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 partic.i.p.ation 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 p.r.o.nounce, 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 s.e.xual 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 ma.s.ses 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 cla.s.ses 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 immense revolution by which it grasped, and eventually transferred to the State, the complete control of marriage, for that revolution was effected without the intervention of any law. It will be equally difficult to perceive the transference of the control of marriage from the State to the individuals concerned, and the more difficult because, as we shall see, although the essential and intimately personal fact of marriage is not a proper matter for State control, there are certain aspects of marriage which touch the interests of the community so closely that the State is bound to insist on their registration and to take an interest in their settlement.
The result of dissolving the formal stringency of the marriage relationship, it is sometimes said, would be a tendency to an immoral laxity. Those who make this statement overlook the fact that laxity tends to reach a maximum as a result of stringency, and that where the merely external authority of a rigid marriage law prevails, there the extreme excesses of license most flourish. It is also undoubtedly true, and for the same reason, that any sudden removal of restraints necessarily involves a reaction to the opposite extreme of license; a slave is not changed at a stroke into an autonomous freeman. Yet we have to remember that the marriage order existed for millenniums before any attempt was made to mould it into arbitrary shapes by human legislation. Such legislation, we have seen, was indeed the effort of the human spirit to affirm more emphatically the demands of its own instincts.[365] But its final result is to choke and impede rather than to further the instincts which inspired it. Its gradual disappearance allows the natural order free and proper scope.
The great truth that compulsion is not really a force on the side of virtue, but on the side of vice, had been clearly realized by the genius of Rabelais, when he said of his ideal social state, the Abbey of Thelema, that there was but one clause in its rule: Fay ce que vouldras. "Because," said Rabelais (Bk. i, Ch. VII), "men that are free, well-born, well-bred, and conversant in honest companies, have naturally an instinct and spur that prompts them unto virtuous actions and withdraws them from vice. These same men, when by base subjection and constraint they are brought under and kept down, turn aside from that n.o.ble disposition by which they freely were inclined to virtue, to shake off and break that bond of servitude." So that when a man and a woman who had lived under the rule of Thelema married each other, Rabelais tells us, their mutual love lasted undiminished to the day of their death.
When the loss of autonomous freedom fails to lead to licentious rebellion it incurs the opposite risk and tends to become a flabby reliance on an external support. The artificial support of marriage by State regulation then resembles the artificial support of the body furnished by corset-wearing. The reasons for and against adopting artificial support are the same in one case as the other. Corsets really give a feeling of support; they really furnish without trouble a fairly satisfactory appearance of decorum; they are a real protection against various accidents. But the price at which they furnish these advantages is serious, and the advantages themselves only exist under unnatural conditions. The corset cramps the form and the healthy development of the organs; it enfeebles the voluntary muscular system; it is incompatible with perfect grace and beauty; it diminishes the sum of active energy. It exerts, in short, the same kind of influence on physical responsibility as formal marriage on moral responsibility.
It is too often forgotten, and must therefore be repeated, that married people do not remain together because of any religious or legal tie; that tie is merely the historical outcome of their natural tendency to remain together, a tendency which is itself far older than history. "Love would exist in the world to-day, just as pure and just as enduring," says Shufeldt (Medico-Legal Journal, Dec., 1897), "had man never invented "marriage." Truly affined mates would have remained faithful to each other as long as life lasted. It is only when men attempt to improve upon nature that crime, disease, and unhappiness step in." "The abolition of marriage in the form now practiced," wrote G.o.dwin more than a century ago (Political Justice, second edition, 1796, vol. i, p. 248), "will be attended with no evils. We are apt to represent it to ourselves as the harbinger of brutal l.u.s.t and depravity. But it really happens in this, as in other cases, that the positive laws which are made to restrain our vices irritate and multiply them." And Professor Lester Ward, in insisting on the strength of the monogamic sentiment in modern society, truly remarks (International Journal of Ethics, Oct., 1896) that the rebellion against rigid marriage bonds "is, in reality, due to the very strengthening of the true bonds of conjugal affection, coupled with a rational and altogether proper determination on the part of individuals to accept, in so important a matter, nothing less than the genuine article." "If by a single stroke," says Professor Woods Hutchinson (Contemporary Review, Sept., 1905), "all marriage ties now in existence were struck off or declared illegal, eight-tenths of all couples would be remarried within forty eight hours, and seven-tenths could not be kept asunder with bayonets." An experiment of this kind on a small scale was witnessed in 1909 in an English village in Buckinghamshire. It was found that the parish church had never been licensed for marriages, and that in consequence all the people who had gone through the ceremony of marriage in that church during the previous half century had never been legally married. Yet, so far as could be ascertained, not a single couple thus released from the legal compulsion of marriage took advantage of the freedom bestowed. In the face of such a fact it is obviously impossible to attach any moral value to the form of marriage.
