sexual mates and towards the children he has by those mates. In no part of
the world is polygyny so prevalent as in Christendom; in no part of the
world is it so easy for a man to escape the obligations incurred by
polygyny. We imagine that if we refuse to recognize the fact of polygyny,
we may refuse to recognize any obligations incurred by polygyny. By
enabling a man to escape so easily from the obligations of his polygamous
relationships we encourage him, if he is unscrupulous, to enter into them;
we place a premium on the immorality we loftily condemn.[373] Our polygyny
has no legal existence, and therefore its obligations can have no legal
existence. The ostrich, it was once imagined, hides its head in the sand
and attempts to annihilate facts by refusing to look at them; but there is
only one known animal which adopts this course of action, and it is called
Man.

Monogamy, in the fundamental biological sense, represents the natural
order into which the majority of sexual facts will always naturally fall
because it is the relationship which most adequately corresponds to all
the physical and spiritual facts involved. But if we realize that sexual
relationships primarily concern only the persons who enter into those
relationships, and if we further realize that the interest of society in
such relationships is confined to the children which they produce, we
shall also realize that to fix by law the number of women with whom a man
shall have sexual relationships, and the number of men with whom a woman
shall unite herself, is more unreasonable than it would be to fix by law
the number of children they shall produce. The State has a right to
declare whether it needs few citizens or many; but in attempting to
regulate the sexual relationships of its members the State attempts an
impossible task and is at the same time guilty of an impertinence.

There is always a tendency, at certain stages of civilization, to
insist on a merely formal and external uniformity, and a
corresponding failure to see not only that such uniformity is
unreal, but also that it has an injurious effect, in so far as it
checks beneficial variations. The tendency is by no means
confined to the sexual sphere. In England there is, for instance,
a tendency to make building laws which enjoin, in regard to
places of human habitation, all sorts of provisions that on the
whole are fairly beneficial, but which in practice act
injuriously, because they render many simple and excellent human
habitations absolutely illegal, merely because such habitations
fail to conform to regulations which, under some circumstances,
are not only unnecessary, but mischievous.

Variation is a fact that will exist whether we will or no; it can
only become healthful if we recognize and allow for it. We may
even have to recognize that it is a more marked tendency in
civilization than in more primitive social stages. Thus Gerson
argues (_Sexual-Probleme_, Sept., 1908, p. 538) that just as the
civilized man cannot be content with the coarse and monotonous
food which satisfies the peasant, so it is in sexual matters; the
peasant youth and girl in their sexual relationships are nearly
always monogamous, but civilized people, with their more
versatile and sensitive tastes, are apt to crave for variety.
Sénancour (_De l'Amour_, vol. ii, "Du Partage," p. 127) seems to
admit the possibility of marriage variations, as of sharing a
wife, provided nothing is done to cause rivalry, or to impair the
soul's candor. Lecky, near the end of his _History of European
Morals_, declared his belief that, while the permanent union of
two persons is the normal and prevailing type of marriage, it by
no means follows that, in the interests of society, it should be
the only form. Remy de Gourmont similarly (_Physique de l'Amour_,
p. 186), while stating that the couple is the natural form of
marriage and its prolonged continuance a condition of human
superiority, adds that the permanence of the union can only be
achieved with difficulty. So, also, Professor W. Thomas (_Sex and
Society_, 1907, p. 193), while regarding monogamy as subserving
social needs, adds: "Speaking from the biological standpoint
monogamy does not, as a rule, answer to the conditions of highest
stimulation, since here the problematical and elusive elements
disappear to some extent, and the object of attention has grown
so familiar in consciousness that the emotional reactions are
qualified. This is the fundamental explanation of the fact that
married men and women frequently become interested in others than
their partners in matrimony."

