It is also believed by many that women will realize that a high degree of

moral responsibility is not easily compatible with the practice of

dissimulation and that economic independence will deprive deceit--which is

always the resort of the weak--of whatever moral justification it may

possess. Here, however, it is necessary to speak with caution or we may be

unjust to women. It must be remarked that in the sphere of sex men also

are often the weak, and are therefore apt to resort to the refuge of the

weak. With the recognition of that fact we may also recognize that

deception in women has been the cause of much of the age-long blunders of

the masculine mind in the contemplation of feminine ways. Men have

constantly committed the double error of overlooking the dissimulation of

women and of over-estimating it. This fact has always served to render

more difficult still the inevitably difficult course of women through the

devious path of sexual behavior. Pepys, who represents so vividly and so

frankly the vices and virtues of the ordinary masculine mind, tells how

one day when he called to see Mrs. Martin her sister Doll went out for a

bottle of wine and came back indignant because a Dutchman had pulled her

into a stable and tumbled and tossed her. Pepys having been himself often

permitted to take liberties with her, it seemed to him that her

indignation with the Dutchman was "the best instance of woman's falseness

in the world."[307] He assumes without question that a woman who has

accorded the privilege of familiarity to a man she knows and, one hopes,

respects, would be prepared to accept complacently the brutal attentions

of the first drunken stranger she meets in the street.

It was the assumption of woman's falseness which led the ultra-masculine

Pepys into a sufficiently absurd error. At this point, indeed, we

encounter what has seemed to some a serious obstacle to the full moral

responsibility of women. Dissimulation, Lombroso and Ferrero argue, is in

woman "almost physiological," and they give various grounds for this

conclusion.[308] The theologians, on their side, have reached a similar

conclusion. "A confessor must not immediately believe a woman's words,"

says Father Gury, "for women are habitually inclined to lie."[309] This

tendency, which seems to be commonly believed to affect women as a sex,

however free from it a vast number of individual women are, may be said,

and with truth, to be largely the result of the subjection of women and

therefore likely to disappear as that subjection disappears. In so far,

however, as it is "almost physiological," and based on radical feminine

characters, such as modesty, affectability, and sympathy, which have an

organic basis in the feminine constitution and can therefore never

altogether be changed, feminine dissimulation seems scarcely likely to

disappear. The utmost that can be expected is that it should be held in

check by the developed sense of moral responsibility, and, being reduced

to its simply natural proportions, become recognizably intelligible.

It is unnecessary to remark that there can be no question here as

to any inherent moral superiority of one sex over the other. The

answer to that question was well stated many years ago by one of

the most subtle moralists of love. "Taken altogether," concluded

Sénancour (_De l'Amour_, vol. ii, p. 85), "we have no reason to

assert the moral superiority of either sex. Both sexes, with

their errors and their good intentions, very equally fulfil the

ends of nature. We may well believe that in either of the two

divisions of the human species the sum of evil and that of good

are about equal. If, for instance, as regards love, we oppose the

visibly licentious conduct of men to the apparent reserve of

women, it would be a vain valuation, for the number of faults

committed by women with men is necessarily the same as that of

men with women. There exist among us fewer scrupulous men than

perfectly honest women, but it is easy to see how the balance is

restored. If this question of the moral preëminence of one sex

over the other were not insoluble it would still remain very

complicated with reference to the whole of the species, or even

the whole of a nation, and any dispute here seems idle."

This conclusion is in accordance with the general compensatory

and complementary relationship of women to men (see, e.g.,

Havelock Ellis, _Man and Woman_, fourth edition, especially pp.

448 et seq.).

In a recent symposium on the question whether women are morally

inferior to men, with special reference to aptitude for loyalty

(_La Revue_, Jan. 1, 1909), to which various distinguished French

men and women contributed their opinions, some declared that

women are usually superior; others regarded it as a question of

difference rather than of superiority or inferiority; all were

agreed that when they enjoy the same independence as men, women

are quite as loyal as men.

It is undoubtedly true that--partly as a result of ancient traditions and

education, partly of genuine feminine characteristics--many women are

diffident as to their right to moral responsibility and unwilling to

assume it. And an attempt is made to justify their attitude by asserting

that woman's part in life is naturally that of self-sacrifice, or, to put

the statement in a somewhat more technical form, that women are naturally

masochistic; and that there is, as Krafft-Ebing argues, a natural "sexual

subjection" of woman. It is by no means clear that this statement is

absolutely true, and if it were true it would not serve to abolish the

moral responsibility of women.

Bloch (_Beiträge zur Ætiologie der Psychopathia Sexualis_, Part

II, p. 178), in agreement with Eulenburg, energetically denies

that there is any such natural "sexual subjection" of women,

regarding it as artificially produced, the result of the socially

inferior position of women, and arguing that such subjection is

in much higher degree a physiological characteristic of men than

of women. (It has been necessary to discuss this question in

dealing with "Love and Pain" in the third volume of these

_Studies_.) It seems certainly clear that the notion that women

are especially prone to self-sacrifice has little biological

validity. Self-sacrifice by compulsion, whether physical or moral

compulsion, is not worthy of the name; when it is deliberate it

is simply the sacrifice of a lesser good for the sake of a

greater good. Doubtless a man who eats a good dinner may be said

to "sacrifice" his hunger. Even within the sphere of traditional

morality a woman who sacrifices her "honor" for the sake of her

love to a man has, by her "sacrifice," gained something that she

values more. "What a triumph it is to a woman," a woman has said,

"to give pleasure to a man she loves!" And in a morality on a

sound biological basis no "sacrifice" is here called for. It may

rather be said that the biological laws of courtship

fundamentally demand self-sacrifice of the male rather than of

the female. Thus the lioness, according to Gérard the

lion-hunter, gives herself to the most vigorous of her lion

wooers; she encourages them to fight among themselves for

superiority, lying on her belly to gaze at the combat and lashing

her tail with delight. Every female is wooed by many males, but

she only accepts one; it is not the female who is called upon for

erotic self-sacrifice, but the male. That is indeed part of the

divine compensation of Nature, for since the heavier part of the

burden of sex rests on the female, it is fitting that she should

be less called upon for renunciation.

It thus seems probable that the increase of moral responsibility may tend

to make a woman's conduct more intelligible to others;[310] it will in any

case certainly tend to make it less the concern of others. This is

emphatically the case as regards the relations of sex. In the past men

have been invited to excel in many forms of virtue; only one virtue has

been open to women. That is no longer possible. To place upon a woman the

main responsibility for her own sexual conduct is to deprive that conduct

of its conspicuously public character as a virtue or a vice. Sexual union,

for a woman as much as for a man, is a physiological fact; it may also be

a spiritual fact; but it is not a social act. It is, on the contrary, an

act which, beyond all other acts, demands retirement and mystery for its

accomplishment. That indeed is a general human, almost zoölogical, fact.

Moreover, this demand of mystery is more especially made by woman in

virtue of her greater modesty which, we have found reason to believe, has

a biological basis. It is not until a child is born or conceived that the

community has any right to interest itself in the sexual acts of its

members. The sexual act is of no more concern to the community than any

other private physiological act. It is an impertinence, if not an outrage,

to seek to inquire into it. But the birth of a child is a social act. Not

what goes into the womb but what comes out of it concerns society. The

community is invited to receive a new citizen. It is entitled to demand

that that citizen shall be worthy of a place in its midst and that he

shall be properly introduced by a responsible father and a responsible

mother. The whole of sexual morality, as Ellen Key has said, revolves

round the child.

At this final point in our discussion of sexual morality we may perhaps be

able to realize the immensity of the change which has been involved by the

development in women of moral responsibility. So long as responsibility

was denied to women, so long as a father or a husband, backed up by the

community, held himself responsible for a woman's sexual behavior, for

her "virtue," it was necessary that the whole of sexual morality should

revolve around the entrance to the vagina. It became absolutely essential

to the maintenance of morality that all eyes in the community should be

constantly directed on to that point, and the whole marriage law had to be

adjusted accordingly. That is no longer possible. When a woman assumes her

own moral responsibility, in sexual as in other matters, it becomes not

only intolerable but meaningless for the community to pry into her most

intimate physiological or spiritual acts. She is herself directly

responsible to society as soon as she performs a social act, and not

before.

In relation to the fact of maternity the realization of all that is

involved in the new moral responsibility of women is especially

significant. Under a system of morality by which a man is left free to

accept the responsibility for his sexual acts while a woman is not equally

free to do the like, a premium is placed on sexual acts which have no end

in procreation, and a penalty is placed on the acts which lead to

procreation. The reason is that it is the former class of acts in which

men find chief gratification; it is the latter class in which women find

chief gratification. For the tragic part of the old sexual morality in its

bearing on women was that while it made men alone morally responsible for

sexual acts in which both a man and a woman took part, women were rendered

both socially and legally incapable of availing themselves of the fact of

masculine responsibility unless they had fulfilled conditions which men

had laid down for them, and yet refrained from imposing upon themselves.

The act of sexual intercourse, being the sexual act in which men found

chief pleasure, was under all circumstances an act of little social

gravity; the act of bringing a child into the world, which is for women

the most massively gratifying of all sexual acts, was counted a crime

unless the mother had before fulfilled the conditions demanded by man.

That was perhaps the most unfortunate and certainly the most unnatural of

the results of the patriarchal regulation of society. It has never existed

in any great State where women have possessed some degree of regulative

power.

It has, of course, been said by abstract theorists that women

have the matter in their own hands. They must never love a man

until they have safely locked him up in the legal bonds of

matrimony. Such an argument is absolutely futile, for it ignores

the fact that, while love and even monogamy are natural, legal

marriage is merely an external form, with a very feeble power of

subjugating natural impulses, except when those impulses are

weak, and no power at all of subjugating them permanently.

Civilization involves the growth of foresight, and of

self-control in both sexes; but it is foolish to attempt to place

on these fine and ultimate outgrowths of civilization a strain

which they could never bear. How foolish it is has been shown,

once and for all, by Lea in his admirable _History of Sacerdotal

Celibacy_.

Moreover, when we compare the respective aptitudes of men and

women in this particular region, it must be remembered that men

possess a greater power of forethought and self-control than

women, notwithstanding the modesty and reserve of women. The

sexual sphere is immensely larger in women, so that when its

activity is once aroused it is much more difficult to master or

control. (The reasons were set out in detail in the discussion of

"The Sexual Impulse in Women" in volume iii of these _Studies_.)

It is, therefore, unfair to women, and unduly favors men, when

too heavy a premium is placed on forethought and self-restraint

in sexual matters. Since women play the predominant part in the

sexual field their natural demands, rather than those of men,

must furnish the standard.

With the realization of the moral responsibility of women the natural

relations of life spring back to their due biological adjustment.

Motherhood is restored to its natural sacredness. It becomes the concern

of the woman herself, and not of society nor of any individual, to

determine the conditions under which the child shall be conceived. Society

is entitled to require that the father shall in every case acknowledge the

fact of his paternity, but it must leave the chief responsibility for all

the circumstances of child-production to the mother. That is the point of

view which is now gaining ground in all civilized lands both in theory and

in practice.[311]

FOOTNOTES:

[257] E.g., E. Belfort Bax, _Outspoken Essays_, p. 6.

[258] Such reasons are connected with communal welfare. "All immoral acts

result in communal unhappiness, all moral acts in communal happiness," as

Prof. A. Mathews remarks, "Science and Morality," _Popular Science

Monthly_, March, 1909.

[259] See Westermarck, _Origin and Development of the Moral Ideas_, vol.

i, pp. 386-390, 522.

[260] Westermarck, _Origin and Development of the Moral Ideas_, pp. 9,

159; also the whole of Ch. VII. Actions that are in accordance with custom

call forth public approval, actions that are opposed to custom call forth

public resentment, and Westermarck powerfully argues that such approval

and such resentment are the foundation of moral judgments.

[261] This is well recognized by legal writers (e.g., E.A. Schroeder, _Das

Recht in der Geschlechtlichen Ordnung_, p. 5).

