NEEDED REVISION OF THE LAWS OF 
MARRIAGE AND DIVORCE IN THE 
UNITED STATES. 
BY. DR. R. W. SHUFELDT, U. S. ARMY; MEMBER OF THE 
MEDICO-LEGAL SOCIETY OF NEW YORK CITY, ETC. 
As in so many other social institutions of man’s crea- 
tion, the laws governing that of marriage, as well as those 
enacted to enable the parties to dissolve this contract, or 
the laws of divorce, are of his own making, and conse- 
quently they may, or they may not be the best that could 
be framed in these premises for the accomplishment,of the 
ends which they have in view. Doubtless in many 
instances it can be shown that they are not the 
best; and it happens, as it does so often elsewhere, that 
the laws of man’s enacting work distinctly at cross pur- 
poses with existing natural laws governing the very state, 
which by his eminently artificial and unscientific ones, 
he expects to establish. Often too, it is, that these natural 
laws are either very imperfectly known or understood: or 
if they are, they are entirely ignored. If we take the in- 
stitution of marriage for example, as it is established in 
this and in other countries, it can easily be shown that as 
time passes on, the laws and the statutes relating to it are 
constantly added to, and very frequently become more and 
more complicated and consequently cumbersome and inef- 
fective. But in the meanwhile the natural laws remain 
the same; and as society grows, the useless and burden- 
some legal code and the statutory laws are evaded as much 
as is possible; and in due course the former take preced- 
ence; and a revolt is gradually inaugurated against the 230 
LAWS OF MARRIAGE AND DIVORCE. 
artificial restraints and the restrictions of the latter. From 
a biological point of view then, or what may be otherwise 
considered from the standpoint of the natural law, man is 
but a representative of a family, (.Homidce) of the Vertebrata, 
and so just as much under the operation of certain physio- 
logical and psychological demands of his organization as 
is any other animal of the group. This fact, it would 
seem, is more and more being lost sight of—by society on 
the one hand and our law-makers upon the other—until 
the time has now arrived when the true relations, the 
natural relations, of the two sexes have been so masked 
and distorted by legal machinery, as to be completely 
subordinated. For, fundamentally speaking, the prime 
object of the institution of marriage is to afford the periodi- 
cal opportunity for the satisfying of the imperative de- 
mands of the procreative instinct and the perpetuation of 
the species. Among the very lowest types of men this 
constitutes the sum total of the relation of the sexes, as it 
does in the case of all other forms of vertebrate life. 
During the evolution of man, however, many other rela- 
tions have entered into his estate to very much complicate 
this simple demand of Nature. Among these we have the 
desire on the part of many to establish the home; others 
marry for money and for social position; many women 
marry for a home; some enter the state for natural aid and 
companionship, others to perpetuate a family name, to re- 
tain properties of great value within the family control; 
and for a host of other reasons of all degrees of importance. 
So imperative have many of these factors become, or the 
various combinations of them, that what nature demands, 
both physiologically and psychologically stands in danger 
of being entirely lost sight of; and the consequences are 
now being quite universally felt. For ages past, too, mat- 
ters have been made decidedly worse by the hand which LAWS OF MARRIAGE AND DIVORCE. 
231 
priesthood has been permitted to take in the celebration of 
marriage, and thus forever attaching the superstitious idea 
of sacredness to it, and weaving all through it the baneful 
question of creed and of orthodoxy. What can be more 
absurd than to grant to the members of any calling the 
authority to make valid a contract (of so vital an import), 
that, in the event of a mistake having been committed, 
they are powerless to correct it. The entire matter should 
be taken out of the hands of the church, and brought 
within the jurisdiction of the legal profession; and the 
contracting parties should be made duly to enter into a 
civil contract, which latter may be drawn up to meet the 
special requirements of any particular marriage. It more- 
over should be made perfectly explicit and binding, and 
bear the certificate that the contracting parties are free 
from all mental and bodily defects, or disease of any kind, 
either by heredity or acquired, which might in any way 
give rise to future unhappiness, or be transmitted to their 
progeny. 
