George Elliott Howard

“ Yet the common-law marriage is now supported on two principal grounds. The innocent offspring, we are told, ought not to suffer because the parents have neglected the formalities prescribed by a mere statute. Moreover, to declare an irregular, perhaps a clandestine, union void is to invade the most sacred right of the individual. There is urgent need that the American people should realize the fallacy of such arguments. Far better that the children of a delinquent minority should bear the stain of illegitimacy than that the welfare of the whole social body should be endangered. ”

“ The problem of individual liberty has become the problem of social liberty. Individualization for the sake of socialization must continue its beneficent work. There must be growth, constant readjustment. Marriage will in truth be holy if it rests on the free trothplight of equals whose love is deep enough to embrace a rational regard for the rights of posterity. The home will not have less sanctity when through it flows the stream of the larger human life. ”

“ 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. ”

“ 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. ”

“ There is no pauper who may not wed a pauper and beget paupers to the end of his story. There is no felon returned from his prison, or loose upon society uncondemned, who may not make a base play at wedlock, and perpetuate his diseased soul and body in those of his descendants, without restraint. There is no member of what we call our 'respectable' classes who may not, if he choose, make a mock of the awful name of marriage, in sacrilege to which we are so used that we scarcely lift an eyelid to suppress surprise or aversion at the sickening variety of the offence. ”

“ I [253] believe the divorce movement finds its impetus outside of laws, outside of our institutions, outside of our theology; that it finds its impetus in the rebellion of the human heart against that slavery which binds in the cruelest bonds of the cruelest prostitution human beings who have, by their foolishness, by their want of wisdom, or by the intervention of friends, missed the divine purpose, as well as the civil purpose of marriage. ”

“ Where now, except perhaps in an indirect or perfunctory way, does the school boy or girl get any practical suggestion as to home-building, the right social relations of parent and child, much less regarding marriage and the fundamental questions of the sexual life? In this field the home, as the complement or coadjutor of the school and the state, has a precious opportunity. Indeed, our inspiring hope lies in the fact that, in spite of unfavorable conditions, many homes, presided over by enlightened parents, are discharging worthily, if not yet ideally, the high function of social training. ”

“ What chance is there under such circumstances for a happy family life or for worthy home-building? In sanctioning divorce the welfare of the children may well cause the state anxiety; but are there not thousands of so-called "homes" from whose corrupting and blighting shadow the sooner a child escapes the better for both it and society?
How shall the needed reform be accomplished? The raising of ideals is a slow process. It will not come through the statute-maker, though he can do something to provide a legal environment favorable for the change. ”

“ As a preliminary to a general reform of our marriage laws as a whole it is earnestly to be desired that every state or territory not already emancipated should enact a statute as clear and decisive as that of Kentucky, Utah, or New York, absolutely repudiating the common-law contract. It is only through legislation that this revolution can be effected. It is not the proper function of the courts to attempt it. ”

“ If we consider the details of our legislation, as already analyzed in the sixteenth chapter, we perceive in nearly every department urgent need of reform, often of radical innovation. Almost everywhere there is a want of clearness, certainty, and simplicity; and this defect is all the more harmful because of the lack of uniformity among the different states. Diversity, even conflict, in every branch of state legislation is a burdensome incident of the federal system; and in no branch is the evil more formidable than in the field of marriage and divorce. ”

“ Whatever degree of liberty may be just or expedient in a more advanced state of moral development, it is felt that now a reasonable conservatism is the safer course. Yet divorce is sanctioned by the state as an individual right; and there may be occasions when the exercise of the right becomes a social duty. The right is, of course, capable of serious abuse. Loose divorce laws may even invite crime. Nevertheless, it is fallacious to represent the institution of divorce as in itself a menace to social morality. ”

“ 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. ”

“ 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 [220] 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. ”

“ While separation from bed and board—the only form of divorce obtainable in the state—"is a judicial barrier to any attempt to exercise the rights or enforce the duties of the parties affected by the judgment, yet the courts are only too willing to have the parties restored to their original status quo, upon good cause shown. While the remedy is a hard one, and to a certain extent interferes with the operation of the laws of nature, still woman must be protected! After all, an unbending adhesion to the laws of right living has a healthy effect upon the lives of others. ”

“ No doubt our common-law marriage is thoroughly bad, involving social evils of the most dangerous character; and no doubt the colonial legislative system was a remarkable advance upon anything which had elsewhere appeared. But the common-law marriage was not introduced by the American judges; nor is it historically correct to say that in the English colonies it had been entirely supplanted by legislation, however admirable in its intent and quality that legislation may have been. ”

“ No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces a vinculo matrimonii, on the broad principle that it was a wise policy to shut the door to domestic discord, and to gross immorality in the community. ”

“ 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? ”

“ The worthy lawmaker starts out valiantly. The act of 1802, giving the superior court primary and the legislature final jurisdiction in petitions for total divorce, as required by the constitution, is justified in language which seems grotesque in the light of later experience. Such a measure is needful, we are assured, not only because there are doubts as to the powers of the judges in divorce causes without a statute, but because "marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems;" ”

“ We are thus confronted by still another phase of the emancipation movement—the divorce problem. In this problem woman has a peculiar interest. The wife more frequently than the husband is seeking in divorce a release from marital ills; for in her case it often involves an escape from sexual slavery. The divorce movement, therefore, is in part an expression of woman's growing independence. ”

“ 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 [232] 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!" ”

“ An attempt will be made in this chapter to sketch the course of legislation in all of the states during a hundred and twenty-five years. Necessarily only the more salient features can be brought out. The beginning and the end, with some of the more important intervening changes, may be dwelt upon. The immense volume of laws, the constant stream of legislative enactments, the ceaseless tinkering of the statute-maker, the wearisome repetitions, render anything more than this very difficult and perhaps unnecessary. The most that one can hope for is to make the right impression ”

“ In no part of the whole range of human activity is there such imperative need of state interference and control as in the sphere of the matrimonial relations. In this field as in others we are beginning to see more clearly that the highest individual liberty can be secured only when it is subordinated to the highest social good. It is, however, not merely the public which suffers. "Our common-law marriage fails to protect not only the contracting parties, but also the families to which they belong. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The son is likely to live a nobler life if he has learned to repudiate the dual standard of sexual morality which a spurious philosophy has set up; if he understands that "instincts" may be safely controlled; if he has been warned that selfish excesses within or without the marriage bond must be dearly paid for by the coming generations. Indeed, it is of the [258] greatest moment to society that the young should be trained in the general laws of heredity. Everywhere men and women are marrying in utter contempt of the warnings of science. ”