Reform upon a reasonable basis has been made difficult by the unfortunate retention of the idea of delinquency.  With the traditions of the Canonists at the back of our heads we have somehow persuaded ourselves that there cannot be a divorce unless there is a delinquent, a real serious delinquent who, if he had his deserts, would be imprisoned and consigned to infamy.  But in the marriage relationship, as in all other relationships, it is only in a very small number of cases that one party stands towards the other as a criminal, even a defendant.  This is often obvious in the early stages of conjugal alienation.  But it remains true in the end.  The wife commits adultery and the husband as a matter of course assumes the position of plaintiff.  But we do not inquire how it is that he has not so won her love that her adultery is out of the question; such inquiry might lead to the conclusion that the real defendant is the husband.  And similarly when the husband is accused of brutal cruelty the law takes no heed to inquire whether in the infliction of less brutal but not less poignant wounds, the wife also should not be made defendant.  There are a few cases, but only a few, in which the relationship of plaintiff and defendant is not a totally false and artificial relationship, an immoral legal fiction.  In most cases, if the truth were fully known, husband and wife should come side by side to the divorce court and declare:  “We are both in the wrong:  we have not been able to fulfil our engagements to each other; we have erred in choosing each other.”  The long reports of the case in open court, the mutual recriminations, the detectives, the servant girls and other witnesses, the infamous inquisition into intimate secrets—­all these things, which no necessity could ever justify, are altogether unnecessary.

It is said by some that if there were no impediments to divorce a man might be married in succession to half a dozen women.  These simple-minded or ignorant persons do not seem to be aware that even when marriage is absolutely indissoluble a man can, and frequently does, carry on sexual relationships not merely successively, but, if he chooses, even simultaneously, with half a dozen women.  There is, however, this important difference that, in the one case, the man is encouraged by the law to believe that he need only treat at most one of the six women with anything approaching to justice and humanity; in the other case the law insists that he shall fairly and openly fulfil his obligations towards all the six women.  It is a very important difference, and there ought to be no question as to which state of things is moral and which immoral.  It is no concern of the State to inquire into the number of persons with whom a man or a woman chooses to have sexual relationships; it is a private matter which may indeed affect their own finer spiritual development but which it is impertinent for the State to pry into.  It is, however, the concern of the State, in its own collective interest and that of its members, to see that no injustice is done.