[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. Stocker, 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 j.a.pan, 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. x.x.xV. 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, s.e.xual-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 s.e.xual 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, Theologie 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 s.e.xuelle Frage (English translation, abridged, The s.e.xual Question, Rebman, 1908); Bloch, s.e.xualleben unsere Zeit (English translation, The s.e.xual Life of Our Time, Rebman, 1908); Helene Stocker, 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 Prost.i.tution-Marriage on a Reasonable and Humane Basis-Summary and Conclusion.
The discussion in the previous chapter of the nature of s.e.xual 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 s.e.xual 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.
s.e.xual 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 const.i.tuted 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, s.e.xual 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 s.e.xual 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 s.e.xual 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 inst.i.tutions, 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 const.i.tuted as always to a.s.sume 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 circ.u.mstances; 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 Muller, "Saugethierehen," s.e.xual-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 a.s.sume 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 s.e.xual promiscuity. This theory of a primitive promiscuity seems to have been suggested, as J. A. G.o.dfrey has pointed out (Science of s.e.x, p. 112), by the existence in civilized societies of promiscuous prost.i.tution, 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 a.s.sumption that early man continued the s.e.xual habits of the anthropoid apes. It would seem probable, however, that the great forward step involved in pa.s.sing from ape to man was a.s.sociated with a change in s.e.xual 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 s.e.x primitive man could find exercise for the developing intellectual and moral apt.i.tudes, 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 a.s.sociated s.e.xual 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 s.e.xual relationship. As Espinas said many years ago (in his suggestive work, Des Societes 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 inst.i.tutions, early ideas and early religion involved s.e.xual 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 cla.s.s are regarded as the actual, or at all events potential, wives of all the men in another cla.s.s. 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 primae 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"Annee 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 s.e.xual 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 s.e.xual 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 Inst.i.tutions (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 s.e.xes 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. s.e.xual 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 s.e.xual 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 inst.i.tutions 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 b.u.t.tressed monogamy; it is not based on them but on the needs and customs of mankind, and these const.i.tute 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 s.e.x 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 s.e.xual 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. G.o.dfrey remarks (The Science of s.e.x, 1901, p. 278), between natural monogamous marriage and our legal system; "the former is the outward expression of the best that lies in the s.e.xuality of man; the latter is a creation in which religious and moral superst.i.tions 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 s.e.xuelle," 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 s.e.xual 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 s.e.x from the psychological side.
If monogamy is thus firmly based it is unreasonable to fear, or to hope for, any radical modification in the inst.i.tution 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 s.e.xes 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 s.e.xual 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 wh.o.r.e, 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 ("Heirathsbeschrankungen," 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 s.e.xual 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 circ.u.mstances of monogamy that are not essential there always has been, and always must be, perpetual transformation. All traditional inst.i.tutions, 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, a.s.sociated 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 a.s.sociated, 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 const.i.tuted 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 rest.i.tution of conjugal rights was impossible, divorce was a private transaction to which the wife was as fully ent.i.tled 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.