world; it was even possible to add to it a new vitality and freedom. But
the Germans, with all the primitively acquisitive and combative instincts
of untamed savages, went far beyond even the early Romans in the
subjection of their wives; they allowed indeed to their unmarried girls a
large measure of indulgence and even sexual freedom,--just as the
Christians also reverenced their virgins,[319]--but the German marriage
system placed the wife, as compared to the wife of the Roman Empire, in a
condition little better than that of a domestic slave. In one form or
another, under one disguise or another, the system of wife-purchase
prevailed among the Germans, and, whenever that system is influential,
even when the wife is honored her privileges are diminished.[320] Among
the Teutonic peoples generally, as among the early English, marriage was
indeed a private transaction but it took the form of a sale of the bride
by the father, or other legal guardian, to the bridegroom. The _beweddung_
was a real contract of sale.[321] "Sale-marriage" was the most usual form
of marriage. The ring, indeed, probably was not in origin, as some have
supposed, a mark of servitude, but rather a form of bride-price, or
_arrha_, that is to say, earnest money on the contract of marriage and so
the symbol of it.[322] At first a sign of the bride's purchase, it was not
till later that the ring acquired the significance of subjection to the
bridegroom, and that significance, later in the Middle Ages, was further
emphasized by other ceremonies. Thus in England the York and Sarum manuals
in some of their forms direct the bride, after the delivery of the ring,
to fall at her husband's feet, and sometimes to kiss his right foot. In
Russia, also, the bride kissed her husband's feet. At a later period, in
France, this custom was attenuated, and it became customary for the bride
to let the ring fall in front of the altar and then stoop at her husband's
feet to pick it up.[323] Feudalism carried on, and by its military
character exaggerated, these Teutonic influences. A fief was land held on
condition of military service, and the nature of its influence on marriage
is implied in that fact. The woman was given with the fief and her own
will counted for nothing.[324]

The Christian Church in the beginning accepted the forms of marriage
already existing in those countries in which it found itself, the Roman
forms in the lands of Latin tradition and the German forms in Teutonic
lands. It merely demanded (as it also demanded for other civil contracts,
such as an ordinary sale) that they should be hallowed by priestly
benediction. But the marriage was recognized by the Church even in the
absence of such benediction. There was no special religious marriage
service, either in the East or the West, earlier than the sixth century.
It was simply the custom for the married couple, after the secular
ceremonies were completed, to attend the church, listen to the ordinary
service and take the sacrament. A special marriage service was developed
slowly, and it was no part of the real marriage. During the tenth century
(at all events in Italy and France) it was beginning to become customary
to celebrate the first part of the real nuptials, still a purely temporal
act, outside the church door. Soon this was followed by the regular
bride-mass, directly applicable to the occasion, inside the church. By the
twelfth century the priest directed the ceremony, now involving an
imposing ritual, which began outside the church and ended with the bridal
mass inside. By the thirteenth century, the priest, superseding the
guardians of the young couple, himself officiated through the whole
ceremony. Up to that time marriage had been a purely private business
transaction. Thus, after more than a millennium of Christianity, not by
law but by the slow growth of custom, ecclesiastical marriage was
established.[325]

It was undoubtedly an event of very great importance not merely for the
Church but for the whole history of European marriage even down to to-day.
The whole of our public method of celebrating marriage to-day is based on
that of the Catholic Church as established in the twelfth century and
formulated in the Canon law. Even the publication of banns has its origin
here, and the fact that in our modern civil marriage the public ceremony
takes place in an office and not in a Church may disguise but cannot
alter the fact that it is the direct and unquestionable descendant of the
public ecclesiastical ceremony which embodied the slow and subtle
triumph--so slow and subtle that its history is difficult to trace--of
Christian priests over the private affairs of men and women. Before they
set themselves to this task marriage everywhere was the private business
of the persons concerned; when they had completed their task,--and it was
not absolutely complete until the Council of Trent,--a private marriage
had become a sin and almost a crime.[326]

It may seem a matter for surprise that the Church which, as we know, had
shown an ever greater tendency to reverence virginity and to cast
contumely on the sexual relationship, should yet, parallel with that
movement and with the growing influence of asceticism, have shown so great
an anxiety to capture marriage and to confer on it a public, dignified,
and religious character. There was, however, no contradiction. The factors
that were constituting European marriage, taken as a whole, were indeed of
very diverse characters and often involved unreconciled contradictions.
But so far as the central efforts of the ecclesiastical legislators were
concerned, there was a definite and intelligible point of view. The very
depreciation of the sexual instinct involved the necessity, since the
instinct could not be uprooted, of constituting for it a legitimate
channel, so that ecclesiastical matrimony was, it has been said,
"analogous to a license to sell intoxicating liquors."[327] Moreover,
matrimony exhibited the power of the Church to confer on the license a
dignity and distinction which would clearly separate it from the general
stream of lust. Sexual enjoyment is impure, the faithful cannot partake of
it until it has been purified by the ministrations of the Church. The
solemnization of marriage was the necessary result of the sanctification
of virginity. It became necessary to sanctify marriage also, and hence
was developed the indissoluble sacrament of matrimony. The conception of
marriage as a religious sacrament, a conception of far-reaching influence,
is the great contribution of the Catholic Church to the history of
marriage.

