Any proposed reforms in the marriage laws of England would be extremely imperfect, unless they dealt with the question of divorce. Marriage differs from all ordinary contracts in the extreme difficulty of dissolving it—a difficulty arising from the ecclesiastical character which has been imposed upon it, and from the fact that it has been looked upon as a religious bond instead of as a civil contract. Until the time of the Reformation, marriage was regarded as a sacrament by all Christian people, and it is so regarded by the majority of them up to the present day. When the Reformers advocated divorce, it was considered as part of their general heresy, and as proof of the immoral tendency of their doctrines. Among Roman Catholics the sacramental—and therefore the indissoluble—character of marriage is still maintained, but among Protestants divorce is admitted, the laws regulating it varying much in different countries.

In England—owing to the extreme conservatism of the English in all domestic matters—the Protestant view of marriage made its way very slowly. Divorce remained within the jurisdiction of ecclesiastical courts, and these granted only divorces a mens et thoro in cases where cruelty or adultery was pleaded as rendering conjugal life impossible. These courts never granted divorces a vinculo matrimonii, which permit either—or both—of the divorced persons to contract a fresh marriage, except in cases where the marriage was annulled as having been void from the beginning; they would only grant a separation "from bed and board," and imposed celibacy on the divorced couple until one of them died, and so set the other free. There was indeed a report drawn up by a commission, under the authority of 3 and 4 Edward VI., c. ii., which was intended as a basis for the re-modelling of the marriage laws, but the death of the king prevented the proposed reform; the ecclesiastical courts remained as they were, and absolute divorce was unattainable. Natural impatience of a law which separated unhappy married people only to impose celibacy on them, caused occasional applications to be made to Parliament for relief, and a few marriages were thus dissolved under exceptional circumstances. In 1701, a bill was obtained, enabling a petitioner to re-marry, and in 1798, Lord Loughborough's "Orders" were passed. By these orders, no petition could be presented to the House, unless an official copy of the proceedings, and of a definitive sentence of divorce, a mens et thoro, in the ecclesiastical courts, was delivered on oath at the bar of the House at the same time (Broom's "Comm.," vol. iii. p. 396). After explaining the procedure of the ecclesiastical court, Broom goes on: "A definitive sentence of divorce a mens et thoro being thus obtained, the petitioner proceeded to lay his case before the House of Lords in accordance with the Standing Orders before adverted to, and, subject to his proving the case, he obtained a bill divorcing him from the bonds of matrimony, and allowing him to marry again. The provisions of the bill, which was very short, were generally these:—1. The marriage was dissolved. 2. The husband was empowered to marry again. 3. He was given the rights of a husband as to any property of an after-taken wife. 4. The divorced wife was deprived of any right she might have as his widow. 5. Her after-acquired property was secured to her as against the husband from whom she was divorced. In the case of the wife obtaining the bill, similar provisions were made in her favour" (p. 398). In 1857, an Act was passed establishing a Court for Divorce and Matrimonial Causes, and thus a great step forward was taken: this court was empowered to grant a judicial separation—equivalent to the old divorce a mens et thoro—in cases of cruelty, desertion for two years and upwards, or adultery on the part of the husband; it was further empowered to grant an absolute divorce with right of re-marriage—equivalent to the old divorce a vinculo matrimonii—in cases of adultery on the part of the wife, or of, on the part of the husband, incestuous adultery, or of bigamy with adultery, or of rape, or an unnatural crime, or of adultery coupled with such cruelty as would formerly have entitled her to a divorce a mens et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards (Broom, vol. i., p. 542). The other powers held by the court need not now be specially dwelt upon.

The first reform here needed is that husband and wife should be placed on a perfect equality in asking for a divorce: at present if husband and wife be living apart, no amount of adultery on the husband's part can release the wife; if they be living together, a husband may keep as many mistresses as he will, and, provided that he carefully avoid any roughness which can be construed into legal cruelty, he is perfectly safe from any suit for dissolution of marriage. Adultery alone, when committed by the husband, is not ground for a dissolution of marriage; it must be coupled with some additional offence before the wife can obtain her freedom. But the husband can obtain a dissolution of marriage for adultery committed by the wife, and he can further obtain money damages from the co-respondent, as a solatium to his wounded feelings. Divorce should be absolutely equal as between husband and wife: adultery on either side should be sufficient, and if it be thought necessary to join a male co-respondent when the husband is the injured party, then it should also be necessary to join a female co-respondent where the wife brings the suit. The principle, then, which should be laid down as governing all cases of divorce, is that no difference should be made in favour of either side; whatever is sufficient to break the marriage in the one case should be sufficient to break it in the other.

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.

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.

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.

