Chapter 29

"Polygamy," writes Woods Hutchinson (Contemporary Review, Oct., 1904), though he recognizes the advantages of monogamy, "as a racial institution, among animals as among men, has many solid andweighty considerations in its favor, and has resulted in both human and pre-human times, in the production of a very high type of both individual and social development." He points out that it promotes intelligence, coöperation, and division of labor, while the keen competition for women weeds out the weaker and less attractive males.Among our European ancestors, alike among Germans and Celts, polygyny and other sexual forms existed as occasional variations. Tacitus noted polygyny in Germany, and Cæsar found in Britain that brothers would hold their wives in common, the children being reckoned to the man to whom the woman had been first given in marriage (see,e.g., Traill'sSocial England, vol. i, p. 103, for a discussion of this point). The husband's assistant, also, who might be called in to impregnate the wife when the husband was impotent, existed in Germany, and was indeed a general Indo-Germanic institution (Schrader,Reallexicon, art. "Zeugungshelfer"). The corresponding institution of the concubine has been still more deeply rooted and widespread. Up to comparatively modern times, indeed, in accordance with the traditions of Roman law, the concubine held a recognized and honorable position, below that of a wife but with definite legal rights, though it was not always, or indeed usually, legal for a married man to have a concubine. In ancient Wales, as well as in Rome, the concubine was accepted and never despised (R. B. Holt, "Marriage Laws of the Cymri,"Journal Anthropological Institute, Aug. and Nov., 1898, p. 155). The fact that when a concubine entered the house of a married man her dignity and legal position were less than those of the wife preserved domestic peace and safeguarded the wife's interests. (A Korean husband cannot take a concubine under his roof without his wife's permission, but she rarely objects, and seems to enjoy the companionship, says Louise Jordan Miln,Quaint Korea, 1895, p. 92.) In old Europe, we must remember, as Dufour points out in speaking of the time of Charlemagne (Histoire de la Prostitution, vol. iii, p. 226), "concubine" was an honorable term; the concubine was by no means a mistress, and she could be accused of adultery just the same as a wife. In England, late in the thirteenth century, Bracton speaks of theconcubina legitimaas entitled to certain rights and considerations, and it was the same in other parts of Europe, sometimes for several centuries later (see Lea,History of Sacerdotal Celibacy, vol. i, p. 230). The early Christian Church was frequently inclined to recognize the concubine, at all events if attached to an unmarried man, for we may trace in the Church "the wish to look upon every permanent union of man or woman as possessing the character of a marriage in the eyes of God, and, therefore, in the judgment of the Church" (art. "Concubinage," Smith and Cheetham,Dictionary of Christian Antiquities). This was the feeling of St. Augustine (who had himself, before his conversion, had a concubine who was apparently a Christian), andthe Council of Toledo admitted an unmarried man who was faithful to a concubine. As the law of the Catholic Church grew more and more rigid, it necessarily lost touch with human needs. It was not so in the early Church during the great ages of its vital growth. In those ages even the strenuous general rule of monogamy was relaxed when such relaxation seemed reasonable. This was so, for instance, in the case of sexual impotency. Thus early in the eighth century Gregory II, writing to Boniface, the apostle of Germany, in answer to a question by the latter, replies that when a wife is incapable from physical infirmity from fulfilling her marital duties it is permissible for the husband to take a second wife, though he must not withdraw maintenance from the first. A little later Archbishop Egbert of York, in hisDialogus de Institutione Ecclesiastica, though more cautiously, admits that when one of two married persons is infirm the other, with the permission of the infirm one, may marry again, but the infirm one is not allowed to marry again during the other's life. Impotency at the time of marriage, of course, made the marriage void without the intervention of any ecclesiastical law. But Aquinas, and later theologians, allow that an excessive disgust for a wife justifies a man in regarding himself as impotent in relation to her. These rules are, of course, quite distinct from the permissions to break the marriage laws granted to kings and princes; such permissions do not count as evidence of the Church's rules, for, as the Council of Constantinople prudently decided in 809, "Divine law can do nothing against Kings" (art. "Bigamy,"Dictionary of Christian