In the very different and far more ancient marriage system of

China, divorce by mutual consent is equally well-established.

Such divorce by mutual consent takes place for incompatibility of

temperament, or when both husband and wife desire it. There are,

however, various antiquated and peculiar provisions in the

Chinese marriage laws, and divorce is compulsory for the wife's

adultery or serious physical injuries inflicted by either party

on the other. (The marriage laws of China are fully set forth by

Paul d'Enjoy, _La Revue_, Sept. 1, 1905.)

Among the Eskimo (who, as readers of Nansen's fascinating books

on their morals will know, are in some respects a highly

socialized people) the sexes are absolutely equal, marriages are

perfectly free, and separation is equally free. The result is

that there are no uncongenial unions, and that no unpleasant word

is heard between man and wife (Stefánsson, _Harper's Magazine_,

Nov., 1908).

Among the ancient Welsh, women, both before and after marriage,

enjoyed great freedom, far more than was afforded either by

Christianity or the English Common law. "Practically either

husband or wife could separate when either one or both chose"

(Rhys and Brynmor-Jones, _The Welsh People_, p. 214). It was so

also in ancient Ireland. Women held a very high position, and the

marriage tie was very free, so as to be practically, it would

appear, dissoluble by mutual consent. So far as the Brehon laws

show, says Ginnell (_The Brehon Laws_, p. 212), "the marriage

relation was extremely loose, and divorce was as easy, and could

be obtained on as slight ground, as is now the case in some of

the States of the American Union. It appears to have been

obtained more easily by the wife than by the husband. When

obtained on her petition, she took away with her all the property

she had brought her husband, all her husband had settled upon

her on their marriage, and in addition so much of her husband's

property as her industry appeared to have entitled her to."

Even in early French history we find that divorce by mutual

consent was very common. It was sufficient to prepare in

duplicate a formal document to this effect: "Since between N. and

his wife there is discord instead of charity according to God,

and that in consequence it is impossible for them to live

together, it has pleased both to separate, and they have

accordingly done so." Each of the parties was thus free either to

retire into a cloister or to contract another union (E. de la

Bedollière, _Histoire des Moeurs des Français_, vol. i, p. 317).

Such a practice, however it might accord with the germinal

principle of consent embodied in the Canon law, was far too

opposed to the ecclesiastical doctrine of the sacramental

indissolubility of matrimony to be permanently allowed, and it

was completely crushed out.

The fact that we so rarely find divorce by mutual consent in Christendom

until the beginning of the nineteenth century, that then it required a man

of stupendous and revolutionary genius like Napoleon to reintroduce it,

and that even he was unable to do so effectually, is clearly due to the

immense victory which the ascetic spirit of Christianity, as firmly

embodied in the Canon law, had gained over the souls and bodies of men. So

subjugated were European traditions and institutions by this spirit that

even the volcanic emotional uprising of the Reformation, as we have seen,

could not shake it off. When Protestant States naturally resumed the

control of secular affairs which had been absorbed by the Church, and

rescued from ecclesiastical hands those things which belonged to the

sphere of the individual conscience, it might have seemed that marriage

and divorce would have been among the first concerns to be thus

transferred. Yet, as we know, England was about as much enslaved to the

spirit and even the letter of Canon law in the nineteenth as in the

fourteenth century, and even to-day English law, though no longer

supported by the feeling of the masses, clings to the same traditions.

There seems to be little doubt, however, that the modern movement for

divorce must inevitably tend to reach the goal of separation by the will

of both parties, or, under proper conditions and restrictions, by the

will of one party. It now requires the will of two persons to form a

marriage; law insists on that condition.[352] It is logical as well as

just that law should take the next step involved by the historical

evolution of marriage, and equally insist that it requires the will of two

persons to maintain a marriage. This solution is, without doubt, the only

way of deliverance from the crudities, the indecencies, the inextricable

complexities which are introduced into law by the vain attempt to foresee

in detail all the possibilities of conjugal disharmony which may arise

under the conditions of modern civilization. It is, moreover, we may rest

assured, the only solution which the growing modern sense of personal

responsibility in sexual matters traced in the previous chapter--the

responsibility of women as well as of men--will be content to accept.

The subtle and complex character of the sexual relationships in a

high civilization and the unhappy results of their State

regulation were well expressed by Wilhelm von Humboldt in his

_Ideen zu einen Versuch die Grenzen der Wirksamkeit des Staates

zu bestimmen_, so long ago as 1792. "A union so closely allied

with the very nature of the respective individuals must be

attended with the most hurtful consequences when the State

attempts to regulate it by law, or, through the force of its

institutions, to make it repose on anything save simple

inclination. When we remember, moreover, that the State can only

contemplate the final results of such regulations on the race, we

shall be still more ready to admit the justice of this

conclusion. It may reasonably be argued that a solicitude for the

race only conducts to the same results as the highest solicitude

for the most beautiful development of the inner man. For, after

careful observation, it has been found that the uninterrupted

union of one man with one woman is most beneficial to the race,

and it is likewise undeniable that no other union springs from

true, natural, harmonious love. And further, it may be observed,

that such love leads to the same results as those very relations

which law and custom tend to establish. The radical error seems

to be that the law commands; whereas such a relation cannot mould

itself according to external arrangements, but depends wholly on

inclination; and wherever coercion or guidance comes into

collision with inclination, they divert it still farther from the

proper path. Wherefore it appears to me that the State should not

only loosen the bonds in this instance and leave ampler freedom

to the citizen, but that it should entirely withdraw its active

solicitude from the institution of marriage, and, both generally

and in its particular modifications, should rather leave it

wholly to the free choice of the individuals, and the various

contracts they may enter into with respect to it. I should not be

deterred from the adoption of this principle by the fear that all

family relations might be disturbed, for, although such a fear

might be justified by considerations of particular circumstances

and localities, it could not fairly be entertained in an inquiry

into the nature of men and States in general. For experience

frequently convinces us that just where law has imposed no

fetters, morality most surely binds; the idea of external

coercion is one entirely foreign to an institution which, like

marriage, reposes only on inclination and an inward sense of

duty; and the results of such coercive institutions do not at all

correspond to the intentions in which they originate."

A long succession of distinguished thinkers--moralists,

sociologists, political reformers--have maintained the social

advantages of divorce by mutual consent, or, under guarded

circumstances, at the wish of one party. Mutual consent was the

corner-stone of Milton's conception of marriage. Montesquieu said

that true divorce must be the result of mutual consent and based

on the impossibility of living together. Sénancour seems to agree

with Montesquieu. Lord Morley (_Diderot_, vol. ii, Ch. I),

echoing and approving the conclusions of Diderot's _Supplément au

Voyage de Bougainville_ (1772), adds that the separation of

husband and wife is "a transaction in itself perfectly natural

and blameless, and often not only laudable, but a duty." Bloch

(_Sexual Life of Our Time_, p. 240), with many other writers,

emphasizes the truth of Shelley's saying, that the freedom of

marriage is the guarantee of its durability. (That the facts of

life point in the same direction has been shown in the previous

chapter.) The learned Caspari (_Die Soziale Frage über die

Freiheit der Ehe_), while disclaiming any prevision of the

future, declares that if sexual relationships are to remain or to

become moral, there must be an easier dissolution of marriage.

Howard, at the conclusion of his exhaustive history of

matrimonial institutions (vol. iii p. 220), though he himself

believes that marriage is peculiarly in need of regulation by

law, is yet constrained to admit that it is perfectly clear to

the student of history that the modern divorce movement is "but a

part of the mighty movement for social liberation which has been

gaining in volume and strength since the Reformation." Similarly

the cautious and judicial Westermarck concludes the chapter on

marriage of his _Origin and Development of the Moral Ideas_ (vol.

ii, p. 398) with the statement that "when both husband and wife

desire to separate, it seems to many enlightened minds that the

State has no right to prevent them from dissolving the marriage

contract, provided the children are properly cared for; and that,

for the children, also, it is better to have the supervision of

one parent only than of two who cannot agree."

In France the leaders of the movement of social reform seem to be

almost, or quite, unanimous in believing that the next step in

regard to divorce is the establishment of divorce by mutual

consent. This was, for instance, the result reached in a

symposium to which thirty-one distinguished men and women

contributed. All were in favor of divorce by mutual consent; the

only exception was Madame Adam, who said she had reached a state

of skepticism with regard to political and social forms, but

admitted that for nearly half a century she had been a strong

advocate of divorce. A large number of the contributors were in

favor of divorce at the desire of one party only (_La Revue_,

March 1, 1901). In other countries, also, there is a growing

recognition that this solution of the question, with due

precautions to avoid any abuses to which it might otherwise be

liable, is the proper and inevitable solution.

As to the exact method by which divorce by mutual consent should

be effected, opinions differ, and the matter is likely to be

differently arranged in different countries. The Japanese plan

seems simple and judicious (see _ante_, p. 461). Paul and Victor

Margueritte (_Quelques Idées_, pp. 3 et seq.), while realizing

that the conflict of feeling in the matter of personal

associations involves decisions which are entirely outside the

competence of legal tribunals, recognize that such tribunals are

necessary in order to deal with the property of divorced persons,

and also, in the last resort, with the question of the care of

the children. They should not act in public. These writers

propose that each party should choose a representative, and that

these two should choose a third; and that this tribunal should

privately investigate, and if they agreed should register the

divorce, which should take place six or twelve months later, or

three years later, if only desired by one of the parties. Dr.

Shufeldt ("Psychopathia Sexualis and Divorce") proposes that a

divorce-court judge should conduct, alone, the hearing of any

cases of marital discord, the husband and wife appearing directly

before him, without counsel, though with their witnesses, if

necessary; should medical experts be required the judge alone

would be empowered to call them.

When we realize that the long delay in the acceptance of so just and

natural a basis of divorce is due to an artificial tension created by the

pressure of the dead hand of Canon law--a tension confined exclusively to

Christendom--we may also realize that with the final disappearance of that

tension the just and natural order in this relationship will spring back

the more swiftly because that relief has been so long delayed. "Nature

abhors a vacuum nowhere more than in a marriage," Ellen Key remarks in the

language of antiquated physical metaphor; the vacuum will somehow be

filled, and if it cannot be filled in a natural and orderly manner it will

be filled in an unnatural and disorderly manner. It is the business of

society to see that no laws stand in the way of the establishment of

natural order.

Reform upon a reasonable basis has been made difficult by the unfortunate

retention of the idea of delinquency. With the traditions of the Canonists

at the back of our heads we have somehow persuaded ourselves that there

cannot be a divorce unless there is a delinquent, a real serious

delinquent who, if he had his deserts, would be imprisoned and consigned

to infamy. But in the marriage relationship, as in all other

relationships, it is only in a very small number of cases that one party

stands towards the other as a criminal, even a defendant. This is often

obvious in the early stages of conjugal alienation. But it remains true in

the end. The wife commits adultery and the husband as a matter of course

assumes the position of plaintiff. But we do not inquire how it is that he

has not so won her love that her adultery is out of the question; such

inquiry might lead to the conclusion that the real defendant is the

husband. And similarly when the husband is accused of brutal cruelty the

law takes no heed to inquire whether in the infliction of less brutal but

not less poignant wounds, the wife also should not be made defendant.

There are a few cases, but only a few, in which the relationship of

plaintiff and defendant is not a totally false and artificial

relationship, an immoral legal fiction. In most cases, if the truth were

fully known, husband and wife should come side by side to the divorce

court and declare: "We are both in the wrong: we have not been able to

fulfil our engagements to each other; we have erred in choosing each

other." The long reports of the case in open court, the mutual

recriminations, the detectives, the servant girls and other witnesses, the

infamous inquisition into intimate secrets--all these things, which no

necessity could ever justify, are altogether unnecessary.

