There must always be contractive elements, implicit or explicit, in a marriage; that was well recognized even by the Canonists.  But when we treat marriage as all contract, and nothing but contract, we have to realize that we have set up a very peculiar form of contract, not voidable, like other contracts, by the agreement of the parties to it, but dissoluble as a sort of punishment of delinquency rather than by the voluntary annulment of a bond.[356] When the Protestant Reformers seized on the idea of marriage as a contract they were not influenced by any reasoned analysis of the special characteristics of a contract; they were merely anxious to secure a plausible ground, already admitted even by the Canonists to cover certain aspects of the matrimonial union, on which they could declare that marriage is a secular and not an ecclesiastical matter, a civil bond and not a sacramental process.[357]

Like so much else in the Protestant revolt, the strength of this attitude lay in the fact that it was a protest, based on its negative side on reasonable and natural grounds.  But while Protestantism was right in its attempt—­for it was only an attempt—­to deny the authority of Canon law, that attempt was altogether unsatisfactory on the positive side.  As a matter of fact marriage is not a true contract and no attempt has ever been made to convert it into a true contract.

Various writers have treated marriage as an actual contract or argued that it ought to be converted into a true contract.  Mrs. Mona Caird, for instance ("The Morality of Marriage,” Fortnightly Review, 1890), believes that when marriage becomes really a contract “a couple would draw up their agreement, or depute the task to their friends, as is now generally done as regards marriage settlements.  They agree to live together on such and such terms, making certain stipulations within the limits of the code.”  The State, she holds, should, however, demand an interval of time between notice of divorce and the divorce itself, if still desired when that interval has passed.  Similarly, in the United States Dr. Shufeldt ("Needed Revision of the Laws of Marriage and Divorce,” Medico-Legal Journal, Dec., 1897) insists that marriage must be entirely put into the hands of the legal profession and “made a civil contract, explicit in detail, and defining terms of divorce, in the event that a dissolution of the contract is subsequently desired.”  He adds that medical certificates of freedom from hereditary and acquired disease should be required, and properly regulated probationary marriages also be instituted.

In France, a deputy of the Chamber was, in 1891, so convinced that marriage is a contract, like any other contract, that he declared that “to perform music at the celebration of a marriage is as ridiculous as it would be to send for a tenor to a notary’s to celebrate a sale of timber.”  He was of quite different mind from Pepys, who,