until they have safely locked him up in the legal bonds of
matrimony. Such an argument is absolutely futile, for it ignores
the fact that, while love and even monogamy are natural, legal
marriage is merely an external form, with a very feeble power of
subjugating natural impulses, except when those impulses are
weak, and no power at all of subjugating them permanently.
Civilization involves the growth of foresight, and of
self-control in both sexes; but it is foolish to attempt to place
on these fine and ultimate outgrowths of civilization a strain
which they could never bear. How foolish it is has been shown,
once and for all, by Lea in his admirable _History of Sacerdotal
Celibacy_.

Moreover, when we compare the respective aptitudes of men and
women in this particular region, it must be remembered that men
possess a greater power of forethought and self-control than
women, notwithstanding the modesty and reserve of women. The
sexual sphere is immensely larger in women, so that when its
activity is once aroused it is much more difficult to master or
control. (The reasons were set out in detail in the discussion of
"The Sexual Impulse in Women" in volume iii of these _Studies_.)
It is, therefore, unfair to women, and unduly favors men, when
too heavy a premium is placed on forethought and self-restraint
in sexual matters. Since women play the predominant part in the
sexual field their natural demands, rather than those of men,
must furnish the standard.

With the realization of the moral responsibility of women the natural
relations of life spring back to their due biological adjustment.
Motherhood is restored to its natural sacredness. It becomes the concern
of the woman herself, and not of society nor of any individual, to
determine the conditions under which the child shall be conceived. Society
is entitled to require that the father shall in every case acknowledge the
fact of his paternity, but it must leave the chief responsibility for all
the circumstances of child-production to the mother. That is the point of
view which is now gaining ground in all civilized lands both in theory and
in practice.[311]


FOOTNOTES:

[257] E.g., E. Belfort Bax, _Outspoken Essays_, p. 6.

[258] Such reasons are connected with communal welfare. "All immoral acts
result in communal unhappiness, all moral acts in communal happiness," as
Prof. A. Mathews remarks, "Science and Morality," _Popular Science
Monthly_, March, 1909.

[259] See Westermarck, _Origin and Development of the Moral Ideas_, vol.
i, pp. 386-390, 522.

[260] Westermarck, _Origin and Development of the Moral Ideas_, pp. 9,
159; also the whole of Ch. VII. Actions that are in accordance with custom
call forth public approval, actions that are opposed to custom call forth
public resentment, and Westermarck powerfully argues that such approval
and such resentment are the foundation of moral judgments.

[261] This is well recognized by legal writers (e.g., E.A. Schroeder, _Das
Recht in der Geschlechtlichen Ordnung_, p. 5).

[262] W.G. Sumner (_Folkways_, p. 418) even considers it desirable to
change the form of the word in order to emphasize the real and fundamental
meaning of morals, and proposes the word _mores_ to indicate "popular
usages and traditions conducive to societal reform." "'Immoral,'" he
points out, "never means anything but contrary to the _mores_ of the time
and place." There is, however, no need whatever to abolish or to
supplement the good old ancient word "morality," so long as we clearly
realize that, on the practical side, it means essentially custom.

[263] Westermarck, op. cit., vol. i, p. 19.

[264] See, e.g., "Exogamy and the Mating of Cousins," in _Essays Presented
to E.B. Tylor_, 1907, p. 53. "In many departments of primitive life we
find a naïve desire to, as it were, assist Nature, to affirm what is
normal, and later to confirm it by the categorical imperative of custom
and law. This tendency still flourishes in our civilized communities, and,
as the worship of the normal, is often a deadly foe to the abnormal and
eccentric, and too often paralyzes originality."

[265] The spirit of Christianity, as illustrated by Paulinus, in his
_Epistle XXV_, was from the Roman point of view, as Dill remarks (_Roman
Society_, p. 11), "a renunciation, not only of citizenship, but of all the
hard-won fruits of civilization and social life."

[266] It thus happens that, as Lecky said in his _History of European
Morals_, "of all the departments of ethics the questions concerning the
relations of the sexes and the proper position of woman are those upon the
future of which there rests the greatest uncertainty." Some progress has
perhaps been made since these words were written, but they still hold true
for the majority of people.

[267] Concerning economic marriage as a vestigial survival, see, e.g.,
Bloch, _The Sexual Life of Our Time_, p. 212.

[268] Sénancour, _De l'Amour_, vol. ii, p. 233. The author of _The
Question of English Divorce_ attributes the absence of any widespread
feeling against sexual license to the absurd rigidity of the law.