Antiquities). The law of monogamy was also relaxed in cases of enforced or voluntary desertion. Thus the Council of Vermerie (752) enacted that if a wife will not accompany her husband when he is compelled to follow his lord into another land, he may marry again, provided he sees no hope of returning. Theodore of Canterbury (688), again, pronounces that if a wife is carried away by the enemy and her husband cannot redeem her, he may marry again after an interval of a year, or, if there is a chance of redeeming her, after an interval of five years; the wife may do the same. Such rules, though not general, show, as Meyrick points out (art. "Marriage,"Dictionary of Christian Antiquities), a willingness "to meet particular cases as they arise."As the Canon law grew rigid and the Catholic Church lost its vital adaptibility, sexual variations ceased to be recognized within its sphere. We have to wait for the Reformation for any further movement. Many of the early Protestant Reformers, especially in Germany, were prepared to admit a considerable degree of vital flexibility in sexual relationships. Thus Luther advised married women with impotent husbands, in cases where there was no wish or opportunity for divorce, to have sexual relations with another man, by preference the husband's brother; the children were to be reckoned to the husband ("Die Sexuelle Frage bei Luther,"Mutterschutz, Sept., 1908).In England the Puritan spirit, which so largely occupied itself with the reform of marriage, could not fail to be concerned with the question of sexual variations, and from time to time we find the proposal to legalize polygyny. Thus, in 1658, "A Person of Quality" published in London a small pamphlet dedicated to the Lord Protector, entitledA Remedy for Uncleanness. It was in the form of a number of queries, asking why we should not admit polygamy for the avoidance of adultery and infanticide. The writer inquires whether it may not "stand with a gracious spirit, and be every way consistent with the principles of a man fearing God and loving holiness, to have more women than one to his proper use.... He that takes another man's ox or ass is doubtless a transgressor; but he that puts himself out of the occasion of that temptation by keeping of his own seems to be a right honest and well-meaning man."More than a century later (1780), an able, learned, and distinguished London clergyman of high character (who had been a lawyer before entering the Church), the Rev. Martin Madan, also advocated polygamy in a book calledThelyphthora; or, a Treatise on Female Ruin. Madan had been brought into close contact with prostitution through a chaplaincy at the Lock Hospital, and, like the Puritan advocate of polygamy, he came to the conclusion that only by the reform of marriage is it possible to work against prostitution and the evils of sexual intercourse outside marriage. His remarkable book aroused much controversy and strong feeling against the author, so that he found it desirable to leave London and settle in the country. Projects of marriage reform have never since come from the Church, but from philosophers and moralists, though not rarely from writers of definitely religious character. Sénancour, who was so delicate and sensitive a moralist in the sexual sphere, introduced a temperate discussion of polygamy into hisDe l'Amour(vol. ii, pp. 117-126). It seemed to him to be neither positively contrary nor positively conformed to the general tendency of our present conventions, and he concluded that "the method of conciliation, in part, would be no longer to require that the union of a man and a woman should only cease with the death of one of them." Cope, the biologist, expressed a somewhat more decided opinion. Under some circumstances, if all three parties agreed, he saw no objection to polygyny or polyandry. "There are some cases of hardship," he said, "which such permission would remedy. Such, for instance, would be the case where the man or woman had become the victim of a chronic disease; or, when either party should be childless, and in other contingencies that could be imagined." There would be no compulsion in any direction, and full responsibility as at present. Such cases could only arise exceptionally, and would not call for social antagonism. For the most part, Cope remarks, "the best way to deal with polygamy is to let it alone" (E. D.Cope, "The Marriage Problem,"Open Court, Nov. 15 and 22, 1888). In England, Dr. John Chapman, the editor of theWestminster Review, and a close associate of the leaders of the Radical movement in the Victorian period, was opposed to State dictation as regards the form of marriage, and believed that a certain amount of sexual variation would be socially beneficial. Thus he wrote in 1884 (in a private letter): "I think that as human beings become less selfish polygamy [i.e., polygyny], and even polyandry, in