Front Page Titles (by Subject) CHAPTER VI: marriage - Law in a Free State
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CHAPTER VI: marriage - Wordsworth Donisthorpe, Law in a Free State 
Law in a Free State (London: Macmillan and Co., 1895).
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As I shall have to make sundry admissions in the course of this inquiry which to the orthodox will appear damaging and dangerous, I will say here at once that on the main issue I am in line with them; that is to say, I believe that the highest and best system of sexual relationship is the monogamic.
I am aware that this confession of faith is worth just about the paper it is written on (like any other confession of faith) without the reasons on which it is based. I place it thus in the forefront, lest the admissions aforesaid should scare away some of my readers at the outset, and so deprive them of the comfort of finding that after all there is much to be said for the principles of morality which so many of them profess, and so few practise.
Ever and anon, when the skeleton in the cupboard of some unhappy family is exposed to the general view, or the linen of some prominent household is washed in public, our present marriage system is drawn into question and criticised with passionate acrimony and bias. Several cases of the kind, which need not be more particularly referred to, have once again directed the attention of the community to the question. And it has been discussed on both sides of the Atlantic in more outspoken terms than would have been tolerated in former times. Unfortunately, the arguments both for and against the present system have been overloaded and weakened by disputations concerning the meaning of certain passages in ancient writings, and other irrelevant inquiries of a purely historic interest. Moreover, the two distinct issues involved have been invariably confounded, and it has been freely assumed on both sides that whatever marriage system is in itself desirable should be maintained by the forcible intervention of the State. I propose to inquire whether the State should interfere in this matter at all, and if so, how far.
There is a marked, and perhaps a very proper, desire on the part of individualists to shirk this question; and I confess to sharing it. But I cannot agree with those who pretend that it can be got rid of by pitching it into the contract basket. You cannot escape, as some recent writers seem to suppose, by calling upon the State to enforce the fulfilment of contract. Sexual questions are cropping up every day which cannot by any straining of law or of logic be brought under the head of contract.
Certain extreme advocates of a laissez-faire policy have put forward the doctrine that the enforcement of contract will safeguard all that is required in the existing system of sexual relations. But at this point, a split takes place in the let-be camp. “As regards marriage, then,” says Mr. Auberon Herbert, “we cannot rightly do anything, not even lift a straw, to restrain divorce or to perpetuate marriage between two persons. If you believe in liberty, you will believe that to pick marriage out for any special protection is not to uphold it or to honour it, but to enfeeble it and drag it in the mud.” Mr. M, D. O'Brien, on the other hand, holds that the present marriage system ought to be jealously preserved by the State, and in support of this contention he devotes two long articles in Free Life to a vindication of monogamy, whereby the real issue is completely evaded.
Let us examine Mr. Herbert's position. Can the existing system, or any other system of marriage, be based on the enforcement of contract? Perhaps it may be provisionally assumed that the fulfilment of contract should be enforced; for even the anarchist admits that upon the keeping of promises modern society rests; and whether the community sanction certain kinds of promise, or leave the sanction to some form of voluntary association, matters little to the present argument. A contract is merely a promise guaranteed, or at least sanctioned in some way by the community. It is idle to talk of contracts not recognised by the State. Non-sanctioned promises, whether one-sided or mutual, are not contracts at all-the essence of a contract being the State sanction. When, therefore, we are told that the State is bound in justice to enforce the marriage contract, we are confronted with the prior question. Is such an agreement as marriage implies, one which the State ought to be party to? An agreement in restraint of trade, a bet, a bargain to sell oneself into slavery, a promise to pay a prostitute a sum of money for an immoral consideration-all such promises and many more fail to obtain State recognition, and cannot properly be called contracts at all. We are thus brought round to the fundamental question, which is, not whether the State should enforce the marriage contract, but, Ought there to be a marriage contract? Ought the State to be party to any agreement concerning sexual arrangements? And, if so, to what agreement?
If the State is to enforce the fulfilment of the marriage contract for life, why not also a one-day marriage contract?
I do not know whether Mr. Herbert would call upon the State (or whatever organisation may exist for the enforcement of promise fulfilment) to compel the payment of a racing bet, or of a surgeon's fee for performing an improper operation. But if not, he is hardly justified in saying, as he does, “We can enforce any payment agreed upon in case of divorce, but we cannot rightly do anything to restrain divorce or to perpetuate marriage between two persons.” Surely we have here a begging of the whole question of permanent marriage, instead of proof of its claim to exclusive State recognition. Again, Mr. O'Brien says, “All that the law can do is to make those who break the contract bear the losses resulting from such breaking.” What contract? The sole question at issue is whether such promise should be a contract. We cannot get to the bottom of this matter until we have clearly defined both contract and marriage; and the above utterances seem to involve hazy definitions of both conceptions.
Let us restate the problem. We all agree that certain kinds of promises ought to be sanctioned. We all agree that, at present, that function appertains to the State. Promises so sanctioned we call contracts. What kinds of promises ought the State to raise to the level of contracts? And more particularly, is there any promise relating to sexual connection which ought to be raised to the level of a contract—that is to say, State-sanctioned? If so, what is it? And why should not other promises relating to the same matter receive similar treatment? These are the questions with which we have to deal.
One word en passant as to the mode in which Mr. Herbert would enforce a permanent marriage agreement. When we say that it is the duty of the State to enforce the fulfilment of all contracts, because contracts are those promises which, when expressed in the required form, the State has undertaken to back, the statement needs qualifying. For it is obvious that if a man has promised to jump over the moon, the State is powerless to compel him to do so. There are other courses open. It can punish him for non-fulfilment; or it can compel him to pay the promisee an equivalent in money. And this equivalent may be one of two things: it may take the form of damages previously agreed upon by the parties, or it may take the form of fair compensation for the promisee's disappointed expectation. Lawyers have long ago found out what Mr. Herbert overlooks—namely, that to enforce the payment of stipulated damages is practically the same thing as to enforce specific performance. To take his own illustration—a man pledges himself to work seven years for another: “I am not willing,” Mr. Herbert says, “to enforce that contract and make him do such work; but if he pledge himself to pay a certain sum of money should he fail in doing such work, I am willing to enforce that penalty.” It is clear that the stipulated damages have only to be fixed high enough-say at a million pounds-and the enforcement of the penalty is tantamount to the performance of the work. The courts, therefore, in such cases, will not enforce cither specific performance or the payment of the forfeit agreed on, but only damages quantum valeat. In other words, the court will assess the damage after the event, and the agreement come to by the parties before the event will be invalidated. This being the law and also common-sense, let us see what bearing it has on the marriage question.