It is certainly inevitable that during a period of transition the natural order is to some extent disturbed by the persistence, even though in a weakened form, of external bonds which are beginning to be consciously realized as inimical to the authoritative control of individual moral responsibility. We can clearly trace this at the present time. A sensitive anxiety to escape from external constraint induces an under-valuation of the significance of personal constraint in the relationship of marriage. Everyone is probably familiar with cases in which a couple will live together through long years without entering the legal bond of marriage, notwithstanding difficulties in their mutual relationship which would have long since caused a separation or a divorce had they been legally married. When the inherent difficulties of the marital relationship are complicated by the difficulties due to external constraint, the development of individual moral responsibility cuts two ways, and leads to results that are not entirely satisfactory. This has been seen in the United States of America and attention has often been called to it by thoughtful American observers. It is, naturally, noted especially in women because it is in women that the new growth of personal freedom and moral responsibility has chiefly made itself felt. The first stirring of these new impulses, especially when a.s.sociated, as it often is, with inexperience and ignorance, leads to impatience with the natural order, to a demand for impossible conditions of existence, and to an inapt.i.tude not only for the arbitrary bondage of law but even for the wholesome and necessary bonds of human social life. It is always a hard lesson for the young and idealistic that in order to command Nature we must obey her; it can only be learnt through contact with life and by the attainment of full human growth.
Dr. Felix Adler (in an address before the Society of Ethical Culture of New York, Nov. 17, 1889) called attention to what he regarded as the most deep-rooted cause of an undue prevalence of divorce in America. "The false idea of individual liberty is largely held in America," and when applied to family life it often leads to an impatience with these duties which the individual is either born into or has voluntarily accepted. "I am constrained to think that the prevalence of divorce is to be ascribed in no small degree to the influence of democratic ideas-that is, of false democratic ideas-and our hope lies in advancing towards a higher and truer democracy." A more recent American writer, this time a woman, Anna A. Rogers ("Why American Marriages Fail," Atlantic Monthly, Sept., 1907) speaks in the same sense, though perhaps in too unqualified a manner. She states that the frequency of divorce in America is due to three causes: (1) woman"s failure to realize that marriage is her work in the world; (2) her growing individualism; (3) her lost art of giving, replaced by a highly developed receptive faculty. The American woman, this writer states, in discovering her own individuality has not yet learnt how to manage it; it is still "largely a useless, uneasy factor, vouchsafing her very little more peace than it does those in her immediate surcharged vicinity." Her circ.u.mstances tend to make of her "a curious anomalous hybrid; a cross between a magnificent, rather unmannerly boy, and a spoiled, exacting demi-mondaine, who sincerely loves in this world herself alone." She has not yet learnt that woman"s supreme work in the world can only be attained through the voluntary acceptance of the restraints of marriage. The same writer points out that the fault is not alone with American women, but also with American men. Their idolatry of their women is largely responsible for that intolerance and selfishness which causes so many divorces; "American women are, as a whole, pampered and worshipped out of all reason." But the men, who lend themselves to this, do not feel that they can treat their wives with the same comradeship as the French treat their wives, nor seek their advice with the same reliance; the American woman is placed on an unreal pedestal. Yet another American writer, Rafford Pyke ("Husbands and Wives," Cosmopolitan, 1902), points out that only a small proportion of American marriages are really unhappy, these being chiefly among the more cultured cla.s.ses, in which the movement of expansion in women"s interests and lives is taking place; it is more often the wife than the husband who is disappointed in marriage, and this is largely due to her inability to merge, not necessarily subordinate, her individuality in an equal union with his. "Marriage to-day is becoming more and more dependent for its success upon the adjustment of conditions that are psychical. Whereas in former generations it was sufficient that the union should involve physical reciprocity, in this age of ours the union must involve a psychic reciprocity as well. And whereas, heretofore, the community of interest was attained with ease, it is now becoming far more difficult because of the tendency to discourage a woman who marries from merging her separate individuality in her husband"s. Yet, unless she does this, how can she have a complete and perfect interest in the life together, and, for that matter, how can he have such an interest either?"