This certificate should be testified to and witnessed 
by no less than three physicians. All questions of property, 
of the obedience of the wife, and indeed all matters which 
are now so well known to give rise to dispute after mar- 
riage, may in such an instrument be understood prior to 
the signing thereof. Again in the event of the marriage 
proving an uncongenial one, this contract could likewise 
specify a full agreement in reference to support, division 
of property, control of children (if any), in case the parties 
at any time desired to sever the bond. By such an arrange- 
ment as this, simply hundreds of harrowing divorce suits 
could practically be kept out of the courts altogether, by 
the married pair being held to the requirements of their 
legal contract. In Norway and Sweden, this is partially 
accomplished by trial or by probational marriages; and a 232 
LAWS OF MARRIAGE AND DIVORCE. 
very excellent institution they are, falling as they do more 
within the operation of*natural laws. Parties here may 
marry under definitely prescribed statutes, (in regard to 
property and children) for a period of two years or more, 
and then if the marriage in that time be proven to be a 
true one, it may by a second ceremony, be legalized and 
rendered permanent. An enormous advantage is gained 
by these trial marriages, as they at least, will allow of a 
test of the physiological and psychological organizations 
of the pair; in other words, an opportunity to know whether 
they be sexually affined or not, and that their tempers are 
co7npatable. In short, an “incompatability of temper,” 
means nothing more than the vernacular for the binding 
together of inharmonious psychological elements of organ- 
ization* Rupture follows sooner or later, and common 
minds place it upon entirely different grounds. These 
usually are that one or both parties are laboring under some 
form of immorality of mind, and that their natural polyga- 
mous instincts incline them to frequent change. This I 
believe to be true only in a very small proportion of cases, 
although man by nature is a polygamous animal. Trial 
marriages are eminently sensible in many other particulars, 
as, for example, one of them is likely to demonstrate the 
possibility or the impossibility of the pair having children, 
and whether their progeny are likely to be sound and 
healthy or the reverse. But above all else, they permit a 
recognized opportunity to prove whether the mated ones 
are sexually affined in all particulars;—anatomically, 
physiologically and psychologically. If the truth could be 
known, fully half the unhappy marriages in this country, 
I believe, are due to the fact that the parties are not har- 
moniously affined, sexually ; and if this be the case, then 
it matters not how favorable all the remaining factors or 
features of the marriage may be, unhappiness can only re- LAWS OF MARRIAGE AND DIVORCE. 
233 
suit. This will either terminate in a dissolution of the 
bond of wedlock, or the far less sensible course of “making 
the attempt to smooth the thing over,” just as though that 
were possible when the matter is some radical and per- 
manent defect in organization exemplified in either one 
or both of the parties. 
Thus far, to sum up, then, I would suggest that in refer- 
ence to marriage as an institution, the principal features 
in it which now stand in need of improvement in the 
United States, are, (i), That its solemnization be entirely 
taken out of the hands of the priesthood and church, and 
relegated to the legal profession; (2) That it be made a 
civil contract, explicit in detail, and defining terms of di- 
vorce in the event that a dissolution of the contract is sub- 
sequently desired; (3) That legal precautions, in the form 
of medical attests, be taken to ascertain that the parties 
are free from both hereditary or acquired disease, in order 
to obviate the danger, as far as possible, of propagating 
the same through their descendants; and (4) That trial or 
probationary marriages be instituted, with the enactment 
of the proper laws governing them, and that these laws be 
framed with a due regard for the mental, moral and phy- 
siological organization of the pair to be married. 
In the United States, the ceremony of marriage, and the 
persons empowered to perform it, is tolerably uniform, 
while upon the other hand, constant conflict reigns, owing 
to the interstate inconsistencies in legislation about di- 
vorce, to an extent that is absolutely appalling, and the 
rulings and legal literature upon the subject would make 
a library of thousands of volumes; so it would be, in a 
brief paper like the present one, simply out of the ques- 
tion to discuss any of these harm-breeding inconsistencies 
here. Be it sufficient to say, that the most fortnnate 
event which could happen would be an annulment of all 234 
LAWS OF MARRIAGE AND DfVORCE. 
the divorce laws, and to have an uniform and scientific sys- 
tem enacted by Congress for the guidance of the whole 
country. Indeed, we have come to a pass where some 
such a step seems to be imperative, or else the people will 
cast off the yoke entirely by common consent, as it once 
happened in Roman history, where marriage came to be 
regarded as a voluntary union, and divorces could be se- 
cured at any time, merely by the agreement of the wedded 
parties. Then, as with us now, immorality only stepped 
in, and became dominant, when, at “a later period, Justin- 
ian enacted that persons dissolving a marriage by mutual 
consent should forfeit all their property, and be confined 
for life to a monastery, which was to receive a third of the 
forfeited property, the remaining two-thirds going to the 
children of the marriage. This severity, so much at vari- 
ance with the Roman spirit, indicates the growing power 
of the clergy, (ut non Dei judiciam contemnatur).” (Hun- 
ter’s Roman Law, p. 500). 