[269] Bruno Meyer, "Etwas von Positiver Sexualreform," _Sexual-Probleme_,
Nov., 1908.

[270] Elsie Clews Parsons, _The Family_, p. 351. Dr. Parsons rightly
thinks such unions a social evil when they check the development of
personality.

[271] For evidence regarding the general absence of celibacy among both
savage and barbarous peoples, see, e.g., Westermarck, _History of Human
Marriage_, Ch. VII.

[272] There are, for instance, two millions of unmarried women in France,
while in Belgium 30 per cent, of the women, and in Germany sometimes even
50 per cent, are unmarried.

[273] Such a position would not be biologically unreasonable, in view of
the greatly preponderant part played by the female in the sexual process
which insures the conservation of the race. "If the sexual instinct is
regarded solely from the physical side," says D.W.H. Busch (_Das
Geschlechtsleben des Weibes_, 1839, vol. i, p. 201), "the woman cannot be
regarded as the property of the man, but with equal and greater reason the
man may be regarded as the property of the woman."

[274] Herodotus, Bk. i, Ch. CLXXIII.

[275] That power and relationship are entirely distinct was pointed out
many years ago by L. von Dargun, _Mutterrecht und Vaterrecht_, 1892.
Westermarck (_Origin and Development of the Moral Ideas_, vol. i, p. 655),
who is inclined to think that Steinmetz has not proved conclusively that
mother-descent involves less authority of husband over wife, makes the
important qualification that the husband's authority is impaired when he
lives among his wife's kinsfolk.

[276] Robertson Smith, _Kinship and Marriage in Early Arabia_; J.G. Frazer
has pointed out (_Academy_, March 27, 1886) that the partially Semitic
peoples on the North frontier of Abyssinia, not subjected to the
revolutionary processes of Islam, preserve a system closely resembling
_beena_ marriage, as well as some traces of the opposite system, by
Robertson Smith called _ba'al_ marriage, in which the wife is acquired by
purchase and becomes a piece of property.

[277] Spencer and Gillen, _Northern Tribes of Central Australia_, p. 358.

[278] Rhys and Brynmor-Jones, _The Welsh People_, pp. 55-6; cf. Rhys,
_Celtic Heathendom_, p. 93.

[279] Rhys and Brynmor-Jones, op. cit., p. 214.

[280] Crawley (_The Mystic Rose_, p. 41 et seq.) gives numerous instances.

[281] Revillout, "La Femme dans l'Antiquité," _Journal Asiatique_, 1906,
vol. vii, p. 57. See, also, Victor Marx, _Beiträge zur Assyriologie_,
1899, Bd. iv, Heft 1.

[282] Donaldson, _Woman_, pp. 196, 241 et seq. Nietzold, (_Die Ehe in_
"_Agypten_," p. 17), thinks the statement of Diodorus that no children
were illegitimate, needs qualification, but that certainly the
illegitimate child in Egypt was at no social disadvantage.

[283] Amélineau, _La Morale Egyptienne_, p. 194; Hobhouse, _Morals in
Evolution_, vol. i, p. 187; Flinders Petrie, _Religion and Conscience in
Ancient Egypt_, pp. 131 et seq.

[284] Maine, _Ancient Law_, Ch. V.

[285] Donaldson, _Woman_, pp. 109, 120.

[286] _Mercator_, iv, 5.

[287] Digest XLVIII, 13, 5.

[288] Hobhouse, _Morals in Evolution_, vol. i, p. 213.

[289] For an account of the work of some of the less known of these
pioneers, see a series of articles by Harriet McIlquham in the
_Westminster Review_, especially Nov., 1898, and Nov., 1903.

[290] The influence of Christianity on the position of women has been well
discussed by Lecky, _History of European Morals_, vol. ii, pp. 316 et
seq., and more recently by Donaldson, _Woman_, Bk. iii.

[291] Migne, _Patrologia_, vol. clviii, p. 680.

[292] Rosa Mayreder, "Einiges über die Starke Faust," _Zur Kritik der
Weiblichkeit_, 1905.

[293] Rasmussen (_People of the Polar North_, p. 56), describes a
ferocious quarrel between husband and wife, who each in turn knocked the
other down. "Somewhat later, when I peeped in, they were lying
affectionately asleep, with their arms around each other."

