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Title: Marriage, As It Was, As It Is, And As It Should Be
A Plea for Reform
Author: Annie Besant
Release Date: September 29, 2014 [EBook #47000]
Language: English
*** START OF THIS PROJECT GUTENBERG EBOOK MARRIAGE ***
Produced by David Widger from page images generously
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MARRIAGE, AS IT WAS, AS IT IS, AND AS IT SHOULD BE
A PLEA FOR REFORM
By Annie Besant
Second Edition
London: Freethought Publishing Company
1882.
MARRIAGE: AS IT WAS, AS IT IS, AND AS IT SHOULD BE.
"_Either all human beings have equal rights, or none have any_."
--Condorcet.
I. MARRIAGE
|The recognition of human rights may be said to be of modern growth, and
even yet they are but very imperfectly understood. Liberty used to
be regarded as a privilege bestowed, instead of as an inherent right;
rights of classes have often been claimed: right to rule, right to tax,
right to punish, all these have been argued for and maintained by force;
but these are not rights, they are only wrongs veiled as legal rights.
Jean Jacques Rousseau struck a new note when he cried: "Men are
born free;" free by birthright was a new thought, when declared as a
universal inheritance, and this "gospel of Jean Jacques Rousseau"
dawned on the world as the sun-rising of a glorious day--a day of human
liberty, unrestrained by class. In 1789 the doctrine of the "Rights of
Man" received its first European sanction by law; in the August of that
year the National Assembly of France proclaimed: "Men are born, and
remain, free and equal in rights.... The aim of political association is
the conservation of the natural and imprescriptible rights of man;
these rights are--liberty, property, safety, and resistance of tyranny."
During savage and semi-civilised ages these "imprescriptible rights"
are never dreamed of as existing; brute force is king; might is the only
right, and the strong arm is the only argument whose logic meets with
general recognition. In warlike tribes fair equality is found, and the
chief is only _primus inter pares_; but when the nomadic tribe settles
down into an agricultural community, when the habit of bearing arms
ceases to be universal, when wealth begins to accumulate, and the
village or town offers attractions for pillage, then strength becomes
at once a terror and a possible defence. The weak obey some powerful
neighbour partly because they cannot resist, and partly because they
desire, by their submission, to gain a strong protection against their
enemies. They submit to the exactions of one that they may be shielded
from the tyranny of many, and yield up their natural liberty to some
extent to preserve themselves from being entirely enslaved. Very slowly
do they learn that the union of many individually feeble is stronger
than a few powerful, isolated tyrants, and gradually law takes the
place of despotic will; gradually the feeling of self-respect, of
independence, of love of liberty, grows, until at last man claims
freedom as of right, and denies the authority of any to rule him without
his own consent.
Thus the Rights of Man have become an accepted doctrine, but,
unfortunately, they are only rights of _man,_ in the exclusive sense of
the word. They are sexual, and not human rights, and until they
become human rights, society will never rest on a sure, because just,
foundation. Women, as well as men, "are born and remain free and equal
in rights;" women, as well as men, have "natural and imprescriptible
rights;" for women, as well as for men, "these rights are--liberty,
property, safety, and resistance of tyranny." Of these rights only crime
should deprive them, just as by crime men also are deprived of them;
to deny these rights to women, is either to deny them to humanity _qua_
humanity, or to deny that women form a part of humanity; if women's
rights are denied, men's rights have no logical basis, no claim to
respect; then tyranny ceases to be a crime, slavery is no longer a
scandal; "either all human beings have equal rights, or none have any."
Naturally, in the savage state, women shared the fate of the physically
weak, not only because, as a rule, they are smaller-framed and less
muscular than their male comrades, but also because the bearing and
suckling of children is a drain on their physical resources from
which men are exempt. Hence she has suffered from "the right of the
strongest," even more than has man, and her exclusion from all political
life has prevented the redressal which man has wrought out for himself;
while claiming freedom for himself he has not loosened her chains, and
while striking down his own tyrants, he has maintained his personal
tyranny in the home. Nor has this generally been done by deliberate
intention: it is rather the survival of the old system, which has only
been abolished so slowly as regards men. Mrs. Mill writes: "That those
who were physically weaker should have been made legally inferior, is
quite conformable to the mode in which the world has been governed.
Until very lately, the rule of physical strength was the general law of
human affairs. Throughout history, the nations, races, classes, which
found themselves strongest, either in muscles, in riches, or in military
discipline, have conquered and held in subjection the rest. If, even
in the most improved nations, the law of the sword is at last
discountenanced as unworthy, it is only since the calumniated eighteenth
century. Wars of conquest have only ceased since democratic revolutions
began. The world is very young, and has only just begun to cast off
injustice. It is only now getting rid of negro slavery. It is only now
getting rid of monarchical despotism. It is only now getting rid of
hereditary feudal nobility. It is only now getting rid of disabilities
on the ground of religion. It is only beginning to treat any _men_ as
citizens, except the rich and a favoured portion of the middle
class. Can we wonder that it has not yet done as much for women?"
("Enfranchisement of Women," Mrs. Mill. In J. S. Mill's "Discussions
and Dissertations," Vol. II., page 421.) The difference between men and
women in all civil rights is, however, with few, although important,
exceptions, confined to married women; i.e., women in relation with men.
Unmarried women of all ages suffer under comparatively few disabilities;
it is marriage which brings with it the weight of injustice and of legal
degradation.
In savage times marriage was a matter either of force, fraud, or
purchase. Women were merchandise, by the sale of whom their male
relatives profited, or they were captives in war, the spoil of the
conqueror, or they were stolen away from the paternal home. In all
cases, however, the possession once obtained, they became the property
of the men who married them, and the husband was their "lord," their
"master." In the old Hebrew books--still accounted sacred by Jews and
Christians--the wife is regarded as the property of her husband. A man
may "sell his daughter to be a maidservant" i.e., a concubine, as is
shown by the following verse (Ex. xxi. 7), and Jacob served seven years
for each of his wives, Leah and Rachel; his other two wives were his by
gift, and were rather concubines than recognised wives, their children
counting to their mistresses. If a Hebrew conquered his enemies, and saw
"among the captives a beautiful woman, and hast a desire unto her, that
thou wouldst have her to thy wife," he might take her home, and become
her husband, "and she shall be thy wife" (Deut. xxi 10-14). After the
destruction of Benjamin, as related in Judges xx., it was arranged that
the survivors should possess themselves of women as wives by force
and fraud: "Life in wait in the vineyards, and see and behold if the
daughters of Shiloh come out to dance in dances, then come ye out of
the vineyards, and catch you every man his wife.... And the children of
Benjamin did so, and took their wives according to their number, of them
that danced, whom they caught" (Judges xxi. 20, 21, 23). The same plan
was adopted by the Romans in their earliest days, when they needed
wives. Romulus invited the people of the Sabines and the neighbouring
towns to see some public games, and in the midst of the show the Romans
rushed in and carried off all the marriageable maidens they could lay
hands on (Liddell's "History of Rome," p. 20). These instances may be
objected to as legendary, but they are faithful pictures of the rough
wooing of early times. Among some barbarous nations the winning of a
bride is still harsher: the bridegroom rushes into the father's house
knocks the maiden down, picks up her senseless body, flings it over
his shoulder, and runs for his life; he is pursued by the youth of the
village, pelted with stones, sticks, &c., and has to win his wife by
sheer strength and swiftness. In some tribes this is a mere marriage
ceremony, a survival from the time when the fight was a real one, and
amongst ourselves the slipper thrown after the departing bridegroom and
bride is a direct descendant of the heavier missiles thrown with deadly
intent thousands of years ago by our remote ancestors. Amongst many
semi-barbarous nations the wives are still bought; in some parts of
Africa the wooer pays a certain number of cows for his bride; in other
places, money or goods are given in exchange. The point to be noted is
that the wife is literally taken by force, or bought; she is not free to
choose her husband; she does not give herself to him; she is a piece
of property, handed over by her original owner--her father--to her
new owner--her husband--in exchange for certain solid money or money's
worth; hence she becomes the property of the man who has paid for her.
In an admirable article in the _Westminster Review_ for April, 1876, the
following striking passage is to be found:
"As Aristotle long since remarked, among savages women and slaves hold
the same rank. Women are bought primarily as slaves, to drudge and
toil for their masters, whilst their function as wives is secondary and
subordinate. It is more right to say of polygamous people that their
slaves are also their wives, than to say that their wives are slaves.
They are purchased as slaves, they work as slaves, and they live
as slaves. 'The history of uncultivated nations,' it has been said,
'uniformly represents the women as in-a state of abject slavery, from
which they slowly emerge as civilisation advances.' In Canada a strap,
a kettle, and a faggot are placed in the new bride's cabin, to indicate
that it will be henceforth her duty to carry burdens, dress food, and
procure wood for her husband. In Circassia it is the women who till
and manure the ground, and in parts of China they follow the plough. A
Moorish wife digs and sows and reaps the corn, and an Arabian wife feeds
and cleans and saddles her master's horse. Indeed, the sole business of
Bedouin wives is to cook and work, and perform all the menial offices
connected with tent-life.... From the absolute power of a savage over
his slaves flow all those rights over a woman from which the marital
rights of our own time are the genealogical descendants.... A trace
of it [purchase] is found in the following customs of old English
law:--'The woman at the church-door was given of her father, or some
other man of the next of her kin, into the hands of her husband, and he
laid down gold and silver for her upon the book, as though he did buy
her.'" This custom is still maintained in the Church ritual; the priest
asks: "Who giveth this woman to be married to this man?" and when the
man gives the ring to the priest, he gives money with it, receiving back
the ring to give the woman, but the money remaining, a survival of the
time when wives were literally bought.
By the old Roman laws, the married woman had no personal rights; she
was but the head slave in her husband's house, absolutely subject in all
things to her lord. As the Romans became civilised, these disabilities
were gradually removed. It is important to remember these facts, as
these are the origin of our own marriage laws, and our common law really
grows out of them.
One other point must be noticed, before dealing immediately with the
English marriage laws, and that is the influence exerted over them by
ecclesiastical Christianity.
The Old Testament expressly sanctions polygamy; but while the New
Testament does not proscribe it--except in the case of bishops and
deacons--ecclesiastical Christianity has generally been in favour of
monogamy; at the same time, both the New Testament and the Church have
insisted on the inferiority of the female sex; "the husband is the
head of the wife" (Eph. v. 23); "wives, submit yourselves unto your
own husbands" (Col. iii. 18); "your women... are commanded to be under
obedience" (1 Cor. xiv. 34); "ye wives, be in subjection to your
own husbands... even as Sara obeyed Abraham, calling him lord, whose
daughters ye are as long as ye do well" (1 Pet. iii. 1, 6). The
common law of England is quite in accordance with this ancient Eastern
teaching, and regards men as superior to women; "Among the children of
the purchaser, males take before females, or, as our male lawgivers,
have expressed it, the worthiest of blood shall be preferred" ("Comm, on
the Laws of England," J. Stephen, 7th ed. vol. i. p. 402).
The feudal system did much, of course, to perpetuate the subjection of
women, it being to the interest of the lord paramount that the fiefs
should descend in the male line in those rough ages, when wars and civil
feuds were almost perpetual, it was inevitable that the sex with the
biggest body and strongest sinews should have the upper hand; the pity
is that English gentlemen to-day are content to allow the law to remain
unaltered, when the whole face of society has changed.
Let us now turn to the disabilities imposed upon women by marriage.
Blackstone lays down, in his world-famous "Commentaries on the Laws of
England," that the first of the "absolute rights of every Englishman" is
"the legal and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation" (9th ed., bk. 1, p. 129). The second
right is personal liberty, and he says: "the confinement of a person in
anywise is an imprisonment. So that the keeping; a man against his will
in a private house.... is an imprisonment" (Ibid, 136): The third is
property, "which consists in the free use and enjoyment of all his
acquisitions, without any control or diminution, save only by the
laws of the land" (Ibid, 138). A subordinate right, necessary for the
enforcement of the others, is "that of applying to the courts of justice
for redress of injuries." I shall proceed to show that a married woman
is deprived of these rights by the mere fact of her marriage.
