The _duration_ of marriage is very important. If a marriage contract exacts s.e.xual fidelity till death, divorce is nonsense. Yet, in practice, it is obvious cruelty to keep two individuals legally bound together who can no longer live with each other. Thus, the provision and license of divorce are necessities of civil law which are certainly not ideal, but which cannot be pa.s.sed over without favoring family disturbance and without sanctioning illegality and evil.

Among the most frequent causes of divorce are desire for change in the husband, venereal diseases, disputes, incompatibility of temper, mental disorders, immorality, ill-treatment and crime. The sterility of one of the conjoints and incapacity for coitus may also be mentioned as reasons for divorce, although in certain circ.u.mstances, as we shall see, limited polyandry or polygyny may be much more humane than divorce.

As soon as divorce is admitted, important and complicated questions of law arise when there are children. We shall refer to these later. The legal license of complete divorce thus transforms marriage into a temporary contract, which is not so far removed as one would think from the ideal relations of free love.

We will examine the circ.u.mstances which, apart from the procreation of children, may attribute legal importance to the s.e.xual relations of two persons. I must first of all observe that, if it wishes, civil legislation can very well create a state of things which gives to children born outside marriage the same rights and the same social position as legitimate children, and I will even add that such social equality would respond to the most elementary sentiments of human rights, if these were not already influenced in advance by prejudice and mysticism.

=Minors.=--Civil law should stipulate that minors have not the right to marry. This may appear cruel in certain cases, but society has the right and the duty to intervene. Minors should be protected against all s.e.xual abuse. A young girl under the age of seventeen and a boy under eighteen or twenty should be prevented from all s.e.xual relations. This is a postulate of individual and social hygiene and consequently of all healthy matrimonial law.

=Lunatics.=--The same applies to lunatics, who are legally comparable to minors. Have we the right to forcibly separate a married couple, or a couple living in concubinage, because one of the conjoints has become insane, when the other does not wish for separation? In Germany the procedure of nullity of marriage has been invented for these cases, but without gaining much. I shall return to this point in connection with another subject, but I may remark here that it is not the continuation of marriage nor that of s.e.xual connection which injures society, but only the procreation of children. Therefore it is only the procreation of children, which should be legally prohibited, and s.e.xual connection only when the healthy conjoint agrees to its suppression, or when the interests of the afflicted one necessitate it.

In the future these particular cases may be regulated in the most convenient and humane way possible.

Certain bodily infirmities which one of the conjoints has concealed from the other, or of which he was not himself aware, should also impair the validity of the marriage contract. Such are chronic infectious diseases, especially venereal, impotence in the man and sterility in the woman, when the cause was previously known. But here again, the law should only intervene at the request of the person injured, and to take certain measures to prevent the procreation of abortions, without interfering with s.e.xual connection.

=Adultery.=--An important question is that of adultery. Here again, we are of opinion that the law has not performed its duty. Proved adultery, when fidelity has been promised by contract should give the injured party the right of immediate and absolute divorce.

Certain forms of adultery, which take place with the a.s.sent of the two conjoints, have in reality the character of bigamy and should neither be recognized by civil nor penal law. I will cite as an example, the case where two conjoints wish to live together for various reasons, while the impotence, disease or sterility of one of them induces him to concede to the other liberty of s.e.xual connection with a third person, apart from marriage. In such a case neither society nor any one else is injured and all motive for legal intervention is wanting (vide Andre Couvreur: _La Graine_).

=Divorce.=--The question of divorce becomes extremely difficult when one of the conjoints wishes for it and the other does not, and when no other reason exists for determining the marriage. We are here concerned with the malicious caprices of the G.o.d of love, from which the world will never be free.

In my opinion, the law in such cases can only do one thing, and that is to protect the rights of the children, if there are any, and to compel the inconstant conjoint to provide for their nourishment.

The law should also protect the pecuniary and other civil rights of the conjoint who wishes to continue life in common. Here especially we can recognize the necessity for the separation of property. On the other hand, I am convinced that it is useless to maintain at any price a union which one party does not wish for. In practice no good results from it; it is rather a moral question than a question of law.

In such cases we may observe the despair of the conjoint who has remained faithful, both in the marital and legal relations of marriage. The law cannot do everything, and here it is powerless; all that it can do is to exact delay and attempt at reconciliation, which sometimes succeeds.