In the first place we must find some basis upon which to assess damages in case of the breach of agreements of this nature. Mr. O'Brien quotes with approval the following passage from another writer: - When a prepossessing woman marries young on the terms of a life-partnership, and is put away at the age of fifty, and the partnership dissolved against her will, her capital, so to speak, having in the meantime been exhausted for the good of the firm, it seems but just that, as her youth and beauty cannot be returned to her, some compensation should be made for the breach of contract. It may seem so; but “things are not what they seem.” On what basis is the compensation to be based? Assuming that other things are equal, that both contributed an equal sum to the common treasury, that both put their youth and beauty into the concern, and that these also were equal, that the partners drew equal shares of profit in the shape of happiness, and in such case I confess I fail to see any ground for a claim to compensation. How the State is to value the faded beauty of an elderly lady I do not know. Reversing the position, if it is the man who is put away at the age of fifty, is he to have a claim for strength “exhausted for the good of the firm”? Besides, so far as I can learn, Mr. O'Brien allows this claim only in the case of an agreement for life. He would not recognise an agreement to marry for a term of years—say for ninety-nine years. I really feel compelled to ask Mr. Herbert and Mr. O'Brien a few simple but not very pleasant questions. Would they enforce a prostitute's claim to a sum agreed upon? Would they enforce a properly-drawn agreement between a man and a woman to live together for a couple of months at the seaside, the man to pay all the expenses? Would they put the State's endorsement on a marriage agreement for one year, provision being made for the child, if any? Would they allow a promise to marry, if sufficiently established, to be a ground of action, as it now is? And would they enforce performance of such a promise in the case of a married man? That is to say, would they not only tolerate bigamy, but also enforce it, in case the second woman could prove the promise? Would they repeal all law punishing seduction, by making proof of consent a sufficient justification-and at all ages? Unless these and a hundred similar questions can be answered with a plain Yes or No, it seems to me that the position taken up by these writers will have to be abandoned. If any one is bold enough to declare himself in favour of enforcing all agreements of the kind, where the evidence is sufficient, he will have a difficulty in drawing a line between acts which even the most advanced thinkers would distinguish as moral and immoral.
There is, I submit, another weak point in the position taken up in Free Life; not only does contract cover a great deal too much ground, but it also covers a great deal too little. Broken promises are not the only weapons wherewith to hurt people. We shall never solve the marriage problem by regarding it as a department of the law of contract. Even the State dimly perceives this. The absurd and illogical action for breach of promise to marry (breach of promise to promise) is really nothing more than a tortuous way of compensating a woman for injury to her feelings; just as the barbarous claim for loss of service in seduction cases is merely a straining of the law to give a parent compensation, not for loss of service, but for injured feelings. Law apart, people who injure others deserve to be punished, and are punished, by individuals. There seems to be a sliding-scale of seventy, and different persons inflict different penalties. But on certain matters there appears to be a pretty general consensus. A married man who flirts unduly with a young girl, without stating his position, deserves to be reproved; one who gives her highly-seasoned literature to read deserves to be cut or shunned; one who persuades her to accompany him without the knowledge of her parents, to a low place of entertainment, deserves to be horsewhipped; one who commits a rape deserves to be shot; and so forth. A heartless woman-flirt perhaps, deserves also to be punished as the Roman law permitted the forcible violation of a prostitute. It would be impossible to bring some of these cases under the law of contract, and for all of them it would be a useless task.
What shall we do, then? Shall we follow Mr. O'Brien, who ostentatiously flings away his individualist shield, and appeals for aid to socialism? Shall we follow Mr. Auberon Herbert, who would enforce the fulfilment of all promises relating to sexual matters, or, what comes to the same thing, the payment of the stipulated damages? Or shall we follow those writers who affirm that the sexual arrangements of two persons in no way concern outsiders, and decline to recognise any such promises as binding contracts? It is hardly necessary to observe that at present we are in the clutches of Mr. O'Brien and those who think with him. The State arbitrarily recognises some engagements of the kind, without assigning any reasons, and declines to recognise others which, to most minds, seem to be entitled to equal consideration. It sanctions what may be coarsely termed a lease for life, but will not sanction a lease for a term of years. And it will not permit the parties themselves to dissolve partnership unless they comply with certain arbitrary and, it must be added, very revolting conditions. In the eyes of unprejudiced persons, unaccustomed to existing social arrangements, a marriage system would hardly be regarded as immaculate which requires life-long partnerships to be entered into without experience, and, as it were, in the dark; which, in case of disappointment, enjoins on the parties what Godwin denounced as a life of unchastity-the procreation of children in the absence of love; which winks at the out-and-out sale of a girl's person into life-bondage for hard cash; which unequalises the male and female children's inheritance on the ground that women are a marketable commodity, and may expect to be “kept” by their husbands; which enforces the barbaric restitution of conjugal rights; which sanctions the rape of a married woman; which refuses a woman divorce on the ground of her husband's adultery; which offers the youth of the country the choice between an irrevocable bond and prostitution; which calls into being a standing army of public women; and which, in consequence, hands down from generation to generation distempers which would die out in a decade under a system of orderly freedom.
