We cannot fail to realize as we grasp the nature and direction of the modern movement of divorce that the final tendency of that movement is to efface itself. Necessary as the Divorce Court has been as the inevitable corollary of an impossible ecclesiastical conception of marriage, no institution is now more hideous, more alien to the instinctive feelings generated by a fine civilization, and more opposed to the dignity of womanhood.[355] Its disappearance and its substitution by private arrangements, effected on their contractive sides, especially if there are children to provide for, under legal and if necessary judicial supervision, is, and always has been, the natural result of the attainment of a reasonably high stage of civilization. The Divorce Court has merely been a phase in the history of modern marriage, and a phase that has really been repugnant to all concerned in it. There is no need to view the project of its ultimate disappearance with anything but satisfaction. It was merely the outcome of an artificial conception of marriage. It is time to return to the consideration of that conception.
We have seen that when the Catholic development of the archaic conception of marriage as a sacrament, slowly elaborated and fossilized by the ingenuity of the Canonists, was at last nominally dethroned, though not destroyed, by the movement associated with the Reformation, it was replaced by the conception of marriage as a contract. This conception of marriage as a contract still enjoys a considerable amount of credit amongst us.
There must always be contractive elements, implicit or explicit, in a marriage; that was well recognized even by the Canonists. But when we treat marriage as all contract, and nothing but contract, we have to realize that we have set up a very peculiar form of contract, not voidable, like other contracts, by the agreement of the parties to it, but dissoluble as a sort of punishment of delinquency rather than by the voluntary annulment of a bond.[356] When the Protestant Reformers seized on the idea of marriage as a contract they were not influenced by any reasoned analysis of the special characteristics of a contract; they were merely anxious to secure a plausible ground, already admitted even by the Canonists to cover certain aspects of the matrimonial union, on which they could declare that marriage is a secular and not an ecclesiastical matter, a civil bond and not a sacramental process.[357] Like so much else in the Protestant revolt, the strength of this attitude lay in the fact that it was a protest, based on its negative side on reasonable and natural grounds. But while Protestantism was right in its attempt--for it was only an attempt--to deny the authority of Canon law, that attempt was altogether unsatisfactory on the positive side. As a matter of fact marriage is not a true contract and no attempt has ever been made to convert it into a true contract.
Various writers have treated marriage as an actual contract or argued that it ought to be converted into a true contract. Mrs. Mona Caird, for instance ("The Morality of Marriage," _Fortnightly Review_, 1890), believes that when marriage becomes really a contract "a couple would draw up their agreement, or depute the task to their friends, as is now generally done as regards marriage settlements. They agree to live together on such and such terms, making certain stipulations within the limits of the code." The State, she holds, should, however, demand an interval of time between notice of divorce and the divorce itself, if still desired when that interval has passed. Similarly, in the United States Dr. Shufeldt ("Needed Revision of the Laws of Marriage and Divorce," _Medico-Legal Journal_, Dec., 1897) insists that marriage must be entirely put into the hands of the legal profession and "made a civil contract, explicit in detail, and defining terms of divorce, in the event that a dissolution of the contract is subsequently desired." He adds that medical certificates of freedom from hereditary and acquired disease should be required, and properly regulated probationary marriages also be instituted.
In France, a deputy of the Chamber was, in 1891, so convinced that marriage is a contract, like any other contract, that he declared that "to perform music at the celebration of a marriage is as ridiculous as it would be to send for a tenor to a notary's to celebrate a sale of timber." He was of quite different mind from Pepys, who, a couple of centuries earlier, had been equally indignant at the absence of music from a wedding, which, he said, made it like a coupling of dog and bitch.
A frequent demand of those who insist that marriage must be regarded as a contract is marriage contracted for a term of years. Marriages could be contracted for a term of five years or less in old Japan, and it is said that they were rarely or never dissolved at the end of the term. Goethe, in his _Wahlverwandtschaften_ (Part I, Ch. X) incidentally introduced a proposal for marriages for a term of five years and attached much moral significance to the prolongation of the marriage beyond that term without external compulsion. (Bloch considers that Goethe had probably heard of the Japanese custom, _Sexual Life of Our Time_, p. 241.) Professor E.D. Cope ("The Marriage Problem," _Open Court_, Nov. 15 and 22, 1888), likewise, in order to remove matrimony from the domain of caprice and to permit full and fair trial, advocated "a system of civil marriage contracts which shall run for a definite time. These contracts should be of the same value and effect as the existing marriage contract. The time limits should be increased rapidly, so as to prevent women of mature years being deprived of support. The first contract ought not to run for less than five years, so as to give ample opportunity for acquaintance, and for the recovery from temporary disagreements." This first contract, Cope held, should be terminable at the wish of either party; the second contract, for ten or fifteen years, should only be terminable at the wish of both parties, and the third should be permanent and indissoluble. George Meredith, the distinguished novelist, also, more recently, threw out the suggestion that marriages should be contracted for a term of years.
