CHAPTER X.

MARRIAGE. The Definition of Marriage--Marriage Among Animals--The Predominance of Monogamy--The Question of Group Marriage--Monogamy a Natural Fact, Not Based on Human Law--The Tendency to Place the Form of Marriage Above the Fact of Marriage--The History of Marriage--Marriage in Ancient Rome--Germanic Influence on Marriage--Bride-Sale--The Ring--The Influence of Christianity on Marriage--The Great Extent of This Influence--The Sacrament of Matrimony--Origin and Growth of the Sacramental Conception--The Church Made Marriage a Public Act--Canon Law--Its Sound Core--Its Development--Its Confusions and Absurdities--Peculiarities of English Marriage Law--Influence of the Reformation on Marriage--The Protestant Conception of Marriage as a Secular Contract--The Puritan Reform of Marriage--Milton as the Pioneer of Marriage Reform--His Views on Divorce--The Backward Position of England in Marriage Reform--Criticism of the English Divorce Law--Traditions of the Canon Law Still Persistent--The Question of Damages for Adultery--Collusion as a Bar to Divorce--Divorce in France, Germany, Austria, Russia, etc.--The United States--Impossibility of Deciding by Statute the Causes for Divorce--Divorce by Mutual Consent--Its Origin and Development--Impeded by the Traditions of Canon Law--Wilhelm von Humboldt--Modern Pioneer Advocates of Divorce by Mutual Consent--The Arguments Against Facility of Divorce--The Interests of the Children--The Protection of Women--The Present Tendency of the Divorce Movement--Marriage Not a Contract--The Proposal of Marriage for a Term of Years--Legal Disabilities and Disadvantages in the Position of the Husband and the Wife--Marriage Not a Contract But a Fact--Only the Non-Essentials of Marriage, Not the Essentials, a Proper Matter for Contract--The Legal Recognition of Marriage as a Fact Without Any Ceremony--Contracts of the Person Opposed to Modern Tendencies--The Factor of Moral Responsibility--Marriage as an Ethical Sacrament--Personal Responsibility Involves Freedom--Freedom the Best Guarantee of Stability--False Ideas of Individualism--Modern Tendency of Marriage--With the Birth of a Child Marriage Ceases to be a Private Concern--Every Child Must Have a Legal Father and Mother--How This Can be Effected--The Firm Basis of Monogamy--The Question of Marriage Variations--Such Variations Not Inimical to Monogamy--The Most Common Variations--The Flexibility of Marriage Holds Variations in Check--Marriage Variations _versus_ Prostitution--Marriage on a Reasonable and Humane Basis--Summary and Conclusion. The discussion in the previous chapter of the nature of sexual morality, with the brief sketch it involved of the direction in which that morality is moving, has necessarily left many points vague. It may still be asked what definite and precise forms sexual unions are tending to take among us, and what relation these unions bear to the religious, social, and legal traditions we have inherited. These are matters about which a very considerable amount of uncertainty seems to prevail, for it is not unusual to hear revolutionary or eccentric opinions concerning them. Sexual union, involving the cohabitation, temporary or permanent, of two or more persons, and having for one of its chief ends the production and care of offspring, is commonly termed marriage. The group so constituted forms a family. This is the sense in which the words "marriage" and the "family" are most properly used, whether we speak of animals or of Man. There is thus seen to be room for variation as regards both the time during which the union lasts, and the number of individuals who form it, the chief factor in the determination of these points being the interests of the offspring. In actual practice, however, sexual unions, not only in Man but among the higher animals, tend to last beyond the needs of the offspring of a single season, while the fact that in most species the numbers of males and females are approximately equal makes it inevitable that both among animals and in Man the family is produced by a single sexual couple, that is to say that monogamy is, with however many exceptions, necessarily the fundamental rule. It will thus be seen that marriage centres in the child, and has at the outset no reason for existence apart from the welfare of the offspring. Among those animals of lowly organization which are able to provide for themselves from the beginning of existence there is no family and no need for marriage. Among human races, when sexual unions are not followed by offspring, there may be other reasons for the continuance of the union but they are not reasons in which either Nature or society is in the slightest degree directly concerned. The marriage which grew up among animals by heredity on the basis of natural selection, and which has been continued by the lower human races through custom and tradition, by the more civilized races through the superimposed regulative influence of legal institutions, has been marriage for the sake of the offspring.[312] Even in civilized races among whom the proportion of sterile marriages is large, marriage tends to be so constituted as always to assume the procreation of children and to involve the permanence required by such procreation. Among birds, which from the point of view of erotic development stand at the head of the animal world, monogamy frequently prevails (according to some estimates among 90 per cent.), and unions tend to be permanent; there is an approximation to the same condition among some of the higher mammals, especially the anthropoid apes; thus among gorillas and oran-utans permanent monogamic marriages take place, the young sometimes remaining with the parents to the age of six, while any approach to loose behavior on the part of the wife is severely punished by the husband. The variations that occur are often simply matters of adaptation to circumstances; thus, according to J.G. Millais (_Natural History of British Ducks_, pp. 8, 63), the Shoveler duck, though normally monogamic, will become polyandric when males are in excess, the two males being in constant and amicable attendance on the female without signs of jealousy; among the monogamic mallards, similarly, polygyny and polyandry may also occur. See also R.W. Shufeldt, "Mating Among Birds," _American Naturalist_, March, 1907; for mammal marriages, a valuable paper by Robert Müller, "Säugethierehen," _Sexual-Probleme_, Jan., 1909, and as regards the general prevalence of monogamy, Woods Hutchinson, "Animal Marriage," _Contemporary Review_, Oct., 1904, and Sept., 1905. There has long been a dispute among the historians of marriage as to the first form of human marriage. Some assume a primitive promiscuity gradually modified in the direction of monogamy; others argue that man began where the anthropoid apes left off, and that monogamy has prevailed, on the whole, throughout. Both these opposed views, in an extreme form, seem untenable, and the truth appears to lie midway. It has been shown by various writers, and notably Westermarck (_History of Human Marriage_, Chs. IV-VI), that there is no sound evidence in favor of primitive promiscuity, and that at the present day there are few, if any, savage peoples living in genuine unrestricted sexual promiscuity. This theory of a primitive promiscuity seems to have been suggested, as J.A. Godfrey has pointed out (_Science of Sex_, p. 112), by the existence in civilized societies of promiscuous prostitution, though this kind of promiscuity was really the result, rather than the origin, of marriage. On the other hand, it can scarcely be said that there is any convincing evidence of primitive strict monogamy beyond the assumption that early man continued the sexual habits of the anthropoid apes. It would seem probable, however, that the great forward step involved in passing from ape to man was associated with a change in sexual habits involving the temporary adoption of a more complex system than monogamy. It is difficult to see in what other social field than that of sex primitive man could find exercise for the developing intellectual and moral aptitudes, the subtle distinctions and moral restraints, which the strict monogamy practiced by animals could afford no scope for. It is also equally difficult to see on what basis other than that of a more closely associated sexual system the combined and harmonious efforts needed for social progress could have developed. It is probable that at least one of the motives for exogamy, or marriage outside the group, is (as was probably first pointed out by St. Augustine in his _De Civitate Dei_) the need of creating a larger social circle, and so facilitating social activities and progress. Exactly the same end is effected by a complex marriage system binding a large number of people together by common interests. The strictly small and confined monogamic family, however excellently it subserved the interests of the offspring, contained no promise of a wider social progress. We see this among both ants and bees, who of all animals, have attained the highest social organization; their progress was only possible through a profound modification of the systems of sexual relationship. As Espinas said many years ago (in his suggestive work, _Des Sociétés Animales_): "The cohesion of the family and the probabilities for the birth of societies are inverse." Or, as Schurtz more recently pointed out, although individual marriage has prevailed more or less from the first, early social institutions, early ideas and early religion involved sexual customs which modified a strict monogamy. The most primitive form of complex human marriage which has yet been demonstrated as still in existence is what is called group-marriage, in which all the women of one class are regarded as the actual, or at all events potential, wives of all the men in another class. This has been observed among some central Australian tribes, a people as primitive and as secluded from external influence as could well be found, and there is evidence to show that it was formerly more widespread among them. "In the Urabunna tribe, for example," say Spencer and Gillen, "a group of men actually do have, continually and as a normal condition, marital relations with a group of women. This state of affairs has nothing whatever to do with polygamy any more than it has with polyandry. It is simply a question of a group of men and a group of women who may lawfully have what we call marital relations. There is nothing whatever abnormal about it, and, in all probability, this system of what has been called group marriage, serving as it does to bind more or less closely together groups of individuals who are mutually interested in one another's welfare, has been one of the most powerful agents in the early stages of the upward development of the human race" (Spencer and Gillen, _Northern Tribes of Central Australia_, p. 74; cf. A.W. Howitt, _The Native Tribes of South-East Australia_). Group-marriage, with female descent, as found in Australia, tends to become transformed by various stages of progress into individual marriage with descent in the male line, a survival of group-marriage perhaps persisting in the much-discussed _jus primæ noctis_. (It should be added that Mr. N.W. Thomas, in his book on _Kinship and Marriage in Australia_, 1908, concludes that group-marriage in Australia has not been demonstrated, and that Professor Westermarck, in his _Origin and Development of the Moral Ideas_, as in his previous _History of Human Marriage_, maintains a skeptical opinion in regard to group-marriage generally; he thinks the Urabunna custom may have developed out of ordinary individual marriage, and regards the group-marriage theory as "the residuary legatee of the old theory of promiscuity." Durkheim also believes that the Australian marriage system is not primitive, "Organisation Matrimoniale Australienne," _L'Année Sociologique_, eighth year, 1905). With the attainment of a certain level of social progress it is easy to see that a wide and complicated system of sexual relationships ceases to have its value, and a more or less qualified monogamy tends to prevail as more in harmony with the claims of social stability and executive masculine energy. The best historical discussion of marriage is still probably Westermarck's _History of Human Marriage_, though at some points it now needs to be corrected or supplemented; among more recent books dealing with primitive sexual conceptions may be specially mentioned Crawley's _Mystic Rose_, while the facts concerning the transformation of marriage among the higher human races are set forth in G.E. Howard's _History of Matrimonial Institutions_ (3 vols.), which contains copious bibliographical references. There is an admirably compact, but clear and comprehensive, sketch of the development of modern marriage in Pollock and Maitland, _History of English Law_, vol. ii. It is necessary to make allowance for variations, thereby shunning the extreme theorists who insist on moulding all facts to their theories, but we may conclude that--as the approximately equal number of the sexes indicates--in the human species, as among many of the higher animals, a more or less permanent monogamy has on the whole tended to prevail. That is a fact of great significance in its implications. For we have to realize that we are here in the presence of a natural fact. Sexual relationships, in human as in animal societies, follow a natural law, oscillating on each side of the norm, and there is no place for the theory that that law was imposed artificially. If all artificial "laws" could be abolished the natural order of the sexual relationships would continue to subsist substantially as at present. Virtue, said Cicero, is but Nature carried out to the utmost. Or, as Holbach put it, arguing that our institutions tend whither Nature tends, "art is only Nature acting by the help of the instruments she has herself made." Shakespeare had already seen much the same truth when he said that the art which adds to Nature "is an art that Nature makes." Law and religion have buttressed monogamy; it is not based on them but on the needs and customs of mankind, and these constitute its completely adequate sanctions.