CHAPTER IX

A NEW MARRIAGE LAW

It results from the foregoing that the ideal form of marriage is

considered to be the perfectly free union of a man and a woman, who

through mutual love desire to promote the happiness of each other and

of the race.

But as development does not proceed by leaps no one can hope that

the whole of society will attain this ideal otherwise than through

transitional forms. These must preserve the property of the old form:

that of expressing the opinion of society on the morality of sexual

relations—and thus providing a support for the undeveloped—but at

the same time must be free enough to promote a continued development

of the higher erotic consciousness of the present time. The modern

man considers himself supreme in the sense that no divine or human

authority higher than the collective power of individuals themselves

can make the laws that confine his liberty. But he admits the necessity

of a legal limitation of freedom, when this prepares the way for a

more perfect future system for the satisfaction of the needs of the

individual and a more complete freedom for the use of his powers.

Insight into the present erotic needs and powers of individuals

must thus be the starting-point of a modern marriage law, but not

any abstract theories about the “idea of the family” or juridical

considerations of the “historical origin” of marriage.

Since, as already pointed out, society is the organisation which

results when human beings set themselves in motion to satisfy their

needs and exercise their powers in common, it must also be in a

condition of uninterrupted transformation according as new needs arise

and new powers are developed. This has now taken place in the erotic

sphere, especially since those emotional needs and powers of the

soul, which formerly were nourished by and directed towards religion,

have been nourished by and directed towards love. Love itself is thus

becoming more and more a religion, and one which demands new forms for

its practice.

But while the individualist can only be satisfied with the full freedom

of love, he is compelled by the sense of solidarity, at least for the

present, to demand a new law for marriage, since the majority is not

yet ready for perfect freedom.

The sense of solidarity and individualism have equally weighty

reasons for condemning the existing institution of marriage. It

forces upon human beings, who are seldom ideal, a unity which only an

ideal happiness renders them capable of supporting. It fulfils one

of its missions—that of protecting the woman—in a way that is now

humiliating to her human dignity. It performs its second function—that

of protecting the children—in an extremely imperfect fashion.

Its third—that of setting up an ideal of the morality of sexual

relations—it performs in such a way that this ideal is now a hindrance

to the further development of morality.

From a realistic point of view, what is the value of matrimony to a

woman? That the present law compels the husband to provide for his

wife and for the children born in wedlock, and that at the death of

the husband it secures to her the widow’s share in his estate and to

the legitimate children their inheritance. But she pays for these

economical advantages by resigning the right over her children, her

property, her work, her person, which she possessed when unmarried.

Even when there is a marriage settlement the husband—as guardian and

administrator of his wife’s property—may squander this, as well as

the proceeds of her work; he can forbid her exercise of a calling or

sell the implements of its exercise. In the eyes of the law, she is

placed on a footing with her children who are under age: her husband

has to sue and to answer for her, and there are certain functions of a

citizen which she cannot perform at all, while others, which she could

perform if unmarried, she can fulfil only with her husband’s consent.

As concerns the children, the law leaves those born outside wedlock

entirely without rights, except for an insufficient contribution to

their bringing-up, if the father does not free himself from this by

oath. The law provides very imperfectly for the welfare of the new

generation by limiting the right of marriage to certain degrees of

affinity, refusing it in the case of certain diseases, and fixing the

age for lawful marriage at fifteen to seventeen for the woman and

twenty-one years for the man.[8]

Finally, marriage binds the wife to the husband and him to her, by the

fact that neither can obtain a divorce without the other’s consent

unless certain acts of ill-treatment or misconduct can be proved. Even

when married people agree to a divorce, it entails a painful procedure

for both of them and poor guarantees for the children’s welfare. If

the man refuses a divorce, the woman—owing to the above-mentioned

obligation of proof, frequently impossible—is forced to remain with

a man she despises, since only thus can she keep her children and

receive support. If the husband is no longer capable of providing this;

if, perhaps, he has squandered means belonging to her which would

have provided it; nay, if the wife, by her own work, is keeping him,

herself, and the children, he still retains the same authority over her

and them.

The unmarried woman, on the other hand, who has given her love

“freely”—that is, without legal compensation in the form of a right

of maintenance—retains full authority over her children, as well as

personal liberty, responsibility, and civil rights. In other words,

she retains all that gives her a dignified position as a human being

in society—but loses the respect of society and economic security.

The married woman, on the other hand, loses all that is important to a

member of society of full age, but retains the respect of society, her

right of inheritance, and her support.

Truly, society has not made it easy for woman to fulfil her “natural

mission”! That she nevertheless—under one or other of these two

alternatives—still gladly performs it, is strong evidence that

it must be the most powerful demand of her nature. If other needs

become stronger—as is already the case with some women—then the

conditions of either alternative will be unacceptable. And as the new

women are still less likely to content themselves with the two other

extremes—lifelong asceticism or prostitution—a new marriage has

become for them a condition of life.

The marriage law now in force is a geological formation, with

stratifications belonging to various phases of culture now concluded.

Our own phase alone has left few and unimportant traces in it.

It has been perceived in our time that love ought to be the moral

ground of marriage. And love rests upon equality. But the law of

marriage dates from a time when the importance of love was not yet

recognised. It, therefore, rests upon the inequality between a lord and

his dependent.

Our time has given to the unmarried woman the opportunity of making

her own living, a legal status, and civil rights. But the marriage law

dates from a time when women had none of these things. The married

woman, thus, under this law, now occupies a position in sharp contrast

to the independence of the unmarried, which has been acquired since

that time.

Our time has displaced the ancient division of labour, by which the

wife cared for the children and the husband provided maintenance. But

the law of marriage dates from a time when this division held full sway

and when it was, therefore, almost impossible for a woman to receive

protection for herself and her child otherwise than in matrimony. Now

society has begun to provide such protection for unmarried mothers, and

the renunciation of liberty by which the wife purchases the protection

of marriage is seen to be not only more and more unworthy, but also

unnecessary.