It is important to remember that, while Christianity brought the
idea of marriage as a sacrament into the main stream of the
institutional history of Europe, that idea was merely developed,
not invented, by the Church. It is an ancient and even primitive
idea. The Jews believed that marriage is a magico-religious bond,
having in it something mystical resembling a sacrament, and that
idea, says Durkheim (_L'Annee Sociologique_, eighth year, 1905,
p. 419), is perhaps very archaic, and hangs on to the generally
magic character of sex relations. "The mere act of union,"
Crawley remarks (_The Mystic Rose_, p. 318) concerning savages,
"is potentially a marriage ceremony of the sacramental kind....
One may even credit the earliest animistic men with some such
vague conception before any ceremony became crystallized." The
essence of a marriage ceremony, the same writer continues, "is
the 'joining together' of a man and a woman; in the words of our
English service, 'for this cause shall a man leave his father and
mother and shall be joined unto his wife; and they two shall be
one flesh.' At the other side of the world, amongst the Orang
Benuas, these words are pronounced by an elder, when a marriage
is solemnized: 'Listen all ye that are present; those that were
distant are now brought together; those that were separated are
now united.' Marriage ceremonies in all stages of culture may be
called religious with as much propriety as any ceremony whatever.
Those who were separated are now joined together, those who were
mutually taboo now break the taboo." Thus marriage ceremonies
prevent sin and neutralize danger.

The Catholic conception of marriage was, it is clear, in
essentials precisely the primitive conception. Christianity drew
the sacramental idea from the archaic traditions in popular
consciousness, and its own ecclesiastical contribution lay in
slowly giving that idea a formal and rigid shape, and in
declaring it indissoluble. As among savages, it was in the act of
consent that the essence of the sacrament lay; the intervention
of the priest was not, in principle, necessary to give marriage
its religiously binding character. The essence of the sacrament
was mutual acceptance of each other by the man and the woman, as
husband and wife, and technically the priest who presided at the
ceremony was simply a witness of the sacrament. The essential
fact being thus the mental act of consent, the sacrament of
matrimony had the peculiar character of being without any outward
and visible sign. Perhaps it was this fact, instinctively felt
as a weakness, which led to the immense emphasis on the
indissolubility of the sacrament of matrimony, already
established by St. Augustine. The Canonists brought forward
various arguments to account for that indissolubility, and a
frequent argument has always been the Scriptural application of
the term "one flesh" to married couples; but the favorite
argument of the Canonists was that matrimony represents the union
of Christ with the Church; that is indissoluble, and therefore
its image must be indissoluble (Esmein, op. cit., vol. i, p. 64).
In part, also, one may well believe, the idea of the
indissolubility of marriage suggested itself to the
ecclesiastical mind by a natural association of ideas: the vow of
virginity in monasticism was indissoluble; ought not the vow of
sexual relationship in matrimony to be similarly indissoluble? It
appears that it was not until 1164, in Peter Lombard's
_Sentences_, that clear and formal recognition is found of
matrimony as one of the seven sacraments (Howard, op. cit., vol.
i, p. 333).

The Church, however, had not only made marriage a religious act; it had
also made it a public act. The officiating priest, who had now become the
arbiter of marriage, was bound by all the injunctions and prohibitions of
the Church, and he could not allow himself to bend to the inclinations and
interests of individual couples or their guardians. It was inevitable that
in this matter, as in other similar matters, a code of ecclesiastical
regulations should be gradually developed for his guidance. This need of
the Church, due to its growing control of the world's affairs, was the
origin of Canon law. With the development of Canon law the whole field of
the regulation of the sexual relationships, and the control of its
aberrations, became an exclusively ecclesiastical matter. The secular law
could take no more direct cognizance of adultery than of fornication or
masturbation; bigamy, incest, and sodomy were not temporal crimes; the
Church was supreme in the whole sphere of sex.

It was during the twelfth century that Canon law developed, and Gratian
was the master mind who first moulded it. He belonged to the Bolognese
school of jurisprudence which had inherited the sane traditions of Roman
law. The Canons which Gratian compiled were, however, no more the mere
result of legal traditions than they were the outcome of cloistered
theological speculation. They were the result of a response to the
practical needs of the day before those needs had had time to form a
foundation for fine-spun subtleties. At a somewhat later period, before
the close of the century, the Italian jurists were vanquished by the
Gallic theologians of Paris as represented by Peter Lombard. The result
was the introduction of mischievous complexities which went far to rob
Canon law alike of its certainty and its adaptation to human necessities.

