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 Prostitution—Marriage on a Reasonable and Humane Basis—Summary and Conclusion.
The discussion in the previous chapter of the nature of sexual 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 sexual 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.
Sexual 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 constituted 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, sexual 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 sexual 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 sexual 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 institutions, 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 constituted as always to assume 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 circumstances; 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 Müller, "Säugethierehen," Sexual-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 assume 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 sexual promiscuity. This theory of a primitive promiscuity seems to have been suggested, as J. A. Godfrey has pointed out (Science of Sex, p. 112), by the existence in civilized societies of promiscuous prostitution, 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 assumption that early man continued the sexual habits of the anthropoid apes. It would seem probable, however, that the great forward step involved in passing from ape to man was associated with a change in sexual 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 sex primitive man could find exercise for the developing intellectual and moral aptitudes, 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 associated sexual 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 sexual relationship. As Espinas said many years ago (in his suggestive work, Des Sociétés 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 institutions, early ideas and early religion involved sexual 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 class are regarded as the actual, or at all events potential, wives of all the men in another class. 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 primæ 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'Année 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 sexual 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 sexual 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 Institutions (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.