It is said by some that if there were no impediments to divorce a man

might be married in succession to half a dozen women. These simple-minded

or ignorant persons do not seem to be aware that even when marriage is

absolutely indissoluble a man can, and frequently does, carry on sexual

relationships not merely successively, but, if he chooses, even

simultaneously, with half a dozen women. There is, however, this important

difference that, in the one case, the man is encouraged by the law to

believe that he need only treat at most one of the six women with anything

approaching to justice and humanity; in the other case the law insists

that he shall fairly and openly fulfil his obligations towards all the six

women. It is a very important difference, and there ought to be no

question as to which state of things is moral and which immoral. It is no

concern of the State to inquire into the number of persons with whom a man

or a woman chooses to have sexual relationships; it is a private matter

which may indeed affect their own finer spiritual development but which it

is impertinent for the State to pry into. It is, however, the concern of

the State, in its own collective interest and that of its members, to see

that no injustice is done.

But what about the children? That is necessarily a very important

question. The question of the arrangements made for the children in cases

of divorce is always one to which the State must give its regulative

attention, for it is only when there are children that the State has any

real concern in the matter.

At one time it was even supposed by some that the existence of children

was a serious argument against facility of divorce. A more reasonable view

is now generally taken. It is, in the first place, recognized that a very

large proportion of couples seeking divorce have no children. In England

the proportion is about forty per cent.; in some other countries it is

doubtless larger still. But even when there are children no one who

realizes what the conditions are in families where the parents ought to be

but are not divorced can have any doubt that usually those conditions are

extremely bad for the children. The tension between the parents absorbs

energy which should be devoted to the children. The spectacle of the

grievances or quarrels of their parents is demoralizing for the children,

and usually fatal to any respect towards them. At the best it is

injuriously distressing to the children. One effective parent, there

cannot be the slightest doubt, is far better for a child than two

ineffective parents. There is a further point, often overlooked, for

consideration here. Two people when living together at variance--one of

them perhaps, it is not rarely the case, nervously abnormal or

diseased--are not fitted to become parents, nor in the best condition for

procreation. It is, therefore, not merely an act of justice to the

individual, but a measure called for in the interests of the State, that

new citizens should not be brought into the community through such

defective channels.[353] From this point of view all the interests of the

State are on the side of facility of divorce.

There is a final argument which is often brought forward against facility

of divorce. Marriage, it is said, is for the protection of women;

facilitate divorce and women are robbed of that protection. It is obvious

that this argument has little application as against divorce by mutual

consent. Certainly it is necessary that divorce should only be arranged

under conditions which in each individual case have received the approval

of the law as just. But it must always be remembered that the essential

fact of marriage is not naturally, and should never artificially be made,

an economic question. It is possible--that is a question which society

will have to consider--that a woman should be paid for being a mother on

the ground that she is rearing new citizens for the State. But neither the

State nor her husband nor anyone else ought to pay her for exercising

conjugal rights. The fact that such an argument can be brought forward

shows how far we are from the sound biological attitude towards sexual

relationships. Equally unsound is the notion that the virgin bride brings

her husband at marriage an important capital which is consumed in the

first act of intercourse and can never be recovered. That is a notion

which has survived into civilization, but it belongs to barbarism and not

to civilization. So far as it has any validity it lies within a sphere of

erotic perversity which cannot be taken into consideration in an

estimation of moral values. For most men, however, in any case, whether

they realize it or not, the woman who has been initiated into the

mysteries of love has a higher erotic value than the virgin, and there

need be no anxiety on this ground concerning the wife who has lost her

virginity. It is probably a significant fact that this anxiety for the

protection of women by the limitation of divorce is chiefly brought

forward by men and not by women themselves. A woman at marriage is

deprived by society and the law of her own name. She has been deprived

until recently of the right to her own earnings. She is deprived of the

most intimate rights in her own person. She is deprived under some

circumstances of her own child, against whom she may have committed no

offence whatever. It is perhaps scarcely surprising that she is not

greatly appreciative of the protection afforded her by the withholding of

the right to divorce her husband. "Ah, no, no protection!" a brilliant

French woman has written. "We have been protected long enough. The only

protection to grant women is to cease protecting them."[354] As a matter

of fact the divorce movement appears to develop, on the whole, with that

development of woman's moral responsibility traced in the previous

chapter, and where divorce is freest women occupy the highest position.

We cannot fail to realize as we grasp the nature and direction of the

modern movement of divorce that the final tendency of that movement is to

efface itself. Necessary as the Divorce Court has been as the inevitable

corollary of an impossible ecclesiastical conception of marriage, no

institution is now more hideous, more alien to the instinctive feelings

generated by a fine civilization, and more opposed to the dignity of

womanhood.[355] Its disappearance and its substitution by private

arrangements, effected on their contractive sides, especially if there are

children to provide for, under legal and if necessary judicial

supervision, is, and always has been, the natural result of the attainment

of a reasonably high stage of civilization. The Divorce Court has merely

been a phase in the history of modern marriage, and a phase that has

really been repugnant to all concerned in it. There is no need to view the

project of its ultimate disappearance with anything but satisfaction. It

was merely the outcome of an artificial conception of marriage. It is time

to return to the consideration of that conception.

We have seen that when the Catholic development of the archaic conception

of marriage as a sacrament, slowly elaborated and fossilized by the

ingenuity of the Canonists, was at last nominally dethroned, though not

destroyed, by the movement associated with the Reformation, it was

replaced by the conception of marriage as a contract. This conception of

marriage as a contract still enjoys a considerable amount of credit

amongst us.

There must always be contractive elements, implicit or explicit, in a

marriage; that was well recognized even by the Canonists. But when we

treat marriage as all contract, and nothing but contract, we have to

realize that we have set up a very peculiar form of contract, not

voidable, like other contracts, by the agreement of the parties to it, but

dissoluble as a sort of punishment of delinquency rather than by the

voluntary annulment of a bond.[356] When the Protestant Reformers seized

on the idea of marriage as a contract they were not influenced by any

reasoned analysis of the special characteristics of a contract; they were

merely anxious to secure a plausible ground, already admitted even by the

Canonists to cover certain aspects of the matrimonial union, on which they

could declare that marriage is a secular and not an ecclesiastical matter,

a civil bond and not a sacramental process.[357]

Like so much else in the Protestant revolt, the strength of this attitude

lay in the fact that it was a protest, based on its negative side on

reasonable and natural grounds. But while Protestantism was right in its

attempt--for it was only an attempt--to deny the authority of Canon law,

that attempt was altogether unsatisfactory on the positive side. As a

matter of fact marriage is not a true contract and no attempt has ever

been made to convert it into a true contract.

Various writers have treated marriage as an actual contract or

argued that it ought to be converted into a true contract. Mrs.

Mona Caird, for instance ("The Morality of Marriage,"

_Fortnightly Review_, 1890), believes that when marriage becomes

really a contract "a couple would draw up their agreement, or

depute the task to their friends, as is now generally done as

regards marriage settlements. They agree to live together on such

and such terms, making certain stipulations within the limits of

the code." The State, she holds, should, however, demand an

interval of time between notice of divorce and the divorce

itself, if still desired when that interval has passed.

Similarly, in the United States Dr. Shufeldt ("Needed Revision of

the Laws of Marriage and Divorce," _Medico-Legal Journal_, Dec.,

1897) insists that marriage must be entirely put into the hands

of the legal profession and "made a civil contract, explicit in

detail, and defining terms of divorce, in the event that a

dissolution of the contract is subsequently desired." He adds

that medical certificates of freedom from hereditary and acquired

disease should be required, and properly regulated probationary

marriages also be instituted.

In France, a deputy of the Chamber was, in 1891, so convinced

that marriage is a contract, like any other contract, that he

declared that "to perform music at the celebration of a marriage

is as ridiculous as it would be to send for a tenor to a notary's

to celebrate a sale of timber." He was of quite different mind

from Pepys, who, a couple of centuries earlier, had been equally

indignant at the absence of music from a wedding, which, he said,

made it like a coupling of dog and bitch.

A frequent demand of those who insist that marriage must be

regarded as a contract is marriage contracted for a term of

years. Marriages could be contracted for a term of five years or

less in old Japan, and it is said that they were rarely or never

dissolved at the end of the term. Goethe, in his

_Wahlverwandtschaften_ (Part I, Ch. X) incidentally introduced a

proposal for marriages for a term of five years and attached much

moral significance to the prolongation of the marriage beyond

that term without external compulsion. (Bloch considers that

Goethe had probably heard of the Japanese custom, _Sexual Life of

Our Time_, p. 241.) Professor E.D. Cope ("The Marriage Problem,"

_Open Court_, Nov. 15 and 22, 1888), likewise, in order to remove

matrimony from the domain of caprice and to permit full and fair

trial, advocated "a system of civil marriage contracts which

shall run for a definite time. These contracts should be of the

same value and effect as the existing marriage contract. The time

limits should be increased rapidly, so as to prevent women of

mature years being deprived of support. The first contract ought

not to run for less than five years, so as to give ample

opportunity for acquaintance, and for the recovery from temporary

disagreements." This first contract, Cope held, should be

terminable at the wish of either party; the second contract, for

ten or fifteen years, should only be terminable at the wish of

both parties, and the third should be permanent and indissoluble.

George Meredith, the distinguished novelist, also, more recently,

threw out the suggestion that marriages should be contracted for

a term of years.

It can scarcely be said that marriages for a term of years

constitute a very satisfactory solution of the difficulties at

present encountered. They would not commend themselves to young

lovers, who believe that their love is eternal, nor, so long as

the union proves satisfactory, is there any need to introduce the

disturbing idea of a legal termination of the contract. On the

other hand, if the union proves unhappy, it is not reasonable to

insist on the continuation for ten or even five years of an empty

form which corresponds to no real marriage union. Even if

marriage is placed on the most prosaic contractive basis it is a

mistake, and indeed an impossibility, to pre-ordain the length of

its duration. The system of fixing the duration of marriage

beforehand for a term of years involves exactly the same

principle as the system of fixing it beforehand for life. It is

open to the same objection that it is incompatible with any

vital relationship. As the demand for vital reality and

effectiveness in social relationships grows, this fact is

increasingly felt. We see exactly the same change among us in

regard to the system of inflicting fixed sentences of

imprisonment on criminals. To send a man to prison for five years

or for life, without any regard to the unknown problem of the

vital reaction of imprisonment on the man--a reaction which will

be different in every individual case--is slowly coming to be

regarded as an absurdity.

If marriage were really placed on the basis of a contract, not only would

that contract be voidable at the will of the two parties concerned,

without any question of delinquency coming into the question, but those

parties would at the outset themselves determine the conditions regulating

the contract. But nothing could be more unlike our actual marriage. The

two parties are bidden to accept each other as husband and wife; they are

not invited to make a contract; they are not even told that, little as

they may know it, they have in fact made a very complicated and elaborate

contract that was framed on lines laid down, for a large part, thousands

of years before they were born. Unless they have studied law they are

totally ignorant, also, that this contract contains clauses which under

some circumstances may be fatal to either of them. All that happens is

that a young couple, perhaps little more than children, momentarily dazed

by emotion, are hurried before the clergyman or the civil registrar of

marriages, to bind themselves together for life, knowing nothing of the

world and scarcely more of each other, knowing nothing also of the

marriage laws, not even perhaps so much as that there are any marriage

laws, never realizing that--as has been truly said--from the place they

are entering beneath a garland of flowers there is, on this side of death,

no exit except through the trapdoor of a sewer.[358]

When a woman marries she gives up the right to her own person.

Thus, according to the law of England, a man "cannot be guilty of

a rape upon his lawful wife." Stephen, who, in the first edition

of his _Digest of Criminal Law_, thought that under some

circumstances a man might be indicted for rape upon his wife, in

the last edition withdrew that opinion. A man may rape a

prostitute, but he cannot rape his wife. Having once given her

consent to sexual intercourse by the act of marrying a man, she

has given it forever, whatever new circumstances may arise, and

he has no need to ask her consent to sexual intercourse, not even

if he is knowingly suffering at the time from a venereal disease

(see, e.g., an article on "Sex Bias," _Westminster Review_,

March, 1888).