Notwithstanding, however, all the parasitic accretions which swiftly began
to form around the Canon law and to entangle its practical activity, that
legislation embodied--predominantly at the outset and more obscurely
throughout its whole period of vital activity--a sound core of real value.
The Canon law recognized at the outset that the essential fact of marriage
is the actual sexual union, accomplished with the intention of
inaugurating a permanent relationship. The _copula carnalis_, the making
of two "one flesh," according to the Scriptural phrase, a mystic symbol of
the union of the Church to Christ, was the essence of marriage, and the
mutual consent of the couple alone sufficed to constitute marriage, even
without any religious benediction, or without any ceremony at all. The
formless and unblessed union was still a real and binding marriage if the
two parties had willed it so to be.[328]

Whatever hard things may be said about the Canon law, it must
never be forgotten that it carried through the Middle Ages until
the middle of the sixteenth century the great truth that the
essence of marriage lies not in rites and forms, but in the
mutual consent of the two persons who marry each other. When the
Catholic Church, in its growing rigidity, lost that conception,
it was taken up by the Protestants and Puritans in their first
stage of ardent vital activity, though it was more or less
dropped as they fell back into a state of subservience to forms.
It continued to be maintained by moralists and poets. Thus George
Chapman, the dramatist, who was both moralist and poet, in _The
Gentleman Usher_ (1606), represents the riteless marriage of his
hero and heroine, which the latter thus  introduces:--

"May not we now
Our contract make and marry before Heaven?
Are not the laws of God and Nature more
Than formal laws of men? Are outward rites
More virtuous than the very substance is
Of holy nuptials solemnized within?
.... The eternal acts of our pure souls
Knit us with God, the soul of all the world,
He shall be priest to us; and with such rites
As we can here devise we will express
And strongly ratify our hearts' true vows,
Which no external violence shall dissolve."

And to-day, Ellen Key, the distinguished prophet of marriage
reform, declares at the end of her _Liebe und Ehe_ that the true
marriage law contains only the paragraph: "They who love each
other are husband and wife."

The establishment of marriage on this sound and naturalistic basis had the
further excellent result that it placed the man and the woman, who could
thus constitute marriage by their consent in entire disregard of the
wishes of their parents or families, on the same moral level. Here the
Church was following alike the later Romans and the early Christians like
Lactantius and Jerome who had declared that what was licit for a man was
licit for a woman. The Penitentials also attempted to set up this same
moral law for both sexes. The Canonists finally allowed a certain
supremacy to the husband, though, on the other hand, they sometimes seemed
to assign even the chief part in marriage to the wife, and the attempt was
made to derive the word _matrimonium_ from _matris munium_, thereby
declaring the maternal function to be the essential fact of marriage.[329]

The sound elements in the Canon law conception of marriage were, however,
from a very early period largely if not altogether neutralized by the
verbal subtleties by which they were overlaid, and even by its own
fundamental original defects. Even in the thirteenth century it began to
be possible to attach a superior force to marriage verbally formed _per
verba de praesenti_ than to one constituted by sexual union, while so many
impediments to marriage were set up that it became difficult to know what
marriages were valid, an important point since a marriage even innocently
contracted within the prohibited degrees was only a putative marriage. The
most serious and the most profoundly unnatural feature of this
ecclesiastical conception of marriage was the flagrant contradiction
between the extreme facility with which the gate of marriage was flung
open to the young couple, even if they were little more than children, and
the extreme rigor with which it was locked and bolted when they were
inside. That is still the defect of the marriage system we have inherited
from the Church, but in the hands of the Canonists it was emphasized both
on the side of its facility for entrance and of its difficulty for
exit.[330] Alike from the standpoint of reason and of humanity the gate
that is easy of ingress must be easy of egress; or if the exit is
necessarily difficult then extreme care must be taken in admission. But
neither of these necessary precautions was possible to the Canonists.
Matrimony was a sacrament and all must be welcome to a sacrament, the more
so since otherwise they may be thrust into the mortal sin of fornication.
On the other side, since matrimony was a sacrament, when once truly
formed, beyond the permissible power of verbal quibbles to invalidate, it
could never be abrogated. The very institution that, in the view of the
Church, had been set up as a bulwark against license became itself an
instrument for artificially creating license. So that the net result of
the Canon law in the long run was the production of a state of things
which--in the eyes of a large part of Christendom--more than neutralized
the soundness of its original conception.[331]