In the first place, by marriage a woman loses her legal existence; the
law does not recognize her, excepting in some few cases, when it becomes
conscious of her existence in order to punish her for some crime or
misdemeanour. Black-stone says--and no subsequent legislation has in
any way modified his dictum: "By marriage the husband and wife are one
person in law; that is, the very being or legal existence of the
woman is suspended during the marriage, or at least is incorporated or
consolidated into that of the husband; under whose wing, protection,
and _cover_, she performs every thing; and is therefore called in our
law-French a _feme covert"_ (p. 442). "Husband and wife are one person
in law" (Comyn's Digest, 5th ed., vol. ii., p. 208), and from this it
follows that "by no conveyance at the common law could the husband give
an estate to his wife;" that "a. husband cannot covenant or contract
with his wife," even for her own advantage, and that any prenuptial
contract made with her as to money she shall enjoy for her separate use
after marriage, becomes void as soon as she is married. All covenants
for the wife's benefit must be made with some one else, and the husband
must covenant with some other man or unmarried woman who acts as trustee
for the wife. This is the fundamental wrong from which all the others
flow: "'Husband and wife are one person,' and that one is the husband."
The wife's body, her reputation, are no longer her own. She can gain no
legal redress for injury, for the law does, not recognize her existence
except under cover of her husband's suit. In. some cases more modern
legislation has so far become conscious of her, as to protect her
against her husband, and if this protection separates her from him, it
leaves her the more utterly at the mercy of the world.
Various curious results flow, in criminal law, from this supposition
that husband and wife are only one person. They are incompetent--except
in a few special instances--to give evidence for or against each other
in criminal cases; if a woman's husband be one of several defendants
indicted together, the woman cannot give evidence either for or against
any of them. Where the wife of an accomplice is the only person to
confirm her husband's statement, the statement falls to the ground, as,
in practice, confirmation thereof is required; in the case of Rex v.
Neal (7 C. and P 168), Justice Park said: "Confirmation by the wife is,
in this case, really no confirmation at all. The wife and the accomplice
must be taken as one for this purpose. The prisoners must be acquitted."
They may, however, be severally called as witnesses by the prosecution
and the defence, in order that they may contradict each other. Where the
wife has suffered personal violence from her husband she is permitted to
swear the peace against him, and in divorce suits husband and wife are
both admissible as witnesses. A wife who sets fire to her husband's
house may escape punishment, as in the case of Rex. v. March: "March and
his wife had lived separate for about two years; and, previous to the
act, when she applied for the candle with which it was done, she said it
was to set her husband's house on fire, because she wanted to burn
him to death. Upon a case reserved upon the question whether it was an
offence within the 7 and 8 George IV., cap. 30, sec. 2, for a wife to
set fire to her husband's house for the purpose of doing him a personal
injury, the conviction was held wrong, the learned judges thinking that
to constitute the offence, it was essential that there should be an
intent to injure or defraud some third person, not one identified
with herself" (Ibid, p. 899). Identification with one's beloved may be
delightful in theory, but when, in practice, it comes to being burned
at pleasure, surely the greatest stickler for the "twain being one" must
feel some twinges of doubt. The identity of husband and wife is often
by no means advantageous to the husband, for he thereby becomes
responsible, to a great extent, for his wife's misdoings. "For
slanderous words spoken by the wife, libel published by her alone,
trespass, assault and battery, &c., he is liable to be so sued, whether
the act was committed with or without his sanction or knowledge.... And
wherever the action is grounded on a tort, committed by the wife, it no
way affects the necessity of joining the husband, that the parties are
living apart, nor even that they are divorced _a mensâ et thoro,_ or
that the wife is living in adultery" (Lush's "Common Law Practice,"
2nded. p. 156). Pleasant position for a man whose wife may have left
him, to be suddenly dragged before a court of justice for some misdeed
of hers, of which he may never have heard until he finds himself
summoned to answer for it! A large amount of injustice arises from
this absurd, fiction that two are one; it sometimes injures, sometimes
protects the married woman, and it often shields those who have wronged
her; but whether it injure or whether it protect, it is equally vicious;
it is _unjust_, and injustice is a radical injury to a community, and by
destroying the reasonableness and the certainty of the law, it saps that
reverence for it which is one of the safeguards of society.
Let us now take Blackstone's "rights of every Englishman," and see what
rights the common law allowed to a married Englishwoman. A married woman
is not protected by the law in the "uninterrupted enjoyment of" her
"limbs," her "body," or her "reputation." On the contrary: "If a wife
be injured in her person, or her property, she can bring no action for
redress without her husband's concurrence, and in his name as well as
her own" (Blackstone, p. 443). If in a railway accident a married woman
has her leg broken, she cannot sue the railway company for damages;
she is not a damaged _person_; in the eye of the law, she is a piece of
damaged _property_, and the compensation is to be made to her owner.
If she is attacked and beaten she cannot at law sue her assailant; her
master suffers loss and inconvenience by the assault on his housekeeper,
and his action is necessary to obtain redress. If she is libelled,
she cannot protect her good name, for she is incapable by herself of
maintaining an action. In fact, it is not even needful that her name
should appear at all in the matter: "the husband may sue alone for
loss of his wife's society by injury done to her, or for damage to her
reputation" (Comyn's Digest, under "Baron and Feme"). The following
curious statement of the law on this head is given in Broom's
"Commentaries:"
"Injuries which may be offered to a person, considered as a husband, and
which are cognizable in a court of common law, are principally three:
1, abduction, or taking away a man's wife; 2, beating her; 3, indirectly
causing her some personal hurt, by negligence or otherwise. 1. As to the
first sort, abduction, or taking her away, this may either be by fraud
and persuasion, or open violence; though the law in both cases supposes
force and constraint, the wife having no power to consent, and therefore
gives a remedy by action of trespass; and the husband is also entitled
to recover damages in an action on the case against such as persuade and
entice the wife to live separate from him without a sufficient cause....
2, 3. The second and third injuries above mentioned are constituted by
beating a man's wife, or otherwise ill-using her; or causing hurt to her
by negligence. For a common assault upon, or battery, or imprisonment,
of the wife, the law gives the usual remedy to recover damages, by
action of trespass, which must be brought in the names of the husband
and wife jointly: but if the beating or other maltreatment be so
enormous, that thereby the husband is deprived for any time of the
company and assistance of his wife, the law then gives him a separate
remedy by action for this ill-usage, _per quod consortium amisit_, in
which he may recover a satisfaction in damages. By a provision of the C.
L. Proc. Act, 1852, s. 40, in an action by husband and wife jointly for
an injury to the wife, the husband is now allowed to add a claim in
his own right--as for the loss of the wife's society--or where a joint
trespass and assault have been committed on the husband and his wife"
(vol. iii., pp. 149, 150). So far is recognised the husband's complete
claim over his wife's person, that anyone who receives a married woman
into his house and gives her shelter there after having received notice
from her husband that he is not to permit her to remain under his roof,
actually becomes liable in damages to the husband. The husband cannot
sue for damages if he has turned his wife out of doors, or if he has
lost his right of control by cruelty or adultery; short of this, he may
obtain damages against any friend or relative of the woman who gives her
shelter. The wife has no such remedy against anyone who may induce the
husband to live apart, or who may give him house-room at his own wish.
The reason for the law being as we find it, is stated by Broom without
the smallest compunction: "We may observe that in these relative
injuries notice is only taken of the wrong done to the superior of the
parties related, by the breach and dissolution of either the relation
itself, or at least the advantage accruing therefrom; while the loss of
the inferior by such injuries is, except where the death of a parent has
been caused by negligence, unregarded. One reason for which may be, that
the inferior has no kind of property in the company, care, or assistance
of the superior, as the superior is held to have in that of the
inferior; and therefore the inferior can, in contemplation of law,
suffer no loss consequential on a wrongful act done to his superior. The
wife cannot recover damages for the beating of her husband. The child
has no property in his father or guardian. And the servant, whose master
is disabled, does not thereby lose his maintenance or wages (Ibid,
p. 153). A man may recover damages equally for the injury done to his
servant or to his wife; in both cases he loses their services, and the
law recompenses him. A peculiarly disgusting phase of this claim is
where a husband claims damages against a co-respondent in the divorce
court; if a wife be unfaithful, the husband can not only get a divorce,
but can also claim a money payment from the seducer to make up for the
damage he has sustained by losing his wife's services. An unmarried
girl, under age, is regarded as the property of her father, and the
father may bring an action against her seducer for the loss of his
daughter's services. It is not the woman who is injured, or who has any
redress; it is her male owner who can recover damages for the injury
done to his property."
If a wife be separated from her husband, either by deed or by judicial
decree, she has no remedy for injury or for libel, unless by the
doubtful plan of using her husband's name without his consent. On this
injustice Lord Lyndhurst, speaking in the House of Lords in 1856, said:
"A wife is separated from her husband by a decree of the Ecclesiastical
Court, the reason for that decree being the husband's misconduct--his
cruelty, it may be, or his adultery. From that moment the wife is almost
in a state of outlawry. She may not enter into a contract, or if she
do, she has no means of enforcing it. The law, so far from protecting,
oppresses her. She is homeless, helpless, hopeless, and almost wholly
destitute of civil rights. She is liable to all manner of injustice,
whether by plot or by violence. She may be wronged in all possible ways,
and her character may be mercilessly defamed; yet she has no redress.
She is at the mercy of her enemies. Is that fair? Is that honest? Can
it be vindicated upon any principle of justice, of mercy or of common
humanity?"
A married woman loses control over her own body; it belongs to her
owner, not to herself; no force, no violence, on the husband's part
in conjugal relations is regarded as possible by the law; she may be
suffering, ill, it matters not; force or constraint is recognised by
the law as rape, in all cases save that of marriage; the law "holds,
it to be felony to force even a concubine or harlot" (Broom's
"Commentaries," vol. iv., p. 255), but no rape can be committed by a
husband on a wife; the consent given in marriage is held to cover
the life, and if--as sometimes occurs--a miscarriage or premature
confinement be brought on by the husband's selfish passions, no offence
is committed in the eye of the law, for the wife is the husband's
property, and by marriage she has lost the right of control over her own
body. The English marriage law sweeps away all the tenderness, all the
grace, all the generosity of love, and transforms conjugal affection
into a hard and brutal legal right.
By the common law the husband has a right to inflict corporal punishment
on his wife, and although this right is now much restricted, the effect
of the law is seen in the brutal treatment of wives among the
rougher classes, and the light--sometimes no--punishment inflicted on
wife-beaters. The common law is thus given by Blackstone: "The husband
also (by the old law) might give his wife moderate correction. For as
he is to answer for her misbehaviour, the law thought it reasonable
to entrust him with this power of restraining her, by domestic
chastisement, in the same moderation that a man is allowed to correct
his apprentices or children. The lower rank of people, who were
always fond of the old common law, still claim and exert their ancient
privilege." Blackstone grimly adds, after saying this is all for woman's
protection: "So great a favourite is the female sex of the laws of
England" (444 and 445). This "ancient privilege" is very commonly
exercised at the present time. A man who dragged his wife out of bed
(1877), and, pulling off her nightdress, roasted her in front of the
fire, was punished (?) by being bound over to keep the peace for a short
period. Men who knock their wives down, who dance on them, who drag them
about by the hair, &c., are condemned to brief terms of imprisonment,
and are then allowed to resume their marital authority, and commence a
new course of ill-treatment. In dealing later with the changes I shall
recommend in the marriage laws, this point will come under discussion.
Coming to the second "right," of "personal liberty," we find that a
married woman has no such right. Blackstone says, as we have seen:
"the confinement of a person in any wise is an imprisonment So that the
keeping a man against his will in a private house... is an imprisonment"
(p. 136). But a husband may legally act as his wife's gaoler; "the
courts of law will still permit a husband to restrain his wife of her
liberty, in case of any gross misbehaviour" (Blackstone, p. 445). "If
the wife squanders his estate, or goes into lewd company, he may deprive
her of liberty" (Comyn's Digest, under "Baron and Feme"). Broom says
that at the present time "there can be no question respecting the
common-law right of a husband to restrain his wife of her personal
liberty, with a view to prevent her going into society of which he
disapproves, or otherwise disobeying his rightful authority; such right
must not, however, be exercised unnecessarily, or with undue severity:
and the moment that the wife by returning to her conjugal duties, makes
restraint of her person unnecessary, such restraint becomes unlawful"
(vol. i, p. 547). In the year 1877 a publican at Spilsby chained up his
wife to the wall from one day to the afternoon of the following one, in
order, he said, to keep her from drink; the magistrates dismissed him
without punishment. It may be argued that a woman should not get drunk,
go into bad company, &c. Quite so; neither should a man. But would men
admit, that under similar circumstances, a wife should have legal power
to deprive her husband of liberty? If not, there is no reason in justice
why the husband should be permitted to exercise it. Offences known to
the law should be punished by the law, and by the law alone; offences
which the law cannot touch should entail no punishment on an adult at
the hands of a private individual. Public disapproval may brand them,
but no personal chastisement should be inflicted by arbitrary and
irresponsible power.