The effect of the complete abolition ot the divorce laws 
has already been discussed by me in The Humanitarian 
for May, 1896, (p. 360), where it was shown that a recog- 
nized system of concubinage is the result where that ob- 
tains. But concubinage does not consist in immorality— 
indeed, it is diametrically opposed to it, and its best rem- 
edy. The moral standard in any country is never so good 
as when that country either makes divorce extremely easy, 
as was the case in Rome, or denies it entirely, as it is now 
enacted in the State of South Carolina. And, vice versa, 
the morals of a country were at their lowest ebb, where 
the tribunals of that country insist upon the obtaining of 
a divorce to be a legal procedure, fraught with the greatest 
difficulty, expense, and hardship. It is then that bigamy, 
adultery, the greatest enemy of the true home, and prosti- 
tution, the handmaiden of drunkenness, vice, and disease, 235 
LAWS OF MARRIAGE AND DIVORCE. 
step in, and militate against the good morals of a country. 
These are but other examples; however, where man in his 
ignorance ignores the imperative laws and demands of 
nature, and essays to regulate matters by the enactment of 
a drumhead code, in a complete conflict with them. Nei- 
ther public decorum nor individual comfort is served or 
benefited, and experience shows that this has invariably 
been the result. 
Here in America we are moving with extreme rapidity 
along certain lines; and the student of our social organi- 
zation must indeed be blind if he fails to recognize the 
revolution which is now in progress, involving the entire 
question of marriage and divorce. 
It constitutes the constant theme of discussion in the 
majority of our best magazines ; lecturers bring the mat- 
ter before large audiences continually; men and women 
discuss it in a way among themselves that it never has 
been discussed in the country before; and the illustrated 
papers, devoted to humor and to cartooning never let 
a opportunity pass without showing up the inconsis- 
tencies of marriage as now ordered, and the frivolties 
indulged in by those contemplating wedlock. Our daily 
papers absolutely reek with their long array of accounts 
of divorces, of adulteries, of bigamies, of elopements, of 
infidelities, and of many more kinds most various, but all 
going to point to the fact that there is something radically 
wrong somewhere. 
The distinguished novelist, Marion Crawford, has re- 
cently taken up the subject in the Century Magazine; but 
the present writer in no way agrees with the conclusions 
arrived at by him. In calling attention to the “Increase 
of Divorce” in the United States, he says : “Every one 
can remember how divorce was spoken of and thought of 
until very recently; Within a few years it was deemed to 236 
LAWS OF MARRIAGE AND DIVORCE. 
be something very like a disgrace, and certainly a pro- 
foundly cynical and immoral proceeding. To-day we can 
most of us count in our own acquaintances half a dozen 
persons who have been divorced and been married again. 
* * * * In wdiat calls itself society there seems still 
to be a prejudice against a third marriage for divorced per- 
sons; blit at the present rate of advance in civilization 
this cannot last long; and the old significance of the word 
“marriage” will be quite lost before our youngest grand- 
children are dead—in other words, by the end of the next 
century at the farthest. 
•‘There are various forms of honorable political dream- 
ing and of dishonorable political mischief-making now-a 
days, which we are accustomed to call collectively “social- 
ism.” Most of these rely for their hope of popular suc- 
cess upon their avowed intention of dividing property, 
and of preventing its subsequent accummulation. Mar- 
riage is an incentive of such accummulation, because it 
perpetuates families, and therefore keeps property together 
by inheritance. Therefore all forms of socialism are at 
present in favor of divorce, as a means of ultimately de- 
stroying marriage altogether. A proverb says, that who- 
soever desires the end, desires also the means. There is 
more truth in the saying than morality in the point of 
view which it expresses. But there are some who desire 
neither the means nor the end to which they lead; and a 
struggle is coming the like of which has not been seen 
since the beginning of the world, and of which we who 
are now alive shall not see the termination.” 
Very likely the socialist is in favor of divorce, and the 
ultimate abolition of marriage as now constituted; but if 
Mr. Crawford will take the back numbers of a month of 
any of our large dailies, and will carefully analyze the 
hundred and one divorces granted, which he will surely LAWS OF MARRIAGE AND DIVORCE. 
