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.