"I imagine I hear from the clerical supporters of orthodoxy one general burst of indignation at this sample of national profligacy; at this contemning of the laws of God and man; at this escape from the Church's ceremonies and the ecclesiastical blessing. I imagine I hear the question sneeringly put, how long these same respectable connections commonly last, and how many dozen times they are changed in the course of a year.

"Gently, my reverend friends! it is natural you should find it wrong that men and women dispense with your services and curtail your fees in this matter. But it is neither just nor proper, that because no prayers are said, and no fees paid, you should denounce the custom as a profligate one. Learn (as I did the other day from an intelligent French gentleman who had remained some time on the island)—learn, that although there are ten times as many placed as married, yet there are actually fewer separations among the former than divorces among the latter. If constancy, then, is to be the criterion of morality, these same profligate unions—that is, unions unprayed-for by the priest and unpaid for to him—are ten times as moral as the religion-sanctioned institution of marriage.

"But this is not all. It is a fact notorious in Hayti, that libertinism is far more common among the married than among the placed. The explanatory cause is easily found. A placement secures to the consenting couple no legal right over one another. They remain together, as it were, on good behaviour. Not only positive tyranny or downright viragoism, but petulant peevishness or selfish ill humour, are sufficient causes of separation. As such, they are avoided with sedulous care. The natural consequence is, that the unions are usually happy, and that each being comfortable at home, is not on the search for excitement abroad. In indissoluble marriage, on the contrary, if the parties should happen to disagree, their first jarrings are unchecked by considerations of consequences. A husband may be as tyrannical as to him seems good; he remains a lord and master still; a wife may be as pettish as she pleases; she does not thereby forfeit the rights and privileges of a wife. Thus, ill humour is encouraged by being legalized, and the natural results ensue, alienation of the heart, and sundering of the affections. The wife seeks relief in fashionable dissipation; the husband, perhaps, in the brutalities of a brothel.

"But, aside from all explanatory theories, the fact is, as I have stated it, viz.: that (taking the proportion of each into account) there are ten legal separations of the married, for one voluntary separation of the placed. If anyone doubts it, let him inquire for himself, and he will doubt no longer.

"What say you to that fact, my reverend friends? How consorts it with your favourite theory, that man is a profligate animal, a desperately wicked creature? that, but for your prayers and blessings, the earth would be a scene of licentiousness and excess? that human beings remain together, only because you have helped to tie them? that there is no medium between priestly marriage and unseemly prostitution?

"Does this fact open your eyes a little on the real state of things to which we heterodox spirits venture to look forward? Does it assist in explaining to you how it is that we are so much more willing than you to entrust the most sacred duties to moral rather than legal keeping?

"You cannot imagine that a man and a woman, finding themselves suited to each other, should agree, without your interference, to become companions; that he should remove to her plantation, or she to his, as they found it most convenient; that the connection should become known to their friends without the agency of banns, and be respected, even though not ostentatiously announced in a newspaper. Yet all this happens in Hayti, without any breach of propriety, without any increase of vice; but, on the contrary, much to the benefit of morality, and the discouragement of prostitution. It happens among the white as well as the coloured population; and the president of the country gives it his sanction, in his own person.

"Do you still ask me—accustomed as you are to consider virtue the offspring of restrictions—do you still ask me, what the checks are that produce and preserve such a state of things? I reply, good feeling and public opinion. Continual change is held to be disreputable; where sincere and well-founded affection exists, it is not desired; and as there is no pecuniary inducement in forming a placement, these voluntary unions are seldom ill-assorted."

Where social anarchy is feared, facts like these are worth pages of argument. If the Haytians are civilised enough for this more moral kind of marriage, why should Europeans be on a lower level? For it should not be forgotten that the experiment was tried in St. Domingo under great disadvantages, and these unlegalised unions have yet proved more permanent than those tied with all due formality and tightness.