an ennobled form, will become increasingly frequent."James Hinton, who, a few years earlier, had devoted much thought and attention to the sexual question, and regarded it as indeed the greatest of moral problems, was strongly in favor of a more vital flexibility of marriage regulations, an adaptation to human needs such as the early Christian Church admitted. Marriage, he declared, must be "subordinated to service," since marriage, like the Sabbath, is made for man and not man for marriage. Thus in case of one partner becoming insane he would permit the other partner to marry again, the claim of the insane partner, in case of recovery, still remaining valid. That would be a form of polygamy, but Hinton was careful to point out that by "polygamy" he meant "less a particular marriage-order than such an order as best serves good, and which therefore must be essentially variable. Monogamy may be good, even the only good order, if of free choice; but alawfor it is another thing. The sexual relationship must be anaturalthing. The true social life will not be any fixed and definite relationship, as of monogamy, polygamy, or anything else, but a perfect subordination of every sexual relationship whatever to reason and human good."Ellen Key, who is an enthusiastic advocate of monogamy, and who believes that the civilized development of personal love removes all danger of the growth of polygamy, still admits the existence of variations. She has in mind such solutions of difficult problems as Goethe had before him when he proposed at first in hisStellato represent the force of affection and tender memories as too strong to admit of the rupture of an old bond in the presence of a new bond. The problem of sexual variation, she remarks, however (Liebe und Ethik, p. 12), has changed its form under modern conditions; it is no longer a struggle between the demand of society for a rigid marriage-order and the demand of the individual for sexual satisfaction, but it has become the problem of harmonizing the ennoblement of the race with heightened requirements of erotic happiness. She also points out that the existence of a partner who requires the other partner's care as a nurse or as an intellectual companion by no means deprives that other partner of the right to fatherhood or motherhood, and that such rights must be safeguarded (Ellen Key,Ueber Liebe und Ehe, pp. 166-168).A prominent and extreme advocate of polygyny, not as a simplerare variation, but as a marriage order superior to monogamy, is to be found at the present day in Professor Christian von Ehrenfels of Prague (see,e.g., hisSexualethik, 1908; "Die Postulate des Lebens,"Sexual-Probleme, Oct., 1908; and letter to Ellen Key in herUeber Liebe und Ehe, p. 466). Ehrenfels believes that the number of men inapt for satisfactory reproduction is much larger than that of women, and that therefore when these are left out of account, a polygynic marriage order becomes necessary. He calls this "reproduction-marriage" (Zeugungsehe), and considers that it will entirely replace the present marriage order, to which it is morally superior. It would be based on private contracts. Ehrenfels holds that women would offer no objection, as a woman, he believes, attaches less importance to a man as a wooer than as the father of her child. Ehrenfels's doctrine has been seriously attacked from many sides, and his proposals are not in the line of our progress. Any radical modification of the existing monogamic order is not to be expected, even if it were generally recognized, which cannot be said to be the case, that it is desirable. The question of sexual variations, it must be remembered, is not a question of introducing an entirely new form of marriage, but only of recognizing the rights of individuals, in exceptional cases, to adopt such aberrant forms, and of recognizing the corresponding duties of such individuals to accept the responsibilities of any aberrant marriage forms they may find it best to adopt. So far as the question of sexual variations is more than this, it is, as Hinton argued, a dynamical method of working towards the abolition of the perilous and dangerous promiscuity of prostitution. A rigid marriage order involves prostitution; a flexible marriage order largely—though not, it may be, entirely—renders prostitution unnecessary. The democratic morality of the present day, so far as the indications at present go, is opposed to the encouragement of aquasi-slave class, with diminished social rights, such as prostitutes always constitute in a more or less marked degree. It is fairly evident, also, that the rapidly growing influence of medical hygiene is on the same side. We may, therefore, reasonably expect in the future a slow though steady increase in the recognition, and even the extension, of those variations of the monogamic order which have, in reality, never ceased to exist.