Pepys, whose unconscious self-dissection admirably illustrates so
many psychological tendencies, clearly shows how--by a logic of
feeling deeper than any intellectual logic--the devotion to
monogamy subsists side by side with an irresistible passion for
sexual variety. With his constantly recurring wayward attraction
to a long series of women he retains throughout a deep and
unchanging affection for his charming young wife. In the privacy
of his _Diary_ he frequently refers to her in terms of endearment
which cannot be feigned; he enjoys her society; he is very
particular about her dress; he delights in her progress in music,
and spends much money on her training; he is absurdly jealous
when he finds her in the society of a man. His subsidiary
relationships with other women recur irresistibly, but he has no
wish either to make them very permanent or to allow them to
engross him unduly. Pepys represents a common type of civilized
"monogamist" who is perfectly sincere and extremely convinced in
his advocacy of monogamy, as he understands it, but at the same
time believes and acts on the belief that monogamy by no means
excludes the need for sexual variation. Lord Morley's statement
(_Diderot_, vol. ii, p. 20) that "man is instinctively
polygamous," can by no means be accepted, but if we interpret it
as meaning that man is an instinctively monogamous animal with a
concomitant desire for sexual variation, there is much evidence
in its favor.

Women must be as free as men to mould their own amatory life.
Many consider, however, that such freedom on the part of women
will be, and ought to be, exercised within narrower limits (see,
e.g., Bloch, _Sexual Life of Our Time_, Ch. X). In part this
limitation is considered due to the greater absorption of a woman
in the task of breeding and rearing her child, and in part to a
less range of psychic activities. A man, as G. Hirth puts it,
expressing this view of the matter (_Wege zur Liebe_, p. 342),
"has not only room in his intellectual horizon for very various
interests, but his power of erotic expansion is much greater and
more differentiated than that of women, although he may lack the
intimacy and depth of a woman's devotion."

It may be argued that, since variations in the sexual order will
inevitably take place, whether or not they are recognized or
authorized, no harm is likely to be done by using the weight of
social and legal authority on the side of that form which is
generally regarded as the best, and, so far as possible, covering
the other forms with infamy. There are many obvious defects in
such an attitude, apart from the supremely important fact that to
cast infamy on sexual relationships is to exert a despicable
cruelty on women, who are inevitably the chief sufferers. Not the
least is the injustice and the hampering of vital energy which it
inflicts on the better and more scrupulous people to the
advantage of the worse and less scrupulous. This always happens
when authority exerts its power in favor of a form. When, in the
thirteenth century, Alexander III--one of the greatest and most
effective potentates who ever ruled Christendom--was consulted by
the Bishop of Exeter concerning subdeacons who persisted in
marrying, the Pope directed him to inquire into the lives and
characters of the offenders; if they were of regular habits and
staid morality, they were to be forcibly separated and the wives
driven out; if they were men of notoriously disorderly character,
they were to be permitted to retain their wives, if they so
desired (Lea, _History of Sacerdotal Celibacy_, third edition,
vol. i, p. 396). It was an astute policy, and was carried out by
the same Pope elsewhere, but it is easy to see that it was
altogether opposed to morality in every sense of the term. It
destroyed the happiness and the efficiency of the best men; it
left the worst men absolutely free. To-day we are quite willing
to recognize the evil result of this policy; it was dictated by a
Pope and carried out seven hundred years ago. Yet in England we
carry out exactly the same policy to-day by means of our
separation orders, which are scattered broadcast among the
population. None of the couples thus separated--and never
disciplined to celibacy as are the Catholic clergy of to-day--may
marry again; we, in effect, bid the more scrupulous among them to
become celibates, and to the less scrupulous we grant permission
to do as they like. This process is carried on by virtue of the
collective inertia of the community, and when it is supported by
arguments, if that ever happens, they are of an antiquarian
character which can only call forth a pitying smile.

It may be added that there is a further reason why the custom of
branding sexual variations from the norm as "immoral" is not so
harmless as some affect to believe: such variations appear to be
not uncommon among men and women of superlative ability whose
powers are needed unimpeded in the service of mankind. To attempt
to fit such persons into the narrow moulds which suit the
majority is not only an injustice to them as individuals, but it
is an offence against society, which may fairly claim that its
best members shall not be hampered in its service. The notion
that the person whose sexual needs differ from those of the
average is necessarily a socially bad person, is a notion
unsupported by facts. Every case must be judged on its own
merits.