=The Right to Satisfaction of the s.e.xual Appet.i.te.=--We now come to a delicate question. The right to satisfy the s.e.xual appet.i.te must necessarily be restricted in more than one respect if injury to third parties is to be avoided. If we except certain pathological cases, the chief difficulty lies in the fact that the normal s.e.xual appet.i.te can only be satisfied by the cohabitation of two persons, and that what satisfies the one may often injure or deeply wound the other, and even the children. The matter may go so far as to concern penal law, and we shall refer to it again in this connection. But, even from the point of view of civil law, permission to satisfy the s.e.xual appet.i.te must necessarily depend on the consent of both parties. In my opinion no exception to this rule can be tolerated.

It is not enough to protect minors; it is also necessary to prevent the abuse of the persons of adults against their will. The inst.i.tution of so-called Christian marriage still contains barbarous dispositions in this respect, the wife being generally obliged to surrender herself to her lord and master as often as he pleases. This is the dark side of the picture which exacts s.e.xual fidelity in man.

Inversely, for physiological reasons, a very erotic and s.e.xually exacting woman cannot obtain satisfaction, man being incapable of commanding erections voluntarily. She can only bring an action for divorce if she can prove that her husband is completely impotent.

It is sufficient to reflect on these facts to see how difficult is the regulation of s.e.xual connection by law. The legislation of details in this domain becomes of necessity an injustice.

We have already considered the great individual variability of the s.e.xual appet.i.te. Attempts to regulate it by the rules of a monogamous matrimonial code are absurd and impracticable. With all the respect due to the moral sentiments of Tolstoi, we are obliged to declare that his ascetic opinions on s.e.xual relations are only the dreams of an enthusiast.

When a libidinous man marries a young girl who is s.e.xually frigid, and when coitus continues to be a horror to his wife, it is quite as cruel to demand continence in the husband as submission in his wife. In such cases, the conditions can only be made tolerable by divorce, consent to concubinage, or bigamy, when a relative adaptation cannot be obtained by mutual concessions. At present our prejudices only allow divorce in such cases.

When a man and woman are already tied by pregnancy or by a child, and when, apart from the differences in their s.e.xual appet.i.tes, love and concord reign between them, separation would be cruel.

I readily agree that such extreme circ.u.mstances should not be the rule, and that in many cases the one who is the more erotic can restrain himself, and the one who is cold become accustomed to coitus.

Nevertheless, in the present chapter we are not concerned with morals but with rights, and we have only to reply to the question of knowing what should be done when, in s.e.xual connection between two conjoints, one desires it and the other does not.

The concentration of s.e.xual pa.s.sion on a single individual, which is generally good from the social point of view, is fatal in these special cases. A man falls pa.s.sionately in love with a woman, or a woman with a man, but instead of being reciprocal this love is despised by the other. Such a misfortune, which often leads to the most tragic consequences, not only in novels but also in real life, is only reparable by the renunciation of the one who loves. It is surely less cruel to renounce a proposed union than to become the s.e.xual prey of a person one does not love. It is, therefore, inhuman and immoral, as much in religion as in poetry, to preach in any form, the exclusiveness of sentiments, the indissolubility of monogamous marriage, and the immutability of love.

It has often been stated that a woman can only love once in her life.

Such a false and cruel generalization must be energetically opposed.

It is the business of sentimental poets to delude themselves with such sentiments, but those who think it a duty to adhere to dogmas of this kind are to be pitied. It is not only death or illness of one of the conjoints, dissensions and infidelity, which may cause separation of a s.e.xual union, but as is frequently the case, rejected love may transform into perpetual martyrdom the life of a person imbued with such ideas. The ascetic sentimentalism which results from this has a strong element of suggestion which is bad to cultivate.

If we would give the one who does not love the absolute right of repelling the s.e.xual advances of the other, not only the law but morality should in return allow the rejected lover to make another choice, where his desire for love will find an echo.

At the present day many people, especially women, prefer to endure their unhappiness and even that of their children to the opprobrium to which they are often exposed by public opinion in divorce or remarriage, or even in becoming engaged to another person, when their love has been rejected. It is, therefore, the duty of the legislator to banish from the law everything which may appear to sanction such opprobrium.