Our time has recognised more and more the importance of every child as

a new member of society and the right of every child to be born under

healthy conditions. But the law of marriage was framed at a time when

this aspect had not presented itself to the consciousness of mankind;

when the illegitimate child was regarded as worthless, however superior

in itself, and the legitimate child as valuable, whatever might be its

hereditary defects.

Our time has recognised the value to morality of personal choice.

It admits as really ethical only such acts as result from personal

examination and take place with the approval of the individual

conscience.

The marriage system came into being when this sovereignty of the

individual was scarcely suspected, much less recognised; when souls

were bound by the power of society, and when compulsion was society’s

only means of attaining its ends. Marriage was the halter with which

the racial instinct was tamed, or, in other words, the instinct of

nature was ennobled by being brought into unity with social purpose.

Now love has been developed, the human personality has been developed,

and woman’s powers have been liberated.

On account of woman’s present independent activity and

self-determination outside marriage, the law must provide that the

married woman shall retain her freedom of action by giving her full

authority over her person and property.

On account of the individual’s dislike of being forced into religious

forms that have no meaning for him, the legal form of marriage must be

a civil one.

On account of the individual’s desire of personal choice in actions

that are personally important, the continuance of marriage—as well as

its inception—must depend upon either of the parties and divorce be

thus free; and this all the more, since the new idea of purity implies

that compulsion in this direction is a humiliation.

These are the claims the people of the present day make upon the form

of marriage, if it is to express their personal will and further the

growth of their personality. The actual institution of marriage, on the

other hand, involves forms that have become meaningless and therefore

repulsive, and places the parties under the law in a position with

regard to one another which, looked at ideally, is as far beneath the

merits and dignity of the modern man as it actually is beneath those of

the modern woman.

While thus the development of the ideas of personality and of love

have resulted in these demands of increased liberty for the individual

within marriage, the idea of solidarity and evolutionism, on the other

hand, demand great limitations of individual freedom. The knowledge

that every new being has a right to claim that its life shall be a

real value—as well as knowledge of the right of society that the new

life shall be a valuable one—has involved the demand of prohibiting

marriages which would be dangerous to the children, and of better

protecting the children where there is no marriage or where a marriage

has been dissolved.

The economic factor has in modern society an importance for marriage

which is felt to be more and more degrading as marriage becomes

established on the basis of love.

Marriages inwardly dissolved are now often held together because both

the parties would be in a worse financial position after divorce. The

husband can not or will not make his wife a sufficient allowance; he

is, perhaps, unable to realise her fortune, which he has invested in

his business, or perhaps he has spent it; the wife at marriage has

abandoned an occupation which she cannot now take up again in order to

support herself—and so on to infinity.

But even happy marriages suffer through the wife’s subordinate

position, economically as well as judicially.

It is, therefore, of great importance both in happy and unhappy

marriages that the wife should retain control over her property and

her earnings; that she should be self-supporting in so far as she

can combine this with her duties as a mother, and that she should be

maintained by the community during the first year of each child’s life.

Similar proposals have been made from the socialist side, but also in

other quarters.

A woman ought to be able to claim this subsidy if she can prove:

That she is of full legal age;

That she has performed her equivalent of military service by undergoing

a one year’s training in the care of children and in hygiene, and—if

possible—in nursing the sick;

That she will, herself, care for the children or provide other

efficient care;

That she is without sufficient personal means or earnings to provide

for her own and half of the children’s support, or that she has given

up work for the sake of looking after the children.

Those who are unwilling to conform to the above conditions will not

apply for the subsidy, which naturally cannot be greater than what

is strictly necessary, and which will only in exceptional cases be

distributed for longer than a child’s _three_ first and most important

years.

Those who renounced the subsidy would thus be as a rule the well-to-do,

or those who wished to devote themselves to self-support and thus gave

up, either altogether or after the first year, this help from the

community. The arrangement would fulfil its purpose in those classes of

society where at present the mother’s outdoor work, both in country and

town, involves equally great dangers to herself and the children. The

charges for this most important of defensive taxes ought, like other

similar ones, to be graduated and thus to fall most heavily upon the

rich, but upon the unmarried in the same degree as the married.

Inspection should be carried out by commissioners to be appointed in

every commune, varying in number according to the size of the commune,

but always composed of two-thirds women and one-third men. These

would distribute the subsidy and supervise the care not only of young

children but also of older ones. The mother who neglected her child

would, after three cautions, be deprived of the subsidy and the child

would be taken from her. The same would also apply to other parents who

subjected their children to bodily or mental ill-treatment.

The mother’s maintenance would always amount to the same sum per

annum, but for every child she would receive in addition the half of

its maintenance, until the number of children was reached that the

community might consider desirable from its point of view. Any children

born beyond that number would be the affair of the parents. Every

father would have to contribute a corresponding half of the child’s

maintenance from its birth up to the age of eighteen. At present the

community affords a man help as breadwinner for a family in the form

of higher wages calculated to that end and a rising scale according

to age, which, however, he receives whether he is married or single,

childless or the father of a family. But by paying the subsidy to the

mother, all need of unequal wages for the two sexes would cease, and

the subsidy would really further the purpose that is of importance to

the community: the rearing of the children.

The present system, on the other hand, maintains that most crude

injustice, the difference between legitimate and illegitimate children;

it frees unmarried fathers from their natural responsibility; it drives

unmarried mothers to infanticide, to suicide, to prostitution.

All these conditions would be altered by a law which prescribed that

every mother has a right, under certain conditions, to the support

of the community during the years in which she is bearing the burden

most important to the community; and that every child has a right to

maintenance by both its parents, to the name of both and—so far as

there may be property—to the inheritance of both.