The duty of the wife to allow "conjugal rights" to her husband is

another aspect of her legal subjection to him. Even in the

nineteenth century a Suffolk lady of good family was imprisoned

in Ipswich Goal for many years and fed on bread and water, though

suffering from various diseases, till she died, simply because

she continued to disregard the decree requiring her to render

conjugal rights to her husband. This state of things was partly

reformed by the Matrimonial Causes Bill of 1884, and that bill

was passed, not to protect women, but men, against punishment for

refusal to restore conjugal rights. Undoubtedly, the modern

tendency, although it has progressed very slowly, is against

applying compulsion to either husband or wife to yield "conjugal

rights;" and since the Jackson case it is not possible in England

for a husband to use force in attempting to compel his wife to

live with him. This tendency is still more marked in the United

States; thus the Iowa Supreme Court, a few years ago, decided

that excessive demands for coitus constituted cruelty of a degree

justifying divorce (J.G. Kiernan, _Alienist and Neurologist_,

Nov. 1906, p. 466).

The slender tenure of the wife over her person is not confined to

the sexual sphere, but even extends to her right to life. In

England, if a wife kills her husband, it was formerly the very

serious offence of "petit treason," and it is still murder. But,

if a husband kills his wife and is able to plead her adultery and

his jealousy, it is only manslaughter. (In France, where jealousy

is regarded with extreme indulgence, even a wife who kills her

husband is often acquitted.)

It must not, however, be supposed that all the legal inequalities

involved by marriage are in favor of the husband. A large number

of injustices are also inflicted on the husband. The husband, for

instance, is legally responsible for the libels uttered by his

wife, and he is equally responsible civilly for the frauds she

commits, even if she is living apart from him. (This was, for

instance, held by an English judge in 1908; "he could only say he

regretted it, for it seems a hard case. But it was the law.")

Belfort Bax has, in recent years, especially insisted on the

hardships inflicted by English law in such ways as these. There

can be no doubt that marriage, as at present constituted,

inflicts serious wrongs on the husband as well as on the wife.

Marriage is, therefore, not only not a contract in the true sense,[359]

but in the only sense in which it is a contract it is a contract of an

exceedingly bad kind. When the Canonists superseded the old conception of

marriage as a contract of purchase by their sacramental marriage, they

were in many respects effecting a real progress, and the return to the

idea of a contract, as soon as its temporary value as a protest has

ceased, proves altogether out of harmony with any advanced stage of

civilization. It was revived in days before the revolt against slavery had

been inaugurated. Personal contracts are out of harmony with our modern

civilization and our ideas of individual liberty. A man can no longer

contract himself as a slave nor sell his wife. Yet marriage, regarded as a

contract, is of precisely the same class as those transactions.[360] In

every high stage of civilization this fact is clearly recognized, and

young couples are not even allowed to contract themselves out in marriage

unconditionally. We see this, for instance, in the wise legislation of the

Romans. Even under the Christian Emperors that sound principle was

maintained and the lawyer Paulus wrote:[361] "Marriage was so free,

according to ancient opinion, that even agreements between the parties not

to separate from one another could have no validity." In so far as the

essence and not any accidental circumstance of the marital relationships

is made a contract, it is a contract of a nature which the two parties

concerned are not competent to make. Biologically and psychologically it

cannot be valid, and with the growth of a humane civilization it is

explicitly declared to be legally invalid.

For, there can be no doubt about it, the intimate and essential fact of

marriage--the relationship of sexual intercourse--is not and cannot be a

contract. It is not a contract but a fact; it cannot be effected by any

mere act of will on the part of the parties concerned; it cannot be

maintained by any mere act of will. To will such a contract is merely to

perform a worse than indecorous farce. Certainly many of the circumstances

of marriage are properly the subject of contract, to be voluntarily and

deliberately made by the parties to the contract. But the essential fact

of marriage--a love strong enough to render the most intimate of

relationships possible and desirable through an indefinite number of

years--cannot be made a matter for contract. Alike from the physical point

of view, and the psychical point of view, no binding contract--and a

contract is worthless if it is not binding--can possibly be made. And the

making of such pseudo-contracts concerning the future of a marriage,

before it has even been ascertained that the marriage can ever become a

fact at all, is not only impossible but absurd.

It is of course true that this impossibility, this absurdity, are never

visible to the contracting parties. They have applied to the question all

the very restricted tests that are conventionally permitted to them, and

the satisfactory results of these tests, together with the consciousness

of possessing an immense and apparently inexhaustible fund of loving

emotion, seem to them adequate to the fulfilment of the contract

throughout life, if not indeed eternity.

As a child of seven I chanced to be in a semi-tropical island of the

Pacific supplied with fruit, especially grapes, from the mainland, and a

dusky market woman always presented a large bunch of grapes to the little

English stranger. But a day came when the proffered bunch was firmly

refused; the superabundance of grapes had produced a reaction of disgust.

A space of nearly forty years was needed to overcome the repugnance to

grapes thus acquired. Yet there can be no doubt that if at the age of six

that little boy had been asked to sign a contract binding him to accept

grapes every day, to keep them always near him, to eat them and to enjoy

them every day, he would have signed that contract as joyously as any

radiant bridegroom or demure bride signs the register in the vestry. But

is a complex man or woman, with unknown capacities for changing or

deteriorating, and with incalculable aptitudes for inflicting torture and

arousing loathing, is such a creature more easy to be bound to than an

exquisite fruit? All the countries of the world in which the subtle

influence of the Canon law of Christendom still makes itself felt, have

not yet grasped a general truth which is well within the practical

experience of a child of seven.[362]

The notion that such a relationship as that of marriage can rest

on so fragile a basis as a pre-ordained contract has naturally

never prevailed widely in its extreme form, and has been unknown

altogether in many parts of the world. The Romans, as we know,

explicitly rejected it, and even at a comparatively early period

recognized the legality of marriage by _usus_, thus declaring in

effect that marriage must be a fact, and not a mere undertaking.

There has been a widespread legal tendency, especially where the

traditions of Roman law have retained any influence, to regard

the cohabitation of marriage as the essential fact of the

relationship. It was an old rule even under the Catholic Church

that marriage may be presumed from cohabitation (see, e.g.,

Zacchia, _Questionum Medico-legalium Opus_, edition of 1688, vol.

iii, p. 234). Even in England cohabitation is already one of the

presumptions in favor of the existence of marriage (though not

necessarily by itself regarded as sufficient), provided the woman

is of unblemished character, and does not appear to be a common

prostitute (Nevill Geary, _The Law of Marriage_, Ch. III). If,

however, according to Lord Watson's judicial statement in the

Dysart Peerage case, a man takes his mistress to a hotel or goes

with her to a baby-linen shop and speaks of her as his wife, it

is to be presumed that he is acting for the sake of decency, and

this furnishes no evidence of marriage. In Scotland the

presumption of marriage arises on much slighter grounds than in

England. This may be connected with the ancient and deep-rooted

custom in Scotland of marriage by exchange of consent (Geary, op.

cit. Ch. XVIII; cf., Howard, _Matrimonial Institutions_, vol. i,

p. 316).

In the Bredalbane case (Campbell _v._ Campbell, 1867), which was

of great importance because it involved the succession to the

vast estates of the Marquis of Bredalbane, the House of Lords

decided than even an adulterous connection may, on ceasing to be

adulterous, become matrimonial by the simple consent of the

parties, as evidenced by habit and repute, without any need for

the matrimonial character of the connection to be indicated by

any public act, nor any necessity to prove the specific period

when the consent was interchanged. This decision has been

confirmed in the Dysart case (Geary, loc. cit.; cf. C.G.

Garrison, "Limits of Divorce," _Contemporary Review_, Feb.,

1894). Similarly, as decided by Justice Kekewich in the Wagstaff

case in 1907, if a man leaves money to his "widow," on condition

that she never marries again, although he has never been married

to her, and though she has been legally married to another man,

the testator's intentions must be upheld. Garrison, in his

valuable discussion of this aspect of legal marriage (_loc.

cit._), forcibly insists that by English law marriage is a fact

and not a contract, and that where "conduct characterized by

connubial purpose and constancy" exists, there marriage legally

exists, marriage being simply "a name for an existing fact."

In the United States, marriage "by habit and repute" similarly

exists, and in some States has even been confirmed and extended

by statute (J.P. Bishop, _Commentaries_, vol. i, Ch. XV).

"Whatever the form of the ceremony, and even if all ceremony was

dispensed with," said Judge Cooley, of Michigan, in 1875 (in an

opinion accepted as authoritative by the Federal courts), "if the

parties agreed presently to take each other for husband and wife,

and from that time lived together professedly in that relation,

proof of these facts would be sufficient.... This has been the

settled doctrine of the American courts." (Howard, op. cit., vol.

iii, pp. 177 et seq. Twenty-three States sanction common-law

marriage, while eighteen repudiate, or are inclined to repudiate,

any informal agreement.)

This legal recognition by the highest judicial authorities, alike

in Great Britain and the United States, that marriage is

essentially a fact, and that no evidence of any form or ceremony

of marriage is required for the most complete legal recognition

of marriage, undoubtedly carries with it highly important

implications. It became clear that the reform of marriage is

possible even without change in the law, and that honorable

sexual relationships, even when entered into without any legal

forms, are already entitled to full legal recognition and

protection. There are, however, it need scarcely be added here,

other considerations which render reform along these lines

incomplete.

It thus tends to come about that with the growth of civilization the

conception of marriage as a contract falls more and more into discredit.

It is realized, on the one hand, that personal contracts are out of

harmony with our general and social attitude, for if we reject the idea of

a human being contracting himself as a slave, how much more we should

reject the idea of entering by contract into the still more intimate

relationship of a husband or a wife; on the other hand it is felt that the

idea of pre-ordained contracts on a matter over which the individual

himself has no control is quite unreal and when any strict rules of equity

prevail, necessarily invalid. It is true that we still constantly find

writers sententiously asserting their notions of the duties or the

privileges involved by the "contract" of marriage, with no more attempt to

analyze the meaning of the term "contract" in this connection than the

Protestant Reformers made, but it can scarcely be said that these writers

have yet reached the alphabet of the subject they dogmatize about.

The transference of marriage from the Church to the State which, in the

lands where it first occurred, we owe to Protestantism and, in the

English-speaking lands, especially to Puritanism, while a necessary stage,

had the unfortunate result of secularizing the sexual relationships. That

is to say, it ignored the transcendent element in love which is really the

essential part of such relationships, and it concentrated attention on

those formal and accidental parts of marriage which can alone be dealt

with in a rigid and precise manner, and can alone properly form the

subject of contracts. The Canon law, fantastic and impossible as it became

in many of its developments, at least insisted on the natural and actual

fact of marriage as, above all, a bodily union, while, at the same time,

it regarded that union as no mere secular business contract but a sacred

and exalted function, a divine fact, and the symbol of the most divine

fact in the world. We are returning to-day to the Canonist's conception of

marriage on a higher and freer plane, bringing back the exalted conception

of the Canon law, yet retaining the individualism which the Puritan

wrongly thought he could secure on the basis of mere secularization,

while, further, we recognize that the whole process belongs to the private

sphere of moral responsibility. As Hobhouse has well said, in tracing the

evolutionary history of the modern conception of marriage, the sacramental

idea of marriage has again emerged but on a higher plane; "from being a

sacrament in the magical, it has become one in the ethical, sense." We are

thus tending towards, though we have not yet legally achieved, marriage

made and maintained by consent, "a union between two free and responsible

persons in which the equal rights of both are maintained."[363]

It is supposed by some that to look upon sexual union as a

sacrament is necessarily to accept the ancient Catholic view,

embodied in the Canon law, that matrimony is indissoluble. That

is, however, a mistake. Even the Canonists themselves were never

able to put forward any coherent and consistent ground for the

indissolubility of matrimony which could commend itself

rationally, while Luther and Milton and Wilhelm von Humboldt, who

maintained the religious and sacred nature of sexual

union--though they were cautious about using the term sacrament

on account of its ecclesiastical implications--so far from

believing that its sanctity involved indissolubility, argued in

the reverse sense. This point of view may be defended even from a

strictly Protestant standpoint. "I take it," Mr. G.C. Maberly

says, "that the Prayer Book definition of a sacrament, 'the

outward and visible sign of an inward and spiritual grace,' is

generally accepted. In marriage the legal and physical unions are

the outward and visible signs, while the inward and spiritual

grace is the God-given love that makes the union of heart and

soul: and it is precisely because I take this view of marriage

that I consider the legal and physical union should be dissolved

whenever the spiritual union of unselfish, divine love and

affection has ceased. It seems to me that the sacramental view of

marriage compels us to say that those who continue the legal or

physical union when the spiritual union has ceased, are--to quote

again from the Prayer Book words applied to those who take the

outward sign of another sacrament when the inward and spiritual

grace is not present--'eating and drinking their own damnation.'"