Most laws recognize not only impotence, but also a.s.sault, cruelty, venereal disease, adultery, etc., as grounds for divorce, but the pressure of public opinion causes the existing laws to be too little used. We must remember that such violations of conjugal duties give the injured party the right of claiming damages.

Nevertheless, we may say that the simplest civil action by one conjoint against the other is veritably monstrous when it is not accompanied by an action for divorce. When once the couple have come to legal disputes, their marriage is in reality dissolved and its continuation is an absurdity.

=Venereal Diseases.=--A very important question from the humanitarian and hygienic point of view is that of venereal disease. A man (or woman) who knows himself (or herself) to be affected with a venereal disease in an infectious state, and who in spite of this has connection with a woman, should be regarded as a criminal, at least if the woman with whom he has connection is not affected with the same disease.

Here the law should intervene by awarding heavy damages to the party who has been infected; eventually it may be treated as a criminal offense. In such cases claim should be made by the injured party, but unfortunately this is seldom done owing to feelings of shame. In the future, however, we may hope that the law may be improved for the benefit of humanity, for this would be one of the most efficacious means of combating venereal disease, and hence avoiding much misfortune for families and children.

It would also be desirable to prevent the procreation of syphilitic infants, for instance, by the use of preventatives (vide Chapter XIV).

=Prost.i.tution.=--Another difficult question is that of the relation of civil law to prost.i.tution. All State regulation of prost.i.tution is to be absolutely condemned; but what position should civil law take up with regard to free prost.i.tution? We have already seen what an abominable social evil is this commerce in human bodies, as regards social morality. But it is absolutely useless to try and abolish this commerce without attacking its lord and master--_money_. The venality of man implies the commerce of his body, and as long as everything can be got for money, coitus can be bought. It is, therefore, this venality which must be attacked, not only by condemning it in words but by cutting its roots. If the State will not withdraw its protecting hand from prost.i.tution, it might at least combat proxenetism and the public manifestations of prost.i.tution, by all the legal and administrative measures at its disposal. It would thus reduce the matter to intimate personal relations.

Let us hope that, little by little, a social organization more just to labor and wages, combined with the prohibition of alcoholic drinks, will, in the future, annihilate the causes of commerce in human bodies.

=Children as a Reason for Civil Marriage.=--To resume; we find that civil marriage should, by progressive reforms, become a much more free contract than it is at present, having for its object a common s.e.xual life. The law should abandon its useless and often harmful chicanery concerning the questions of s.e.xual relations and love, and regulate more carefully the duties of parents toward their children, and thus protect future generations against the abuse of the present generation.

The difference which exists between marriage and free love should gradually disappear, by inst.i.tuting natural intimate relations on the basis of sentiments of social morality, instead of maintaining the pretended divine origin of a social inst.i.tution. It is difficult to avoid a smile when we hear the term "divine inst.i.tution" applied to the marriage of a rich girl with a man who has been bought for her.

(Vide Chapter X.)

Various propositions have been made to give more dignity to the unions of free love, which now exist and which always have existed. Modern women have remarked that the absurd custom of naming the celibate woman differently to the married stigmatizes in society a number of poor women and innocent children, and that it would be quite as just to apply the term "damoiseau" to celibate men as "mademoiselle" to non-married girls. An unmarried woman who has a child, and who has only committed the sin of obeying nature, is branded with the stamp of shame.

It is the children who const.i.tute the true bond of marriage and give it a legal character. When there are no children all legal and State interference with conjugal affairs loses its sense so long as no one is injured, and civil marriage can then be greatly simplified. I maintain that so long as a sterile union, of whatever kind, between responsible persons is voluntary, provokes no conflict between those who have contracted it, and causes no injury to a third party, the law has no right to meddle with it; because this union does not concern society nor any of its members, excepting the two parties interested, who are in accord.

At the present time, in many countries, the existing laws can be utilized to form marriage contracts stipulating separation of property, the right of each of the conjoints to the produce of his or her work, as well as certain reciprocal rights and duties between the parents and children. Matters can thus be arranged so as to correct more or less the defects of the law.

=Marriage of Inverts.=--A peculiar and characteristic phenomenon is the ardent desire of many s.e.xual perverts, especially inverts, to become secretly engaged or married to the abnormal h.o.m.os.e.xual object of their love. It is needless to say that there can be no question of legal regulation of such pathological marriages. But the law may ignore them when they do no harm to any one, and regard them as private affairs, especially when they prevent much worse evils, such as the marriage of an invert to a normal individual.