[262] W.G. Sumner (_Folkways_, p. 418) even considers it desirable to

change the form of the word in order to emphasize the real and fundamental

meaning of morals, and proposes the word _mores_ to indicate "popular

usages and traditions conducive to societal reform." "'Immoral,'" he

points out, "never means anything but contrary to the _mores_ of the time

and place." There is, however, no need whatever to abolish or to

supplement the good old ancient word "morality," so long as we clearly

realize that, on the practical side, it means essentially custom.

[263] Westermarck, op. cit., vol. i, p. 19.

[264] See, e.g., "Exogamy and the Mating of Cousins," in _Essays Presented

to E.B. Tylor_, 1907, p. 53. "In many departments of primitive life we

find a naïve desire to, as it were, assist Nature, to affirm what is

normal, and later to confirm it by the categorical imperative of custom

and law. This tendency still flourishes in our civilized communities, and,

as the worship of the normal, is often a deadly foe to the abnormal and

eccentric, and too often paralyzes originality."

[265] The spirit of Christianity, as illustrated by Paulinus, in his

_Epistle XXV_, was from the Roman point of view, as Dill remarks (_Roman

Society_, p. 11), "a renunciation, not only of citizenship, but of all the

hard-won fruits of civilization and social life."

[266] It thus happens that, as Lecky said in his _History of European

Morals_, "of all the departments of ethics the questions concerning the

relations of the sexes and the proper position of woman are those upon the

future of which there rests the greatest uncertainty." Some progress has

perhaps been made since these words were written, but they still hold true

for the majority of people.

[267] Concerning economic marriage as a vestigial survival, see, e.g.,

Bloch, _The Sexual Life of Our Time_, p. 212.

[268] Sénancour, _De l'Amour_, vol. ii, p. 233. The author of _The

Question of English Divorce_ attributes the absence of any widespread

feeling against sexual license to the absurd rigidity of the law.

[269] Bruno Meyer, "Etwas von Positiver Sexualreform," _Sexual-Probleme_,

Nov., 1908.

[270] Elsie Clews Parsons, _The Family_, p. 351. Dr. Parsons rightly

thinks such unions a social evil when they check the development of

personality.

[271] For evidence regarding the general absence of celibacy among both

savage and barbarous peoples, see, e.g., Westermarck, _History of Human

Marriage_, Ch. VII.

[272] There are, for instance, two millions of unmarried women in France,

while in Belgium 30 per cent, of the women, and in Germany sometimes even

50 per cent, are unmarried.

[273] Such a position would not be biologically unreasonable, in view of

the greatly preponderant part played by the female in the sexual process

which insures the conservation of the race. "If the sexual instinct is

regarded solely from the physical side," says D.W.H. Busch (_Das

Geschlechtsleben des Weibes_, 1839, vol. i, p. 201), "the woman cannot be

regarded as the property of the man, but with equal and greater reason the

man may be regarded as the property of the woman."

[274] Herodotus, Bk. i, Ch. CLXXIII.

[275] That power and relationship are entirely distinct was pointed out

many years ago by L. von Dargun, _Mutterrecht und Vaterrecht_, 1892.

Westermarck (_Origin and Development of the Moral Ideas_, vol. i, p. 655),

who is inclined to think that Steinmetz has not proved conclusively that

mother-descent involves less authority of husband over wife, makes the

important qualification that the husband's authority is impaired when he

lives among his wife's kinsfolk.

[276] Robertson Smith, _Kinship and Marriage in Early Arabia_; J.G. Frazer

has pointed out (_Academy_, March 27, 1886) that the partially Semitic

peoples on the North frontier of Abyssinia, not subjected to the

revolutionary processes of Islam, preserve a system closely resembling

_beena_ marriage, as well as some traces of the opposite system, by

Robertson Smith called _ba'al_ marriage, in which the wife is acquired by

purchase and becomes a piece of property.

[277] Spencer and Gillen, _Northern Tribes of Central Australia_, p. 358.

[278] Rhys and Brynmor-Jones, _The Welsh People_, pp. 55-6; cf. Rhys,

_Celtic Heathendom_, p. 93.

[279] Rhys and Brynmor-Jones, op. cit., p. 214.

[280] Crawley (_The Mystic Rose_, p. 41 et seq.) gives numerous instances.

[281] Revillout, "La Femme dans l'Antiquité," _Journal Asiatique_, 1906,

vol. vii, p. 57. See, also, Victor Marx, _Beiträge zur Assyriologie_,

1899, Bd. iv, Heft 1.

[282] Donaldson, _Woman_, pp. 196, 241 et seq. Nietzold, (_Die Ehe in_

"_Agypten_," p. 17), thinks the statement of Diodorus that no children

were illegitimate, needs qualification, but that certainly the

illegitimate child in Egypt was at no social disadvantage.

[283] Amélineau, _La Morale Egyptienne_, p. 194; Hobhouse, _Morals in

Evolution_, vol. i, p. 187; Flinders Petrie, _Religion and Conscience in

Ancient Egypt_, pp. 131 et seq.

[284] Maine, _Ancient Law_, Ch. V.

[285] Donaldson, _Woman_, pp. 109, 120.

[286] _Mercator_, iv, 5.

[287] Digest XLVIII, 13, 5.

[288] Hobhouse, _Morals in Evolution_, vol. i, p. 213.

[289] For an account of the work of some of the less known of these

pioneers, see a series of articles by Harriet McIlquham in the

_Westminster Review_, especially Nov., 1898, and Nov., 1903.

[290] The influence of Christianity on the position of women has been well

discussed by Lecky, _History of European Morals_, vol. ii, pp. 316 et

seq., and more recently by Donaldson, _Woman_, Bk. iii.

[291] Migne, _Patrologia_, vol. clviii, p. 680.

[292] Rosa Mayreder, "Einiges über die Starke Faust," _Zur Kritik der

Weiblichkeit_, 1905.

[293] Rasmussen (_People of the Polar North_, p. 56), describes a

ferocious quarrel between husband and wife, who each in turn knocked the

other down. "Somewhat later, when I peeped in, they were lying

affectionately asleep, with their arms around each other."

[294] Hobhouse, _Morals in Evolution_, vol. ii, p. 367. Dr. Stöcker, in

_Die Liebe und die Frauen_, also insists on the significance of this

factor of personal responsibility.

[295] Olive Schreiner has especially emphasized the evils of parasitism

for women. "The increased wealth of the male," she remarks ("The Woman's

Movement of Our Day," _Harper's Bazaar_, Jan., 1902), "no more of

necessity benefits and raises the female upon whom he expends it, than the

increased wealth of his mistress necessarily benefits, mentally or

physically, a poodle, because she can then give him a down cushion in

place of one of feathers, and chicken in place of beef." Olive Schreiner

believes that feminine parasitism is a danger which really threatens

society at the present time, and that if not averted "the whole body of

females in civilized societies must sink into a state of more or less

absolute dependence."

[296] In Rome and in Japan, Hobhouse notes (op. cit., vol. i, pp. 169,

176), the patriarchal system reached its fullest extension, yet the laws

of both these countries placed the husband in a position of practical

subjugation to a rich wife.

[297] Herodotus, Bk. ii, Ch. XXXV. Herodotus noted that it was the woman

and not the man on whom the responsibility for supporting aged parents

rested. That alone involved a very high economic position of women. It is

not surprising that to some observers, as to Diodorus Siculus, it seemed

that the Egyptian woman was mistress over her husband.

[298] Hobhouse (loc. cit.), Hale, and also Grosse, believe that good

economic position of a people involves high position of women. Westermarck

(_Moral Ideas_, vol. i, p. 661), here in agreement with Olive Schreiner,

thinks this statement cannot be accepted without modification, though

agreeing that agricultural life has a good effect on woman's position,

because they themselves become actively engaged in it. A good economic

position has no real effect in raising woman's position, unless women

themselves take a real and not merely parasitic part in it.

[299] Westermarck (_Moral Ideas_, vol. i, Ch. XXVI, vol. ii, p. 29) gives

numerous references with regard to the considerable proprietary and other

privileges of women among savages which tend to be lost at a somewhat

higher stage of culture.

[300] The steady rise in the proportion of women among English workers in

machine industries began in 1851. There are now, it is estimated, three

and a half million women employed in industrial occupations, beside a

million and a half domestic servants. (See for details, James Haslam, in a

series of papers in the _Englishwoman_ 1909.)

[301] See, e.g., J.A. Hobson, _The Evolution of Modern Capitalism_, second

edition, 1907, Ch. XII, "Women in Modern Industry."

[302] Hobhouse, op. cit., vol. i, p. 228.

[303] Fielding, _Tom Jones_, Bk. iii, Ch. VII.

[304] Even the Church to some extent adopted this allotment of the

responsibility, and "solicitation," i.e., the sin of a confessor in

seducing his female penitent, is constantly treated as exclusively the

confessor's sin.

[305] Adolf Gerson, _Sexual-Probleme_, Sept., 1908, p. 547.

[306] It has already been necessary to refer to the unfortunate results

which may follow the ignorance of husbands (see, e.g., "The Sexual Impulse

in Women," vol. iii of these _Studies_), and will be necessary again in

Ch. XI of the present volume.

[307] Pepys, _Diary_, ed. Wheatley, vol. vii, p. 10.

[308] Lombroso and Ferrero, _La Donna Delinquente_; cf. Havelock Ellis,

_Man and Woman_, fourth edition, p. 196.

[309] Gury, _Théologie Morale_, art. 381.

[310] "Men will not learn what women are," remarks Rosa Mayreder (_Zur

Kritik der Weiblichkeit_, p. 199), "until they have left off prescribing

what they ought to be."

[311] It has been set out, for instance, by Professor Wahrmund in _Ehe und

Eherecht_, 1908. I need scarcely refer again to the writings of Ellen Key,

which may be said to be almost epoch-making in their significance,

especially (in German translation) _Ueber Liebe und Ehe_ (also French

translation), and (in English translation, Putnam, 1909), the valuable,

though less important work, _The Century of the Child_. See also Edward

Carpenter, _Love's Coming of Age_; Forel, _Die Sexuelle Frage_ (English

translation, abridged, _The Sexual Question_, Rebman, 1908); Bloch,

_Sexualleben unsere Zeit_ (English translation, _The Sexual Life of Our

Time_, Rebman, 1908); Helene Stöcker, _Die Liebe und die Frauen_, 1906;

and Paul Lapie, _La Femme dans la Famille_, 1908.

CHAPTER X.

MARRIAGE.

The Definition of Marriage--Marriage Among Animals--The Predominance of

Monogamy--The Question of Group Marriage--Monogamy a Natural Fact, Not

Based on Human Law--The Tendency to Place the Form of Marriage Above the

Fact of Marriage--The History of Marriage--Marriage in Ancient

Rome--Germanic Influence on Marriage--Bride-Sale--The Ring--The Influence

of Christianity on Marriage--The Great Extent of This Influence--The

Sacrament of Matrimony--Origin and Growth of the Sacramental

Conception--The Church Made Marriage a Public Act--Canon Law--Its Sound

Core--Its Development--Its Confusions and Absurdities--Peculiarities of

English Marriage Law--Influence of the Reformation on Marriage--The

Protestant Conception of Marriage as a Secular Contract--The Puritan

Reform of Marriage--Milton as the Pioneer of Marriage Reform--His Views on

Divorce--The Backward Position of England in Marriage Reform--Criticism of

the English Divorce Law--Traditions of the Canon Law Still Persistent--The

Question of Damages for Adultery--Collusion as a Bar to

Divorce--Divorce in France, Germany, Austria, Russia, etc.--The United

States--Impossibility of Deciding by Statute the Causes for

Divorce--Divorce by Mutual Consent--Its Origin and Development--Impeded by

the Traditions of Canon Law--Wilhelm von Humboldt--Modern Pioneer

Advocates of Divorce by Mutual Consent--The Arguments Against Facility of

Divorce--The Interests of the Children--The Protection of Women--The

Present Tendency of the Divorce Movement--Marriage Not a Contract--The

Proposal of Marriage for a Term of Years--Legal Disabilities and

Disadvantages in the Position of the Husband and the Wife--Marriage Not a

Contract But a Fact--Only the Non-Essentials of Marriage, Not the

Essentials, a Proper Matter for Contract--The Legal Recognition of

Marriage as a Fact Without Any Ceremony--Contracts of the Person Opposed

to Modern Tendencies--The Factor of Moral Responsibility--Marriage as an

Ethical Sacrament--Personal Responsibility Involves Freedom--Freedom the

Best Guarantee of Stability--False Ideas of Individualism--Modern Tendency

of Marriage--With the Birth of a Child Marriage Ceases to be a Private

Concern--Every Child Must Have a Legal Father and Mother--How This Can be

Effected--The Firm Basis of Monogamy--The Question of Marriage

Variations--Such Variations Not Inimical to Monogamy--The Most Common

Variations--The Flexibility of Marriage Holds Variations in

Check--Marriage Variations _versus_ Prostitution--Marriage on a Reasonable

and Humane Basis--Summary and Conclusion.