Since the mother must now, with increasing frequency, be a breadwinner

as well as the husband, it is just, even from this point of view, that

she should share with him authority over the children. But since,

furthermore, she has suffered more for them, thus loves them more and

understands them better—and thus, as a rule, not only does more for

them but also means more to them—it is likewise just that, whereas the

mother now has to be satisfied with what power the father allows her,

the conditions should be reversed, so that the mother should receive

the greatest legal authority.

When the husband is not alone in bearing the burden of breadwinner,

there will be a possibility of his duty as educator being realised. He

will then have time to develop his qualities in this direction and the

growing value of his fatherly care and fatherly love will lighten for

the mother the task of education which at present often overwhelms her,

since with a growing consciousness of its responsibility this task is

becoming more and more difficult to perform with her increasing need of

personal freedom of movement.

The mother and child would, therefore, not have to look exclusively

to the father for the necessaries of life, and they could not become

entirely destitute through his incapacity or downfall. But he would,

nevertheless, continue to bear his half of the responsibility and

the family would still be dependent on the father and his voluntary

contributions for a great part of the pleasures of life, while he

would, moreover, be freed from the often unbearable burdens under which

his spiritual worth as a father and his family joys now suffer to so

great a degree. Far from its being the case—as one has heard certain

women declare—that the majority of men are nothing but egoists,

countless numbers of them have borne and still bear burdens of slavery,

not only for wife and children but also for the support of other female

relations. On the other hand, the prevailing system of society has

prompted fathers still more to enslave themselves in order to create

an advantageous position for their children. The existing rights and

duties of a father stand in immediate connection with the right of

inheritance, one of the greatest dangers of our system of society.

For inheritance often keeps inefficiency in a leading position, but

efficiency in a dependent one; it favours the possibility of the

degenerate propagating the race, above all if the parents have died

early, although—as it has been asserted—it is precisely such children

that are the least apt to have offspring. It is unfavourable to the

chances of the efficient in this as in every other direction, where

birth in poor circumstances involves hindrances to education and the

use of personal powers which wealth permits. On the other hand, poverty

favours natural talent, in so far as it braces the capabilities, while

it is often one of the misfortunes of heirs not to experience this

inciting and pleasurable tension. It is only the strongest or the

finest natures that become stronger and finer through the advantages

and the sense of responsibility that inherited wealth brings with it.

In the main, the productive sources of society would be multiplied

upwards as well as downwards, if wealth became personal in the fullest

sense of the word, depending on each person’s contribution of efficient

force, but the goad of acquisitiveness would be broken, through the

limited possibility of increasing one’s wealth and the needlessness of

thereby securing the existence of one’s children. A new system would

do away with the necessity of applying to the state for increase of

salary for the education of children as befits their class. For if all

children were placed in an equal position by the community providing

everything—from school materials to travelling scholarships—for the

complete education of the bodily and mental powers of individuals, an

education in which a true circulation of the classes would take place

by consideration being given only to ability; if each thus had the same

position when all entered upon their different careers; if each had the

same chances of there attaining to the right use of his special powers,

since he had had every means of training them; if society gave—as a

right, not as a charity—to every worker full care during sickness and

full support in old age, then the desire to favour one’s own children

at the cost of the rest would disappear. The father whose activity

had procured him a position of power, which during his lifetime made

his children’s circumstances more favourable than those of a number

of others, would certainly thus be able—and to the advantage of the

whole community—to allow his children to enjoy that differentiation

and refinement which, for instance, the richer culture of their home

might give. But when the right of inheritance disappeared—or at least

was greatly limited and heavily taxed—he could not exempt them from

permanently securing by the exercise of their own powers the advantages

of a higher or lower kind that they had learned to value at home.

When the difference between legitimate and illegitimate children is

abolished in every respect, the paternal home, as in classical and

Scandinavian antiquity, may include more often than at present the

children of more than one living mother; sometimes even a mother’s home

may include children of more than one living father. In either case

this would be a recognition of the children’s rights which would leave

present day customs with respect to children born out of wedlock a long

way behind.

No relation shows better than marriage how morals and emotions may be

centuries in advance of the laws within whose limits they have been

developed.

Many men now show their wives a delicacy of feeling and allow them a

freedom of action which render these fortunate wives unconscious of

the fact that—in the eyes of the law—they possess these only by the

grace of their husbands. It is not until relations become unhappy that

the wife discovers that all the legal power is placed in the hands of

one, who thus has judicial support if he wishes to use his power alone,

to the exclusion of his wife, or if he wishes to misuse it, to the

detriment of her and the children.

That, in spite of these circumstances, married men so often voluntarily

place themselves in a position of equality with their wives in regard

to authority in the home and with the children is the best proof of

the power of the feelings to protect essential values. And that men, in

spite of these marriage laws, have become more and more considerate,

redounds as much to their credit as their success in becoming human

beings—in spite of all hindrances—redounds to that of royal

personages. Just as the latter have more excuse than others when they

abuse their position, so the same is true of the husband, who must be a

very fair-minded person if an _I will_ is not to be the conclusion of

a difference of opinion between himself and his wife; for not even the

tenderest love will hinder the sense of mastery from flaring up in the

face of her obstinate resistance in one direction or another.

To the majority of men, however—and this is the more the case the

lower they are in other respects—the present marriage law still

forms the great hindrance in the way of their development to a higher

humanity. To have wife and child in his power makes of the wicked man

a torturer, of the low-minded a wretch. There is no exaggeration in

Stuart Mill’s words, that so long as the family is based upon laws

which are at variance with the first principles of social life in other

things, the law will be favouring what education and civilisation are

counteracting in other spheres, namely, the right of force instead of

that of personality. Everywhere—in morals as in politics—it is now

held that not what a man becomes through being born in a certain sex

or class, but what he is personally worth determines the respect he

should enjoy; that only his conduct and merits can be the source of his

power and authority. But marriage reverses the whole of this principle

of modern constitutional law and, therefore, the social application of

the principle of personality has not yet gone beyond the surface.