“True,” replies the defender of the present artificial system, “but what are we to put in its place? Our marriage laws and customs may not be perfect-nothing is perfect under the sun-but surely they are better than the free love or promiscuity which their abolition would make room for?” Here, again, we have a begging of the whole question. Would the removal of restraints be followed by a regime of promiscuity, or anything like it? Not at all. To affirm this is to despair of the race; it is to deny the very tendency towards monogamy which is so marked a feature in the history of civilisation. It is to affirm that the law is warring against Nature; that in the absence of external coercion, the observed tendency towards monogamy would be reversed. This feeble argument on behalf of despotism has snapped short off on every occasion on which it has been put to the test. It is on all-fours with the defence of the usury laws, with the defence of State-enforced religion, with the defence of the old sumptuary laws, and with hundreds of other State measures of past and present times, forbidding the people to rush on to their own destruction. People do not rush on to their own destruction, even when not dragooned by superior persons. On the whole, under the beneficent rule of natural selection, they make towards salvation. This is, doubtless, surprising to those who hold that we are all born in sin, and steadily treading the downward path; but it is, nevertheless, an observed fact. And upon those who urge that it would be otherwise in this matter of sexual relations the burden of proof must rest.
Let us endeavour to forecast what would happen in the absence of any marriage law whatever among people in an advanced state of civilisation. Their habits, inclinations, and inherited moral instincts would remain unaffected. They would not suddenly become transformed into a herd of swine. Love not being a thing to be ashamed of or secretly indulged, a well-disposed girl would under a free system, just as she now does, confide in her parents. The mother, father, or guardian would, just as is now done, make the usual inquiries, and, if satisfied, consent to the betrothal—call it marriage or by any other name. The absurd agreement to agree, promise to promise, now called an engagement, would probably disappear, and with it the even more anomalous action for breach of promise. The agreement would take the form of a public notification; that is to say, it would be registered. And provision would be made therein for possible issue, in the form of a settlement by the husband on the child, if any, contingent on the wife's fidelity till its birth. This would practically amount to a one-year marriage. In the great majority of cases the contract would, of course, be renewed. To deny this is again to deny the truth of the monogamic tendency, which is a libel on civilised humanity. And it would soon be seen that, in order to save time and trouble in marrying again and again, the original contract should hold good until dissolved by the wish of either party, in the same formal and public manner as that in which it came into existence, namely, registration. The effect of dissolution would not be to relieve either party immediately. The husband's liability for the children of the marriage would continue for the space, say, of one year, contingent as before on the wife's fidelity. And the wife would be unable to marry again during that period without forfeiting the settlement on the child's behalf. And what would be the effect upon third persons? Adultery would become so rare and so contemptible (being wholly uncalled for) that the adulterer would be socially ostracised. It could be prompted only by the meanest and most sordid motives, or else result from an uncontrollable passion disgraceful alike to both parties. At the same time the law would take no notice of the act, except in so far as it affected the evidence of paternity. The settlement made by the husband would be cancelled, and the responsibility for the maintenance of the child would fall back on the mother; just as it now does when no father can be indicated. In short, the law would pay no heed to claims based on injury to the feelings. But cases of violation of the contract would be so rare as hardly to require separate consideration. In that minority of cases in which the union was dissolved by the wish of one of the parties, it would be done in the proper and lawful manner. And the obligation would continue for a period of one year after registration of divorce, or such shorter period as fulfilled the terms of the contract. For instance, if a child should be born the day after registration of divorce, the settlement would be good, and both parties would be at once free to marry again. A woman in the position described in the hypothetical case cited by Mr. O'Brien, could have no claim, either legal or moral, to compensation. After years of marriage, during which her youth and beauty “have been exhausted for the good of the firm,” she is deserted by her husband. Now, it must be admitted, that either the union (so long has it lasted) was a love-match, or it was not. If it was, then the bill is paid. If, on the other hand, it was not, then it must be classed with what are now called immoral contracts. Unchastity, as one of our leading writers has said, is union without love. Morally, therefore, it is entitled to no compensation. I am not saying dogmatically that the State should refuse, as it now does, to recognise immoral bargains. By some, it may be argued that if a woman chooses to let her body out for hire, by the day or for life, she ought to be entitled to recover in a court of law; just as she could if she let out her horse or her sewing-machine. All I say is that the public conscience is at present opposed to the sanctioning of such agreements, except in the case of a lease for Jife. And it would still be opposed to it in the absence of the existing legal system.
It is unnecessary to go any deeper into group motives. They are quite independent of the legal system in vogue. We may take it for granted that the public conscience will not permit of infanticide, or of certain surgical operations; and we may attribute the fact to the increasing sense of the sanctity of human life, or to any other cause. Anarchy or Archy, the community will in all probability hold the mother responsible for the support of her child in the absence of any evidence of paternity, just as it does now. And what is more, it will hold her responsible in the absence of any express admission of paternity by the putative father, and a definite settlement by him on the child of the union.
This, then, is the proper limit of State action in the matter. It is not necessary to go with those who cry, “Make a clean sweep of the whole affair; the sexual union of two persons in nowise concerns others.” For several considerations point the other way. In the first place, in a moral age, love is not a thing to be ashamed of; indeed, successful love is universally regarded as a subject of legitimate pride. Secondly, it saves heart-burnings to know beforehand that a particular woman is appropriated, so to speak, and not properly open to attentions. Thirdly, public notification explains situations which might otherwise appear compromising. Fourthly, and chiefly, it makes the community a witness as to paternity, as the ceremony of adoption did in some places in the days before marriage. A man and a woman usually unite for one or other or both of two purposes, namely, the pleasures of love and the procreation of children. It is certain that as to the second of these purposes, the community is interested. The increase of population is a subject of general concern, even though the loves of citizens may be a matter of complete indifference. Hence the community will continue to sanction contracts providing for the support of children even when it has ceased to sanction agreements in which the attractions of one party are thrown into the scale against the wealth of the other. “But,” says Mr. O'Brien, “your free system makes no provision for the woman.” True, and why should it? The results of the union are equally beneficial to both—on the average. “Not at all,” he rejoins, “the woman undergoes all the pains of child-bearing for the joint good; towards this the man contributes nothing.” Here I join issue. In all healthy natural processes of life there is a net gain of happiness. On the average, the pleasures outweigh the pains. On the average, life is worth living—a net gain. On the average, the pleasures of love are an equal gain to both. And the pleasures of maternity outweigh the pains of child-bearing. I speak of those parental joys which the man cannot share or even conceive. “A woman when she is in travail hath sorrow, because her hour is come; but as soon as she is delivered of the child, she remembereth no more the anguish, for joy that a man is born into the world.” And the joy increases and outweighs the anguish a thousandfold. When, therefore, it is contended that the joys of marriage are not equal for the two sexes, it is because the pains of labour are set off against the pleasures of love, and the ecstasy of maternity overlooked altogether. Mothers do not make use of this argument. Only those women who know nothing of the blessings of maternity speak of the pains of child-bearing in exaggerated language as an unmitigated evil cruelly handicapping one sex. Medical men are all agreed that as a rule women of mature age are unhealthy unless they have become mothers; and the best authorities are of opinion that in order to ensure perfect health every woman should give birth to two children. Complete life is the fulfilment of all the natural functions. And the flimsy theory that to enable a woman to attain to the complete life is to put oneself in the position of her debtor, requires an amount of sophistical underpinning which would tax the resources of a Mahatma.