In England, where from the ninth century, marriage was generally
accepted by the ecclesiastical and temporal powers as
indissoluble, Canon law was, in the main, established as in the
rest of Christendom. There were, however, certain points in which
Canon law was not accepted by the law of England. By English law
a ceremony before a priest was necessary to the validity of a
marriage, though in Scotland the Canon law doctrine was accepted
that simple consent of the parties, even exchanged secretly,
sufficed to constitute marriage. Again, the issue of a void
marriage contracted in innocence, and the issue of persons who
subsequently marry each other, are legitimate by Canon law, but
not by the common law of England (Geary, _Marriage and Family
Relations_, p. 3; Pollock and Maitland, loc. cit.). The Canonists
regarded the disabilities attaching to bastardy as a punishment
inflicted on the offending parents, and considered, therefore,
that no burden should fall on the children when there had been a
ceremony in good faith on the part of one at least of the
parents. In this respect the English law is less reasonable and
humane. It was at the Council of Merton, in 1236, that the barons
of England rejected the proposal to make the laws of England
harmonize with the Canon law, that is, with the ecclesiastical
law of Christendom generally, in allowing children born before
wedlock to be legitimated by subsequent marriage. Grosseteste
poured forth his eloquence and his arguments in favor of the
change, but in vain, and the law of England has ever since stood
alone in this respect (Freeman, "Merton Priory," _English Towns
and Districts_). The proposal was rejected in the famous formula,
"Nolumus leges Angliae mutare," a formula which merely stood for
an unreasonable and inhumane obstinacy.

In the United States, while by common law subsequent marriage
fails to legitimate children born before marriage, in many of the
States the subsequent marriage of the parents effects by statute
the legitimacy of the child, sometimes (as in Maine)
automatically, more usually (as in Massachusetts) through special
acknowledgment by the father.

The appearance of Luther and the Reformation involved the decay of the
Canon law system so far as Europe as a whole was concerned. It was for
many reasons impossible for the Protestant reformers to retain formally
either the Catholic conception of matrimony or the precariously elaborate
legal structure which the Church had built up on that conception. It can
scarcely be said, indeed, that the Protestant attitude towards the
Catholic idea of matrimony was altogether a clear, logical, or consistent
attitude. It was a revolt, an emotional impulse, rather than a matter of
reasoned principle. In its inevitable necessity, under the circumstances
of the rise of Protestantism, lies its justification, and, on the whole,
its wholesome soundness. It took the form, which may seem strange in a
religious movement, of proclaiming that marriage is not a religious but a
secular matter. Marriage is, said Luther, "a worldly thing," and Calvin
put it on the same level as house-building, farming, or shoe-making. But
while this secularization of marriage represents the general and final
drift of Protestantism, the leaders of Protestantism were themselves not
altogether confident and clear-sighted in the matter. Even Luther was a
little confused on this point; sometimes he seems to call marriage "a
sacrament," sometimes "a temporal business," to be left to the state.[332]
It was the latter view which tended to prevail. But at first there was a
period of confusion, if not of chaos, in the minds of the Reformers; not
only were they not always convinced in their own minds; they were at
variance with each other, especially on the very practical question of
divorce. Luther on the whole belonged to the more rigid party, including
Calvin and Beza, which would grant divorce only for adultery and malicious
desertion; some, including many of the early English Protestants, were in
favor of allowing the husband to divorce for adultery but not the wife.
Another party, including Zwingli, were influenced by Erasmus in a more
liberal direction, and--moving towards the standpoint of Roman Imperial
legislation--admitted various causes of divorce. Some, like Bucer,
anticipating Milton, would even allow divorce when the husband was unable
to love his wife. At the beginning some of the Reformers adopted the
principle of self-divorce, as it prevailed among the Jews and was accepted
by some early Church Councils. In this way Luther held that the cause for
the divorce itself effected the divorce without any judicial decree,
though a magisterial permission was needed for remarriage. This question
of remarriage, and the treatment of the adulterer, were also matters of
dispute. The remarriage of the innocent party was generally accepted; in
England it began in the middle of the sixteenth century, was pronounced
valid by the Archbishop of Canterbury, and confirmed by Parliament. Many
Reformers were opposed, however, to the remarriage of the adulterous
party. Beust, Beza, and Melancthon would have him hanged and so settle the
question of remarriage; Luther and Calvin would like to kill him, but
since the civil rulers were slack in adopting that measure they allowed
him to remarry, if possible in some other part of the country.[333]

The final outcome was that Protestantism framed a conception of marriage
mainly on the legal and economic factor--a factor not ignored but strictly
subordinated by the Canonists--and regarded it as essentially a contract.
In so doing they were on the negative side effecting a real progress, for
they broke the power of an antiquated and artificial system, but on the
positive side they were merely returning to a conception which prevails in
barbarous societies, and is most pronounced when marriage is most
assimilable to purchase. The steps taken by Protestantism involved a
considerable change in the nature of marriage, but not necessarily any
great changes in its form. Marriage was no longer a sacrament, but it was
still a public and not a private function and was still, however
inconsistently, solemnized in Church. And as Protestantism had no rival
code to set up, both in Germany and England it fell back on the general
principles of Canon law, modifying them to suit its own special attitude
and needs.[334] It was the later Puritanic movement, first in the
Netherlands (1580), then in England (1653), and afterwards in New England,
which introduced a serious and coherent conception of Protestant marriage,
and began to establish it on a civil base.