The discussion in the previous chapter of the nature of sexual morality,

with the brief sketch it involved of the direction in which that morality

is moving, has necessarily left many points vague. It may still be asked

what definite and precise forms sexual unions are tending to take among

us, and what relation these unions bear to the religious, social, and

legal traditions we have inherited. These are matters about which a very

considerable amount of uncertainty seems to prevail, for it is not unusual

to hear revolutionary or eccentric opinions concerning them.

Sexual union, involving the cohabitation, temporary or permanent, of two

or more persons, and having for one of its chief ends the production and

care of offspring, is commonly termed marriage. The group so constituted

forms a family. This is the sense in which the words "marriage" and the

"family" are most properly used, whether we speak of animals or of Man.

There is thus seen to be room for variation as regards both the time

during which the union lasts, and the number of individuals who form it,

the chief factor in the determination of these points being the interests

of the offspring. In actual practice, however, sexual unions, not only in

Man but among the higher animals, tend to last beyond the needs of the

offspring of a single season, while the fact that in most species the

numbers of males and females are approximately equal makes it inevitable

that both among animals and in Man the family is produced by a single

sexual couple, that is to say that monogamy is, with however many

exceptions, necessarily the fundamental rule.

It will thus be seen that marriage centres in the child, and has at the

outset no reason for existence apart from the welfare of the offspring.

Among those animals of lowly organization which are able to provide for

themselves from the beginning of existence there is no family and no need

for marriage. Among human races, when sexual unions are not followed by

offspring, there may be other reasons for the continuance of the union

but they are not reasons in which either Nature or society is in the

slightest degree directly concerned. The marriage which grew up among

animals by heredity on the basis of natural selection, and which has been

continued by the lower human races through custom and tradition, by the

more civilized races through the superimposed regulative influence of

legal institutions, has been marriage for the sake of the offspring.[312]

Even in civilized races among whom the proportion of sterile marriages is

large, marriage tends to be so constituted as always to assume the

procreation of children and to involve the permanence required by such

procreation.

Among birds, which from the point of view of erotic development

stand at the head of the animal world, monogamy frequently

prevails (according to some estimates among 90 per cent.), and

unions tend to be permanent; there is an approximation to the

same condition among some of the higher mammals, especially the

anthropoid apes; thus among gorillas and oran-utans permanent

monogamic marriages take place, the young sometimes remaining

with the parents to the age of six, while any approach to loose

behavior on the part of the wife is severely punished by the

husband. The variations that occur are often simply matters of

adaptation to circumstances; thus, according to J.G. Millais

(_Natural History of British Ducks_, pp. 8, 63), the Shoveler

duck, though normally monogamic, will become polyandric when

males are in excess, the two males being in constant and amicable

attendance on the female without signs of jealousy; among the

monogamic mallards, similarly, polygyny and polyandry may also

occur. See also R.W. Shufeldt, "Mating Among Birds," _American

Naturalist_, March, 1907; for mammal marriages, a valuable paper

by Robert Müller, "Säugethierehen," _Sexual-Probleme_, Jan.,

1909, and as regards the general prevalence of monogamy, Woods

Hutchinson, "Animal Marriage," _Contemporary Review_, Oct., 1904,

and Sept., 1905.

There has long been a dispute among the historians of marriage as

to the first form of human marriage. Some assume a primitive

promiscuity gradually modified in the direction of monogamy;

others argue that man began where the anthropoid apes left off,

and that monogamy has prevailed, on the whole, throughout. Both

these opposed views, in an extreme form, seem untenable, and the

truth appears to lie midway. It has been shown by various

writers, and notably Westermarck (_History of Human Marriage_,

Chs. IV-VI), that there is no sound evidence in favor of

primitive promiscuity, and that at the present day there are few,

if any, savage peoples living in genuine unrestricted sexual

promiscuity. This theory of a primitive promiscuity seems to have

been suggested, as J.A. Godfrey has pointed out (_Science of

Sex_, p. 112), by the existence in civilized societies of

promiscuous prostitution, though this kind of promiscuity was

really the result, rather than the origin, of marriage. On the

other hand, it can scarcely be said that there is any convincing

evidence of primitive strict monogamy beyond the assumption that

early man continued the sexual habits of the anthropoid apes. It

would seem probable, however, that the great forward step

involved in passing from ape to man was associated with a change

in sexual habits involving the temporary adoption of a more

complex system than monogamy. It is difficult to see in what

other social field than that of sex primitive man could find

exercise for the developing intellectual and moral aptitudes, the

subtle distinctions and moral restraints, which the strict

monogamy practiced by animals could afford no scope for. It is

also equally difficult to see on what basis other than that of a

more closely associated sexual system the combined and harmonious

efforts needed for social progress could have developed. It is

probable that at least one of the motives for exogamy, or

marriage outside the group, is (as was probably first pointed out

by St. Augustine in his _De Civitate Dei_) the need of creating a

larger social circle, and so facilitating social activities and

progress. Exactly the same end is effected by a complex marriage

system binding a large number of people together by common

interests. The strictly small and confined monogamic family,

however excellently it subserved the interests of the offspring,

contained no promise of a wider social progress. We see this

among both ants and bees, who of all animals, have attained the

highest social organization; their progress was only possible

through a profound modification of the systems of sexual

relationship. As Espinas said many years ago (in his suggestive

work, _Des Sociétés Animales_): "The cohesion of the family and

the probabilities for the birth of societies are inverse." Or, as

Schurtz more recently pointed out, although individual marriage

has prevailed more or less from the first, early social

institutions, early ideas and early religion involved sexual

customs which modified a strict monogamy.

The most primitive form of complex human marriage which has yet

been demonstrated as still in existence is what is called

group-marriage, in which all the women of one class are regarded

as the actual, or at all events potential, wives of all the men

in another class. This has been observed among some central

Australian tribes, a people as primitive and as secluded from

external influence as could well be found, and there is evidence

to show that it was formerly more widespread among them. "In the

Urabunna tribe, for example," say Spencer and Gillen, "a group of

men actually do have, continually and as a normal condition,

marital relations with a group of women. This state of affairs

has nothing whatever to do with polygamy any more than it has

with polyandry. It is simply a question of a group of men and a

group of women who may lawfully have what we call marital

relations. There is nothing whatever abnormal about it, and, in

all probability, this system of what has been called group

marriage, serving as it does to bind more or less closely

together groups of individuals who are mutually interested in one

another's welfare, has been one of the most powerful agents in

the early stages of the upward development of the human race"

(Spencer and Gillen, _Northern Tribes of Central Australia_, p.

74; cf. A.W. Howitt, _The Native Tribes of South-East

Australia_). Group-marriage, with female descent, as found in

Australia, tends to become transformed by various stages of

progress into individual marriage with descent in the male line,

a survival of group-marriage perhaps persisting in the

much-discussed _jus primæ noctis_. (It should be added that Mr.

N.W. Thomas, in his book on _Kinship and Marriage in Australia_,

1908, concludes that group-marriage in Australia has not been

demonstrated, and that Professor Westermarck, in his _Origin and

Development of the Moral Ideas_, as in his previous _History of

Human Marriage_, maintains a skeptical opinion in regard to

group-marriage generally; he thinks the Urabunna custom may have

developed out of ordinary individual marriage, and regards the

group-marriage theory as "the residuary legatee of the old theory

of promiscuity." Durkheim also believes that the Australian

marriage system is not primitive, "Organisation Matrimoniale

Australienne," _L'Année Sociologique_, eighth year, 1905). With

the attainment of a certain level of social progress it is easy

to see that a wide and complicated system of sexual relationships

ceases to have its value, and a more or less qualified monogamy

tends to prevail as more in harmony with the claims of social

stability and executive masculine energy.

The best historical discussion of marriage is still probably

Westermarck's _History of Human Marriage_, though at some points

it now needs to be corrected or supplemented; among more recent

books dealing with primitive sexual conceptions may be specially

mentioned Crawley's _Mystic Rose_, while the facts concerning the

transformation of marriage among the higher human races are set

forth in G.E. Howard's _History of Matrimonial Institutions_ (3

vols.), which contains copious bibliographical references. There

is an admirably compact, but clear and comprehensive, sketch of

the development of modern marriage in Pollock and Maitland,

_History of English Law_, vol. ii.

It is necessary to make allowance for variations, thereby shunning the

extreme theorists who insist on moulding all facts to their theories, but

we may conclude that--as the approximately equal number of the sexes

indicates--in the human species, as among many of the higher animals, a

more or less permanent monogamy has on the whole tended to prevail. That

is a fact of great significance in its implications. For we have to

realize that we are here in the presence of a natural fact. Sexual

relationships, in human as in animal societies, follow a natural law,

oscillating on each side of the norm, and there is no place for the theory

that that law was imposed artificially. If all artificial "laws" could be

abolished the natural order of the sexual relationships would continue to

subsist substantially as at present. Virtue, said Cicero, is but Nature

carried out to the utmost. Or, as Holbach put it, arguing that our

institutions tend whither Nature tends, "art is only Nature acting by the

help of the instruments she has herself made." Shakespeare had already

seen much the same truth when he said that the art which adds to Nature

"is an art that Nature makes." Law and religion have buttressed monogamy;

it is not based on them but on the needs and customs of mankind, and these

constitute its completely adequate sanctions.[313] Or, as Cope put it,

marriage is not the creation of law but the law is its creation.[314]

Crawley, again, throughout his study of primitive sex relationships,

emphasizes the fact that our formal marriage system is not, as so many

religious and moral writers once supposed, a forcible repression of

natural impulses, but merely the rigid crystallization of those natural

impulses, which in a more fluid form have been in human nature from the

first. Our conventional forms, we must believe, have not introduced any

elements of value, while in some respects they have been mischievous.

It is necessary to bear in mind that the conclusion that

monogamic marriage is natural, and represents an order which is

in harmony with the instincts of the majority of people, by no

means involves agreement with the details of any particular legal

system of monogamy. Monogamic marriage is a natural biological

fact, alike in many animals and in man. But no system of legal

regulation is a natural biological fact. When a highly esteemed

alienist, Dr. Clouston, writes (_The Hygiene of Mind_, p. 245)

"there is only one natural mode of gratifying sexual _nisus_ and

reproductive instinct, that of marriage," the statement requires

considerable exegesis before it can be accepted, or even receive

an intelligible meaning, and if we are to understand by

"marriage" the particular form and implications of the English

marriage law, or even of the somewhat more enlightened Scotch

law, the statement is absolutely false. There is a world of

difference, as J.A. Godfrey remarks (_The Science of Sex_, 1901,

p. 278), between natural monogamous marriage and our legal

system; "the former is the outward expression of the best that

lies in the sexuality of man; the latter is a creation in which

religious and moral superstitions have played a most important

part, not always to the benefit of individual and social health."