The third right, of "property," has also no existence for married women.
Unmarried women have here no ground for complaint: "A _feme sole_,
before her marriage, may do all acts for disposition, etc., of her
lands or goods which any man in the same circumstances may do" (Comyn's
Digest, under "Baron and Feme"). The disabilities which affect women
as women do not touch property; a _feme sole_ may own real or personal
estate, buy, sell, give, contract, sue, and be sued, just as though
she were of the "worthier blood;" it is marriage that, like felony and
insanity, destroys her capability as proprietor. According to the common
law--with which we will deal first--the following results accrued from
marriage:--
"Whatever personal property belonged to the wife before marriage, is by
marriage absolutely vested in the husband... in chattel interests, the
sole and absolute property vests in the husband, to be disposed of at
his pleasure, if he chooses to take possession of them" (Blackstone,
book ii. 443). If he takes possession, they do not, at his death, revert
to the wife, but go to his heirs or to anyone he chooses by will. "If
a woman be seized of an estate of inheritance, and marries, her husband
shall be seized of in her right" (Comyn's Digest, under "Baron and
Feme"). If a woman own land in her own right, all rents and profits are
not hers, but her husband's; even arrears of rents due before coverture
become his; he may make a lease of her land, commencing after his own
death, and she is barred, although she survive him; he may dispose of
his wife's interest; it may be forfeited by his crime, seized for his
debt; she only regains it if she survives him and he has not disposed of
it. If a woman, before marriage, lets her land on a lease, the rental,
after marriage, becomes her husband's, and her receipt is not a good
discharge. If a wife grants a rent-charge out of her own lands (or,
rather, what should be her own) without the husband's consent, it is
void. All personal goods that "the wife has in possession in her own
right, are vested in her husband by the marriage" (Ibid); gifts to her
become his; if he sues for a debt due to his wife, and recovers it, it
is his; if a legacy be left her, it goes to him; after his death, all
that was her personal property originally, goes to his executors and
administrators, and does not revert to her; so absolutely is all she
may become possessed of his by law that if, after a divorce _a mensâ et
thoro_, the wife should sue another woman for adultery with her husband,
and should be awarded her costs, the husband can release the woman from
payment.
If a woman own land and lease it, then if, during marriage, the husband
reduce it into possession, "as where rent accruing on a lease granted by
the wife _dum sola_ is received by a person appointed for that purpose
during the husband's life," under such circumstances the husband's
"executors, not his widow, must sue the agent" (Lush's "Common Law
Practice," 2nd. ed., p. 27). In a case where "certain leasehold property
was conveyed to trustees upon trust to permit the wife to receive the
rents thereof to her sole and separate use, and she after marriage
deposited with her trustees part of such rents and died; it was held
that her husband might recover the same in an action in his own right.
Such money, so deposited, was not a _chose in action_ belonging to
the wife, but money belonging to the husband, the trust having been
discharged in the payment of the rents to the wife" (Ibid, p. 9 7 ).
Marriage, to a man, is regarded as a kind of lucrative business: "The
next method of acquiring property in goods and chattels is by marriage;
whereby those chattels, which belonged formerly to the wife, are by act
of law vested in the husband, with the same degree of property, and with
the same powers, as the wife, when sole, had over them... A distinction
is taken between chattels real and chattels personal, and of chattels
personal, whether in possession or reversion, or in action. A chattel
real vests in the husband, not absolutely, but _sub modo_. As, in
case of a lease for years, the husband shall receive all the rents and
profits of it, and nay, if he pleases, sell, surrender, or dispose of
it during the coverture; if he be outlawed or attainted, it shall be
forfeited to the king; it is liable to execution for his debts; and if
he survives his wife, it is to all intents and purposes his own. Yet, if
he has made no disposition thereof in his lifetime, and dies before his
wife, he cannot dispose of it by will: for, the husband having made no
alteration in the property during his life, it never was transferred
from the wife; but after his death she shall remain in her ancient
possession, and it shall not go to his executors. If, however, the wife
die in the husband's lifetime, the chattel real survives to him. As to
chattels personal (or choses) in action, as debts upon bonds, contracts,
and the like, these the husband may have if he pleases; that is, if he
reduces them into possession by receiving or recovering them at law. And
upon such receipt or recovery they are absolutely and entirely his own;
and shall go to his executors or administrators, or as he shall bequeath
them by will, and shall not revest in the wife. But, if he dies before
he has recovered or reduced them into possession, so that, at his death,
they still continue choses in action, they shall survive to the wife;
for the husband never exerted the power he had of obtaining an
exclusive property in them. If the wife die before the husband has
reduced choses in action into possession, he does not become entitled by
survivorship; nevertheless, he may, by becoming her administrator, gain
a title. Chattels in possession, such as ready money and the like, vest
absolutely in the husband, and he may deal with them, either whilst
living, or by his will, as he pleases. Where the interest of the wife
is reversionary, the husband's power is but small; unless it falls into
possession during the marriage, his contracts or engagements do not bind
it" ("Comm, on the Laws of England," Broom and Hadley, vol. ii., pp.
618, 619). So highly does the law value the claims of a husband that it
recognizes them as existing even before marriage; for if a woman who
has contracted an engagement to marry dispose of her property privately,
settle it on herself, or on her children, without the cognizance of the
man to whom she is engaged, such settlement or disposition may be set
aside by the husband as a fraud.
So cruel, as regards, property, was felt to be the action of the common
law, that the wealthy devised means to escape from it, and women of
property were protected on their marriage by "marriage settlements,"
whereby they were contracted out of the law. A woman's property was
by this means, "settled on herself;" it was necessary to treat her as
incapable, so her property was not in her own power but was vested in
trustees for her separate use; thus che principal, or the estate, was
protected, but the whole interest or rental, as before, could be taken
by the husband the moment it was received by the wife; her signature
became necessary to draw it, but the moment it came into her possession
it ceased to be hers. The next step was an attempt to protect women's
money in their own hands; terrible cases of wrong were continually
arising: men who deserted their wives, and left them to maintain the
burden of a family, came back after the wife had accumulated a little
property, sold the furniture, pocketed the proceeds, and departed,
leaving the wife to recommence her labours. Orders of protection were
given by magistrates, but these were not found sufficient. At last,
parliamentary interference was called for with an urgency that could
no longer be resisted, and a Bill to amend the laws relating to married
women's property was introduced into the House of Commons. How sore was
the need of such amendment may be seen from the following extracts:--
Mr. Russell Gurney, in moving (April 14, 1869) the second reading of
the Bill, observed: "It is now proposed that, for the first time in our
history, the property of one half of the married people of this country
should receive the protection of the law. Up to this time the property
of a wife has had no protection from the law, or rather, he should say,
in the eye of the law it has had no existence. From the moment of her
marriage the wife, in fact, possesses no property; whatever she may up
to that time have possessed, by the very act of marriage passes from
her, and any gift or bequest made to her becomes at once the property
of the husband. Nay, Even that which one might suppose to be her
inalienable right, the fruit of her mental or bodily toil, is denied
her. She may be gifted with powers which enable her to earn an ample
fortune, but the moment it is earned, it is not hers,' it is her
husband's. In fact, from the time of her entering into what is described
as an honourable estate, the law pronounces her unfit to hold any
property whatever."
Mr. Jessel (now Master of the Rolls) in seconding the motion, in the
course of an able and impassioned speech, said: "The existing law is a
relic of slavery, and the House is now asked to abolish the last remains
of slavery in England. In considering what ought to be the nature of
the law, we cannot deny that no one should be deprived of the power of
disposition, unless on proof of unfitness to exercise that power; and
it is not intelligible on what principle a woman should be considered
incapable of contracting immediately after she has, with the sanction
of the law, entered into the most important contract conceivable. The
slavery laws of antiquity are the origin of the common law on this
subject. The Roman law originally regarded the position of a wife as
similar to that of a daughter who had no property, and might be sold
into slavery at the will of her father. When the Roman law became that
of a civilised people, the position of the wife was altogether
changed.... The ancient Germans--from whom our law is derived--put the
woman into the power of her husband in the same sense as the ancient
Roman law did. She became his slave. The law of slavery--whether Roman
or English--for we once had slaves and slave-laws in England--gave to
the master of a slave the two important rights of flogging and
imprisoning him. A slave could not possess property of his own, and
could not make contracts except for his master's benefit, and the master
alone could sue for an injury to the slave; while the only liability of
the master was that he must not let his slave starve. This is exactly
the position of the wife under the English law; the husband has the
right of flogging and imprisoning her, as may be seen by those who read
Blackstone's chapter on the relations of husband and wife. She cannot
possess property--she cannot contract, except it is as his agent; and he
alone can sue if she is libelled or suffers a personal injury; while all
the husband is compellable to do for her is to pay for necessaries. It
is astonishing that a law founded on such principles should have
survived to the nineteenth century."
A quotation from a later debate finds its fit place here: Mr. Hinde
Palmer, in moving (February 19, 1873) the second reading of the Married
Woman's Property Act (1870) Amendment Bill, pointed out that the common
law was, that by marriage "the whole of a woman's personal property was
immediately vested in her husband, and placed entirely at his disposal.
By contracting marriage, a woman forfeited all her property. In 1868,
the Chancellor of the Exchequer, Mr. Lowe, said: 'Show me what crime
there is in matrimony that it should be visited by the same punishment
as high treason--namely, confiscation, for that is really the fact.' Mr.
Mill, too, speaking on that question, said that a large portion of the
inhabitants of this country were in the anomalous position of having
imposed on them, without having done anything to deserve it, what we
inflicted on the worst criminals as a penalty: like felons, they were
incapable of holding property."
Some great and beneficial changes were made by the Acts of 1870 and
1873, although much yet remains to be done. By the Act of 1870, the
wages and earnings of married women were protected; they were made
capable of depositing money in the savings' banks in their own names;
they might hold property in the Funds in their own names, and have the
dividends paid to them; they might hold fully-paid up shares, or stock,
to which no liability was attached; property in societies might be
retained by them; money coming to a married woman as the next-of-kin, or
one of the next-of-kin to an intestate, or by deed or will, was made
her own, provided that such money did not exceed £200; the rents and
profits of freehold, copyhold, or customary-hold property inherited by
a married woman were to be her own; a married woman might insure her
own or her husband's life; might, under some circumstances, maintain
an action in her own name; married women were made liable for the
maintenance of their husbands and children. The Act of 1873 relates
entirely to the recovery of debts contracted by the woman before
marriage. It will be perceived that these Acts are very inadequate as
regards placing married women in a just position towards their property,
but they are certainly a step in the right direction. The Acts only
apply to those women who have been married subsequently to their
passing.
One great omission in them will have to be promptly remedied, both for
the sake of married women and for the sake of their creditors: while a
married woman now may, under some circumstances, sue, no machinery is
provided whereby she may be sued--without joining her husband.
In an admirable letter to the Times of March 14, 1878, Mrs. Ursule
Bright, alluding to the "obscurity and uncertainty of the law," points
out "The effect of that obscurity upon the credit of respectable married
women earning their own and their children's bread, in any employment or
business carried on separately from their husband; the inconvenience and
risk to their creditors is, as you have most ably pointed out, great;
but the injury to honest wives is far greater. It puts them at a
considerable disadvantage in the labour market and in business. A
married woman, for instance, keeping a little shop, may sue for debts
due to her, but has no corresponding liability to be sued. If the
whereabouts of the husband is not very clearly defined, it is evident
she may have some difficulty in obtaining credit.
"Again, what employer of labour can with any security engage the
services of a married woman? She may leave her work at the mill at an
hour's notice unfinished, and her employer has no remedy against her
for breach of contract, as a married woman can make no contract which is
legally binding. There is no question that such a state of the law must
operate as a restriction upon her power to support herself and family.
"The state of muddle of the present law is almost inconceivable. Even
now a woman need not pay her debts contracted before marriage out of
earnings made after marriage. Suppos an artist or a literary woman to
marry when burdened with debts and having no property; should she be
earning £1,000 or £10,000 a year by her profession after marriage,
these earnings could not be made liable for her debts contracted before
marriage."
It cannot too plainly be repeated that non-liability to be sued means
non-existence of credit.
