These glaring reasons for granting a divorce will be admitted by

everyone who recognises the reasonableness of divorce at all, but there

will be more diversity of opinion as to the advisability of making

divorce far more easily attainable. The French Convention of 1792 set

an example that has been only too little followed; for the first time

in French history divorce was legalised in France. It was obtainable "on

the application of either party [to the marriage] alleging simply as a

cause, incompatibility of humour or character. The female children were

to be entirely confided to the care of the mother, as well as the males,

to the age of seven years, when the latter were again to be re-committed

to the superintendence of the father; provided only, that by mutual

agreement any other arrangement might take place with respect to the

disposal of the children; or arbitrators might be chosen by the nearest

of kin to determine on the subject. The parents were to contribute

equally to the maintenance of the children, in proportion to their

property, whether under the care of the father or mother. Family

arbitrators were to be chosen to direct with respect to the partition

of the property, or the alimentary pension to be allowed to the party

divorced. Neither of the parties could contract a new marriage for the

space of one year" ("Impartial History of the Late Revolution," vol.

ii., pp. 179, 180). This beneficial law was swept away, with many other

useful changes, when tyranny came back to France. At the present time

the only countries where divorce is easily obtainable are some of the

states of Germany and of America. It has been held in at least one

American state that proved incompatibility of temper was sufficient

ground for separation. And reasonably so; if two people enter into a

contract for their mutual comfort and advantage, and the contract issues

in mutual misery and loss, why should not the contract be dissolved?

It is urged that marriage would be dishonoured if divorce were easily

attainable; surely marriage is far more dishonoured by making it a chain

to tie together two people who have for each other neither affection nor

respect. For the sake of everyone concerned an unhappy marriage should

be easily dissoluble; the married couple would be the happier and the

better for the separation; their children--if they have any--would be

saved from the evil effect of continual family jars, and from the

loss of respect for their parents caused by the spectacle of constant

bickering; the household would be spared the evil example of the

quarrels of its heads; society would see less vice and fewer scandalous

divorce suits. In all cases of contract, save that of marriage, those

who make can, by mutual consent, unmake; why should those who make the

most important contract of all be deprived of the same right?

Mr. John Stuart Mill, dealing very briefly with the marriage contract

in his essay "On Liberty," points out that the fulfilment of obligations

incurred by marriage must not be forgotten when the contract is

dissolved, since these "must be greatly affected by the continuance

or disruption of the relation between the original parties to the

contract." But he goes on to say: "It does not follow, nor can I

admit, that these obligations extend to requiring the fulfilment of the

contract at all costs to the happiness of the reluctant party; but they

are a necessary element in the question; and even if, as Von Humboldt

maintains, they ought to make no difference in the _legal_ freedom of

the parties to release themselves from the engagement (and I also hold

that they ought not to make _much_ difference), they necessarily make a

great difference in the _moral_ freedom. A person is bound to take all

these circumstances into account before resolving on a step which may

affect such important interests of others; and if he does not allow

proper weight to those interests, he is morally responsible for the

wrong. I have made these obvious remarks for the better illustration of

the general principle of liberty, and not because they are at all needed

on the particular question, which, on the contrary, is usually discussed

as if the interest of children was everything, and that of grown persons

nothing" (p. 61). The essay of Von Humboldt, referred to by Mr. Mill, is

that on the "Sphere and Duties of Government;" Von Humboldt argues

that "even where there is nothing to be objected to the validity of a

contract, the State should have the power of lessening the restrictions

which men impose on one another, even with their own consent, and by

facilitating the release from such engagements of preventing a moment's

decision from hindering their freedom of action for too long a period

of life" (p. 134, of Coulthard's translation). After pointing out that

contracts relating to the transfer of _things_ should be binding, Von

Humboldt proceeds: "With contracts which render personal performance a

duty, or still more with those which produce proper personal relations,

the case is wholly different. With these coercion operates hurtfully on

man's noblest powers; and since the success of the pursuit itself which

is to be conducted in accordance with the contract, is more or less

dependent on the continuing consent of the parties, a limitation of such

a kind is in them productive of less serious injury. When, therefore,

such a personal relation arises from the contract as not only to require

certain single actions, but, in the strictest sense, to affect the

person, and influence the whole manner of his existence; where that

which is done, or left undone, is in the closest dependence on internal

sensations, the option of separation should always remain open, and the

step itself should not require any extenuating reasons. Thus it is with

matrimony" (pp. 134-135).