Among our European ancestors, alike among Germans and Celts, polygyny and other sexual forms existed as occasional variations. Tacitus noted polygyny in Germany, and Cæsar found in Britain that brothers would hold their wives in common, the children being reckoned to the man to whom the woman had been first given in marriage (see,e.g., Traill'sSocial England, vol. i, p. 103, for a discussion of this point). The husband's assistant, also, who might be called in to impregnate the wife when the husband was impotent, existed in Germany, and was indeed a general Indo-Germanic institution (Schrader,Reallexicon, art. "Zeugungshelfer"). The corresponding institution of the concubine has been still more deeply rooted and widespread. Up to comparatively modern times, indeed, in accordance with the traditions of Roman law, the concubine held a recognized and honorable position, below that of a wife but with definite legal rights, though it was not always, or indeed usually, legal for a married man to have a concubine. In ancient Wales, as well as in Rome, the concubine was accepted and never despised (R. B. Holt, "Marriage Laws of the Cymri,"Journal Anthropological Institute, Aug. and Nov., 1898, p. 155). The fact that when a concubine entered the house of a married man her dignity and legal position were less than those of the wife preserved domestic peace and safeguarded the wife's interests. (A Korean husband cannot take a concubine under his roof without his wife's permission, but she rarely objects, and seems to enjoy the companionship, says Louise Jordan Miln,Quaint Korea, 1895, p. 92.) In old Europe, we must remember, as Dufour points out in speaking of the time of Charlemagne (Histoire de la Prostitution, vol. iii, p. 226), "concubine" was an honorable term; the concubine was by no means a mistress, and she could be accused of adultery just the same as a wife. In England, late in the thirteenth century, Bracton speaks of theconcubina legitimaas entitled to certain rights and considerations, and it was the same in other parts of Europe, sometimes for several centuries later (see Lea,History of Sacerdotal Celibacy, vol. i, p. 230). The early Christian Church was frequently inclined to recognize the concubine, at all events if attached to an unmarried man, for we may trace in the Church "the wish to look upon every permanent union of man or woman as possessing the character of a marriage in the eyes of God, and, therefore, in the judgment of the Church" (art. "Concubinage," Smith and Cheetham,Dictionary of Christian Antiquities). This was the feeling of St. Augustine (who had himself, before his conversion, had a concubine who was apparently a Christian), andthe Council of Toledo admitted an unmarried man who was faithful to a concubine. As the law of the Catholic Church grew more and more rigid, it necessarily lost touch with human needs. It was not so in the early Church during the great ages of its vital growth. In those ages even the strenuous general rule of monogamy was relaxed when such relaxation seemed reasonable. This was so, for instance, in the case of sexual impotency. Thus early in the eighth century Gregory II, writing to Boniface, the apostle of Germany, in answer to a question by the latter, replies that when a wife is incapable from physical infirmity from fulfilling her marital duties it is permissible for the husband to take a second wife, though he must not withdraw maintenance from the first. A little later Archbishop Egbert of York, in hisDialogus de Institutione Ecclesiastica, though more cautiously, admits that when one of two married persons is infirm the other, with the permission of the infirm one, may marry again, but the infirm one is not allowed to marry again during the other's life. Impotency at the time of marriage, of course, made the marriage void without the intervention of any ecclesiastical law. But Aquinas, and later theologians, allow that an excessive disgust for a wife justifies a man in regarding himself as impotent in relation to her. These rules are, of course, quite distinct from the permissions to break the marriage laws granted to kings and princes; such permissions do not count as evidence of the Church's rules, for, as the Council of Constantinople prudently decided in 809, "Divine law can do nothing against Kings" (art. "Bigamy,"Dictionary of Christian Antiquities). The law of monogamy was also relaxed in cases of enforced or voluntary desertion. Thus the Council of Vermerie (752) enacted that if a wife will not accompany her husband when he is compelled to follow his lord into another land, he may marry again, provided he sees no hope of returning. Theodore of Canterbury (688), again, pronounces that if a wife is carried away by the enemy and her husband cannot redeem her, he may marry again after an interval of a year, or, if there is a chance of redeeming her, after an interval of five years; the wife may do the same. Such rules, though not general, show, as Meyrick points out (art. "Marriage,"Dictionary of Christian Antiquities), a willingness "to meet particular cases as they arise."