It can scarcely be said that marriages for a term of years constitute a very satisfactory solution of the difficulties at present encountered. They would not commend themselves to young lovers, who believe that their love is eternal, nor, so long as the union proves satisfactory, is there any need to introduce the disturbing idea of a legal termination of the contract. On the other hand, if the union proves unhappy, it is not reasonable to insist on the continuation for ten or even five years of an empty form which corresponds to no real marriage union. Even if marriage is placed on the most prosaic contractive basis it is a mistake, and indeed an impossibility, to pre-ordain the length of its duration. The system of fixing the duration of marriage beforehand for a term of years involves exactly the same principle as the system of fixing it beforehand for life. It is open to the same objection that it is incompatible with any vital relationship. As the demand for vital reality and effectiveness in social relationships grows, this fact is increasingly felt. We see exactly the same change among us in regard to the system of inflicting fixed sentences of imprisonment on criminals. To send a man to prison for five years or for life, without any regard to the unknown problem of the vital reaction of imprisonment on the man--a reaction which will be different in every individual case--is slowly coming to be regarded as an absurdity.
If marriage were really placed on the basis of a contract, not only would that contract be voidable at the will of the two parties concerned, without any question of delinquency coming into the question, but those parties would at the outset themselves determine the conditions regulating the contract. But nothing could be more unlike our actual marriage. The two parties are bidden to accept each other as husband and wife; they are not invited to make a contract; they are not even told that, little as they may know it, they have in fact made a very complicated and elaborate contract that was framed on lines laid down, for a large part, thousands of years before they were born. Unless they have studied law they are totally ignorant, also, that this contract contains clauses which under some circumstances may be fatal to either of them. All that happens is that a young couple, perhaps little more than children, momentarily dazed by emotion, are hurried before the clergyman or the civil registrar of marriages, to bind themselves together for life, knowing nothing of the world and scarcely more of each other, knowing nothing also of the marriage laws, not even perhaps so much as that there are any marriage laws, never realizing that--as has been truly said--from the place they are entering beneath a garland of flowers there is, on this side of death, no exit except through the trapdoor of a sewer.[358] When a woman marries she gives up the right to her own person. Thus, according to the law of England, a man "cannot be guilty of a rape upon his lawful wife." Stephen, who, in the first edition of his _Digest of Criminal Law_, thought that under some circumstances a man might be indicted for rape upon his wife, in the last edition withdrew that opinion. A man may rape a prostitute, but he cannot rape his wife. Having once given her consent to sexual intercourse by the act of marrying a man, she has given it forever, whatever new circumstances may arise, and he has no need to ask her consent to sexual intercourse, not even if he is knowingly suffering at the time from a venereal disease (see, e.g., an article on "Sex Bias," _Westminster Review_, March, 1888).
The duty of the wife to allow "conjugal rights" to her husband is another aspect of her legal subjection to him. Even in the nineteenth century a Suffolk lady of good family was imprisoned in Ipswich Goal for many years and fed on bread and water, though suffering from various diseases, till she died, simply because she continued to disregard the decree requiring her to render conjugal rights to her husband. This state of things was partly reformed by the Matrimonial Causes Bill of 1884, and that bill was passed, not to protect women, but men, against punishment for refusal to restore conjugal rights. Undoubtedly, the modern tendency, although it has progressed very slowly, is against applying compulsion to either husband or wife to yield "conjugal rights;" and since the Jackson case it is not possible in England for a husband to use force in attempting to compel his wife to live with him. This tendency is still more marked in the United States; thus the Iowa Supreme Court, a few years ago, decided that excessive demands for coitus constituted cruelty of a degree justifying divorce (J.G. Kiernan, _Alienist and Neurologist_, Nov. 1906, p. 466).