“But,” retorts the defender of despotism, “though you may have shown that the happiness of the two partners is equal, yet you must admit that the woman, being, to start with, a weaker creature, cannot bear children and attend to them during infancy, and at the same time earn her own bread on equal terms with the man.” I do admit it; it is clear that the drain of vital energy implied by maternity must needs detract from the total individual vitality. I go further; I admit that two and two make four. And what is more (though this is rank heresy in the eyes of the Superior Person), I believe that my fellow-men have recognised the same recondite facts. I suppose the foundation-stone of despotism, autocratic or socialistic, is, and ever has been, the firm faith of the Superior Person in the crass stupidity and incorrigible criminality of other people. Recognising, as I have said, all plain facts, what is more natural than that a man should help to support the wife of his bosom and mother of his children? Love, honour, and justice all pull in the same direction. It is also an observed fact throughout the greater part of animal nature—the Superior Person might advantageously study the habits even of the little birds in the trees. And yet we are solemnly told that, but for the strong arm of the law—the artful machinations of the Superior Person himself—all these potent promptings of nature would be as cobwebs. I repeat that in the absence of all artificial law on the subject, the unequal division of labour between men and women would continue, and in all probability increase. Wives tend to do less and less work. In the well-to-do ranks of life the women of to-day rarely do any bread-winning work at all. But the tendency can be based upon a much wider induction. Any one who compares the physical strength and intelligence of a horse and a mare, or of a lion and a lioness, will admit that the difference in favour of the male is very slight compared with the difference between a man and a woman. He will also observe that a savage woman not only does more hard work, but is more capable of doing it than a civilised woman. This is attributable to the fact that, in spite of the keen struggle for existence, woman, instead of becoming more capable of self-support, is actually becoming less so, by reason of the willingness of the man to work for her. That State coercion is needed to back up one of the strongest impulses of humanity is too monstrous a contention to warrant further consideration.
It is further alleged that to break up the system of life-long marriages is to run counter to the monogamic tendency. But who wants to break it up? The tendency of civilisation towards monogamy is admitted; and what is more, it can be shown that the artificial restraints imposed by the law tend the other way. It is said that there would be a large number of one-year marriages dissolved at the end of the year. Possibly; but how many one-day marriages are there now? And how many mal-unions would be obviated? All those unions which ought by nature to be permanent would become permanent; and those which did not become permanent are precisely those which ought not to be permanent. To deny this is again to deny the monogamic tendency, and not to affirm it. And to dispute this tendency is to knock away the sole support of a marriage system of any kind.
But a free system, it is said, would lead to early marriages. True again; but what is there to set off against the possible risk of over-population? To begin with, a death-blow would be struck at prostitution; and in the second place, many persons, having at the normal age tasted the joys, etc., of matrimony, and experienced the burden of family cares, would probably be content in the future, or at all events for long periods, to sit in the cool shades of single blessedness. Again, how sweet are grapes that are out of reach! The thirstiest man is he who has no wine-cellar. The obstacles cast in the way of the natural satisfaction of the instincts only intensify the passions, and often divert them jnto morbid channels. And this suggests the answer to those who say that it is not a question of choice between early marriages and prostitution; that there is a third course—celibacy. Are, then, the evils of enforced celibacy—of ungratified impulses—to count for nothing? Is it really good for man to be alone all through the period of adolescence up to the age of twenty-five or thirty? or for woman either? Is the effect on the race good? To what is due the mass of morbid and stimulating pabulum flung to our youth of both sexes in the shape of sensational novels, obscene pictures, dubious dramas, low music-hall performances, suggestive ballets, and meretricious entertainments of all sorts, with which London and Paris are deluged? Is it due to over-indulgence of the normal appetites, or to over-restraint? Away with cant; let us have the truth! I answer unhesitatingly, to over-restraint. Who are the customers of the purveyors of this garbage? Unfledged city clerks, servant girls, army loafers, disguised curates, people too poor to marry, any but happily married men and women. Let Mr. O'Brien point out any haunts in Constantinople to vie with the social cesspools of Paris and London. Crush Krakatoa, Mr. O'Brien—stamp out Vesuvius; and then, perhaps, we will entrust you with the task of stifling the natural instincts and impulses of healthy men and women. Attempt it you can; but at what a cost! Consumption and hysteria on the one hand, debauchery and disease on the other. Do the fertilising streams from the hills strike you as excessive?—then dam them if you dare. By Jupiter Pluvius, they will have their revenge, and the floods you yourself have created, will sweep you and your, barriers into the sea.