=Civil Rights of Children. Matriarchism.=--As we have already said, it is the children who const.i.tute the real phylogenetic and psychological bonds in marriage and the family, bonds which are deeply rooted in human nature. This is so true that among many savage peoples, if not in most, marriage is not considered legal as long as it is sterile. Even among civilized people sterile women are generally regarded as of less value. We may, therefore, regard the article in the Code Napoleon which forbids inquiry into paternity as an unnatural measure, or as a monstrosity of civil law.

Two human beings who procreate others contract common duties and responsibility of the highest importance. They are, perhaps, the highest social duties that man can a.s.sume. Is it not then infamous and unnatural to legally liberate one only of the procreators, the man, from all his responsibilities, simply because certain religious or civil formalities were omitted before procreation?

Is the man less guilty than the woman in procreation apart from marriage, if we can use the term guilt in such cases? Is it not a ridiculous and cruel irony to call _natural children_ those born apart from marriage? Perhaps legitimate children are supernatural, or unnatural! Is it not infamous to brand with the seal of shame, even before their birth, poor illegitimate children, and to confirm this indignity by making them bear their mother's name instead of their father's?

The most elementary natural law exacts that all children, whether "legitimate" or "illegitimate," should have the same social rights, and that they should bear either the name of their real father or that of their mother; the latter denomination would be the more natural and logical. Denomination by the maternal line corresponds to the system of matriarchism (Chapters VI and XIX), which is often met with among savage races, and which is more just and leads to less abuse than patriarchism. Moreover, when women shall have obtained their proper rights, there will be an end of the exclusive authority of one of the conjoints in marriage.

Equality in the rights of the two s.e.xes will naturally lead to denomination in the maternal line, for reasons of simplicity, the mother being more closely related to the child than the father.

Maternity may, no doubt, be sometimes uncertain, as in the case of foundlings or changelings, but on the whole it is infinitely more easy to establish than paternity. It is sufficient for the mother to have s.e.xual connection with two men at the time of conception to render paternity doubtful. Again, the mother has a number of pains, cares and dangers to undergo in the course of the procreation and education of children, which the father escapes. Nature thus gives the mother the right to give her name to the family. Our legislation is unfortunately far from recognizing such natural right. We may nevertheless form a primary proposition, because in my opinion its recognition would avoid much complicated litigation:

_In nature, whenever the offspring of an animal have a protracted and dependent infancy, it is the duty of the parents to nourish them and bring them up. To allow human parents to dispense with this duty, on the grounds of badly constructed and unnatural social theories, is to encourage promiscuity, and consequently degeneration of society. It is easy to change social customs which are only based on artificial dogmas sanctioned by tradition, fashion and habit, whether they are of a religious nature or otherwise. But a social organization can never violate with impunity the true laws of human nature which are deeply rooted in our phylogenetic instincts, without disastrous effects._

In Chapters VI and VII we have given irrefutable proof that family life and the sentiments of sympathy between husband and wife, parents and children, const.i.tute the phylogenetic basis of the s.e.xual relations of humanity. Whatever may be the egoistic polygamous instincts of man, we can affirm that a natural and true monogamy const.i.tutes the highest and best form of his s.e.xual relations and of his love. No doubt there are many exceptions which must be taken into account. It is absurd to shut our eyes to the fact that our degenerate social customs have created unnatural circ.u.mstances in which parents behave shamefully toward their children, exploiting them, training them systematically to mendacity, prost.i.tution and crime, or else ill-treating them. We even see unnatural parents, to save legal consequences, get rid of children who inconvenience them by the aid of slow and coldly calculated martyrdom, which leads them to certain death. It is, therefore, necessary to establish special legal provision for all these exceptional cases, to protect children against the power of unworthy parents and all forms of abuse.

I must here draw attention to the impulse which has recently been given to Austrian legislation on the protection of children, by Lydia von Wolfring. The State brings up, in philanthropic inst.i.tutions, children who have been maltreated, neglected or abandoned, after removal from their unworthy parents, but without relieving the latter of their duty in providing nourishment. According to Miss Wolfring's system, they are cared for by honest couples without children who wish for them, under the supervision of the aforesaid inst.i.tutions. In this way the children enjoy family life.