That the law continues to sanction what reality has begun to transform

is, as we have said, of comparatively little weight, since the law

is—in the better sense of the words—a dead letter. But the immediate

danger to the individual and the indirect danger to society become

greater in proportion as the possessor of uncontrolled power is worse,

or the life less ideal in which this authority is decisive. And even

when circumstances are favourable, the authority of the husband is the

more painful to the modern woman in proportion as she is more conscious

of being able to attain only through perfect equality a satisfactory

co-operation with her husband in every direction. It is this profound

vexation of the modern woman with her dependence which, amongst other

things, makes many women, even when they do not need it, wish to remain

at least self-supporting after marriage.

The labour market has hitherto favoured this desire of theirs. It can,

however, only be a question of time when the unmarried women will begin

to thrust out the married ones—owing to the conditions of competition

being more favourable to the former—when legislation has begun to deal

with the present disproportionate state of things, where the wives

lower the wages of the husbands, the children those of the parents,

and the result is the neglect of the homes and the physical and moral

degeneration of the children.

But when married women’s labour has been limited by legal “protection

for mothers”—especially if this takes the form proposed above—and

when, further, the married and the unmarried are protected by the

fixing of a minimum wage, an eight hours’ day, and prohibition of

working at night and in certain industries dangerous to health, then

the mothers will still be able—when their children have passed the

age of infancy—to take part in several occupations. This will be

still more the case if a collective system of dwellings sets them free

from the work of the kitchen and renders possible a good collective

superintendence of the children while their mothers are absent.

But the best thing for the children—especially if by the prohibition

of home work they were rescued from earning a livelihood to the

advantage of their school and home life—would be the liberation of

married women from outside labour through the higher wages of their

husbands, while in return _their home work would acquire the character

of spiritual care_. This would be brought about in the fullest sense

by the mothers being allowed the above-mentioned _subsidy from the

community_ for bringing up the children. In such an arrangement,

approved by the community, the majority might find that agreement

between their occupation and their powers which constitutes the true

joy of work. For it can scarcely be doubted that even now the wife,

as a rule, finds more employment in her home work, however heavy, for

her special talents, and thus finds a greater satisfaction than the

husband, who often slaves, not at the work he has chosen, but at that

he has been able to obtain.

But what, in spite of this, now makes women more and more unwilling

to undertake the duties of the home and to prefer outside work, is

that they carry out their domestic work under conditions derogatory to

themselves.

First and foremost, women are determined to enjoy the facilities in

their domestic work which here and there are already beginning to be

provided. These, however, will probably not become general until women

make more use of their capacity for thinking out the most convenient

and agreeable methods, both for labour-saving co-operation and for

the performance of domestic duties, which will in any case always

remain; and this again necessitates their educating themselves to a

real knowledge of the questions of consumption and other details of

modern household management. This will be the more necessary as the

servant problem within a short time will have reached that point at

which women of all classes will have to choose between doing the work

themselves and the complete dissolution of the home. Woman’s domestic

work and the care of children will be facilitated for all women only in

so far as the educated agree in making new and higher demands in the

matter of domestic arrangements as well as in practical and ornamental

appliances. They would thus not only further their own work, but also

evoke a higher culture as regards beauty and appropriateness, both in

architecture and industry.

But this is not enough to enable domestic work to regain its dignity.

This will not take place until society shows such appreciation of

woman’s domestic work as shall remove her present sense of being kept

by her husband to perform a subordinate work, a work which does not

receive the appreciation which at the present time has become the

absolute standard of the economical value of labour, that of a money

wage.

The existing institution of marriage came into being when woman had no

real field of employment outside the home, since its income was for the

most part received in kind, and the wife was thus indispensable for

turning it to account. Her domestic activity was of great value from

the point of view of national economy, and under these circumstances

the joint estate was natural. Furthermore, the mistress of the

house possessed at this time—as manager of the consumption of the

commodities she had prepared from raw materials—a freedom of action

and an authority which she now quite naturally lacks in her own eyes

and those of her husband. It is of no avail that she has a legal

right to be supported by her husband according to his position and

circumstances; for if her task frequently consists simply in asking her

husband for money and keeping an account of its expenditure through

the cook and the needlewoman, she has reason to feel herself kept in a

humiliating way. Neither indirectly nor directly is it through her work

that the food comes to the table or the clothes are fitted to the body,

since the husband alone earns the means wherewith she—efficiently or

otherwise—keeps house.

For this reason wives are becoming increasingly desirous of personally

earning a livelihood. They see how their husbands are developed through

devotion to a profession, through the patience, the accumulation, and

tension of forces which this demands. And only professional training,

in the opinion of modern woman, can give her the same energy, only a

direct income can give her the same certainty of her fitness for work.

But there is another expedient which would afford these advantages

without, however, driving women away from home, namely, that their

special training for, and their work in, the field of housekeeping and

the care of children should be as serious as in any other occupation.

Not until she has a sense of the new value of her domestic work will

the wife be able to demand that it shall be economically estimated like

any other efficient work.

When wives speak of the humiliation of being kept by their

husbands—since they have more and more frequently been self-supporting

before marriage—their husbands always become profoundly idealistic.

They use fine words about the wife’s important mission, the adapting

power of love, until one asks some particular man: whether any love

could make it pleasant _for him_, instead of drawing his own income,

to be obliged to ask his wife for what she considered necessary for

their joint expenditure or for his own. In spite of the consciousness

of having herself brought wealth, or in spite of the knowledge of

constantly making important contributions of work in the home, the

necessity of asking for money is the wife’s unbearable torment. For

the husband in his heart has often the same feeling as she; that

work nowadays means earning money outside, since the management

of an income—in spite of its immense importance to the strength,

health, and comfort of the workers and thus indirectly to the whole

national economy—is more and more overlooked. In part this idea of

the husband is due to the very fact that women have not acquired the

new kind of domesticity which is necessary for the efficient conduct

of expenditure, and that the husband is, therefore, often right in

thinking that his wife neither works nor saves, but only wastes.