237 
find therein, the fact will at once become evident to him 
that socialism has, as yet at least, but little or nothing to 
do with the enormous increase of divorce in the United 
) 
States. Upon the whole we are a right-thinking and a 
right-acting people; and moreover, we think a good deal 
and act largely in harmony; and the increase of divorce, 
and the ease with which it is obtained is doubtless a sensi- 
ble step in the proper direction, leading to something bet- 
ter in our organization as a people. 
Not long ago the writer was present at a very distin- 
guished gathering of men here in Washington, some 
three hundred or more being present. Most of these gen- 
tlemen were authors of international reputation, and repre- 
sented nearly every line of thought, and filled positions of 
marked distinction. Few were advocates perhaps of the 
more tempered propositions of our modern socialistic 
school, but the majority certainly were not. A friend near 
to me called my attention to the fact of the number pres- 
ent who were known to be living unhappily with their 
spouses ; several had separated; one was in court with a 
divorce suit; two within conversational distance were di- 
vorced from their first or their second wives ; and a dozen 
or more men past fifty, modern philosophers in their days, 
had never married at all. Surely socialism would offer 
here but a poor solution for a state of affairs, which in a 
similar body of men, twenty years ago, would absolutely 
be an unheard-of one ; for at that time the divorced man 
was in the public eye some sort of a blackleg, instead of 
being a person endowed with the best of good sense, as he 
is now generally regarded. 
Honest, pure, and true love of a noble man for a worthy 
woman, and of a noble woman for a worthy man, is no 
rarer in the world to-day than it has been at any time in 
its history; through all the vicissitudes of man’s career on 238 
LAWS OF MARRIAGE AND DIVORCE. 
earth, we have every reason to believe that this, the sover- 
eign queen of all the emotions, has never changed, and 
never will for many an age to come. Love would exist in 
the world to-day, just as pure and just as enduring, had 
man never invented marriage; and, moreover, the instinc- 
tive love which the genuine mother has for her children, 
would to-day be fully as strong, and she would with undi- 
minished fearlessness be as quick to defend them against 
danger, or even die for them, had this invention never 
been instituted. Hosts of fathers too, would likewise have 
been found with the corresponding paternal instincts quite 
as well pronounced, had they not been ligatured to their 
mates by the permission of the priesthood. In short, had 
marriage never came into being, there would have been 
to day just as much real love in the world, and probably 
ten thousand fold less crime and disease. Truly affined 
mates would have remained faithful to each other as long 
as life lasted, as do those who chance to be truly married 
at the present time. Criminal abortion would have un- 
doubtedly been the rarest of occurrences, instead of one of 
fearful frequency, being performed perhaps hundreds of 
times every month in any large city, where the present 
form of Christian marriage is in vogue. The polygamous 
instincts of man, and the corresponding ones in a certain 
proportion of women would probably have been exercised 
precisely as they are now, but as these are inborn and 
natural they would have been very differently regarded. 
It is only when men attempt to improve upon nature that 
crime, disease, and unhappiness, without end, steps in. 
Mark, you, I weigh my words well, when I say that a 
good part of the alcoholism now brutalizing mankind, the 
curse of prostitution and induced abortion, with the terri- 
ble train of diseases that follow in their wake, a large pro- 
portion of the cases of insanity and of psychopathia sexu- LAWS OF MARRIAGE AND DIVORCE. 
239 
alis, are, and much else besides, due entirely to the perver- 
sion, the bridling, and the distortion of the normal sexual 
instincts of our race, and this has been in history princi- 
pally accomplished through the false notions and the 
operations of the Church and the Courts of Law. These 
operations, however, have very rarely been done with mal- 
ice aforethought, but rather through the promptings of 
superstition, the dictates of ignorance and lack of knowl- 
edge of natural laws. Within recent years science has 
shed a perfect flood of light into many of the darkest 
recesses of the mind of mankind, which has resulted in a 
better understanding of a great deal that was before ob- 
scure and very imperfectly known. No abatement is evi- 
denced along such lines in these days, but rather a marvel- 
ous acceleration everywhere ; and when our conceptions of 
what that life means, and we appreciate more fully that, 
after all, nature is really the safest guide in everything, 
why then will quickly come about an improvement and a 
change in the now false attitude that the sexes are com- 
pelled to assume toward each other in all that pertains to 
affairs conjugal. 
[Reprint from Medico-LEGae Journal, December Number, 1897.]