Professor Munsterberg, the distinguished psychologist, in his frank but appreciative study of American inst.i.tutions, The Americans, taking a broader outlook, points out that the influence of women on morals in America has not been in every respect satisfactory, in so far as it has tended to encourage shallowness and superficiality. "The American woman who has scarcely a shred of education," he remarks (p. 587), "looks in vain for any subject on which she has not firm convictions already at hand.... The arrogance of this feminine lack of knowledge is the symptom of a profound trait in the feminine soul, and points to dangers springing from the domination of women in the intellectual life.... And in no other civilized land are ethical conceptions so worm-eaten by superst.i.tions."
We have seen that the modern tendency as regards marriage is towards its recognition as a voluntary union entered into by two free, equal, and morally responsible persons, and that that union is rather of the nature of an ethical sacrament than of a contract, so that in its essence as a physical and spiritual bond it is outside the sphere of the State"s action. It has been necessary to labor that point before we approach what may seem to many not only a different but even a totally opposed aspect of marriage. If the marriage union itself cannot be a matter for contract, it naturally leads to a fact which must necessarily be a matter for implicit or explicit contract, a matter, moreover, in which the community at large has a real and proper interest: that is the fact of procreation.[366]
The ancient Egyptians-among whom matrimonial inst.i.tutions were so elastic and the position of woman so high-recognized a provisional and slight marriage bond for the purpose of testing fecundity.[367] Among ourselves the law makes no such paternal provision, leaving to young couples themselves the responsibility of making any tests, a permission, we know, they largely avail themselves of, usually entering the legal bonds of marriage, however, before the birth of their child. That legal bond is a recognition that the introduction of a new individual into the community is not, like s.e.xual union, a mere personal fact, but a social fact, a fact in which the State cannot fail to be concerned. And the more we investigate the tendency of the modern marriage movement the more we shall realize that its att.i.tude of freedom, of individual moral responsibility, in the formation of s.e.xual relationships, is compensated by an att.i.tude of stringency, of strict social oversight, in the matter of procreation. Two people who form an erotic relationship are bound, when they reach the conviction that their relationship is a real marriage, having its natural end in procreation, to subscribe to a contract which, though it may leave themselves personally free, must yet bind them both to their duties towards their children.[368]
The necessity for such an undertaking is double, even apart from the fact that it is in the highest interests of the parents themselves. It is required in the interests of the child. It is required in the interests of the State. A child can be bred, and well-bred, by one effective parent. But to equip a child adequately for its entrance into life both parents are usually needed. The State on its side-that is to say, the community of which parents and child alike form part-is bound to know who these persons are who have become sponsors for a new individual now introduced into its midst. The most Individualistic State, the most Socialistic State, are alike bound, if faithful to the interests, both biological and economic, of their const.i.tuent members generally, to insist on the full legal and recognized parentage of the father and mother of every child. That is clearly demanded in the interests of the child; it is clearly demanded also in the interests of the State.