As the Canon law grew rigid and the Catholic Church lost its vital adaptibility, sexual variations ceased to be recognized within its sphere. We have to wait for the Reformation for any further movement. Many of the early Protestant Reformers, especially in Germany, were prepared to admit a considerable degree of vital flexibility in sexual relationships. Thus Luther advised married women with impotent husbands, in cases where there was no wish or opportunity for divorce, to have sexual relations with another man, by preference the husband's brother; the children were to be reckoned to the husband ("Die Sexuelle Frage bei Luther,"Mutterschutz, Sept., 1908).

In England the Puritan spirit, which so largely occupied itself with the reform of marriage, could not fail to be concerned with the question of sexual variations, and from time to time we find the proposal to legalize polygyny. Thus, in 1658, "A Person of Quality" published in London a small pamphlet dedicated to the Lord Protector, entitledA Remedy for Uncleanness. It was in the form of a number of queries, asking why we should not admit polygamy for the avoidance of adultery and infanticide. The writer inquires whether it may not "stand with a gracious spirit, and be every way consistent with the principles of a man fearing God and loving holiness, to have more women than one to his proper use.... He that takes another man's ox or ass is doubtless a transgressor; but he that puts himself out of the occasion of that temptation by keeping of his own seems to be a right honest and well-meaning man."

More than a century later (1780), an able, learned, and distinguished London clergyman of high character (who had been a lawyer before entering the Church), the Rev. Martin Madan, also advocated polygamy in a book calledThelyphthora; or, a Treatise on Female Ruin. Madan had been brought into close contact with prostitution through a chaplaincy at the Lock Hospital, and, like the Puritan advocate of polygamy, he came to the conclusion that only by the reform of marriage is it possible to work against prostitution and the evils of sexual intercourse outside marriage. His remarkable book aroused much controversy and strong feeling against the author, so that he found it desirable to leave London and settle in the country. Projects of marriage reform have never since come from the Church, but from philosophers and moralists, though not rarely from writers of definitely religious character. Sénancour, who was so delicate and sensitive a moralist in the sexual sphere, introduced a temperate discussion of polygamy into hisDe l'Amour(vol. ii, pp. 117-126). It seemed to him to be neither positively contrary nor positively conformed to the general tendency of our present conventions, and he concluded that "the method of conciliation, in part, would be no longer to require that the union of a man and a woman should only cease with the death of one of them." Cope, the biologist, expressed a somewhat more decided opinion. Under some circumstances, if all three parties agreed, he saw no objection to polygyny or polyandry. "There are some cases of hardship," he said, "which such permission would remedy. Such, for instance, would be the case where the man or woman had become the victim of a chronic disease; or, when either party should be childless, and in other contingencies that could be imagined." There would be no compulsion in any direction, and full responsibility as at present. Such cases could only arise exceptionally, and would not call for social antagonism. For the most part, Cope remarks, "the best way to deal with polygamy is to let it alone" (E. D.Cope, "The Marriage Problem,"Open Court, Nov. 15 and 22, 1888). In England, Dr. John Chapman, the editor of theWestminster Review, and a close associate of the leaders of the Radical movement in the Victorian period, was opposed to State dictation as regards the form of marriage, and believed that a certain amount of sexual variation would be socially beneficial. Thus he wrote in 1884 (in a private letter): "I think that as human beings become less selfish polygamy [i.e., polygyny], and even polyandry, in an ennobled form, will become increasingly frequent."

James Hinton, who, a few years earlier, had devoted much thought and attention to the sexual question, and regarded it as indeed the greatest of moral problems, was strongly in favor of a more vital flexibility of marriage regulations, an adaptation to human needs such as the early Christian Church admitted. Marriage, he declared, must be "subordinated to service," since marriage, like the Sabbath, is made for man and not man for marriage. Thus in case of one partner becoming insane he would permit the other partner to marry again, the claim of the insane partner, in case of recovery, still remaining valid. That would be a form of polygamy, but Hinton was careful to point out that by "polygamy" he meant "less a particular marriage-order than such an order as best serves good, and which therefore must be essentially variable. Monogamy may be good, even the only good order, if of free choice; but alawfor it is another thing. The sexual relationship must be anaturalthing. The true social life will not be any fixed and definite relationship, as of monogamy, polygamy, or anything else, but a perfect subordination of every sexual relationship whatever to reason and human good."

