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.