We must, therefore, guard against the tendency to think that

there is anything rigid or formal in the natural order of

monogamy. Some sociologists would even limit the naturalness of

monogamy still further. Thus Tarde ("La Morale Sexuelle,"

_Archives d'Anthropologie Criminelle_, Jan., 1907), while

accepting as natural under present conditions the tendency for

monogamy, mitigated by more or less clandestine concubinage, to

prevail over all other forms of marriage, considers that this is

not due to any irresistible influence, but merely to the fact

that this kind of marriage is practiced by the majority of

people, including the most civilized.

With the acceptance of the tendency to monogamy we are not at the

end of sexual morality, but only at the beginning. It is not

monogamy that is the main thing, but the kind of lives that

people lead in monogamy. The mere acceptance of a monogamic rule

carries us but a little way. That is a fact which cannot fail to

impress itself on those who approach the questions of sex from

the psychological side.

If monogamy is thus firmly based it is unreasonable to fear, or to hope

for, any radical modification in the institution of marriage, regarded,

not under its temporary religious and legal aspects but as an order which

appeared on the earth even earlier than man. Monogamy is the most natural

expression of an impulse which cannot, as a rule, be so adequately

realized in full fruition under conditions involving a less prolonged

period of mutual communion and intimacy. Variations, regarded as

inevitable oscillations around the norm, are also natural, but union in

couples must always be the rule because the numbers of the sexes are

always approximately equal, while the needs of the emotional life, even

apart from the needs of offspring, demand that such unions based on mutual

attraction should be so far as possible permanent.

It must here again be repeated that it is the reality, and not

the form or the permanence of the marriage union, which is its

essential and valuable part. It is not the legal or religious

formality which sanctifies marriage, it is the reality of the

marriage which sanctifies the form. Fielding has satirized in

Nightingale, Tom Jones's friend, the shallow-brained view of

connubial society which degrades the reality of marriage to exalt

the form. Nightingale has the greatest difficulty in marrying a

girl with whom he has already had sexual relations, although he

is the only man who has had relations with her. To Jones's

arguments he replies: "Common-sense warrants all you say, but yet

you well know that the opinion of the world is so contrary to it,

that were I to marry a whore, though my own, I should be ashamed

of ever showing my face again." It cannot be said that Fielding's

satire is even yet out of date. Thus in Prussia, according to

Adele Schreiber ("Heirathsbeschränkungen," _Die Neue Generation_,

Feb., 1909), it seems to be still practically impossible for a

military officer to marry the mother of his own illegitimate

child.

The glorification of the form at the expense of the reality of

marriage has even been attempted in poetry by Tennyson in the

least inspired of his works, _The Idylls of the King_. In

"Lancelot and Elaine" and "Guinevere" (as Julia Magruder points

out, _North American Review_, April, 1905) Guinevere is married

to King Arthur, whom she has never seen, when already in love

with Lancelot, so that the "marriage" was merely a ceremony, and

not a real marriage (cf., May Child, "The Weird of Sir Lancelot,"

_North American Review_, Dec., 1908).

It may seem to some that so conservative an estimate of the tendencies of

civilization in matters of sexual love is due to a timid adherence to mere

tradition. That is not the case. We have to recognize that marriage is

firmly held in position by the pressure of two opposing forces. There are

two currents in the stream of our civilization: one that moves towards an

ever greater social order and cohesion, the other that moves towards an

ever greater individual freedom. There is real harmony underlying the

apparent opposition of these two tendencies, and each is indeed the

indispensable complement of the other. There can be no real freedom for

the individual in the things that concern that individual alone unless

there is a coherent order in the things that concern him as a social unit.

Marriage in one of its aspects only concerns the two individuals involved;

in another of its aspects it chiefly concerns society. The two forces

cannot combine to act destructively on marriage, for the one counteracts

the other. They combine to support monogamy, in all essentials, on its

immemorial basis.

It must be added that in the circumstances of monogamy that are not

essential there always has been, and always must be, perpetual

transformation. All traditional institutions, however firmly founded on

natural impulses, are always growing dead and rigid at some points and

putting forth vitally new growths at other points. It is the effort to

maintain their vitality, and to preserve their elastic adjustment to the

environment, which involves this process of transformation in

non-essentials.

The only way in which we can fruitfully approach the question of the value

of the transformations now taking place in our marriage-system is by

considering the history of that system in the past. In that way we learn

the real significance of the marriage-system, and we understand what

transformations are, or are not, associated with a fine civilization. When

we are acquainted with the changes of the past we are enabled to face more

confidently the changes of the present.

The history of the marriage-system of modern civilized peoples begins in

the later days of the Roman Empire at the time when the foundations were

being laid of that Roman law which has exerted so large an influence in

Christendom. Reference has already been made[315] to the significant fact

that in late Rome women had acquired a position of nearly complete

independence in relation to their husbands, while the patriarchal

authority still exerted over them by their fathers had become, for the

most part, almost nominal. This high status of women was associated, as it

naturally tends to be, with a high degree of freedom in the marriage

system. Roman law had no power of intervening in the formation of

marriages and there were no legal forms of marriage. The Romans recognized

that marriage is a fact and not a mere legal form; in marriage by _usus_

there was no ceremony at all; it was constituted by the mere fact of

living together for a whole year; yet such marriage was regarded as just

as legal and complete as if it had been inaugurated by the sacred rite of

_confarreatio_. Marriage was a matter of simple private agreement in which

the man and the woman approached each other on a footing of equality. The

wife retained full control of her own property; the barbarity of admitting

an action for restitution of conjugal rights was impossible, divorce was a

private transaction to which the wife was as fully entitled as the

husband, and it required no inquisitorial intervention of magistrate or

court; Augustus ordained, indeed, that a public declaration was necessary,

but the divorce itself was a private legal act of the two persons

concerned.[316] It is interesting to note this enlightened conception of

marriage prevailing in the greatest and most masterful Empire which has

ever dominated the world, at the period not indeed of its greatest

force,--for the maximum of force and the maximum of expansion, the bud and

the full flower, are necessarily incompatible,--but at the period of its

fullest development. In the chaos that followed the dissolution of the

Empire Roman law remained as a precious legacy to the new developing

nations, but its influence was inextricably mingled with that of

Christianity, which, though not at the first anxious to set up marriage

laws of its own, gradually revealed a growing ascetic feeling hostile

alike to the dignity of the married woman and the freedom of marriage and

divorce.[317] With that influence was combined the influence, introduced

through the Bible, of the barbaric Jewish marriage-system conferring on

the husband rights in marriage and divorce which were totally denied to

the wife; this was an influence which gained still greater force at the

Reformation when the authority once accorded to the Church was largely

transformed to the Bible. Finally, there was in a great part of Europe,

including the most energetic and expansive parts, the influence of the

Germans, an influence still more primitive than that of the Jews,

involving the conception of the wife as almost her husband's chattel, and

marriage as a purchase. All these influences clashed and often appeared

side by side, though they could not be harmonized. The result was that the

fifteen hundred years that followed the complete conquest of Christianity

represent on the whole the most degraded condition to which the marriage

system has ever been known to fall for so long a period during the whole

course of human history.

At first indeed the beneficent influence of Rome continued in some degree

to prevail and even exhibited new developments. In the time of the

Christian Emperors freedom of divorce by mutual consent was alternately

maintained, and abolished.[318] We even find the wise and far-seeing

provision of the law enacting that a contract of the two parties never to

separate could have no legal validity. Justinian's prohibition of divorce

by consent led to much domestic unhappiness, and even crime, which appears

to be the reason why it was immediately abrogated by his successor,

Theodosius, still maintaining the late Roman tradition of the moral

equality of the sexes, allowed the wife equally with the husband to obtain

a divorce for adultery; that is a point we have not yet attained in

England to-day.

It seems to be admitted on all sides that it was largely the fatal

influence of the irruption of the barbarous Germans which degraded, when

it failed to sweep away, the noble conception of the equality of women

with men, and the dignity and freedom of marriage, slowly moulded by the

organizing genius of the Roman into a great tradition which still retains

a supreme value. The influence of Christianity had at the first no

degrading influence of this kind; for the ascetic ideal was not yet

predominant, priests married as a matter of course, and there was no

difficulty in accepting the marriage order established in the secular

world; it was even possible to add to it a new vitality and freedom. But

the Germans, with all the primitively acquisitive and combative instincts

of untamed savages, went far beyond even the early Romans in the

subjection of their wives; they allowed indeed to their unmarried girls a

large measure of indulgence and even sexual freedom,--just as the

Christians also reverenced their virgins,[319]--but the German marriage

system placed the wife, as compared to the wife of the Roman Empire, in a

condition little better than that of a domestic slave. In one form or

another, under one disguise or another, the system of wife-purchase

prevailed among the Germans, and, whenever that system is influential,

even when the wife is honored her privileges are diminished.[320] Among

the Teutonic peoples generally, as among the early English, marriage was

indeed a private transaction but it took the form of a sale of the bride

by the father, or other legal guardian, to the bridegroom. The _beweddung_

was a real contract of sale.[321] "Sale-marriage" was the most usual form

of marriage. The ring, indeed, probably was not in origin, as some have

supposed, a mark of servitude, but rather a form of bride-price, or

_arrha_, that is to say, earnest money on the contract of marriage and so

the symbol of it.[322] At first a sign of the bride's purchase, it was not

till later that the ring acquired the significance of subjection to the

bridegroom, and that significance, later in the Middle Ages, was further

emphasized by other ceremonies. Thus in England the York and Sarum manuals

in some of their forms direct the bride, after the delivery of the ring,

to fall at her husband's feet, and sometimes to kiss his right foot. In

Russia, also, the bride kissed her husband's feet. At a later period, in

France, this custom was attenuated, and it became customary for the bride

to let the ring fall in front of the altar and then stoop at her husband's

feet to pick it up.[323] Feudalism carried on, and by its military

character exaggerated, these Teutonic influences. A fief was land held on

condition of military service, and the nature of its influence on marriage

is implied in that fact. The woman was given with the fief and her own

will counted for nothing.[324]

The Christian Church in the beginning accepted the forms of marriage

already existing in those countries in which it found itself, the Roman

forms in the lands of Latin tradition and the German forms in Teutonic

lands. It merely demanded (as it also demanded for other civil contracts,

such as an ordinary sale) that they should be hallowed by priestly

benediction. But the marriage was recognized by the Church even in the

absence of such benediction. There was no special religious marriage

service, either in the East or the West, earlier than the sixth century.

It was simply the custom for the married couple, after the secular

ceremonies were completed, to attend the church, listen to the ordinary

service and take the sacrament. A special marriage service was developed

slowly, and it was no part of the real marriage. During the tenth century

(at all events in Italy and France) it was beginning to become customary

to celebrate the first part of the real nuptials, still a purely temporal

act, outside the church door. Soon this was followed by the regular

bride-mass, directly applicable to the occasion, inside the church. By the

twelfth century the priest directed the ceremony, now involving an

imposing ritual, which began outside the church and ended with the bridal

mass inside. By the thirteenth century, the priest, superseding the

guardians of the young couple, himself officiated through the whole

ceremony. Up to that time marriage had been a purely private business

transaction. Thus, after more than a millennium of Christianity, not by

law but by the slow growth of custom, ecclesiastical marriage was

established.[325]

It was undoubtedly an event of very great importance not merely for the

Church but for the whole history of European marriage even down to to-day.

The whole of our public method of celebrating marriage to-day is based on

that of the Catholic Church as established in the twelfth century and

formulated in the Canon law. Even the publication of banns has its origin

here, and the fact that in our modern civil marriage the public ceremony

takes place in an office and not in a Church may disguise but cannot

alter the fact that it is the direct and unquestionable descendant of the

public ecclesiastical ceremony which embodied the slow and subtle

triumph--so slow and subtle that its history is difficult to trace--of

Christian priests over the private affairs of men and women. Before they

set themselves to this task marriage everywhere was the private business

of the persons concerned; when they had completed their task,--and it was

not absolutely complete until the Council of Trent,--a private marriage

had become a sin and almost a crime.[326]

It may seem a matter for surprise that the Church which, as we know, had

shown an ever greater tendency to reverence virginity and to cast

contumely on the sexual relationship, should yet, parallel with that

movement and with the growing influence of asceticism, have shown so great

an anxiety to capture marriage and to confer on it a public, dignified,

and religious character. There was, however, no contradiction. The factors

that were constituting European marriage, taken as a whole, were indeed of

very diverse characters and often involved unreconciled contradictions.