If from the point we have now reached we look back at the question of

divorce we see that, as the modern aspects of the marriage relationship

becomes more clearly realized by the community, that question will be

immensely simplified. Since marriage is not a mere contract but a fact of

conduct, and even a sacred fact, the free participation of both parties is

needed to maintain it. To introduce the idea of delinquency and punishment

into divorce, to foster mutual recrimination, to publish to the world the

secrets of the heart or the senses, is not only immoral, it is altogether

out of place. In the question as to when a marriage has ceased to be a

marriage the two parties concerned can alone be the supreme judges; the

State, if the State is called in, can but register the sentence they

pronounce, merely seeing to it that no injustice is involved in the

carrying out of that sentence.[364]

In discussing in the previous chapter the direction in which sexual

morality tends to develop with the development of civilization we came to

the conclusion that in its main lines it involved, above all, personal

responsibility. A relationship fixed among savage peoples by social custom

which none dare break, and in a higher stage of culture by formal laws

which must be observed in the letter even if broken in the spirit, becomes

gradually transferred to the sphere of individual moral responsibility.

Such a transference is necessarily meaningless, and indeed impossible,

unless the increasing stringency of the moral bond is accompanied by the

decreasing stringency of the formal bond. It is only by the process of

loosening the artificial restraints that the natural restraints can exert

their full control. That process takes place in two ways, in part on the

basis of the indifference to formal marriage which has marked the masses

of the population everywhere and doubtless stretches back to the tenth

century before the domination of ecclesiastical matrimony began, and

partly by the progressive modification of marriage laws which were made

necessary by the needs of the propertied classes anxious to secure the

State recognition of their unions. The whole process is necessarily a

gradual and indeed imperceptible process. It is impossible to fix

definitely the dates of the stages by which the Church effected the

immense revolution by which it grasped, and eventually transferred to the

State, the complete control of marriage, for that revolution was effected

without the intervention of any law. It will be equally difficult to

perceive the transference of the control of marriage from the State to

the individuals concerned, and the more difficult because, as we shall

see, although the essential and intimately personal fact of marriage is

not a proper matter for State control, there are certain aspects of

marriage which touch the interests of the community so closely that the

State is bound to insist on their registration and to take an interest in

their settlement.

The result of dissolving the formal stringency of the marriage

relationship, it is sometimes said, would be a tendency to an immoral

laxity. Those who make this statement overlook the fact that laxity tends

to reach a maximum as a result of stringency, and that where the merely

external authority of a rigid marriage law prevails, there the extreme

excesses of license most flourish. It is also undoubtedly true, and for

the same reason, that any sudden removal of restraints necessarily

involves a reaction to the opposite extreme of license; a slave is not

changed at a stroke into an autonomous freeman. Yet we have to remember

that the marriage order existed for millenniums before any attempt was

made to mould it into arbitrary shapes by human legislation. Such

legislation, we have seen, was indeed the effort of the human spirit to

affirm more emphatically the demands of its own instincts.[365] But its

final result is to choke and impede rather than to further the instincts

which inspired it. Its gradual disappearance allows the natural order free

and proper scope.

The great truth that compulsion is not really a force on the side

of virtue, but on the side of vice, had been clearly realized by

the genius of Rabelais, when he said of his ideal social state,

the Abbey of Thelema, that there was but one clause in its rule:

Fay ce que vouldras. "Because," said Rabelais (Bk. i, Ch. VII),

"men that are free, well-born, well-bred, and conversant in

honest companies, have naturally an instinct and spur that

prompts them unto virtuous actions and withdraws them from vice.

These same men, when by base subjection and constraint they are

brought under and kept down, turn aside from that noble

disposition by which they freely were inclined to virtue, to

shake off and break that bond of servitude." So that when a man

and a woman who had lived under the rule of Thelema married each

other, Rabelais tells us, their mutual love lasted undiminished

to the day of their death.

When the loss of autonomous freedom fails to lead to licentious

rebellion it incurs the opposite risk and tends to become a

flabby reliance on an external support. The artificial support of

marriage by State regulation then resembles the artificial

support of the body furnished by corset-wearing. The reasons for

and against adopting artificial support are the same in one case

as the other. Corsets really give a feeling of support; they

really furnish without trouble a fairly satisfactory appearance

of decorum; they are a real protection against various accidents.

But the price at which they furnish these advantages is serious,

and the advantages themselves only exist under unnatural

conditions. The corset cramps the form and the healthy

development of the organs; it enfeebles the voluntary muscular

system; it is incompatible with perfect grace and beauty; it

diminishes the sum of active energy. It exerts, in short, the

same kind of influence on physical responsibility as formal

marriage on moral responsibility.

It is too often forgotten, and must therefore be repeated, that

married people do not remain together because of any religious or

legal tie; that tie is merely the historical outcome of their

natural tendency to remain together, a tendency which is itself

far older than history. "Love would exist in the world to-day,

just as pure and just as enduring," says Shufeldt (_Medico-Legal

Journal_, Dec., 1897), "had man never invented 'marriage.' Truly

affined mates would have remained faithful to each other as long

as life lasted. It is only when men attempt to improve upon

nature that crime, disease, and unhappiness step in." "The

abolition of marriage in the form now practiced," wrote Godwin

more than a century ago (_Political Justice_, second edition,

1796, vol. i, p. 248), "will be attended with no evils. We are

apt to represent it to ourselves as the harbinger of brutal lust

and depravity. But it really happens in this, as in other cases,

that the positive laws which are made to restrain our vices

irritate and multiply them." And Professor Lester Ward, in

insisting on the strength of the monogamic sentiment in modern

society, truly remarks (_International Journal of Ethics_, Oct.,

1896) that the rebellion against rigid marriage bonds "is, in

reality, due to the very strengthening of the true bonds of

conjugal affection, coupled with a rational and altogether proper

determination on the part of individuals to accept, in so

important a matter, nothing less than the genuine article." "If

by a single stroke," says Professor Woods Hutchinson

(_Contemporary Review_, Sept., 1905), "all marriage ties now in

existence were struck off or declared illegal, eight-tenths of

all couples would be remarried within forty eight hours, and

seven-tenths could not be kept asunder with bayonets." An

experiment of this kind on a small scale was witnessed in 1909 in

an English village in Buckinghamshire. It was found that the

parish church had never been licensed for marriages, and that in

consequence all the people who had gone through the ceremony of

marriage in that church during the previous half century had

never been legally married. Yet, so far as could be ascertained,

not a single couple thus released from the legal compulsion of

marriage took advantage of the freedom bestowed. In the face of

such a fact it is obviously impossible to attach any moral value

to the form of marriage.

It is certainly inevitable that during a period of transition the natural

order is to some extent disturbed by the persistence, even though in a

weakened form, of external bonds which are beginning to be consciously

realized as inimical to the authoritative control of individual moral

responsibility. We can clearly trace this at the present time. A sensitive

anxiety to escape from external constraint induces an under-valuation of

the significance of personal constraint in the relationship of marriage.

Everyone is probably familiar with cases in which a couple will live

together through long years without entering the legal bond of marriage,

notwithstanding difficulties in their mutual relationship which would have

long since caused a separation or a divorce had they been legally married.

When the inherent difficulties of the marital relationship are complicated

by the difficulties due to external constraint, the development of

individual moral responsibility cuts two ways, and leads to results that

are not entirely satisfactory. This has been seen in the United States of

America and attention has often been called to it by thoughtful American

observers. It is, naturally, noted especially in women because it is in

women that the new growth of personal freedom and moral responsibility has

chiefly made itself felt. The first stirring of these new impulses,

especially when associated, as it often is, with inexperience and

ignorance, leads to impatience with the natural order, to a demand for

impossible conditions of existence, and to an inaptitude not only for the

arbitrary bondage of law but even for the wholesome and necessary bonds of

human social life. It is always a hard lesson for the young and idealistic

that in order to command Nature we must obey her; it can only be learnt

through contact with life and by the attainment of full human growth.

Dr. Felix Adler (in an address before the Society of Ethical

Culture of New York, Nov. 17, 1889) called attention to what he

regarded as the most deep-rooted cause of an undue prevalence of

divorce in America. "The false idea of individual liberty is

largely held in America," and when applied to family life it

often leads to an impatience with these duties which the

individual is either born into or has voluntarily accepted. "I am

constrained to think that the prevalence of divorce is to be

ascribed in no small degree to the influence of democratic

ideas--that is, of false democratic ideas--and our hope lies in

advancing towards a higher and truer democracy." A more recent

American writer, this time a woman, Anna A. Rogers ("Why American

Marriages Fail," _Atlantic Monthly_, Sept., 1907) speaks in the

same sense, though perhaps in too unqualified a manner. She

states that the frequency of divorce in America is due to three

causes: (1) woman's failure to realize that marriage is her work

in the world; (2) her growing individualism; (3) her lost art of

giving, replaced by a highly developed receptive faculty. The

American woman, this writer states, in discovering her own

individuality has not yet learnt how to manage it; it is still

"largely a useless, uneasy factor, vouchsafing her very little

more peace than it does those in her immediate surcharged

vicinity." Her circumstances tend to make of her "a curious

anomalous hybrid; a cross between a magnificent, rather

unmannerly boy, and a spoiled, exacting _demi-mondaine_, who

sincerely loves in this world herself alone." She has not yet

learnt that woman's supreme work in the world can only be

attained through the voluntary acceptance of the restraints of

marriage. The same writer points out that the fault is not alone

with American women, but also with American men. Their idolatry

of their women is largely responsible for that intolerance and

selfishness which causes so many divorces; "American women are,

as a whole, pampered and worshipped out of all reason." But the

men, who lend themselves to this, do not feel that they can treat

their wives with the same comradeship as the French treat their

wives, nor seek their advice with the same reliance; the American

woman is placed on an unreal pedestal. Yet another American

writer, Rafford Pyke ("Husbands and Wives," _Cosmopolitan_,

1902), points out that only a small proportion of American

marriages are really unhappy, these being chiefly among the more

cultured classes, in which the movement of expansion in women's

interests and lives is taking place; it is more often the wife

than the husband who is disappointed in marriage, and this is

largely due to her inability to merge, not necessarily

subordinate, her individuality in an equal union with his.

"Marriage to-day is becoming more and more dependent for its

success upon the adjustment of conditions that are psychical.

Whereas in former generations it was sufficient that the union

should involve physical reciprocity, in this age of ours the

union must involve a psychic reciprocity as well. And whereas,

heretofore, the community of interest was attained with ease, it

is now becoming far more difficult because of the tendency to

discourage a woman who marries from merging her separate

individuality in her husband's. Yet, unless she does this, how

can she have a complete and perfect interest in the life

together, and, for that matter, how can he have such an interest

either?"