The slender tenure of the wife over her person is not confined to the sexual sphere, but even extends to her right to life. In England, if a wife kills her husband, it was formerly the very serious offence of "petit treason," and it is still murder. But, if a husband kills his wife and is able to plead her adultery and his jealousy, it is only manslaughter. (In France, where jealousy is regarded with extreme indulgence, even a wife who kills her husband is often acquitted.)
It must not, however, be supposed that all the legal inequalities involved by marriage are in favor of the husband. A large number of injustices are also inflicted on the husband. The husband, for instance, is legally responsible for the libels uttered by his wife, and he is equally responsible civilly for the frauds she commits, even if she is living apart from him. (This was, for instance, held by an English judge in 1908; "he could only say he regretted it, for it seems a hard case. But it was the law.") Belfort Bax has, in recent years, especially insisted on the hardships inflicted by English law in such ways as these. There can be no doubt that marriage, as at present constituted, inflicts serious wrongs on the husband as well as on the wife.
Marriage is, therefore, not only not a contract in the true sense,[359] but in the only sense in which it is a contract it is a contract of an exceedingly bad kind. When the Canonists superseded the old conception of marriage as a contract of purchase by their sacramental marriage, they were in many respects effecting a real progress, and the return to the idea of a contract, as soon as its temporary value as a protest has ceased, proves altogether out of harmony with any advanced stage of civilization. It was revived in days before the revolt against slavery had been inaugurated. Personal contracts are out of harmony with our modern civilization and our ideas of individual liberty. A man can no longer contract himself as a slave nor sell his wife. Yet marriage, regarded as a contract, is of precisely the same class as those transactions.[360] In every high stage of civilization this fact is clearly recognized, and young couples are not even allowed to contract themselves out in marriage unconditionally. We see this, for instance, in the wise legislation of the Romans. Even under the Christian Emperors that sound principle was maintained and the lawyer Paulus wrote:[361] "Marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity." In so far as the essence and not any accidental circumstance of the marital relationships is made a contract, it is a contract of a nature which the two parties concerned are not competent to make. Biologically and psychologically it cannot be valid, and with the growth of a humane civilization it is explicitly declared to be legally invalid.
For, there can be no doubt about it, the intimate and essential fact of marriage--the relationship of sexual intercourse--is not and cannot be a contract. It is not a contract but a fact; it cannot be effected by any mere act of will on the part of the parties concerned; it cannot be maintained by any mere act of will. To will such a contract is merely to perform a worse than indecorous farce. Certainly many of the circumstances of marriage are properly the subject of contract, to be voluntarily and deliberately made by the parties to the contract. But the essential fact of marriage--a love strong enough to render the most intimate of relationships possible and desirable through an indefinite number of years--cannot be made a matter for contract. Alike from the physical point of view, and the psychical point of view, no binding contract--and a contract is worthless if it is not binding--can possibly be made. And the making of such pseudo-contracts concerning the future of a marriage, before it has even been ascertained that the marriage can ever become a fact at all, is not only impossible but absurd.
It is of course true that this impossibility, this absurdity, are never visible to the contracting parties. They have applied to the question all the very restricted tests that are conventionally permitted to them, and the satisfactory results of these tests, together with the consciousness of possessing an immense and apparently inexhaustible fund of loving emotion, seem to them adequate to the fulfilment of the contract throughout life, if not indeed eternity.