Ellen Key, who is an enthusiastic advocate of monogamy, and who believes that the civilized development of personal love removes all danger of the growth of polygamy, still admits the existence of variations. She has in mind such solutions of difficult problems as Goethe had before him when he proposed at first in hisStellato represent the force of affection and tender memories as too strong to admit of the rupture of an old bond in the presence of a new bond. The problem of sexual variation, she remarks, however (Liebe und Ethik, p. 12), has changed its form under modern conditions; it is no longer a struggle between the demand of society for a rigid marriage-order and the demand of the individual for sexual satisfaction, but it has become the problem of harmonizing the ennoblement of the race with heightened requirements of erotic happiness. She also points out that the existence of a partner who requires the other partner's care as a nurse or as an intellectual companion by no means deprives that other partner of the right to fatherhood or motherhood, and that such rights must be safeguarded (Ellen Key,Ueber Liebe und Ehe, pp. 166-168).

A prominent and extreme advocate of polygyny, not as a simplerare variation, but as a marriage order superior to monogamy, is to be found at the present day in Professor Christian von Ehrenfels of Prague (see,e.g., hisSexualethik, 1908; "Die Postulate des Lebens,"Sexual-Probleme, Oct., 1908; and letter to Ellen Key in herUeber Liebe und Ehe, p. 466). Ehrenfels believes that the number of men inapt for satisfactory reproduction is much larger than that of women, and that therefore when these are left out of account, a polygynic marriage order becomes necessary. He calls this "reproduction-marriage" (Zeugungsehe), and considers that it will entirely replace the present marriage order, to which it is morally superior. It would be based on private contracts. Ehrenfels holds that women would offer no objection, as a woman, he believes, attaches less importance to a man as a wooer than as the father of her child. Ehrenfels's doctrine has been seriously attacked from many sides, and his proposals are not in the line of our progress. Any radical modification of the existing monogamic order is not to be expected, even if it were generally recognized, which cannot be said to be the case, that it is desirable. The question of sexual variations, it must be remembered, is not a question of introducing an entirely new form of marriage, but only of recognizing the rights of individuals, in exceptional cases, to adopt such aberrant forms, and of recognizing the corresponding duties of such individuals to accept the responsibilities of any aberrant marriage forms they may find it best to adopt. So far as the question of sexual variations is more than this, it is, as Hinton argued, a dynamical method of working towards the abolition of the perilous and dangerous promiscuity of prostitution. A rigid marriage order involves prostitution; a flexible marriage order largely—though not, it may be, entirely—renders prostitution unnecessary. The democratic morality of the present day, so far as the indications at present go, is opposed to the encouragement of aquasi-slave class, with diminished social rights, such as prostitutes always constitute in a more or less marked degree. It is fairly evident, also, that the rapidly growing influence of medical hygiene is on the same side. We may, therefore, reasonably expect in the future a slow though steady increase in the recognition, and even the extension, of those variations of the monogamic order which have, in reality, never ceased to exist.

It is lamentable that at this period of the world's history, nearly two thousand years after the wise legislators of Rome had completed their work, it should still be necessary to conclude that we are to-day only beginning to place marriage on a reasonable and humane basis. I have repeatedly pointed out how largely the Canon law has been responsible for this arrest of development. One may say, indeed, that the whole attitude of the Church, afterit 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 thegate 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 Americait 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.

[312]

Rosenthal, of Breslau, from the legal side, goes so far as to argue ("Grundfragen des Eheproblems,"Die Neue Generation, Dec., 1908), that the intention of procreation is essential to the conception of legal marriage.

[313]

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

[314]

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

[315]

Seeante, p. 395.

[316]

Wächter,Eheschiedungen, pp. 95et seq.; Esmein,Marriage en Droit Canonique, vol. i, p. 6; Howard,History of Matrimonial Institutions, vol. ii, p. 15. Howard (in agreement with Lecky) considers that the freedom of divorce was only abused by a small section of the Roman population, and that such abuse, so far as it existed, was not the cause of any decline of Roman morals.

[317]

The opinions of the Christian Fathers were very varied, and they were sometimes doubtful about them; see,e.g., the opinions collected by Cranmer and enumerated by Burnet,History of Reformation(ed. Nares), vol. ii, p. 91.

