the other. Corsets really give a feeling of support; they really furnish without trouble a fairly satisfactory appearance of decorum; they are a real protection against various accidents. But the price at which they furnish these advantages is serious, and the advantages themselves only exist under unnatural conditions. The corset cramps the form and the healthy development of the organs; it enfeebles the voluntary muscular system; it is incompatible with perfect grace and beauty; it diminishes the sum of active energy. It exerts, in short, the same kind of influence on physical responsibility as formal marriage on moral responsibility.

It is certainly inevitable that during a period of transition the natural order is to some extent disturbed by the persistence, even though in a weakened form, of external bonds which are beginning to be consciously realized as inimical to the authoritative control of individual moral responsibility. We can clearly trace this at the present time. A sensitive anxiety to escape from external constraint induces an undervaluation of the significance of personal constraint in the relationship of marriage. Everyone is probably familiar with cases in which a couple will live together through long years without entering the legal bond of marriage, notwithstanding difficulties in their mutual relationship which would have long since caused a separation or a divorce had they been legally married. When the inherent difficulties of the marital relationship are complicated by the difficulties due to external constraint, the development of individual moral responsibility cuts two ways, and leads to results that are not entirely satisfactory. This has been seen in the United States of America and attention has often been called to it by thoughtful American observers. It is, naturally, noted especially in women because it is in women that the new growth of personal freedom and moral responsibility has chiefly made itself felt. The first stirring of these new impulses, especially when associated, as it often is, with inexperience and ignorance, leads to impatience with the natural order, to a demand for impossible conditions of existence, and to an inaptitude not only for the arbitrary bondage of law but even for the wholesome and necessary bonds of human social life. It is always

a hard lesson for the young and idealistic that in order to command Nature we must obey her; it can only be learned through contact with life and by the attainment of full human growth.

We have seen that the modern tendency as regards marriage is towards its recognition as a voluntary union entered into by two free, equal, and morally responsible persons, and that that union is rather of the nature of an ethical sacrament than of a contract, so that in its essence as a physical and spiritual bond it is outside the sphere of the State's action. It has been necessary to labor that point before we approach what may seem to many not only a different but even a totally opposed aspect of marriage. If the marriage union itself cannot be a matter for contract, it naturally leads to a fact which must necessarily be a matter for implicit or explicit contract, a matter, moreover, in which the community at large has a real and proper interest: that is the fact of procreation. . . .

...

If- to sum up we consider the course which the regulation of marriage has run during the Christian era, the only period which immediately concerns us, it is not difficult to trace the main outlines. Marriage began as a private arrangement, which the Church, without being able to control, was willing to bless, as it also blessed many other secular affairs of men, making no undue attempt to limit its natural flexibility to human needs. Gradually and imperceptibly, however, without the medium of any law, Christianity gained the complete control of marriage, coördinated it with its already evolved conceptions of the evil of lust, of the virtue of chastity, of the mortal sin of fornication, and, having through the influence of these dominating conceptions limited the flexibility of marriage in every possible direction, it placed it on a lofty but narrow pedestal as the sacrament of matrimony. For reasons which by no means lay in the nature of the sexual relationships, but which probably seemed cogent to sacerdotal legislators who assimilated it to ordination, matrimony was declared indissoluble. Nothing was so easy to enter as the gate of matrimony, but, after the manner of a mousetrap, it opened inwards and not outwards; once in there was no way out alive. The Church's regulation of marriage while, like the