[313] Or, as Cope put it, marriage is not the creation of law but the law is its creation.[314] Crawley, again, throughout his study of primitive sex relationships, emphasizes the fact that our formal marriage system is not, as so many religious and moral writers once supposed, a forcible repression of natural impulses, but merely the rigid crystallization of those natural impulses, which in a more fluid form have been in human nature from the first. Our conventional forms, we must believe, have not introduced any elements of value, while in some respects they have been mischievous. It is necessary to bear in mind that the conclusion that monogamic marriage is natural, and represents an order which is in harmony with the instincts of the majority of people, by no means involves agreement with the details of any particular legal system of monogamy. Monogamic marriage is a natural biological fact, alike in many animals and in man. But no system of legal regulation is a natural biological fact. When a highly esteemed alienist, Dr. Clouston, writes (_The Hygiene of Mind_, p. 245) "there is only one natural mode of gratifying sexual _nisus_ and reproductive instinct, that of marriage," the statement requires considerable exegesis before it can be accepted, or even receive an intelligible meaning, and if we are to understand by "marriage" the particular form and implications of the English marriage law, or even of the somewhat more enlightened Scotch law, the statement is absolutely false. There is a world of difference, as J.A. Godfrey remarks (_The Science of Sex_, 1901, p. 278), between natural monogamous marriage and our legal system; "the former is the outward expression of the best that lies in the sexuality of man; the latter is a creation in which religious and moral superstitions have played a most important part, not always to the benefit of individual and social health." We must, therefore, guard against the tendency to think that there is anything rigid or formal in the natural order of monogamy. Some sociologists would even limit the naturalness of monogamy still further. Thus Tarde ("La Morale Sexuelle," _Archives d'Anthropologie Criminelle_, Jan., 1907), while accepting as natural under present conditions the tendency for monogamy, mitigated by more or less clandestine concubinage, to prevail over all other forms of marriage, considers that this is not due to any irresistible influence, but merely to the fact that this kind of marriage is practiced by the majority of people, including the most civilized. With the acceptance of the tendency to monogamy we are not at the end of sexual morality, but only at the beginning. It is not monogamy that is the main thing, but the kind of lives that people lead in monogamy. The mere acceptance of a monogamic rule carries us but a little way. That is a fact which cannot fail to impress itself on those who approach the questions of sex from the psychological side. If monogamy is thus firmly based it is unreasonable to fear, or to hope for, any radical modification in the institution of marriage, regarded, not under its temporary religious and legal aspects but as an order which appeared on the earth even earlier than man. Monogamy is the most natural expression of an impulse which cannot, as a rule, be so adequately realized in full fruition under conditions involving a less prolonged period of mutual communion and intimacy. Variations, regarded as inevitable oscillations around the norm, are also natural, but union in couples must always be the rule because the numbers of the sexes are always approximately equal, while the needs of the emotional life, even apart from the needs of offspring, demand that such unions based on mutual attraction should be so far as possible permanent. It must here again be repeated that it is the reality, and not the form or the permanence of the marriage union, which is its essential and valuable part. It is not the legal or religious formality which sanctifies marriage, it is the reality of the marriage which sanctifies the form. Fielding has satirized in Nightingale, Tom Jones's friend, the shallow-brained view of connubial society which degrades the reality of marriage to exalt the form. Nightingale has the greatest difficulty in marrying a girl with whom he has already had sexual relations, although he is the only man who has had relations with her. To Jones's arguments he replies: "Common-sense warrants all you say, but yet you well know that the opinion of the world is so contrary to it, that were I to marry a whore, though my own, I should be ashamed of ever showing my face again." It cannot be said that Fielding's satire is even yet out of date. Thus in Prussia, according to Adele Schreiber ("Heirathsbeschränkungen," _Die Neue Generation_, Feb., 1909), it seems to be still practically impossible for a military officer to marry the mother of his own illegitimate child. The glorification of the form at the expense of the reality of marriage has even been attempted in poetry by Tennyson in the least inspired of his works, _The Idylls of the King_. In "Lancelot and Elaine" and "Guinevere" (as Julia Magruder points out, _North American Review_, April, 1905) Guinevere is married to King Arthur, whom she has never seen, when already in love with Lancelot, so that the "marriage" was merely a ceremony, and not a real marriage (cf., May Child, "The Weird of Sir Lancelot," _North American Review_, Dec., 1908). It may seem to some that so conservative an estimate of the tendencies of civilization in matters of sexual love is due to a timid adherence to mere tradition. That is not the case. We have to recognize that marriage is firmly held in position by the pressure of two opposing forces. There are two currents in the stream of our civilization: one that moves towards an ever greater social order and cohesion, the other that moves towards an ever greater individual freedom. There is real harmony underlying the apparent opposition of these two tendencies, and each is indeed the indispensable complement of the other. There can be no real freedom for the individual in the things that concern that individual alone unless there is a coherent order in the things that concern him as a social unit. Marriage in one of its aspects only concerns the two individuals involved; in another of its aspects it chiefly concerns society. The two forces cannot combine to act destructively on marriage, for the one counteracts the other. They combine to support monogamy, in all essentials, on its immemorial basis. It must be added that in the circumstances of monogamy that are not essential there always has been, and always must be, perpetual transformation. All traditional institutions, however firmly founded on natural impulses, are always growing dead and rigid at some points and putting forth vitally new growths at other points. It is the effort to maintain their vitality, and to preserve their elastic adjustment to the environment, which involves this process of transformation in non-essentials. The only way in which we can fruitfully approach the question of the value of the transformations now taking place in our marriage-system is by considering the history of that system in the past. In that way we learn the real significance of the marriage-system, and we understand what transformations are, or are not, associated with a fine civilization. When we are acquainted with the changes of the past we are enabled to face more confidently the changes of the present. The history of the marriage-system of modern civilized peoples begins in the later days of the Roman Empire at the time when the foundations were being laid of that Roman law which has exerted so large an influence in Christendom. Reference has already been made[315] to the significant fact that in late Rome women had acquired a position of nearly complete independence in relation to their husbands, while the patriarchal authority still exerted over them by their fathers had become, for the most part, almost nominal. This high status of women was associated, as it naturally tends to be, with a high degree of freedom in the marriage system. Roman law had no power of intervening in the formation of marriages and there were no legal forms of marriage. The Romans recognized that marriage is a fact and not a mere legal form; in marriage by _usus_ there was no ceremony at all; it was constituted by the mere fact of living together for a whole year; yet such marriage was regarded as just as legal and complete as if it had been inaugurated by the sacred rite of _confarreatio_. Marriage was a matter of simple private agreement in which the man and the woman approached each other on a footing of equality. The wife retained full control of her own property; the barbarity of admitting an action for restitution of conjugal rights was impossible, divorce was a private transaction to which the wife was as fully entitled as the husband, and it required no inquisitorial intervention of magistrate or court; Augustus ordained, indeed, that a public declaration was necessary, but the divorce itself was a private legal act of the two persons concerned.[316] It is interesting to note this enlightened conception of marriage prevailing in the greatest and most masterful Empire which has ever dominated the world, at the period not indeed of its greatest force,--for the maximum of force and the maximum of expansion, the bud and the full flower, are necessarily incompatible,--but at the period of its fullest development. In the chaos that followed the dissolution of the Empire Roman law remained as a precious legacy to the new developing nations, but its influence was inextricably mingled with that of Christianity, which, though not at the first anxious to set up marriage laws of its own, gradually revealed a growing ascetic feeling hostile alike to the dignity of the married woman and the freedom of marriage and divorce.[317] With that influence was combined the influence, introduced through the Bible, of the barbaric Jewish marriage-system conferring on the husband rights in marriage and divorce which were totally denied to the wife; this was an influence which gained still greater force at the Reformation when the authority once accorded to the Church was largely transformed to the Bible. Finally, there was in a great part of Europe, including the most energetic and expansive parts, the influence of the Germans, an influence still more primitive than that of the Jews, involving the conception of the wife as almost her husband's chattel, and marriage as a purchase. All these influences clashed and often appeared side by side, though they could not be harmonized. The result was that the fifteen hundred years that followed the complete conquest of Christianity represent on the whole the most degraded condition to which the marriage system has ever been known to fall for so long a period during the whole course of human history. At first indeed the beneficent influence of Rome continued in some degree to prevail and even exhibited new developments. In the time of the Christian Emperors freedom of divorce by mutual consent was alternately maintained, and abolished.