The English Reformers under Edward VI and his enlightened
advisers, including Archbishop Cranmer, took liberal views of
marriage, and were prepared to carry through many admirable
reforms. The early death of that King exerted a profound
influence on the legal history of English marriage. The Catholic
reaction under Queen Mary killed off the more radical Reformers,
while the subsequent accession of Queen Elizabeth, whose attitude
towards marriage was grudging, illiberal, and old-fashioned,
approximating to that of her father, Henry VIII (as witnessed,
for instance, in her decided opposition to the marriage of the
clergy), permanently affected English marriage law. It became
less liberal than that of other Protestant countries, and closer
to that of Catholic countries.

The reform of marriage attempted by the Puritans began in England
in 1644, when an Act was passed asserting "marriage to be no
sacrament, nor peculiar to the Church of God, but common to
mankind and of public interest to every Commonwealth." The Act
added, notwithstanding, that it was expedient marriage should be
solemnized by "a lawful minister of the Word." The more radical
Act of 1653 swept away this provision, and made marriage purely
secular. The banns were to be published (by registrars specially
appointed) in the Church, or (if the parties desired) the
market-place. The marriage was to be performed by a Justice of
the Peace; the age of consent to marriage for a man was made
sixteen, for a woman fourteen (Scobell's _Acts and Ordinances_,
pp. 86, 236). The Restoration abolished this sensible Act, and
reintroduced Canon-law traditions, but the Puritan conception of
marriage was carried over to America, where it took root and
flourished.

It was out of Puritanism, moreover, as represented by Milton, that the
first genuinely modern though as yet still imperfect conception of the
marriage relationship was destined to emerge. The early Reformers in this
matter acted mainly from an obscure instinct of natural revolt in an
environment of plebeian materialism. The Puritans were moved by their
feeling for simplicity and civil order as the conditions for religious
freedom. Milton, in his _Doctrine and Discipline of Divorce_, published in
1643, when he was thirty-five years of age, proclaimed the supremacy of
the substance of marriage over the form of it, and the spiritual autonomy
of the individual in the regulation of that form. He had grasped the
meaning of that conception of personal responsibility which is the
foundation of sexual relationships as they are beginning to appear to men
to-day. If Milton had left behind him only his writings on marriage and
divorce they would have sufficed to stamp him with the seal of genius.
Christendom had to wait a century and a half before another man of genius
of the first rank, Wilhelm von Humboldt, spoke out with equal authority
and clearness in favor of free marriage and free divorce.

It is to the honor of Milton, and one of his chief claims on our
gratitude, that he is the first great protagonist in Christendom
of the doctrine that marriage is a private matter, and that,
therefore, it should be freely dissoluble by mutual consent, or
even at the desire of one of the parties. We owe to him, says
Howard, "the boldest defence of the liberty of divorce which had
yet appeared. If taken in the abstract, and applied to both sexes
alike, it is perhaps the strongest defence which can be made
through an appeal to mere authority;" though his arguments, being
based on reason and experience, are often ill sustained by his
authority; he is really speaking the language of the modern
social reformer, and Milton's writings on this subject are now
sometimes ranked in importance above all his other work (Masson,
_Life of Milton_, vol. iii; Howard, op. cit., vol. ii, p. 86,
vol. iii, p. 251; C.B. Wheeler, "Milton's Doctrine and Discipline
of Divorce," _Nineteenth Century_, Jan., 1907).

Marriage, said Milton, "is not a mere carnal coition, but a human
society; where that cannot be had there can be no true marriage"
(_Doctrine of Divorce_, Bk. i, Ch. XIII); it is "a covenant, the
very being whereof consists not in a forced cohabitation, and
counterfeit performance of duties, but in unfeigned love and
peace" (Ib., Ch. VI). Any marriage that is less than this is "an
idol, nothing in the world." The weak point in Milton's
presentation of the matter is that he never explicitly accords to
the wife the same power of initiative in marriage and divorce as
to the husband. There is, however, nothing in his argument to
prevent its equal application to the wife, an application which,
while never asserting he never denies; and it has been pointed
out that he assumes that women are the equals of men and demands
from them intellectual and spiritual companionship; however ready
Milton may have been to grant complete equality of divorce to the
wife, it would have been impossible for a seventeenth century
Puritan to have obtained any hearing for such a doctrine; his
arguments would have been received with, if that were possible,
even more neglect than they actually met. (Milton's scornful
sonnet concerning the reception of his book is well known.)

