Chapter XXIV: Part II: , being for British Colonies; and Reports of the Laws of (3)

_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remarriage after the decree prescribed; while some of the "omnibus" clauses in the list of statutory causes have been repealed.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.