Robert Dale Owen--the virtuous and justly revered author of "Moral

Physiology;" a man so respected in his adopted country, the United

States of America, that he was elected as one of its senators, and was

appointed American ambassador at the Court of Naples--Robert Dale Owen,

in a letter to Thomas Whittemore, editor of the Boston Trumpet, May,

1831, deals as follows with the contract of marriage:--

"I do not think it virtuous or rational in a man and woman solemnly to

swear that they will love and honour each other until death part them.

First, because if affection or esteem on either side should afterwards

cease (as, alas! we often see it cease), the person who took the

marriage-oath has perjured himself; secondly, because I have observed

that such an oath, being substituted for the noble and elevating

principle of moral obligation, has a tendency to weaken that principle.

"You will probably ask me whether I should equally object to a solemn

promise to live together during life whatever happens. I do not think

this _equally_ objectionable, because it is an explicit promise possible

to be kept; whereas the oath to love until death, may become impossible

of fulfilment. But still I do not approve even this possible promise;

and I will give you the reasons why I do not.

"That a man and woman should occupy the same house, and daily enjoy each

other's society, so long as such an association gives birth to

virtuous feelings, to kindness, to mutual forbearance, to courtesy, to

disinterested affection, I consider right and proper. That they should

continue to inhabit the same house and to meet daily, in case such

intercourse should give birth to vicious feelings, to dislike, to ill

temper, to scolding, to a carelessness of each other's comfort and a

want of respect for each other's feelings,--this I consider, _when the

two individuals alone are concerned_, neither right nor proper;

neither conducive to good order nor to virtue. I do not think it well,

therefore, to promise, at all hazards, to live together for life.

"Such a view may be offensive to orthodoxy, but surely, surely it is

approved by common sense. Ask yourself, sir, who is--who can be the

gainer--the man, the woman, or society at large--by two persons living

in discord rather than parting in peace, as Abram and Lot did when their

herdsmen could not agree. We have temptations enough already to ill

humour in the world, without expressly creating them for ourselves; and

of all temptations to that worst of petty vices, domestic bickering,

can we suppose one more strong or more continually active than a forced

association in which the heart has no share? Do not the interests of

virtue and good order, then, imperiously demand (as the immortal author

of 'Paradise Lost' argued, in his celebrated work 'On Divorce,') that

the law should abstain from perpetuating any association, after it has

become a daily source of vice?

"If children's welfare is concerned, and that they will be injured by

a separation, the case is different. Those who impart existence to

sentient beings are, in my view, responsible to them for as much

happiness as it is in their power to bestow. The parent voluntarily

assumes this greatest of responsibilities; and he who, having so

assumed it, trifles with his child's best interests for his own selfish

gratification, is, in my eyes, utterly devoid of moral principle; or, at

the least, utterly blind to the most sacred duty which a human being

can be called to perform. If, therefore, the well-being and future

prosperity of the children are to be sacrificed by a separation of

the parents, then I would positively object to the separation, however

grievous the evil effects of a continued connection might be to the

dissentient couple.

"Whether the welfare of children is ever promoted by the continuation

of an ill-assorted union, is another question; as also in what way they

ought to be provided for, where a separation actually takes place.

"But to regard, for the moment, the case of the adults alone. You will

remark, that it is no question for us to determine whether it is better

or more proper that affection, once conceived, should last through life.

We might as well sit down to decree whether the sun should shine or be

hid under a cloud, or whether the wind should blow a storm or a gentle

breeze. We may rejoice when it does so last, and grieve when it does

not; but as to legislating about the matter, it is the idlest of

absurdities.