Milton insists that in the conventional Christian marriage
exclusive importance is attached to carnal connection. So long as
that connection is possible, no matter what antipathy may exist
between the couple, no matter how mistaken they may have been
"through any error, concealment, or misadventure," no matter if
it is impossible for them to "live in any union or contentment
all their days," yet the marriage still holds good, the two must
"fadge together" (op. cit., Bk. i). It is the Canon law, he says,
which is at fault, "doubtless by the policy of the devil," for
the Canon law leads to licentiousness (op. cit.). It is, he
argues, the absence of reasonable liberty which causes license,
and it is the men who desire to retain the privileges of license
who oppose the introduction of reasonable liberty.

The just ground for divorce is "indisposition, unfitness, or
contrariety of mind, arising from a cause in nature unchangeable,
hindering, and ever likely to hinder, the main benefits of
conjugal society, which are solace and peace." Without the "deep
and serious verity" of mutual love, wedlock is "nothing but the
empty husks of a mere outside matrimony," a mere hypocrisy, and
must be dissolved (op. cit.).

Milton goes beyond the usual Puritan standpoint, and not only
rejects courts and magistrates, but approves of self-divorce; for
divorce cannot rightly belong to any civil or earthly power,
since "ofttimes the causes of seeking divorce reside so deeply in
the radical and innocent affections of nature, as is not within
the diocese of law to tamper with." He adds that, for the
prevention of injustice, special points may be referred to the
magistrate, who should not, however, in any case, be able to
forbid divorce (op. cit., Bk. ii, Ch. XXI). Speaking from a
standpoint which we have not even yet attained, he protests
against the absurdity of "authorizing a judicial court to toss
about and divulge the unaccountable and secret reason of
disaffection between man and wife."

In modern times Hinton was accustomed to compare the marriage law
to the law of the Sabbath as broken by Jesus. We find exactly the
same comparison in Milton. The Sabbath, he believes, was made for
God. "Yet when the good of man comes into the scales, we have
that voice of infinite goodness and benignity, that 'Sabbath was
made for man and not man for Sabbath.' What thing ever was made
more for man alone, and less for God, than marriage?" (_op.
cit._, Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be
less than lord of marriage?"

Milton, in this matter as in others, stood outside the currents of his
age. His conception of marriage made no more impression on contemporary
life than his _Paradise Lost_. Even his own Puritan party who had passed
the Act of 1653 had strangely failed to transfer divorce and nullity cases
to the temporal courts, which would at least have been a step on the right
road. The Puritan influence was transferred to America and constituted the
leaven which still works in producing the liberal though too minutely
detailed divorce laws of many States. The American secular marriage
procedure followed that set up by the English Commonwealth, and the dictum
of the great Quaker, George Fox, "We marry none, but are witnesses of
it,"[335] (which was really the sound kernel in the Canon law) is regarded
as the spirit of the marriage law of the conservative but liberal State of
Pennsylvania, where, as recently as 1885, a statute was passed expressly
authorizing a man and woman to solemnize their own marriage.[336]

In England itself the reforms in marriage law effected by the Puritans
were at the Restoration largely submerged. For two and a half centuries
longer the English spiritual courts administered what was substantially
the old Canon law. Divorce had, indeed, become more difficult than before
the Reformation, and the married woman's lot was in consequence harder.
From the sixteenth century to the second half of the nineteenth, English
marriage law was peculiarly harsh and rigid, much less liberal than that
of any other Protestant country. Divorce was unknown to the ordinary
English law, and a special act of Parliament, at enormous expense, was
necessary to procure it in individual cases.[337] There was even an
attitude of self-righteousness in the maintenance of this system. It was
regarded as moral. There was complete failure to realize that nothing is
more immoral than the existence of unreal sexual unions, not only from
the point of view of theoretical but also of practical morality, for no
community could tolerate a majority of such unions.[338] In 1857 an act
for reforming the system was at last passed with great difficulty. It was
a somewhat incoherent and make-shift measure, and was avowedly put forward
only as a step towards further reform; but it still substantially governs
English procedure, and in the eyes of many has set a permanent standard of
morality. The spirit of blind conservatism,--_Nolumus leges Angliae
mutare_,--which in this sphere had reasserted itself after the vital
movement of Reform and Puritanism, still persists. In questions of
marriage and divorce English legislation and English public feeling are
behind alike both the Latin land of France and the Puritanically moulded
land of the United States.

