cialized off from a common stock within comparatively recent times, even in western civilization; it is almost equally clear, that the separation of the physical and the moral sciences has taken place within a period which we may fairly call historical. And it is one of the peculiar marks of modernity in English law that, on the whole, it shows a remarkable tendency to restrict itself to its own special sphere, avoiding appeals to the emotions, which are the typical methods of religion, and to the reason, which are the subtle weapons of morality.

Having, then, to deal with what is, perhaps, the most intractable of all media, the human will, the builders of English law have never forgotten that this medium is one of the most direct and, therefore, one of the most precious manifestations of life, neither to be stamped out as necessarily anarchical, nor to be stored up and used like one of the blind forces of inanimate nature. Only when it manifests itself in ways obviously fatal to the life of the community, does the community, acting on the primary law of self-defence, interfere to crush the individual will; only where the object to be gained, in itself essential to the welfare of the community, cannot be achieved by spontaneous effort, does the community harness the individual will to the chariot of State. English law takes life itself as the guide to life, and treats the individual as a man, not as a machine. It is this deep respect for individual liberty within widely drawn bounds that is the dominant note of English law; and it is justified by the vigour, the achievements, above all the internal harmony, of those communities which, the world over, have adopted its principles. It is difficult to imagine any more cogent proof that English law is in accord with the truth of things.

LONDON, ENGLAND.

Edward Jenks.

IN

SOME PHASES OF THE LAW OF MARRIAGE

the vast field of Comparative Law there is no subject which so profoundly affects the welfare of society as that of marriage, nor has any other institution been so powerfully influenced by superstition, religion, philosophy, and politics.

Eastern legislators regarded matrimony as a means of securing salvation in the world to come; Cæsar and Augustus encouraged it to increase the power of the Roman Empire; crafty statesmen have ever sought by means of royal alliances to extend their borders or conserve their territory, while it is one of the glories of modern jurisprudence that in the regulation of marriage its chief aim has been to improve the physical and mental development of mankind. All these varied purposes are reflected in the laws, and it is interesting, and not without present utility, to trace their origin, growth, and effect, noting points of similarity and of difference, of progress and of decadence.

I

Age, intelligence, and consent, to the Western mind the three great essentials of marriage, are considered of small importance by vast millions in the East. To the Hindoo the taking of a wife at a very early age is an imperative duty, for all hope of happiness after death depends upon the birth of a son.1 "By a son," says Menu, "a man discharges his debt to his own progenitors," and "obtains victory over all people; by a son's son he enjoys immortality; and afterwards, by the son of that grandson he reaches the solar abode." 2 In the anxiety to secure these great rewards betrothal had its origin,3 By this means the parents anticipate the future of their children even in infancy. It is the binding tie, and the second ceremony of "con1 Pour les Hindous c'était et c'est encore la plus importante affaire de la vie, la seule espérance de salut après la mort. I GIBELIN, DROIT CIVIL DES HINDOUS, 22. 2 2 COLEBROOKE, Digest of HINDOO LAW, Book V, chap. 1, arts. X-XI.

3 Jamais, chez aucun peuple, le mariage ne fut établi sur des bases faites pour inspirer plus de sollicitude et d'intérêt. Évidemment c'est là que doit se trouver l'origine des fiançailles. I GIBELIN, 22.

4 C'est le premier acte qui lie définitivement les contractants. I GIBELIN, 21. In China also, if the betrothal is regular, it is held to be a marriage, even though it be not consummated. ALABASTER, NOTES AND COMMENTARIES ON CHINESE CRIMINAL LAW, 174.

3

ducting to the house," which takes place at puberty, merely marks the advent of the period for the husband to claim his bride.

This blight of child marriages affects the Chinese also, and arises from similar causes.5 They believe that the spirits of the departed wander restlessly about unless a son performs the burial rites and offers up the fixed periodical sacrifices at the tomb. This dire fate they seek to avoid by early unions."

Fear of torment after death urged the Persians to the same course. Their prophet-legislator, Zoroaster, proclaimed that it was a calamity to die unmarried because children were so many degrees in the progress to eternal joy, and the good works of those left behind assisted the parents in crossing the bridge Tchineval, over which all souls must pass to reach their heavenly home. This doctrine seems all-compelling, but he supplemented it by the offer of earthly rewards to those who reared numerous families, thus establishing a precedent which has been followed by other nations in later days.

7

The marriage of daughters was regarded by all ancestor worshippers as a matter of less vital importance than that of sons. The latter were charged to visit the tombs of their ancestors and care for them as temples of gods, while the daughters were only expected to weep for them as mortals. Some influence was necessary to compel the disposal of girls at an early age, and all the Hindoo lawgivers denounced the father who did not cause his daughter to wed when she could become a mother. Menu declared such a man "reprehensible"; Yama that he was "as guilty as the person who procured abortion"; and Vrihaspati that he was "a criminal who ought to be punished." 10 Zoroaster went further, and asserted that if a girl who had attained the age of eighteen died a virgin, the torments of the infernal regions awaited her until the general resurrection.11

These early and almost universal marriages have been the chief

5 L'idée qu'on se fait de la vie future de l'influence heureuse qu'elle peut recevoir du culte des descendants pour les ancêtres, est une des raisons qui font désirer aux Chinois une nombreuse postérité. TISSOT, LE MARIAGE, LA SÉPARATION ET LE DIVORCE, 39.