[318]

Constantine, the first Christian Emperor, enacted a strict and peculiar divorce law (allowing a wife to divorce her husband only when he was a homicide, a poisoner, or a violator of sepulchres), which could not be maintained. In 497, therefore, Anastasius decreed divorce by mutual consent. This was abolished by Justinian, who only allowed divorce for various specified causes, among them, however, including the husband's adultery. These restrictions proved unworkable, and Justinian's successor and nephew, Justin, restored divorce by mutual consent. Finally, in 870, Leo the Philosopher returned to Justinian's enactment (see,e.g., Smith and Cheetham,Dictionary of Christian Antiquities, arts. "Adultery" and "Marriage").

[319]

The element of reverence in the early German attitude towards women and the privileges which even the married woman enjoyed, so far as Tacitus can be considered a reliable guide, seem to have been the surviving vestiges of an earlier social state on a more matriarchal basis. They are most distinct at the dawn of German history. From the first, however, though divorce by mutual consent seems to have been possible, German custom was pitiless to the married woman who was unfaithful, sterile, or otherwise offended, though for some time after the introduction of Christianity it was no offence for the German husband to commit adultery (Westermarck,Origin of the Moral Ideas, vol. ii, p. 453).

[320]

"This form of marriage," says Hobhouse (op. cit., vol. i, p. 156), "is intimately associated with the extension of marital power."Cf.Howard,op. cit., vol. i, p. 231. The very subordinate position of the mediæval German woman is set forth by Hagelstange,Süddeutsches Bauernleben in Mittelalter, 1898, pp. 70et seq.

[321]

Howard,op. cit., vol. i, p. 259; Smith and Cheetham,Dictionary of Christian Antiquities, art.Arrhæ. It would appear, however, that the "bride-sale," of which Tacitus speaks, was not strictly the sale of a chattel nor of a slave-girl, but the sale of themundor protectorship over the girl. It is true the distinction may not always have been clear to those who took part in the transaction. Similarly the Anglo-Saxon betrothal was not so much a payment of the bride's price to her kinsmen, although as a matter of fact, they might make a profit out of the transaction, as a covenant stipulating for the bride's honorable treatment as wife and widow. Reminiscences of this, remark Pollock and Maitland (op. cit., vol. ii, p. 364), may be found in "that curious cabinet of antiquities, the marriage ritual of the English Church."

[322]

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

[323]

J. Wickham Legg,Ecclesiological Essays, p. 189. It may be added that the idea of the subordination of the wife to the husband appeared in the Christian Church at a somewhat early period, and no doubt independently of Germanic influences; St. Augustine said (Sermo XXXVII, cap. vi) that a goodmaterfamiliasmust not be ashamed to call herself her husband's servant (ancilla).

[324]

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

[325]

Howard,op. cit., vol. i, pp. 293et seq.; Esmein,op. cit., vol. i, pp. 25et seq.; Smith and Cheetham,Dictionary of Christian Antiquitiesart. "Contract of Marriage."

[326]

Any later changes in Catholic Canon law have merely been in the direction of making matrimony still narrower and still more remote from the practice of the world. By a papal decree of 1907, civil marriages and marriages in non-Catholic places of worship are declared to be not only sinful and unlawful (which they were before), but actually null and void.

[327]

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

[328]

It was the Council of Trent, in the sixteenth century, which made ecclesiastical rites essential to binding marriage; but even then fifty-six prelates voted against that decision.

[329]

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

[330]

It is sometimes said that the Catholic Church is able to diminish the evils of its doctrine of the indissolubility of marriage by the number of impediments to marriage it admits, thus affording free scope for dispensations from marriage. This scarcely seems to be the case. Dr. P. J. Hayes, who speaks with authority as Chancellor of the Catholic Archdiocese of New York, states ("Impediments to Marriage in the Catholic Church,"North American Review, May, 1905) that even in so modern and so mixed a community as this there are few applications for dispensations on account of impediments; there are 15,000 Catholic marriages per annum in New York City, but scarcely five per annum are questioned as to validity, and these chiefly on the ground of bigamy.

[331]

The Canonists, say Pollock and Maitland (loc. cit.), "made a capricious mess of the marriage law." "Seldom," says Howard (op. cit., vol i, p. 340), "have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction betweensponsalia de præsentiandde futuro."

[332]

Howard,op. cit., vol. i, pp. 386et seq.On the whole, however, Luther's opinion was that marriage, though a sacred and mysterious thing, is not a sacrament; his various statements on the matter are brought together by Strampff,Luther über die Ehe, pp. 204-214.

