[331] The Canonists, say Pollock and Maitland (loc. cit.), “made a capricious mess of the marriage law.”  “Seldom,” says Howard (op. cit., vol i, p. 340), “have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between sponsalia de praesenti and de futuro.”

[332] Howard, op. cit., vol. i, pp. 386 et seq.  On the whole, however, Luther’s opinion was that marriage, though a sacred and mysterious thing, is not a sacrament; his various statements on the matter are brought together by Strampff, Luther ueber die Ehe, pp. 204-214.

[333] Howard, op. cit., vol. ii, pp. 61 et seq.

[334] Probably as a result of the somewhat confused and incoherent attitude of the Reformers, the Canon law of marriage, in a modified form, really persisted in Protestant countries to a greater extent than in Catholic countries; in France, especially, it has been much more profoundly modified (Esmein, op. cit., vol. i, p. 33).

[335] The Quaker conception of marriage is still vitally influential.  “Why,” says Mrs. Besant (Marriage, p. 19), “should not we take a leaf out of the Quaker’s book, and substitute for the present legal forms of marriage a simple declaration publicly made?”

[336] Howard, op. cit., vol. ii, p. 456.  The actual practice in Pennsylvania appears, however, to differ little from that usual in the other States.

[337] Howard, op. cit., vol. ii, p. 109.  “It is, indeed, wonderful,” Howard remarks, “that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition.”

[338] “The enforced continuance of an unsuccessful union is perhaps the most immoral thing which a civilized society ever countenanced, far less encouraged,” says Godfrey (Science of Sex, p. 123).  “The morality of a union is dependent upon mutual desire, and a union dictated by any other cause is outside the moral pale, however custom may sanction it, or religion and law condone it.”

[339] Adultery in most savage and barbarous societies is regarded, in the words of Westermarck, as “an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property;” the seducer is, therefore, punished as a thief, by fine, mutilation, even death (Origin of the Moral Ideas, vol. ii, pp. 447 et seq.; id., History of Human Marriage, p. 121).  Among some peoples it is the seducer who alone suffers, and not the wife.