[294] Hobhouse, _Morals in Evolution_, vol. ii, p. 367. Dr. Stöcker, in
_Die Liebe und die Frauen_, also insists on the significance of this
factor of personal responsibility.

[295] Olive Schreiner has especially emphasized the evils of parasitism
for women. "The increased wealth of the male," she remarks ("The Woman's
Movement of Our Day," _Harper's Bazaar_, Jan., 1902), "no more of
necessity benefits and raises the female upon whom he expends it, than the
increased wealth of his mistress necessarily benefits, mentally or
physically, a poodle, because she can then give him a down cushion in
place of one of feathers, and chicken in place of beef." Olive Schreiner
believes that feminine parasitism is a danger which really threatens
society at the present time, and that if not averted "the whole body of
females in civilized societies must sink into a state of more or less
absolute dependence."

[296] In Rome and in Japan, Hobhouse notes (op. cit., vol. i, pp. 169,
176), the patriarchal system reached its fullest extension, yet the laws
of both these countries placed the husband in a position of practical
subjugation to a rich wife.

[297] Herodotus, Bk. ii, Ch. XXXV. Herodotus noted that it was the woman
and not the man on whom the responsibility for supporting aged parents
rested. That alone involved a very high economic position of women. It is
not surprising that to some observers, as to Diodorus Siculus, it seemed
that the Egyptian woman was mistress over her husband.

[298] Hobhouse (loc. cit.), Hale, and also Grosse, believe that good
economic position of a people involves high position of women. Westermarck
(_Moral Ideas_, vol. i, p. 661), here in agreement with Olive Schreiner,
thinks this statement cannot be accepted without modification, though
agreeing that agricultural life has a good effect on woman's position,
because they themselves become actively engaged in it. A good economic
position has no real effect in raising woman's position, unless women
themselves take a real and not merely parasitic part in it.

[299] Westermarck (_Moral Ideas_, vol. i, Ch. XXVI, vol. ii, p. 29) gives
numerous references with regard to the considerable proprietary and other
privileges of women among savages which tend to be lost at a somewhat
higher stage of culture.

[300] The steady rise in the proportion of women among English workers in
machine industries began in 1851. There are now, it is estimated, three
and a half million women employed in industrial occupations, beside a
million and a half domestic servants. (See for details, James Haslam, in a
series of papers in the _Englishwoman_ 1909.)

[301] See, e.g., J.A. Hobson, _The Evolution of Modern Capitalism_, second
edition, 1907, Ch. XII, "Women in Modern Industry."

[302] Hobhouse, op. cit., vol. i, p. 228.

[303] Fielding, _Tom Jones_, Bk. iii, Ch. VII.

[304] Even the Church to some extent adopted this allotment of the
responsibility, and "solicitation," i.e., the sin of a confessor in
seducing his female penitent, is constantly treated as exclusively the
confessor's sin.

[305] Adolf Gerson, _Sexual-Probleme_, Sept., 1908, p. 547.

[306] It has already been necessary to refer to the unfortunate results
which may follow the ignorance of husbands (see, e.g., "The Sexual Impulse
in Women," vol. iii of these _Studies_), and will be necessary again in
Ch. XI of the present volume.

[307] Pepys, _Diary_, ed. Wheatley, vol. vii, p. 10.

[308] Lombroso and Ferrero, _La Donna Delinquente_; cf. Havelock Ellis,
_Man and Woman_, fourth edition, p. 196.

[309] Gury, _Théologie Morale_, art. 381.

[310] "Men will not learn what women are," remarks Rosa Mayreder (_Zur
Kritik der Weiblichkeit_, p. 199), "until they have left off prescribing
what they ought to be."

[311] It has been set out, for instance, by Professor Wahrmund in _Ehe und
Eherecht_, 1908. I need scarcely refer again to the writings of Ellen Key,
which may be said to be almost epoch-making in their significance,
especially (in German translation) _Ueber Liebe und Ehe_ (also French
translation), and (in English translation, Putnam, 1909), the valuable,
though less important work, _The Century of the Child_. See also Edward
Carpenter, _Love's Coming of Age_; Forel, _Die Sexuelle Frage_ (English
translation, abridged, _The Sexual Question_, Rebman, 1908); Bloch,
_Sexualleben unsere Zeit_ (English translation, _The Sexual Life of Our
Time_, Rebman, 1908); Helene Stöcker, _Die Liebe und die Frauen_, 1906;
and Paul Lapie, _La Femme dans la Famille_, 1908.