As a child of seven I chanced to be in a semi-tropical island of the Pacific supplied with fruit, especially grapes, from the mainland, and a dusky market woman always presented a large bunch of grapes to the little English stranger. But a day came when the proffered bunch was firmly refused; the superabundance of grapes had produced a reaction of disgust. A space of nearly forty years was needed to overcome the repugnance to grapes thus acquired. Yet there can be no doubt that if at the age of six that little boy had been asked to sign a contract binding him to accept grapes every day, to keep them always near him, to eat them and to enjoy them every day, he would have signed that contract as joyously as any radiant bridegroom or demure bride signs the register in the vestry. But is a complex man or woman, with unknown capacities for changing or deteriorating, and with incalculable aptitudes for inflicting torture and arousing loathing, is such a creature more easy to be bound to than an exquisite fruit? All the countries of the world in which the subtle influence of the Canon law of Christendom still makes itself felt, have not yet grasped a general truth which is well within the practical experience of a child of seven.[362] The notion that such a relationship as that of marriage can rest on so fragile a basis as a pre-ordained contract has naturally never prevailed widely in its extreme form, and has been unknown altogether in many parts of the world. The Romans, as we know, explicitly rejected it, and even at a comparatively early period recognized the legality of marriage by _usus_, thus declaring in effect that marriage must be a fact, and not a mere undertaking. There has been a widespread legal tendency, especially where the traditions of Roman law have retained any influence, to regard the cohabitation of marriage as the essential fact of the relationship. It was an old rule even under the Catholic Church that marriage may be presumed from cohabitation (see, e.g., Zacchia, _Questionum Medico-legalium Opus_, edition of 1688, vol. iii, p. 234). Even in England cohabitation is already one of the presumptions in favor of the existence of marriage (though not necessarily by itself regarded as sufficient), provided the woman is of unblemished character, and does not appear to be a common prostitute (Nevill Geary, _The Law of Marriage_, Ch. III). If, however, according to Lord Watson's judicial statement in the Dysart Peerage case, a man takes his mistress to a hotel or goes with her to a baby-linen shop and speaks of her as his wife, it is to be presumed that he is acting for the sake of decency, and this furnishes no evidence of marriage. In Scotland the presumption of marriage arises on much slighter grounds than in England. This may be connected with the ancient and deep-rooted custom in Scotland of marriage by exchange of consent (Geary, op. cit. Ch. XVIII; cf., Howard, _Matrimonial Institutions_, vol. i, p. 316).
In the Bredalbane case (Campbell _v._ Campbell, 1867), which was of great importance because it involved the succession to the vast estates of the Marquis of Bredalbane, the House of Lords decided than even an adulterous connection may, on ceasing to be adulterous, become matrimonial by the simple consent of the parties, as evidenced by habit and repute, without any need for the matrimonial character of the connection to be indicated by any public act, nor any necessity to prove the specific period when the consent was interchanged. This decision has been confirmed in the Dysart case (Geary, loc. cit.; cf. C.G. Garrison, "Limits of Divorce," _Contemporary Review_, Feb., 1894). Similarly, as decided by Justice Kekewich in the Wagstaff case in 1907, if a man leaves money to his "widow," on condition that she never marries again, although he has never been married to her, and though she has been legally married to another man, the testator's intentions must be upheld. Garrison, in his valuable discussion of this aspect of legal marriage (_loc. cit._), forcibly insists that by English law marriage is a fact and not a contract, and that where "conduct characterized by connubial purpose and constancy" exists, there marriage legally exists, marriage being simply "a name for an existing fact."
In the United States, marriage "by habit and repute" similarly exists, and in some States has even been confirmed and extended by statute (J.P. Bishop, _Commentaries_, vol. i, Ch. XV). "Whatever the form of the ceremony, and even if all ceremony was dispensed with," said Judge Cooley, of Michigan, in 1875 (in an opinion accepted as authoritative by the Federal courts), "if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient...This has been the settled doctrine of the American courts." (Howard, op. cit., vol. iii, pp. 177 et seq. Twenty-three States sanction common-law marriage, while eighteen repudiate, or are inclined to repudiate, any informal agreement.)
This legal recognition by the highest judicial authorities, alike in Great Britain and the United States, that marriage is essentially a fact, and that no evidence of any form or ceremony of marriage is required for the most complete legal recognition of marriage, undoubtedly carries with it highly important implications. It became clear that the reform of marriage is possible even without change in the law, and that honorable sexual relationships, even when entered into without any legal forms, are already entitled to full legal recognition and protection. There are, however, it need scarcely be added here, other considerations which render reform along these lines incomplete.
It thus tends to come about that with the growth of civilization the conception of marriage as a contract falls more and more into discredit. It is realized, on the one hand, that personal contracts are out of harmony with our general and social attitude, for if we reject the idea of a human being contracting himself as a slave, how much more we should reject the idea of entering by contract into the still more intimate relationship of a husband or a wife; on the other hand it is felt that the idea of pre-ordained contracts on a matter over which the individual himself has no control is quite unreal and when any strict rules of equity prevail, necessarily invalid. It is true that we still constantly find writers sententiously asserting their notions of the duties or the privileges involved by the "contract" of marriage, with no more attempt to analyze the meaning of the term "contract" in this connection than the Protestant Reformers made, but it can scarcely be said that these writers have yet reached the alphabet of the subject they dogmatize about.