But so far as the central efforts of the ecclesiastical legislators were

concerned, there was a definite and intelligible point of view. The very

depreciation of the sexual instinct involved the necessity, since the

instinct could not be uprooted, of constituting for it a legitimate

channel, so that ecclesiastical matrimony was, it has been said,

"analogous to a license to sell intoxicating liquors."[327] Moreover,

matrimony exhibited the power of the Church to confer on the license a

dignity and distinction which would clearly separate it from the general

stream of lust. Sexual enjoyment is impure, the faithful cannot partake of

it until it has been purified by the ministrations of the Church. The

solemnization of marriage was the necessary result of the sanctification

of virginity. It became necessary to sanctify marriage also, and hence

was developed the indissoluble sacrament of matrimony. The conception of

marriage as a religious sacrament, a conception of far-reaching influence,

is the great contribution of the Catholic Church to the history of

marriage.

It is important to remember that, while Christianity brought the

idea of marriage as a sacrament into the main stream of the

institutional history of Europe, that idea was merely developed,

not invented, by the Church. It is an ancient and even primitive

idea. The Jews believed that marriage is a magico-religious bond,

having in it something mystical resembling a sacrament, and that

idea, says Durkheim (_L'Année Sociologique_, eighth year, 1905,

p. 419), is perhaps very archaic, and hangs on to the generally

magic character of sex relations. "The mere act of union,"

Crawley remarks (_The Mystic Rose_, p. 318) concerning savages,

"is potentially a marriage ceremony of the sacramental kind....

One may even credit the earliest animistic men with some such

vague conception before any ceremony became crystallized." The

essence of a marriage ceremony, the same writer continues, "is

the 'joining together' of a man and a woman; in the words of our

English service, 'for this cause shall a man leave his father and

mother and shall be joined unto his wife; and they two shall be

one flesh.' At the other side of the world, amongst the Orang

Benuas, these words are pronounced by an elder, when a marriage

is solemnized: 'Listen all ye that are present; those that were

distant are now brought together; those that were separated are

now united.' Marriage ceremonies in all stages of culture may be

called religious with as much propriety as any ceremony whatever.

Those who were separated are now joined together, those who were

mutually taboo now break the taboo." Thus marriage ceremonies

prevent sin and neutralize danger.

The Catholic conception of marriage was, it is clear, in

essentials precisely the primitive conception. Christianity drew

the sacramental idea from the archaic traditions in popular

consciousness, and its own ecclesiastical contribution lay in

slowly giving that idea a formal and rigid shape, and in

declaring it indissoluble. As among savages, it was in the act of

consent that the essence of the sacrament lay; the intervention

of the priest was not, in principle, necessary to give marriage

its religiously binding character. The essence of the sacrament

was mutual acceptance of each other by the man and the woman, as

husband and wife, and technically the priest who presided at the

ceremony was simply a witness of the sacrament. The essential

fact being thus the mental act of consent, the sacrament of

matrimony had the peculiar character of being without any outward

and visible sign. Perhaps it was this fact, instinctively felt

as a weakness, which led to the immense emphasis on the

indissolubility of the sacrament of matrimony, already

established by St. Augustine. The Canonists brought forward

various arguments to account for that indissolubility, and a

frequent argument has always been the Scriptural application of

the term "one flesh" to married couples; but the favorite

argument of the Canonists was that matrimony represents the union

of Christ with the Church; that is indissoluble, and therefore

its image must be indissoluble (Esmein, op. cit., vol. i, p. 64).

In part, also, one may well believe, the idea of the

indissolubility of marriage suggested itself to the

ecclesiastical mind by a natural association of ideas: the vow of

virginity in monasticism was indissoluble; ought not the vow of

sexual relationship in matrimony to be similarly indissoluble? It

appears that it was not until 1164, in Peter Lombard's

_Sentences_, that clear and formal recognition is found of

matrimony as one of the seven sacraments (Howard, op. cit., vol.

i, p. 333).

The Church, however, had not only made marriage a religious act; it had

also made it a public act. The officiating priest, who had now become the

arbiter of marriage, was bound by all the injunctions and prohibitions of

the Church, and he could not allow himself to bend to the inclinations and

interests of individual couples or their guardians. It was inevitable that

in this matter, as in other similar matters, a code of ecclesiastical

regulations should be gradually developed for his guidance. This need of

the Church, due to its growing control of the world's affairs, was the

origin of Canon law. With the development of Canon law the whole field of

the regulation of the sexual relationships, and the control of its

aberrations, became an exclusively ecclesiastical matter. The secular law

could take no more direct cognizance of adultery than of fornication or

masturbation; bigamy, incest, and sodomy were not temporal crimes; the

Church was supreme in the whole sphere of sex.

It was during the twelfth century that Canon law developed, and Gratian

was the master mind who first moulded it. He belonged to the Bolognese

school of jurisprudence which had inherited the sane traditions of Roman

law. The Canons which Gratian compiled were, however, no more the mere

result of legal traditions than they were the outcome of cloistered

theological speculation. They were the result of a response to the

practical needs of the day before those needs had had time to form a

foundation for fine-spun subtleties. At a somewhat later period, before

the close of the century, the Italian jurists were vanquished by the

Gallic theologians of Paris as represented by Peter Lombard. The result

was the introduction of mischievous complexities which went far to rob

Canon law alike of its certainty and its adaptation to human necessities.

Notwithstanding, however, all the parasitic accretions which swiftly began

to form around the Canon law and to entangle its practical activity, that

legislation embodied--predominantly at the outset and more obscurely

throughout its whole period of vital activity--a sound core of real value.

The Canon law recognized at the outset that the essential fact of marriage

is the actual sexual union, accomplished with the intention of

inaugurating a permanent relationship. The _copula carnalis_, the making

of two "one flesh," according to the Scriptural phrase, a mystic symbol of

the union of the Church to Christ, was the essence of marriage, and the

mutual consent of the couple alone sufficed to constitute marriage, even

without any religious benediction, or without any ceremony at all. The

formless and unblessed union was still a real and binding marriage if the

two parties had willed it so to be.[328]

Whatever hard things may be said about the Canon law, it must

never be forgotten that it carried through the Middle Ages until

the middle of the sixteenth century the great truth that the

essence of marriage lies not in rites and forms, but in the

mutual consent of the two persons who marry each other. When the

Catholic Church, in its growing rigidity, lost that conception,

it was taken up by the Protestants and Puritans in their first

stage of ardent vital activity, though it was more or less

dropped as they fell back into a state of subservience to forms.

It continued to be maintained by moralists and poets. Thus George

Chapman, the dramatist, who was both moralist and poet, in _The

Gentleman Usher_ (1606), represents the riteless marriage of his

hero and heroine, which the latter thus introduces:--

"May not we now

Our contract make and marry before Heaven?

Are not the laws of God and Nature more

Than formal laws of men? Are outward rites

More virtuous than the very substance is

Of holy nuptials solemnized within?

.... The eternal acts of our pure souls

Knit us with God, the soul of all the world,

He shall be priest to us; and with such rites

As we can here devise we will express

And strongly ratify our hearts' true vows,

Which no external violence shall dissolve."

And to-day, Ellen Key, the distinguished prophet of marriage

reform, declares at the end of her _Liebe und Ehe_ that the true

marriage law contains only the paragraph: "They who love each

other are husband and wife."

The establishment of marriage on this sound and naturalistic basis had the

further excellent result that it placed the man and the woman, who could

thus constitute marriage by their consent in entire disregard of the

wishes of their parents or families, on the same moral level. Here the

Church was following alike the later Romans and the early Christians like

Lactantius and Jerome who had declared that what was licit for a man was

licit for a woman. The Penitentials also attempted to set up this same

moral law for both sexes. The Canonists finally allowed a certain

supremacy to the husband, though, on the other hand, they sometimes seemed

to assign even the chief part in marriage to the wife, and the attempt was

made to derive the word _matrimonium_ from _matris munium_, thereby

declaring the maternal function to be the essential fact of marriage.[329]

The sound elements in the Canon law conception of marriage were, however,

from a very early period largely if not altogether neutralized by the

verbal subtleties by which they were overlaid, and even by its own

fundamental original defects. Even in the thirteenth century it began to

be possible to attach a superior force to marriage verbally formed _per

verba de præsenti_ than to one constituted by sexual union, while so many

impediments to marriage were set up that it became difficult to know what

marriages were valid, an important point since a marriage even innocently

contracted within the prohibited degrees was only a putative marriage. The

most serious and the most profoundly unnatural feature of this

ecclesiastical conception of marriage was the flagrant contradiction

between the extreme facility with which the gate of marriage was flung

open to the young couple, even if they were little more than children, and

the extreme rigor with which it was locked and bolted when they were

inside. That is still the defect of the marriage system we have inherited

from the Church, but in the hands of the Canonists it was emphasized both

on the side of its facility for entrance and of its difficulty for

exit.[330] Alike from the standpoint of reason and of humanity the gate

that is easy of ingress must be easy of egress; or if the exit is

necessarily difficult then extreme care must be taken in admission. But

neither of these necessary precautions was possible to the Canonists.

Matrimony was a sacrament and all must be welcome to a sacrament, the more

so since otherwise they may be thrust into the mortal sin of fornication.

On the other side, since matrimony was a sacrament, when once truly

formed, beyond the permissible power of verbal quibbles to invalidate, it

could never be abrogated. The very institution that, in the view of the

Church, had been set up as a bulwark against license became itself an

instrument for artificially creating license. So that the net result of

the Canon law in the long run was the production of a state of things

which--in the eyes of a large part of Christendom--more than neutralized

the soundness of its original conception.[331]

In England, where from the ninth century, marriage was generally

accepted by the ecclesiastical and temporal powers as

indissoluble, Canon law was, in the main, established as in the

rest of Christendom. There were, however, certain points in which

Canon law was not accepted by the law of England. By English law

a ceremony before a priest was necessary to the validity of a

marriage, though in Scotland the Canon law doctrine was accepted

that simple consent of the parties, even exchanged secretly,

sufficed to constitute marriage. Again, the issue of a void

marriage contracted in innocence, and the issue of persons who

subsequently marry each other, are legitimate by Canon law, but

not by the common law of England (Geary, _Marriage and Family

Relations_, p. 3; Pollock and Maitland, loc. cit.). The Canonists

regarded the disabilities attaching to bastardy as a punishment

inflicted on the offending parents, and considered, therefore,

that no burden should fall on the children when there had been a

ceremony in good faith on the part of one at least of the

parents. In this respect the English law is less reasonable and

humane. It was at the Council of Merton, in 1236, that the barons

of England rejected the proposal to make the laws of England

harmonize with the Canon law, that is, with the ecclesiastical

law of Christendom generally, in allowing children born before

wedlock to be legitimated by subsequent marriage. Grosseteste

poured forth his eloquence and his arguments in favor of the

change, but in vain, and the law of England has ever since stood

alone in this respect (Freeman, "Merton Priory," _English Towns

and Districts_). The proposal was rejected in the famous formula,

"Nolumus leges Angliæ mutare," a formula which merely stood for

an unreasonable and inhumane obstinacy.

In the United States, while by common law subsequent marriage

fails to legitimate children born before marriage, in many of the

States the subsequent marriage of the parents effects by statute

the legitimacy of the child, sometimes (as in Maine)

automatically, more usually (as in Massachusetts) through special

acknowledgment by the father.