CHAPTER X.

MARRIAGE.

The Definition of Marriage--Marriage Among Animals--The Predominance of
Monogamy--The Question of Group Marriage--Monogamy a Natural Fact, Not
Based on Human Law--The Tendency to Place the Form of Marriage Above the
Fact of Marriage--The History of Marriage--Marriage in Ancient
Rome--Germanic Influence on Marriage--Bride-Sale--The Ring--The Influence
of Christianity on Marriage--The Great Extent of This Influence--The
Sacrament of Matrimony--Origin and Growth of the Sacramental
Conception--The Church Made Marriage a Public Act--Canon Law--Its Sound
Core--Its Development--Its Confusions and Absurdities--Peculiarities of
English Marriage Law--Influence of the Reformation on Marriage--The
Protestant Conception of Marriage as a Secular Contract--The Puritan
Reform of Marriage--Milton as the Pioneer of Marriage Reform--His Views on
Divorce--The Backward Position of England in Marriage Reform--Criticism of
the English Divorce Law--Traditions of the Canon Law Still Persistent--The
Question of Damages for Adultery--Collusion as a Bar to
Divorce--Divorce in France, Germany, Austria, Russia, etc.--The United
States--Impossibility of Deciding by Statute the Causes for
Divorce--Divorce by Mutual Consent--Its Origin and Development--Impeded by
the Traditions of Canon Law--Wilhelm von Humboldt--Modern Pioneer
Advocates of Divorce by Mutual Consent--The Arguments Against Facility of
Divorce--The Interests of the Children--The Protection of Women--The
Present Tendency of the Divorce Movement--Marriage Not a Contract--The
Proposal of Marriage for a Term of Years--Legal Disabilities and
Disadvantages in the Position of the Husband and the Wife--Marriage Not a
Contract But a Fact--Only the Non-Essentials of Marriage, Not the
Essentials, a Proper Matter for Contract--The Legal Recognition of
Marriage as a Fact Without Any Ceremony--Contracts of the Person Opposed
to Modern Tendencies--The Factor of Moral Responsibility--Marriage as an
Ethical Sacrament--Personal Responsibility Involves Freedom--Freedom the
Best Guarantee of Stability--False Ideas of Individualism--Modern Tendency
of Marriage--With the Birth of a Child Marriage Ceases to be a Private
Concern--Every Child Must Have a Legal Father and Mother--How This Can be
Effected--The Firm Basis of Monogamy--The Question of Marriage
Variations--Such Variations Not Inimical to Monogamy--The Most Common
Variations--The Flexibility of Marriage Holds Variations in
Check--Marriage Variations _versus_ Prostitution--Marriage on a Reasonable
and Humane Basis--Summary and Conclusion.


The discussion in the previous chapter of the nature of sexual morality,
with the brief sketch it involved of the direction in which that morality
is moving, has necessarily left many points vague. It may still be asked
what definite and precise forms sexual unions are tending to take among
us, and what relation these unions bear to the religious, social, and
legal traditions we have inherited. These are matters about which a very
considerable amount of uncertainty seems to prevail, for it is not unusual
to hear revolutionary or eccentric opinions concerning them.

Sexual union, involving the cohabitation, temporary or permanent, of two
or more persons, and having for one of its chief ends the production and
care of offspring, is commonly termed marriage. The group so constituted
forms a family. This is the sense in which the words "marriage" and the
"family" are most properly used, whether we speak of animals or of Man.
There is thus seen to be room for variation as regards both the time
during which the union lasts, and the number of individuals who form it,
the chief factor in the determination of these points being the interests
of the offspring. In actual practice, however, sexual unions, not only in
Man but among the higher animals, tend to last beyond the needs of the
offspring of a single season, while the fact that in most species the
numbers of males and females are approximately equal makes it inevitable
that both among animals and in Man the family is produced by a single
sexual couple, that is to say that monogamy is, with however many
exceptions, necessarily the fundamental rule.

It will thus be seen that marriage centres in the child, and has at the
outset no reason for existence apart from the welfare of the offspring.
Among those animals of lowly organization which are able to provide for
themselves from the beginning of existence there is no family and no need
for marriage. Among human races, when sexual unions are not followed by
offspring, there may be other reasons for the continuance of the union
but they are not reasons in which either Nature or society is in the
slightest degree directly concerned. The marriage which grew up among
animals by heredity on the basis of natural selection, and which has been
continued by the lower human races through custom and tradition, by the
more civilized races through the superimposed regulative influence of
legal institutions, has been marriage for the sake of the offspring.[312]
Even in civilized races among whom the proportion of sterile marriages is
large, marriage tends to be so constituted as always to assume the
procreation of children and to involve the permanence required by such
procreation.