[318] We even find the wise and far-seeing provision of the law enacting that a contract of the two parties never to separate could have no legal validity. Justinian's prohibition of divorce by consent led to much domestic unhappiness, and even crime, which appears to be the reason why it was immediately abrogated by his successor, Theodosius, still maintaining the late Roman tradition of the moral equality of the sexes, allowed the wife equally with the husband to obtain a divorce for adultery; that is a point we have not yet attained in England to-day. It seems to be admitted on all sides that it was largely the fatal influence of the irruption of the barbarous Germans which degraded, when it failed to sweep away, the noble conception of the equality of women with men, and the dignity and freedom of marriage, slowly moulded by the organizing genius of the Roman into a great tradition which still retains a supreme value. The influence of Christianity had at the first no degrading influence of this kind; for the ascetic ideal was not yet predominant, priests married as a matter of course, and there was no difficulty in accepting the marriage order established in the secular world; it was even possible to add to it a new vitality and freedom. But the Germans, with all the primitively acquisitive and combative instincts of untamed savages, went far beyond even the early Romans in the subjection of their wives; they allowed indeed to their unmarried girls a large measure of indulgence and even sexual freedom,--just as the Christians also reverenced their virgins,[319]--but the German marriage system placed the wife, as compared to the wife of the Roman Empire, in a condition little better than that of a domestic slave. In one form or another, under one disguise or another, the system of wife-purchase prevailed among the Germans, and, whenever that system is influential, even when the wife is honored her privileges are diminished.[320] Among the Teutonic peoples generally, as among the early English, marriage was indeed a private transaction but it took the form of a sale of the bride by the father, or other legal guardian, to the bridegroom. The _beweddung_ was a real contract of sale.[321] "Sale-marriage" was the most usual form of marriage. The ring, indeed, probably was not in origin, as some have supposed, a mark of servitude, but rather a form of bride-price, or _arrha_, that is to say, earnest money on the contract of marriage and so the symbol of it.[322] At first a sign of the bride's purchase, it was not till later that the ring acquired the significance of subjection to the bridegroom, and that significance, later in the Middle Ages, was further emphasized by other ceremonies. Thus in England the York and Sarum manuals in some of their forms direct the bride, after the delivery of the ring, to fall at her husband's feet, and sometimes to kiss his right foot. In Russia, also, the bride kissed her husband's feet. At a later period, in France, this custom was attenuated, and it became customary for the bride to let the ring fall in front of the altar and then stoop at her husband's feet to pick it up.[323] Feudalism carried on, and by its military character exaggerated, these Teutonic influences. A fief was land held on condition of military service, and the nature of its influence on marriage is implied in that fact. The woman was given with the fief and her own will counted for nothing.[324] The Christian Church in the beginning accepted the forms of marriage already existing in those countries in which it found itself, the Roman forms in the lands of Latin tradition and the German forms in Teutonic lands. It merely demanded (as it also demanded for other civil contracts, such as an ordinary sale) that they should be hallowed by priestly benediction. But the marriage was recognized by the Church even in the absence of such benediction. There was no special religious marriage service, either in the East or the West, earlier than the sixth century. It was simply the custom for the married couple, after the secular ceremonies were completed, to attend the church, listen to the ordinary service and take the sacrament. A special marriage service was developed slowly, and it was no part of the real marriage. During the tenth century (at all events in Italy and France) it was beginning to become customary to celebrate the first part of the real nuptials, still a purely temporal act, outside the church door. Soon this was followed by the regular bride-mass, directly applicable to the occasion, inside the church. By the twelfth century the priest directed the ceremony, now involving an imposing ritual, which began outside the church and ended with the bridal mass inside. By the thirteenth century, the priest, superseding the guardians of the young couple, himself officiated through the whole ceremony. Up to that time marriage had been a purely private business transaction. Thus, after more than a millennium of Christianity, not by law but by the slow growth of custom, ecclesiastical marriage was established.[325] It was undoubtedly an event of very great importance not merely for the Church but for the whole history of European marriage even down to to-day. The whole of our public method of celebrating marriage to-day is based on that of the Catholic Church as established in the twelfth century and formulated in the Canon law. Even the publication of banns has its origin here, and the fact that in our modern civil marriage the public ceremony takes place in an office and not in a Church may disguise but cannot alter the fact that it is the direct and unquestionable descendant of the public ecclesiastical ceremony which embodied the slow and subtle triumph--so slow and subtle that its history is difficult to trace--of Christian priests over the private affairs of men and women. Before they set themselves to this task marriage everywhere was the private business of the persons concerned; when they had completed their task,--and it was not absolutely complete until the Council of Trent,--a private marriage had become a sin and almost a crime.[326] It may seem a matter for surprise that the Church which, as we know, had shown an ever greater tendency to reverence virginity and to cast contumely on the sexual relationship, should yet, parallel with that movement and with the growing influence of asceticism, have shown so great an anxiety to capture marriage and to confer on it a public, dignified, and religious character. There was, however, no contradiction. The factors that were constituting European marriage, taken as a whole, were indeed of very diverse characters and often involved unreconciled contradictions. But so far as the central efforts of the ecclesiastical legislators were concerned, there was a definite and intelligible point of view. The very depreciation of the sexual instinct involved the necessity, since the instinct could not be uprooted, of constituting for it a legitimate channel, so that ecclesiastical matrimony was, it has been said, "analogous to a license to sell intoxicating liquors."[327] Moreover, matrimony exhibited the power of the Church to confer on the license a dignity and distinction which would clearly separate it from the general stream of lust. Sexual enjoyment is impure, the faithful cannot partake of it until it has been purified by the ministrations of the Church. The solemnization of marriage was the necessary result of the sanctification of virginity. It became necessary to sanctify marriage also, and hence was developed the indissoluble sacrament of matrimony. The conception of marriage as a religious sacrament, a conception of far-reaching influence, is the great contribution of the Catholic Church to the history of marriage. It is important to remember that, while Christianity brought the idea of marriage as a sacrament into the main stream of the institutional history of Europe, that idea was merely developed, not invented, by the Church. It is an ancient and even primitive idea. The Jews believed that marriage is a magico-religious bond, having in it something mystical resembling a sacrament, and that idea, says Durkheim (_L'Année Sociologique_, eighth year, 1905, p. 419), is perhaps very archaic, and hangs on to the generally magic character of sex relations. "The mere act of union," Crawley remarks (_The Mystic Rose_, p. 318) concerning savages, "is potentially a marriage ceremony of the sacramental kind.... One may even credit the earliest animistic men with some such vague conception before any ceremony became crystallized." The essence of a marriage ceremony, the same writer continues, "is the 'joining together' of a man and a woman; in the words of our English service, 'for this cause shall a man leave his father and mother and shall be joined unto his wife; and they two shall be one flesh.' At the other side of the world, amongst the Orang Benuas, these words are pronounced by an elder, when a marriage is solemnized: 'Listen all ye that are present; those that were distant are now brought together; those that were separated are now united.' Marriage ceremonies in all stages of culture may be called religious with as much propriety as any ceremony whatever. Those who were separated are now joined together, those who were mutually taboo now break the taboo." Thus marriage ceremonies prevent sin and neutralize danger. The Catholic conception of marriage was, it is clear, in essentials precisely the primitive conception. Christianity drew the sacramental idea from the archaic traditions in popular consciousness, and its own ecclesiastical contribution lay in slowly giving that idea a formal and rigid shape, and in declaring it indissoluble. As among savages, it was in the act of consent that the essence of the sacrament lay; the intervention of the priest was not, in principle, necessary to give marriage its religiously binding character. The essence of the sacrament was mutual acceptance of each other by the man and the woman, as husband and wife, and technically the priest who presided at the ceremony was simply a witness of the sacrament. The essential fact being thus the mental act of consent, the sacrament of matrimony had the peculiar character of being without any outward and visible sign. Perhaps it was this fact, instinctively felt as a weakness, which led to the immense emphasis on the indissolubility of the sacrament of matrimony, already established by St. Augustine. The Canonists brought forward various arguments to account for that indissolubility, and a frequent argument has always been the Scriptural application of the term "one flesh" to married couples; but the favorite argument of the Canonists was that matrimony represents the union of Christ with the Church; that is indissoluble, and therefore its image must be indissoluble (Esmein, op. cit., vol. i, p. 64). In part, also, one may well believe, the idea of the indissolubility of marriage suggested itself to the ecclesiastical mind by a natural association of ideas: the vow of virginity in monasticism was indissoluble; ought not the vow of sexual relationship in matrimony to be similarly indissoluble? It appears that it was not until 1164, in Peter Lombard's _Sentences_, that clear and formal recognition is found of matrimony as one of the seven sacraments (Howard, op. cit., vol. i, p. 333). The Church, however, had not only made marriage a religious act; it had also made it a public act. The officiating priest, who had now become the arbiter of marriage, was bound by all the injunctions and prohibitions of the Church, and he could not allow himself to bend to the inclinations and interests of individual couples or their guardians. It was inevitable that in this matter, as in other similar matters, a code of ecclesiastical regulations should be gradually developed for his guidance. This need of the Church, due to its growing control of the world's affairs, was the origin of Canon law. With the development of Canon law the whole field of the regulation of the sexual relationships, and the control of its aberrations, became an exclusively ecclesiastical matter. The secular law could take no more direct cognizance of adultery than of fornication or masturbation; bigamy, incest, and sodomy were not temporal crimes; the Church was supreme in the whole sphere of sex. It was during the twelfth century that Canon law developed, and Gratian was the master mind who first moulded it. He belonged to the Bolognese school of jurisprudence which had inherited the sane traditions of Roman law. The Canons which Gratian compiled were, however, no more the mere result of legal traditions than they were the outcome of cloistered theological speculation. They were the result of a response to the practical needs of the day before those needs had had time to form a foundation for fine-spun subtleties. At a somewhat later period, before the close of the century, the Italian jurists were vanquished by the Gallic theologians of Paris as represented by Peter Lombard. The result was the introduction of mischievous complexities which went far to rob Canon law alike of its certainty and its adaptation to human necessities. Notwithstanding, however, all the parasitic accretions which swiftly began to form around the Canon law and to entangle its practical activity, that legislation embodied--predominantly at the outset and more obscurely throughout its whole period of vital activity--a sound core of real value. The Canon law recognized at the outset that the essential fact of marriage is the actual sexual union, accomplished with the intention of inaugurating a permanent relationship. The _copula carnalis_, the making of two "one flesh," according to the Scriptural phrase, a mystic symbol of the union of the Church to Christ, was the essence of marriage, and the mutual consent of the couple alone sufficed to constitute marriage, even without any religious benediction, or without any ceremony at all. The formless and unblessed union was still a real and binding marriage if the two parties had willed it so to be.