The author of an able and temperate essay on _The Question of
English Divorce_, summing up the characteristics of the English
divorce law, concludes that it is: (1) unequal, (2) immoral, (3)
contradictory, (4) illogical, (5) uncertain, and (6) unsuited to
present requirements. It was only grudgingly introduced in a
bill, presented to Parliament in 1857, which was stubbornly
resisted during a whole session, not only on religious grounds by
the opponents of divorce, but also by the friends of divorce, who
desired a more liberal measure. It dealt with the sexes
unequally, granting the husband but not the wife divorce for
adultery alone. In introducing the bill the Attorney-General
apologized for this defect, stating that the measure was not
intended to be final, but merely as a step towards further
legislation. That was more than half a century ago, but the
further step has not yet been taken. Incomplete and
unsatisfactory as the measure was, it seems to have been regarded
by many as revolutionary and dangerous in the highest degree. The
author of an article on "Modern Divorce" in the _Universal
Review_ for July, 1859, while approving in principle of the
establishment of a special Divorce Court, yet declared that the
new court was "tending to destroy marriage as a social
institution and to sap female chastity," and that "everyone now
is a husband and wife at will." "No one," he adds, "can now
justly quibble at a deficiency of matrimonial vomitories."

Yet, according to this law, it is not even possible for a wife to
obtain a divorce for her husband's adultery, unless he is also
cruel or deserts her. At first "cruelty" meant physical cruelty
and of a serious kind. But in course of time the meaning of the
word was extended to pain inflicted on the mind, and now coldness
and neglect may almost of themselves constitute cruelty, though
the English court has sometimes had the greatest hesitation in
accepting the most atrocious forms of refined cruelty, because it
involved no "physical" element. "The time may very reasonably be
looked forward to, however," a legal writer has stated
(Montmorency, "The Changing Status of a Married Woman," _Law
Quarterly Review_, April, 1897), "when almost any act of
misconduct will, in itself, be considered to convey such mental
agony to the innocent party as to constitute the cruelty
requisite under the Act of 1857." (The question of cruelty is
fully discussed in J.R. Bishop's _Commentaries on Marriage,
Divorce and Separation_, 1891, vol. i, Ch. XLIX; cf. Howard, op.
cit., vol. ii, p. 111).

There can be little doubt, however, that cruelty alone is a
reasonable cause for divorce. In many American States, where the
facilities for divorce are much greater than in England, cruelty
is recognized as itself sufficient cause, whether the wife or the
husband is the complainant. The acts of cruelty alleged have
sometimes been seemingly very trivial. Thus divorces have been
pronounced in America on the ground of the "cruel and inhuman
conduct" of a wife who failed to sew her husband's buttons on, or
because a wife "struck plaintiff a violent blow with her bustle,"
or because a husband does not cut his toe-nails, or because
"during our whole married life my husband has never offered to
take me out riding. This has been a source of great mental
suffering and injury." In many other cases, it must be added, the
cruelty inflicted by the husband, even by the wife--for though
usually, it is not always, the husband who is the brute--is of an
atrocious and heart-rending character (_Report on Marriage and
Divorce in the United States_, issued by Hon. Carroll D. Wright,
Commissioner of Labor, 1889). But even in many of the apparently
trivial cases--as of a husband who will not wash, and a wife who
is constantly evincing a hasty temper--it must be admitted that
circumstances which, in the more ordinary relationships of life
may be tolerated, become intolerable in the intimate relationship
of sexual union. As a matter of fact, it has been found by
careful investigation that the American courts weigh well the
cases that come before them, and are not careless in the granting
of decrees of divorce.

In 1859 an exaggerated importance was attached to the gross
reasons for divorce, to the neglect of subtle but equally fatal
impediments to the continuance of marriage. This was pointed out
by Gladstone, who was opposed to making adultery a cause of
divorce at all. "We have many causes," he said, "more fatal to
the great obligation of marriage, as disease, idiocy, crime
involving punishment for life." Nowadays we are beginning to
recognize not only such causes as these, but others of a far more
intimate character which, as Milton long ago realized, cannot be
embodied in statutes, or pleaded in law courts. The matrimonial
bond is not merely a physical union, and we have to learn that,
as the author of _The Question of English Divorce_ (p. 49)
remarks, "other than physical divergencies are, in fact, by far
the most important of the originating causes of matrimonial
disaster."

In England and Wales more husbands than wives petition for
divorce, the wives who petition being about 40 per cent, of the
whole. Divorces are increasing, though the number is not large,
in 1907 about 1,300, of whom less than half remarried. The
inadequacy of the divorce law is shown by the fact that during
the same year about 7,000 orders for judicial separation were
issued by magistrates. These separation orders not only do not
give the right to remarry, but they make it impossible to obtain
divorce. They are, in effect, an official permission to form
relationships outside State marriage.

In the United States during the years 1887-1906 nearly 40 per
cent, of the divorces granted were for "desertion," which is
variously interpreted in different States, and must often mean a
separation by mutual consent. Of the remainder, 19 per cent, were
for unfaithfulness, and the same proportion for cruelty; but
while the divorces granted to husbands for the infidelity of
their wives are nearly three times as great proportionately as
those granted to wives for their husband's adultery, with regard
to cruelty it is the reverse, wives obtaining 27 per cent, of
their divorces on that ground and husbands only 10 per cent.