Among birds, which from the point of view of erotic development
stand at the head of the animal world, monogamy frequently
prevails (according to some estimates among 90 per cent.), and
unions tend to be permanent; there is an approximation to the
same condition among some of the higher mammals, especially the
anthropoid apes; thus among gorillas and oran-utans permanent
monogamic marriages take place, the young sometimes remaining
with the parents to the age of six, while any approach to loose
behavior on the part of the wife is severely punished by the
husband. The variations that occur are often simply matters of
adaptation to circumstances; thus, according to J.G. Millais
(_Natural History of British Ducks_, pp. 8, 63), the Shoveler
duck, though normally monogamic, will become polyandric when
males are in excess, the two males being in constant and amicable
attendance on the female without signs of jealousy; among the
monogamic mallards, similarly, polygyny and polyandry may also
occur. See also R.W. Shufeldt, "Mating Among Birds," _American
Naturalist_, March, 1907; for mammal marriages, a valuable paper
by Robert Müller, "Säugethierehen," _Sexual-Probleme_, Jan.,
1909, and as regards the general prevalence of monogamy, Woods
Hutchinson, "Animal Marriage," _Contemporary Review_, Oct., 1904,
and Sept., 1905.

There has long been a dispute among the historians of marriage as
to the first form of human marriage. Some assume a primitive
promiscuity gradually modified in the direction of monogamy;
others argue that man began where the anthropoid apes left off,
and that monogamy has prevailed, on the whole, throughout. Both
these opposed views, in an extreme form, seem untenable, and the
truth appears to lie midway. It has been shown by various
writers, and notably Westermarck (_History of Human Marriage_,
Chs. IV-VI), that there is no sound evidence in favor of
primitive promiscuity, and that at the present day there are few,
if any, savage peoples living in genuine unrestricted sexual
promiscuity. This theory of a primitive promiscuity seems to have
been suggested, as J.A. Godfrey has pointed out (_Science of
Sex_, p. 112), by the existence in civilized societies of
promiscuous prostitution, though this kind of promiscuity was
really the result, rather than the origin, of marriage. On the
other hand, it can scarcely be said that there is any convincing
evidence of primitive strict monogamy beyond the assumption that
early man continued the sexual habits of the anthropoid apes. It
would seem probable, however, that the great forward step
involved in passing from ape to man was associated with a change
in sexual habits involving the temporary adoption of a more
complex system than monogamy. It is difficult to see in what
other social field than that of sex primitive man could find
exercise for the developing intellectual and moral aptitudes, the
subtle distinctions and moral restraints, which the strict
monogamy practiced by animals could afford no scope for. It is
also equally difficult to see on what basis other than that of a
more closely associated sexual system the combined and harmonious
efforts needed for social progress could have developed. It is
probable that at least one of the motives for exogamy, or
marriage outside the group, is (as was probably first pointed out
by St. Augustine in his _De Civitate Dei_) the need of creating a
larger social circle, and so facilitating social activities and
progress. Exactly the same end is effected by a complex marriage
system binding a large number of people together by common
interests. The strictly small and confined monogamic family,
however excellently it subserved the interests of the offspring,
contained no promise of a wider social progress. We see this
among both ants and bees, who of all animals, have attained the
highest social organization; their progress was only possible
through a profound modification of the systems of sexual
relationship. As Espinas said many years ago (in his suggestive
work, _Des Sociétés Animales_): "The cohesion of the family and
the probabilities for the birth of societies are inverse." Or, as
Schurtz more recently pointed out, although individual marriage
has prevailed more or less from the first, early social
institutions, early ideas and early religion involved sexual
customs which modified a strict monogamy.

