in regard to the system of inflicting fixed sentences of imprisonment on criminals.  To send a man to prison for five years or for life, without any regard to the unknown problem of the vital reaction of imprisonment on the man—­a reaction which will be different in every individual case—­is slowly coming to be regarded as an absurdity.

If marriage were really placed on the basis of a contract, not only would that contract be voidable at the will of the two parties concerned, without any question of delinquency coming into the question, but those parties would at the outset themselves determine the conditions regulating the contract.  But nothing could be more unlike our actual marriage.  The two parties are bidden to accept each other as husband and wife; they are not invited to make a contract; they are not even told that, little as they may know it, they have in fact made a very complicated and elaborate contract that was framed on lines laid down, for a large part, thousands of years before they were born.  Unless they have studied law they are totally ignorant, also, that this contract contains clauses which under some circumstances may be fatal to either of them.  All that happens is that a young couple, perhaps little more than children, momentarily dazed by emotion, are hurried before the clergyman or the civil registrar of marriages, to bind themselves together for life, knowing nothing of the world and scarcely more of each other, knowing nothing also of the marriage laws, not even perhaps so much as that there are any marriage laws, never realizing that—­as has been truly said—­from the place they are entering beneath a garland of flowers there is, on this side of death, no exit except through the trapdoor of a sewer.[358]

When a woman marries she gives up the right to her own person.  Thus, according to the law of England, a man “cannot be guilty of a rape upon his lawful wife.”  Stephen, who, in the first edition of his Digest of Criminal Law, thought that under some circumstances a man might be indicted for rape upon his wife, in the last edition withdrew that opinion.  A man may rape a prostitute, but he cannot rape his wife.  Having once given her consent to sexual intercourse by the act of marrying a man, she has given it forever, whatever new circumstances may arise, and he has no need to ask her consent to sexual intercourse, not even if he is knowingly suffering at the time from a venereal disease (see, e.g., an article on “Sex Bias,” Westminster Review, March, 1888).

The duty of the wife to allow “conjugal rights” to her husband is another aspect of her legal subjection to him.  Even in the nineteenth century a Suffolk lady of good family was imprisoned in Ipswich Goal for many years and fed on bread and water, though suffering from various diseases, till she died, simply because she continued to disregard the decree requiring her to render conjugal