"But we _can_ determine by law the matter of living together. We may

compel a man and woman, though they hate each other as cordially as any

of Byron's heroes, to have one common name, one common interest, and

(nominally) one common bed and board. We may invest them with the legal

appearance of the closest friends while they are the bitterest enemies.

It seems to me that mankind have seldom considered what are the actual

advantages of such a proceeding to the individuals and to society. I

confess that I do not see what is gained in so unfortunate a situation,

by keeping up the appearance when the reality is gone.

"I do see the necessity, in such a case, if the man and woman separate,

of dividing what property they may possess equally between them; and

(while the present monopoly of profitable occupations by men lasts)

I also see the expediency, in case the property so divided be not

sufficient for the woman's comfortable support, of causing the man to

continue to contribute a fair proportion of his earnings towards it. I

also see the impropriety, as I said before, that the children, if any

there be, should suffer. But I cannot see who is the gainer by obliging

two persons to continue in each other's society, when heart-burnings,

bickerings, and other vicious results, are to be the consequence.

"There are cases when affection ceases on one side and remains on the

other. No one can deny that this is an evil, often a grievous one; but I

cannot perceive how the law can remedy it, or soften its bitterness, any

more than it can legislate away the pain caused by unreturned friendship

between persons of the same sex.

"You will ask me, perhaps, whether I do not believe that, but for the

law, there would be a continual and selfish change indulged, without

regard to the feelings or welfare of others. What there might be in the

world, viciously trained and circumstanced as so many human beings now

are, I know not, though I doubt whether things _could_ be much worse

than they are now; besides that no human power can legislate for the

heart. But if men and women were trained (as they so easily might!) to

be even decently regardful of each other's feelings, may we not assert

positively, that no such result could, possibly happen? Let me ask each

one of your readers, and let each answer to his or her own heart: 'Are

you indeed bound to those you profess to love and honour by the law

_alone?_ Alas! for your chance of happiness, if the answer be 'Yes!'"

The fact is, as Mr. Owen justly says, that a promise to "love... until

death us do part" is an immoral promise, because its performance is

beyond the power of those who give the promise. To love, or not to love,

is not a matter of the will; Love in chains loses his life, and only

leaves a corpse in his captive's hand. Love is, of its very nature,

voluntary, freely given, drawing together by an irresistible sympathy

those whose natures are adapted to each other. Shelley well says, in

one of the notes on Queen Mab: "Love is inevitably consequent on the

perception of loveliness. Love withers under constraint; its very

essence is liberty; it is compatible neither with obedience, jealousy,

nor fear; it is there most pure, perfect and unlimited, where its

votaries live in confidence, equality, and unreserve." To say this, is

not to say that higher duty may not come between the lovers, may not,

for a time, keep them apart, may not even render their union impossible;

it is only to recognize a fact that no thoughtful person can deny, and

to show how utterly wrong and foolish it is to promise for life, that

which can never be controlled by the will.

