Part 5

Next, the system of judicial separation should be entirely swept away. Wherever divorce is granted at all, the divorce should be absolute. No useful end is gained by divorcing people practically and regarding them as married legally. A technical tie is kept up, which retains on the wife the mass of disabilities which flow from marriage, while depriving her of all the privileges, and which widows both man and woman, exiling them from home-life and debarring them from love. Judicial separation is a direct incentive to licentiousness and secret sexual intercourse; the partially divorced husband, refused any recognised companion, either indulges in promiscuous lust, to the ruin of his body and mind, or privately lives with some woman whom the law forbids him to marry and whom he is ashamed to openly acknowledge. Meanwhile the semi-divorced wife can obtain no relief, and is compelled to live on, without the freedom of the spinster or the widow, or the social consideration of the married woman. She can only obtain freedom by committing what the law and society brand as adultery; if she has any scruples on this head, she must remain alone, unloved and without home, living a sad, solitary life until death, more merciful than the law, sets her free.

It is hard to see what object there can be in separating a married couple, in breaking up the home, dividing the children, and yet maintaining the fact of marriage just so far as shall prevent the separated couple from forming new ties; the position of those who regard divorce as altogether sinful, is intelligible, however mistaken; but the position of those who advocate divorce, but object to the divorced couple having the right of contracting a new marriage, is wholly incomprehensible. No one profits by such divorce, while the separated couple are left in a dubious and most unsatisfactory condition; they are neither married nor unmarried; they can never shake themselves free from the links of the broken chain; they carry about with them the perpetual mark of their misfortune, and can never escape from the blunder committed in their youth. They would be the happier, and society would be the healthier, if the divorce of life and of interests were also a divorce which should set them free to seek happiness, if they will, in other unions--free technically as well as really, free in law as well as in fact.

If it be admitted that all divorce should be absolute, the question arises: What should be the ground of divorce? First, adultery, because breach of faith on either side should void the contract which implies loyalty to each other; the legal costs of both should fall on the breaker of the contract, but no damages should be recoverable against a third party. Next, cruelty, because where the weaker party suffers from the abuse of power of the stronger, there the law should, when appealed to, step in to annul the contract, which is thus a source of injury to one of the contracting parties; if a man be brought up before the magistrate charged with wife-beating or violence of any kind towards his wife, and be convicted and sentenced, the Divorce Court should, on the demand of the wife, the record being submitted to it, pronounce a sentence of divorce; in the rare case of violence committed by a wife on her husband, the same result should accrue; the custody of the children should be awarded to the innocent party, since neither a man nor a woman convicted of doing bodily harm to another is fit to be trusted with the guardianship of a child. * The next distinct ground of divorce should be habitual drunkenness; drunkenness causes misery to the sober partner, and is ruinous in its effect, both on the _physique_ and on the character of the children proceeding from the marriage. Here, of course, the custody of the children should be committed entirely to the innocent parent.

* Since these lines were published in the National Reformer, a clause has been inserted in a bill now before Parliament, empowering magistrates to grant an order of separation to a wife? if it is proved that she has been cruelly ill-used by her husband, and further compelling the husband, in such a case, to contribute a weekly sum towards her maintenance. This will be a great improvement on the present state of things, but absolute divorce would be better than mere separation.

At present, the usual unfairness presides over the arrangements as to access to the children by the parents: "In the case of a mother who is proved guilty of adultery, she is usually debarred from such access, though it has not been the practice to treat the offending father with the same rigour" (Broom's "Comm.," vol. iii., p. 404). In all cases of divorce the interests of the children should be carefully guarded; both parents should be compelled to contribute to their support, whether the guardianship be confided to the father or to the mother.

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.