The most primitive form of complex human marriage which has yet
been demonstrated as still in existence is what is called
group-marriage, in which all the women of one class are regarded
as the actual, or at all events potential, wives of all the men
in another class. This has been observed among some central
Australian tribes, a people as primitive and as secluded from
external influence as could well be found, and there is evidence
to show that it was formerly more widespread among them. "In the
Urabunna tribe, for example," say Spencer and Gillen, "a group of
men actually do have, continually and as a normal condition,
marital relations with a group of women. This state of affairs
has nothing whatever to do with polygamy any more than it has
with polyandry. It is simply a question of a group of men and a
group of women who may lawfully have what we call marital
relations. There is nothing whatever abnormal about it, and, in
all probability, this system of what has been called group
marriage, serving as it does to bind more or less closely
together groups of individuals who are mutually interested in one
another's welfare, has been one of the most powerful agents in
the early stages of the upward development of the human race"
(Spencer and Gillen, _Northern Tribes of Central Australia_, p.
74; cf. A.W. Howitt, _The Native Tribes of South-East
Australia_). Group-marriage, with female descent, as found in
Australia, tends to become transformed by various stages of
progress into individual marriage with descent in the male line,
a survival of group-marriage perhaps persisting in the
much-discussed _jus primæ noctis_. (It should be added that Mr.
N.W. Thomas, in his book on _Kinship and Marriage in Australia_,
1908, concludes that group-marriage in Australia has not been
demonstrated, and that Professor Westermarck, in his _Origin and
Development of the Moral Ideas_, as in his previous _History of
Human Marriage_, maintains a skeptical opinion in regard to
group-marriage generally; he thinks the Urabunna custom may have
developed out of ordinary individual marriage, and regards the
group-marriage theory as "the residuary legatee of the old theory
of promiscuity." Durkheim also believes that the Australian
marriage system is not primitive, "Organisation Matrimoniale
Australienne," _L'Année Sociologique_, eighth year, 1905). With
the attainment of a certain level of social progress it is easy
to see that a wide and complicated system of sexual relationships
ceases to have its value, and a more or less qualified monogamy
tends to prevail as more in harmony with the claims of social
stability and executive masculine energy.

The best historical discussion of marriage is still probably
Westermarck's _History of Human Marriage_, though at some points
it now needs to be corrected or supplemented; among more recent
books dealing with primitive sexual conceptions may be specially
mentioned Crawley's _Mystic Rose_, while the facts concerning the
transformation of marriage among the higher human races are set
forth in G.E. Howard's _History of Matrimonial Institutions_ (3
vols.), which contains copious bibliographical references. There
is an admirably compact, but clear and comprehensive, sketch of
the development of modern marriage in Pollock and Maitland,
_History of English Law_, vol. ii.

It is necessary to make allowance for variations, thereby shunning the
extreme theorists who insist on moulding all facts to their theories, but
we may conclude that--as the approximately equal number of the sexes
indicates--in the human species, as among many of the higher animals, a
more or less permanent monogamy has on the whole tended to prevail. That
is a fact of great significance in its implications. For we have to
realize that we are here in the presence of a natural fact. Sexual
relationships, in human as in animal societies, follow a natural law,
oscillating on each side of the norm, and there is no place for the theory
that that law was imposed artificially. If all artificial "laws" could be
abolished the natural order of the sexual relationships would continue to
subsist substantially as at present. Virtue, said Cicero, is but Nature
carried out to the utmost. Or, as Holbach put it, arguing that our
institutions tend whither Nature tends, "art is only Nature acting by the
help of the instruments she has herself made." Shakespeare had already
seen much the same truth when he said that the art which adds to Nature
"is an art that Nature makes." Law and religion have buttressed monogamy;
it is not based on them but on the needs and customs of mankind, and these
constitute its completely adequate sanctions.[313] Or, as Cope put it,
marriage is not the creation of law but the law is its creation.[314]
Crawley, again, throughout his study of primitive sex relationships,
emphasizes the fact that our formal marriage system is not, as so many
religious and moral writers once supposed, a forcible repression of
natural impulses, but merely the rigid crystallization of those natural
impulses, which in a more fluid form have been in human nature from the
first. Our conventional forms, we must believe, have not introduced any
elements of value, while in some respects they have been mischievous.

It is necessary to bear in mind that the conclusion that
monogamic marriage is natural, and represents an order which is
in harmony with the instincts of the majority of people, by no
means involves agreement with the details of any particular legal
system of monogamy. Monogamic marriage is a natural biological
fact, alike in many animals and in man. But no system of legal
regulation is a natural biological fact. When a highly esteemed
alienist, Dr. Clouston, writes (_The Hygiene of Mind_, p. 245)
"there is only one natural mode of gratifying sexual _nisus_ and
reproductive instinct, that of marriage," the statement requires
considerable exegesis before it can be accepted, or even receive
an intelligible meaning, and if we are to understand by
"marriage" the particular form and implications of the English
marriage law, or even of the somewhat more enlightened Scotch
law, the statement is absolutely false. There is a world of
difference, as J.A. Godfrey remarks (_The Science of Sex_, 1901,
p. 278), between natural monogamous marriage and our legal
system; "the former is the outward expression of the best that
lies in the sexuality of man; the latter is a creation in which
religious and moral superstitions have played a most important
part, not always to the benefit of individual and social health."