[328] Whatever hard things may be said about the Canon law, it must never be forgotten that it carried through the Middle Ages until the middle of the sixteenth century the great truth that the essence of marriage lies not in rites and forms, but in the mutual consent of the two persons who marry each other. When the Catholic Church, in its growing rigidity, lost that conception, it was taken up by the Protestants and Puritans in their first stage of ardent vital activity, though it was more or less dropped as they fell back into a state of subservience to forms. It continued to be maintained by moralists and poets. Thus George Chapman, the dramatist, who was both moralist and poet, in _The Gentleman Usher_ (1606), represents the riteless marriage of his hero and heroine, which the latter thus introduces:-- "May not we now Our contract make and marry before Heaven? Are not the laws of God and Nature more Than formal laws of men? Are outward rites More virtuous than the very substance is Of holy nuptials solemnized within? .... The eternal acts of our pure souls Knit us with God, the soul of all the world, He shall be priest to us; and with such rites As we can here devise we will express And strongly ratify our hearts' true vows, Which no external violence shall dissolve." And to-day, Ellen Key, the distinguished prophet of marriage reform, declares at the end of her _Liebe und Ehe_ that the true marriage law contains only the paragraph: "They who love each other are husband and wife." The establishment of marriage on this sound and naturalistic basis had the further excellent result that it placed the man and the woman, who could thus constitute marriage by their consent in entire disregard of the wishes of their parents or families, on the same moral level. Here the Church was following alike the later Romans and the early Christians like Lactantius and Jerome who had declared that what was licit for a man was licit for a woman. The Penitentials also attempted to set up this same moral law for both sexes. The Canonists finally allowed a certain supremacy to the husband, though, on the other hand, they sometimes seemed to assign even the chief part in marriage to the wife, and the attempt was made to derive the word _matrimonium_ from _matris munium_, thereby declaring the maternal function to be the essential fact of marriage.[329] The sound elements in the Canon law conception of marriage were, however, from a very early period largely if not altogether neutralized by the verbal subtleties by which they were overlaid, and even by its own fundamental original defects. Even in the thirteenth century it began to be possible to attach a superior force to marriage verbally formed _per verba de præsenti_ than to one constituted by sexual union, while so many impediments to marriage were set up that it became difficult to know what marriages were valid, an important point since a marriage even innocently contracted within the prohibited degrees was only a putative marriage. The most serious and the most profoundly unnatural feature of this ecclesiastical conception of marriage was the flagrant contradiction between the extreme facility with which the gate of marriage was flung open to the young couple, even if they were little more than children, and the extreme rigor with which it was locked and bolted when they were inside. That is still the defect of the marriage system we have inherited from the Church, but in the hands of the Canonists it was emphasized both on the side of its facility for entrance and of its difficulty for exit.[330] Alike from the standpoint of reason and of humanity the gate that is easy of ingress must be easy of egress; or if the exit is necessarily difficult then extreme care must be taken in admission. But neither of these necessary precautions was possible to the Canonists. Matrimony was a sacrament and all must be welcome to a sacrament, the more so since otherwise they may be thrust into the mortal sin of fornication. On the other side, since matrimony was a sacrament, when once truly formed, beyond the permissible power of verbal quibbles to invalidate, it could never be abrogated. The very institution that, in the view of the Church, had been set up as a bulwark against license became itself an instrument for artificially creating license. So that the net result of the Canon law in the long run was the production of a state of things which--in the eyes of a large part of Christendom--more than neutralized the soundness of its original conception.[331] In England, where from the ninth century, marriage was generally accepted by the ecclesiastical and temporal powers as indissoluble, Canon law was, in the main, established as in the rest of Christendom. There were, however, certain points in which Canon law was not accepted by the law of England. By English law a ceremony before a priest was necessary to the validity of a marriage, though in Scotland the Canon law doctrine was accepted that simple consent of the parties, even exchanged secretly, sufficed to constitute marriage. Again, the issue of a void marriage contracted in innocence, and the issue of persons who subsequently marry each other, are legitimate by Canon law, but not by the common law of England (Geary, _Marriage and Family Relations_, p. 3; Pollock and Maitland, loc. cit.). The Canonists regarded the disabilities attaching to bastardy as a punishment inflicted on the offending parents, and considered, therefore, that no burden should fall on the children when there had been a ceremony in good faith on the part of one at least of the parents. In this respect the English law is less reasonable and humane. It was at the Council of Merton, in 1236, that the barons of England rejected the proposal to make the laws of England harmonize with the Canon law, that is, with the ecclesiastical law of Christendom generally, in allowing children born before wedlock to be legitimated by subsequent marriage. Grosseteste poured forth his eloquence and his arguments in favor of the change, but in vain, and the law of England has ever since stood alone in this respect (Freeman, "Merton Priory," _English Towns and Districts_). The proposal was rejected in the famous formula, "Nolumus leges Angliæ mutare," a formula which merely stood for an unreasonable and inhumane obstinacy. In the United States, while by common law subsequent marriage fails to legitimate children born before marriage, in many of the States the subsequent marriage of the parents effects by statute the legitimacy of the child, sometimes (as in Maine) automatically, more usually (as in Massachusetts) through special acknowledgment by the father. The appearance of Luther and the Reformation involved the decay of the Canon law system so far as Europe as a whole was concerned. It was for many reasons impossible for the Protestant reformers to retain formally either the Catholic conception of matrimony or the precariously elaborate legal structure which the Church had built up on that conception. It can scarcely be said, indeed, that the Protestant attitude towards the Catholic idea of matrimony was altogether a clear, logical, or consistent attitude. It was a revolt, an emotional impulse, rather than a matter of reasoned principle. In its inevitable necessity, under the circumstances of the rise of Protestantism, lies its justification, and, on the whole, its wholesome soundness. It took the form, which may seem strange in a religious movement, of proclaiming that marriage is not a religious but a secular matter. Marriage is, said Luther, "a worldly thing," and Calvin put it on the same level as house-building, farming, or shoe-making. But while this secularization of marriage represents the general and final drift of Protestantism, the leaders of Protestantism were themselves not altogether confident and clear-sighted in the matter. Even Luther was a little confused on this point; sometimes he seems to call marriage "a sacrament," sometimes "a temporal business," to be left to the state.[332] It was the latter view which tended to prevail. But at first there was a period of confusion, if not of chaos, in the minds of the Reformers; not only were they not always convinced in their own minds; they were at variance with each other, especially on the very practical question of divorce. Luther on the whole belonged to the more rigid party, including Calvin and Beza, which would grant divorce only for adultery and malicious desertion; some, including many of the early English Protestants, were in favor of allowing the husband to divorce for adultery but not the wife. Another party, including Zwingli, were influenced by Erasmus in a more liberal direction, and--moving towards the standpoint of Roman Imperial legislation--admitted various causes of divorce. Some, like Bucer, anticipating Milton, would even allow divorce when the husband was unable to love his wife. At the beginning some of the Reformers adopted the principle of self-divorce, as it prevailed among the Jews and was accepted by some early Church Councils. In this way Luther held that the cause for the divorce itself effected the divorce without any judicial decree, though a magisterial permission was needed for remarriage. This question of remarriage, and the treatment of the adulterer, were also matters of dispute. The remarriage of the innocent party was generally accepted; in England it began in the middle of the sixteenth century, was pronounced valid by the Archbishop of Canterbury, and confirmed by Parliament. Many Reformers were opposed, however, to the remarriage of the adulterous party. Beust, Beza, and Melancthon would have him hanged and so settle the question of remarriage; Luther and Calvin would like to kill him, but since the civil rulers were slack in adopting that measure they allowed him to remarry, if possible in some other part of the country.[333] The final outcome was that Protestantism framed a conception of marriage mainly on the legal and economic factor--a factor not ignored but strictly subordinated by the Canonists--and regarded it as essentially a contract. In so doing they were on the negative side effecting a real progress, for they broke the power of an antiquated and artificial system, but on the positive side they were merely returning to a conception which prevails in barbarous societies, and is most pronounced when marriage is most assimilable to purchase. The steps taken by Protestantism involved a considerable change in the nature of marriage, but not necessarily any great changes in its form. Marriage was no longer a sacrament, but it was still a public and not a private function and was still, however inconsistently, solemnized in Church. And as Protestantism had no rival code to set up, both in Germany and England it fell back on the general principles of Canon law, modifying them to suit its own special attitude and needs.