Undoubtedly the most common variation from normal monogamy has in all
stages of human culture been polygyny or the sexual union of one man with
more than one woman. It has sometimes been socially and legally
recognized, and sometimes unrecognized, but in either case it has not
failed to occur. Polyandry, or the union of a woman with more than one
man, has been comparatively rare and for intelligible reasons: men have
most usually been in a better position, economically and legally, to
organize a household with themselves as the centre; a woman is, unlike a
man, by nature and often by custom unfitted for intercourse for
considerable periods at a time; a woman, moreover, has her thoughts and
affections more concentrated on her children. Apart from this the
biological masculine traditions point to polygyny much more than the
feminine traditions point to polyandry. Although it is true that a woman
can undergo a much greater amount of sexual intercourse than a man, it
also remains true that the phenomena of courtship in nature have made it
the duty of the male to be alert in offering his sexual attention to the
female, whose part it has been to suspend her choice coyly until she is
sure of her preference. Polygynic conditions have also proved
advantageous, as they have permitted the most vigorous and successful
members of a community to have the largest number of mates and so to
transmit their own superior qualities.

"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
and weighty 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's _Social 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 the _concubina
legitima_ as 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), and the 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 his _Dialogus 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, entitled _A 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 called _Thelyphthora; 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 his _De 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 the _Westminster 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 a _law_ for it is another thing. The sexual
relationship must be a _natural_ thing. 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
his _Stella_ to 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 simple
rare 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., his _Sexualethik_, 1908; "Die
Postulate des Lebens," _Sexual-Probleme_, Oct., 1908; and letter
to Ellen Key in her _Ueber 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 a _quasi_-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, after it had once acquired complete worldly dominance,
must be held responsible. In the earlier centuries the attitude of
Christianity was, on the whole, admirable. It held aloft great ideals but
it refrained from enforcing those ideals at all costs; thus its ideals
remained genuine and could not degenerate into mere hypocritical empty
forms; much flexibility was allowed when it seemed to be for human good
and made for the avoidance of evil and injustice. But when the Church
attained temporal power, and when that power was concentrated in the hands
of Popes who subordinated moral and religious interests to political
interests, all the claims of reason and humanity were flung to the winds.
The ideal was no more a fact than it was before, but it was now treated as
a fact. Human relationships remained what they were before, as complicated
and as various, but henceforth one rigid pattern, admirable as an ideal
but worse than empty as a form, was arbitrarily set up, and all deviations
from it treated either as non-existent or damnable. The vitality was
crushed out of the most central human institutions, and they are only
to-day beginning to lift their heads afresh.