We must, therefore, guard against the tendency to think that
there is anything rigid or formal in the natural order of
monogamy. Some sociologists would even limit the naturalness of
monogamy still further. Thus Tarde ("La Morale Sexuelle,"
_Archives d'Anthropologie Criminelle_, Jan., 1907), while
accepting as natural under present conditions the tendency for
monogamy, mitigated by more or less clandestine concubinage, to
prevail over all other forms of marriage, considers that this is
not due to any irresistible influence, but merely to the fact
that this kind of marriage is practiced by the majority of
people, including the most civilized.

With the acceptance of the tendency to monogamy we are not at the
end of sexual morality, but only at the beginning. It is not
monogamy that is the main thing, but the kind of lives that
people lead in monogamy. The mere acceptance of a monogamic rule
carries us but a little way. That is a fact which cannot fail to
impress itself on those who approach the questions of sex from
the psychological side.

If monogamy is thus firmly based it is unreasonable to fear, or to hope
for, any radical modification in the institution of marriage, regarded,
not under its temporary religious and legal aspects but as an order which
appeared on the earth even earlier than man. Monogamy is the most natural
expression of an impulse which cannot, as a rule, be so adequately
realized in full fruition under conditions involving a less prolonged
period of mutual communion and intimacy. Variations, regarded as
inevitable oscillations around the norm, are also natural, but union in
couples must always be the rule because the numbers of the sexes are
always approximately equal, while the needs of the emotional life, even
apart from the needs of offspring, demand that such unions based on mutual
attraction should be so far as possible permanent.

It must here again be repeated that it is the reality, and not
the form or the permanence of the marriage union, which is its
essential and valuable part. It is not the legal or religious
formality which sanctifies marriage, it is the reality of the
marriage which sanctifies the form. Fielding has satirized in
Nightingale, Tom Jones's friend, the shallow-brained view of
connubial society which degrades the reality of marriage to exalt
the form. Nightingale has the greatest difficulty in marrying a
girl with whom he has already had sexual relations, although he
is the only man who has had relations with her. To Jones's
arguments he replies: "Common-sense warrants all you say, but yet
you well know that the opinion of the world is so contrary to it,
that were I to marry a whore, though my own, I should be ashamed
of ever showing my face again." It cannot be said that Fielding's
satire is even yet out of date. Thus in Prussia, according to
Adele Schreiber ("Heirathsbeschränkungen," _Die Neue Generation_,
Feb., 1909), it seems to be still practically impossible for a
military officer to marry the mother of his own illegitimate
child.

The glorification of the form at the expense of the reality of
marriage has even been attempted in poetry by Tennyson in the
least inspired of his works, _The Idylls of the King_. In
"Lancelot and Elaine" and "Guinevere" (as Julia Magruder points
out, _North American Review_, April, 1905) Guinevere is married
to King Arthur, whom she has never seen, when already in love
with Lancelot, so that the "marriage" was merely a ceremony, and
not a real marriage (cf., May Child, "The Weird of Sir Lancelot,"
_North American Review_, Dec., 1908).

It may seem to some that so conservative an estimate of the tendencies of
civilization in matters of sexual love is due to a timid adherence to mere
tradition. That is not the case. We have to recognize that marriage is
firmly held in position by the pressure of two opposing forces. There are
two currents in the stream of our civilization: one that moves towards an
ever greater social order and cohesion, the other that moves towards an
ever greater individual freedom. There is real harmony underlying the
apparent opposition of these two tendencies, and each is indeed the
indispensable complement of the other. There can be no real freedom for
the individual in the things that concern that individual alone unless
there is a coherent order in the things that concern him as a social unit.
Marriage in one of its aspects only concerns the two individuals involved;
in another of its aspects it chiefly concerns society. The two forces
cannot combine to act destructively on marriage, for the one counteracts
the other. They combine to support monogamy, in all essentials, on its
immemorial basis.