But marriage, it is said, would be too lightly entered into if it were

so easily dissoluble. Why? People do not rush into endless partnerships

because they are dissoluble at pleasure; on the contrary, such

partnerships last just so long as they are beneficial to the contracting

parties. In the same way, marriage would last exactly so long as its

continuance was beneficial, and no longer: when it became hurtful, it

would be dissolved. "How long then," asks Shelley, "ought the sexual

connection to last? what law ought to specify the extent of the

grievances which should limit its duration? A husband and wife ought to

continue so long united as they love each other; any law which should

bind them to cohabitation for one moment after the decay of their

affection, would be a most intolerable tyranny, and the most unworthy

of toleration. How odious a usurpation of the right of private judgment

should that law be considered which should make the ties of friendship

indissoluble, in spite of the caprices, the inconstancy, the fallibility

and capacity for improvement of the human mind. And by so much would

the fetters of love be heavier and more unendurable than those of

friendship, as love is more vehement and capricious, more dependent

on those delicate peculiarities of imagination, and less capable of

reduction to the ostensible merits of the object.... The connection

of the sexes is so long sacred as it contributes to the comfort of the

parties, and is naturally dissolved when its evils are greater than its

benefits. There is nothing immoral in this separation" (Notes on "Queen

Mab"). In spite of this facility of divorce, marriage would be the most

enduring of all partnerships; not only is there between married couples

the tie of sexual affection, but around them grows up a hedge of common

thoughts, common interests, common memories, that, as years go on, makes

the idea of separation more and more repulsive. It would only be where

the distaste had grown strong enough to break through all these, that

divorce would take place, and in such cases the misery of the enforced

common life would be removed without harm to any one. Of course, this

facility of divorce will entirely sweep away those odious suits for

"restitution of conjugal rights" which occasionally disgrace our courts.

If a husband and wife are living apart, without legal sanction, it is

now open to either of them to bring a suit for restitution of conjugal

rights. "The decree of restitution pronounces for the marriage,

admonishes the respondent to take the petitioner home and treat him or

her as husband or wife, and to render him or her conjugal rights; and,

further, to certify to the court, within a certain time, that he or she

had done so; in default of which, an attachment for contempt of court

will be issued against the offending party" (Broom's "Comm.," vol. iii.,

p. 400). It is difficult to understand how any man or woman, endued with

the most rudimentary sense of decency, can bring such a suit, and, after

having succeeded, can enforce the decision. We may hope that, as sexual

morality becomes more generally recognised, it will be seen that the

essence of prostitution lies in the union of the sexes without mutual

love; when a woman marries for rank, for title, for wealth, she sells

herself as veritably as her poorer and more unfortunate sister; love

alone makes the true marriage, love which is loyal to the beloved, and

is swayed by no baser motive than passionate devotion to its object.

When no such love exists the union which is marriage by law is nothing

higher than legalised prostitution: the enforcement on an unwilling

man or woman of conjugal rights is something even still lower, it is

legalised rape.

It may be hoped that when divorce is more easily obtainable, the

majority of marriages will be far happier than they are now. Half

the unhappiness of married life arises from the too great feeling of

security which grows out of the indissoluble character of the tie. The

husband is very different from the lover; the wife from the betrothed;

the ready attention, the desire to please, the eager courtesy, which

characterised the lover disappear when possession has become certain;

the daintiness, the gaiety, the attractiveness which marked the

betrothed, are no longer to be seen in the wife whose position is

secure; in society a lover may be known by his attention to his

betrothed, a husband by his indifference to his wife. If divorce were

the result of jarring at home, married life would very rapidly change;

hard words, harshness, petulance, would be checked where those who had

won the love desired to keep it, and attractiveness would no longer be

dropped on the threshold of the home. Here, too, Shelley's words are

well worth weighing: "The present system of restraint does no more, in

the majority of instances, than make hypocrites or open enemies. Persons

of delicacy and virtue, unhappily united to those whom they find

it impossible to love, spend the loveliest season of their life in

unproductive efforts to appear otherwise than they are, for the sake of

the feelings of their partner, or the welfare of their mutual

offspring; those of less generosity and refinement openly avow their

disappointment, and linger out the remnant of that union, which only

death can dissolve, in a state of incurable bickering and hostility. The

early education of the children takes its colour from the squabbles

of the parents; they are nursed in a systematic school of ill-humour,

violence and falsehood. Had they been suffered to part at the moment

when indifference rendered their union irksome, they would have been

spared many years of misery: they would have connected themselves more

suitably, and would have found that happiness in the society of more

congenial partners which is for ever denied them by the despotism of

marriage. They would have been separately useful and happy members of

society, who, whilst united, were miserable, and rendered misanthropical

by misery. The conviction that wedlock is indissoluble, holds out the

strongest of all temptations to the perverse; they indulge without

restraint in acrimony, and all the little tyrannies of domestic life,

when they know that their victim is without appeal. If this conviction

were put on a rational basis, each would be assured that habitual

ill-temper would terminate in separation, and would check this vicious

and dangerous propensity" (Notes on "Queen Mab"). To those who had

thought over the subject carefully, it was no surprise to hear

Mr. Moncure Conway say--in a debate on marriage at the Dialectical

Society--that in Illinois, U.S.A., where there is great facility of

divorce, the marriages were exceptionally happy. The reason was not far

to seek.