The law, as it stands at present, is the old Common Law, modified by
the Acts of 1870 and 1873. Archbold says--dealing with indictments for
theft--"Where the person named as owner appears to be a married woman,
the defendant must, unless the indictment is amended, be acquitted...
because in law the goods are the property of the husband; even though
she be living apart from her husband upon an income arising from
property vested in trustees for her separate use, because the goods
cannot be the property of the trustees; and, in law, a married woman
has no property" (Archbold's "Criminal Cases," p. 43). Archbold gives as
exceptions to this general rule, where a judicial separation has taken
place, where the wife has obtained a protection order, or where the
property is such as is covered by the Married Women's Property Act,
1870. "Where a married woman lived apart from her husband, upon an
income arising from property vested in trustees for her separate use,
the judges held that a house which she lived in was properly described
as her husband's dwelling-house, though she paid the rent out of her
separate property, and the husband had never been in it. R. v. French,
R. v. R., 491" (Ibid, p. 521). If a burglary be committed in a
house belonging to a married woman, the house must be said to be the
dwelling-house of her husband, or the burglar will be acquitted; if she
be living separate from her husband, paying her own rent out of money
secured for her separate use, it makes no difference; it was decided, in
the case of Rex v. French, that a married woman could own no property,
and that the house must, therefore, belong to the husband. If a married
woman picks up a purse in the road and is robbed of it, the property
vests in the husband: "Where goods are in the possession of the wife,
they must be laid as the goods of her husband; thus, if A is indicted
for stealing the goods of B, and it appears that B was a _feme covert_
at the time, A must be acquitted. And even if the wife have only
received money as the agent of another person, and she is robbed of that
money before her husband receives it into his possession, still it
is well laid as his money in an indictment for larceny. An indictment
charging the stealing of a £5 Bank of England note, the property of E.
Wall, averring, in the usual way, that the money secured by the note
was due and payable to E. Wall; it appeared that E. Wall's wife had
been employed to sell sheep belonging to her father, of or in which her
husband never had either possession or any interest, and she received
the note in payment for the sheep, and it was stolen from her before
she left the place where she received it. It was objected that the note
never was the property of E. Wall, either actually or constructively;
the money secured by it was not his, and he had no qualified property in
it, as it never was in his possession; but it was held that the property
was properly laid" (Russell on Crimes, 5th ed., vol. ii., pp. 243,
244). Yet even a child, in the eye of the law, has property, and if
his clothes are stolen, it is safer to allege them to be the child's
property. The main principle of English law remains unaltered by recent
legislation, that "a married woman has no property." Married women
share incapacity to manage property with minors and lunatics; minors,
lunatics, and married women are taken care of by trustees; minors become
of age, lunatics often recover, married women remain incapable during
the whole of their married life.
Being incapable of holding property, a married woman is of course,
incapable of making a will. Here, also, the Common Law may be
checkmated. She may make a will "by virtue of a power reserved to her,
or of a marriage settlement, or with her husband's assent, or it may be
made by her to carry her separate estate; and the court in determining
whether or not such will is entitled to probate, will not go minutely
into the question, but will only require that the testatrix had a power
reserved to her, or was entitled to separate estate, and will, if so
satisfied, grant probate to her executor, leaving it to the Court of
Chancery, as the court of construction, to say what portion of her
estate, if any, will pass under such will. In this case the husband,
though he may not be entitled to take probate of his wife's will, may
administer to such of her effects as do not pass under the will" ("Comm,
on the Laws of England," Broom and Hadley, vol. iii., pp. 427, 428).
Thus we see that a husband may will away from his wife her own original
property, but a wife may not even will away her own, unless the right
be specially reserved to her before marriage. And yet it is urged that
women have no need of votes, their interests being so well looked after
by their fathers, husbands, and brothers!
We have thus seen that the "rights of every Englishman" are destroyed
in women by marriage; one would imagine that matrimony was a crime for
which a woman deserved punishment, and that confiscation and outlawry
were the fit rewards of her misdeed.
From these three great fundamental wrongs flow a large number of legal
disabilities. Take the case of a prisoner accused of misdemeanour; he is
often set free on his own recognizances; but a married woman cannot be
so released, for she is incapable of becoming bail or of giving her own
recognizances; she is here again placed in bad company: "no person
who has been convicted of any crime by which he has become infamous
is allowed to be surety for any person charged or suspected of an
indictable offence. Nor can a married woman, or an infant, or a prisoner
in custody, be bail" (Archbold, p. 88). Let us now suppose that a woman
be accused of some misdemeanour, and be committed for trial: she desires
to have her case tried by a higher court than the usual one, and wishes
to remove the indictment by writ of _certiorari_: she finds that
the advantage is denied her, because, as a married woman, she has
no property, and she cannot therefore enter into the necessary
recognizances to pay costs in the case of a conviction. Thus a married
woman finds herself placed at a cruel disadvantage as compared with an
unmarried woman or with men.
In matters of business, difficulties arise on every hand: a married
woman is incapable of making a contract; if she takes a house without
her husband's knowledge and without stating that she is married, the
landlord may repudiate the contract; if she states that she is married,
the landlord knows that she is unable to make a legal contract, and
refuses to let or lease to her, without heavy security. If she buys
things she cannot be sued for non-payment without making the husband a
defendant, and she consequently finds that she has no credit. If she
is cheated, she cannot sue, except in cases covered by the recent
Acts, without joining her husband, and so she has often to submit to be
wronged. "A _feme covert_ cannot sue without her husband being joined as
co-plaintiff, so long as the relation of marriage subsists. It matters
not that he is an alien, and has left the country; or that, being a
subject, he has absconded from the realm as a bankrupt or for other
purpose; or that he has become permanently resident abroad; or that they
are living apart under a deed of separation; or have been divorced _a
mensâ et thoro_; for none of these events dissolve or work a suspension
of the marriage contract, and so long as that endures, the wife
is unable to sue alone, whatever the cause of action may be. This
disability results from the rule of law which vests in the husband not
only all the goods and chattels which belonged to the wife at the time
of the marriage, but also all which she acquires afterwards" (Lush's
"Common Law Practice," 2nd ed., pp. 33, 34). The same principle governs
all suits against a married woman; the husband must be sued with her:
"In all actions brought against a _feme covert_ while the relation of
marriage subsists, the husband must be joined for conformity, it being
an inflexible rule of law that a wife shall not be sued without her
husband.... If therefore a wife enters into a bond jointly with her
husband, or makes a bill of exchange, promissory note, or any other
contract, she cannot be sued thereon, but the action should be brought
against, and the bond, bill, alleged to have been made by, the husband"
(Ibid, p. 75).
The thoughtful author of the "Rights of Women" remarks that the
incapacity to sue is "traceable to the time when disputes were settled
by the judgment of arms. A man represents his wife at law now, because
in the days of the judicial combat he was her champion-at-arms, and she
is unable to sue now, because she was unable to fight then" (p. 22). The
explanation is a very reasonable one, and is only an additional proof
of the need of alteration in the law; our marriage laws are, as has
been shown above, the survival of barbarism, and we only ask that modern
civilisation will alter and improve them as it does everything else:
trial by combat has been destroyed; ought not its remains to be buried
out of sight? The consequence of these business disabilities is that a
married woman finds herself thwarted at every turn, and if she be
trying to gain a livelihood, and be separated from her husband, she is
constantly pained and annoyed by the marriage-fetter, which hinders
her activity and checks her efforts to make her way. The notion that
irresponsibility is an advantage is an entirely mistaken one; an
irresponsible person cannot be dealt with in business matters, and is
shut out of all the usual independent ways of obtaining a livelihood.
Authorship and servitude are the only paths really open to married
women; in every other career they find humiliating obstacles which it
needs both courage and perseverance to surmount.
Married women rank among the "persons in subjection to the power of
others;" they thus come among those who in many cases are not criminally
liable; "infants under the age of discretion," persons who are _non
compotes mentis_ (not of sound mind), and persons acting under coercion,
are not criminally liable for their misdeeds. A married woman is
presumed to act under her husband's coercion, unless the contrary
be proved, and she may thus escape punishment for her wrongdoings:
"Constraint of a superior is sometimes allowed as an excuse for criminal
misconduct, by reason of the matrimonial subjection of the wife to her
husband; but neither a son, nor a servant is excused for the commission
of any crime by the command or coercion of the parent or master. Thus,
if a woman commit theft, or burglary, by the coercion of her husband, or
even in his company, which the law _primâ facie_ construes a coercion,
she is dispunishable, being considered to have acted by compulsion, and
not of her own will" ("Comm, on the Laws of England," Broom and Hadley,
vol. iv., p. 27). "A _feme covert_ is so much favoured in respect of
that power and authority which her husband has over her, that she
shall not suffer any punishment for committing a bare theft, or even a
burglary, by the coercion of her husband, or in his company, which the
law construes a coercion" (Russell "On Crimes," vol. i., p. 139). "Where
the wife is to be considered merely as the servant of the husband,
she will not be answerable for the consequences of his breach of duty,
however fatal, though she may be privy to his conduct. C. Squire and his
wife were indicted for the murder of a boy;" he had been cruelly
treated by both, and died "from debility and want of proper food and
nourishment;" "Lawrence, J., directed the jury, that as the wife was the
servant of the husband, it was not her duty to provide the apprentice
with sufficient food and nourishment, and that she was not guilty of
any breach of duty in neglecting to do so; though, if the husband had
allowed her sufficient food for the apprentice, and she had wilfully
withholden it from him, then she would have been guilty. But that here
the fact was otherwise; and therefore, though _in foro conscientiæ_ the
wife was equally guilty with the husband, yet in point of law she could
not be said to be guilty of not providing the apprentice with sufficient
food and nourishment" (Ibid., pp. 144, 145). It is hard to see what
advantage society gains by this curious fashion of reckoning married
women as children or lunatics. Some advantages, however, flow to a
criminal husband: a wife is not punishable for concealing her husband
from justice, knowing that he has committed felony; a husband may not
conceal his wife under analogous circumstances: "So strict is the law
where a felony is actually complete, in order to do effectual justice,
that the nearest relations are not suffered to aid or receive one
another. If the parent assists his child, or the child his parent, if
the brother receives the brother, the master his servant, or the servant
his master, or even if the husband receives his wife, having any of them
committed a felony, the receiver becomes an accessory _ex post facto_.
But a _feme covert_ cannot become an accessory by the receipt and
concealment of her husband; for she is presumed to act under his
coercion, and therefore she is not bound, neither ought she, to discover
her lord" (Ibid., p. 38). The wife of a blind husband must not, however,
regard her coverture as in all cases a protection, for it has been held
that if stolen goods were in her possession, her husband's blindness
preventing him from knowing of them, her coverture did not avail to
shelter her.
Any advantage which married women may possess through the supposition
that they are acting under the coercion of their husbands ought to be
summarily taken away from them. It is not for the safety of society
that criminals should escape punishment simply because they happen to
be married women; a criminal husband becomes much more dangerous to the
community if he is to have an irresponsible fellow-conspirator beside
him; two people--although the law regards them as one--can often commit
a crime that a single person could not accomplish, and it is not even
impossible that an unscrupulous woman, desiring to get rid easily for
awhile of an unpleasant husband, might actually be the secret prompter
of an offence, in the commission of which she might share, but in the
punishment of which she would have no part. For the sake of wives, as
well as of husbands, this irresponsibility should be put an end to,
for if a husband is to be held accountable for his wife's misdeeds
and debts, it is impossible for the law to refuse him control over her
actions; freedom and responsibility must go hand in hand, and women who
obtain the rights of freedom must accept the duties of responsibility.
A woman has a legal claim on her husband for the necessaries of life,
and a man may be compelled to support his wife. But her claim is a very
narrow one, as may be seen by the following case:--A man named Plummer
was indicted for the manslaughter of his wife; he had been separated
from her for several years, and paid her an allowance of 2s. 6d. a week;
the last payment was made on a Sunday, and she was turned out of her
lodgings on the Tuesday following; she was suffering from diarrhoea, and
on the Wednesday was very ill. Plummer was told of her condition,
but refused to give her shelter; the evening was wet, and a constable
meeting her wandering about took her to her husband's lodgings, but
he would not admit her; on Thursday he paid for a bed for her at a
public-house, and on Friday she died. Baron Gurney told the jury that
the prisoner could not be charged with having caused her death from
want of food, since he made her an allowance, and under ordinary
circumstances he might have refused to do anything more; the only
question was whether the refusal as to shelter had hastened her death.
The man was acquitted. A wife has also some limited rights over her
husband's property after his death; she may claim dower, her wearing
apparel, a bed, and some few other things, including her personal
jewellery. Her husband's power to deprive her of her personal ornaments
ceases with his life.
To redress the whole of the wrongs as to property, and to enable justice
to be done, it is only necessary to pass a short Act of Parliament,
ordaining that marriage shall in no fashion alter the civil status of a
woman, that she shall have over property the same rights as though she
were unmarried, and shall, in all civil and criminal matters, be held as
responsible as though she were a _feme sole_. In short, marriage; ought
no more to affect a woman's position than it does a man's, and should
carry with it no kind of legal disability; "marital control" should
cease to exist, and marriage should be regarded as a contract between
equals, and not as a bond between master and servant.