It must be added that in the circumstances of monogamy that are not
essential there always has been, and always must be, perpetual
transformation. All traditional institutions, however firmly founded on
natural impulses, are always growing dead and rigid at some points and
putting forth vitally new growths at other points. It is the effort to
maintain their vitality, and to preserve their elastic adjustment to the
environment, which involves this process of transformation in
non-essentials.

The only way in which we can fruitfully approach the question of the value
of the transformations now taking place in our marriage-system is by
considering the history of that system in the past. In that way we learn
the real significance of the marriage-system, and we understand what
transformations are, or are not, associated with a fine civilization. When
we are acquainted with the changes of the past we are enabled to face more
confidently the changes of the present.

The history of the marriage-system of modern civilized peoples begins in
the later days of the Roman Empire at the time when the foundations were
being laid of that Roman law which has exerted so large an influence in
Christendom. Reference has already been made[315] to the significant fact
that in late Rome women had acquired a position of nearly complete
independence in relation to their husbands, while the patriarchal
authority still exerted over them by their fathers had become, for the
most part, almost nominal. This high status of women was associated, as it
naturally tends to be, with a high degree of freedom in the marriage
system. Roman law had no power of intervening in the formation of
marriages and there were no legal forms of marriage. The Romans recognized
that marriage is a fact and not a mere legal form; in marriage by _usus_
there was no ceremony at all; it was constituted by the mere fact of
living together for a whole year; yet such marriage was regarded as just
as legal and complete as if it had been inaugurated by the sacred rite of
_confarreatio_. Marriage was a matter of simple private agreement in which
the man and the woman approached each other on a footing of equality. The
wife retained full control of her own property; the barbarity of admitting
an action for restitution of conjugal rights was impossible, divorce was a
private transaction to which the wife was as fully entitled as the
husband, and it required no inquisitorial intervention of magistrate or
court; Augustus ordained, indeed, that a public declaration was necessary,
but the divorce itself was a private legal act of the two persons
concerned.[316] It is interesting to note this enlightened conception of
marriage prevailing in the greatest and most masterful Empire which has
ever dominated the world, at the period not indeed of its greatest
force,--for the maximum of force and the maximum of expansion, the bud and
the full flower, are necessarily incompatible,--but at the period of its
fullest development. In the chaos that followed the dissolution of the
Empire Roman law remained as a precious legacy to the new developing
nations, but its influence was inextricably mingled with that of
Christianity, which, though not at the first anxious to set up marriage
laws of its own, gradually revealed a growing ascetic feeling hostile
alike to the dignity of the married woman and the freedom of marriage and
divorce.[317] With that influence was combined the influence, introduced
through the Bible, of the barbaric Jewish marriage-system conferring on
the husband rights in marriage and divorce which were totally denied to
the wife; this was an influence which gained still greater force at the
Reformation when the authority once accorded to the Church was largely
transformed to the Bible. Finally, there was in a great part of Europe,
including the most energetic and expansive parts, the influence of the
Germans, an influence still more primitive than that of the Jews,
involving the conception of the wife as almost her husband's chattel, and
marriage as a purchase. All these influences clashed and often appeared
side by side, though they could not be harmonized. The result was that the
fifteen hundred years that followed the complete conquest of Christianity
represent on the whole the most degraded condition to which the marriage
system has ever been known to fall for so long a period during the whole
course of human history.

At first indeed the beneficent influence of Rome continued in some degree
to prevail and even exhibited new developments. In the time of the
Christian Emperors freedom of divorce by mutual consent was alternately
maintained, and abolished.[318] We even find the wise and far-seeing
provision of the law enacting that a contract of the two parties never to
separate could have no legal validity. Justinian's prohibition of divorce
by consent led to much domestic unhappiness, and even crime, which appears
to be the reason why it was immediately abrogated by his successor,
Theodosius, still maintaining the late Roman tradition of the moral
equality of the sexes, allowed the wife equally with the husband to obtain
a divorce for adultery; that is a point we have not yet attained in
England to-day.

It seems to be admitted on all sides that it was largely the fatal
influence of the irruption of the barbarous Germans which degraded, when
it failed to sweep away, the noble conception of the equality of women
with men, and the dignity and freedom of marriage, slowly moulded by the
organizing genius of the Roman into a great tradition which still retains
a supreme value. The influence of Christianity had at the first no
degrading influence of this kind; for the ascetic ideal was not yet
predominant, priests married as a matter of course, and there was no
difficulty in accepting the marriage order established in the secular