[334] It was the later Puritanic movement, first in the Netherlands (1580), then in England (1653), and afterwards in New England, which introduced a serious and coherent conception of Protestant marriage, and began to establish it on a civil base. The English Reformers under Edward VI and his enlightened advisers, including Archbishop Cranmer, took liberal views of marriage, and were prepared to carry through many admirable reforms. The early death of that King exerted a profound influence on the legal history of English marriage. The Catholic reaction under Queen Mary killed off the more radical Reformers, while the subsequent accession of Queen Elizabeth, whose attitude towards marriage was grudging, illiberal, and old-fashioned, approximating to that of her father, Henry VIII (as witnessed, for instance, in her decided opposition to the marriage of the clergy), permanently affected English marriage law. It became less liberal than that of other Protestant countries, and closer to that of Catholic countries. The reform of marriage attempted by the Puritans began in England in 1644, when an Act was passed asserting "marriage to be no sacrament, nor peculiar to the Church of God, but common to mankind and of public interest to every Commonwealth." The Act added, notwithstanding, that it was expedient marriage should be solemnized by "a lawful minister of the Word." The more radical Act of 1653 swept away this provision, and made marriage purely secular. The banns were to be published (by registrars specially appointed) in the Church, or (if the parties desired) the market-place. The marriage was to be performed by a Justice of the Peace; the age of consent to marriage for a man was made sixteen, for a woman fourteen (Scobell's _Acts and Ordinances_, pp. 86, 236). The Restoration abolished this sensible Act, and reintroduced Canon-law traditions, but the Puritan conception of marriage was carried over to America, where it took root and flourished. It was out of Puritanism, moreover, as represented by Milton, that the first genuinely modern though as yet still imperfect conception of the marriage relationship was destined to emerge. The early Reformers in this matter acted mainly from an obscure instinct of natural revolt in an environment of plebeian materialism. The Puritans were moved by their feeling for simplicity and civil order as the conditions for religious freedom. Milton, in his _Doctrine and Discipline of Divorce_, published in 1643, when he was thirty-five years of age, proclaimed the supremacy of the substance of marriage over the form of it, and the spiritual autonomy of the individual in the regulation of that form. He had grasped the meaning of that conception of personal responsibility which is the foundation of sexual relationships as they are beginning to appear to men to-day. If Milton had left behind him only his writings on marriage and divorce they would have sufficed to stamp him with the seal of genius. Christendom had to wait a century and a half before another man of genius of the first rank, Wilhelm von Humboldt, spoke out with equal authority and clearness in favor of free marriage and free divorce. It is to the honor of Milton, and one of his chief claims on our gratitude, that he is the first great protagonist in Christendom of the doctrine that marriage is a private matter, and that, therefore, it should be freely dissoluble by mutual consent, or even at the desire of one of the parties. We owe to him, says Howard, "the boldest defence of the liberty of divorce which had yet appeared. If taken in the abstract, and applied to both sexes alike, it is perhaps the strongest defence which can be made through an appeal to mere authority;" though his arguments, being based on reason and experience, are often ill sustained by his authority; he is really speaking the language of the modern social reformer, and Milton's writings on this subject are now sometimes ranked in importance above all his other work (Masson, _Life of Milton_, vol. iii; Howard, op. cit., vol. ii, p. 86, vol. iii, p. 251; C.B. Wheeler, "Milton's Doctrine and Discipline of Divorce," _Nineteenth Century_, Jan., 1907). Marriage, said Milton, "is not a mere carnal coition, but a human society; where that cannot be had there can be no true marriage" (_Doctrine of Divorce_, Bk. i, Ch. XIII); it is "a covenant, the very being whereof consists not in a forced cohabitation, and counterfeit performance of duties, but in unfeigned love and peace" (Ib., Ch. VI). Any marriage that is less than this is "an idol, nothing in the world." The weak point in Milton's presentation of the matter is that he never explicitly accords to the wife the same power of initiative in marriage and divorce as to the husband. There is, however, nothing in his argument to prevent its equal application to the wife, an application which, while never asserting he never denies; and it has been pointed out that he assumes that women are the equals of men and demands from them intellectual and spiritual companionship; however ready Milton may have been to grant complete equality of divorce to the wife, it would have been impossible for a seventeenth century Puritan to have obtained any hearing for such a doctrine; his arguments would have been received with, if that were possible, even more neglect than they actually met. (Milton's scornful sonnet concerning the reception of his book is well known.) Milton insists that in the conventional Christian marriage exclusive importance is attached to carnal connection. So long as that connection is possible, no matter what antipathy may exist between the couple, no matter how mistaken they may have been "through any error, concealment, or misadventure," no matter if it is impossible for them to "live in any union or contentment all their days," yet the marriage still holds good, the two must "fadge together" (op. cit., Bk. i). It is the Canon law, he says, which is at fault, "doubtless by the policy of the devil," for the Canon law leads to licentiousness (op. cit.). It is, he argues, the absence of reasonable liberty which causes license, and it is the men who desire to retain the privileges of license who oppose the introduction of reasonable liberty. The just ground for divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace." Without the "deep and serious verity" of mutual love, wedlock is "nothing but the empty husks of a mere outside matrimony," a mere hypocrisy, and must be dissolved (op. cit.). Milton goes beyond the usual Puritan standpoint, and not only rejects courts and magistrates, but approves of self-divorce; for divorce cannot rightly belong to any civil or earthly power, since "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." He adds that, for the prevention of injustice, special points may be referred to the magistrate, who should not, however, in any case, be able to forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking from a standpoint which we have not even yet attained, he protests against the absurdity of "authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife." In modern times Hinton was accustomed to compare the marriage law to the law of the Sabbath as broken by Jesus. We find exactly the same comparison in Milton. The Sabbath, he believes, was made for God. "Yet when the good of man comes into the scales, we have that voice of infinite goodness and benignity, that 'Sabbath was made for man and not man for Sabbath.' What thing ever was made more for man alone, and less for God, than marriage?" (_op. cit._, Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be less than lord of marriage?" Milton, in this matter as in others, stood outside the currents of his age. His conception of marriage made no more impression on contemporary life than his _Paradise Lost_. Even his own Puritan party who had passed the Act of 1653 had strangely failed to transfer divorce and nullity cases to the temporal courts, which would at least have been a step on the right road. The Puritan influence was transferred to America and constituted the leaven which still works in producing the liberal though too minutely detailed divorce laws of many States. The American secular marriage procedure followed that set up by the English Commonwealth, and the dictum of the great Quaker, George Fox, "We marry none, but are witnesses of it,"[335] (which was really the sound kernel in the Canon law) is regarded as the spirit of the marriage law of the conservative but liberal State of Pennsylvania, where, as recently as 1885, a statute was passed expressly authorizing a man and woman to solemnize their own marriage.[336] In England itself the reforms in marriage law effected by the Puritans were at the Restoration largely submerged. For two and a half centuries longer the English spiritual courts administered what was substantially the old Canon law. Divorce had, indeed, become more difficult than before the Reformation, and the married woman's lot was in consequence harder. From the sixteenth century to the second half of the nineteenth, English marriage law was peculiarly harsh and rigid, much less liberal than that of any other Protestant country. Divorce was unknown to the ordinary English law, and a special act of Parliament, at enormous expense, was necessary to procure it in individual cases.[337] There was even an attitude of self-righteousness in the maintenance of this system. It was regarded as moral. There was complete failure to realize that nothing is more immoral than the existence of unreal sexual unions, not only from the point of view of theoretical but also of practical morality, for no community could tolerate a majority of such unions.[338] In 1857 an act for reforming the system was at last passed with great difficulty. It was a somewhat incoherent and make-shift measure, and was avowedly put forward only as a step towards further reform; but it still substantially governs English procedure, and in the eyes of many has set a permanent standard of morality. The spirit of blind conservatism,--_Nolumus leges Angliæ mutare_,--which in this sphere had reasserted itself after the vital movement of Reform and Puritanism, still persists. In questions of marriage and divorce English legislation and English public feeling are behind alike both the Latin land of France and the Puritanically moulded land of the United States. The author of an able and temperate essay on _The Question of English Divorce_, summing up the characteristics of the English divorce law, concludes that it is: (1) unequal, (2) immoral, (3) contradictory, (4) illogical, (5) uncertain, and (6) unsuited to present requirements. It was only grudgingly introduced in a bill, presented to Parliament in 1857, which was stubbornly resisted during a whole session, not only on religious grounds by the opponents of divorce, but also by the friends of divorce, who desired a more liberal measure. It dealt with the sexes unequally, granting the husband but not the wife divorce for adultery alone. In introducing the bill the Attorney-General apologized for this defect, stating that the measure was not intended to be final, but merely as a step towards further legislation. That was more than half a century ago, but the further step has not yet been taken. Incomplete and unsatisfactory as the measure was, it seems to have been regarded by many as revolutionary and dangerous in the highest degree. The author of an article on "Modern Divorce" in the _Universal Review_ for July, 1859, while approving in principle of the establishment of a special Divorce Court, yet declared that the new court was "tending to destroy marriage as a social institution and to sap female chastity," and that "everyone now is a husband and wife at will." "No one," he adds, "can now justly quibble at a deficiency of matrimonial vomitories." Yet, according to this law, it is not even possible for a wife to obtain a divorce for her husband's adultery, unless he is also cruel or deserts her. At first "cruelty" meant physical cruelty and of a serious kind. But in course of time the meaning of the word was extended to pain inflicted on the mind, and now coldness and neglect may almost of themselves constitute cruelty, though the English court has sometimes had the greatest hesitation in accepting the most atrocious forms of refined cruelty, because it involved no "physical" element. "The time may very reasonably be looked forward to, however," a legal writer has stated (Montmorency, "The Changing Status of a Married Woman," _Law Quarterly Review_, April, 1897), "when almost any act of misconduct will, in itself, be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857." (The question of cruelty is fully discussed in J.R. Bishop's _Commentaries on Marriage, Divorce and Separation_, 1891, vol. i, Ch. XLIX; cf. Howard, op. cit., vol. ii, p. 111). There can be little doubt, however, that cruelty alone is a reasonable cause for divorce. In many American States, where the facilities for divorce are much greater than in England, cruelty is recognized as itself sufficient cause, whether the wife or the husband is the complainant. The acts of cruelty alleged have sometimes been seemingly very trivial. Thus divorces have been pronounced in America on the ground of the "cruel and inhuman conduct" of a wife who failed to sew her husband's buttons on, or because a wife "struck plaintiff a violent blow with her bustle," or because a husband does not cut his toe-nails, or because "during our whole married life my husband has never offered to take me out riding. This has been a source of great mental suffering and injury." In many other cases, it must be added, the cruelty inflicted by the husband, even by the wife--for though usually, it is not always, the husband who is the brute--is of an atrocious and heart-rending character (_Report on Marriage and Divorce in the United States_, issued by Hon. Carroll D. Wright, Commissioner of Labor, 1889). But even in many of the apparently trivial cases--as of a husband who will not wash, and a wife who is constantly evincing a hasty temper--it must be admitted that circumstances which, in the more ordinary relationships of life may be tolerated, become intolerable in the intimate relationship of sexual union. As a matter of fact, it has been found by careful investigation that the American courts weigh well the cases that come before them, and are not careless in the granting of decrees of divorce. In 1859 an exaggerated