Those who are entirely opposed to the idea that a woman should not
forfeit her property on marriage, raise a number of theoretical
difficulties as to household expenses, ownership of furniture, &c.,
&c. Practically these would very seldom occur, if we may judge by the
experience of countries whose marriage laws do not entail forfeiture
on the woman who becomes a wife. In the "Rights of Women," quoted from
above, a very useful summary is given of the laws as to property in
various countries; in Germany these laws vary considerably in the
different states; one system, known as "Gutergemeinschaft" (community
of goods) is a great advance towards equality, although it is not by any
means the best resolution of the problem; under this system there is
no separate property, it is all merged in the common stock, and "the
husband, as such, has no more right over the common 'fund than the
wife, nor the wife than the husband" (p. 26); the husband administers as
"representative of the community, and not as husband. He is merely head
partner, as it were, and has no personal rights beyond that;" he may
be dispossessed of even this limited authority if he is wasteful; "he
cannot alienate or mortgage any of the common lands or rights without
her consent--a privilege, it must be remembered, which belongs to her,
not only over lands brought by herself, but also over those brought
by her husband to the marriage. And this control of the wife over the
immovables has, for parts of Prussia, been extended by a law of April
16th, 1850, over movables as well; for the husband has been forbidden to
dispose not only of immovables, but of the whole or part of the movable
property, without the consent of his wife. Nor can the husband by
himself make donations _mortis causa_; such arrangements take the
form of mutual agreements between the two respecting their claims of
inheritance to one another" (p. 27). In Austria, married couples are
more independent of each other; the wives retain their rights over their
own property, and can dispose of it "as they like, and sue or be sued
in respect of it, without marital authorisation or control; and just as
they have the free disposition of their property, so they can contract
with others as they please. A husband is unable to alienate any of his
wife's property in her name, or to lend or mortgage it, or to receive
any money, institute any law-suits, or make any arrangements in respect
of it unless he has her special mandate.... If no stipulation is made
at the marriage, each spouse retains his or her separate property, and
neither has a claim to anything gained or in any way received by the
other during the marriage" (p. 50). In the New York code (U.S.A.),
"beyond the claim of mutual support, neither [husband nor wife] has any
interest whatever in the property of the other. Hence either may into
any enter engagement or transaction with the other or with a stranger
with respect to property, just as they might do if they continued
unmarried" (p. 95). The apportionment of household expenses must
necessarily be left for the private arrangement of the married pair;
where the woman has property, or where she earns her livelihood it would
be her duty to contribute to the support of the common home; where
the couple are poor, and the care of the house falls directly on the
shoulders of the wife, her personal toil would be her fair contribution;
this matter should be arranged in the marriage contract, just as similar
matters are now dealt with in the marriage settlements of the wealthy.
As means of livelihood become more accessible to women the question
will be more and more easily arranged; it will no longer be the fashion
in homes of professional men that the husband shall over-work himself
in earning the means of support, while the wife over rests herself
in spending them, but a more evenly-divided duty shall strengthen the
husband's health by more leisure, and the wife's by more work. Recovery
of debts incurred for household expenses should be by suit against
husband and wife jointly, just as in a partnership the firm may now be
sued; recovery of personal debts should be by suits against the person
who had contracted them. Many a man's life is now rendered harder than
it ought to be, by the waste and extravagance of a wife who can pledge
his name and his credit, and even ruin him before he knows his danger:
would not the lives of such men be the happier and the less toilsome if
their wives were responsible for their own debts, and limited by their
own means? Many a woman's home is broken up, and her children beggared,
by the reckless spendthrift who wastes her fortune or her earnings:
would not the lives of such women be less hopeless, if marriage left
their property in their own hands, and did not give them a master as
well as a husband? Women, under these circumstances, would, of course,
become liable for the support of their children, equally with their
husbands--a liability which is, indeed, recognized by the Married
Women's Property Act (1870), s. 14.
It is sometimes further urged by those who like "a man to be master in
his own house," that unless women forfeited their property in marriage,
there would be constant discord in the home. Surely the contrary effect
would be produced. Mrs. Mill well says, in the Essay before quoted from:
"The highest order of durable and happy attachments would be a hundred
times more frequent than they are, if the affection which the two sexes
sought from one another were that genuine friendship which only exists
between equals in privileges as in faculties." Nothing is so likely to
cause unhappiness as the tendency to tyrannize, generated in the man by
authority, and the tendency to rebel, generated in the woman by enforced
submission. No grown person should be under the arbitrary power
of another; dependence is touching in the infant because of its
helplessness; it is revolting in the grown man or woman because with
maturity of power should come dignity of self-support.
In a brilliant article in the _Westminster Review_ (July, 1874) the
writer well says: "Would it not, to begin with, be well to instruct
girls that weakness, cowardice, and ignorance, cannot constitute at once
the perfection of womankind and the imperfection of mankind?" It is time
to do away with the oak and ivy ideal, and to teach each plant to grow
strong and self-supporting. Perfect equality would, under this system,
be found in the home, and mutual respect and deference would replace the
alternate coaxing and commandment now too often seen. Equal rights would
abolish both tyranny and rebellion; there would be more courtesy in the
husband, more straightforwardness in the wife. Then, indeed, would there
be some hope of generally happy marriages, but, as has been eloquently
said by the writer just quoted, "till absolute social and legal equality
is the basis of the sacred partnership of marriage (the division of
labours and duties in the family, by free agreement, implying no sort of
inequality), till no superiority is recognized on either side but that
of individual character and capacity, till marriage is no longer legally
surrounded with penalties on the woman who enters into it as though she
were a criminal--till then the truest love, the truest sympathy, the
truest happiness in it, will be the exception rather than the rule, and
the real value of this relation, domestic and social, will be fatally
missed." That some marriages are happy, in spite of the evil law, no one
will deny; but these are the exception, not the rule. The law, as it is,
directly tends to promote unhappiness, and its whole influence on the
relations of the sexes is injurious. To quote Mrs. Mill once more: "The
influence of the position tends eminently to promote selfishness.
The most insignificant of men, the man who can obtain influence or
consideration nowhere else, finds one place where he is chief and head.
There is one person, often greatly his superior in understanding, who
is obliged to consult him, and whom he is not obliged to consult. He
is judge, magistrate, ruler, over their joint concerns; arbiter of all
differences between them.... His is now the only tribunal, in civilized
life, in which the same person is judge and party. A generous mind in
such a situation makes the balance incline against its own side, and
gives the other not less, but more, than a fair equality, and thus the
weaker side may be enabled to turn the very fact of dependence into an
instrument of power, and in default of justice, take an ungenerous
advantage of generosity; rendering the unjust power, to those who make
an unselfish use of it, a torment and a burthen. But how is it when
average men are invested with this power, without reciprocity and
without responsibility? Give such a man the idea that he is first in law
and in opinion--that to will is his part, and hers to submit--it is
absurd to suppose that this idea merely glides over his mind, without
sinking into it, or having any effect on his feelings and practice. If
there is any self-will in the man, he becomes either the conscious or
unconscious despot of his household. The wife, indeed, often succeeds in
gaining her objects, but it is by some of the many various forms of
indirectness and management." When marriage is as it should be, there
will be no superior and inferior by right of position; but men and
women, whether married or unmarried, will retain intact the natural
rights "belonging to every Englishman."
In dealing with the wrongs of the wife, according to the present
English marriage laws, the wrongs of the mother must not be omitted. The
unmarried mother has a right to her child; the married mother has none:
"A father is entitled to the custody of his child until it attains the
age of sixteen, unless there be some sufficient reason to the contrary"
(Russell "On Crimes," vol. i., p. 898). The "sufficient reason" is
hard to find in most cases, as the inclination of the Courts is to make
excuses for male delinquencies, and to uphold every privilege which male
Parliaments have conferred on husbands and fathers. In Shelley's
case the father was deprived of the custody of his children, but here
religious and political heresy caused a strong bias against the poet.
The father's right to the custody of legitimate children is complete;
the mother has no right over them as against his; he may take them away
from her, and place them in the care of another woman, and she has no
redress; she may apply to Chancery for access to them at stated times,
but even this is matter of favour, not of right. The father may appoint
a guardian in his will, and the mother, although the sole surviving
parent, has no right over her children as against the stranger appointed
by the dead father. If the parents differ in religion, the children are
to be brought up in that of the father, whatever agreement may have been
made respecting them before marriage; if the father dies without leaving
any directions, the children will be educated in his religion; he can,
if he chooses, allow his wife to bring them up in her creed, but she can
only do so by virtue of his permission. Thus the married mother has no
rights over her own children; she bears them, nurses them, toils for
them, watches over them, and may then have them torn from her by no
fault of her own, and given into the care of a stranger. People talk of
maternal love, and of woman's sphere, of her duty in the home, of her
work for her babes, but the law has no reverence for the tie between
mother and child, and ignores every claim of the mother who is also a.
wife. The unmarried mother is far better off; she has an absolute right
to the custody of her own children; none can step in and deprive her of
her little ones, for the law respects the maternal tie when no marriage
ceremony has "legitimated" it. Motherhood is only sacred in the eye of
the law when no legal contract exists between the parents of the child.
Looking at a woman's position both as wife and mother, it is impossible
not to recognise the fact that marriage is a direct disadvantage to her.
In an unlegalised union the woman retains possession of all her
natural rights; she is mistress of her own actions, of her body, of her
property; she is able to legally defend herself against attack; all the
Courts are open to protect her; she forfeits none of her rights as an
Englishwoman; she keeps intact her liberty and her independence; she has
no master; she owes obedience to the laws alone. If she have a child,
the law acknowledges her rights over it, and no man can use her love for
it as an engine of torture to force her into compliance with his will.
Two disadvantages, however, attach to unlegalised unions; first, the
woman has to face social disapprobation, although of late years, as
women have been coming more to the front, this difficulty has been very
much decreased, for women have begun to recognise the extreme injustice
of the laws, and both men and women of advanced views have advocated
great changes in the marriage contract. The second disadvantage is of
a more serious character: the children proceeding from an unlegalised
union have not the same rights as those born in legal wedlock, do not
inherit as of right, and have no legal name. These injustices can be
prevented by care in making testamentary dispositions protecting them,
and by registering the surname, but the fact of the original unfairness
still remains, and any carelessness on the parents' part will result in
real injury to the child. It must also be remembered that the father, in
such a case, has no rights over his children, and this is as unfair to
him as the reverse is to the mother. As the law now is, both legal and
illegal unions have disadvantages connected with them, and there is only
a choice between evils; these evils are however, overwhelmingly greater
on the side of legal unions as may be seen by the foregoing sketch of
the disabilities imposed on women by marriage. So great are these that
a wise and self-respecting woman may well hesitate to enter into a
contract of marriage while the laws remain as they are, and a man who
really honours a woman must reluctantly subject her to the disadvantages
imposed on the English wife, when he asks her to take him as literally
her master and, owner. The relative position is as dishonouring to the
man as it is insulting to the woman, and good men revolt against it as
hotly as do the most high-spirited women. In happy marriages all these
laws are ignored, and it is only at rare intervals that the married
pair become conscious of their existence. Some argue that this being so,
small practical harm results from the legal injustice; it would be as
sensible to argue that as honest people do not want to thieve, it would
not be injurious to public morality to have laws on the statute book
legalising garotting. Laws are made to prevent injustice being committed
with impunity, and it is a curious reversal of every principle of
legislation to make laws which protect wrongdoing, and which can only
be defended on the ground that they are not generally enforced. If the
English marriage laws were universally carried out, marriage would not
last for a month in England; as it is, vast numbers of women suffer in
silence, thousands rebel and break their chains, and on every side
men and women settle down into a mutual tolerance which is simply an
easy-going indifference, accepted as the only possible substitute for
the wedded happiness which they once dreamed of in youth, but have
failed to realise in their maturity.
