this fact is clearly recognized, and young couples are not even allowed to contract themselves out in marriage unconditionally. We see this, for instance, in the wise legislation of the Romans. Even under the Christian Emperors that sound principle was maintained and the lawyer Paulus wrote: "Marriage was so free, according to ancient opinion, that even agreements between the parties not to separate from one another could have no validity." In so far as the essence and not any accidental circumstance of the marital relationships is made a contract, it is a contract of a nature which the two parties concerned are not competent to make. Biologically and psychologically it cannot be valid, and with the growth of a humane civilization it is explicitly declared to be legally invalid.

For, there can be no doubt about it, the intimate and essential fact of marriage—the relationship of sexual intercourse - is not and cannot be a contract. It is not a contract but a fact; it cannot be effected by any mere act of will on the part of the parties concerned; it cannot be maintained by any mere act of will. To will such a contract is merely to perform a worse than indecorous farce. Certainly many of the circumstances of marriage are properly the subject of contract, to be voluntarily and deliberately made by the parties to the contract. But the essential fact of marriage-a love strong enough to render the most intimate of relationships possible and desirable through an indefinite number of years cannot be made a matter for contract. Alike from the physical point of view, and the psychical point of view, no binding contract· and a contract is worthless if it is not binding can possibly be made. And the making of such pseudo-contracts concerning the future of a marriage, before it has even been ascertained that the marriage can ever become a fact at all, is not only impossible but absurd.

It is of course true that this impossibility, this absurdity, is never visible to the contracting parties. They have applied to the question all the very restricted tests that are conventionally permitted to them, and the satisfactory results of these tests, together with the consciousness of possessing an immense and 1 As quoted by Howard, op. cit., Vol. II, p. 29.

apparently inexhaustible fund of loving emotion, seem to them adequate to the fulfillment of the contract throughout life, if not indeed eternity.

As a child of seven I chanced to be in a semitropical island of the Pacific supplied with fruit, especially grapes, from the mainland, and a dusky market woman always presented a large bunch of grapes to the little English stranger. But a day came when the proffered bunch was firmly refused; the superabundance of grapes had produced a reaction of disgust. A space of nearly forty years was needed to overcome the repugnance to grapes thus acquired. Yet there can be no doubt that if at the age of six that little boy had been asked to sign a contract binding him to accept grapes every day, to keep them always near him, to eat them and to enjoy them every day, he would have signed that contract as joyously as any radiant bridegroom or demure bride signs the register in the vestry. But is a complex man or woman, with unknown capacities for changing or deteriorating, and with incalculable aptitudes for inflicting torture and arousing loathing, is such a creature more easy to be bound to than an exquisite fruit? All the countries of the world in which the subtle influence of the Canon law of Christendom still makes itself felt, have not yet grasped a general truth which is well within the practical experience of a child of seven.1

It thus tends to come about that with the growth of civilization the conception of marriage as a contract falls more and more into discredit. It is realized, on the one hand, that personal con- . tracts are out of harmony with our general and social attitude, for if we reject the idea of a human being contracting himself as a slave, how much more we should reject the idea of entering by contract into the still more intimate relationship of a husband or a wife; on the other hand it is felt that the idea of preordained contracts on a matter over which the individual himself has no control is quite unreal and when any strict rules of equity

1 Ellen Key similarly (Ueber Liebe und Ehe, p. 343) remarks that to talk of "the duty of life-long fidelity" is much the same as to talk of "the duty of lifelong health." A man may promise, she adds, to do his best to preserve his life, or his love; he cannot unconditionally undertake to preserve them.

prevail, necessarily invalid. It is true that we still constantly find writers sententiously asserting their notions of the duties or the privileges involved by the "contract" of marriage, with no more attempt to analyze the meaning of the term "contract" in this connection than the Protestant Reformers made, but it can scarcely be said that these writers have yet reached the alphabet of the subject they dogmatize about.

The transference of marriage from the Church to the State which, in the lands where it first occurred, we owe to Protestantism and, in the English-speaking lands, especially to Puritanism, while a necessary stage, had the unfortunate result of secularizing the sexual relationships. That is to say, it ignored the transcendent element in love, which is really the essential part of such relationships, and it concentrated attention on those formal and accidental parts of marriage which can alone be dealt with in a rigid and precise manner, and can alone properly form the subject of contracts. The Canon law, fantastic and impossible as it became in many of its developments, at least insisted on the natural and actual fact of marriage as, above all, a bodily union, while, at the same time, it regarded that union as no mere secular business contract but a sacred and exalted function, a divine fact, and the symbol of the most divine fact in the world. We are returning to-day to the Canonist's conception of marriage on a higher and freer plane, bringing back the exalted conception of the Canon law, yet retaining the individualism which the Puritan wrongly thought he could secure on the basis of mere secularization, while, further, we recognize that the whole process belongs to the private sphere of moral responsibility. As Hobhouse has well said, in tracing the evolutionary history of the modern conception of marriage, the sacramental idea of marriage has again emerged but on a higher plane; "from being a sacrament in the magical, it has become one in the ethical, sense." We are thus tending towards, though we have not yet legally achieved, marriage made and maintained by consent, "a union between two free and responsible persons in which the equal rights of both are maintained.”1

1 Hobhouse, op. cit., Vol. I, pp. 159, 237-239; cf. P. and V. Margueritte, Quelques Idées.

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 become more clearly realized by the community, that question will be immensely simplified. Since marriage is not a mere contract but a fact of conduct, and even a sacred fact, the free participation of both parties is needed to maintain it. To introduce the idea of delinquency and punishment into divorce, to foster mutual recrimination, to publish to the world the secrets of the heart or the senses, is not only immoral, it is altogether out of place. In the question as to when a marriage has ceased to be a marriage the two parties concerned can alone be the supreme judges; the State, if the State is called in, can but register the sentence they pronounce, merely seeing to it that no injustice is involved in the carrying out of that sentence.1

In discussing in the previous chapter 2 the direction in which sexual morality tends to develop with the development of civilization we came to the conclusion that in its main lines it involved, above all, personal responsibility. A relationship fixed among savage peoples by social custom which none dare break, and in a higher stage of culture by formal laws which must be observed in the letter even if broken in the spirit, becomes gradually transferred to the sphere of individual moral responsibility. Such a transference is necessarily meaningless, and indeed impossible, unless the increasing stringency of the moral bond is accompanied by the decreasing stringency of the formal bond. It is only by the process of loosening the artificial restraints that the natural restraints can exert their full control. That process takes place in two ways, in part on the basis of the indifference to formal marriage which has marked the masses of the population everywhere and doubtless stretches back to the tenth century before the domination of ecclesiastical matrimony began, and partly by the progressive modification of marriage laws which were made necessary by the needs of the propertied classes anxious to secure

1 "Divorce," as Garrison puts it ("Limits of Divorce," Contemporary Review, February, 1894), "is the judicial announcement that conduct once connubial in character and purpose, has lost these qualities. Divorce is a question of

fact, and not a license to break a promise."

2 See Sex in Relation to Society, chap. ix.

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 mold 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. 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.

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