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Our zealous New Thought friends, who clamor to have marriage made difficult and divorce easy, forget that the whole question has been threshed over for three thousand years, and all schemes tried. The Romans issued marriage-licenses, but before doing so a pretor passed on the fitness of the candidates for each other. This was so embarrassing to many coy couples that they just waived formal proceedings and set up housekeeping. To declare these people lawbreakers, Marcus Aurelius said, would put half of Rome in limbo, just as, if we should technically enforce all laws, it would send most members of the Legislature to the penitentiary. So the Emperor declared de-facto marriage de jure, and for a short time succeeded in striking out the word illegitimate as applied to a person, on the ground that, in justice, no act of a parent could be charged up against and punished in the offspring.

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Men who make laws have forever to watch most closely and dance attendance on Nature. Laws which fly in the face of Nature are gently waived or conveniently forgotten. Should Chief Justice Fuller issue an injunction restraining all men from coming within a quarter of a mile of a woman, on penalty of death, we would all place ourselves in contempt in an hour; and should the army try to enforce the order, we would smother Justice Fuller in his wool-sack and hang his effigy on a sour-apple tree. Law isn’t worth the paper it is written on unless it embodies the will and natural tendencies of the governed. Where poaching is popular, no law can stop it. Marriage is easy, and divorce difficult, because this is Nature’s plan. The natural law of attraction brings men and women together, and it is difficult to separate them. Natural things are easy, and artificial ones difficult. Most couples who desire freedom only think they do: what they really want is a vacation; but they would not separate for good if they could. It is hard to part–people who have lived together grow to need each other. They want some one to quarrel with.

Caesar Augustus, in his close study of character, introduced a limited divorce. That is, in case of a family quarrel, he ordered the couple to live apart for six months as a penalty. Quintilian says that usually before the expired time the man and woman were surreptitiously living together again, at which the court quietly winked, and finally this form of penalty had to be abandoned because it made the courts ridiculous.

Men and women do not get married because marriage is legal, nor do they continue living together because divorce is difficult. They marry because they desire to, and they do not separate because they do not want to. The task that confronts the legislator is to find out what the people want to do, and then legalize it.

In Rome, the custom of the parties divorcing themselves was prevalent, and the courts were called upon to ratify the act, just to give the matter respectability. Below a certain stratum in society, the formality of legal marriage and divorce was waived entirely, just as it is largely, now, among our colored population in the South. During the French Revolution, the same custom largely obtained in France. And about the year One Hundred Fifty in Rome there was danger that the people would overlook the majesty of the law entirely in their domestic affairs. This condition is what prompted Marcus Aurelius to recognize as legal the common-law marriage and say if a couple called themselves husband and wife, they were. And for a time, if they said they were divorced, they were. But as a mortgage owned by a man on his own property cancels the debt, and legally there is no mortgage, so if the people could get married at will and divorce themselves at their convenience, there really was no legal marriage. Thus the matter was argued. So Marcus adopted the plan of making marriage easy and divorce difficult, and this has been the policy in all civilized countries ever since.