Things being as they are, what is the best action for those to take who
desire to see a healthier and purer sexual morality--a morality founded
upon equal rights and diverse duties harmoniously discharged? The first
step is to agitate for a reform of the marriage laws by the passing of
such an Act of Parliament as is alluded to above. It would be well for
some of those who desire to see such a legislative change to meet and
confer together on the steps to be taken to introduce such a Bill into
the House of Commons. If thought necessary, a Marriage Reform League
might be established, to organize the agitation and petitioning which
are _de rigueur_, in endeavouring to get a bill passed through the
popular House. Side by side with this effort to reform marriage abuses,
should go the determination not to contract a legal marriage while the
laws remain as immoral as they are. It is well known that the Quakers
persistently refused to go through the legal English form of marriage,
and quietly made their declarations according to their own conscience,
submitting to the disadvantages entailed on them by the illegality,
until the legislature formally recognised the Quaker declaration as
a legal form of marriage. Why should not we take a leaf out of the
Quakers' book, and substitute for the present legal forms of marriage a
simple declaration publicly made? We should differ from the Quakers
in this, that we should not desire that such declaration should be
legalised while the marriage laws remain as they are; but as soon as
the laws are moralised, and wives are regarded as self-possessing
human beings, instead of as property, then the declaration may, with
advantage, seek the sanction of the law. It is not necessary that
the declaration should be couched in any special form of words; the
conditions of the contract ought to be left to the contracting parties.
What is necessary is that it should be a definite contract, and it is
highly advisable that it should be a contract in writing--a deed of
partnership, in fact, which should--when the law permits--be duly
stamped and registered. The law, while it does not dictate the
conditions of the contract, should enforce those conditions so long as
the contract exists; that is, it should interfere just as far as it does
in other contracts, and no further; the law has no right to dictate the
terms of the marriage contract; it is for the contracting parties to
arrange their own affairs as they will. While, however, the province of
the law should be thus limited in respect to the contracting parties,
it has a clear right to interfere in defence of the interests of any
children who may be born of the marriage, and to compel the parents to
clothe, feed, house, and educate them properly: this duty should, if
need be, be enforced on both parents alike, and the law should recognise
and impose the full discharge of the responsibilities of parents towards
those to whom they have given life. No marriage contract should be
recognised by the law which is entered into by minors; in this, as in
other legal deeds, there should be no capability to contract until the
contracting parties are of full age. A marriage is a partnership, and
should be so regarded by the law, and it should be the aim of those
who are endeavouring to reform marriage, to substitute for the present
semi-barbarous laws a scheme which shall be sober, dignified, and
practicable, and which shall recognise the vital interest of the
community in the union of those who are to be the parents of the next
generation.
Such a deed as I propose would have no legal force at the present time;
and here arises a difficulty: might not a libertine take advantage of
this fact to desert his wife and possibly leave her with a child, or
children, on her hands; to the cold mercy of society which would not
even recognize her as a married woman? Men who, under the present
state of the law, seduce women and then desert them, would probably
do the same if they had gone through a form of marriage which had no
legally binding force; but such men are, fortunately, the exception,
not the rule, and there is no-reason to apprehend an increase of
their number, owing to the proposed action on the part of a number of
thoughtful men and women who are dissatisfied with the present state
of the law, but who have no wish to plunge into debauchery. I freely
acknowledge that it is to be desired that marriage should be legally
binding, and that a father should be compelled to do his share towards
supporting his children; but while English law imposes such a weight of
disability on a married woman, and leaves her utterly in the power
of her husband, however unprincipled, oppressive, and wicked he may
be--short of legal crime--I take leave to think that women have a
fairer chance of happiness and comfort in an unlegalised than in a legal
marriage. There is many an unhappy woman who would be only too glad if
the libertine who has legally married her would desert her, and leave
her, even with the burden of a family, to make for herself and her
children, by her own toil, a home which should at least be pure,
peaceful, and respectable.
Let me, in concluding this branch of the subject, say a word to those
who, agreeing with Marriage Reform in principle, fear to openly put
their theory into practice. Some of these earnestly hope for change, but
do not dare to advocate it openly. Reforms have never been accomplished
by Reformers who had not the courage of their opinions. If all the men
and women who disapprove of the present immoral laws would sturdily _and
openly_ oppose them; if those who desire to unite their lives, but are
determined not to submit to the English marriage laws, would publicly
join hands, making such a declaration as is here suggested, the social
odium would soon pass away, and the unlegalised marriage would be
recognised as a dignified and civilized substitute for the old brutal
and savage traditions. Most valuable work might here be done by men and
women who--happy in their own marriages--yet feel the immorality of the
law, and desire to see it changed. Such married people might support and
strengthen by their open countenance and friendship those who enter into
the unlegalised public unions here advocated; and they can do what no
one else can do so well: they can prove to English society--the most
bigoted and conservative society in the world--that advocacy of change
in the marriage laws does not mean the abolition of the home. The value
of such co-operation will be simply inestimable, and will do more
than anything else to render the reform practicable. Courage and quiet
resolution are needed, but, with these, this great social change may
safely and speedily be accomplished.
II. DIVORCE.
|Any proposed reforms in the marriage laws of England would be extremely
imperfect, unless they dealt with the question of divorce. Marriage
differs from all ordinary contracts in the extreme difficulty of
dissolving it--a difficulty arising from the ecclesiastical character
which has been imposed upon it, and from the fact that it has been
looked upon as a religious bond instead of as a civil contract. Until
the time of the Reformation, marriage was regarded as a sacrament by all
Christian people, and it is so regarded by the majority of them up to
the present day. When the Reformers advocated divorce, it was considered
as part of their general heresy, and as proof of the immoral tendency
of their doctrines. Among Roman Catholics the sacramental--and therefore
the indissoluble--character of marriage is still maintained, but among
Protestants divorce is admitted, the laws regulating it varying much in
different countries.
In England--owing to the extreme conservatism of the English in all
domestic matters--the Protestant view of marriage made its way very
slowly. Divorce remained within the jurisdiction of ecclesiastical
courts, and these granted only divorces _a mensâ et thoro_ in cases
where cruelty or adultery was pleaded as rendering conjugal life
impossible. These courts never granted divorces a _vinculo matrimonii_,
which permit either--or both--of the divorced persons to contract a
fresh marriage, except in cases where the marriage was annulled as
having been void from the beginning; they would only grant a separation
"from bed and board," and imposed celibacy on the divorced couple until
one of them died, and so set the other free. There was indeed a report
drawn up by a commission, under the authority of 3 and 4 Edward VI., c.
ii., which was intended as a basis for the re-modelling of the marriage
laws, but the death of the king prevented the proposed reform; the
ecclesiastical courts remained as they were, and absolute divorce
was unattainable. Natural impatience of a law which separated unhappy
married people only to impose celibacy on them, caused occasional
applications to be made to Parliament for relief, and a few marriages
were thus dissolved under exceptional circumstances. In 1701, a bill
was obtained, enabling a petitioner to re-marry, and in 1798, Lord
Loughborough's "Orders" were passed. By these orders, no petition could
be presented to the House, unless an official copy of the proceedings,
and of a definitive sentence of divorce, _a mensâ et thoro_, in the
ecclesiastical courts, was delivered on oath at the bar of the House at
the same time (Broom's "Comm.," vol. iii. p. 396). After explaining
the procedure of the ecclesiastical court, Broom goes on: "A definitive
sentence of divorce _a mensâ et thoro_ being thus obtained, the
petitioner proceeded to lay his case before the House of Lords in
accordance with the Standing Orders before adverted to, and, subject to
his proving the case, he obtained a bill divorcing him from the bonds of
matrimony, and allowing him to marry again. The provisions of the
bill, which was very short, were generally these:--1. The marriage was
dissolved. 2. The husband was empowered to marry again. 3. He was given
the rights of a husband as to any property of an after-taken wife. 4.
The divorced wife was deprived of any right she might have as his widow.
5. Her after-acquired property was secured to her as against the husband
from whom she was divorced. In the case of the wife obtaining the bill,
similar provisions were made in her favour" (p. 398). In 1857, an Act
was passed establishing a Court for Divorce and Matrimonial Causes, and
thus a great step forward was taken: this court was empowered to grant
a judicial separation--equivalent to the old divorce _a mensâ et
thoro_--in cases of cruelty, desertion for two years and upwards, or
adultery on the part of the husband; it was further empowered to grant
an absolute divorce with right of re-marriage--equivalent to the old
divorce _a vinculo matrimonii_--in cases of adultery on the part of the
wife, or of, on the part of the husband, incestuous adultery, or of
bigamy with adultery, or of rape, or an unnatural crime, or of adultery
coupled with such cruelty as would formerly have entitled her to a
divorce _a mensâ et thoro_, or of adultery coupled with desertion,
without reasonable excuse, for two years or upwards (Broom, vol. i., p.
542). The other powers held by the court need not now be specially dwelt
upon.
The first reform here needed is that husband and wife should be placed
on a perfect equality in asking for a divorce: at present if husband and
wife be living apart, no amount of adultery on the husband's part can
release the wife; if they be living together, a husband may keep as
many mistresses as he will, and, provided that he carefully avoid any
roughness which can be construed into legal cruelty, he is perfectly
safe from any suit for dissolution of marriage. Adultery alone, when
committed by the husband, is not ground for a dissolution of marriage;
it must be coupled with some additional offence before the wife can
obtain her freedom. But the husband can obtain a dissolution of marriage
for adultery committed by the wife, and he can further obtain money
damages from the co-respondent, as a _solatium_ to his wounded feelings.
Divorce should be absolutely equal as between husband and wife: adultery
on either side should be sufficient, and if it be thought necessary to
join a male co-respondent when the husband is the injured party, then it
should also be necessary to join a female co-respondent where the wife
brings the suit. The principle, then, which should be laid down as
governing all cases of divorce, is that no difference should be made in
favour of either side; whatever is sufficient to break the marriage in
the one case should be sufficient to break it in the other.
Next, the system of judicial separation should be entirely swept away.
Wherever divorce is granted at all, the divorce should be absolute. No
useful end is gained by divorcing people practically and regarding them
as married legally. A technical tie is kept up, which retains on the
wife the mass of disabilities which flow from marriage, while depriving
her of all the privileges, and which widows both man and woman, exiling
them from home-life and debarring them from love. Judicial separation is
a direct incentive to licentiousness and secret sexual intercourse; the
partially divorced husband, refused any recognised companion, either
indulges in promiscuous lust, to the ruin of his body and mind, or
privately lives with some woman whom the law forbids him to marry and
whom he is ashamed to openly acknowledge. Meanwhile the semi-divorced
wife can obtain no relief, and is compelled to live on, without the
freedom of the spinster or the widow, or the social consideration of the
married woman. She can only obtain freedom by committing what the law
and society brand as adultery; if she has any scruples on this head, she
must remain alone, unloved and without home, living a sad, solitary life
until death, more merciful than the law, sets her free.
It is hard to see what object there can be in separating a married
couple, in breaking up the home, dividing the children, and yet
maintaining the fact of marriage just so far as shall prevent the
separated couple from forming new ties; the position of those who regard
divorce as altogether sinful, is intelligible, however mistaken; but
the position of those who advocate divorce, but object to the divorced
couple having the right of contracting a new marriage, is wholly
incomprehensible. No one profits by such divorce, while the separated
couple are left in a dubious and most unsatisfactory condition; they are
neither married nor unmarried; they can never shake themselves free from
the links of the broken chain; they carry about with them the perpetual
mark of their misfortune, and can never escape from the blunder
committed in their youth. They would be the happier, and society would
be the healthier, if the divorce of life and of interests were also a
divorce which should set them free to seek happiness, if they will, in
other unions--free technically as well as really, free in law as well as
in fact.
If it be admitted that all divorce should be absolute, the question
arises: What should be the ground of divorce? First, adultery, because
breach of faith on either side should void the contract which implies
loyalty to each other; the legal costs of both should fall on the
breaker of the contract, but no damages should be recoverable against a
third party. Next, cruelty, because where the weaker party suffers from
the abuse of power of the stronger, there the law should, when appealed
to, step in to annul the contract, which is thus a source of injury
to one of the contracting parties; if a man be brought up before the
magistrate charged with wife-beating or violence of any kind towards his
wife, and be convicted and sentenced, the Divorce Court should, on
the demand of the wife, the record being submitted to it, pronounce a
sentence of divorce; in the rare case of violence committed by a wife on
her husband, the same result should accrue; the custody of the children
should be awarded to the innocent party, since neither a man nor a woman
convicted of doing bodily harm to another is fit to be trusted with the
guardianship of a child. * The next distinct ground of divorce should
be habitual drunkenness; drunkenness causes misery to the sober
partner, and is ruinous in its effect, both on the _physique_ and on the
character of the children proceeding from the marriage. Here, of course,
the custody of the children should be committed entirely to the innocent
parent.
* Since these lines were published in the National Reformer,
a clause has been inserted in a bill now before Parliament,
empowering magistrates to grant an order of separation to a
wife? if it is proved that she has been cruelly ill-used by
her husband, and further compelling the husband, in such a
case, to contribute a weekly sum towards her maintenance.
This will be a great improvement on the present state of
things, but absolute divorce would be better than mere
separation.
