CHAPTER X. — часть 1

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:—

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.