Now it is easy to fix our eyes too exclusively on the State as the great violator of personal liberty. Individualists are concerned to know, not only what it is the duty of the State to do, but also what it is the duty of a private citizen to do. Am I as a citizen justified in interfering with my neighbour's freedom to think what he likes and to say what he likes by turning my back upon him, by warning others against asking him to their houses, and by other well-known processes grouped together under the head of the social sanction? This also is a question for individualists. It is not correct to say that individualists, as such, are no more concerned with the ethics of marriage than they are with the harvest prospects or astronomical discoveries. So long as they admit the duty of the State to punish certain kinds of wrong-doing, they must be prepared to say what is and what is not wrong-doing in the domain of sexual relations. For instance, the English people generally regard fornication as morally wrong, and yet it is no longer even an offence in law; whereas other forms of sexual impropriety fall under the head of crimes, and are punished as severely as forgery or perjury, although third persons seem to be in nowise affected thereby. Again, there are certain agreements of this nature which, on the ground that they are “immoral contracts,” the State will not recognise. (Strictly speaking, they are not contracts at all; but that is a mere question of nomenclature.) Other agreements equally immoral the State recognises and sanctions. A girl who throws her personal charms into the scale against her suitor's money-bags, and sells herself into life-slavery for hard cash, is surely not less a prostitute than one who makes a time-bargain of a like nature. The law will give to the first her pound of flesh, but the second cannot even sue for the wages of iniquity. Is this fair?
In order to arrive at satisfactory conclusions as to what the State ought to do in these matters, it is absolutely necessary to discuss the ethical question, and ascertain what we ourselves ought to approve. We must ask ourselves point-blank what it is which makes sexual intercourse sometimes right and sometimes wrong. Perhaps the answer of the ascetics is the most consistent. This school regards love as a devil to be exorcised. Man is a compound of two antagonistic elements, of a divine spirit which tends upward, and of a carnal carcase which tends downward. St. Paul, the Christian writer, holds this view very strongly. In a letter written to the people of Corinth, he says: “I would that all men were even as I myself. I say, therefore, to the unmarried and widows, it is good for them if they keep so, even as I do; but if they cannot contain, let them marry, for it is better to marry than to burn.” In other words, marriage is a sort of half-way house between celibacy and fornication. It is better than the last and worse than the first. But this view is by no means confined to the superstitious. Philosophers of various schools endorse it. Even Mr. Herbert Spencer has more than hinted that the gratification of the sexual appetite is a tribute to the race at the expense of the individual. And Spinoza condemns love as “a species of madness,” and as promoting “discord rather than harmony.” I should have premised that a whole vocabulary of kakophemisms has been invented by this school, whereby the truth is darkened. Love is called “lust,” the natural tendency to generation common to the whole animal kingdom is termed “sensuality.” The love which arises from the contemplation of bodily beauty Spinoza calls “meretricious.” St. Paul warns Timothy against young1 widows, because, says he, when they “wax wanton they will marry again; having damnation,” And so forth. “Herein,” says Mr. O'Brien, “lies the supreme advantage of monogamy: it is the minimisation of sensuality, and its reduction to the fewest possible terms compatible with the continuance of the race.” And again he says: “Either the intelligence must grow at the expense of the beast, or the beast must grow at the expense of the intellect” (vide Lexicon of Kakophemisms: “Beast: a human being regarded from the standpoint of the Saint”). This is an honest and consistent attack upon one particular sense. One cannot pause to analyse the slight shades of difference in the opinions of those who adopt this general view—more or less. For example, John Milton and his puritanical followers compound with the devil by admitting that the “passion” is wicked—'unless sanctified by marriage. Spinoza, on the other hand, holds that it is wicked in any case. (For the precise meaning of “passion” again refer to the Lexicon of Kakophemisms: “Passion: strong love between the sexes, regarded from the standpoint of the Saint.”) But apart from the kakophony, I absolutely dispute the doctrine conveyed. The intellect does not grow at the expense of the “beast,” but by the evolution and elevation of the “beast.” Love, in the sense of Eros, is simply “lust,” refined, ennobled, transfigured. It is not the extirpation nor yet the minimisation of the appetites, nor of any of them, but their elevation, which makes life more beautiful. Why ride a tilt at one particular sense? Because it is so strong that most of us fall victims to it? But that is a coward's answer. Some savage races will not use fire for the same reason. Shall we also condemn music and the pleasures of the table? The good old saints and hermits so picturesquely brought before us by Mr. Lecky, were at least consistent. They condemned alike music, painting, sculpture, the drama, decorative dress, and even “tub”; and they therefore had reason in denouncing the love which springs from the contemplation of bodily beauty. It is sheer folly to denounce the refined gratification of one appetite, and to applaud the refined gratification of the others. Even the ascetics doubtless enjoy the fragrance of roses and honeysuckles. So, cats like the scent of verbena and musk. Dogs do not. Can the ascetics guess the explanation of this feline taste? The remarkable similarity between the aroma of the musk-plant, the “spikenard very precious,” and that of the secretion of the preputial glandular pouch of the musk-deer and many other animals, may furnish them with a clue. Neither do we love the perfume of the violet for no reason. The fact that our ancestors were dependent on wild honey for their saccharine supplies for untold generations explains it. Is it, then, a gluttonous piece of “animalism” to smell mignonette? Readers of Darwin's theory of the origin of music are aware that the cries of our early ancestors expressed the coarsest feelings—rage, fear, hate, lust. Shall we then regard the symphonies of Beethoven as a pandering to the “passions” of the “beast”? Then why call sensual pleasures “low”? It surely depends upon the degree of their refinement. Evolutionists are bound to admit that Man, by his ceaseless efforts to please all the senses, to gratify all the natural impulses, has soared from his original “beastly” condition to his present state of intellectual and moral pre-eminence. Not one of his senses has been neglected or excommunicated. Not one of them has even been weakened. As Sir Thomas Browne said: “Everyman truly lives so long as he acts his nature, or in some way makes good the faculties of himself.” Socrates pointed out a couple of thousand years ago that so far from proportioning the exercise of the sexual function to the requirements of population, the reverse process had been followed by man. There is probably no species of mammal among whom there is so great a waste of this special energy—looked at from the standpoint of race-growth. But the like is also true of the appetite for food. No animal cats for the sake of the palate alone, apart from the nutritive effect of the food, in anything like the degree that man does. Does any other animal drink without being thirsty? Do other animals create sounds without any purpose or object other than that of tickling their own ears? To say that Man lives to eat is, after all, a truer statement than that Man eats to live. ' Man is the most sensual animal under the sun, and is becoming more and more so with the process of the suns. But his “sensuality”—let us tolerate the kakophemism—is becoming more and more refined and complex. It is steadily rising from the stage in which it is fairly described as sensual indulgence to the stage in which it is more intelligently described as the satisfaction of the emotions. That which is only a difference in degree, the ascetics persist in regarding as a difference in kind. As the gambols of the lambs are to a finished ballet, as the caterwaulings on the roof are to a sonata, as the tattooings of a cannibal are to the paintings of an Apelles, so is the “lust” condemned by the ascetics to the loves of Romeo and Juliet. We cannot exterminate the race of briars without slaying the rose of Damascus. If the Magician had cursed the crab-apple for being sour (as a fig-tree was once cursed for being unprolific), we should never have tasted Ribston-pippins.