The barrier which in Christendom has opposed itself to the natural recognition of this fact, so injuring alike the child and the State, has clearly been the rigidity of the marriage system, more especially as moulded by the Canon law. The Canonists attributed a truly immense importance to the copula carnalis, as they technically termed it. They centred marriage strictly in the v.a.g.i.n.a; they were not greatly concerned about either the presence or the absence of the child. The v.a.g.i.n.a, as we know, has not always proved a very firm centre for the support of marriage, and that centre is now being gradually transferred to the child. If we turn from the Canonists to the writings of a modern like Ellen Key, who so accurately represents much that is most characteristic and essential in the late tendencies of marriage development, we seem to have entered a new world, even a newly illuminated world. For "in the new s.e.xual morality, as in Corregio"s Notte, the light emanates from the child."[369]
No doubt this change is largely a matter of sentiment, of, as we sometimes say, mere sentiment, although there is nothing so powerful in human affairs as sentiment, and the revolution effected by Jesus, the later revolution effected by Rousseau, were mainly revolutions in sentiment. But the change is also a matter of the growing recognition of interests and rights, and as such it manifests itself in law. We can scarcely doubt that we are approaching a time when it will be generally understood that the entrance into the world of every child, without exception, should be preceded by the formation of a marriage contract which, while in no way binding the father and mother to any duties, or any privileges, towards each other, binds them both towards their child and at the same time ensures their responsibility towards the State. It is impossible for the State to obtain more than this, but it should be impossible for it to demand less. A contract of such a kind "marries" the father and mother so far as the parentage of the individual child is concerned, and in no other respect; it is a contract which leaves entirely unaffected their past, present, or future relations towards other persons, otherwise it would be impossible to enforce it. In all parts of the world this elementary demand of social morality is slowly beginning to be recognized, and as it affects hundreds of thousands of infants[370] who are yearly branded as "illegitimate" through no act of their own, no one can say that the recognition has come too soon. As yet, indeed, it seems nowhere to be complete.
Most attempts or proposals for the avoidance of illegitimate births are concerned with the legalizing of unions of a less binding degree than the present legal marriage. Such unions would serve to counteract other evils. Thus an English writer, who has devoted much study to s.e.x questions, writes in a private letter: "The best remedy for the licentiousness of celibate men and the mental and physical troubles of continence in woman would be found in a recognized honorable system of free unions and trial-marriages, in which preventive intercourse is practiced until the lovers were old enough to become parents, and possessed of sufficient means to support a family. The prospect of a loveless existence for young men and women of ardent natures is intolerable and as terrible as the prospect of painful illness and death. But I think the old order must change ere long."
In Teutonic countries there is a strongly marked current of feeling in the direction of establishing legal unions of a lower degree than marriage. They exist in Sweden, as also in Norway where by a recent law the illegitimate child is ent.i.tled to the same rights in relation to both parents as the legitimate child, bearing the father"s name and inheriting his property (Die Neue Generation, July, 1909, p. 303). In France the well-known judge, Magnard, so honorably distinguished for his att.i.tude towards cases of infanticide by young mothers, has said: "I heartily wish that alongside the inst.i.tution of marriage as it now exists we had a free union const.i.tuted by simple declaration before a magistrate and conferring almost the same family rights as ordinary marriage." This wish has been widely echoed.
In China, although polygamy in the strict sense cannot properly be said to exist, the interests of the child, the woman, and the State are alike safeguarded by enabling a man to enter into a kind of secondary marriage with the mother of his child. "Thanks to this system," Paul d"Enjoy states (La Revue, Sept., 1905), "which allows the husband to marry the woman he desires, without being prevented by previous and undissolved unions, it is only right to remark that there are no seduced and abandoned girls, except such as no law could save from what is really innate depravity; and that there are no illegitimate children except those whose mothers are unhappily nearer to animals by their senses than to human beings by their reason and dignity."
The new civil code of j.a.pan, which is in many respects so advanced, allows an illegitimate child to be "recognized" by giving notice to the registrar; when a married man so recognizes a child, it appears, the child may be adopted by the wife as her own, though not actually rendered legitimate. This state of things represents a transition stage; it can scarcely be said to recognize the rights of the "recognized" child"s mother. j.a.pan, it may be added, has adopted the principle of the automatic legitimation by marriage of the children born to the couple before marriage.
