CHAPTER X. — часть 4

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.

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.

J. A. Godfrey, Science of Sex, p. 119.

E. D. Cope, "The Marriage Problem," Open Court, Nov., 1888.

See ante, p. 395.

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.

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.

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").

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).

"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.

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."

Howard, op. cit., vol. i, pp. 278-281, 386. The Arrha crept into Roman and Byzantine law during the sixth century.

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).

See, e.g., L. Gautier, La Chevalerie, Ch. IX.

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."

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.

E. S. P. Haynes, Our Divorce Law, p. 3.

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.

Esmein, op. cit., vol. i, p. 91.

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.

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."

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.

Howard, op. cit., vol. ii, pp. 61 et seq.

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).

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?"

Howard, op. cit., vol. ii, p. 456. The actual practice in Pennsylvania appears, however, to differ little from that usual in the other States.

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."

"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."

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.

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.

Howard, op. cit., vol. ii, p. 114.

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.

Magnus Hirschfeld, Zeitschrift für Sexualwissenschaft, Oct., 1908.

H. Adner, "Die Richterliche Beurteilung der 'Zerrütteten' Ehe," Geschlecht und Gesellschaft, Bd. ii, Teil 8.

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.

Divorce in the United States is fully discussed by Howard, op. cit., vol. iii.

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.

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.

Ten years ago, if not still, the United States came fourth in order of frequency of divorce, after Japan, Denmark, and Switzerland.

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.

So, e.g., Hobhouse, Morals in Evolution, vol. i, p. 237.

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.).

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.

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."

"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."

Hobhouse, op. cit. vol. i, p. 237.

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."

This point of view has been vigorously set forth by Paul and Victor Margueritte, Quelques Idées.

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.

See, e.g., P. and V. Margueritte, op. cit.

As quoted by Howard, op. cit., vol. ii, p. 29.

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.

Hobhouse, op. cit., vol. 1, pp. 159, 237-9; cf. P. and V. Margueritte, Quelques Idées.

"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."

See, ante, p. 425.

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.

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.

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."

Ellen Key, Liebe und Ehe, p. 168; cf. the same author's Century of the Child.

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.

"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?"

"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.

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!"

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.