rchase by their sacramental marriage, they
were in many respects effecting a real progress, and the return to the
idea of a contract, as soon as its temporary value as a protest has
ceased, proves altogether out of harmony with any advanced stage of
civilization. It was revived in days before the revolt against slavery had
been inaugurated. Personal contracts are out of harmony with our modern
civilization and our ideas of individual liberty. A man can no longer
contract himself as a slave nor sell his wife. Yet marriage, regarded as a
contract, is of precisely the same class as those transactions.[360] In
every high stage of civilization this fact is clearly recognized, and
young couples are not even allowed to contract themselves out in marriage
unconditionally. We see this, for instance, in the wise legislation of the
Romans. Even under the Christian Emperors that sound principle was
maintained and the lawyer Paulus wrote:[361] "Marriage was so free,
according to ancient opinion, that even agreements between the parties not
to separate from one another could have no validity." In so far as the
essence and not any accidental circumstance of the marital relationships
is made a contract, it is a contract of a nature which the two parties
concerned are not competent to make. Biologically and psychologically it
cannot be valid, and with the growth of a humane civilization it is
explicitly declared to be legally invalid.

For, there can be no doubt about it, the intimate and essential fact of
marriage--the relationship of sexual intercourse--is not and cannot be a
contract. It is not a contract but a fact; it cannot be effected by any
mere act of will on the part of the parties concerned; it cannot be
maintained by any mere act of will. To will such a contract is merely to
perform a worse than indecorous farce. Certainly many of the circumstances
of marriage are properly the subject of contract, to be voluntarily and
deliberately made by the parties to the contract. But the essential fact
of marriage--a love strong enough to render the most intimate of
relationships possible and desirable through an indefinite number of
years--cannot be made a matter for contract. Alike from the physical point
of view, and the psychical point of view, no binding contract--and a
contract is worthless if it is not binding--can possibly be made. And the
making of such pseudo-contracts concerning the future of a marriage,
before it has even bee