At present, the usual unfairness presides over the arrangements as to
access to the children by the parents: "In the case of a mother who is
proved guilty of adultery, she is usually debarred from such access,
though it has not been the practice to treat the offending father with
the same rigour" (Broom's "Comm.," vol. iii., p. 404). In all cases of
divorce the interests of the children should be carefully guarded; both
parents should be compelled to contribute to their support, whether the
guardianship be confided to the father or to the mother.
These glaring reasons for granting a divorce will be admitted by
everyone who recognises the reasonableness of divorce at all, but there
will be more diversity of opinion as to the advisability of making
divorce far more easily attainable. The French Convention of 1792 set
an example that has been only too little followed; for the first time
in French history divorce was legalised in France. It was obtainable "on
the application of either party [to the marriage] alleging simply as a
cause, incompatibility of humour or character. The female children were
to be entirely confided to the care of the mother, as well as the males,
to the age of seven years, when the latter were again to be re-committed
to the superintendence of the father; provided only, that by mutual
agreement any other arrangement might take place with respect to the
disposal of the children; or arbitrators might be chosen by the nearest
of kin to determine on the subject. The parents were to contribute
equally to the maintenance of the children, in proportion to their
property, whether under the care of the father or mother. Family
arbitrators were to be chosen to direct with respect to the partition
of the property, or the alimentary pension to be allowed to the party
divorced. Neither of the parties could contract a new marriage for the
space of one year" ("Impartial History of the Late Revolution," vol.
ii., pp. 179, 180). This beneficial law was swept away, with many other
useful changes, when tyranny came back to France. At the present time
the only countries where divorce is easily obtainable are some of the
states of Germany and of America. It has been held in at least one
American state that proved incompatibility of temper was sufficient
ground for separation. And reasonably so; if two people enter into a
contract for their mutual comfort and advantage, and the contract issues
in mutual misery and loss, why should not the contract be dissolved?
It is urged that marriage would be dishonoured if divorce were easily
attainable; surely marriage is far more dishonoured by making it a chain
to tie together two people who have for each other neither affection nor
respect. For the sake of everyone concerned an unhappy marriage should
be easily dissoluble; the married couple would be the happier and the
better for the separation; their children--if they have any--would be
saved from the evil effect of continual family jars, and from the
loss of respect for their parents caused by the spectacle of constant
bickering; the household would be spared the evil example of the
quarrels of its heads; society would see less vice and fewer scandalous
divorce suits. In all cases of contract, save that of marriage, those
who make can, by mutual consent, unmake; why should those who make the
most important contract of all be deprived of the same right?
Mr. John Stuart Mill, dealing very briefly with the marriage contract
in his essay "On Liberty," points out that the fulfilment of obligations
incurred by marriage must not be forgotten when the contract is
dissolved, since these "must be greatly affected by the continuance
or disruption of the relation between the original parties to the
contract." But he goes on to say: "It does not follow, nor can I
admit, that these obligations extend to requiring the fulfilment of the
contract at all costs to the happiness of the reluctant party; but they
are a necessary element in the question; and even if, as Von Humboldt
maintains, they ought to make no difference in the _legal_ freedom of
the parties to release themselves from the engagement (and I also hold
that they ought not to make _much_ difference), they necessarily make a
great difference in the _moral_ freedom. A person is bound to take all
these circumstances into account before resolving on a step which may
affect such important interests of others; and if he does not allow
proper weight to those interests, he is morally responsible for the
wrong. I have made these obvious remarks for the better illustration of
the general principle of liberty, and not because they are at all needed
on the particular question, which, on the contrary, is usually discussed
as if the interest of children was everything, and that of grown persons
nothing" (p. 61). The essay of Von Humboldt, referred to by Mr. Mill, is
that on the "Sphere and Duties of Government;" Von Humboldt argues
that "even where there is nothing to be objected to the validity of a
contract, the State should have the power of lessening the restrictions
which men impose on one another, even with their own consent, and by
facilitating the release from such engagements of preventing a moment's
decision from hindering their freedom of action for too long a period
of life" (p. 134, of Coulthard's translation). After pointing out that
contracts relating to the transfer of _things_ should be binding, Von
Humboldt proceeds: "With contracts which render personal performance a
duty, or still more with those which produce proper personal relations,
the case is wholly different. With these coercion operates hurtfully on
man's noblest powers; and since the success of the pursuit itself which
is to be conducted in accordance with the contract, is more or less
dependent on the continuing consent of the parties, a limitation of such
a kind is in them productive of less serious injury. When, therefore,
such a personal relation arises from the contract as not only to require
certain single actions, but, in the strictest sense, to affect the
person, and influence the whole manner of his existence; where that
which is done, or left undone, is in the closest dependence on internal
sensations, the option of separation should always remain open, and the
step itself should not require any extenuating reasons. Thus it is with
matrimony" (pp. 134-135).
Robert Dale Owen--the virtuous and justly revered author of "Moral
Physiology;" a man so respected in his adopted country, the United
States of America, that he was elected as one of its senators, and was
appointed American ambassador at the Court of Naples--Robert Dale Owen,
in a letter to Thomas Whittemore, editor of the Boston Trumpet, May,
1831, deals as follows with the contract of marriage:--
"I do not think it virtuous or rational in a man and woman solemnly to
swear that they will love and honour each other until death part them.
First, because if affection or esteem on either side should afterwards
cease (as, alas! we often see it cease), the person who took the
marriage-oath has perjured himself; secondly, because I have observed
that such an oath, being substituted for the noble and elevating
principle of moral obligation, has a tendency to weaken that principle.
"You will probably ask me whether I should equally object to a solemn
promise to live together during life whatever happens. I do not think
this _equally_ objectionable, because it is an explicit promise possible
to be kept; whereas the oath to love until death, may become impossible
of fulfilment. But still I do not approve even this possible promise;
and I will give you the reasons why I do not.
"That a man and woman should occupy the same house, and daily enjoy each
other's society, so long as such an association gives birth to
virtuous feelings, to kindness, to mutual forbearance, to courtesy, to
disinterested affection, I consider right and proper. That they should
continue to inhabit the same house and to meet daily, in case such
intercourse should give birth to vicious feelings, to dislike, to ill
temper, to scolding, to a carelessness of each other's comfort and a
want of respect for each other's feelings,--this I consider, _when the
two individuals alone are concerned_, neither right nor proper;
neither conducive to good order nor to virtue. I do not think it well,
therefore, to promise, at all hazards, to live together for life.
"Such a view may be offensive to orthodoxy, but surely, surely it is
approved by common sense. Ask yourself, sir, who is--who can be the
gainer--the man, the woman, or society at large--by two persons living
in discord rather than parting in peace, as Abram and Lot did when their
herdsmen could not agree. We have temptations enough already to ill
humour in the world, without expressly creating them for ourselves; and
of all temptations to that worst of petty vices, domestic bickering,
can we suppose one more strong or more continually active than a forced
association in which the heart has no share? Do not the interests of
virtue and good order, then, imperiously demand (as the immortal author
of 'Paradise Lost' argued, in his celebrated work 'On Divorce,') that
the law should abstain from perpetuating any association, after it has
become a daily source of vice?
"If children's welfare is concerned, and that they will be injured by
a separation, the case is different. Those who impart existence to
sentient beings are, in my view, responsible to them for as much
happiness as it is in their power to bestow. The parent voluntarily
assumes this greatest of responsibilities; and he who, having so
assumed it, trifles with his child's best interests for his own selfish
gratification, is, in my eyes, utterly devoid of moral principle; or, at
the least, utterly blind to the most sacred duty which a human being
can be called to perform. If, therefore, the well-being and future
prosperity of the children are to be sacrificed by a separation of
the parents, then I would positively object to the separation, however
grievous the evil effects of a continued connection might be to the
dissentient couple.
"Whether the welfare of children is ever promoted by the continuation
of an ill-assorted union, is another question; as also in what way they
ought to be provided for, where a separation actually takes place.
"But to regard, for the moment, the case of the adults alone. You will
remark, that it is no question for us to determine whether it is better
or more proper that affection, once conceived, should last through life.
We might as well sit down to decree whether the sun should shine or be
hid under a cloud, or whether the wind should blow a storm or a gentle
breeze. We may rejoice when it does so last, and grieve when it does
not; but as to legislating about the matter, it is the idlest of
absurdities.
"But we _can_ determine by law the matter of living together. We may
compel a man and woman, though they hate each other as cordially as any
of Byron's heroes, to have one common name, one common interest, and
(nominally) one common bed and board. We may invest them with the legal
appearance of the closest friends while they are the bitterest enemies.
It seems to me that mankind have seldom considered what are the actual
advantages of such a proceeding to the individuals and to society. I
confess that I do not see what is gained in so unfortunate a situation,
by keeping up the appearance when the reality is gone.
"I do see the necessity, in such a case, if the man and woman separate,
of dividing what property they may possess equally between them; and
(while the present monopoly of profitable occupations by men lasts)
I also see the expediency, in case the property so divided be not
sufficient for the woman's comfortable support, of causing the man to
continue to contribute a fair proportion of his earnings towards it. I
also see the impropriety, as I said before, that the children, if any
there be, should suffer. But I cannot see who is the gainer by obliging
two persons to continue in each other's society, when heart-burnings,
bickerings, and other vicious results, are to be the consequence.
"There are cases when affection ceases on one side and remains on the
other. No one can deny that this is an evil, often a grievous one; but I
cannot perceive how the law can remedy it, or soften its bitterness, any
more than it can legislate away the pain caused by unreturned friendship
between persons of the same sex.
"You will ask me, perhaps, whether I do not believe that, but for the
law, there would be a continual and selfish change indulged, without
regard to the feelings or welfare of others. What there might be in the
world, viciously trained and circumstanced as so many human beings now
are, I know not, though I doubt whether things _could_ be much worse
than they are now; besides that no human power can legislate for the
heart. But if men and women were trained (as they so easily might!) to
be even decently regardful of each other's feelings, may we not assert
positively, that no such result could, possibly happen? Let me ask each
one of your readers, and let each answer to his or her own heart: 'Are
you indeed bound to those you profess to love and honour by the law
_alone?_ Alas! for your chance of happiness, if the answer be 'Yes!'"
The fact is, as Mr. Owen justly says, that a promise to "love... until
death us do part" is an immoral promise, because its performance is
beyond the power of those who give the promise. To love, or not to love,
is not a matter of the will; Love in chains loses his life, and only
leaves a corpse in his captive's hand. Love is, of its very nature,
voluntary, freely given, drawing together by an irresistible sympathy
those whose natures are adapted to each other. Shelley well says, in
one of the notes on Queen Mab: "Love is inevitably consequent on the
perception of loveliness. Love withers under constraint; its very
essence is liberty; it is compatible neither with obedience, jealousy,
nor fear; it is there most pure, perfect and unlimited, where its
votaries live in confidence, equality, and unreserve." To say this, is
not to say that higher duty may not come between the lovers, may not,
for a time, keep them apart, may not even render their union impossible;
it is only to recognize a fact that no thoughtful person can deny, and
to show how utterly wrong and foolish it is to promise for life, that
which can never be controlled by the will.
But marriage, it is said, would be too lightly entered into if it were
so easily dissoluble. Why? People do not rush into endless partnerships
because they are dissoluble at pleasure; on the contrary, such
partnerships last just so long as they are beneficial to the contracting
parties. In the same way, marriage would last exactly so long as its
continuance was beneficial, and no longer: when it became hurtful, it
would be dissolved. "How long then," asks Shelley, "ought the sexual
connection to last? what law ought to specify the extent of the
grievances which should limit its duration? A husband and wife ought to
continue so long united as they love each other; any law which should
bind them to cohabitation for one moment after the decay of their
affection, would be a most intolerable tyranny, and the most unworthy
of toleration. How odious a usurpation of the right of private judgment
should that law be considered which should make the ties of friendship
indissoluble, in spite of the caprices, the inconstancy, the fallibility
and capacity for improvement of the human mind. And by so much would
the fetters of love be heavier and more unendurable than those of
friendship, as love is more vehement and capricious, more dependent
on those delicate peculiarities of imagination, and less capable of
reduction to the ostensible merits of the object.... The connection
of the sexes is so long sacred as it contributes to the comfort of the
parties, and is naturally dissolved when its evils are greater than its
benefits. There is nothing immoral in this separation" (Notes on "Queen
Mab"). In spite of this facility of divorce, marriage would be the most
enduring of all partnerships; not only is there between married couples
the tie of sexual affection, but around them grows up a hedge of common
thoughts, common interests, common memories, that, as years go on, makes
the idea of separation more and more repulsive. It would only be where
the distaste had grown strong enough to break through all these, that
divorce would take place, and in such cases the misery of the enforced
common life would be removed without harm to any one. Of course, this
facility of divorce will entirely sweep away those odious suits for
"restitution of conjugal rights" which occasionally disgrace our courts.
