already suggested, that in principle the canon law as it existed in Catholic lands before the Council of Trent, and in England until the marriage act of 1753, with a possibility of all of its attendant scandals and hardships, still survives in the United States.[659] The apology of the Middle Ages was found in the sacramental dogma. Matrimony as such, under whatever conditions contracted, was too "holy" to be dissolved or effectively hindered for the ordinary prudential reasons which appeal to the statesman or legislator. Today there is doubtless a lingering tradition of the same false sentiment. Yet the common-law marriage is now supported on two principal grounds. The innocent offspring, we are told, ought not to suffer because the parents have neglected the formalities prescribed by a mere statute. Moreover, to declare an irregular, perhaps a clandestine, union void is to invade the most sacred right of the individual. There is urgent need that the American people should realize the fallacy of such arguments. Far better that the children of a delinquent minority should bear the stain of illegitimacy than that the welfare of the whole social body should be endangered. For the same reason the supposed right of the individual must yield to the higher claims of society. In no part of the whole range of human activity is there such imperative need of state interference and control as in the sphere of the matrimonial relations. In this field as in others we are beginning to see more clearly that the highest individual liberty can be secured only when it is subordinated to the highest social good. It is, however, not merely the public which suffers. "Our common-law marriage fails to protect not only the contracting parties, but also the families to which they belong. Indeed to protect the latter it makes not the least attempt, and in this respect it is far behind the law of Western Europe."[660] As a preliminary to a general reform of our marriage laws as a whole it is earnestly to be desired that every state or territory not already emancipated should enact a statute as clear and decisive as that of Kentucky, Utah, or New York, absolutely repudiating the common-law contract. It is only through legislation that this revolution can be effected. It is not the proper function of the courts to attempt it. It may be that those states which have superseded the common law through judicial interpretation of their statutes have done well. The end has perhaps justified the means. It is quite possible that in those cases it was the intent of the lawmaker to render the statute mandatory. Nevertheless he did not express his intent in the form which has itself become a part of the common law. Chief Justice Parsons and his followers may have been enforcing a "higher law;" but it was a "judge-made" law. History is on the side of Chief Justice Kent and the great number of jurists who have followed him. Moreover, it is evident from the trend of recent decisions that