Chapter 28

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 When the Canonists superseded the old conception of marriage as a contract of purchase by their sacramental marriage, they were in many respects effecting a real progress, and the return to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—isnot 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 complexman 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 byusus, 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 (Campbellv.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 matrimonialby 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. 177et 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.

In the Bredalbane case (Campbellv.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 matrimonialby 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. 177et 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 himselfas 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 thustending 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 tothe 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 transferenceof 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 villagein 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.

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 villagein 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, exactingdemi-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 oursthe 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."

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 oftesting 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 individualnow 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 thecopula 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'sNotte, 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 towardstheir 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 existswe 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 ispecuniary only; it insures the mother no recognition or respect, and (as Wahrmund has truly said in hisEhe 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.

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 existswe 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 ispecuniary only; it insures the mother no recognition or respect, and (as Wahrmund has truly said in hisEhe 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, nodoubt, 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 relationshipsare 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 hisHistory 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 hisDiaryhe 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 willbe, 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.

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 relationshipsare 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 hisHistory 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 hisDiaryhe 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 willbe, 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.

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