However touchingly idealistic a girl may be in this question before

marriage; however confidingly she allows her husband to handle her

fortune, after a few years of married life experience will turn her

into a complete realist. However happy she has otherwise been, she

will, nevertheless, remember more than one occasion when she has

bitterly regretted the absence of the freedom of action a separate

income gives; when, for instance, her husband has refused to allow her

to use—for some ideal purpose or other—the means which in many cases

she herself brought him, and how perhaps this for the first time really

made a division between them.

The dependence of woman can only be abolished through the _economic

appreciation of her domestic work_. This appreciation is an easy matter

when she has left a salaried employment for her domestic duties, for

the performance of the latter must be regarded as worth at least as

much as her occupation formerly brought her. Where there is no such

measure of value, she ought to receive the same amount as a stranger in

corresponding circumstances would receive in salary and cost of keep.

The wife would thus be able to meet her personal expenditure, her share

in the joint housekeeping and in the maintenance of the children, when

the subsidy for this purpose came to an end but the couple were agreed

that the wife’s work at home was of such value that she ought rather to

continue it than to try to earn money outside.

The carrying out of this arrangement need not cause any dislocation of

existing conditions. The wife would continue to manage the domestic

funds to which each would contribute according to agreement, but she

would probably be better able to solve the problem of making them

suffice for their joint expenses. She would be perfectly free to forego

her allowance, as her husband would be to increase it according to

need and ability. The direct economical appreciation of her domestic

work would transform her own and her husband’s respect for it and

thus give wives, on the one hand, a sense of independence which even

the conscientious are now without, on the other, a sense of duty

which in the case of the less conscientious is doubtless in need of

strengthening; for the existing arrangement favours not only domestic

tyranny on the part of the husbands, but also inefficiency on the

part of certain wives. But the fact that a small number of women of

the upper class now do no work at all in the home, or that a number

of others do it badly, must not obscure the truth that innumerable

women are constantly expending in their homes great sums of working

power, without being able legally to claim any corresponding income

of their own. This applies not only to the wives but also to the

daughters of the house, who often work from morning till night, but

are nevertheless obliged to accept as gifts from their parents all

that they personally need, and thus also have to do without anything

that their parents consider unnecessary. The same is true of the wife

in relation to her husband. When unmarried—whether she was in private

or public service, a factory hand or a clerk—she had the chance

of in some measure providing for her own interests. When married,

every present she gives, every contribution she makes for a public

purpose, every book she buys, every amusement she allows herself, has

to be taken from her husband’s money. The wife who, in a farmer’s

home perhaps, saves thousands—both by economy and by the direct

contribution of her labour—frequently has not a silver piece at her

disposal.

This dependence, as we have said, now drives wives and daughters

from their homes to earn a livelihood, which often does not by any

means compensate economically for the loss of their work at home. But

they simply cannot endure to be without the personal income, which

to them has become a more and more important value, according as

their general freedom of movement and their needs in other directions

have increased—above all, through increase of education and social

interests.

Woman’s present unpaid position in domestic work is an obsolete

survival from earlier conditions of housekeeping and production, as

from the ecclesiastical doctrine that woman was created to be man’s

helpmate and he to be her head. Women have thus often received worse

heads than nature gave them—and thereby man has had less valuable help

than life intended for him.

Not until an incorruptible realism establishes the principle within

the family as elsewhere, that each retains his own head and that every

labourer is worthy of his hire, will idealism find there a full field

for unforced generosity in the free will of mutual help.

While what is said above applies to all women who wish to work at

home, it need not apply to those who are able through the fortune they

brought with them to meet their household expenses and those of the

children and who wish in return to be free from the trouble of domestic

work.

Every attempt at mediation in the question of married women’s

property—such as an obligatory marriage settlement and similar

proposals—only introduces endless complications. It will be simple and

clear only when—as in Russia even from the time of Catherine II—the

woman simply retains her fortune. The law ought to express the great

principle, that either party owns what is his or hers, while those,

on the other hand, who desire to introduce another arrangement, must

decide by contract how much of the property is to be held jointly.

Only a separation of property carried out as a principle will be

able to form the new and clear ideas of justice that the present

time demands. A separate estate places two individuals side by side,

co-operating with the freedom that is enjoyed by a brother and sister

or two friends. Both parties retain full right of decision and full

responsibility. Either leaves transactions to the other only in that

degree that the other’s qualities have won his confidence. Both show

each other mutual consideration in the planning of joint undertakings

and neither can be drawn into such without a personal examination.

The rights of a third party are, in these circumstances, equally

well protected as when brothers and sisters or friends work or live

together. For the mutual transactions of married people must to this

end have the same publicity as all other similar transactions between

business partners.

Not only as regards her property, but also in her full civil rights

and the disposition of her person, the married woman must be placed on

an equal footing with the unmarried. It is true that the law is not so

favourable as many people believe to “conjugal rights.” But this belief

has survived for centuries and in turn influences morals; moreover,

it is not without a certain legal support, in case such a question is

brought into court. As a rule, of course, this does not happen, but, on

the other hand, the idea of legality—which is further encouraged by

the Bible—influences the husband’s sense of right and the wife’s sense

of duty. So long as the law maintains even a shadow of “rights” in that

relation which ought to be the most voluntary of all, it involves a

gross violation of love’s freedom.