6 DOUGLAS, CHINA, chap. 3.

7 PASTORET, Zoroastre, ConfUCIUS ET MAHOMET COMPARÉS, 424.

8 PLUTARQUE, QUESTIONS ROMAINES, § 14.

9

2 COLEBROOKE, DIGEST OF HINDOO LAW, Book IV, chap. 1, art. XIV.

10 I GIBELIN, 29, 30.

11 PASTORET, 419.

cause of the stagnation of the East.12 When the resources of Persia failed to keep pace with the excessive birth rate there came famine 13 and practical extinction, and the populations of both India and China have increased so rapidly that every energy must be devoted to the struggle for a bare existence. Gradually there has been a loss of intellectual power and virility, for, as Bagehot points out, "there is only a certain quantum of power in each individual, and when it goes in one way it is spent and cannot go in another."14 With exceptional fertility came sluggishness of mind,15 and not until gross superstition is rooted out and marriage becomes wisely regulated can the Hindoos and Chinese hope to renew their ancient greatness.16

The Japanese were also under the influence of Eastern cults, but their strong desire for earthly power tempered their religious zeal and saved them from disaster. Devotion to ancestral worship never interfered with their passionate love of country. They encouraged early marriages more as a duty to the State than for religious reasons, adopting the ethical precept of Confucius that "a father lives without honor if his children neglect the obligation of marriage which nature and society alike impose upon them, and the son fails in his duties if he does not leave children to perpetuate his race." 17 This was still the guiding principle in the seventeenth century when Iyeyas instructed the governing class to impress upon the people that at the age of sixteen all men and women ought to be married, as matrimony is a great law of nature." 18 To an ambitious people, gifted with keen perception, it became evident that national strength and future expansion depended upon the procreation of a physically virile race. They realized that this was retarded by marriage in early youth, and the popular desire for the prevention of the union of children at length found expression in their code which raised the marriageable age to seventeen for males and fifteen for

12 There are whole countries, too, such as India, in which a right solution of the marriage question seems to lie at the foundation of the happiness of the community. 13 II INTERNATIONAL CYCLOPEDIA 532.

14 BAGEHOT, PHYSICS AND POLITICS, chap. 5, part II.

15 SPENCER, SYNTHETIC PHILOSOPHY, PRINCIPLES OF BIOLOGY, § 366.

16 Gibelin (vol. 1, p. 41) adduces strong reasons for his assertion that many laws which have been credited to the Romans had their origin in India, which has also given to architecture one of the seven wonders of the world.

17 PASTORET, 419.

18 The laws of Iyeyas, as translated in DICKSON, JAPAN, 254

females.19 While wedlock is permitted at these ages it is not encouraged, and the period at which it is considered advisable to marry is three or four years higher both in men and women than the limit set by the legislators.

Of all the ancient civilizations, however, the Jews have always stood as a class apart in their efforts to promote the physical and mental development of their race. This has saved them from extinction and enabled them to resist through all the centuries the battering of powerful, persistent, and relentless enemies. Although the Old Testament nowhere states the age at which Hebrews may marry, it contains every indication that it never took place in early life. Isaac and his son Esau were both forty before they took unto themselves wives, and Jacob served long and faithfully for Leah and Rebecca. These cases were no doubt extreme, and the Talmud approves the opinion of Judah, son of Tamai, that "at five years age a child should study the Bible, at ten he should study the Mishna, at fifteen he should study the Gemara, and at eighteen he should get married." 20

of

Mahomet, who hated the Jews, cursing and cajoling them in turn, adopted many of the laws of Moses, particularly as to marriage and divorce; 21 but the Koran, like the Old Testament, is silent as to the age at which marriage may be contracted. This has left each of the many Mohammedan sects free to set its own limit. The generally accepted age is fifteen, which Sale declares is supported by a tradition of the Prophet. Abu Hanifal, the founder of the Hanifites or followers of reason as opposed to tradition, thought eighteen the proper age.22 In Turkey girls may marry at fourteen and boys upon the attainment of puberty, while among the Algerian Arabs a father has the right to give in marriage a child under the age of puberty and to compel union with whomsoever he chooses, provided the intended consort is not an "idiot, slave, infidel, leper, giant, negro, or eunuch." 23

The highest standard of maturity to be found in early law was

19 CIVIL CODE OF JAPAN, art. 765.

20 THE TALMUD, "THE FATHERS," chap. 5, par. 21.

21 SALE, TRANSLATION OF THE KORAN, Preliminary Discourse, § VI.

22 SALE, TRANSLATION OF THE KORAN, note on chap. 4.

23 Discountenanced by their French rulers, and now seldom exercised. Special Report of U. S. Dept. of Commerce and Labor, 1909, on statutory regulations governing marriage and divorce in certain foreign countries, part I, p. 359.