Professor Münsterberg, the distinguished psychologist, in his

frank but appreciative study of American institutions, _The

Americans_, taking a broader outlook, points out that the

influence of women on morals in America has not been in every

respect satisfactory, in so far as it has tended to encourage

shallowness and superficiality. "The American woman who has

scarcely a shred of education," he remarks (p. 587), "looks in

vain for any subject on which she has not firm convictions

already at hand.... The arrogance of this feminine lack of

knowledge is the symptom of a profound trait in the feminine

soul, and points to dangers springing from the domination of

women in the intellectual life.... And in no other civilized land

are ethical conceptions so worm-eaten by superstitions."

We have seen that the modern tendency as regards marriage is towards its

recognition as a voluntary union entered into by two free, equal, and

morally responsible persons, and that that union is rather of the nature

of an ethical sacrament than of a contract, so that in its essence as a

physical and spiritual bond it is outside the sphere of the State's

action. It has been necessary to labor that point before we approach what

may seem to many not only a different but even a totally opposed aspect of

marriage. If the marriage union itself cannot be a matter for contract, it

naturally leads to a fact which must necessarily be a matter for implicit

or explicit contract, a matter, moreover, in which the community at large

has a real and proper interest: that is the fact of procreation.[366]

The ancient Egyptians--among whom matrimonial institutions were so elastic

and the position of woman so high--recognized a provisional and slight

marriage bond for the purpose of testing fecundity.[367] Among ourselves

the law makes no such paternal provision, leaving to young couples

themselves the responsibility of making any tests, a permission, we know,

they largely avail themselves of, usually entering the legal bonds of

marriage, however, before the birth of their child. That legal bond is a

recognition that the introduction of a new individual into the community

is not, like sexual union, a mere personal fact, but a social fact, a fact

in which the State cannot fail to be concerned. And the more we

investigate the tendency of the modern marriage movement the more we shall

realize that its attitude of freedom, of individual moral responsibility,

in the formation of sexual relationships, is compensated by an attitude of

stringency, of strict social oversight, in the matter of procreation. Two

people who form an erotic relationship are bound, when they reach the

conviction that their relationship is a real marriage, having its natural

end in procreation, to subscribe to a contract which, though it may leave

themselves personally free, must yet bind them both to their duties

towards their children.[368]

The necessity for such an undertaking is double, even apart from the fact

that it is in the highest interests of the parents themselves. It is

required in the interests of the child. It is required in the interests of

the State. A child can be bred, and well-bred, by one effective parent.

But to equip a child adequately for its entrance into life both parents

are usually needed. The State on its side--that is to say, the community

of which parents and child alike form part--is bound to know who these

persons are who have become sponsors for a new individual now introduced

into its midst. The most Individualistic State, the most Socialistic

State, are alike bound, if faithful to the interests, both biological and

economic, of their constituent members generally, to insist on the full

legal and recognized parentage of the father and mother of every child.

That is clearly demanded in the interests of the child; it is clearly

demanded also in the interests of the State.

The barrier which in Christendom has opposed itself to the natural

recognition of this fact, so injuring alike the child and the State, has

clearly been the rigidity of the marriage system, more especially as

moulded by the Canon law. The Canonists attributed a truly immense

importance to the _copula carnalis_, as they technically termed it. They

centred marriage strictly in the vagina; they were not greatly concerned

about either the presence or the absence of the child. The vagina, as we

know, has not always proved a very firm centre for the support of

marriage, and that centre is now being gradually transferred to the child.

If we turn from the Canonists to the writings of a modern like Ellen Key,

who so accurately represents much that is most characteristic and

essential in the late tendencies of marriage development, we seem to have

entered a new world, even a newly illuminated world. For "in the new

sexual morality, as in Corregio's _Notte_, the light emanates from the

child."[369]

No doubt this change is largely a matter of sentiment, of, as we sometimes

say, mere sentiment, although there is nothing so powerful in human

affairs as sentiment, and the revolution effected by Jesus, the later

revolution effected by Rousseau, were mainly revolutions in sentiment. But

the change is also a matter of the growing recognition of interests and

rights, and as such it manifests itself in law. We can scarcely doubt that

we are approaching a time when it will be generally understood that the

entrance into the world of every child, without exception, should be

preceded by the formation of a marriage contract which, while in no way

binding the father and mother to any duties, or any privileges, towards

each other, binds them both towards their child and at the same time

ensures their responsibility towards the State. It is impossible for the

State to obtain more than this, but it should be impossible for it to

demand less. A contract of such a kind "marries" the father and mother so

far as the parentage of the individual child is concerned, and in no other

respect; it is a contract which leaves entirely unaffected their past,

present, or future relations towards other persons, otherwise it would be

impossible to enforce it. In all parts of the world this elementary demand

of social morality is slowly beginning to be recognized, and as it affects

hundreds of thousands of infants[370] who are yearly branded as

"illegitimate" through no act of their own, no one can say that the

recognition has come too soon. As yet, indeed, it seems nowhere to be

complete.

Most attempts or proposals for the avoidance of illegitimate

births are concerned with the legalizing of unions of a less

binding degree than the present legal marriage. Such unions would

serve to counteract other evils. Thus an English writer, who has

devoted much study to sex questions, writes in a private letter:

"The best remedy for the licentiousness of celibate men and the

mental and physical troubles of continence in woman would be

found in a recognized honorable system of free unions and

trial-marriages, in which preventive intercourse is practiced

until the lovers were old enough to become parents, and possessed

of sufficient means to support a family. The prospect of a

loveless existence for young men and women of ardent natures is

intolerable and as terrible as the prospect of painful illness

and death. But I think the old order must change ere long."

In Teutonic countries there is a strongly marked current of

feeling in the direction of establishing legal unions of a lower

degree than marriage. They exist in Sweden, as also in Norway

where by a recent law the illegitimate child is entitled to the

same rights in relation to both parents as the legitimate child,

bearing the father's name and inheriting his property (_Die Neue

Generation_, July, 1909, p. 303). In France the well-known judge,

Magnard, so honorably distinguished for his attitude towards

cases of infanticide by young mothers, has said: "I heartily wish

that alongside the institution of marriage as it now exists we

had a free union constituted by simple declaration before a

magistrate and conferring almost the same family rights as

ordinary marriage." This wish has been widely echoed.

In China, although polygamy in the strict sense cannot properly

be said to exist, the interests of the child, the woman, and the

State are alike safeguarded by enabling a man to enter into a

kind of secondary marriage with the mother of his child. "Thanks

to this system," Paul d'Enjoy states (_La Revue_, Sept., 1905),

"which allows the husband to marry the woman he desires, without

being prevented by previous and undissolved unions, it is only

right to remark that there are no seduced and abandoned girls,

except such as no law could save from what is really innate

depravity; and that there are no illegitimate children except

those whose mothers are unhappily nearer to animals by their

senses than to human beings by their reason and dignity."

The new civil code of Japan, which is in many respects so

advanced, allows an illegitimate child to be "recognized" by

giving notice to the registrar; when a married man so recognizes

a child, it appears, the child may be adopted by the wife as her

own, though not actually rendered legitimate. This state of

things represents a transition stage; it can scarcely be said to

recognize the rights of the "recognized" child's mother. Japan,

it may be added, has adopted the principle of the automatic

legitimation by marriage of the children born to the couple

before marriage.

In Australia, where women possess a larger share than elsewhere

in making and administering the laws, some attention is beginning

to be given to the rights of illegitimate children. Thus in South

Australia, paternity may be proved before birth, and the father

(by magistrate's order) provides lodging for one month before and

after birth, as well as nurse, doctor, and clothing, furnishing

security that he will do so; after birth, at the magistrate's

decision, he pays a weekly sum for the child's maintenance. An

"illegitimate" mother may also be kept in a public institution at

the public expense for six months to enable her to become

attached to her child.

Such provisions are developed from the widely recognized right of

the unmarried woman to claim support for her child from its

father. In France, indeed, and in the legal codes which follow

the French example, it is not legally permitted to inquire into

the paternity of an illegitimate child. Such a law is, needless

to say, alike unjust to the mother, to the child, and to the

State. In Austria, the law goes to the opposite, though certainly

more reasonable, extreme, and permits even the mother who has had

several lovers to select for herself which she chooses to make

responsible for her child. The German code adopts an intermediate

course, and comes only to the aid of the unmarried mother who has

one lover. In all such cases, however, the aid given is

pecuniary only; it insures the mother no recognition or respect,

and (as Wahrmund has truly said in his _Ehe und Eherecht_) it is

still necessary to insist on "the unconditional sanctity of

motherhood, which is entitled, under whatever circumstances it

arises, to the respect and protection of society."

It must be added that, from the social point of view, it is not

the sexual union which requires legal recognition, but the child

which is the product of that union. It would, moreover, be

hopeless to attempt to legalize all sexual connection, but it is

comparatively easy to legalize all children.

There has been much discussion in the past concerning the particular form

which marriage ought to take. Many theorists have exercised their

ingenuity in inventing and preaching new and unusual marriage-arrangements

as panaceas for social ills; while others have exerted even greater energy

in denouncing all such proposals as subversive of the foundations of human

society. We may regard all such discussions, on the one side or the other,

as idle.

In the first place marriage customs are far too fundamental, far too

intimately blended with the primary substance of human and indeed animal

society, to be in the slightest degree shaken by the theories or the

practices of mere individuals, or even groups of individuals.

Monogamy--the more or less prolonged cohabitation of two individuals of

opposite sex--has been the prevailing type of sexual relationship among

the higher vertebrates and through the greater part of human history. This

is admitted even by those who believe (without any sound evidence) that

man has passed through a stage of sexual promiscuity. There have been

tendencies to variation in one direction or another, but at the lowest

stages and the highest stages, so far as can be seen, monogamy represents

the prevailing rule.

It must be said also, in the second place, that the natural prevalence of

monogamy as the normal type of sexual relationship by no means excludes

variations. Indeed it assumes them. "There is nothing precise in Nature,"

according to Diderot's saying. The line of Nature is a curve that

oscillates from side to side of the norm. Such oscillations inevitably

occur in harmony with changes in environmental conditions, and, no doubt,

with peculiarities of personal disposition. So long as no arbitrary and

merely external attempt is made to force Nature, the vital order is

harmoniously maintained. Among certain species of ducks when males are in

excess polyandric families are constituted, the two males attending their

female partner without jealousy, but when the sexes again become equal in

number the monogamic order is restored. The natural human deviations from

the monogamic order seem to be generally of this character, and largely

conditioned by the social and economic environment. The most common

variation, and that which most clearly possesses a biological foundation,

is the tendency to polygyny, which is found at all stages of culture,

even, in an unrecognized and more or less promiscuous shape, in the

highest civilization.[371] It must be remembered, however, that recognized

polygyny is not the rule even where it prevails; it is merely permissive;

there is never a sufficient excess of women to allow more than a few of

the richer and more influential persons to have more than one wife.[372]

It has further to be borne in mind that a certain elasticity of the formal

side of marriage while, on the one side, it permits variations from the

general monogamic order, where such are healthful or needed to restore a

balance in natural conditions, on the other hand restrains such variations

in so far as they are due to the disturbing influence of artificial

constraint. Much of the polygyny, and polyandry also, which prevails among

us to-day is an altogether artificial and unnatural form of polygamy.