I am very far from denying that there are forms of sensuality which may be justly described as “gross,” or “coarse,” or “earthly,” or by any other term of disparagement, in the same way that any one who has soared to the epicure's pinnacle of taste for oysters and chablis may justly denounce as “gross” the taste of the coster for whelks and porter. Even the child's preference for cheesecakes and ginger-beer may be stigmatised as crude, immature, and perhaps “gross.” Still, all three penchants are built on the same foundation—the sense of taste. The “beast,” after all, lurks at the bottom of Mozart's Requiem and of Tennyson's In Memoriam. But he is a noble “beast”—refined, glorified, transfigured. Some one has spoken of the poetry of the dinner-table. Charles Lamb has gone nigh to apotheosising roast sucking-pig. And even the poor crabbed bigot, after his Lenten salad, will linger over some flower, whose fragrance arouses the memory of half-forgotten days, with emotions widely different from the feelings of a tom-cat in a bed of musk.
I repeat that in the satisfaction of each sense there are degrees of elevation and refinement; and that no one of the senses can wisely be neglected or excommunicated. Love is the poetry of sexual desire, just as music is the poetry of sound. Let Dr. Johnson define music as the least disagreeable of noises, and let St. Paul describe marriage as the least objectionable form of carnality, if it please them. Similarly we may, if we choose, speak of the scent of the hyacinth as the least disgusting of stenches; but it is difficult to see what is gained by this use of derogatory phrases. Even the most puritanical of ascetics would not go about asking who was the least ugly woman at the ball, or which was the least loathsome dish at the banquet. Then let us have done with all this pessimistic phraseology in discussing this particular department of ethics.
There is another point. Perhaps the epicure is right in approving oysters and chablis. His good taste may be beyond cavil. Mr. Auberon Herbert and Mr. O'Brien may be quite right in eulogising monogamic unions as the highest and best. Personally I think they are. But does it necessarily follow that we are justified in denouncing all other unions? It may be that the coster really prefers whelks and porter. Again it may be that he cannot afford to pay for oysters and chablis. In either case it would be quixotic to reprove him for indulging his “low” and “beastly” appetite. It would be even more foolish to chide the child for preferring cheesecakes and ginger-beer. Its nature is not yet sufficiently developed to admit of its appreciating the “higher ecstasy.” Mr. Morris tells us that this will still be so in the year two thousand and one. Does not this argument seem to apply also to the marriage question? Is it necessary, because we believe in monogamic unions, both from the point of view of the individual's happiness and also as a racial tendency, that we should condemn all other unions without a hearing? Perhaps even “butterfly relationships” are better than none, and even good in themselves. Who knows? Let us at least suspend judgment till the contrary is proved. Just as it seems to be “ordained” that every child shall pass through the toffee age before rising to higher levels, so it may be well that our youth of both sexes should pass through a butterfly age before rising to the appreciation of the monogamic life.
There is evidence of a strong current of public opinion in this direction—an opinion, it is true, expressed in deeds, not words. The proverbs and commonplaces about “wild oats” all point that way. At all events the question cannot be dismissed without fair examination.
And this brings us to the analysis of chastity. I affirm with bated breath, but without fear of sincere contradiction, that the great majority of English mothers (even the most orthodox) prefer a son-in-law who has “sown his wild oats” to what I may call a virgo intactus. This testifies to a feeling that one who has passed through the normal stages is better fitted to appreciate the monogamic relation than one whose natural instincts are uneducated, stunted, or distorted. If this half-acknowledged sentiment concerning bridegrooms does not yet extend to brides, there must be a reason for it, and for that reason we have to seek. It is usually assumed that men prefer marriage with maidens as such. But this strange assumption is upset by several considerations. Widows are not generally regarded as less eligible than spinsters. Nor, alas! is the distaste for polyandry so marked as to make adultery an unheard - of offence. The party who seems to object to polyandry in such cases is usually the husband. And yet, sexually, he seems to be in the same position as the paramour. I am sorry to have to touch on these unsavoury topics, but it must be added that the mania for young virgins, as a certain well-known writer has pointed out (inopportunely, as I think), is mostly confined to old and morbid men, whose habits or capabilities will not bear comparison with others, and who therefore seek after the inexperienced. A man's dislike to his wife's infidelity is probably net attributable to his personal antipathy for polyandry; but partly to his dread of supporting another man's mistress (which under the present barbarous system he does); partly to his dread of supporting another man's children; partly to fear of certain risks, which in the olden time was a well-grounded fear among all classes; partly to a natural dislike of seeing another preferred to himself, a fortiori publicly; partly, and chiefly, to a laudable desire for a monopoly of his wife's affection as distinguished from a monopoly of her person. This distinction is a very important one. It is noteworthy that a paramour who is sure of the monopoly of his inamorata's affection seldom cares much to obtain a monopoly of her person. The strength and persistency of this passion for a monopoly of affection is the best evidence of the monogamic tendency. This view is confirmed by the fact that wives are not less jealous than husbands, although obviously there is no danger of their having to support another woman or her children. That this monogamic yearning for a monopoly of affection is the true cause of what is usually set down to a horror of unchastity, is made even still more apparent when we reflect that jealousy is as strong a passion before as after union; that is to say, when the other part-causes are all inoperative. There is absolutely nothing to show that healthy-minded men would prefer inexperienced women as wives, beyond existing customs and prejudices.