In Australia, where women possess a larger share than elsewhere in making and administering the laws, some attention is beginning to be given to the rights of illegitimate children. Thus in South Australia, paternity may be proved before birth, and the father (by magistrate"s order) provides lodging for one month before and after birth, as well as nurse, doctor, and clothing, furnishing security that he will do so; after birth, at the magistrate"s decision, he pays a weekly sum for the child"s maintenance. An "illegitimate" mother may also be kept in a public inst.i.tution at the public expense for six months to enable her to become attached to her child.
Such provisions are developed from the widely recognized right of the unmarried woman to claim support for her child from its father. In France, indeed, and in the legal codes which follow the French example, it is not legally permitted to inquire into the paternity of an illegitimate child. Such a law is, needless to say, alike unjust to the mother, to the child, and to the State. In Austria, the law goes to the opposite, though certainly more reasonable, extreme, and permits even the mother who has had several lovers to select for herself which she chooses to make responsible for her child. The German code adopts an intermediate course, and comes only to the aid of the unmarried mother who has one lover. In all such cases, however, the aid given is pecuniary only; it insures the mother no recognition or respect, and (as Wahrmund has truly said in his Ehe und Eherecht) it is still necessary to insist on "the unconditional sanct.i.ty of motherhood, which is ent.i.tled, under whatever circ.u.mstances it arises, to the respect and protection of society."
It must be added that, from the social point of view, it is not the s.e.xual union which requires legal recognition, but the child which is the product of that union. It would, moreover, be hopeless to attempt to legalize all s.e.xual connection, but it is comparatively easy to legalize all children.
There has been much discussion in the past concerning the particular form which marriage ought to take. Many theorists have exercised their ingenuity in inventing and preaching new and unusual marriage-arrangements as panaceas for social ills; while others have exerted even greater energy in denouncing all such proposals as subversive of the foundations of human society. We may regard all such discussions, on the one side or the other, as idle.
In the first place marriage customs are far too fundamental, far too intimately blended with the primary substance of human and indeed animal society, to be in the slightest degree shaken by the theories or the practices of mere individuals, or even groups of individuals. Monogamy-the more or less prolonged cohabitation of two individuals of opposite s.e.x-has been the prevailing type of s.e.xual relationship among the higher vertebrates and through the greater part of human history. This is admitted even by those who believe (without any sound evidence) that man has pa.s.sed through a stage of s.e.xual promiscuity. There have been tendencies to variation in one direction or another, but at the lowest stages and the highest stages, so far as can be seen, monogamy represents the prevailing rule.
It must be said also, in the second place, that the natural prevalence of monogamy as the normal type of s.e.xual relationship by no means excludes variations. Indeed it a.s.sumes them. "There is nothing precise in Nature," according to Diderot"s saying. The line of Nature is a curve that oscillates from side to side of the norm. Such oscillations inevitably occur in harmony with changes in environmental conditions, and, no doubt, with peculiarities of personal disposition. So long as no arbitrary and merely external attempt is made to force Nature, the vital order is harmoniously maintained. Among certain species of ducks when males are in excess polyandric families are const.i.tuted, the two males attending their female partner without jealousy, but when the s.e.xes again become equal in number the monogamic order is restored. The natural human deviations from the monogamic order seem to be generally of this character, and largely conditioned by the social and economic environment. The most common variation, and that which most clearly possesses a biological foundation, is the tendency to polygyny, which is found at all stages of culture, even, in an unrecognized and more or less promiscuous shape, in the highest civilization.[371] It must be remembered, however, that recognized polygyny is not the rule even where it prevails; it is merely permissive; there is never a sufficient excess of women to allow more than a few of the richer and more influential persons to have more than one wife.[372]
It has further to be borne in mind that a certain elasticity of the formal side of marriage while, on the one side, it permits variations from the general monogamic order, where such are healthful or needed to restore a balance in natural conditions, on the other hand restrains such variations in so far as they are due to the disturbing influence of artificial constraint. Much of the polygyny, and polyandry also, which prevails among us to-day is an altogether artificial and unnatural form of polygamy. Marriages which on a more natural basis would be dissolved cannot legally be dissolved, and consequently the parties to them, instead of changing their partners and so preserving the natural monogamic order, take on other additional partners and so introduce an unnatural polygamy. There will always be variations from the monogamic order and civilization is certainly not hostile to s.e.xual variation. Whether we reckon these variations as legitimate or illegitimate, they will still take place; of that we may be certain. The path of social wisdom seems to lie on the one hand in making the marriage relationship flexible enough to reduce to a minimum these deviations-not because such deviations are intrinsically bad but because they ought not to be forced into existence-and on the other hand in according to these deviations when they occur such a measure