long

unsocialized members of our race;" for "social life is absolutely

conditioned upon organization."--_Ibid._, 164. On woman's clubs

see CROLY, _Hist. of the Woman's Club Movement in America_;

HENROTIN, _Attitude of Women's Clubs Toward Social Economics_;

LIVERMORE, _North Am. Rev._, CL, 115; ANSTRUTHER, _Nineteenth

Century_, XLV, 598-611; and a symposium in _Arena_, VI, 362-88.

The financial dependence of the wife is discussed by COOKE, "Real

Rights of Women," _North Am. Rev._, CXLIX, 353, 354; and by

IVES, "Domestic Purse Strings," _Forum_, X, 106-14, showing the

hardships and temptations of wives dependent upon the husband for

current supplies of money.