Marriages which on a more natural basis would be dissolved cannot legally

be dissolved, and consequently the parties to them, instead of changing

their partners and so preserving the natural monogamic order, take on

other additional partners and so introduce an unnatural polygamy. There

will always be variations from the monogamic order and civilization is

certainly not hostile to sexual variation. Whether we reckon these

variations as legitimate or illegitimate, they will still take place; of

that we may be certain. The path of social wisdom seems to lie on the one

hand in making the marriage relationship flexible enough to reduce to a

minimum these deviations--not because such deviations are intrinsically

bad but because they ought not to be forced into existence--and on the

other hand in according to these deviations when they occur such a measure

of recognition as will deprive them of injurious influence and enable

justice to be done to all the parties concerned. We too often forget that

our failure to recognize such variations merely means that we accord in

such cases an illegitimate permission to perpetrate injustice. In those

parts of the world in which polygyny is recognized as a permissible

variation a man is legally held to his natural obligations towards all his

sexual mates and towards the children he has by those mates. In no part of

the world is polygyny so prevalent as in Christendom; in no part of the

world is it so easy for a man to escape the obligations incurred by

polygyny. We imagine that if we refuse to recognize the fact of polygyny,

we may refuse to recognize any obligations incurred by polygyny. By

enabling a man to escape so easily from the obligations of his polygamous

relationships we encourage him, if he is unscrupulous, to enter into them;

we place a premium on the immorality we loftily condemn.[373] Our polygyny

has no legal existence, and therefore its obligations can have no legal

existence. The ostrich, it was once imagined, hides its head in the sand

and attempts to annihilate facts by refusing to look at them; but there is

only one known animal which adopts this course of action, and it is called

Man.

Monogamy, in the fundamental biological sense, represents the natural

order into which the majority of sexual facts will always naturally fall

because it is the relationship which most adequately corresponds to all

the physical and spiritual facts involved. But if we realize that sexual

relationships primarily concern only the persons who enter into those

relationships, and if we further realize that the interest of society in

such relationships is confined to the children which they produce, we

shall also realize that to fix by law the number of women with whom a man

shall have sexual relationships, and the number of men with whom a woman

shall unite herself, is more unreasonable than it would be to fix by law

the number of children they shall produce. The State has a right to

declare whether it needs few citizens or many; but in attempting to

regulate the sexual relationships of its members the State attempts an

impossible task and is at the same time guilty of an impertinence.

There is always a tendency, at certain stages of civilization, to

insist on a merely formal and external uniformity, and a

corresponding failure to see not only that such uniformity is

unreal, but also that it has an injurious effect, in so far as it

checks beneficial variations. The tendency is by no means

confined to the sexual sphere. In England there is, for instance,

a tendency to make building laws which enjoin, in regard to

places of human habitation, all sorts of provisions that on the

whole are fairly beneficial, but which in practice act

injuriously, because they render many simple and excellent human

habitations absolutely illegal, merely because such habitations

fail to conform to regulations which, under some circumstances,

are not only unnecessary, but mischievous.

Variation is a fact that will exist whether we will or no; it can

only become healthful if we recognize and allow for it. We may

even have to recognize that it is a more marked tendency in

civilization than in more primitive social stages. Thus Gerson

argues (_Sexual-Probleme_, Sept., 1908, p. 538) that just as the

civilized man cannot be content with the coarse and monotonous

food which satisfies the peasant, so it is in sexual matters; the

peasant youth and girl in their sexual relationships are nearly

always monogamous, but civilized people, with their more

versatile and sensitive tastes, are apt to crave for variety.

Sénancour (_De l'Amour_, vol. ii, "Du Partage," p. 127) seems to

admit the possibility of marriage variations, as of sharing a

wife, provided nothing is done to cause rivalry, or to impair the

soul's candor. Lecky, near the end of his _History of European

Morals_, declared his belief that, while the permanent union of

two persons is the normal and prevailing type of marriage, it by

no means follows that, in the interests of society, it should be

the only form. Remy de Gourmont similarly (_Physique de l'Amour_,

p. 186), while stating that the couple is the natural form of

marriage and its prolonged continuance a condition of human

superiority, adds that the permanence of the union can only be

achieved with difficulty. So, also, Professor W. Thomas (_Sex and

Society_, 1907, p. 193), while regarding monogamy as subserving

social needs, adds: "Speaking from the biological standpoint

monogamy does not, as a rule, answer to the conditions of highest

stimulation, since here the problematical and elusive elements

disappear to some extent, and the object of attention has grown

so familiar in consciousness that the emotional reactions are

qualified. This is the fundamental explanation of the fact that

married men and women frequently become interested in others than

their partners in matrimony."

Pepys, whose unconscious self-dissection admirably illustrates so

many psychological tendencies, clearly shows how--by a logic of

feeling deeper than any intellectual logic--the devotion to

monogamy subsists side by side with an irresistible passion for

sexual variety. With his constantly recurring wayward attraction

to a long series of women he retains throughout a deep and

unchanging affection for his charming young wife. In the privacy

of his _Diary_ he frequently refers to her in terms of endearment

which cannot be feigned; he enjoys her society; he is very

particular about her dress; he delights in her progress in music,

and spends much money on her training; he is absurdly jealous

when he finds her in the society of a man. His subsidiary

relationships with other women recur irresistibly, but he has no

wish either to make them very permanent or to allow them to

engross him unduly. Pepys represents a common type of civilized

"monogamist" who is perfectly sincere and extremely convinced in

his advocacy of monogamy, as he understands it, but at the same

time believes and acts on the belief that monogamy by no means

excludes the need for sexual variation. Lord Morley's statement

(_Diderot_, vol. ii, p. 20) that "man is instinctively

polygamous," can by no means be accepted, but if we interpret it

as meaning that man is an instinctively monogamous animal with a

concomitant desire for sexual variation, there is much evidence

in its favor.

Women must be as free as men to mould their own amatory life.

Many consider, however, that such freedom on the part of women

will be, and ought to be, exercised within narrower limits (see,

e.g., Bloch, _Sexual Life of Our Time_, Ch. X). In part this

limitation is considered due to the greater absorption of a woman

in the task of breeding and rearing her child, and in part to a

less range of psychic activities. A man, as G. Hirth puts it,

expressing this view of the matter (_Wege zur Liebe_, p. 342),

"has not only room in his intellectual horizon for very various

interests, but his power of erotic expansion is much greater and

more differentiated than that of women, although he may lack the

intimacy and depth of a woman's devotion."

It may be argued that, since variations in the sexual order will

inevitably take place, whether or not they are recognized or

authorized, no harm is likely to be done by using the weight of

social and legal authority on the side of that form which is

generally regarded as the best, and, so far as possible, covering

the other forms with infamy. There are many obvious defects in

such an attitude, apart from the supremely important fact that to

cast infamy on sexual relationships is to exert a despicable

cruelty on women, who are inevitably the chief sufferers. Not the

least is the injustice and the hampering of vital energy which it

inflicts on the better and more scrupulous people to the

advantage of the worse and less scrupulous. This always happens

when authority exerts its power in favor of a form. When, in the

thirteenth century, Alexander III--one of the greatest and most

effective potentates who ever ruled Christendom--was consulted by

the Bishop of Exeter concerning subdeacons who persisted in

marrying, the Pope directed him to inquire into the lives and

characters of the offenders; if they were of regular habits and

staid morality, they were to be forcibly separated and the wives

driven out; if they were men of notoriously disorderly character,

they were to be permitted to retain their wives, if they so

desired (Lea, _History of Sacerdotal Celibacy_, third edition,

vol. i, p. 396). It was an astute policy, and was carried out by

the same Pope elsewhere, but it is easy to see that it was

altogether opposed to morality in every sense of the term. It

destroyed the happiness and the efficiency of the best men; it

left the worst men absolutely free. To-day we are quite willing

to recognize the evil result of this policy; it was dictated by a

Pope and carried out seven hundred years ago. Yet in England we

carry out exactly the same policy to-day by means of our

separation orders, which are scattered broadcast among the

population. None of the couples thus separated--and never

disciplined to celibacy as are the Catholic clergy of to-day--may

marry again; we, in effect, bid the more scrupulous among them to

become celibates, and to the less scrupulous we grant permission

to do as they like. This process is carried on by virtue of the

collective inertia of the community, and when it is supported by

arguments, if that ever happens, they are of an antiquarian

character which can only call forth a pitying smile.

It may be added that there is a further reason why the custom of

branding sexual variations from the norm as "immoral" is not so

harmless as some affect to believe: such variations appear to be

not uncommon among men and women of superlative ability whose

powers are needed unimpeded in the service of mankind. To attempt

to fit such persons into the narrow moulds which suit the

majority is not only an injustice to them as individuals, but it

is an offence against society, which may fairly claim that its

best members shall not be hampered in its service. The notion

that the person whose sexual needs differ from those of the

average is necessarily a socially bad person, is a notion

unsupported by facts. Every case must be judged on its own

merits.

Undoubtedly the most common variation from normal monogamy has in all

stages of human culture been polygyny or the sexual union of one man with

more than one woman. It has sometimes been socially and legally

recognized, and sometimes unrecognized, but in either case it has not

failed to occur. Polyandry, or the union of a woman with more than one

man, has been comparatively rare and for intelligible reasons: men have

most usually been in a better position, economically and legally, to

organize a household with themselves as the centre; a woman is, unlike a

man, by nature and often by custom unfitted for intercourse for

considerable periods at a time; a woman, moreover, has her thoughts and

affections more concentrated on her children. Apart from this the

biological masculine traditions point to polygyny much more than the

feminine traditions point to polyandry. Although it is true that a woman

can undergo a much greater amount of sexual intercourse than a man, it

also remains true that the phenomena of courtship in nature have made it

the duty of the male to be alert in offering his sexual attention to the

female, whose part it has been to suspend her choice coyly until she is

sure of her preference. Polygynic conditions have also proved

advantageous, as they have permitted the most vigorous and successful

members of a community to have the largest number of mates and so to

transmit their own superior qualities.

"Polygamy," writes Woods Hutchinson (_Contemporary Review_, Oct.,

1904), though he recognizes the advantages of monogamy, "as a

racial institution, among animals as among men, has many solid

and weighty considerations in its favor, and has resulted in

both human and pre-human times, in the production of a very high

type of both individual and social development." He points out

that it promotes intelligence, coöperation, and division of

labor, while the keen competition for women weeds out the weaker

and less attractive males.

Among our European ancestors, alike among Germans and Celts,

polygyny and other sexual forms existed as occasional variations.

Tacitus noted polygyny in Germany, and Cæsar found in Britain

that brothers would hold their wives in common, the children

being reckoned to the man to whom the woman had been first given

in marriage (see, e.g., Traill's _Social England_, vol. i, p.

103, for a discussion of this point). The husband's assistant,

also, who might be called in to impregnate the wife when the

husband was impotent, existed in Germany, and was indeed a

general Indo-Germanic institution (Schrader, _Reallexicon_, art.

"Zeugungshelfer"). The corresponding institution of the concubine

has been still more deeply rooted and widespread. Up to

comparatively modern times, indeed, in accordance with the

traditions of Roman law, the concubine held a recognized and

honorable position, below that of a wife but with definite legal

rights, though it was not always, or indeed usually, legal for a

married man to have a concubine. In ancient Wales, as well as in

Rome, the concubine was accepted and never despised (R.B. Holt,

"Marriage Laws of the Cymri," _Journal Anthropological

Institute_, Aug. and Nov., 1898, p. 155). The fact that when a

concubine entered the house of a married man her dignity and

legal position were less than those of the wife preserved

domestic peace and safeguarded the wife's interests. (A Korean

husband cannot take a concubine under his roof without his wife's

permission, but she rarely objects, and seems to enjoy the

companionship, says Louise Jordan Miln, _Quaint Korea_, 1895, p.

