Kitabı oku: «Marriage, As It Was, As It Is, And As It Should Be», sayfa 4

Things being as they are, what is the best action for those to take who desire to see a healthier and purer sexual morality – a morality founded upon equal rights and diverse duties harmoniously discharged? The first step is to agitate for a reform of the marriage laws by the passing of such an Act of Parliament as is alluded to above. It would be well for some of those who desire to see such a legislative change to meet and confer together on the steps to be taken to introduce such a Bill into the House of Commons. If thought necessary, a Marriage Reform League might be established, to organize the agitation and petitioning which are de rigueur, in endeavouring to get a bill passed through the popular House. Side by side with this effort to reform marriage abuses, should go the determination not to contract a legal marriage while the laws remain as immoral as they are. It is well known that the Quakers persistently refused to go through the legal English form of marriage, and quietly made their declarations according to their own conscience, submitting to the disadvantages entailed on them by the illegality, until the legislature formally recognised the Quaker declaration as a legal form of marriage. Why should not we take a leaf out of the Quakers' book, and substitute for the present legal forms of marriage a simple declaration publicly made? We should differ from the Quakers in this, that we should not desire that such declaration should be legalised while the marriage laws remain as they are; but as soon as the laws are moralised, and wives are regarded as self-possessing human beings, instead of as property, then the declaration may, with advantage, seek the sanction of the law. It is not necessary that the declaration should be couched in any special form of words; the conditions of the contract ought to be left to the contracting parties. What is necessary is that it should be a definite contract, and it is highly advisable that it should be a contract in writing – a deed of partnership, in fact, which should – when the law permits – be duly stamped and registered. The law, while it does not dictate the conditions of the contract, should enforce those conditions so long as the contract exists; that is, it should interfere just as far as it does in other contracts, and no further; the law has no right to dictate the terms of the marriage contract; it is for the contracting parties to arrange their own affairs as they will. While, however, the province of the law should be thus limited in respect to the contracting parties, it has a clear right to interfere in defence of the interests of any children who may be born of the marriage, and to compel the parents to clothe, feed, house, and educate them properly: this duty should, if need be, be enforced on both parents alike, and the law should recognise and impose the full discharge of the responsibilities of parents towards those to whom they have given life. No marriage contract should be recognised by the law which is entered into by minors; in this, as in other legal deeds, there should be no capability to contract until the contracting parties are of full age. A marriage is a partnership, and should be so regarded by the law, and it should be the aim of those who are endeavouring to reform marriage, to substitute for the present semi-barbarous laws a scheme which shall be sober, dignified, and practicable, and which shall recognise the vital interest of the community in the union of those who are to be the parents of the next generation.

Such a deed as I propose would have no legal force at the present time; and here arises a difficulty: might not a libertine take advantage of this fact to desert his wife and possibly leave her with a child, or children, on her hands; to the cold mercy of society which would not even recognize her as a married woman? Men who, under the present state of the law, seduce women and then desert them, would probably do the same if they had gone through a form of marriage which had no legally binding force; but such men are, fortunately, the exception, not the rule, and there is no-reason to apprehend an increase of their number, owing to the proposed action on the part of a number of thoughtful men and women who are dissatisfied with the present state of the law, but who have no wish to plunge into debauchery. I freely acknowledge that it is to be desired that marriage should be legally binding, and that a father should be compelled to do his share towards supporting his children; but while English law imposes such a weight of disability on a married woman, and leaves her utterly in the power of her husband, however unprincipled, oppressive, and wicked he may be – short of legal crime – I take leave to think that women have a fairer chance of happiness and comfort in an unlegalised than in a legal marriage. There is many an unhappy woman who would be only too glad if the libertine who has legally married her would desert her, and leave her, even with the burden of a family, to make for herself and her children, by her own toil, a home which should at least be pure, peaceful, and respectable.

Let me, in concluding this branch of the subject, say a word to those who, agreeing with Marriage Reform in principle, fear to openly put their theory into practice. Some of these earnestly hope for change, but do not dare to advocate it openly. Reforms have never been accomplished by Reformers who had not the courage of their opinions. If all the men and women who disapprove of the present immoral laws would sturdily and openly oppose them; if those who desire to unite their lives, but are determined not to submit to the English marriage laws, would publicly join hands, making such a declaration as is here suggested, the social odium would soon pass away, and the unlegalised marriage would be recognised as a dignified and civilized substitute for the old brutal and savage traditions. Most valuable work might here be done by men and women who – happy in their own marriages – yet feel the immorality of the law, and desire to see it changed. Such married people might support and strengthen by their open countenance and friendship those who enter into the unlegalised public unions here advocated; and they can do what no one else can do so well: they can prove to English society – the most bigoted and conservative society in the world – that advocacy of change in the marriage laws does not mean the abolition of the home. The value of such co-operation will be simply inestimable, and will do more than anything else to render the reform practicable. Courage and quiet resolution are needed, but, with these, this great social change may safely and speedily be accomplished.

II. DIVORCE

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 mensâ 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 mensâ 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 mensâ 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 mensâ 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 mensâ 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.¹ 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?