The appearance of Luther and the Reformation involved the decay of the

Canon law system so far as Europe as a whole was concerned. It was for

many reasons impossible for the Protestant reformers to retain formally

either the Catholic conception of matrimony or the precariously elaborate

legal structure which the Church had built up on that conception. It can

scarcely be said, indeed, that the Protestant attitude towards the

Catholic idea of matrimony was altogether a clear, logical, or consistent

attitude. It was a revolt, an emotional impulse, rather than a matter of

reasoned principle. In its inevitable necessity, under the circumstances

of the rise of Protestantism, lies its justification, and, on the whole,

its wholesome soundness. It took the form, which may seem strange in a

religious movement, of proclaiming that marriage is not a religious but a

secular matter. Marriage is, said Luther, "a worldly thing," and Calvin

put it on the same level as house-building, farming, or shoe-making. But

while this secularization of marriage represents the general and final

drift of Protestantism, the leaders of Protestantism were themselves not

altogether confident and clear-sighted in the matter. Even Luther was a

little confused on this point; sometimes he seems to call marriage "a

sacrament," sometimes "a temporal business," to be left to the state.[332]

It was the latter view which tended to prevail. But at first there was a

period of confusion, if not of chaos, in the minds of the Reformers; not

only were they not always convinced in their own minds; they were at

variance with each other, especially on the very practical question of

divorce. Luther on the whole belonged to the more rigid party, including

Calvin and Beza, which would grant divorce only for adultery and malicious

desertion; some, including many of the early English Protestants, were in

favor of allowing the husband to divorce for adultery but not the wife.

Another party, including Zwingli, were influenced by Erasmus in a more

liberal direction, and--moving towards the standpoint of Roman Imperial

legislation--admitted various causes of divorce. Some, like Bucer,

anticipating Milton, would even allow divorce when the husband was unable

to love his wife. At the beginning some of the Reformers adopted the

principle of self-divorce, as it prevailed among the Jews and was accepted

by some early Church Councils. In this way Luther held that the cause for

the divorce itself effected the divorce without any judicial decree,

though a magisterial permission was needed for remarriage. This question

of remarriage, and the treatment of the adulterer, were also matters of

dispute. The remarriage of the innocent party was generally accepted; in

England it began in the middle of the sixteenth century, was pronounced

valid by the Archbishop of Canterbury, and confirmed by Parliament. Many

Reformers were opposed, however, to the remarriage of the adulterous

party. Beust, Beza, and Melancthon would have him hanged and so settle the

question of remarriage; Luther and Calvin would like to kill him, but

since the civil rulers were slack in adopting that measure they allowed

him to remarry, if possible in some other part of the country.[333]

The final outcome was that Protestantism framed a conception of marriage

mainly on the legal and economic factor--a factor not ignored but strictly

subordinated by the Canonists--and regarded it as essentially a contract.

In so doing they were on the negative side effecting a real progress, for

they broke the power of an antiquated and artificial system, but on the

positive side they were merely returning to a conception which prevails in

barbarous societies, and is most pronounced when marriage is most

assimilable to purchase. The steps taken by Protestantism involved a

considerable change in the nature of marriage, but not necessarily any

great changes in its form. Marriage was no longer a sacrament, but it was

still a public and not a private function and was still, however

inconsistently, solemnized in Church. And as Protestantism had no rival

code to set up, both in Germany and England it fell back on the general

principles of Canon law, modifying them to suit its own special attitude

and needs.[334] It was the later Puritanic movement, first in the

Netherlands (1580), then in England (1653), and afterwards in New England,

which introduced a serious and coherent conception of Protestant marriage,

and began to establish it on a civil base.

The English Reformers under Edward VI and his enlightened

advisers, including Archbishop Cranmer, took liberal views of

marriage, and were prepared to carry through many admirable

reforms. The early death of that King exerted a profound

influence on the legal history of English marriage. The Catholic

reaction under Queen Mary killed off the more radical Reformers,

while the subsequent accession of Queen Elizabeth, whose attitude

towards marriage was grudging, illiberal, and old-fashioned,

approximating to that of her father, Henry VIII (as witnessed,

for instance, in her decided opposition to the marriage of the

clergy), permanently affected English marriage law. It became

less liberal than that of other Protestant countries, and closer

to that of Catholic countries.

The reform of marriage attempted by the Puritans began in England

in 1644, when an Act was passed asserting "marriage to be no

sacrament, nor peculiar to the Church of God, but common to

mankind and of public interest to every Commonwealth." The Act

added, notwithstanding, that it was expedient marriage should be

solemnized by "a lawful minister of the Word." The more radical

Act of 1653 swept away this provision, and made marriage purely

secular. The banns were to be published (by registrars specially

appointed) in the Church, or (if the parties desired) the

market-place. The marriage was to be performed by a Justice of

the Peace; the age of consent to marriage for a man was made

sixteen, for a woman fourteen (Scobell's _Acts and Ordinances_,

pp. 86, 236). The Restoration abolished this sensible Act, and

reintroduced Canon-law traditions, but the Puritan conception of

marriage was carried over to America, where it took root and

flourished.

It was out of Puritanism, moreover, as represented by Milton, that the

first genuinely modern though as yet still imperfect conception of the

marriage relationship was destined to emerge. The early Reformers in this

matter acted mainly from an obscure instinct of natural revolt in an

environment of plebeian materialism. The Puritans were moved by their

feeling for simplicity and civil order as the conditions for religious

freedom. Milton, in his _Doctrine and Discipline of Divorce_, published in

1643, when he was thirty-five years of age, proclaimed the supremacy of

the substance of marriage over the form of it, and the spiritual autonomy

of the individual in the regulation of that form. He had grasped the

meaning of that conception of personal responsibility which is the

foundation of sexual relationships as they are beginning to appear to men

to-day. If Milton had left behind him only his writings on marriage and

divorce they would have sufficed to stamp him with the seal of genius.

Christendom had to wait a century and a half before another man of genius

of the first rank, Wilhelm von Humboldt, spoke out with equal authority

and clearness in favor of free marriage and free divorce.

It is to the honor of Milton, and one of his chief claims on our

gratitude, that he is the first great protagonist in Christendom

of the doctrine that marriage is a private matter, and that,

therefore, it should be freely dissoluble by mutual consent, or

even at the desire of one of the parties. We owe to him, says

Howard, "the boldest defence of the liberty of divorce which had

yet appeared. If taken in the abstract, and applied to both sexes

alike, it is perhaps the strongest defence which can be made

through an appeal to mere authority;" though his arguments, being

based on reason and experience, are often ill sustained by his

authority; he is really speaking the language of the modern

social reformer, and Milton's writings on this subject are now

sometimes ranked in importance above all his other work (Masson,

_Life of Milton_, vol. iii; Howard, op. cit., vol. ii, p. 86,

vol. iii, p. 251; C.B. Wheeler, "Milton's Doctrine and Discipline

of Divorce," _Nineteenth Century_, Jan., 1907).

Marriage, said Milton, "is not a mere carnal coition, but a human

society; where that cannot be had there can be no true marriage"

(_Doctrine of Divorce_, Bk. i, Ch. XIII); it is "a covenant, the

very being whereof consists not in a forced cohabitation, and

counterfeit performance of duties, but in unfeigned love and

peace" (Ib., Ch. VI). Any marriage that is less than this is "an

idol, nothing in the world." The weak point in Milton's

presentation of the matter is that he never explicitly accords to

the wife the same power of initiative in marriage and divorce as

to the husband. There is, however, nothing in his argument to

prevent its equal application to the wife, an application which,

while never asserting he never denies; and it has been pointed

out that he assumes that women are the equals of men and demands

from them intellectual and spiritual companionship; however ready

Milton may have been to grant complete equality of divorce to the

wife, it would have been impossible for a seventeenth century

Puritan to have obtained any hearing for such a doctrine; his

arguments would have been received with, if that were possible,

even more neglect than they actually met. (Milton's scornful

sonnet concerning the reception of his book is well known.)

Milton insists that in the conventional Christian marriage

exclusive importance is attached to carnal connection. So long as

that connection is possible, no matter what antipathy may exist

between the couple, no matter how mistaken they may have been

"through any error, concealment, or misadventure," no matter if

it is impossible for them to "live in any union or contentment

all their days," yet the marriage still holds good, the two must

"fadge together" (op. cit., Bk. i). It is the Canon law, he says,

which is at fault, "doubtless by the policy of the devil," for

the Canon law leads to licentiousness (op. cit.). It is, he

argues, the absence of reasonable liberty which causes license,

and it is the men who desire to retain the privileges of license

who oppose the introduction of reasonable liberty.

The just ground for divorce is "indisposition, unfitness, or

contrariety of mind, arising from a cause in nature unchangeable,

hindering, and ever likely to hinder, the main benefits of

conjugal society, which are solace and peace." Without the "deep

and serious verity" of mutual love, wedlock is "nothing but the

empty husks of a mere outside matrimony," a mere hypocrisy, and

must be dissolved (op. cit.).

Milton goes beyond the usual Puritan standpoint, and not only

rejects courts and magistrates, but approves of self-divorce; for

divorce cannot rightly belong to any civil or earthly power,

since "ofttimes the causes of seeking divorce reside so deeply in

the radical and innocent affections of nature, as is not within

the diocese of law to tamper with." He adds that, for the

prevention of injustice, special points may be referred to the

magistrate, who should not, however, in any case, be able to

forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking from a

standpoint which we have not even yet attained, he protests

against the absurdity of "authorizing a judicial court to toss

about and divulge the unaccountable and secret reason of

disaffection between man and wife."

In modern times Hinton was accustomed to compare the marriage law

to the law of the Sabbath as broken by Jesus. We find exactly the

same comparison in Milton. The Sabbath, he believes, was made for

God. "Yet when the good of man comes into the scales, we have

that voice of infinite goodness and benignity, that 'Sabbath was

made for man and not man for Sabbath.' What thing ever was made

more for man alone, and less for God, than marriage?" (_op.

cit._, Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be

less than lord of marriage?"

Milton, in this matter as in others, stood outside the currents of his

age. His conception of marriage made no more impression on contemporary

life than his _Paradise Lost_. Even his own Puritan party who had passed

the Act of 1653 had strangely failed to transfer divorce and nullity cases

to the temporal courts, which would at least have been a step on the right

road. The Puritan influence was transferred to America and constituted the

leaven which still works in producing the liberal though too minutely

detailed divorce laws of many States. The American secular marriage

procedure followed that set up by the English Commonwealth, and the dictum

of the great Quaker, George Fox, "We marry none, but are witnesses of

it,"[335] (which was really the sound kernel in the Canon law) is regarded

as the spirit of the marriage law of the conservative but liberal State of

Pennsylvania, where, as recently as 1885, a statute was passed expressly

authorizing a man and woman to solemnize their own marriage.[336]

In England itself the reforms in marriage law effected by the Puritans

were at the Restoration largely submerged. For two and a half centuries

longer the English spiritual courts administered what was substantially

the old Canon law. Divorce had, indeed, become more difficult than before

the Reformation, and the married woman's lot was in consequence harder.

From the sixteenth century to the second half of the nineteenth, English

marriage law was peculiarly harsh and rigid, much less liberal than that

of any other Protestant country. Divorce was unknown to the ordinary

English law, and a special act of Parliament, at enormous expense, was

necessary to procure it in individual cases.[337] There was even an

attitude of self-righteousness in the maintenance of this system. It was

regarded as moral. There was complete failure to realize that nothing is

more immoral than the existence of unreal sexual unions, not only from

the point of view of theoretical but also of practical morality, for no

community could tolerate a majority of such unions.[338] In 1857 an act

for reforming the system was at last passed with great difficulty. It was

a somewhat incoherent and make-shift measure, and was avowedly put forward

only as a step towards further reform; but it still substantially governs

English procedure, and in the eyes of many has set a permanent standard of

morality. The spirit of blind conservatism,--_Nolumus leges Angliæ

mutare_,--which in this sphere had reasserted itself after the vital

movement of Reform and Puritanism, still persists. In questions of

marriage and divorce English legislation and English public feeling are

behind alike both the Latin land of France and the Puritanically moulded

land of the United States.

