Annie Besant
Marriage, As It Was, As It Is, And As It Should Be
"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,2 sanctioned the custom by his approval and example. Boyer, his successor, the president, did the same;3 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.