Dealing elsewhere with this same injurious effect of overcertainty on

the relations of married people to each other, Mr. Moncure Conway writes

as follows:--"In England we smilingly walk our halls of Eblis, covering

the fatal wound; but our neighbours across the Channel are frank. Their

moralists cannot blot out the proverb that 'Marriage is the suicide of

love.' Is it any truer here than there that, as a general thing, the

courtesies of the courtship survive in the marriage? 'Who is that domino

walking with George?' asks Grisette No. 1, as, reported by _Charivari_.

'Why,' returns Grisette No. 2, 'do you not walk behind them, and listen

to what they say?' 'I have done so, and they do not say a word.' 'Ah,

it is his wife.' But what might be George's feeling if he knew his

wife might leave him some morning? 'If conserve of roses be frequently

eaten.' they say in Persia, 'it will produce a surfeit.' The thousands

of husbands and wives yawning in each other's faces at this moment need

not go so far for their proverb. If it be well, as it seems to me to be,

that this most intimate relation between man and woman should be made as

durable as the object for which it is formed will admit, surely the bond

should be real to the last, a bond of kindliness, thoughtfulness, actual

helpfulness. So long as the strength of the bond lies simply in the

disagreeable concomitants of breaking it, so long as it is protected

by the very iron hardness which makes it gall and oppress, what need

is there of the reinforcement of it by the cultivation of minds, the

preservation of good temper, and considerate behaviour? Love is not

quite willing to accept the judge's mace for his arrow. When the law no

longer supplies husband or wife with a cage, each must look to find and

make available what resources he or she has for holding what has been

won. We may then look for sober second thoughts both before and after

marriage. Love, from so long having bandaged eyes, will be all eye.

Every real attraction will be stimulated when all depends upon real

attraction. When the conserve becomes fatiguing, it will be refreshed

by a new flavour, not by a certificate. From the hour when a thought

of obligation influences either party to it, the marriage becomes a

prostitution." ("The Earthward Pilgrimage," pp. 289, 290, 291).

A remarkable instance of the permanence of unions dissoluble at pleasure

is to be found related by Robert Dale Owen, in an article entitled

"Marriage and Placement," which appeared in the _Free Inquirer_ of May

28, 1831. It deals with the unions between the sexes in the Haytian

Republic, and the facts therein related are well worthy of serious

attention. Mr. Owen writes:--

"Legal marriage is common in St. Domingo as elsewhere. Prostitution,

too, exists there as in other countries. But this institution of

_placement_ is found nowhere, that I know of, but among the Haytians.

"Those who choose to marry, are united, as in other countries, by a

priest or magistrate. Those who do not choose to marry, and who

equally shrink from the mercenary embrace of prostitution, are (in the

phraseology of the island) _placés_: that is, literally translated,

_placed._

"The difference between _placement_ and marriage is, that the former

is entered into without any prescribed form, the latter with the usual

ceremonies: the former is dissoluble at a day's warning, the latter

is indissoluble except by the vexatious and degrading formalities

of divorce; the former is a tacit social compact, the latter a legal

compulsory one; in the former the woman gives up her name and her

property; in the latter, she retains both.

"Marriage and placement are, in Hayti, equally respectable, or, if

there be a difference, it is in favour of placement; and in effect ten

placements take place in the island for one marriage. _Pétion_, the

Jefferson of Hayti, * sanctioned the custom by his approval and example.

_Boyer_, his successor, the president, did the same; ** and by far

the largest portion of the respectable inhabitants have imitated their

presidents, and are _placed_, not married. The children of the placed

have, in every particular, the same legal rights and the same standing

as those born in wedlock.

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