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project of its ultimate disappearance with anything but satisfaction. It
was merely the outcome of an artificial conception of marriage. It is time
to return to the consideration of that conception.
We have seen that when the Catholic development of the archaic conception
of marriage as a sacrament, slowly elaborated and fossilized by the
ingenuity of the Canonists, was at last nominally dethroned, though not
destroyed, by the movement associated with the Reformation, it was
replaced by the conception of marriage as a contract. This conception of
marriage as a contract still enjoys a considerable amount of credit
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. 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.
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
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