This—like all other obsolete laws—is meaningless to the erotically

refined, who live above the law’s standpoint. But the lower the

level, the more certainly does the husband enforce his “right” under

circumstances the most repulsive or most dangerous to the wife, just

as—contrary to his present right—he extorts from her the earnings of

her labour.

No law will be able to hinder the wife from continuing voluntarily to

allow her husband to violate her person, squander her property, or ruin

her children; for the law cannot seal up the sources of weakness and

conflict which arise from the human being’s own nature.

But what we have a right to demand of the marriage law is that it shall

cease itself to extend these sources.

The law must be so contrived that it leaves to happiness the greatest

possible freedom for its own formative power, while, on the other hand,

it limits as far as possible the consequences of unhappiness; and this

can be brought about only by each party’s complete independence of the

other.

It is, therefore, not sufficient that the husband’s guardianship and

the wife’s legal incapacity should cease. Every provision also which

has for its object to bind the wife by her husband’s condition and

circumstances must be revoked.

The majority of men now cherish the belief that a wife who leaves her

husband’s house can be brought back with the aid of the law. This is,

doubtless, a mistake. But even if the letter of the law in this case

also is better than the popular idea of it, the whole spirit of the

law, nevertheless, entails the obligation of married people to live

together.

The more personality is developed, however, the more uncertain

it becomes that every person’s erotic needs are answered by this

arrangement. There are, on the contrary, such natures as would have

loved for life, if they had not, day after day, year after year, been

forced to adapt their wills, their habits, and their opinions to

one another. Nay, many misfortunes depend upon pure trifles, which

two people with courage and foresight might easily have dealt with,

if the instinct of happiness had not been silenced by consideration

for convention. The more a woman has enjoyed personal liberty before

marriage, the less she can endure not to have a moment or a corner in

her home which she can call her own. And the more the people of the

present day enlarge their individual freedom of movement, their need of

solitude in other respects, the more will both man and woman enlarge

them in marriage.

But even if those desiring solitude remain in the minority, they must

still be granted both by the law and by public opinion full liberty to

shape their married life according to their own requirements.

Conventionality and mental inertness pronounce this unheard-of, even

immoral. On the other hand, it is regarded as equally natural and moral

that the majority of sailors and commercial travellers should live for

the greater part of the year apart from their wives; that journeys for

scientific or artistic purposes should separate married people for

years, or that—in exceptional cases—one of them, for instance, should

spend the winters as a gymnast in England while the other is a teacher

in Sweden.

All these things, it is thought, are nothing but external necessities.

And to these one always submits! Ought we not, nevertheless, to find

room for the thought that there may also be necessities of the soul?

Our time, for instance, tends more and more to bring together artists

who work at different, or, still more often, at the same art. The

nerves of both are worn in the same way; both need the same freedom of

movement and the same undisturbed quiet. But in the claims of everyday

life for mutual sympathy and mutual consideration, nearly all their

spiritual energy is used up. They see that, if they are not to consume

one another’s mental resources, they must adopt a system of spiritual

separation, which is possible only at a certain distance. The holiday

happiness of these natures may be rapturous, the sympathetic union of

their souls richer than any others. But each feels for the other what

is expressed by one of Shakespeare’s joyous young women, when she calls

a suitor “too costly for every day’s wear.” Each is tempted at times

to exclaim, like another young woman in a modern book: “I want to be

able to say, let me now for three weeks be altogether free from loving

you”—since each knows that this freedom would only renew the feeling.

But now married people are bound by custom to a common life, which

often ends in their separating for ever, simply because conventional

considerations prevented their living apart.

Natures of other types may also feel the constraint of narrow

dependence, enforced association, the daily accommodations and constant

considerations. More people ought, therefore, quietly to begin

reforming matrimonial customs, so that they may more nearly correspond

to the need of renewal just alluded to. Let each, for instance, travel

separately, if he or she feels the desire of solitude; let one visit

by himself the entertainment the other does not care for, but formerly

either forced herself to, or kept the other from visiting. More and

more married people have separate bedrooms. And in another generation

perhaps separate dwellings will have ceased to attract attention.

Companionship on week-days as on holidays, co-operation in the

satisfaction of everyday claims as well as of life’s highest purposes,

will, nevertheless, continue to be the form of married life chosen by

the majority, even when public opinion has left room for other systems

of living. But full freedom for the latter will not be won till the law

ceases to place any limit to the self-determination of each partner in

marriage.

Another matter that ought to be left to personal decision is the

degree of publicity that is to be given to a matrimonial union. An

otherwise conservative father of a family once put forward the weighty

reasons which might be in favour of keeping secret a marriage that was,

nevertheless, intended to be fully legal. Amongst the reasons which

now frequently cause the postponement of a marriage are, for instance,

the necessity of completing studies, or reluctance to hasten, through

sorrow, the death of parents or others. The possibility of not having

to publish the union in these or similar cases would spare the lovers

unnecessary waiting without in any way encroaching on the rights of

others.

Further, to personal determination belong not only free divorce but

also new forms of divorce. As divorce itself has been treated in the

last chapter, we will speak here only of the method of it. The wife’s

infidelity, as well as the husband’s right to refuse divorce, at

present frequently affords an opportunity for blackmail on the part of

the husband from his wife, who, in the latter case, has to buy her

freedom, and in both cases often has to buy permission to keep her

children. The husband, too, may be exposed to blackmailing by a wife

who refuses divorce or who can prove his infidelity and tries to take

from him the children, whom he knows to be exposed to corruption in

her hands. But, since society and nature favour the man’s infidelity,

while both are against that of the woman, it is in the nature of the

case that the wife often has difficulty in proving the husband’s

infidelity, while he can prove hers easily. His repeated acts of

unfaithfulness have, perhaps, been the cause of her single one. But it

is, nevertheless, he—since there is no valid evidence against him—who

has the children assigned to him, or, it may be, sells them to his wife.