[333]

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

[334]

Probably as a result of the somewhat confused and incoherent attitude of the Reformers, the Canon law of marriage, in a modified form, really persisted in Protestant countries to a greater extent than in Catholic countries; in France, especially, it has been much more profoundly modified (Esmein,op. cit., vol. i, p. 33).

[335]

The Quaker conception of marriage is still vitally influential. "Why," says Mrs. Besant (Marriage, p. 19), "should not we take a leaf out of the Quaker's book, and substitute for the present legal forms of marriage a simple declaration publicly made?"

[336]

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

[337]

Howard,op. cit., vol. ii, p. 109. "It is, indeed, wonderful," Howard remarks, "that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition."

[338]

"The enforced continuance of an unsuccessful union is perhaps the most immoral thing which a civilized society ever countenanced, far less encouraged," says Godfrey (Science of Sex, p. 123). "The morality of a union is dependent upon mutual desire, and a union dictated by any other cause is outside the moral pale, however custom may sanction it, or religion and law condone it."

[339]

Adultery in most savage and barbarous societies is regarded, in the words of Westermarck, as "an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property;" the seducer is, therefore, punished as a thief, by fine, mutilation, even death (Origin of the Moral Ideas, vol. ii, pp. 447et seq.;id.,History of Human Marriage, p. 121). Among some peoples it is the seducer who alone suffers, and not the wife.

[340]

It is sometimes said in defence of the claim for damages for seducing a wife that women are often weak and unable to resist masculine advances, so that the law ought to press heavily on the man who takes advantage of that weakness. This argument seems a little antiquated. The law is beginning to accept the responsibility even of married women in other respects, and can scarcely refuse to accept it for the control of her own person. Moreover, if it is so natural for the woman to yield, it is scarcely legitimate to punish the man with whom she has performed that natural act. It must further be said that if a wife's adultery is only an irresponsible feminine weakness, a most undue brutality is inflicted on her by publicly demanding her pecuniary price from her lover. If, indeed, we accept this argument, we ought to reintroduce the mediæval girdle of chastity.

[341]

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

[342]

This rule is, in England, by no means a dead letter. Thus, in 1907, a wife who had left her home, leaving a letter stating that her husband was not the father of her child, subsequently brought an action for divorce, which, as the husband made no defence, she obtained. But, the King's Proctor having learnt the facts, the decree was rescinded. Then the husband brought an action for divorce, but could not obtain it, having already admitted his own adultery by leaving the previous case undefended. He took the matter up to the Court of Appeal, but his petition was dismissed, the Court being of opinion that "to grant relief in such a case was not in the interest of public morality." The safest way in England to render what is legally termed marriage absolutely indissoluble is for both parties to commit adultery.

[343]

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

[344]

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

[345]

Gross-Hoffinger,Die Schichsale der Frauen und die Prostitution, 1847; Bloch presents a full summary of the results of this inquiry in anAppendixto Ch. X of hisSexual Life of Our Times.

[346]

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

[347]

H. Münsterberg,The Americans, p. 575. Similarly, Dr. Felix Adler, in a study of "The Ethics of Divorce" (The Ethical Record, 1890, p. 200), although not himself an admirer of divorce, believes that the first cause of the frequency of divorce in the United States is the high position of women.

[348]

In an important article, with illustrative cases, on "The Neuro-psychical Element in Conjugal Aversion" (Journal of Nervous and Mental Diseases, Sept., 1892) Smith Baker refers to the cases in which "a man may find himself progressively becoming antipathetic, through recognition of the comparatively less developed personality of the one to whom he happens to be married. Marrying, perhaps, before he has learned to accurately judge of character and its tendencies, he awakens to the fact that he is honorably bound to live all his physiological life with, not a real companion, but a mere counterfeit." The cases are still more numerous, the same writer observes, in which the sexual appetite of the wife fails to reveal itself except as the result of education and practice. "This sort of natural-unnatural condition is the source of much disappointment, and of intense suffering on the part of the woman as well as of family dissatisfaction." Yet such causes for divorce are far too complex to be stated in statute-books, and far too intimate to be pleaded in courts of justice.

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