The author of an able and temperate essay on _The Question of

English Divorce_, summing up the characteristics of the English

divorce law, concludes that it is: (1) unequal, (2) immoral, (3)

contradictory, (4) illogical, (5) uncertain, and (6) unsuited to

present requirements. It was only grudgingly introduced in a

bill, presented to Parliament in 1857, which was stubbornly

resisted during a whole session, not only on religious grounds by

the opponents of divorce, but also by the friends of divorce, who

desired a more liberal measure. It dealt with the sexes

unequally, granting the husband but not the wife divorce for

adultery alone. In introducing the bill the Attorney-General

apologized for this defect, stating that the measure was not

intended to be final, but merely as a step towards further

legislation. That was more than half a century ago, but the

further step has not yet been taken. Incomplete and

unsatisfactory as the measure was, it seems to have been regarded

by many as revolutionary and dangerous in the highest degree. The

author of an article on "Modern Divorce" in the _Universal

Review_ for July, 1859, while approving in principle of the

establishment of a special Divorce Court, yet declared that the

new court was "tending to destroy marriage as a social

institution and to sap female chastity," and that "everyone now

is a husband and wife at will." "No one," he adds, "can now

justly quibble at a deficiency of matrimonial vomitories."

Yet, according to this law, it is not even possible for a wife to

obtain a divorce for her husband's adultery, unless he is also

cruel or deserts her. At first "cruelty" meant physical cruelty

and of a serious kind. But in course of time the meaning of the

word was extended to pain inflicted on the mind, and now coldness

and neglect may almost of themselves constitute cruelty, though

the English court has sometimes had the greatest hesitation in

accepting the most atrocious forms of refined cruelty, because it

involved no "physical" element. "The time may very reasonably be

looked forward to, however," a legal writer has stated

(Montmorency, "The Changing Status of a Married Woman," _Law

Quarterly Review_, April, 1897), "when almost any act of

misconduct will, in itself, be considered to convey such mental

agony to the innocent party as to constitute the cruelty

requisite under the Act of 1857." (The question of cruelty is

fully discussed in J.R. Bishop's _Commentaries on Marriage,

Divorce and Separation_, 1891, vol. i, Ch. XLIX; cf. Howard, op.

cit., vol. ii, p. 111).

There can be little doubt, however, that cruelty alone is a

reasonable cause for divorce. In many American States, where the

facilities for divorce are much greater than in England, cruelty

is recognized as itself sufficient cause, whether the wife or the

husband is the complainant. The acts of cruelty alleged have

sometimes been seemingly very trivial. Thus divorces have been

pronounced in America on the ground of the "cruel and inhuman

conduct" of a wife who failed to sew her husband's buttons on, or

because a wife "struck plaintiff a violent blow with her bustle,"

or because a husband does not cut his toe-nails, or because

"during our whole married life my husband has never offered to

take me out riding. This has been a source of great mental

suffering and injury." In many other cases, it must be added, the

cruelty inflicted by the husband, even by the wife--for though

usually, it is not always, the husband who is the brute--is of an

atrocious and heart-rending character (_Report on Marriage and

Divorce in the United States_, issued by Hon. Carroll D. Wright,

Commissioner of Labor, 1889). But even in many of the apparently

trivial cases--as of a husband who will not wash, and a wife who

is constantly evincing a hasty temper--it must be admitted that

circumstances which, in the more ordinary relationships of life

may be tolerated, become intolerable in the intimate relationship

of sexual union. As a matter of fact, it has been found by

careful investigation that the American courts weigh well the

cases that come before them, and are not careless in the granting

of decrees of divorce.

In 1859 an exaggerated importance was attached to the gross

reasons for divorce, to the neglect of subtle but equally fatal

impediments to the continuance of marriage. This was pointed out

by Gladstone, who was opposed to making adultery a cause of

divorce at all. "We have many causes," he said, "more fatal to

the great obligation of marriage, as disease, idiocy, crime

involving punishment for life." Nowadays we are beginning to

recognize not only such causes as these, but others of a far more

intimate character which, as Milton long ago realized, cannot be

embodied in statutes, or pleaded in law courts. The matrimonial

bond is not merely a physical union, and we have to learn that,

as the author of _The Question of English Divorce_ (p. 49)

remarks, "other than physical divergencies are, in fact, by far

the most important of the originating causes of matrimonial

disaster."

In England and Wales more husbands than wives petition for

divorce, the wives who petition being about 40 per cent, of the

whole. Divorces are increasing, though the number is not large,

in 1907 about 1,300, of whom less than half remarried. The

inadequacy of the divorce law is shown by the fact that during

the same year about 7,000 orders for judicial separation were

issued by magistrates. These separation orders not only do not

give the right to remarry, but they make it impossible to obtain

divorce. They are, in effect, an official permission to form

relationships outside State marriage.

In the United States during the years 1887-1906 nearly 40 per

cent, of the divorces granted were for "desertion," which is

variously interpreted in different States, and must often mean a

separation by mutual consent. Of the remainder, 19 per cent, were

for unfaithfulness, and the same proportion for cruelty; but

while the divorces granted to husbands for the infidelity of

their wives are nearly three times as great proportionately as

those granted to wives for their husband's adultery, with regard

to cruelty it is the reverse, wives obtaining 27 per cent, of

their divorces on that ground and husbands only 10 per cent.

In Prussia divorce is increasing. In 1907 there were eight

thousand divorces, the cause in half the cases being adultery,

and in about a thousand cases malicious desertion. In cases of

desertion the husbands were the guilty parties nearly twice as

often as the wives, in cases of adultery only a fifth to an

eighth part.

There cannot be the slightest doubt that the difficulty, the confusion,

the inconsistency, and the flagrant indecency which surround divorce and

the methods of securing it are due solely and entirely to the subtle

persistence of traditions based, on the one hand, on the Canon law

doctrines of the indissolubility of marriage and the sin of sexual

intercourse outside marriage, and, on the other hand, on the primitive

idea of marriage as a contract which economically subordinates the wife to

the husband and renders her person, or at all events her guardianship, his

property. It is only when we realize how deeply these traditions have

become embedded in the religious, legal, social and sentimental life of

Europe that we can understand how it is that barbaric notions of marriage

and divorce can to-day subsist in a stage of civilization which has, in

many respects, advanced beyond such notions.

The Canon law conception of the abstract religious sanctity of matrimony,

when transferred to the moral sphere, makes a breach of the marriage

relationship seem a public wrong; the conception of the contractive

subordination of the wife makes such a breach on her part, and even, by

transference of ideas, on his part, seem a private wrong. These two ideas

of wrong incoherently flourish side by side in the vulgar mind, even

to-day.

The economic subordination of the wife as a species of property

significantly comes into view when we find that a husband can claim, and

often secure, large sums of money from the man who sexually approaches his

property, by such trespass damaging it in its master's eyes.[339] To a

psychologist it would be obvious that a husband who has lacked the skill

so to gain and to hold his wife's love and respect that it is not

perfectly easy and natural to her to reject the advances of any other man

owes at least as much damages to her as she or her partner owes to him;

while if the failure is really on her side, if she is so incapable of

responding to love and trust and so easy a prey to an outsider, then

surely the husband, far from wishing for any money compensation, should

consider himself more than fully compensated by being delivered from the

necessity of supporting such a woman. In the absence of any false

traditions that would be obvious. It might not, indeed, be unreasonable

that a husband should pay heavily in order to free himself from a wife

whom, evidently, he has made a serious mistake in choosing. But to ordain

that a man should actually be indemnified because he has shown himself

incapable of winning a woman's love is an idea that could not occur in a

civilized society that was not twisted by inherited prejudice.[340] Yet as

matters are to-day there are civilized countries in which it is legally

possible for a husband to enter a prayer for damages against his wife's

paramour in combination with either a petition for judicial separation or

for dissolution of wedlock. In this way adultery is not a crime but a

private injury.[341]

At the same time, however, the influence of Canon law comes inconsistently

to the surface and asserts that a breach of matrimony is a public wrong, a

sin transformed by the State into something almost or quite like a crime.

This is clearly indicated by the fact that in some countries the adulterer

is liable to imprisonment, a liability scarcely nowadays carried into

practice. But exactly the same idea is beautifully illustrated by the

doctrine of "collusion," which, in theory, is still strictly observed in

many countries. According to the doctrine of "collusion" the conditions

necessary to make the divorce possible must on no account be secured by

mutual agreement. In practice it is impossible to prevent more or less

collusion, but if proved in court it constitutes an absolute impediment to

the granting of a divorce, however just and imperative the demand for

divorce may be.

The English Divorce Act of 1857 refused divorce when there was

collusion, as well as when there was any countercharge against

the petitioner, and the Matrimonial Causes Act of 1860 provided

the machinery for guaranteeing these bars to divorce. This

question of collusion is discussed by G.P. Bishop (op. cit.,

vol. ii, Ch. IX). "However just a cause may be," Bishop remarks,

"if parties collude in its management, so that in real fact both

parties are plaintiffs, while by the record the one appears as

plaintiff and the other as defendant, it cannot go forward. All

conduct of this sort, disturbing to the course of justice, falls

within the general idea of fraud on the court. Such is the

doctrine in principle everywhere."

It is quite evident that from the social or the moral point of view, it is

best that when a husband and wife can no longer live together, they should

part amicably, and in harmonious agreement effect all the arrangements

rendered necessary by their separation. The law ridiculously forbids them

to do so, and declares that they must not part at all unless they are

willing to part as enemies. In order to reach a still lower depth of

absurdity and immorality the law goes on to say that if as a matter of

fact they have succeeded in becoming enemies to each other to such an

extent that each has wrongs to plead against the other party they cannot

be divorced at all![342] That is to say that when a married couple have

reached a degree of separation which makes it imperatively necessary, not

merely in their own interests but in the moral interests of society, that

they should be separated and their relations to other parties concerned

regularized, then they must on no account be separated.

It is clear how these provisions of the law are totally opposed to the

demands of reason and morality. Yet at the same time it is equally clear

how no efforts of the lawyers, however skilful or humane those efforts may

be, can bring the present law into harmony with the demands of modern

civilization. It is not the lawyers who are at fault; they have done

their best, and, in England, it is entirely owing to the skilful and

cautious way in which the judges have so far as possible pressed the law

into harmony with modern needs, that our antiquated divorce laws have

survived at all. It is the system which is wrong. That system is the

illegitimate outgrowth of the Canon law which grew up around conceptions

long since dead. It involves the placing of the person who imperils the

theoretical indissolubility of the matrimonial bond in the position of a

criminal, now that he can no longer be publicly condemned as a sinner. To

aid and abet that criminal is itself an offence, and the aider and abettor

of the criminal must, therefore, be inconsequently punished by the curious

method of refraining from punishing the criminal. We do not openly assert

that the defendant in a divorce case is a criminal; that would be to

render the absurdity of it too obvious, and, moreover, would be hardly

consistent with the permission to claim damages which is based on a

different idea. We hover uncertainly between two conceptions of divorce,

both of them bad, each inconsistent with the other, and neither of them

capable of being pushed to its logical conclusions.

The result is that if a perfectly virtuous married couple comes forward to

claim divorce, they are told that it is out of the question, for in such a

case there must be a "defendant." They are to be punished for their

virtue. If each commits adultery and they again come forward to claim

divorce, they are told that it is still out of the question, for there

must be a "plaintiff." Before they were punished for their virtue; now

they are to be punished in exactly the same way for their lack of it. The

couple must humor the law by adopting a course of action which may be

utterly repugnant to both. If only the wife alone will commit adultery, if

only the husband will commit adultery and also inflict some act of cruelty

upon his wife, if the innocent party will descend to the degradation of

employing detectives and hunting up witnesses, the law is at their feet

and hastens to accord to both parties the permission to remarry. Provided,

of course, that the parties have arranged this without "collusion." That

is to say that our law, with its ecclesiastical traditions behind it,

says to the wife: Be a sinner, or to the husband: Be a sinner and a

criminal--then we will do all you wish. The law puts a premium on sin and

on crime. In order to pile absurdity on absurdity it claims that this is

done in the cause of "public morality." To those who accept this point of

view it seems that the sweeping away of divorce laws would undermine the

bases of morality. Yet there can be little doubt that the sooner such

"morality" is undermined, and indeed utterly destroyed, the better it will

be for true morality.