The same applies to divorce on account of “hatred and ill-will.” Before

a court which cannot test the reasons that have most spiritual weight,

but only the evidence that has most to say, all the details of married

life have to be dragged forth, all its wounds inspected. The evidence

which, as a rule, is decisive is that of servants! The profoundest

spiritual concerns of educated people are thus made to depend upon the

opinion of uneducated persons on all the complicated circumstances of

an unhappy marriage. And not only this: the result in most cases is

determined by the indelicacy with which the husband and wife have drawn

their servants and their acquaintances into the conflict. If husband

or wife has summoned the servants to witness violent behaviour, then

that party is in a much better position in an action for divorce than

the one who has sought to the utmost to preserve the dignity of their

marriage. There are, moreover, some sufferings of which no proof can be

produced. Such, for instance, is misuse of “conjugal rights”; another

is the power of either party, under forms of outward politeness, to

make life entirely worthless to the other; a third, the constant

opposition of two conflicting views of life.

It is only in the case of the grossest and most palpable evils that

it is now possible to furnish the necessary evidence without such

difficulties as—both in the granting of divorce and in the disposal of

the children—may give rise to the grossest injustice. And all this is

only a part of the humiliations and sufferings which now—especially

for the wife—attend a divorce. Finally, an action for divorce is

sufficiently expensive to render it on this account alone a matter

of great difficulty for many people in poor circumstances to obtain

justice.

Such a system of divorce—which makes either partner dependent on the

worst qualities of the other; which calls forth all that is indelicate

in the nature of both; which drags their weaknesses and sufferings

before the eyes of strangers, and which, nevertheless, provides no real

protection for the children—such a system ought to give no thoughtful

person peace until its degrading and deteriorating influence is

abolished and a new system, which shall protect both personal dignity

and the children, introduced.

In looking back upon the preceding, it would seem to result clearly

that nothing that has been said here contemplates the establishment of

a single form—recognised as the only moral one—for sexual life. But

since only the fixity possessed by the law is capable of transforming

in a profound and permanent manner the feelings and customs of the

majority, there is need, for the present, of a new law to support the

growth of the higher feelings which will finally render any marriage

law unnecessary.

In connection with the course of development of sexual morality it

was pointed out that the ecclesiastical and legal establishment of

the ideal of monogamy as _the only form of sexual morality_ has had

for its result the unconditional acquiescence in the idea that the

claims of evolution are in complete agreement with existing laws and

customs; with the further result that we are now—through the want of

a recognised right to manifold experience—almost in the same position

of ignorance as to the form of sexual morality most favourable to the

development of the race, as we were a thousand years ago, and that,

therefore, the vital needs of the race as well as the individual’s

demands of happiness speak for a more extended right to such

experiences.

No one knows whether, at the end of the new paths, we shall not again

be confronted by the riddle of the sphinx: how the parents are to avoid

being sacrificed for the children or the children for the parents. The

one thing certain is that on the path we have hitherto followed we have

arrived at the sphinx. And all those who have been torn to pieces at

its feet are witnesses that on this path mankind did not arrive at the

solution of the riddle.

The point of view which has here, throughout, been the leading one

is, that in the same degree as life itself becomes the meaning of

life human beings will also in all their sensations and all their

undertakings become more and more conscious of regard for the race.

It is thus only a question of time when the respect of society for a

sexual union shall not depend upon the form of cohabitation that makes

a couple of human beings become parents, but only upon the value of the

children they thus create as new links in the chain of generations. Men

and women will then dedicate to their mental and bodily fitness for

the mission of the race the same religious earnestness that Christians

devote to the salvation of their souls. Instead of divine codes of the

morality of sexual relations, the desire of, and responsibility for,

the enhancement of the race will be the support of morals. But the

knowledge of the parents that the meaning of life is also in their

own lives, that they thus do not exist solely for the sake of their

children, may liberate them from other duties of conscience which at

present bind them in respect of the children, above all that of keeping

up a union in which they themselves perish. The home may then more than

at present be synonymous with the mother, which—far from excluding the

father—contains the germ of a new and higher “right of the family.”

When every life is regarded as an end in itself from the point of view

that it can never be lived again; that it must, therefore, be lived as

completely and greatly as possible; when every personality is valued

as an asset in life that has never existed before and will never occur

again, then also the erotic happiness or unhappiness of a human being

will be treated as of greater importance, and not to himself alone. No,

it will be so also to the whole community—through the life and the

work his happiness may give the race or his unhappiness deprive it of.

For himself, as well as for others, the individual will then examine

the right of renouncing happiness as conscientiously as he now submits

to the duty of bearing unhappiness. The importance to children of their

parents’ life together will depend upon the kind of life it is, when

it has been seen that when all is said the new generation has most to

gain by love being always and everywhere set up as the condition of the

highest worth of cohabitation.

This is the rich promise that the new path offers; but the majority

cannot see the promise on account of the possible new dangers. It is

this dread that still paralyses the courage to dare the untried, in

order to win the valuable.

It is astonishing that those who tremble for the future never seek

consolation in the past. They would there find, for example, that when

the family ceased to be the match-maker, when the guardian could no

longer keep a woman in a position of legal incapacity and prevent her

marrying—then there were prophecies of exactly the same “dissolution

of society and of the family” as are now dreaded in freer forms of

matrimony. But the same people who now laugh at the former forebodings

are convinced that the latter will be realised; for man believes in

nothing so reluctantly as in his own nature’s power of replacing

outward bonds with inner ones. And yet, long before the new forms are

ready, there is an abundance of the new feelings which are to fill

them. Nothing is more certain than that, if feelings were no better

than laws, we should never have new laws (Mill). But human beings

will never believe in the possibilities of development of their own

feelings until they leave off seeking their strength from above. They

will never have faith in themselves as pathfinders until they no longer

believe themselves “guided.” As soon as a change has taken place, it is

regarded “historically,” as a given consequence of “rational” causes

and “divine” guidance. But to look historically at the future; to trust

in regard to what has not yet happened to the given consequences—for

good and evil—of the same constantly operating causes, this does not

occur to the guardians of society. Their belief in God’s guidance is

always—retrospective.