Whilst firmly supporting the monogamic principle, and whilst fully persuaded that the highest civilisation of the future will be based upon that principle, I cannot shut my eyes to the facts. All the evidence seems to me to show that, just as all life is an evolution from the simple to the complex -just as our tastes progress from the crude to the more refined–so the monogamic relation is the last, crowning and most elevated sexual condition, to be reached only by passing through the cruder and less perfect condition during adolescence, when experience is on the make. It is as foolish to thrust monogamy upon young persons who have not seen life as it is to stuff Bach and Beethoven into the ears of children who naturally prefer ballads and simple melodies. And just as there are many who never rise to the appreciation of anything more complex than eight-bar melodies through life, so there are many who never rise to the appreciation of the monogamic relation. To denounce such persons is as unphilosophical as to denounce the poultry in the yard, or the polygamous patriarchs of the Old Testament. And to forbid them the highest happiness of which they are capable is rank tyranny and bad policy, whether it be effected by the State or by dominant individuals. Do we train our children to enjoy classical music by prohibiting Little Bo-pcep and Sing a Song of Sixpence? Do we drag them to sit through Lohengrin before they have developed a taste even for II Trovatore and Faust? Surely none would recommend such a training, except those who take their children weekly to sit through a lecture on the Origin of All Things before they have found out where the water in the ever-flowing river comes from. There is yet another parallel. The stages of development through which the individual passes are similar to the stages through which the race passes. I need not go into the well-known morphological analogies. From prehistoric times down to our own day we have seen a gradual change from promiscuity, through polygamy, to monogamy. Among savage races to-day we see all the stages in actual operation, and well fitted to the tribes which are passing through them. Now, unless the parallel breaks down in this particular, and there is no reason why it should, we may expect to find a similar evolution in the case of the individual. And, casting cant, humbug, prejudice, and hypocrisy to the four winds, we do find it. Young people are not monogamic at first. It is the tritest of commonplaces that the younger a couple start married life, the less happy the union is likely to prove. You may as well pledge a youth of seventeen to remain of the same faith through life as to remain of the same taste. But the man who changes his opinions on fundamental questions after the age of thirty must be either a rickety soul or shockingly ill-educated. In like manner, a shifty lover of mature age betrays either an unstable nature or a bad training, or both. A well-balanced mind is “settled for life” when the lumbar vertebræ consolidate themselves.
If permanent unions are the natural outcome of civilised instincts, they will come without the assistance of the social tinker. If they are not, then we are fighting against nature as the Titans warred on the gods—in vain. The system is artificial and rotten, and must fall. For my part, I do not believe that even the approximation towards monogamy observable to-day among civilised races could have been imposed upon them from without. Even the terrors of religion could not have prevailed against the impulses of love, any more than the terrors of the deep prevailed against the voice of the siren. Throughout all the ages Religion has conformed to the current sexual customs. The gods of Olympus sided with the abducer of Brisēis; the God of the Hebrews rewarded the virtue of Solomon with hundreds of wives and concubines; the God of the Koran offers eternal promiscuity to the faithful; and the God of the Dark Ages only followed the rule binding on gods generally, by enjoining monogamy upon all who would be saved. No; the tendency comes from within. I believe in monogamy, not because it is good for the race, not because it is good for the husband, not because it is good for the wife, not because it is good for the children—but because it is good for each and all.
The mutual love which ends with the life, which is strengthened by time and memories and attachment to the children, and which is sanctified by freedom, is the latest and noblest development of the sexual emotion. Perhaps it may be left to the poets to speak of it. Perhaps only those who have experienced it can conceive it. And it may be that those only who have reached it by yielding to nature, and not by bending the neck to duty, can enter truly and sympathetically into the feelings of the grandam voiced by Burns:—
But there is a time for all things; and youth must not clamour for the joys of maturity, “Tannhäuser,” says Mr. Bernard Shaw, “may die in the conviction that one moment of the emotion he felt with St. Elizabeth was fuller and happier than all the hours of passion he spent with Venus; but that does not alter the fact that love began for him with Venus. Now Tannhäuser's passion for Venus is a development of the humdrum fondness of the bourgeois Jack for his Jill, a development at once higher and more dangerous. … The fondness is the germ of the passion; the passion is the germ of the more perfect love.”
This is excellent; and yet Mr. Shaw seems to hope that although for the present the way to perfect love lies through the Venusberg, the time will come when our children will be born on the other side of it “and so be spared that fiery purgation.” Let us hope not. When that time comes, our children will be born with a preference for the music of “Tannhäuser” over Pop goes the Weasel; and the babies' rattle trade will be ruined. I think we may take it for granted that to the end of time “boys will be boys,” and that we shall never be able “to put old heads on to young shoulders.” Children will prefer toffee to cigars in the year of our Lord ten thousand; and young men and young women will pass through the groves of Idalia to the
All I propose is to leave this potent god to shift for himself, without the aid of a policeman.
It remains to consider three fairly formidable objections to a free marriage system:—(1) Married women's property would become a tangled skein. (2) The effect on the bringing up of the children of a divorced woman would be disastrous, and all the more so if she married again. (3) The danger of over-population would be considerably increased. Let us examine these objections in their order.
It will be generally admitted that the present dependent condition of married women as to their proprietary rights is a survival of the patriarchal system, under which the wives and children of a man were his own property. The system unquestionably worked well at one time, but even in its present modified form it appears to be somewhat out of date. It seems to lag behind the sentiments of the age. Marriage should in no way affect a woman's control of her private property; at least, there seems to be no valid reason why it should. It will be said that creditors of the common household (shopkeepers and the like) would have a difficulty in knowing to whom to look; and that the absolute mutual trust implied by love would enable married couples to cheat third persons. But there is an old saying, “Father and son can cheat the devil.” And yet father and son are not compelled to enter into partnership. Of course, there is much truth in the saying, but the remedy is obvious. The presumption should be reversed, that is all. When a husband wishes, for convenience' sake, to become responsible for his wife's debts, let him publicly notify the fact; and until this is done let shopkeepers beware. Or if a husband and wife wish to be jointly and severally liable, let them say so: it is an easy matter. As it is to-day, it is no uncommon thing to see a notice in the papers that Mr. X will no longer hold himself responsible for Mrs. X's debts. Besides, shopkeepers seem to have no difficulty in dealing with bejewelled ladies who cannot find their marriage - lines. The truth is, Married Women's Property Acts may be passed one after the other, but until woman has the full control of her belongings, both before and after marriage, her name will still be Hagar.
