Studies in the Psychology of Sex, Volume 6 Sex in...

It is sometimes said in defence of the claim for damages for seducing a wife that women are often weak and unable to resist masculine advances, so that the law ought to press heavily on the man who takes advantage of that weakness. This argument seems a little antiquated. The law is beginning to accept the responsibility even of married women in other respects, and can scarcely refuse to accept it for the control of her own person. Moreover, if it is so natural for the woman to yield, it is scarcely legitimate to punish the man with whom she has performed that natural act. It must further be said that if a wife's adultery is only an irresponsible feminine weakness, a most undue brutality is inflicted on her by publicly demanding her pecuniary price from her lover. If, indeed, we accept this argument, we ought to reintroduce the mediæval girdle of chastity.

This rule is, in England, by no means a dead letter. Thus, in 1907, a wife who had left her home, leaving a letter stating that her husband was not the father of her child, subsequently brought an action for divorce, which, as the husband made no defence, she obtained. But, the King's Proctor having learnt the facts, the decree was rescinded. Then the husband brought an action for divorce, but could not obtain it, having already admitted his own adultery by leaving the previous case undefended. He took the matter up to the Court of Appeal, but his petition was dismissed, the Court being of opinion that "to grant relief in such a case was not in the interest of public morality." The safest way in England to render what is legally termed marriage absolutely indissoluble is for both parties to commit adultery.

H. Münsterberg, The Americans, p. 575. Similarly, Dr. Felix Adler, in a study of "The Ethics of Divorce" (The Ethical Record, 1890, p. 200), although not himself an admirer of divorce, believes that the first cause of the frequency of divorce in the United States is the high position of women.

In an important article, with illustrative cases, on "The Neuro-psychical Element in Conjugal Aversion" (Journal of Nervous and Mental Diseases, Sept., 1892) Smith Baker refers to the cases in which "a man may find himself progressively becoming antipathetic, through recognition of the comparatively less developed personality of the one to whom he happens to be married. Marrying, perhaps, before he has learned to accurately judge of character and its tendencies, he awakens to the fact that he is honorably bound to live all his physiological life with, not a real companion, but a mere counterfeit." The cases are still more numerous, the same writer observes, in which the sexual appetite of the wife fails to reveal itself except as the result of education and practice. "This sort of natural-unnatural condition is the source of much disappointment, and of intense suffering on the part of the woman as well as of family dissatisfaction." Yet such causes for divorce are far too complex to be stated in statute-books, and far too intimate to be pleaded in courts of justice.

In England this step was taken in the reign of Henry VII, when the forcible marriage of women against their will was forbidden by statute (3 Henry VII, c. 2). Even in the middle of the seventeenth century, however, the question of forcible marriage had again to be dealt with (Inderwick, Interregnum, pp. 40 et seq.).

Woods Hutchinson (Contemporary Review, Sept., 1905) argues that when there is epilepsy, insanity, moral perversion, habitual drunkenness, or criminal conduct of any kind, divorce, for the sake of the next generation, should be not permissive but compulsory. Mere divorce, however, would not suffice to attain the ends desired.

Similarly in Germany, Wanda von Sacher-Masoch, who had suffered much from marriage, whatever her own defects of character may have been, writes at the end of Meine Lebensbeichte that "as long as women have not the courage to regulate, without State-interference or Church-interference, relationships which concern themselves alone, they will not be free." In place of this old decayed system of marriage so opposed to our modern thoughts and feelings, she would have private contracts made by a lawyer. In England, at a much earlier period, Charles Kingsley, who was an ardent friend to women's movements, and whose feeling for womanhood amounted almost to worship, wrote to J. S. Mill: "There will never be a good world for women until the last remnant of the Canon law is civilized off the earth."

"No fouler institution was ever invented," declared Auberon Herbert many years ago, expressing, before its time, a feeling which has since become more common; "and its existence drags on, to our deep shame, because we have not the courage frankly to say that the sexual relations of husband and wife, or those who live together, concern their own selves, and do not concern the prying, gloating, self-righteous, and intensely untruthful world outside."

The same conception of marriage as a contract still persists to some extent also in the United States, whither it was carried by the early Protestants and Puritans. No definition of marriage is indeed usually laid down by the States, but, Howard says (op. cit., vol. ii, p. 395), "in effect matrimony is treated as a relation partaking of the nature of both status and contract."

I may remark that this was pointed out, and its consequences vigorously argued, many years ago by C. G. Garrison, "Limits of Divorce," Contemporary Review, Feb., 1894. "It may safely be asserted," he concludes, "that marriage presents not one attribute or incident of anything remotely resembling a contract, either in form, remedy, procedure, or result; but that in all these aspects, on the contrary, it is fatally hostile to the principles and practices of that division of the rights of persons." Marriage is not contract, but conduct.