celibacy of the clergy, it was a success from the point of view of ecclesiastical politics, and even at first from the point of view of civilization, for it at least introduced order into a chaotic society, was in the long run a failure from the point of view of society and morals. On the one hand it drifted into absurd subtleties and quibbles; on the other, not being based on either reason or humanity, it had none of that vital adaptability to the needs of life, which early Christianity, while holding aloft austere ideals, still largely retained. On the side of tradition this code of marriage law became awkward and impracticable; on the biological side it was hopelessly false. The way was thus prepared for the Protestant reintroduction of the conception of marriage as a contract, that conception being, however, brought forward less on its merits than as a protest against the difficulties and absurdities of the Catholic Canon law. The contractive view, which still largely persists even to-day, speedily took over much of the Canon law doctrines of marriage, becoming in practice a kind of reformed and secularized Canon law. It was somewhat more adapted to modern needs, but it retained much of the rigidity of the Catholic marriage without its sacramental character, and it never made any attempt to become more than nominally contractive. It has been of the nature of an incongruous compromise and has represented a transitional phase towards free private marriage. We can recognize that phase in the tendency, well marked in all civilized lands, to an ever-increasing flexibility of marriage. The idea, and even the fact, of marriage by consent and divorce by failure of that consent, which we are now approaching, has never indeed been quite extinct. In the Latin countries it has survived with the tradition of Roman law; in the English-speaking countries it is bound up with the spirit of Puritanism which insists that in the things that concern the individual alone the individual himself shall be the supreme judge. That doctrine as applied to marriage was in England magnificently asserted by the genius of Milton, and in America it has been a leaven which is still working in marriage legislation towards an inevitable goal which is scarcely yet in sight. The marriage system of the future, as it moves along its present course,

will resemble the old Christian system in that it will recognize the sacred and sacramental character of the sexual relationship, and it will resemble the civil conception in that it will insist that marriage, so far as it involves procreation, shall be publicly registered by the State. But in opposition to the Church it will recognize that marriage, in so far as it is purely a sexual relationship, is a private matter the conditions of which must be left to the persons who alone are concerned in it; and in opposition to the civil theory it will recognize that marriage is in its essence a fact and not a contract, though it may give rise to contracts, so long as such contracts do not touch that essential fact. And in one respect it will go beyond either the ecclesiastical conception or the civil conception. Man has in recent times gained control of his own procreative powers, and that control involves a shifting of the center of gravity of marriage, in so far as marriage is an affair of the State, from the vagina to the child which is the fruit of the womb. Marriage as a state institution will center, not around the sexual relationship, but around the child which is the outcome of that relationship. In so far as marriage is an inviolable public contract it will be of such a nature that it will be capable of automatically covering with its protection every child that is born into the world, so that every child may possess a legal mother and a legal father. On the one side, therefore, marriage is tending to become less stringent; on the other side it is tending to become more stringent. On the personal side it is a sacred and intimate relationship with which the State has no concern; on the social side it is the assumption of the responsible public sponsorship of a new member of the State. Some among us are working to further one of these aspects of marriage, some to further the other aspect. Both are indispensable to establish a perfect harmony. It is necessary to hold the two aspects of marriage apart, in order to do equal justice to the individual and to society, but in so far as marriage approaches its ideal state those two aspects become one.

CHAPTER XV

THE DIVORCE REFORM MOVEMENT

The fundamental causes of divorce, 621.- Economic development, 628.- Standards of living, 628. - Pressure of economic life upon the home, 629.- Passing of the economic function of the family, 631.- Economic emancipation of women, 633. Social progress, 636.. Liberalism, 637. — Popularization of law, 639.— Education, 640.- Ethical and religious readjustment, 643. — Single moral standard, 647. Higher ideals of domestic happiness, 647.- Minority Report of the Royal Commission on Divorce — need of principles in divorce reform, 649.— National Congress on Uniform Divorce Laws proposed uniform divorce law for the United States, 657.

62. THE REAL CAUSES OF DIVORCE1

CAUSES OF INCREASE

Persistence of the Increase

The forces tending to counteract divorce are among the most efficient elements of social control. Laws have been enacted in every State in the Union for the purpose of regulating divorces, ranging in strictness from the recognition of fourteen valid grounds in New Hampshire, to absolute prohibition in South Carolina. While the laws in the several states differ in respect to the causes for divorce, they agree in their restrictive purpose. Juristic interpretation has required a more strict conformity to the law. Ecclesiastical divorce legislation in the great Protestant bodies, a product of the period we are studying, has increased in stringency with the rise of the divorce rate. The persistent protest of the Protestant clergy, even where no ecclesiastical enactment requires it, is expressed in their refusal, in most

1 By James P. Lichtenberger. Adapted from "Divorce, a Study in Social Causation." Columbia University Studies in History, Economics, and Public Law, Vol. XXXV, No. 3 (1909), pp. 142-150, 157-171, 176–189, 192–199.