In Prussia divorce is increasing. In 1907 there were eight
thousand divorces, the cause in half the cases being adultery,
and in about a thousand cases malicious desertion. In cases of
desertion the husbands were the guilty parties nearly twice as
often as the wives, in cases of adultery only a fifth to an
eighth part.

There cannot be the slightest doubt that the difficulty, the confusion,
the inconsistency, and the flagrant indecency which surround divorce and
the methods of securing it are due solely and entirely to the subtle
persistence of traditions based, on the one hand, on the Canon law
doctrines of the indissolubility of marriage and the sin of sexual
intercourse outside marriage, and, on the other hand, on the primitive
idea of marriage as a contract which economically subordinates the wife to
the husband and renders her person, or at all events her guardianship, his
property. It is only when we realize how deeply these traditions have
become embedded in the religious, legal, social and sentimental life of
Europe that we can understand how it is that barbaric notions of marriage
and divorce can to-day subsist in a stage of civilization which has, in
many respects, advanced beyond such notions.

The Canon law conception of the abstract religious sanctity of matrimony,
when transferred to the moral sphere, makes a breach of the marriage
relationship seem a public wrong; the conception of the contractive
subordination of the wife makes such a breach on her part, and even, by
transference of ideas, on his part, seem a private wrong. These two ideas
of wrong incoherently flourish side by side in the vulgar mind, even
to-day.

The economic subordination of the wife as a species of property
significantly comes into view when we find that a husband can claim, and
often secure, large sums of money from the man who sexually approaches his
property, by such trespass damaging it in its master's eyes.[339] To a
psychologist it would be obvious that a husband who has lacked the skill
so to gain and to hold his wife's love and respect that it is not
perfectly easy and natural to her to reject the advances of any other man
owes at least as much damages to her as she or her partner owes to him;
while if the failure is really on her side, if she is so incapable of
responding to love and trust and so easy a prey to an outsider, then
surely the husband, far from wishing for any money compensation, should
consider himself more than fully compensated by being delivered from the
necessity of supporting such a woman. In the absence of any false
traditions that would be obvious. It might not, indeed, be unreasonable
that a husband should pay heavily in order to free himself from a wife
whom, evidently, he has made a serious mistake in choosing. But to ordain
that a man should actually be indemnified because he has shown himself
incapable of winning a woman's love is an idea that could not occur in a
civilized society that was not twisted by inherited prejudice.[340] Yet as
matters are to-day there are civilized countries in which it is legally
possible for a husband to enter a prayer for damages against his wife's
paramour in combination with either a petition for judicial separation or
for dissolution of wedlock. In this way adultery is not a crime but a
private injury.[341]

At the same time, however, the influence of Canon law comes inconsistently
to the surface and asserts that a breach of matrimony is a public wrong, a
sin transformed by the State into something almost or quite like a crime.
This is clearly indicated by the fact that in some countries the adulterer
is liable to imprisonment, a liability scarcely nowadays carried into
practice. But exactly the same idea is beautifully illustrated by the
doctrine of "collusion," which, in theory, is still strictly observed in
many countries. According to the doctrine of "collusion" the conditions
necessary to make the divorce possible must on no account be secured by
mutual agreement. In practice it is impossible to prevent more or less
collusion, but if proved in court it constitutes an absolute impediment to
the granting of a divorce, however just and imperative the demand for
divorce may be.

The English Divorce Act of 1857 refused divorce when there was
collusion, as well as when there was any countercharge against
the petitioner, and the Matrimonial Causes Act of 1860 provided
the machinery for guaranteeing these bars to divorce. This
question of collusion is discussed by G.P. Bishop (op. cit.,
vol. ii, Ch. IX). "However just a cause may be," Bishop remarks,
"if parties collude in its management, so that in real fact both
parties are plaintiffs, while by the record the one appears as
plaintiff and the other as defendant, it cannot go forward. All
conduct of this sort, disturbing to the course of justice, falls
within the general idea of fraud on the court. Such is the
doctrine in principle everywhere."

It is quite evident that from the social or the moral point of view, it is
best that when a husband and wife can no longer live together, they should
part amicably, and in harmonious agreement effect all the arrangements
rendered necessary by their separation. The law ridiculously forbids them
to do so, and declares that they must not part at all unless they are
willing to part as enemies. In order to reach a still lower depth of
absurdity and immorality the law goes on to say that if as a matter of
fact they have succeeded in becoming enemies to each other to such an
extent that each has wrongs to plead against the other party they cannot
be divorced at all![342] That is to say that when a married couple have
reached a degree of separation which makes it imperatively necessary, not
merely in their own interests but in the moral interests of society, that
they should be separated and their relations to other parties concerned
regularized, then they must on no account be separated.