It may be urged: if divorce is to be so easily attainable, why should there be a marriage contract at all? Both as regards the pair immediately concerned, and as regards the children who may result from the union, a clear and definite contract seems to me to be eminently desirable. It is not to be wished that the union of those on whom depends the next generation should be carelessly and lightly entered into; the dignity and self-recollection which a definite compact implies are by no means to be despised, when it is remembered how grave and weighty are the responsibilities assumed by those who are to give to the State new citizens, and to Humanity new lives, which must be either a blessing or a curse. But the dignity of such a course is not its only, nor, indeed, its main, recommendation. More important is the absolute necessity that the conditions of the union of the two adult lives should be clearly and thoroughly understood between them. No wise people enter into engagements of an important and durable character without a written agreement; a definite contract excludes all chance of disagreement as to the arrangements made, and prevents misunderstandings from arising. A verbal contract may be misunderstood by either party; lapse of time may bring about partial forgetfulness; slight disagreements may result in grave quarrels. If the contract be a written one, it speaks for itself, and no doubt can arise which cannot be reasonably settled. All this is readily seen where ordinary business partnerships are concerned, but some—unconsciously rebounding from the present immoral system, and plunging into the opposite extreme—consider that the union in marriage of man and woman is too tender and sacred a thing to be thus dealt with as from a business point of view. But it must be remembered that while love is essential to true and holy marriage, marriage implies more than love; it implies also a number of new relations to the outside world which—while men and women live in the world—cannot be wholly disregarded. Questions of house, of money, of credit, &c., necessarily arise in connection with the dual home, and these cannot be ignored by sensible men and women. The contract does not touch with rude hands the sensitive plant of love; it concerns itself only with the garden in which the plant grows, and two people can no more live on love alone than a plant can grow without earth around its roots. A contract which removes occasions of disagreement in business matters shelters and protects the love from receiving many a rude shock. "Society will ere long," said Mr. Conway, "be glad enough to assimilate contracts between man and woman to contracts between partners in business. Then love will dispense alike with the bandage on its eyes and the constable's aid." Some pre-nuptial arrangement seems necessary which shall decide as to the right of inheritance of the survivor of the married pair. As common property will grow up during the union, such property should pass to the survivor and the children, and until some law be made which shall prevent parents from alienating from their children the whole of their property, a provision guarding their inheritance should find its place in the proposed deed. A definite marriage contract is also desirable for the sake of the children who may proceed from the union. Society has a right to demand from those who bring new members into it, some contract which shall enable it to compel them to discharge their responsibilities, if they endeavour to avoid them. If all men and women were perfect, no contract would be necessary, any more than it would be necessary to have laws against murder and theft; but while men and women are as they are, some compulsive power against evil-doers must be held in reserve by the law. Society is bound to guard the interests of the helpless children, and this can only be done by a clear and definite arrangement which makes both father and mother responsible for the lives they have brought into existence, and which shows the parentage in a fashion which could go into a law-court should any dispute arise. Again, if there were no contract, in whom would the guardianship of the children be vested, in case of wrongdoing of either parent, of death, or of separation? Suppose a brutal father: his wife leaves him and takes the children with her; how is she to keep them if he claims and takes them? If she has the legal remedy of divorce, the Court awards her the guardianship and she is safe from molestation. If a wife elope, taking the children with her, is the father to have no right to the guardianship of his sons and daughters, but to remain passive while they pass under the authority of another man? Application for divorce would guard him from such a wrong. If the parents separate, and both desire to have the children, how can such contest be decided, save by appeal to an impartial law? Marriage, as before urged, is a partnership, and where common duties, common interests, and common responsibilities grow up, there it is necessary that either party shall have some legal means of redress in case of the wrongdoing of the other.

To those who, on the other hand, object to facility of divorce being granted at all, it may fairly be asked that they should not forget that to place divorce within the reach of people, is not the same as compelling them to submit to it. Those who prefer to regard marriage as indissoluble could as readily maintain the indissolubility of their own wedded tie under a law which permitted divorce, as they can do at the present time. But those who think otherwise, and are unhappy in their marriages, would then be able to set themselves free. No happy marriage would be affected by the change, for the attainability of divorce would only be welcomed by those whose marriage was a source of misery and of discord; the contented would be no less content, while the unhappy would be relieved of their unhappiness; thus the change would injure no one, while it would benefit many.

It is a pity that there is no way of obtaining the general feminine view of the subject of marriage and divorce; women who study, who form independent opinions are—so far as my experience goes—unanimous in their desire to see the English laws altered; advanced thinkers of both sexes are generally, one might say universally, in favour of change. To those who think that women, if polled to-morrow, would vote for a continuance of the present state of things, may be recommended the following passage from Mrs. Mill: "Women, it is said, do not desire, do not seek what is called their emancipation. On the contrary, they generally disown such claims when made in their behalf, and fall with acharnement upon any one of themselves who identifies herself with their common cause. Supposing the fact to be true in the fullest extent ever asserted, if it proves that European women ought to remain as they are, it proves exactly the same with respect to Asiatic women; for they too, instead of murmuring at their seclusion, and at the restraint imposed upon them, pride themselves on it, and are astonished at the effrontery of women who receive visits from male acquaintances, and are seen in the streets unveiled. Habits of submission make men as well as women servile-minded. The vast population of Asia do not desire or value, probably would not accept, political liberty, nor the savages of the forest, civilization; which does not prove that either of those things is undesirable for them, or that they will not, at some future time, enjoy it. Custom hardens human beings to any kind of degradation, by deadening the part of their nature which would resist it. And the case of women is, in this respect, even a peculiar one, for no other inferior caste that we have heard of have been taught to regard their degradation as their honour." Mr. Conway considers that changed circumstances would rapidly cause women to be favourable to the proposed alteration: "Am I told," he remarks, "that woman dreads the easy divorce? Naturally, for the prejudices and arrangements of society have not been adapted to the easy divorce. Let her know that, under the changed sentiment which shall follow changed law, she will meet with sympathy where now she would encounter suspicion; let her know that she will, if divorced from one she loves not, have only her fair share of the burdens entailed by the original mistake; and she who of all persons suffers most if the home be false will welcome the freer marriage" ("The Earthward Pilgrimage," p. 289).

