The Canon law conception of the abstract religious sanctity of matrimony, when transferred to the moral sphere, makes a breach of the marriage relationship seem a public wrong; the conception of the contractive subordination of the wife makes such a breach on her part, and even, by transference of ideas, on his part, seem a private wrong.  These two ideas of wrong incoherently flourish side by side in the vulgar mind, even to-day.

The economic subordination of the wife as a species of property significantly comes into view when we find that a husband can claim, and often secure, large sums of money from the man who sexually approaches his property, by such trespass damaging it in its master’s eyes.[339] To a psychologist it would be obvious that a husband who has lacked the skill so to gain and to hold his wife’s love and respect that it is not perfectly easy and natural to her to reject the advances of any other man owes at least as much damages to her as she or her partner owes to him; while if the failure is really on her side, if she is so incapable of responding to love and trust and so easy a prey to an outsider, then surely the husband, far from wishing for any money compensation, should consider himself more than fully compensated by being delivered from the necessity of supporting such a woman.  In the absence of any false traditions that would be obvious.  It might not, indeed, be unreasonable that a husband should pay heavily in order to free himself from a wife whom, evidently, he has made a serious mistake in choosing.  But to ordain that a man should actually be indemnified because he has shown himself incapable of winning a woman’s love is an idea that could not occur in a civilized society that was not twisted by inherited prejudice.[340] Yet as matters are to-day there are civilized countries in which it is legally possible for a husband to enter a prayer for damages against his wife’s paramour in combination with either a petition for judicial separation or for dissolution of wedlock.  In this way adultery is not a crime but a private injury.[341]

At the same time, however, the influence of Canon law comes inconsistently to the surface and asserts that a breach of matrimony is a public wrong, a sin transformed by the State into something almost or quite like a crime.  This is clearly indicated by the fact that in some countries the adulterer is liable to imprisonment, a liability scarcely nowadays carried into practice.  But exactly the same idea is beautifully illustrated by the doctrine of “collusion,” which, in theory, is still strictly observed in many countries.  According to the doctrine of “collusion” the conditions necessary to make the divorce possible must on no account be secured by mutual agreement.  In practice it is impossible to prevent more or less collusion, but if proved in court it constitutes an absolute impediment to the granting of a divorce, however just and imperative the demand for divorce may be.