An incidental, but very considerable, advantage of this reform is that marrying for money would cease to be the paying game it now is. The spendthrift in search of an heiress would disappear from the scene; or, at the worst, he would find himself outside the door with his debts on his hands after a very short spell of probation. And the extinction of fortune-hunters—the eradication of this fatal incitement to unchaste unions—would mightily strengthen natural selection, and so improve the race. When a blasé old scarecrow marries a fresh young girl of eighteen summers, one can hardly blame him; perhaps he still believes in his own powers of fascination quite apart from his twenty thousand a year. And one can hardly blame the girl, who is quite possibly the daughter of a country parson with a dozen children and one hundred pounds a year. Who, then, is to blame? Why, the State, which sanctions an immoral bargain, every whit as bad in se as a bargain between a wayfarer and a prostitute; and in one respect worse, inasmuch as it is opposed to that policy of the law which will not in other matters enforce specific performance of a perpetual contract. Barbarities such as these—far worse than suttee—could not exist under a free system. So rank a weed can flourish only in the soil of despotism.
Let us now turn to the effect of the system on the bringing up of the children of the divorced woman. Either she would marry again or she would not. In the latter event they would be in the position of a widow's children. In the former event they would be in the'position of children with a stepfather. Both positions are unfortunate, but not so deplorable that the whole foundations of society need be dislocated in order to evade them. The children would, as at present, be provided for by the settlement and by the mother herself, and sometimes also by the stepfather. I have seen three families all brought up in the same household with complete impartiality—the children of the wife by her first husband, the children of the husband by his first wife, and the children of the present union. Again, it must be borne in mind, if the separation is due to the woman's love of change for its own sake, that not only are the most erotic women the least possessed of any natural love for children, as Mr. O'Brien admits, but also they are the least likely to have any. If, on the other hand, the separation is due to the man's unfitness for the monogamic state, we have only to ask, what would have been the condition of affairs if the union had been forcibly maintained? It is a misfortune to be fatherless, but it is a far greater misfortune to be brought up by parents who lead a cat-and-dog life. Even freedom cannot eliminate all the ills that flesh is heir to; it can at best diminish their number, and minimise the effects of the remainder.
Lastly comes the threadbare over - population question. I am not prepared to admit that, under a free system, in spite of early marriages, a larger number of children would necessarily be born. That they would be stronger, healthier, and more beautiful there can be little doubt. Natural selection would effect that. But would they be more numerous? It is a trite saying, and true withal, that youth marries in haste and repents at leisure. It is not to be expected that mere boys of nineteen and twenty should foresee and appreciate the full weight of family cares. They learn it to their cost by bitter experience. It is then too late to do more than repent. And what medicine is now prescribed for them by the orthodox economist? Is there not something revoltingly cynical in the advice usually tendered to the young married workman, whose work is hard, whose pleasures are few, and whose wages are at subsistence level? “Prudence, my good fellow, self-control,” cry Mill and his followers; “you cannot afford a large family.” And then come the neo-Malthusians with their nostrums. Surely, the obvious course, after a term of unwise matrimony, would be a term of celibacy with patience. Impecunious bachelors of the upper class remain unmarried. The last thing they dream of is to marry an equally impecunious girl, and then exercise self-restraint. But, to follow the career of the young workman. If he cared for his young wife and child, as most of them do (till the burden is too grievous to be borne), he would set to work with a will and a purpose to build up a home. It might be years before he was in a position to marry her again; but Jacob toiled fourteen years for Rachel, and a nineteenth-century Englishman is not less steadfast and persevering where the reward is love. Anyhow, during all that time he would be free to work and to move about in search of work, instead of being compelled to go on adding to the population and to his own burdens, as practically he now is. To those who object that his freed wife would take up with a new husband, I reply, You are as ignorant of woman as you are of man. There are households, it is true, where love flies out of the window as poverty creeps in at the door; but it is not of such that a race is built worthy of monogamy, and steadily tending towards it. Mutual respect and trust and hopeful encouragement would take the place of recrimination and remorse. Reunions, like any other object of a noble ambition, would be deemed not only worth fighting for and labouring for, but waiting for.
Finally, even granting that there might be more children, still they would be better provided for. The bulk of them would no longer be a proletariate of paupers, the outcome of a contract perpetuated by coercion. There is no stimulus to industry like the sight of the children's faces. And when the habits, customs and laws of a country are such that children are born in proportion to the means of support provided for them, we may possibly have an increased population, but we shall have a more equal distribution of wealth. And I do not hesitate to say that, under such conditions, an increase would be a blessing rather than a curse. Only to a free people is there any hopeful significance in the words, “Be fruitful and multiply and replenish the earth.” Who but a devil with his tongue in his cheek would pronounce such a blessing on the England of to-day?
In conclusion, I do not pretend to have touched upon all the difficulties of this highly complex problem. The questions with which I have dealt doubtless require further elucidation. But I trust I have said enough to show that the burden of proof rests on those who support the present coercive and restrictive system. I frankly admit that to those who hold certain prevalent cosmic theories many of my arguments cannot appeal. But “to the solid ground of nature trusts the mind which builds for aye”; and from those who accept this method I claim an answer, more especially from that increasing body of thinkers who have given in a general adhesion to the grand doctrine of political liberty—that every citizen should be allowed the fullest and widest possible freedom in all things, so long as he or she does not infringe on the equal freedom of fellow-citizens.