[355] “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.”

[356] Hobhouse, op. cit. vol. i, p. 237.

[357] 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.”

[358] This point of view has been vigorously set forth by Paul and Victor Margueritte, Quelques Idees.

[359] 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.

[360] See, e.g., P. and V. Margueritte, op. cit.

[361] As quoted by Howard, op. cit., vol. ii, p. 29.

[362] Ellen Key similarly (Ueber Liebe und Ehe, p. 343) remarks that to talk of “the duty of life-long fidelity” is much the same as to talk of “the duty of life-long health.”  A man may promise, she adds, to do his best to preserve his life, or his love; he cannot unconditionally undertake to preserve them.

[363] Hobhouse, op. cit., vol. 1, pp. 159, 237-9; cf.  P. and V. Margueritte, Quelques Idees.

[364] “Divorce,” as Garrison puts it ("Limits of Divorce,” Contemporary Review, Feb., 1894), “is the judicial announcement that conduct once connubial in character and purpose, has lost these qualities....  Divorce is a question of fact, and not a license to break a promise.”

[365] See, ante, p. 425.

[366] It has been necessary to discuss reproduction in the first chapter of the present volume, and it will again be necessary in the concluding chapter.  Here we are only concerned with procreation as an element of marriage.

[367] Nietzold, Die Ehe in AEgypten zur Ptolemaeisch-roemischen Zeit, 1903, p. 3.  This bond also accorded rights to any children that might be born during its existence.