There is an influential movement in England for the reform of

divorce, on the grounds that the present law is unjust,

illogical, and immoral, represented by the Divorce Law Reform

Union. Even the former president of the Divorce Court, Lord

Gorell, declared from the bench in 1906 that the English law

produces deplorable results, and is "full of inconsistencies,

anomalies and inequalities, amounting almost to absurdities." The

points in the law which have aroused most protest, as being most

behind the law of other nations, are the great expense of

divorce, the inequality of the sexes, the failure to grant

divorces for desertion and in cases of hopeless insanity, and the

failure of separation orders to enable the separated parties to

marry again. Separation orders are granted by magistrates for

cruelty, adultery, and desertion. This "separation" is really the

direct descendant of the Canon law divorce _a mensa et thoro_,

and the inability to marry which it involves is merely a survival

of the Canon law tradition. At the present time

magistrates--exercising their discretion, it is admitted, in a

careful and prudent manner--issue some 7,000 separation orders

annually, so that every year the population is increased by

14,000 individuals mostly in the age of sexual vigor, and some

little more than children, who are forbidden by law to form legal

marriages. They contribute powerfully to the great forward

movement which, as was shown in the previous chapter, marks the

morality of our age. But it is highly undesirable that free

marriages should be formed, helplessly, by couples who have no

choice in the matter, for it is unlikely that under such

circumstances any high level of personal responsibility can be

reached. The matter could be easily remedied by dropping

altogether a Canon law tradition which no longer has any vitality

or meaning, and giving to the magistrate's separation order the

force of a decree of divorce.

New Zealand and the Australian colonies, led by Victoria in 1889,

have passed divorce laws which, while more or less framed on the

English model, represent a distinct advance. Thus in New Zealand

the grounds for divorce are adultery on either side, wilful

desertion, habitual drunkenness, and conviction to imprisonment

for a term of years.

It is natural that an Englishman should feel acutely sensitive to this

blot in the law of England and desire the speedy disappearance of a system

so open to scathing sarcasm. It is natural that every humane person should

grow impatient of the spectacle of so many blighted lives, of so much

misery inflicted on innocent persons--and on persons who even when

technically guilty are often the victims of unnatural circumstances--by

the persistence of a mediæval system of ecclesiastical tyranny and

inquisitorial insolence into an age when sexual relationships are becoming

regarded as the sacred secret of the persons intimately concerned, and

when more and more we rely on the responsibility of the individual in

making and maintaining such relationships.

When, however, we refrain from concentrating our attention on particular

countries and embrace the general movement of civilization in the matter

of divorce during recent times, there cannot be the slightest doubt as to

the direction of that movement. England was a pioneer in the movement half

a century ago, and to-day every civilized country is moving in the same

direction. France broke with the old ecclesiastical tradition of the

indissolubility of matrimony in 1885 by a divorce law in some respects

very reasonable. The wife may obtain a divorce on an equality with the

husband (though she is liable to imprisonment for adultery), the

co-respondent occupies a very subordinate position in adultery charges,

and facility is offered for divorce on the ground of simple _injures

graves_ (excluding as far as possible mere incompatibility of temper),

while the judge has the power, which he often successfully exerts, to

effect a reconciliation in private or to grant a decree without public

trial. The influence of France has doubtless been influential in moulding

the divorce laws of the other Latin countries.

In Prussia an enlightened divorce law formerly prevailed by which it was

possible for a couple to separate without scandal when it was clearly

shown that they could not live together in agreement. But the German Code

of 1900 introduced provisions as regards divorce which--while in some

respects more liberal than those of the English law, especially by

permitting divorce for desertion and insanity--are, on the whole,

retrograde as compared with the earlier Prussian law and place the matter

on a cruder and more brutal basis. For two years after the Code came into

operations the number of divorces sank; after that the public and the

courts adapted themselves to the new provisions (more especially one which

allowed divorce for serious neglect of conjugal duties) and the number of

divorces began to increase with great rapidity. "But," remarks Hirschfeld,

"how painful it has now become to read divorce cases! One side abuses the

other, makes accusations of the grossest character, employs detectives to

obtain the necessary proofs of 'dishonorable and immoral conduct,'

whereas, before, both parties realized that they had been deceived in each

other, that they failed to suit each other, and that they could no longer

live together. Thus we see that the narrowing of individual responsibility

in sexual matters has not only had no practical effect, but leads to

injurious results of a serious kind."[343] In England a similar state of

things has prevailed ever since divorce was established, but it seems to

have become too familiar to excite either pain or disgust. Yet, as Adner

has pointed out,[344] it has moved in a direction contrary to the general

tendency of civilization, not only by increasing the inquisitorial

authority of public courts but by emphasizing merely external causes of

divorce and abolishing the more subtle internal causes which constantly

grow in importance with the refinement of civilization.

In Austria until recent years, Canon law ruled absolutely, and matrimony

was indissoluble, as it still remains for the Catholic population. The

results as regards matrimonial happiness were in the highest degree

deplorable. Half a century ago Gross-Hoffinger investigated the marital

happiness of 100 Viennese couples of all social classes, without choice of

cases, and presented the results in detail. He found that 48 couples were

positively unhappy, only 16 were undoubtedly happy, and even among these

there was only one case in which happiness resulted from mutual

faithfulness, happiness in the other cases being only attained by setting

aside the question of fidelity.[345] This picture, it is to be hoped, no

longer remains true. There is an influential Austrian Marriage Reform

Association, publishing a journal called _Die Fessel_, or The Fetter. "One

was chained to another," we are told. "In certain circumstances this must

have been the worst and most torturing penalty of all. The most bizarre

and repulsive couplings took place. There were, it is true, many

affectionate companionships of the chain. But there were many more which

inflicted an eternity of suffering upon one of the pair." This quotation,

it must be added, has nothing to do with what the Canonists, borrowing the

technical term for a prisoner's shackles, suggestively termed the

_vinculum matrimonii_; it was written many years ago concerning the

galleys of the old French convict system. It is, however, recalled to

one's mind by the title which the Austrian Marriage Reform Association has

given to its official organ.

Russia, where the marriage laws are arranged by the Holy Synod aided by

jurists, stands almost alone among the great countries in the reasonable

simplicity of its divorce provisions. Before 1907 divorce was very

difficult to obtain in Russia, but in that year it became possible for a

married couple to separate by mutual consent and after living apart for a

year to become thereby entitled to a divorce enabling them to remarry.

This provision is in accordance with the humane conception of the sexual

relationship which has always tended to prevail in Russia, whither, it

must be remembered, the stern and unnatural ideals of compulsory celibacy

cherished by the Western Church never completely penetrated; the clergy of

the Eastern Church are married, though the marriage must take place before

they enter the priesthood, and they could not sympathize with the

anti-sexual tone of the marriage regulations laid down by the celibate

clergy of the west.

Switzerland, again, which has been regarded as the political laboratory

of Europe, also stands apart in the liberality of its divorce legislation.

A renewable divorce for two years may be obtained in Switzerland when

there are "circumstances which seriously affect the maintenance of the

conjugal tie." To the Grand Duchy of Luxembourg, finally, belongs the

honor of having firmly maintained throughout the great principle of

divorce by mutual consent under legal conditions, as established by

Napoleon in his Code of 1803. The smaller countries generally are in

advance of the large in matters of divorce law. The Norwegian law is

liberal. The new Roumanian Code permits divorce by mutual consent,

provided both parents grant equal shares of their property to the

children. The little principality of Monaco has recently introduced the

reasonable provision of granting divorce for, among other causes,

alcoholism, syphilis, and epilepsy, so protecting the future race.

Outside Europe the most instructive example of the tendency of divorce is

undoubtedly furnished by the United States of America. The divorce laws of

the States are mainly on a Puritanic basis, and they retain not only the

Puritanic love of individual freedom but the Puritanic precisianism.[346]

In some States, notably Iowa, the statute-makers have been constantly

engaged in adopting, changing, abrogating and re-enacting the provisions

of their divorce laws, and Howard has shown how much confusion and

awkwardness arise by such perpetual legislative fiddling over small

details.

This restless precisianism has somewhat disguised the generally broad and

liberal tendency of marriage law in America, and has encouraged foreign

criticism of American social institutions. As a matter of fact the

prevalence of divorce in America is enormously exaggerated. The proportion

of divorced persons in the population appears to be less than one per

cent., and, contrary to a frequent assertion, it is by no means the rule

for divorced persons to remarry immediately. Taking into account the

special conditions of life in the United States the prevalence of divorce

is small and its character by no means reveals a low grade morality. An

impartial and competent critic of the American people, Professor

Münsterberg, remarks that the real ground which mainly leads to divorce in

the United States--not the mere legal pretexts made compulsory by the

precisianism of the law--is the highly ethical objection to continuing

externally in a marriage which has ceased to be spiritually congenial. "It

is the women especially," he says, "and generally the very best women, who

prefer to take the step, with all the hardships which it involves, to

prolonging a marriage which is spiritually hypocritical and immoral."[347]

The people of the United States, above all others, cherish ideals of

individualism; they are also the people among whom, above all others,

there is the greatest amount of what Reibmayr calls "blood-chaos." Under

such circumstances the difficulties of conjugal life are necessarily at a

maximum, and marriage union is liable to subtle impediments which must

forever elude the statute-book.[348] There can be little doubt that the

practical sagacity of the American people will enable them sooner or later

to recognize this fact, and that finally fulfilling the Puritanic drift of

their divorce legislation--as foreshadowed in its outcome by Milton--they

will agree to trust their own citizens with the responsibility of deciding

so private a matter as their conjugal relationships, with, of course,

authority in the courts to see that no injustice is committed. It is,

indeed, surprising that the American people, usually intolerant of State

interference, should in this matter so long have tolerated such

interference in so private a matter.

The movement of divorce is not confined to Christendom; it is a mark of

modern civilization. In Japan the proportion of divorces is higher than in

any other country, not excluding the United States.[349] The most vigorous

and progressive countries are those that insist most firmly on the purity

of sexual unions. In the United States it was pointed out many years ago

that divorce is most prevalent where the standard of education and

morality is highest. It was the New England States, with strong Puritanic

traditions of moral freedom, which took the lead in granting facility to

divorce. The divorce movement is not, as some have foolishly supposed, a

movement making for immorality.[350] Immorality is the inevitable

accompaniment of indissoluble marriage; the emphasis on the sanctity of a

merely formal union discourages the growth of moral responsibility as

regards the hypothetically unholy unions which grow up beneath its shadow.

To insist, on the other hand, by establishing facility of divorce, that

sexual unions shall be real, is to work in the cause of morality. The

lands in which divorce by mutual consent has prevailed longest are

probably among the most, and not the least, moral of lands.

Surprise has been expressed that although divorce by mutual consent

commended itself as an obviously just and reasonable measure two thousand

years ago to the legally-minded Romans that solution has even yet been so

rarely attained by modern states.[351] Wherever society is established on

a solidly organized basis and the claims of reason and humanity receive

due consideration--even when the general level of civilization is not in

every respect high--there we find a tendency to divorce by mutual consent.

In Japan, according to the new Civil Code, much as in ancient

Rome, marriage is effected by giving notice of the fact to the

registrar in the presence of two witnesses, and with the consent

(in the case of young couples) of the heads of their families.

There may be a ceremony, but it is not demanded by the law.

Divorce is effected in exactly the same way, by simply having the

registration cancelled, provided both husband and wife are over

twenty-five years of age. For younger couples unhappily married,

and for cases in which mutual consent cannot be obtained,

judicial divorce exists. This is granted for various specific

causes, of which the most important is "grave insult, such as to

render living together unbearable" (Ernest W. Clement, "The New

Woman in Japan," _American Journal Sociology_, March, 1903). Such

a system, like so much else achieved by Japanese organization,

seems reasonable, guarded, and effective.