importance was attached to the gross reasons for divorce, to the neglect of subtle but equally fatal impediments to the continuance of marriage. This was pointed out by Gladstone, who was opposed to making adultery a cause of divorce at all. "We have many causes," he said, "more fatal to the great obligation of marriage, as disease, idiocy, crime involving punishment for life." Nowadays we are beginning to recognize not only such causes as these, but others of a far more intimate character which, as Milton long ago realized, cannot be embodied in statutes, or pleaded in law courts. The matrimonial bond is not merely a physical union, and we have to learn that, as the author of _The Question of English Divorce_ (p. 49) remarks, "other than physical divergencies are, in fact, by far the most important of the originating causes of matrimonial disaster." In England and Wales more husbands than wives petition for divorce, the wives who petition being about 40 per cent, of the whole. Divorces are increasing, though the number is not large, in 1907 about 1,300, of whom less than half remarried. The inadequacy of the divorce law is shown by the fact that during the same year about 7,000 orders for judicial separation were issued by magistrates. These separation orders not only do not give the right to remarry, but they make it impossible to obtain divorce. They are, in effect, an official permission to form relationships outside State marriage. In the United States during the years 1887-1906 nearly 40 per cent, of the divorces granted were for "desertion," which is variously interpreted in different States, and must often mean a separation by mutual consent. Of the remainder, 19 per cent, were for unfaithfulness, and the same proportion for cruelty; but while the divorces granted to husbands for the infidelity of their wives are nearly three times as great proportionately as those granted to wives for their husband's adultery, with regard to cruelty it is the reverse, wives obtaining 27 per cent, of their divorces on that ground and husbands only 10 per cent. In Prussia divorce is increasing. In 1907 there were eight thousand divorces, the cause in half the cases being adultery, and in about a thousand cases malicious desertion. In cases of desertion the husbands were the guilty parties nearly twice as often as the wives, in cases of adultery only a fifth to an eighth part. There cannot be the slightest doubt that the difficulty, the confusion, the inconsistency, and the flagrant indecency which surround divorce and the methods of securing it are due solely and entirely to the subtle persistence of traditions based, on the one hand, on the Canon law doctrines of the indissolubility of marriage and the sin of sexual intercourse outside marriage, and, on the other hand, on the primitive idea of marriage as a contract which economically subordinates the wife to the husband and renders her person, or at all events her guardianship, his property. It is only when we realize how deeply these traditions have become embedded in the religious, legal, social and sentimental life of Europe that we can understand how it is that barbaric notions of marriage and divorce can to-day subsist in a stage of civilization which has, in many respects, advanced beyond such notions. The Canon law conception of the abstract religious sanctity of matrimony, when transferred to the moral sphere, makes a breach of the marriage relationship seem a public wrong; the conception of the contractive subordination of the wife makes such a breach on her part, and even, by transference of ideas, on his part, seem a private wrong. These two ideas of wrong incoherently flourish side by side in the vulgar mind, even to-day. The economic subordination of the wife as a species of property significantly comes into view when we find that a husband can claim, and often secure, large sums of money from the man who sexually approaches his property, by such trespass damaging it in its master's eyes.[339] To a psychologist it would be obvious that a husband who has lacked the skill so to gain and to hold his wife's love and respect that it is not perfectly easy and natural to her to reject the advances of any other man owes at least as much damages to her as she or her partner owes to him; while if the failure is really on her side, if she is so incapable of responding to love and trust and so easy a prey to an outsider, then surely the husband, far from wishing for any money compensation, should consider himself more than fully compensated by being delivered from the necessity of supporting such a woman. In the absence of any false traditions that would be obvious. It might not, indeed, be unreasonable that a husband should pay heavily in order to free himself from a wife whom, evidently, he has made a serious mistake in choosing. But to ordain that a man should actually be indemnified because he has shown himself incapable of winning a woman's love is an idea that could not occur in a civilized society that was not twisted by inherited prejudice.[340] Yet as matters are to-day there are civilized countries in which it is legally possible for a husband to enter a prayer for damages against his wife's paramour in combination with either a petition for judicial separation or for dissolution of wedlock. In this way adultery is not a crime but a private injury.[341] At the same time, however, the influence of Canon law comes inconsistently to the surface and asserts that a breach of matrimony is a public wrong, a sin transformed by the State into something almost or quite like a crime. This is clearly indicated by the fact that in some countries the adulterer is liable to imprisonment, a liability scarcely nowadays carried into practice. But exactly the same idea is beautifully illustrated by the doctrine of "collusion," which, in theory, is still strictly observed in many countries. According to the doctrine of "collusion" the conditions necessary to make the divorce possible must on no account be secured by mutual agreement. In practice it is impossible to prevent more or less collusion, but if proved in court it constitutes an absolute impediment to the granting of a divorce, however just and imperative the demand for divorce may be. The English Divorce Act of 1857 refused divorce when there was collusion, as well as when there was any countercharge against the petitioner, and the Matrimonial Causes Act of 1860 provided the machinery for guaranteeing these bars to divorce. This question of collusion is discussed by G.P. Bishop (op. cit., vol. ii, Ch. IX). "However just a cause may be," Bishop remarks, "if parties collude in its management, so that in real fact both parties are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward. All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court. Such is the doctrine in principle everywhere." It is quite evident that from the social or the moral point of view, it is best that when a husband and wife can no longer live together, they should part amicably, and in harmonious agreement effect all the arrangements rendered necessary by their separation. The law ridiculously forbids them to do so, and declares that they must not part at all unless they are willing to part as enemies. In order to reach a still lower depth of absurdity and immorality the law goes on to say that if as a matter of fact they have succeeded in becoming enemies to each other to such an extent that each has wrongs to plead against the other party they cannot be divorced at all![342] That is to say that when a married couple have reached a degree of separation which makes it imperatively necessary, not merely in their own interests but in the moral interests of society, that they should be separated and their relations to other parties concerned regularized, then they must on no account be separated. It is clear how these provisions of the law are totally opposed to the demands of reason and morality. Yet at the same time it is equally clear how no efforts of the lawyers, however skilful or humane those efforts may be, can bring the present law into harmony with the demands of modern civilization. It is not the lawyers who are at fault; they have done their best, and, in England, it is entirely owing to the skilful and cautious way in which the judges have so far as possible pressed the law into harmony with modern needs, that our antiquated divorce laws have survived at all. It is the system which is wrong. That system is the illegitimate outgrowth of the Canon law which grew up around conceptions long since dead. It involves the placing of the person who imperils the theoretical indissolubility of the matrimonial bond in the position of a criminal, now that he can no longer be publicly condemned as a sinner. To aid and abet that criminal is itself an offence, and the aider and abettor of the criminal must, therefore, be inconsequently punished by the curious method of refraining from punishing the criminal. We do not openly assert that the defendant in a divorce case is a criminal; that would be to render the absurdity of it too obvious, and, moreover, would be hardly consistent with the permission to claim damages which is based on a different idea. We hover uncertainly between two conceptions of divorce, both of them bad, each inconsistent with the other, and neither of them capable of being pushed to its logical conclusions. The result is that if a perfectly virtuous married couple comes forward to claim divorce, they are told that it is out of the question, for in such a case there must be a "defendant." They are to be punished for their virtue. If each commits adultery and they again come forward to claim divorce, they are told that it is still out of the question, for there must be a "plaintiff." Before they were punished for their virtue; now they are to be punished in exactly the same way for their lack of it. The couple must humor the law by adopting a course of action which may be utterly repugnant to both. If only the wife alone will commit adultery, if only the husband will commit adultery and also inflict some act of cruelty upon his wife, if the innocent party will descend to the degradation of employing detectives and hunting up witnesses, the law is at their feet and hastens to accord to both parties the permission to remarry. Provided, of course, that the parties have arranged this without "collusion." That is to say that our law, with its ecclesiastical traditions behind it, says to the wife: Be a sinner, or to the husband: Be a sinner and a criminal--then we will do all you wish. The law puts a premium on sin and on crime. In order to pile absurdity on absurdity it claims that this is done in the cause of "public morality." To those who accept this point of view it seems that the sweeping away of divorce laws would undermine the bases of morality. Yet there can be little doubt that the sooner such "morality" is undermined, and indeed utterly destroyed, the better it will be for true morality. There is an influential movement in England for the reform of divorce, on the grounds that the present law is unjust, illogical, and immoral, represented by the Divorce Law Reform Union. Even the former president of the Divorce Court, Lord Gorell, declared from the bench in 1906 that the English law produces deplorable results, and is "full of inconsistencies, anomalies and inequalities, amounting almost to absurdities." The points in the law which have aroused most protest, as being most behind the law of other nations, are the great expense of divorce, the inequality of the sexes, the failure to grant divorces for desertion and in cases of hopeless insanity, and the failure of separation orders to enable the separated parties to marry again. Separation orders are granted by magistrates for cruelty, adultery, and desertion. This "separation" is really the direct descendant of the Canon law divorce _a mensa et thoro_, and the inability to marry which it involves is merely a survival of the Canon law tradition. At the present time magistrates--exercising their discretion, it is admitted, in a careful and prudent manner--issue some 7,000 separation orders annually, so that every year the population is increased by 14,000 individuals mostly in the age of sexual vigor, and some little more than children, who are forbidden by law to form legal marriages. They contribute powerfully to the great forward movement which, as was shown in the previous chapter, marks the morality of our age. But it is highly undesirable that free marriages should be formed, helplessly, by couples who have no choice in the matter, for it is unlikely that under such circumstances any high level of personal responsibility can be reached. The matter could be easily remedied by dropping altogether a Canon law tradition which no longer has any vitality or meaning, and giving to the magistrate's separation order the force of a decree of divorce. New Zealand and the Australian