of recognition as will deprive them of injurious influence and enable justice to be done to all the parties concerned. We too often forget that our failure to recognize such variations merely means that we accord in such cases an illegitimate permission to perpetrate injustice. In those parts of the world in which polygyny is recognized as a permissible variation a man is legally held to his natural obligations towards all his s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 circ.u.mstances, 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 (s.e.xual-Probleme, Sept., 1908, p. 538) that just as the civilized man cannot be content with the coa.r.s.e and monotonous food which satisfies the peasant, so it is in s.e.xual matters; the peasant youth and girl in their s.e.xual relationships are nearly always monogamous, but civilized people, with their more versatile and sensitive tastes, are apt to crave for variety. Senancour (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 (s.e.x 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 ill.u.s.trates 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 pa.s.sion for s.e.xual 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 s.e.xual 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 s.e.xual 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, s.e.xual 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 s.e.xual 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 att.i.tude, apart from the supremely important fact that to cast infamy on s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 inst.i.tution, 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, cooperation, and division of labor, while the keen compet.i.tion for women weeds out the weaker and less attractive males.
Among our European ancestors, alike among Germans and Celts, polygyny and other s.e.xual forms existed as occasional variations. Tacitus noted polygyny in Germany, and Caesar 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 a.s.sistant, 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 inst.i.tution (Schrader, Reallexicon, art. "Zeugungshelfer"). The corresponding inst.i.tution 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 Inst.i.tute, 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 Prost.i.tution, 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 ent.i.tled 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 G.o.d, 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 s.e.xual 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 Inst.i.tutione 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, p.r.o.nounces 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, s.e.xual 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 s.e.xual relationships. Thus Luther advised married women with impotent husbands, in cases where there was no wish or opportunity for divorce, to have s.e.xual relations with another man, by preference the husband"s brother; the children were to be reckoned to the husband ("Die s.e.xuelle 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 s.e.xual 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, ent.i.tled 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 G.o.d and loving holiness, to have more women than one to his proper use.... He that takes another man"s ox or a.s.s 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 prost.i.tution 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 prost.i.tution and the evils of s.e.xual 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. Senancour, who was so delicate and sensitive a moralist in the s.e.xual 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 circ.u.mstances, 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 a.s.sociate 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 s.e.xual 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 enn.o.bled form, will become increasingly frequent."
James Hinton, who, a few years earlier, had devoted much thought and attention to the s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual 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 s.e.xual satisfaction, but it has become the problem of harmonizing the enn.o.blement 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 s.e.xualethik, 1908; "Die Postulate des Lebens," s.e.xual-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 s.e.xual 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 s.e.xual 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 prost.i.tution. A rigid marriage order involves prost.i.tution; a flexible marriage order largely-though not, it may be, entirely-renders prost.i.tution 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 cla.s.s, with diminished social rights, such as prost.i.tutes always const.i.tute 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 att.i.tude of the Church, after it had once acquired complete worldly dominance, must be held responsible. In the earlier centuries the att.i.tude 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 d.a.m.nable. The vitality was crushed out of the most central human inst.i.tutions, 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, coordinated it with its already evolved conceptions of the evil of l.u.s.t, of the virtue of chast.i.ty, 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 s.e.xual relationships, but which probably seemed cogent to sacerdotal legislators who a.s.similated 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 a.s.serted 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 s.e.xual 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 s.e.xual 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 v.a.g.i.n.a to the child which is the fruit of the womb. Marriage as a state inst.i.tution will centre, not around the s.e.xual 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 a.s.sumption 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 mediaeval 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.
[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. G.o.dfrey, Science of s.e.x, p. 119.
[314]
E. D. Cope, "The Marriage Problem," Open Court, Nov., 1888.
[315]