92.) In old Europe, we must remember, as Dufour points out in

speaking of the time of Charlemagne (_Histoire de la

Prostitution_, vol. iii, p. 226), "concubine" was an honorable

term; the concubine was by no means a mistress, and she could be

accused of adultery just the same as a wife. In England, late in

the thirteenth century, Bracton speaks of the _concubina

legitima_ as entitled to certain rights and considerations, and

it was the same in other parts of Europe, sometimes for several

centuries later (see Lea, _History of Sacerdotal Celibacy_, vol.

i, p. 230). The early Christian Church was frequently inclined to

recognize the concubine, at all events if attached to an

unmarried man, for we may trace in the Church "the wish to look

upon every permanent union of man or woman as possessing the

character of a marriage in the eyes of God, and, therefore, in

the judgment of the Church" (art. "Concubinage," Smith and

Cheetham, _Dictionary of Christian Antiquities_). This was the

feeling of St. Augustine (who had himself, before his conversion,

had a concubine who was apparently a Christian), and the Council

of Toledo admitted an unmarried man who was faithful to a

concubine. As the law of the Catholic Church grew more and more

rigid, it necessarily lost touch with human needs. It was not so

in the early Church during the great ages of its vital growth. In

those ages even the strenuous general rule of monogamy was

relaxed when such relaxation seemed reasonable. This was so, for

instance, in the case of sexual impotency. Thus early in the

eighth century Gregory II, writing to Boniface, the apostle of

Germany, in answer to a question by the latter, replies that when

a wife is incapable from physical infirmity from fulfilling her

marital duties it is permissible for the husband to take a second

wife, though he must not withdraw maintenance from the first. A

little later Archbishop Egbert of York, in his _Dialogus de

Institutione Ecclesiastica_, though more cautiously, admits that

when one of two married persons is infirm the other, with the

permission of the infirm one, may marry again, but the infirm one

is not allowed to marry again during the other's life. Impotency

at the time of marriage, of course, made the marriage void

without the intervention of any ecclesiastical law. But Aquinas,

and later theologians, allow that an excessive disgust for a wife

justifies a man in regarding himself as impotent in relation to

her. These rules are, of course, quite distinct from the

permissions to break the marriage laws granted to kings and

princes; such permissions do not count as evidence of the

Church's rules, for, as the Council of Constantinople prudently

decided in 809, "Divine law can do nothing against Kings" (art.

"Bigamy," _Dictionary of Christian Antiquities_). The law of

monogamy was also relaxed in cases of enforced or voluntary

desertion. Thus the Council of Vermerie (752) enacted that if a

wife will not accompany her husband when he is compelled to

follow his lord into another land, he may marry again, provided

he sees no hope of returning. Theodore of Canterbury (688),

again, pronounces that if a wife is carried away by the enemy and

her husband cannot redeem her, he may marry again after an

interval of a year, or, if there is a chance of redeeming her,

after an interval of five years; the wife may do the same. Such

rules, though not general, show, as Meyrick points out (art.

"Marriage," _Dictionary of Christian Antiquities_), a willingness

"to meet particular cases as they arise."

As the Canon law grew rigid and the Catholic Church lost its

vital adaptibility, sexual variations ceased to be recognized

within its sphere. We have to wait for the Reformation for any

further movement. Many of the early Protestant Reformers,

especially in Germany, were prepared to admit a considerable

degree of vital flexibility in sexual relationships. Thus Luther

advised married women with impotent husbands, in cases where

there was no wish or opportunity for divorce, to have sexual

relations with another man, by preference the husband's brother;

the children were to be reckoned to the husband ("Die Sexuelle

Frage bei Luther," _Mutterschutz_, Sept., 1908).

In England the Puritan spirit, which so largely occupied itself

with the reform of marriage, could not fail to be concerned with

the question of sexual variations, and from time to time we find

the proposal to legalize polygyny. Thus, in 1658, "A Person of

Quality" published in London a small pamphlet dedicated to the

Lord Protector, entitled _A Remedy for Uncleanness_. It was in

the form of a number of queries, asking why we should not admit

polygamy for the avoidance of adultery and infanticide. The

writer inquires whether it may not "stand with a gracious spirit,

and be every way consistent with the principles of a man fearing

God and loving holiness, to have more women than one to his

proper use.... He that takes another man's ox or ass is doubtless

a transgressor; but he that puts himself out of the occasion of

that temptation by keeping of his own seems to be a right honest

and well-meaning man."

More than a century later (1780), an able, learned, and

distinguished London clergyman of high character (who had been a

lawyer before entering the Church), the Rev. Martin Madan, also

advocated polygamy in a book called _Thelyphthora; or, a Treatise

on Female Ruin_. Madan had been brought into close contact with

prostitution through a chaplaincy at the Lock Hospital, and, like

the Puritan advocate of polygamy, he came to the conclusion that

only by the reform of marriage is it possible to work against

prostitution and the evils of sexual intercourse outside

marriage. His remarkable book aroused much controversy and strong

feeling against the author, so that he found it desirable to

leave London and settle in the country. Projects of marriage

reform have never since come from the Church, but from

philosophers and moralists, though not rarely from writers of

definitely religious character. Sénancour, who was so delicate

and sensitive a moralist in the sexual sphere, introduced a

temperate discussion of polygamy into his _De l'Amour_ (vol. ii,

pp. 117-126). It seemed to him to be neither positively contrary

nor positively conformed to the general tendency of our present

conventions, and he concluded that "the method of conciliation,

in part, would be no longer to require that the union of a man

and a woman should only cease with the death of one of them."

Cope, the biologist, expressed a somewhat more decided opinion.

Under some circumstances, if all three parties agreed, he saw no

objection to polygyny or polyandry. "There are some cases of

hardship," he said, "which such permission would remedy. Such,

for instance, would be the case where the man or woman had become

the victim of a chronic disease; or, when either party should be

childless, and in other contingencies that could be imagined."

There would be no compulsion in any direction, and full

responsibility as at present. Such cases could only arise

exceptionally, and would not call for social antagonism. For the

most part, Cope remarks, "the best way to deal with polygamy is

to let it alone" (E.D. Cope, "The Marriage Problem," _Open

Court_, Nov. 15 and 22, 1888). In England, Dr. John Chapman, the

editor of the _Westminster Review_, and a close associate of the

leaders of the Radical movement in the Victorian period, was

opposed to State dictation as regards the form of marriage, and

believed that a certain amount of sexual variation would be

socially beneficial. Thus he wrote in 1884 (in a private letter):

"I think that as human beings become less selfish polygamy [i.e.,

polygyny], and even polyandry, in an ennobled form, will become

increasingly frequent."

James Hinton, who, a few years earlier, had devoted much thought

and attention to the sexual question, and regarded it as indeed

the greatest of moral problems, was strongly in favor of a more

vital flexibility of marriage regulations, an adaptation to human

needs such as the early Christian Church admitted. Marriage, he

declared, must be "subordinated to service," since marriage, like

the Sabbath, is made for man and not man for marriage. Thus in

case of one partner becoming insane he would permit the other

partner to marry again, the claim of the insane partner, in case

of recovery, still remaining valid. That would be a form of

polygamy, but Hinton was careful to point out that by "polygamy"

he meant "less a particular marriage-order than such an order as

best serves good, and which therefore must be essentially

variable. Monogamy may be good, even the only good order, if of

free choice; but a _law_ for it is another thing. The sexual

relationship must be a _natural_ thing. The true social life will

not be any fixed and definite relationship, as of monogamy,

polygamy, or anything else, but a perfect subordination of every

sexual relationship whatever to reason and human good."

Ellen Key, who is an enthusiastic advocate of monogamy, and who

believes that the civilized development of personal love removes

all danger of the growth of polygamy, still admits the existence

of variations. She has in mind such solutions of difficult

problems as Goethe had before him when he proposed at first in

his _Stella_ to represent the force of affection and tender

memories as too strong to admit of the rupture of an old bond in

the presence of a new bond. The problem of sexual variation, she

remarks, however (_Liebe und Ethik_, p. 12), has changed its form

under modern conditions; it is no longer a struggle between the

demand of society for a rigid marriage-order and the demand of

the individual for sexual satisfaction, but it has become the

problem of harmonizing the ennoblement of the race with

heightened requirements of erotic happiness. She also points out

that the existence of a partner who requires the other partner's

care as a nurse or as an intellectual companion by no means

deprives that other partner of the right to fatherhood or

motherhood, and that such rights must be safeguarded (Ellen Key,

_Ueber Liebe und Ehe_, pp. 166-168).

A prominent and extreme advocate of polygyny, not as a simple

rare variation, but as a marriage order superior to monogamy, is

to be found at the present day in Professor Christian von

Ehrenfels of Prague (see, e.g., his _Sexualethik_, 1908; "Die

Postulate des Lebens," _Sexual-Probleme_, Oct., 1908; and letter

to Ellen Key in her _Ueber Liebe und Ehe_, p. 466). Ehrenfels

believes that the number of men inapt for satisfactory

reproduction is much larger than that of women, and that

therefore when these are left out of account, a polygynic

marriage order becomes necessary. He calls this

"reproduction-marriage" (Zeugungsehe), and considers that it will

entirely replace the present marriage order, to which it is

morally superior. It would be based on private contracts.

Ehrenfels holds that women would offer no objection, as a woman,

he believes, attaches less importance to a man as a wooer than as

the father of her child. Ehrenfels's doctrine has been seriously

attacked from many sides, and his proposals are not in the line

of our progress. Any radical modification of the existing

monogamic order is not to be expected, even if it were generally

recognized, which cannot be said to be the case, that it is

desirable. The question of sexual variations, it must be

remembered, is not a question of introducing an entirely new form

of marriage, but only of recognizing the rights of individuals,

in exceptional cases, to adopt such aberrant forms, and of

recognizing the corresponding duties of such individuals to

accept the responsibilities of any aberrant marriage forms they

may find it best to adopt. So far as the question of sexual

variations is more than this, it is, as Hinton argued, a

dynamical method of working towards the abolition of the perilous

and dangerous promiscuity of prostitution. A rigid marriage order

involves prostitution; a flexible marriage order largely--though

not, it may be, entirely--renders prostitution unnecessary. The

democratic morality of the present day, so far as the indications

at present go, is opposed to the encouragement of a _quasi_-slave

class, with diminished social rights, such as prostitutes always

constitute in a more or less marked degree. It is fairly evident,

also, that the rapidly growing influence of medical hygiene is on

the same side. We may, therefore, reasonably expect in the future

a slow though steady increase in the recognition, and even the

extension, of those variations of the monogamic order which have,

in reality, never ceased to exist.

It is lamentable that at this period of the world's history, nearly two

thousand years after the wise legislators of Rome had completed their

work, it should still be necessary to conclude that we are to-day only

beginning to place marriage on a reasonable and humane basis. I have

repeatedly pointed out how largely the Canon law has been responsible for

this arrest of development. One may say, indeed, that the whole attitude

of the Church, after it had once acquired complete worldly dominance,

must be held responsible. In the earlier centuries the attitude of

Christianity was, on the whole, admirable. It held aloft great ideals but

it refrained from enforcing those ideals at all costs; thus its ideals

remained genuine and could not degenerate into mere hypocritical empty

forms; much flexibility was allowed when it seemed to be for human good

and made for the avoidance of evil and injustice. But when the Church

attained temporal power, and when that power was concentrated in the hands

of Popes who subordinated moral and religious interests to political

interests, all the claims of reason and humanity were flung to the winds.

The ideal was no more a fact than it was before, but it was now treated as

a fact. Human relationships remained what they were before, as complicated

and as various, but henceforth one rigid pattern, admirable as an ideal

but worse than empty as a form, was arbitrarily set up, and all deviations

from it treated either as non-existent or damnable. The vitality was

crushed out of the most central human institutions, and they are only

to-day beginning to lift their heads afresh.

If--to sum up--we consider the course which the regulation of marriage has

run during the Christian era, the only period which immediately concerns

us, it is not difficult to trace the main outlines. Marriage began as a

private arrangement, which the Church, without being able to control, was

willing to bless, as it also blessed many other secular affairs of men,

making no undue attempt to limit its natural flexibility to human needs.