colonies, led by Victoria in 1889, have passed divorce laws which, while more or less framed on the English model, represent a distinct advance. Thus in New Zealand the grounds for divorce are adultery on either side, wilful desertion, habitual drunkenness, and conviction to imprisonment for a term of years. It is natural that an Englishman should feel acutely sensitive to this blot in the law of England and desire the speedy disappearance of a system so open to scathing sarcasm. It is natural that every humane person should grow impatient of the spectacle of so many blighted lives, of so much misery inflicted on innocent persons--and on persons who even when technically guilty are often the victims of unnatural circumstances--by the persistence of a mediæval system of ecclesiastical tyranny and inquisitorial insolence into an age when sexual relationships are becoming regarded as the sacred secret of the persons intimately concerned, and when more and more we rely on the responsibility of the individual in making and maintaining such relationships. When, however, we refrain from concentrating our attention on particular countries and embrace the general movement of civilization in the matter of divorce during recent times, there cannot be the slightest doubt as to the direction of that movement. England was a pioneer in the movement half a century ago, and to-day every civilized country is moving in the same direction. France broke with the old ecclesiastical tradition of the indissolubility of matrimony in 1885 by a divorce law in some respects very reasonable. The wife may obtain a divorce on an equality with the husband (though she is liable to imprisonment for adultery), the co-respondent occupies a very subordinate position in adultery charges, and facility is offered for divorce on the ground of simple _injures graves_ (excluding as far as possible mere incompatibility of temper), while the judge has the power, which he often successfully exerts, to effect a reconciliation in private or to grant a decree without public trial. The influence of France has doubtless been influential in moulding the divorce laws of the other Latin countries. In Prussia an enlightened divorce law formerly prevailed by which it was possible for a couple to separate without scandal when it was clearly shown that they could not live together in agreement. But the German Code of 1900 introduced provisions as regards divorce which--while in some respects more liberal than those of the English law, especially by permitting divorce for desertion and insanity--are, on the whole, retrograde as compared with the earlier Prussian law and place the matter on a cruder and more brutal basis. For two years after the Code came into operations the number of divorces sank; after that the public and the courts adapted themselves to the new provisions (more especially one which allowed divorce for serious neglect of conjugal duties) and the number of divorces began to increase with great rapidity. "But," remarks Hirschfeld, "how painful it has now become to read divorce cases! One side abuses the other, makes accusations of the grossest character, employs detectives to obtain the necessary proofs of 'dishonorable and immoral conduct,' whereas, before, both parties realized that they had been deceived in each other, that they failed to suit each other, and that they could no longer live together. Thus we see that the narrowing of individual responsibility in sexual matters has not only had no practical effect, but leads to injurious results of a serious kind."[343] In England a similar state of things has prevailed ever since divorce was established, but it seems to have become too familiar to excite either pain or disgust. Yet, as Adner has pointed out,[344] it has moved in a direction contrary to the general tendency of civilization, not only by increasing the inquisitorial authority of public courts but by emphasizing merely external causes of divorce and abolishing the more subtle internal causes which constantly grow in importance with the refinement of civilization. In Austria until recent years, Canon law ruled absolutely, and matrimony was indissoluble, as it still remains for the Catholic population. The results as regards matrimonial happiness were in the highest degree deplorable. Half a century ago Gross-Hoffinger investigated the marital happiness of 100 Viennese couples of all social classes, without choice of cases, and presented the results in detail. He found that 48 couples were positively unhappy, only 16 were undoubtedly happy, and even among these there was only one case in which happiness resulted from mutual faithfulness, happiness in the other cases being only attained by setting aside the question of fidelity.[345] This picture, it is to be hoped, no longer remains true. There is an influential Austrian Marriage Reform Association, publishing a journal called _Die Fessel_, or The Fetter. "One was chained to another," we are told. "In certain circumstances this must have been the worst and most torturing penalty of all. The most bizarre and repulsive couplings took place. There were, it is true, many affectionate companionships of the chain. But there were many more which inflicted an eternity of suffering upon one of the pair." This quotation, it must be added, has nothing to do with what the Canonists, borrowing the technical term for a prisoner's shackles, suggestively termed the _vinculum matrimonii_; it was written many years ago concerning the galleys of the old French convict system. It is, however, recalled to one's mind by the title which the Austrian Marriage Reform Association has given to its official organ. Russia, where the marriage laws are arranged by the Holy Synod aided by jurists, stands almost alone among the great countries in the reasonable simplicity of its divorce provisions. Before 1907 divorce was very difficult to obtain in Russia, but in that year it became possible for a married couple to separate by mutual consent and after living apart for a year to become thereby entitled to a divorce enabling them to remarry. This provision is in accordance with the humane conception of the sexual relationship which has always tended to prevail in Russia, whither, it must be remembered, the stern and unnatural ideals of compulsory celibacy cherished by the Western Church never completely penetrated; the clergy of the Eastern Church are married, though the marriage must take place before they enter the priesthood, and they could not sympathize with the anti-sexual tone of the marriage regulations laid down by the celibate clergy of the west. Switzerland, again, which has been regarded as the political laboratory of Europe, also stands apart in the liberality of its divorce legislation. A renewable divorce for two years may be obtained in Switzerland when there are "circumstances which seriously affect the maintenance of the conjugal tie." To the Grand Duchy of Luxembourg, finally, belongs the honor of having firmly maintained throughout the great principle of divorce by mutual consent under legal conditions, as established by Napoleon in his Code of 1803. The smaller countries generally are in advance of the large in matters of divorce law. The Norwegian law is liberal. The new Roumanian Code permits divorce by mutual consent, provided both parents grant equal shares of their property to the children. The little principality of Monaco has recently introduced the reasonable provision of granting divorce for, among other causes, alcoholism, syphilis, and epilepsy, so protecting the future race. Outside Europe the most instructive example of the tendency of divorce is undoubtedly furnished by the United States of America. The divorce laws of the States are mainly on a Puritanic basis, and they retain not only the Puritanic love of individual freedom but the Puritanic precisianism.[346] In some States, notably Iowa, the statute-makers have been constantly engaged in adopting, changing, abrogating and re-enacting the provisions of their divorce laws, and Howard has shown how much confusion and awkwardness arise by such perpetual legislative fiddling over small details. This restless precisianism has somewhat disguised the generally broad and liberal tendency of marriage law in America, and has encouraged foreign criticism of American social institutions. As a matter of fact the prevalence of divorce in America is enormously exaggerated. The proportion of divorced persons in the population appears to be less than one per cent., and, contrary to a frequent assertion, it is by no means the rule for divorced persons to remarry immediately. Taking into account the special conditions of life in the United States the prevalence of divorce is small and its character by no means reveals a low grade morality. An impartial and competent critic of the American people, Professor Münsterberg, remarks that the real ground which mainly leads to divorce in the United States--not the mere legal pretexts made compulsory by the precisianism of the law--is the highly ethical objection to continuing externally in a marriage which has ceased to be spiritually congenial. "It is the women especially," he says, "and generally the very best women, who prefer to take the step, with all the hardships which it involves, to prolonging a marriage which is spiritually hypocritical and immoral."[347] The people of the United States, above all others, cherish ideals of individualism; they are also the people among whom, above all others, there is the greatest amount of what Reibmayr calls "blood-chaos." Under such circumstances the difficulties of conjugal life are necessarily at a maximum, and marriage union is liable to subtle impediments which must forever elude the statute-book.[348] There can be little doubt that the practical sagacity of the American people will enable them sooner or later to recognize this fact, and that finally fulfilling the Puritanic drift of their divorce legislation--as foreshadowed in its outcome by Milton--they will agree to trust their own citizens with the responsibility of deciding so private a matter as their conjugal relationships, with, of course, authority in the courts to see that no injustice is committed. It is, indeed, surprising that the American people, usually intolerant of State interference, should in this matter so long have tolerated such interference in so private a matter. The movement of divorce is not confined to Christendom; it is a mark of modern civilization. In Japan the proportion of divorces is higher than in any other country, not excluding the United States.[349] The most vigorous and progressive countries are those that insist most firmly on the purity of sexual unions. In the United States it was pointed out many years ago that divorce is most prevalent where the standard of education and morality is highest. It was the New England States, with strong Puritanic traditions of moral freedom, which took the lead in granting facility to divorce. The divorce movement is not, as some have foolishly supposed, a movement making for immorality.[350] Immorality is the inevitable accompaniment of indissoluble marriage; the emphasis on the sanctity of a merely formal union discourages the growth of moral responsibility as regards the hypothetically unholy unions which grow up beneath its shadow. To insist, on the other hand, by establishing facility of divorce, that sexual unions shall be real, is to work in the cause of morality. The lands in which divorce by mutual consent has prevailed longest are probably among the most, and not the least, moral of lands. Surprise has been expressed that although divorce by mutual consent commended itself as an obviously just and reasonable measure two thousand years ago to the legally-minded Romans that solution has even yet been so rarely attained by modern states.[351] Wherever society is established on a solidly organized basis and the claims of reason and humanity receive due consideration--even when the general level of civilization is not in every respect high--there we find a tendency to divorce by mutual consent. In Japan, according to the new Civil Code, much as in ancient Rome, marriage is effected by giving notice of the fact to the registrar in the presence of two witnesses, and with the consent (in the case of young couples) of the heads of their families. There may be a ceremony, but it is not demanded by the law. Divorce is effected in exactly the same way, by simply having the registration cancelled, provided both husband and wife are over twenty-five years of age. For younger couples unhappily married, and for cases in which mutual consent cannot be obtained, judicial divorce exists. This is granted for various specific causes, of which the most important is "grave insult, such as to render living together unbearable" (Ernest W. Clement, "The New Woman in Japan," _American Journal Sociology_, March, 1903). Such a system, like so much else achieved by Japanese organization, seems reasonable, guarded, and effective. 