The believers in Life, on the other hand, know that vital needs were

the productive soil of the feelings that gave the pith to those laws,

whereof now only the straw remains. But the earth has not exhausted

its powers of fertility, any more than the feelings have lost their

creative force. The believers in Life, therefore, attach small

importance to the old straw, but consider the increasing of the earth’s

productiveness of supreme significance.

A great and healthy will to live is what our time needs in the matter

of the erotic emotions and claims. It is here that there is a menace of

real dangers from the woman’s side; and it is, amongst other things, to

avert these dangers that new forms of marriage must be created.

A human material increasing in value and in capacity for

development—this is what the earth will produce. The chances of

obtaining this may be decreased under fixed, but favoured under freer,

forms of sexual life. It is not only because the present day demands

more freedom that these claims are full of promise. They are so

because the claims are coming nearer and nearer to the kernel of the

question—the certainty that love is the most perfect condition for

the life-enhancement of the race and of the individual—and because

the present time acknowledges the necessity of temporarily limiting

freedom, though only by means of laws which will form an education in

love.

Such a law must, for the sake of woman’s liberty, deprive man of

certain of his present rights; for the sake of the children, limit the

present liberty both of man and woman. But these limitations will all

be to the final profit of love.

Those who believe in the perfectibility of mankind for and through love

must, however, learn to reckon not in hundreds of years, and still less

in tens, but in thousands.

FOOTNOTES:

[1] Many of the facts in the foregoing pages are taken from a

detailed biographical pamphlet on Ellen Key by J. F. D. Mossel

in the series of _Mannen en Vrouwen von Beteekenis in Onze

Dagen_. The reader may be referred to an interesting account

of Ellen Key, from personal knowledge, by Miss Helen Zimmern,

in _Putnam’s Magazine_, Jan., 1908.

[2] In England, Tennyson, in _The Princess_, was the first to

give to “the new woman” her name and to speak of her objects,

and many others began in the middle of the last century

indirectly to develop the idea of love, especially Elizabeth

Barrett Browning, the sisters Brontë, and Miss Muloch among

women writers. Robert Browning, George Meredith, and other

great poets among the men have also furthered it indirectly.

In later days, George Egerton in _Rosa Amorosa_ and Edward

Carpenter in _Love’s Coming of Age_ have, in their different

ways, given a remarkable treatment of the evolution of love.

_Woman Free_ by Ellis Ethelmer, _A Noviciate for Marriage_ by

Edith M. Ellis, _The Woman Who Did_ by Grant Allen, belong to

the same group of writings.

[3] Walt Whitman.

[4] As far as England is concerned I will here only remind my

readers of Galton’s contributions to this subject; of Geddes

and Thomson’s _Evolution of Sex_; of Havelock Ellis’s _Man and

Woman, Sex in Relation to Society_, etc.

[5] See _Woman and Economics_ and later works by this American

authoress, who has many adherents in Europe as well as in

America.

[6] Every English reader knows what Dickens achieved in this

respect. I will only remind them here of Hannah Lynch’s

(anonymously published) _Autobiography of a Child_.

[7] Before 1857, no legal divorce in the usual meaning of

the term existed in England. The ecclesiastical courts could

grant a sort of “divorce from bed and board,” whereupon

the aggrieved party could get rid of his unfaithful half

by a special Act of Parliament in each particular case. As

a consequence, only very wealthy people could afford this

luxury, for it cost immense sums to get a special motion of

this kind through Parliament. The further injustice prevailed,

that in practice this course was open only to men, not to

women.

It was, moreover, with the greatest difficulty that Palmerston

succeeded in carrying the reform of 1857. The friends of

reform urged above all that the old law was unjust to poor

people, and that among both rich and poor it had become

increasingly common to marry again in an illegal way, so that

in the eyes of the law thousands of people in England were

living in bigamy.

The new law of 1857 introduced a separate secular court for

divorce causes, divorce was made legal, and the possibility of

taking advantage of it was placed within the reach of others

than the wealthiest.

But the experience of fifty years has shown that divorce

procedure is still altogether too costly for the poor, and

entails an infinity of time and trouble. Furthermore, a number

of revolting injustices remain.

Thus, for instance, a wife cannot obtain legal divorce from

her husband either because he is an habitual drunkard, or an

incurable lunatic, or is imprisoned for life for some grave

crime, or has abandoned his home and refused to contribute to

the support of his wife and children! The most she can obtain

under such circumstances is a judicial separation—which makes

it possible for either party to enter into any illegitimate

connection they please. A husband can obtain divorce from his

wife if he can prove a single case of infidelity on her part;

but the wife cannot obtain divorce from her husband even if

he can be proved to be living in continual adultery. In order

to get rid of him she must be able to prove that he has been

guilty of cruelty towards her or has deserted her for a period

of two years.

The worst thing is that the greater offence is punished far

more leniently than the less. A wife can get a judicial

separation on account of her husband’s infidelity, but loses

therewith the right of proceeding against him for divorce,

and neither she nor her husband may marry again. But if the

husband has also been guilty of cruelty to her, she obtains a

divorce, and then both she and her husband are at liberty to

remarry. The man who deceives his wife is not free to marry

another; but if he both deceives her and beats her, he is

divorced and may marry again!

In general the opponents of the existing law declare that

it contributes powerfully to the formation of illegitimate

connections.

[8] These details refer, of course, to the Swedish

law.—TRANSLATOR.

THE END

Love and Marriage · 第 9 / 9 章