The transference of marriage from the Church to the State which, in the lands where it first occurred, we owe to Protestantism and, in the English-speaking lands, especially to Puritanism, while a necessary stage, had the unfortunate result of secularizing the sexual relationships. That is to say, it ignored the transcendent element in love which is really the essential part of such relationships, and it concentrated attention on those formal and accidental parts of marriage which can alone be dealt with in a rigid and precise manner, and can alone properly form the subject of contracts. The Canon law, fantastic and impossible as it became in many of its developments, at least insisted on the natural and actual fact of marriage as, above all, a bodily union, while, at the same time, it regarded that union as no mere secular business contract but a sacred and exalted function, a divine fact, and the symbol of the most divine fact in the world. We are returning to-day to the Canonist's conception of marriage on a higher and freer plane, bringing back the exalted conception of the Canon law, yet retaining the individualism which the Puritan wrongly thought he could secure on the basis of mere secularization, while, further, we recognize that the whole process belongs to the private sphere of moral responsibility. As Hobhouse has well said, in tracing the evolutionary history of the modern conception of marriage, the sacramental idea of marriage has again emerged but on a higher plane; "from being a sacrament in the magical, it has become one in the ethical, sense." We are thus tending towards, though we have not yet legally achieved, marriage made and maintained by consent, "a union between two free and responsible persons in which the equal rights of both are maintained."[363] It is supposed by some that to look upon sexual union as a sacrament is necessarily to accept the ancient Catholic view, embodied in the Canon law, that matrimony is indissoluble. That is, however, a mistake. Even the Canonists themselves were never able to put forward any coherent and consistent ground for the indissolubility of matrimony which could commend itself rationally, while Luther and Milton and Wilhelm von Humboldt, who maintained the religious and sacred nature of sexual union--though they were cautious about using the term sacrament on account of its ecclesiastical implications--so far from believing that its sanctity involved indissolubility, argued in the reverse sense. This point of view may be defended even from a strictly Protestant standpoint. "I take it," Mr. G.C. Maberly says, "that the Prayer Book definition of a sacrament, 'the outward and visible sign of an inward and spiritual grace,' is generally accepted. In marriage the legal and physical unions are the outward and visible signs, while the inward and spiritual grace is the God-given love that makes the union of heart and soul: and it is precisely because I take this view of marriage that I consider the legal and physical union should be dissolved whenever the spiritual union of unselfish, divine love and affection has ceased. It seems to me that the sacramental view of marriage compels us to say that those who continue the legal or physical union when the spiritual union has ceased, are--to quote again from the Prayer Book words applied to those who take the outward sign of another sacrament when the inward and spiritual grace is not present--'eating and drinking their own damnation.'"
If from the point we have now reached we look back at the question of divorce we see that, as the modern aspects of the marriage relationship becomes more clearly realized by the community, that question will be immensely simplified. Since marriage is not a mere contract but a fact of conduct, and even a sacred fact, the free participation of both parties is needed to maintain it. To introduce the idea of delinquency and punishment into divorce, to foster mutual recrimination, to publish to the world the secrets of the heart or the senses, is not only immoral, it is altogether out of place. In the question as to when a marriage has ceased to be a marriage the two parties concerned can alone be the supreme judges; the State, if the State is called in, can but register the sentence they pronounce, merely seeing to it that no injustice is involved in the carrying out of that sentence.[364] In discussing in the previous chapter the direction in which sexual morality tends to develop with the development of civilization we came to the conclusion that in its main lines it involved, above all, personal responsibility. A relationship fixed among savage peoples by social custom which none dare break, and in a higher stage of culture by formal laws which must be observed in the letter even if broken in the spirit, becomes gradually transferred to the sphere of individual moral responsibility. Such a transference is necessarily meaningless, and indeed impossible, unless the increasing stringency of the moral bond is accompanied by the decreasing stringency of the formal bond. It is only by the process of loosening the artificial restraints that the natural restraints can exert their full control. That process takes place in two ways, in part on the basis of the indifference to formal marriage which has marked the masses of the population everywhere and doubtless stretches back to the tenth century before the domination of ecclesiastical matrimony began, and partly by the progressive modification of marriage laws which were made necessary by the needs of the propertied classes anxious to secure the State recognition of their unions. The whole process is necessarily a gradual and indeed imperceptible process. It is impossible to fix definitely the dates of the stages by which the Church effected the