Gradually and imperceptibly, however, without the medium of any law,

Christianity gained the complete control of marriage, coördinated it with

its already evolved conceptions of the evil of lust, of the virtue of

chastity, of the mortal sin of fornication, and, having through the

influence of these dominating conceptions limited the flexibility of

marriage in every possible direction, it placed it on a lofty but narrow

pedestal as the sacrament of matrimony. For reasons which by no means lay

in the nature of the sexual relationships, but which probably seemed

cogent to sacerdotal legislators who assimilated it to ordination,

matrimony was declared indissoluble. Nothing was so easy to enter as the

gate of matrimony, but, after the manner of a mouse-trap, it opened

inwards and not outwards; once in there was no way out alive. The Church's

regulation of marriage while, like the celibacy of the clergy, it was a

success from the point of view of ecclesiastical politics, and even at

first from the point of view of civilization, for it at least introduced

order into a chaotic society, was in the long run a failure from the point

of view of society and morals. On the one hand it drifted into absurd

subtleties and quibbles; on the other, not being based on either reason or

humanity, it had none of that vital adaptability to the needs of life,

which early Christianity, while holding aloft austere ideals, still

largely retained. On the side of tradition this code of marriage law

became awkward and impracticable; on the biological side it was hopelessly

false. The way was thus prepared for the Protestant reintroduction of the

conception of marriage as a contract, that conception being, however,

brought forward less on its merits than as a protest against the

difficulties and absurdities of the Catholic Canon law. The contractive

view, which still largely persists even to-day, speedily took over much of

the Canon law doctrines of marriage, becoming in practice a kind of

reformed and secularized Canon law. It was somewhat more adapted to modern

needs, but it retained much of the rigidity of the Catholic marriage

without its sacramental character, and it never made any attempt to become

more than nominally contractive. It has been of the nature of an

incongruous compromise and has represented a transitional phase towards

free private marriage. We can recognize that phase in the tendency, well

marked in all civilized lands, to an ever increasing flexibility of

marriage. The idea, and even the fact, of marriage by consent and divorce

by failure of that consent, which we are now approaching, has never indeed

been quite extinct. In the Latin countries it has survived with the

tradition of Roman law; in the English-speaking countries it is bound up

with the spirit of Puritanism which insists that in the things that

concern the individual alone the individual himself shall be the supreme

judge. That doctrine as applied to marriage was in England magnificently

asserted by the genius of Milton, and in America it has been a leaven

which is still working in marriage legislation towards an inevitable goal

which is scarcely yet in sight. The marriage system of the future, as it

moves along its present course, will resemble the old Christian system in

that it will recognize the sacred and sacramental character of the sexual

relationship, and it will resemble the civil conception in that it will

insist that marriage, so far as it involves procreation, shall be publicly

registered by the State. But in opposition to the Church it will recognize

that marriage, in so far as it is purely a sexual relationship, is a

private matter the conditions of which must be left to the persons who

alone are concerned in it; and in opposition to the civil theory it will

recognize that marriage is in its essence a fact and not a contract,

though it may give rise to contracts, so long as such contracts do not

touch that essential fact. And in one respect it will go beyond either the

ecclesiastical conception or the civil conception. Man has in recent times

gained control of his own procreative powers, and that control involves a

shifting of the centre of gravity of marriage, in so far as marriage is an

affair of the State, from the vagina to the child which is the fruit of

the womb. Marriage as a state institution will centre, not around the

sexual relationship, but around the child which is the outcome of that

relationship. In so far as marriage is an inviolable public contract it

will be of such a nature that it will be capable of automatically covering

with its protection every child that is born into the world, so that every

child may possess a legal mother and a legal father. On the one side,

therefore, marriage is tending to become less stringent; on the other side

it is tending to become more stringent. On the personal side it is a

sacred and intimate relationship with which the State has no concern; on

the social side it is the assumption of the responsible public sponsorship

of a new member of the State. Some among us are working to further one of

these aspects of marriage, some to further the other aspect. Both are

indispensable to establish a perfect harmony. It is necessary to hold the

two aspects of marriage apart, in order to do equal justice to the

individual and to society, but in so far as marriage approaches its ideal

state those two aspects become one.

We have now completed the discussion of marriage as it presents itself to

the modern man born in what in mediæval days was called Christendom. It is

not an easy subject to discuss. It is indeed a very difficult subject, and

only after many years is it possible to detect the main drift of its

apparently opposing and confused currents when one is oneself in the midst

of them. To an Englishman it is, perhaps, peculiarly difficult, for the

Englishman is nothing if not insular; in that fact lie whatever virtues he

possesses, as well as their reverse sides.[374]

Yet it is worth while to attempt to climb to a height from which we can

view the stream of social tendency in its true proportions and estimate

its direction. It is necessary to do so if we value our mental peace in an

age when men's minds are agitated by many petty movements which have

nothing to do with their great temporal interests, to say nothing of their

eternal interests. When we have attained a wide vision of the solid

biological facts of life, when we have grasped the great historical

streams of tradition,--which together make up the map of human

affairs,--we can face serenely the little social transitions which take

place in our own age, as they have taken place in every age.

FOOTNOTES:

[312] Rosenthal, of Breslau, from the legal side, goes so far as to argue

("Grundfragen des Eheproblems," _Die Neue Generation_, Dec., 1908), that

the intention of procreation is essential to the conception of legal

marriage.

[313] J.A. Godfrey, _Science of Sex_, p. 119.

[314] E.D. Cope, "The Marriage Problem," _Open Court_, Nov., 1888.

[315] See _ante_, p. 395.

[316] Wächter, _Eheschiedungen_, pp. 95 et seq.; Esmein, _Marriage en

Droit Canonique_, vol. i, p. 6; Howard, _History of Matrimonial

Institutions_, vol. ii, p. 15. Howard (in agreement with Lecky) considers

that the freedom of divorce was only abused by a small section of the

Roman population, and that such abuse, so far as it existed, was not the

cause of any decline of Roman morals.

[317] The opinions of the Christian Fathers were very varied, and they

were sometimes doubtful about them; see, e.g., the opinions collected by

Cranmer and enumerated by Burnet, _History of Reformation_ (ed. Nares),

vol. ii, p. 91.

[318] Constantine, the first Christian Emperor, enacted a strict and

peculiar divorce law (allowing a wife to divorce her husband only when he

was a homicide, a poisoner, or a violator of sepulchres), which could not

be maintained. In 497, therefore, Anastasius decreed divorce by mutual

consent. This was abolished by Justinian, who only allowed divorce for

various specified causes, among them, however, including the husband's

adultery. These restrictions proved unworkable, and Justinian's successor

and nephew, Justin, restored divorce by mutual consent. Finally, in 870,

Leo the Philosopher returned to Justinian's enactment (see, e.g., Smith

and Cheetham, _Dictionary of Christian Antiquities_, arts. "Adultery" and

"Marriage").

[319] The element of reverence in the early German attitude towards women

and the privileges which even the married woman enjoyed, so far as Tacitus

can be considered a reliable guide, seem to have been the surviving

vestiges of an earlier social state on a more matriarchal basis. They are

most distinct at the dawn of German history. From the first, however,

though divorce by mutual consent seems to have been possible, German

custom was pitiless to the married woman who was unfaithful, sterile, or

otherwise offended, though for some time after the introduction of

Christianity it was no offence for the German husband to commit adultery

(Westermarck, _Origin of the Moral Ideas_, vol. ii, p. 453).

[320] "This form of marriage," says Hobhouse (op. cit., vol. i, p. 156),

"is intimately associated with the extension of marital power." Cf.

Howard, op. cit., vol. i, p. 231. The very subordinate position of the

mediæval German woman is set forth by Hagelstange, _Süddeutsches

Bauernleben in Mittelalter_, 1898, pp. 70 et seq.

[321] Howard, op. cit., vol. i, p. 259; Smith and Cheetham, _Dictionary of

Christian Antiquities_, art. _Arrhæ_. It would appear, however, that the

"bride-sale," of which Tacitus speaks, was not strictly the sale of a

chattel nor of a slave-girl, but the sale of the _mund_ or protectorship

over the girl. It is true the distinction may not always have been clear

to those who took part in the transaction. Similarly the Anglo-Saxon

betrothal was not so much a payment of the bride's price to her kinsmen,

although as a matter of fact, they might make a profit out of the

transaction, as a covenant stipulating for the bride's honorable treatment

as wife and widow. Reminiscences of this, remark Pollock and Maitland (op.

cit., vol. ii, p. 364), may be found in "that curious cabinet of

antiquities, the marriage ritual of the English Church."

[322] Howard, op. cit., vol. i, pp. 278-281, 386. The _Arrha_ crept into

Roman and Byzantine law during the sixth century.

[323] J. Wickham Legg, _Ecclesiological Essays_, p. 189. It may be added

that the idea of the subordination of the wife to the husband appeared in

the Christian Church at a somewhat early period, and no doubt

independently of Germanic influences; St. Augustine said (Sermo XXXVII,

cap. vi) that a good _materfamilias_ must not be ashamed to call herself

her husband's servant (_ancilla_).

[324] See, e.g., L. Gautier, _La Chevalerie_, Ch. IX.

[325] Howard, op. cit., vol. i, pp. 293 et seq.; Esmein, _op. cit._, vol.

i, pp. 25 et seq.; Smith and Cheetham, _Dictionary of Christian

Antiquities_ art. "Contract of Marriage."

[326] Any later changes in Catholic Canon law have merely been in the

direction of making matrimony still narrower and still more remote from

the practice of the world. By a papal decree of 1907, civil marriages and

marriages in non-Catholic places of worship are declared to be not only

sinful and unlawful (which they were before), but actually null and void.

[327] E.S.P. Haynes, _Our Divorce Law_, p. 3.

[328] It was the Council of Trent, in the sixteenth century, which made

ecclesiastical rites essential to binding marriage; but even then

fifty-six prelates voted against that decision.

[329] Esmein, op. cit., vol. i, p. 91.

[330] It is sometimes said that the Catholic Church is able to diminish

the evils of its doctrine of the indissolubility of marriage by the number

of impediments to marriage it admits, thus affording free scope for

dispensations from marriage. This scarcely seems to be the case. Dr. P.J.

Hayes, who speaks with authority as Chancellor of the Catholic Archdiocese

of New York, states ("Impediments to Marriage in the Catholic Church,"

_North American Review_, May, 1905) that even in so modern and so mixed a

community as this there are few applications for dispensations on account

of impediments; there are 15,000 Catholic marriages per annum in New York

City, but scarcely five per annum are questioned as to validity, and these

chiefly on the ground of bigamy.

[331] The Canonists, say Pollock and Maitland (loc. cit.), "made a

capricious mess of the marriage law." "Seldom," says Howard (_op. cit._,

vol i, p. 340), "have mere theory and subtle quibbling had more disastrous

consequences in practical life than in the case of the distinction between

_sponsalia de præsenti_ and _de futuro_."

[332] Howard, op. cit., vol. i, pp. 386 et seq. On the whole, however,

Luther's opinion was that marriage, though a sacred and mysterious thing,

is not a sacrament; his various statements on the matter are brought

together by Strampff, _Luther über die Ehe_, pp. 204-214.

[333] Howard, op. cit., vol. ii, pp. 61 et seq.

[334] Probably as a result of the somewhat confused and incoherent

attitude of the Reformers, the Canon law of marriage, in a modified form,

really persisted in Protestant countries to a greater extent than in

Catholic countries; in France, especially, it has been much more

profoundly modified (Esmein, op. cit., vol. i, p. 33).

[335] The Quaker conception of marriage is still vitally influential.

"Why," says Mrs. Besant (_Marriage_, p. 19), "should not we take a leaf

out of the Quaker's book, and substitute for the present legal forms of

marriage a simple declaration publicly made?"

[336] Howard, op. cit., vol. ii, p. 456. The actual practice in

Pennsylvania appears, however, to differ little from that usual in the

other States.