Europe. Celibacy may be a moral duty for certain natures. In that belief the Catholic Church has attempted to enforce the fulfillment of vows of continence with legal pains and penalties. Protestantism admits that celibacy may be sometimes a duty, but insists that the attempt to enforce it by law is not beneficial or wise. Only at times of special enthusiasm can the sexual instinct be permanently repressed. For such times the law is not necessary, and during the intervals it is injurious.

Similarly, the moral or religious ideal of marriage is a lifelong union between man and wife. Yet, as a matter of fact, that union does terminate and all relations between the parties cease. Whether the law shall recognize this de facto termination of marriage depends upon the conception of the function of law held by the community. If that function be to hold up an ideal, no falling short of the ideal can be admitted. Now the point here made is that since the Reformation the realistic view of marriage law has been constantly supplanting or modifying the idealistic. Whether this change has been attended by the lowering of the ideal of marriage, would be hard to decide; but it certainly has exerted much influence on the spread of divorce, or the legal recognition of the termination of a marriage.

$36. The Popularization of Law.

During the Middle Ages law was a personal privilege. For centuries legal forms of procedure continued so intricate and expensive that the benefits of law accrued only to the wise or wealthy. Along with the extension of the suffrage in modern times has come an almost equal extension of legal privileges. Whole classes have been admitted to court that were formerly excluded by the efficient practical prohibitions of ignorance and poverty. The change in the position of the negro, effected by his emancipation, is but a single striking illustration of what has been going on constantly as a result, on the one hand, of laws simplifying procedure and diminishing the ex

pense of litigation, and, on the other, of the better education of the community in matters of law. This education is conducted largely by the newspaper press of the country. Many a man would live in ignorance that such a thing as divorce existed, were it not for the conspicuous mention of trials in his morning paper. Thus the law has become a weapon of offense or defense for a very much larger part of the population than could use it even so recently as fifty years ago. In considering the rate of increase estimated from the figures, (§§ 3-11,) this must be borne carefully in mind.

Imagine society as a huge pyramid in which the position of each individual is determined by his knowledge and wealth. Imagine a horizontal plane intersecting the pyramid to represent the divorce law of the community, and all persons above the plane as possessing so much knowledge and money that divorce is to them a theoretical possibility, while to those below it is not. If the plane be motionless, the rate of increase of divorce may be found; but if it be gradually sinking towards the base of the pyramid, and making divorce a practical possibility to an increasing proportion of the whole number, this change must affect the calculation. Such a descent of the divorce plane has been in progress in this country, apparently, for the past twenty years. While it does not invalidate the previous conclusions, it does influence them, perhaps materially, and certainly renders untrustworthy any estimate for the future.

§ 37. Laxity in Changing and Administering the Law.

There are three parties to every divorce suit, the husband, the wife and the public. The consent of the public to a decision usually desired by both the other parties is expressed by the judge's decree, given in conformity to the law which itself expresses, with more or less accuracy, the permanent opinion of the community. If the state be small and the population scanty, its consent is easily gained. Push the subdivision of a state to its ultimate atoms, the families, and we revert to the patriarchal period when state and family

were identical. Then the will of the public and that of the head of the family coincided, and divorce required no sanction from a court. As society grew compact and better organized, the restraint of public opinion outside the family made itself felt, at first in the mere requirement of certain formalities, like a" bill of divorcement" or a prescribed formula. In new and sparsely settled communities, like those of our frontier states, there is an appreciable return towards the patriarchal condition. Public opinion is hardly formed, its restraint hardly felt; divorce becomes almost a personal and private matter. Judges, unrestrained by public sentiment, are lax in their decisions and legislatures in their enactments. The differences between the law of our Atlantic coast states and that of England, and between the law of our eastern and western belts of states, illustrate the tendency to a relaxation of law manifested in all new communities. The divorce law of Canada and Australia would probably have been changed ere this, but for the restraining influence and, in the last resort, the veto power of England.

If our common law had been under the exclusive protection of the National Congress, and not subject to modification by the states, its provisions on divorce would have changed much less; if the common law of England might have been modi fied by each county, the law of that country would, doubtless,, be much laxer. Denmark and Switzerland have the highest divorce rate in Europe, and Switzerland, till 1876, had separate laws for each canton.

While the direct effect of a change of law is slight and ephemeral, its importance as a register of the public sentiment of the community is very great. The public sentiment of new and small communities changes much more rapidly than that of old and large ones, and, in the last resort, that sentiment determines the number of divorces.

§ 38. Age of Marriage.

No direct connection between the age of marriage and the

liability to divorce can be made out from the statistics. Yet it seems to be the rule that the communities in which early marriages are most common, are most free from divorce. Thus Prince Krapotkine tells us that in Russia "the peasants for the most part marry their sons at eighteen, and their daughters at sixteen," and the Russian peasantry are perhaps, with the exception of the Irish, the freest from divorce in Europe. Mr. Lecky, however, lays stress upon "the nearly universal custom of early marriages among the Irish peas-antry," as explaining the remarkable chastity of that people. $39. The Emancipation of Women.

The emancipation of women means the attainment of such legal recognition and support as enables them to use the law for their defence with as much readiness and freedom as do men. It involves an economical and mental independence of men, whether as fathers or as husbands. If the organization of society greatly hinders women from becoming self-supporting, the wife endures many wrongs to which the ear of the judge would be open, simply because life apart from her husband is starvation. As women become able to earn a living income this economic bond is relaxed. The effect on conjugal life is seen in the greater number of divorces granted to the wife in the northern states. (Table VIII.,§ 19.) Perhaps the New England woman is somewhat more emancipated, i. e., more independant mentally and legally, than the woman of the middle Atlantic states.

A divorced woman may gain a livelihood either from her own labor or by a second marriage. Therefore it is natural to find divorce most frequent where a woman finds it most easy to earn her bread, and also where wives are most in demand. The latter is probably the case in the trans-Mississippi states, and may serve, in part, to explain the excess of divorces in the far west (Table IX.), the very large proportion granted to wives (Table VIII.), and the fact that in those states suffering wives show less patience than husbands, § 19.

The emancipation of women is closely related to the average age of marrying. Women marry early in those communities where no other vocation is open to them than that of wife and mother. Only sixteen to twenty years of age when she passes out of the control of a father and mother into that of a husband, with no taste of freedom intervening, with a mind and character so unformed as easily to be brought into harmony with or submission to her husband's, with no way of escape open to her after marriage, whatever the law may say, what wonder that the peasant woman of Russia, Ireland or elsewhere shows little inclination to divorce! Where no actual choice is offered, divorce cannot be chosen. Between the cessation of strict parental discipline and the beginning of married life, a period of some length must intervene, in order that a woman may waken to her own equality and independence. Thereafter, any marriage she may contract will be based on equality, not on subjection.

The economic emancipation of women, in the forms it has thus far assumed, is attended by an assimilation of the work of wage-earning women to that of men. Marriage, however, is fundamentally grounded on the differences, physical, intellectual and moral, between the sexes. Consequently a marriage almost invariably recognizes and emphasizes these differences through varieties of work and function. So far as the training of the two sexes prior to marriage has been identical, one or the other must be ill fitted for that life; so far as woman's work has become masculine, her ability to make and keep a home happy is diminished. This result appears most clearly in the wage-earning population, where a girl's marriage is less often a change from one home to another and more often a change from a factory into a home. It is in just these classes that divorce is most frequent. Some confirmation of this conclusion may be drawn from a report of the proceedings of the London Divorce Court quoted by Prof. Robinson.* *Diagnostics of Divorce, Journal of Social Science (Am. Ass.), XIV: (1881), p.