Both in theory and in practice advanced thinkers have claimed facility of divorce. John Milton, in his essay on "Divorce," complains that "the misinterpreting of Scripture... hath changed the blessing of matrimony not seldom into a familiar and co-inhabiting mischiefe; at least into a drooping and disconsolate household captivitie, without refuge or redemption" (p. 2), and in his Puritan fashion he remarks that because of this "doubtles by the policy of the devill that gracious ordinance becomes insupportable," so that men avoid it and plunge into debauchery. Arguing that marriage is not to be regarded merely as a legitimate kind of sexual intercourse, but rather as a union of mind and feeling, Milton says: "That indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangable, hindring and ever likely to hinder the main benefits of conjugall society, which are solace and peace, is a greater reason of divorce than natural frigidity, especially if there be no children, and that there be mutual consent" (p. 5). Luther, before Milton, held the same liberal views. Mary Wolstonecraft acted on the same theory in her own life, and her daughter was united to the poet Shelley while Shelley's first wife was living, no legal divorce having severed the original marriage. Richard Carlile's second marriage was equally illegal. In our own days the union of George Henry Lewes and George Eliot has struck the key-note of the really moral marriage. Mary Wolstonecraft was unhappy in her choice, but in all the other cases the happiest results accrued. It needs considerable assurance to brand these great names with immorality, as all those must do who denounce as immoral unions which are at present illegal.

In the whole of the arguments put forward in the above pages there is not one word which is aimed at real marriage, at the faithful and durable union of two individuals of opposite sexes—a union originated in and maintained by love alone. Rather, to quote Milton once more, is reverence for marriage the root of the reform I urge: he who "thinks it better to part than to live sadly and injuriously to that cherfull covnant (for not to be belov'd and yet retain'd, is the greatest injury to a gentle spirit), he I say who therefore seeks to part, is one who highly honours the married life, and would not stain it; and the reasons which now move him to divorce, are equal to the best of those that could first warrant him to marry" (p. 10). In the advocacy of such views marriage is elevated, not degraded; no countenance is given to those who would fain destroy the idea of the durable union between one man and one woman. Monogamy appears to me to be the result of civilization, of personal dignity, of cultured feeling; loyalty of one man to one woman is, to me, the highest sexual ideal. The more civilized the nature the more durable and exclusive does the marriage union become; in the lower ranges of animal life difference of sex is enough to excite passion: there is no individuality of of choice. Among savages it is much the same: it is the female, not the woman, who is loved, although the savage rises higher than the lower brutes, and is attracted by individual beauty. The civilised man and woman need more than sex-difference and beauty of form; they seek satisfaction for mind, heart, and tastes as well as for body; each portion the complex nature requires its answer in its mate. Hence it arises that true marriage is exclusive, and that prostitution is revolting to the noble of both sexes, since in prostitution love is shorn of his fairest attributes, and passion, which is only his wings, is made the sole representative of the divinity. The fleeting connections supposed by some Free Love theorists are steps backward and not forward; they offer no possibility of home, no education of the character, no guarantee for the training of the children. The culture both of father and of mother, of the two natures of which its own is the resultant, is necessary to the healthy development of the child; it cannot be deprived of either without injury to its full and perfect growth.

But just as true marriage is invaluable, so is unreal marriage deteriorating in its effects on all concerned: therefore, where mistake has been made, it is important to the gravest interests of society that such mistake should be readily remediable, without injury to the character of either of those concerned in it. Freed from the union which injures both, the man and woman may seek for their fit helpmeets, and in happy marriages may become joyful servants of humanity, worthy parents of the citizens of to-morrow. Men and women must know conjugal, before they can know true parental, love; each must see in the child the features of the beloved ere the perfect circle of love can be complete. Husband and wife bound in closest, most durable and yet most eager union, children springing as flowers from the dual stem of love, home where the creators train the lives they have given—such will be the marriage of the future. The loathsome details of the Divorce Court will no longer pollute our papers; the public will no longer be called in to gloat over the ruins of desecrated love; society will be purified from sexual vice; men and women will rise to the full royalty of their humanity, and hand in hand tread life's pathways, trustful instead of suspicious, free instead of enslaved, bound by love instead of by law.

Printed by Annie Besant and Charles Bradlaugh,

28, Stone-cutter Street, London, E.C.