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. [337] Howard, op. cit., vol. ii, p. 109. "It is, indeed, wonderful," Howard remarks, "that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition." [338] "The enforced continuance of an unsuccessful union is perhaps the most immoral thing which a civilized society ever countenanced, far less encouraged," says Godfrey (_Science of Sex_, p. 123). "The morality of a union is dependent upon mutual desire, and a union dictated by any other cause is outside the moral pale, however custom may sanction it, or religion and law condone it." [339] Adultery in most savage and barbarous societies is regarded, in the words of Westermarck, as "an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property;" the seducer is, therefore, punished as a thief, by fine, mutilation, even death (_Origin of the Moral Ideas_, vol. ii, pp. 447 et seq.; id., _History of Human Marriage_, p. 121). Among some peoples it is the seducer who alone suffers, and not the wife. [340] It is sometimes said in defence of the claim for damages for seducing a wife that women are often weak and unable to resist masculine advances, so that the law ought to press heavily on the man who takes advantage of that weakness. This argument seems a little antiquated. The law is beginning to accept the responsibility even of married women in other respects, and can scarcely refuse to accept it for the control of her own person. Moreover, if it is so natural for the woman to yield, it is scarcely legitimate to punish the man with whom she has performed that natural act. It must further be said that if a wife's adultery is only an irresponsible feminine weakness, a most undue brutality is inflicted on her by publicly demanding her pecuniary price from her lover. If, indeed, we accept this argument, we ought to reintroduce the mediæval girdle of chastity. [341] Howard, op. cit., vol. ii, p. 114. [342] This rule is, in England, by no means a dead letter. Thus, in 1907, a wife who had left her home, leaving a letter stating that her husband was not the father of her child, subsequently brought an action for divorce, which, as the husband made no defence, she obtained. But, the King's Proctor having learnt the facts, the decree was rescinded. Then the husband brought an action for divorce, but could not obtain it, having already admitted his own adultery by leaving the previous case undefended. He took the matter up to the Court of Appeal, but his petition was dismissed, the Court being of opinion that "to grant relief in such a case was not in the interest of public morality." The safest way in England to render what is legally termed marriage absolutely indissoluble is for both parties to commit adultery. [343] Magnus Hirschfeld, _Zeitschrift für Sexualwissenschaft_, Oct., 1908. [344] H. Adner, "Die Richterliche Beurteilung der 'Zerrütteten' Ehe," _Geschlecht und Gesellschaft_, Bd. ii, Teil 8. [345] Gross-Hoffinger, _Die Schichsale der Frauen und die Prostitution_, 1847; Bloch presents a full summary of the results of this inquiry in an _Appendix_ to Ch. X of his _Sexual Life of Our Times_. [346] Divorce in the United States is fully discussed by Howard, op. cit., vol. iii. [347] H. Münsterberg, _The Americans_, p. 575. Similarly, Dr. Felix Adler, in a study of "The Ethics of Divorce" (_The Ethical Record_, 1890, p. 200), although not himself an admirer of divorce, believes that the first cause of the frequency of divorce in the United States is the high position of women. [348] In an important article, with illustrative cases, on "The Neuro-psychical Element in Conjugal Aversion" (_Journal of Nervous and Mental Diseases_, Sept., 1892) Smith Baker refers to the cases in which "a man may find himself progressively becoming antipathetic, through recognition of the comparatively less developed personality of the one to whom he happens to be married. Marrying, perhaps, before he has learned to accurately judge of character and its tendencies, he awakens to the fact that he is honorably bound to live all his physiological life with, not a real companion, but a mere counterfeit." The cases are still more numerous, the same writer observes, in which the sexual appetite of the wife fails to reveal itself except as the result of education and practice. "This sort of natural-unnatural condition is the source of much disappointment, and of intense suffering on the part of the woman as well as of family dissatisfaction." Yet such causes for divorce are far too complex to be stated in statute-books, and far too intimate to be pleaded in courts of justice. [349] Ten years ago, if not still, the United States came fourth in order of frequency of divorce, after Japan, Denmark, and Switzerland. [350] Lecky, the historian of European morals, has pointed out (_Democracy and Liberty_, vol. ii, p. 172) the close connection generally between facility of divorce and a high standard of sexual morality. [351] So, e.g., Hobhouse, _Morals in Evolution_, vol. i, p. 237. [352] In England this step was taken in the reign of Henry VII, when the forcible marriage of women against their will was forbidden by statute (3 Henry VII, c. 2). Even in the middle of the seventeenth century, however, the question of forcible marriage had again to be dealt with (_Inderwick_, Interregnum, pp. 40 et seq.). [353] Woods Hutchinson (_Contemporary Review_, Sept., 1905) argues that when there is epilepsy, insanity, moral perversion, habitual drunkenness, or criminal conduct of any kind, divorce, for the sake of the next generation, should be not permissive but compulsory. Mere divorce, however, would not suffice to attain the ends desired. [354] Similarly in Germany, Wanda von Sacher-Masoch, who had suffered much from marriage, whatever her own defects of character may have been, writes at the end of _Meine Lebensbeichte_ that "as long as women have not the courage to regulate, without State-interference or Church-interference, relationships which concern themselves alone, they will not be free." In place of this old decayed system of marriage so opposed to our modern thoughts and feelings, she would have private contracts made by a lawyer. In England, at a much earlier period, Charles Kingsley, who was an ardent friend to women's movements, and whose feeling for womanhood amounted almost to worship, wrote to J.S. Mill: "There will never be a good world for women until the last remnant of the Canon law is civilized off the earth." [355] "No fouler institution was ever invented," declared Auberon Herbert many years ago, expressing, before its time, a feeling which has since become more common; "and its existence drags on, to our deep shame, because we have not the courage frankly to say that the sexual relations of husband and wife, or those who live together, concern their own selves, and do not concern the prying, gloating, self-righteous, and intensely untruthful world outside." [356] Hobhouse, op. cit. vol. i, p. 237. [357] The same conception of marriage as a contract still persists to some extent also in the United States, whither it was carried by the early Protestants and Puritans. No definition of marriage is indeed usually laid down by the States, but, Howard says (op. cit., vol. ii, p. 395), "in effect matrimony is treated as a relation partaking of the nature of both status and contract." [358] This point of view has been vigorously set forth by Paul and Victor Margueritte, _Quelques Idées_. [359] I may remark that this was pointed out, and its consequences vigorously argued, many years ago by C.G. Garrison, "Limits of Divorce," _Contemporary Review_, Feb., 1894. "It may safely be asserted," he concludes, "that marriage presents not one attribute or incident of anything remotely resembling a contract, either in form, remedy, procedure, or result; but that in all these aspects, on the contrary, it is fatally hostile to the principles and practices of that division of the rights of persons." Marriage is not contract, but conduct. [360] See, e.g., P. and V. Margueritte, op. cit. [361] As quoted by Howard, op. cit., vol. ii, p. 29. [362] Ellen Key similarly (_Ueber Liebe und Ehe_, p. 343) remarks that to talk of "the duty of life-long fidelity" is much the same as to talk of "the duty of life-long health." A man may promise, she adds, to do his best to preserve his life, or his love; he cannot unconditionally undertake to preserve them. [363] Hobhouse, op. cit., vol. 1, pp. 159, 237-9; cf. P. and V. Margueritte, _Quelques Idées_. [364] "Divorce," as Garrison puts it ("Limits of Divorce," _Contemporary Review_, Feb., 1894), "is the judicial announcement that conduct once connubial in character and purpose, has lost these qualities.... Divorce is a question of fact, and not a license to break a promise." [365] See, _ante_, p. 425. [366] It has been necessary to discuss reproduction in the first chapter of the present volume, and it will again be necessary in the concluding chapter. Here we are only concerned with procreation as an element of marriage. [367] Nietzold, _Die Ehe in Ægypten zur Ptolemäisch-römischen Zeit_, 1903, p. 3. This bond also accorded rights to any children that might be born during its existence. [368] See, e.g., Ellen Key, _Mutter und Kind_, p. 21. The necessity for the combination of greater freedom of sexual relationships with greater stringency of parental relationships was clearly realized at an earlier period by another able woman writer, Miss J.H. Clapperton, in her notable book, _Scientific Meliorism_, published in 1885. "Legal changes," she wrote (p. 320), "are required in two directions, viz., towards greater freedom as to marriage and greater strictness as to parentage. The marriage union is essentially a private matter with which society has no call and no right to interfere. Childbirth, on the contrary, is a public event. It touches the interests of the whole nation." [369] Ellen Key, _Liebe und Ehe_, p. 168; cf. the same author's _Century of the Child_. [370] In Germany alone 180,000 "illegitimate" children are born every year, and the number is rapidly increasing; in England it is only 40,000 per annum, the strong feeling which often exists against such births in England (as also in France) leading to the wide adoption of methods for preventing conception. [371] "Where are real monogamists to be found?" asked Schopenhauer in his essay, "Ueber die Weibe." And James Hinton was wont to ask: "What is the meaning of maintaining monogamy? Is there any chance of getting it, I should like to know? Do you call English life monogamous?" [372] "Almost everywhere," says Westermarck of polygyny (which he discusses fully in Chs. XX-XXII of his _History of Human Marriage_) "it is confined to the smaller part of the people, the vast majority being monogamous." Maurice Gregory (_Contemporary Review_, Sept., 1906) gives statistics showing that nearly everywhere the tendency is towards equality in number of the sexes. [373] In a polygamous land a man is of course as much bound by his obligations to his second wife as to his first. Among ourselves the man's "second wife" is degraded with the name of "mistress," and the worse he treats her and her children the more his "morality" is approved, just as the Catholic Church, when struggling to establish sacerdotal celibacy, approved more highly the priest who had illegitimate relations with women than the priest who decently and openly married. If his neglect induces a married man's mistress to make known her relationship to him the man is justified in prosecuting her, and his counsel, assured of general sympathy, will state in court that "this woman has even been so wicked as to write to the prosecutor's wife!" [374] Howard, in his judicial _History of Matrimonial Institutions_ (vol. ii. pp. 96 et seq.), cannot refrain from drawing attention to the almost insanely wild character of the language used in England not so many years ago by those who opposed marriage with a deceased wife's sister, and he contrasts it with the much more reasonable attitude of the Catholic Church. "Pictures have been drawn," he remarks, "of the moral anarchy such marriages must produce, which are read by American, Colonial, and Continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind." So recently as A.D. 1908 a bill was brought into the British House of Lords proposing that desertion without cause for two years shall be a ground for divorce, a reasonable and humane measure which is law in most parts of the civilized world. The Lord Chancellor (Lord Loreburn), a Liberal, and in the sphere of politics an enlightened and sagacious leader, declared that such a proposal was "absolutely impossible." The House rejected the proposal by 61 votes to 2. Even the marriage decrees of the Council of Trent were not affirmed by such an overwhelming majority. In matters of marriage legislation England has scarcely yet emerged from the Middle Ages.