If--to sum up--we consider the course which the regulation of marriage has
run during the Christian era, the only period which immediately concerns
us, it is not difficult to trace the main outlines. Marriage began as a
private arrangement, which the Church, without being able to control, was
willing to bless, as it also blessed many other secular affairs of men,
making no undue attempt to limit its natural flexibility to human needs.
Gradually and imperceptibly, however, without the medium of any law,
Christianity gained the complete control of marriage, coördinated it with
its already evolved conceptions of the evil of lust, of the virtue of
chastity, of the mortal sin of fornication, and, having through the
influence of these dominating conceptions limited the flexibility of
marriage in every possible direction, it placed it on a lofty but narrow
pedestal as the sacrament of matrimony. For reasons which by no means lay
in the nature of the sexual relationships, but which probably seemed
cogent to sacerdotal legislators who assimilated it to ordination,
matrimony was declared indissoluble. Nothing was so easy to enter as the
gate of matrimony, but, after the manner of a mouse-trap, it opened
inwards and not outwards; once in there was no way out alive. The Church's
regulation of marriage while, like the celibacy of the clergy, it was a
success from the point of view of ecclesiastical politics, and even at
first from the point of view of civilization, for it at least introduced
order into a chaotic society, was in the long run a failure from the point
of view of society and morals. On the one hand it drifted into absurd
subtleties and quibbles; on the other, not being based on either reason or
humanity, it had none of that vital adaptability to the needs of life,
which early Christianity, while holding aloft austere ideals, still
largely retained. On the side of tradition this code of marriage law
became awkward and impracticable; on the biological side it was hopelessly
false. The way was thus prepared for the Protestant reintroduction of the
conception of marriage as a contract, that conception being, however,
brought forward less on its merits than as a protest against the
difficulties and absurdities of the Catholic Canon law. The contractive
view, which still largely persists even to-day, speedily took over much of
the Canon law doctrines of marriage, becoming in practice a kind of
reformed and secularized Canon law. It was somewhat more adapted to modern
needs, but it retained much of the rigidity of the Catholic marriage
without its sacramental character, and it never made any attempt to become
more than nominally contractive. It has been of the nature of an
incongruous compromise and has represented a transitional phase towards
free private marriage. We can recognize that phase in the tendency, well
marked in all civilized lands, to an ever increasing flexibility of
marriage. The idea, and even the fact, of marriage by consent and divorce
by failure of that consent, which we are now approaching, has never indeed
been quite extinct. In the Latin countries it has survived with the
tradition of Roman law; in the English-speaking countries it is bound up
with the spirit of Puritanism which insists that in the things that
concern the individual alone the individual himself shall be the supreme
judge. That doctrine as applied to marriage was in England magnificently
asserted by the genius of Milton, and in America it has been a leaven
which is still working in marriage legislation towards an inevitable goal
which is scarcely yet in sight. The marriage system of the future, as it
moves along its present course, will resemble the old Christian system in
that it will recognize the sacred and sacramental character of the sexual
relationship, and it will resemble the civil conception in that it will
insist that marriage, so far as it involves procreation, shall be publicly
registered by the State. But in opposition to the Church it will recognize
that marriage, in so far as it is purely a sexual relationship, is a
private matter the conditions of which must be left to the persons who
alone are concerned in it; and in opposition to the civil theory it will
recognize that marriage is in its essence a fact and not a contract,
though it may give rise to contracts, so long as such contracts do not
touch that essential fact. And in one respect it will go beyond either the
ecclesiastical conception or the civil conception. Man has in recent times
gained control of his own procreative powers, and that control involves a
shifting of the centre of gravity of marriage, in so far as marriage is an
affair of the State, from the vagina to the child which is the fruit of
the womb. Marriage as a state institution will centre, not around the
sexual relationship, but around the child which is the outcome of that
relationship. In so far as marriage is an inviolable public contract it
will be of such a nature that it will be capable of automatically covering
with its protection every child that is born into the world, so that every
child may possess a legal mother and a legal father. On the one side,
therefore, marriage is tending to become less stringent; on the other side
it is tending to become more stringent. On the personal side it is a
sacred and intimate relationship with which the State has no concern; on
the social side it is the assumption of the responsible public sponsorship
of a new member of the State. Some among us are working to further one of
these aspects of marriage, some to further the other aspect. Both are
indispensable to establish a perfect harmony. It is necessary to hold the
two aspects of marriage apart, in order to do equal justice to the
individual and to society, but in so far as marriage approaches its ideal
state those two aspects become one.

We have now completed the discussion of marriage as it presents itself to
the modern man born in what in mediæval days was called Christendom. It is
not an easy subject to discuss. It is indeed a very difficult subject, and
only after many years is it possible to detect the main drift of its
apparently opposing and confused currents when one is oneself in the midst
of them. To an Englishman it is, perhaps, peculiarly difficult, for the
Englishman is nothing if not insular; in that fact lie whatever virtues he
possesses, as well as their reverse sides.[374]

Yet it is worth while to attempt to climb to a height from which we can
view the stream of social tendency in its true proportions and estimate
its direction. It is necessary to do so if we value our mental peace in an
age when men's minds are agitated by many petty movements which have
nothing to do with their great temporal interests, to say nothing of their
eternal interests. When we have attained a wide vision of the solid
biological facts of life, when we have grasped the great historical
streams of tradition,--which together make up the map of human
affairs,--we can face serenely the little social transitions which take
place in our own age, as they have taken place in every age.


FOOTNOTES:

[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] See _ante_, p. 395.

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

[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. 70 et 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 the _mund_ or protectorship
over the girl. It is true the distinction may not always have been clear
to those who took part in the transaction. Similarly the Anglo-Saxon
betrothal was not so much a payment of the bride's price to her kinsmen,
although as a matter of fact, they might make a profit out of the
transaction, as a covenant stipulating for the bride's honorable treatment
as wife and widow. Reminiscences of this, remark Pollock and Maitland (op.
cit., vol. ii, p. 364), may be found in "that curious cabinet of
antiquities, the marriage ritual of the English Church."

[322] Howard, op. cit., vol. i, pp. 278-281, 386. The _Arrha_ crept 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 good _materfamilias_ must 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. 293 et seq.; Esmein, _op. cit._, vol.
i, pp. 25 et seq.; Smith and Cheetham, _Dictionary of Christian
Antiquities_ art. "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 between
_sponsalia de præsenti_ and _de futuro_."

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

[333] Howard, op. cit., vol. ii, pp. 61 et 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.
447 et 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