If a husband and wife are living apart, without legal sanction, it is
now open to either of them to bring a suit for restitution of conjugal
rights. "The decree of restitution pronounces for the marriage,
admonishes the respondent to take the petitioner home and treat him or
her as husband or wife, and to render him or her conjugal rights; and,
further, to certify to the court, within a certain time, that he or she
had done so; in default of which, an attachment for contempt of court
will be issued against the offending party" (Broom's "Comm.," vol. iii.,
p. 400). It is difficult to understand how any man or woman, endued with
the most rudimentary sense of decency, can bring such a suit, and, after
having succeeded, can enforce the decision. We may hope that, as sexual
morality becomes more generally recognised, it will be seen that the
essence of prostitution lies in the union of the sexes without mutual
love; when a woman marries for rank, for title, for wealth, she sells
herself as veritably as her poorer and more unfortunate sister; love
alone makes the true marriage, love which is loyal to the beloved, and
is swayed by no baser motive than passionate devotion to its object.
When no such love exists the union which is marriage by law is nothing
higher than legalised prostitution: the enforcement on an unwilling
man or woman of conjugal rights is something even still lower, it is
legalised rape.
It may be hoped that when divorce is more easily obtainable, the
majority of marriages will be far happier than they are now. Half
the unhappiness of married life arises from the too great feeling of
security which grows out of the indissoluble character of the tie. The
husband is very different from the lover; the wife from the betrothed;
the ready attention, the desire to please, the eager courtesy, which
characterised the lover disappear when possession has become certain;
the daintiness, the gaiety, the attractiveness which marked the
betrothed, are no longer to be seen in the wife whose position is
secure; in society a lover may be known by his attention to his
betrothed, a husband by his indifference to his wife. If divorce were
the result of jarring at home, married life would very rapidly change;
hard words, harshness, petulance, would be checked where those who had
won the love desired to keep it, and attractiveness would no longer be
dropped on the threshold of the home. Here, too, Shelley's words are
well worth weighing: "The present system of restraint does no more, in
the majority of instances, than make hypocrites or open enemies. Persons
of delicacy and virtue, unhappily united to those whom they find
it impossible to love, spend the loveliest season of their life in
unproductive efforts to appear otherwise than they are, for the sake of
the feelings of their partner, or the welfare of their mutual
offspring; those of less generosity and refinement openly avow their
disappointment, and linger out the remnant of that union, which only
death can dissolve, in a state of incurable bickering and hostility. The
early education of the children takes its colour from the squabbles
of the parents; they are nursed in a systematic school of ill-humour,
violence and falsehood. Had they been suffered to part at the moment
when indifference rendered their union irksome, they would have been
spared many years of misery: they would have connected themselves more
suitably, and would have found that happiness in the society of more
congenial partners which is for ever denied them by the despotism of
marriage. They would have been separately useful and happy members of
society, who, whilst united, were miserable, and rendered misanthropical
by misery. The conviction that wedlock is indissoluble, holds out the
strongest of all temptations to the perverse; they indulge without
restraint in acrimony, and all the little tyrannies of domestic life,
when they know that their victim is without appeal. If this conviction
were put on a rational basis, each would be assured that habitual
ill-temper would terminate in separation, and would check this vicious
and dangerous propensity" (Notes on "Queen Mab"). To those who had
thought over the subject carefully, it was no surprise to hear
Mr. Moncure Conway say--in a debate on marriage at the Dialectical
Society--that in Illinois, U.S.A., where there is great facility of
divorce, the marriages were exceptionally happy. The reason was not far
to seek.
Dealing elsewhere with this same injurious effect of overcertainty on
the relations of married people to each other, Mr. Moncure Conway writes
as follows:--"In England we smilingly walk our halls of Eblis, covering
the fatal wound; but our neighbours across the Channel are frank. Their
moralists cannot blot out the proverb that 'Marriage is the suicide of
love.' Is it any truer here than there that, as a general thing, the
courtesies of the courtship survive in the marriage? 'Who is that domino
walking with George?' asks Grisette No. 1, as, reported by _Charivari_.
'Why,' returns Grisette No. 2, 'do you not walk behind them, and listen
to what they say?' 'I have done so, and they do not say a word.' 'Ah,
it is his wife.' But what might be George's feeling if he knew his
wife might leave him some morning? 'If conserve of roses be frequently
eaten.' they say in Persia, 'it will produce a surfeit.' The thousands
of husbands and wives yawning in each other's faces at this moment need
not go so far for their proverb. If it be well, as it seems to me to be,
that this most intimate relation between man and woman should be made as
durable as the object for which it is formed will admit, surely the bond
should be real to the last, a bond of kindliness, thoughtfulness, actual
helpfulness. So long as the strength of the bond lies simply in the
disagreeable concomitants of breaking it, so long as it is protected
by the very iron hardness which makes it gall and oppress, what need
is there of the reinforcement of it by the cultivation of minds, the
preservation of good temper, and considerate behaviour? Love is not
quite willing to accept the judge's mace for his arrow. When the law no
longer supplies husband or wife with a cage, each must look to find and
make available what resources he or she has for holding what has been
won. We may then look for sober second thoughts both before and after
marriage. Love, from so long having bandaged eyes, will be all eye.
Every real attraction will be stimulated when all depends upon real
attraction. When the conserve becomes fatiguing, it will be refreshed
by a new flavour, not by a certificate. From the hour when a thought
of obligation influences either party to it, the marriage becomes a
prostitution." ("The Earthward Pilgrimage," pp. 289, 290, 291).
A remarkable instance of the permanence of unions dissoluble at pleasure
is to be found related by Robert Dale Owen, in an article entitled
"Marriage and Placement," which appeared in the _Free Inquirer_ of May
28, 1831. It deals with the unions between the sexes in the Haytian
Republic, and the facts therein related are well worthy of serious
attention. Mr. Owen writes:--
"Legal marriage is common in St. Domingo as elsewhere. Prostitution,
too, exists there as in other countries. But this institution of
_placement_ is found nowhere, that I know of, but among the Haytians.
"Those who choose to marry, are united, as in other countries, by a
priest or magistrate. Those who do not choose to marry, and who
equally shrink from the mercenary embrace of prostitution, are (in the
phraseology of the island) _placés_: that is, literally translated,
_placed._
"The difference between _placement_ and marriage is, that the former
is entered into without any prescribed form, the latter with the usual
ceremonies: the former is dissoluble at a day's warning, the latter
is indissoluble except by the vexatious and degrading formalities
of divorce; the former is a tacit social compact, the latter a legal
compulsory one; in the former the woman gives up her name and her
property; in the latter, she retains both.
"Marriage and placement are, in Hayti, equally respectable, or, if
there be a difference, it is in favour of placement; and in effect ten
placements take place in the island for one marriage. _Pétion_, the
Jefferson of Hayti, * sanctioned the custom by his approval and example.
_Boyer_, his successor, the president, did the same; ** and by far
the largest portion of the respectable inhabitants have imitated their
presidents, and are _placed_, not married. The children of the placed
have, in every particular, the same legal rights and the same standing
as those born in wedlock.
* "It may suffice, in illustration of Pétion's character, to
quote the touching inscription found on his tomb--'Here lies
Pétion, who enjoyed for twelve years absolute power, and
during that period never caused one tear to flow.'"
** "Boyer's resolution in this matter is the more
remarkable, as he has been urged and pestered to submit to
the forms of marriage. Grégoire, archbishop of Blois, and
who is well known for the perseverance and benevolence with
which he has, for a long series of years, advocated the
cause of the African race, wrote to the president of Hayti
in the most urgent terms, pressing upon him the virtue--the
necessity, for his salvation--of conforming to the sacrament
of marriage. To such a degree did the good old archbishop
carry his intermeddling officiousness, that when Boyer
mildly but firmly declined availing himself of his grace's
advice, a rupture was the consequence, greatly to the sorrow
of the president, who had ever entertained the greatest
respect and affection for his ecclesiastical friend."
"I imagine I hear from the clerical supporters of orthodoxy one general
burst of indignation at this sample of national profligacy; at this
contemning of the laws of God and man; at this escape from the Church's
ceremonies and the ecclesiastical blessing. I imagine I hear the
question sneeringly put, how long these same _respectable_ connections
commonly last, and how many dozen times they are changed in the course
of a year.
"Gently, my reverend friends! it is natural you should find it wrong
that men and women dispense with your services and curtail your fees in
this matter. But it is neither just nor proper, that because no
prayers are said, and no fees paid, you should denounce the custom as a
profligate one. Learn (as I did the other day from an intelligent
French gentleman who had remained some time on the island)--learn, that
_although there are ten times as many placed as married, yet there are
actually fewer separations among the former than divorces among the
latter_. If constancy, then, is to be the criterion of morality, these
same profligate unions--that is, unions unprayed-for by the priest and
unpaid for to him--are ten times as moral as the religion-sanctioned
institution of marriage.
"But this is not all. It is a fact notorious in Hayti, that libertinism
is far more common among the married than among the placed. The
explanatory cause is easily found. A placement secures to the consenting
couple no _legal_ right over one another. They remain together, as
it were, on good behaviour. Not only positive tyranny or downright
viragoism, but petulant peevishness or selfish ill humour, are
sufficient causes of separation. As such, they are avoided with sedulous
care. The natural consequence is, that the unions are usually happy, and
that each being comfortable at home, is not on the search for excitement
abroad. In indissoluble marriage, on the contrary, if the parties should
happen to disagree, their first jarrings are unchecked by considerations
of consequences. A husband may be as tyrannical as to him seems good;
he remains a lord and master still; a wife may be as pettish as she
pleases; she does not thereby forfeit the rights and privileges of a
wife. Thus, ill humour is encouraged by being legalized, and the natural
results ensue, alienation of the heart, and sundering of the affections.
The wife seeks relief in fashionable dissipation; the husband, perhaps,
in the brutalities of a brothel.
"But, aside from all explanatory theories, the fact is, as I have stated
it, viz.: that (taking the proportion of each into account) _there are
ten legal separations of the married, for one voluntary separation of
the placed_. If anyone doubts it, let him inquire for himself, and he
will doubt no longer.
"What say you to that fact, my reverend friends? How consorts it with
your favourite theory, that man is a profligate animal, a desperately
wicked creature? that, but for your prayers and blessings, the earth
would be a scene of licentiousness and excess? that human beings remain
together, only because you have helped to tie them? that there is no
medium between priestly marriage and unseemly prostitution?
"Does this fact open your eyes a little on the real state of things to
which we heterodox spirits venture to look forward? Does it assist in
explaining to you how it is that we are so much more willing than you to
entrust the most sacred duties to moral rather than legal keeping?
"You cannot imagine that a man and a woman, finding themselves suited
to each other, should agree, without your interference, to become
companions; that he should remove to her plantation, or she to his, as
they found it most convenient; that the connection should become known
to their friends without the agency of banns, and be respected, even
though not ostentatiously announced in a newspaper. Yet all this happens
in Hayti, without any breach of propriety, without any increase of
vice; but, on the contrary, much to the benefit of morality, and the
discouragement of prostitution. It happens among the white as well as
the coloured population; and the president of the country gives it his
sanction, in his own person.
"Do you still ask me--accustomed as you are to consider virtue the
offspring of restrictions--do you still ask me, what the checks are that
produce and preserve such a state of things? I reply, good feeling
and public opinion. Continual change is held to be disreputable; where
sincere and well-founded affection exists, it is not desired; and as
there is no pecuniary inducement in forming a placement, these voluntary
unions are seldom ill-assorted."
Where social anarchy is feared, facts like these are worth pages of
argument. If the Haytians are civilised enough for this more moral kind
of marriage, why should Europeans be on a lower level? For it should not
be forgotten that the experiment was tried in St. Domingo under great
disadvantages, and these unlegalised unions have yet proved more
permanent than those tied with all due formality and tightness.
It may be urged: if divorce is to be so easily attainable, why
should there be a marriage contract at all? Both as regards the pair
immediately concerned, and as regards the children who may result from
the union, a clear and definite contract seems to me to be eminently
desirable. It is not to be wished that the union of those on whom
depends the next generation should be carelessly and lightly entered
into; the dignity and self-recollection which a definite compact implies
are by no means to be despised, when it is remembered how grave and
weighty are the responsibilities assumed by those who are to give to the
State new citizens, and to Humanity new lives, which must be either a
blessing or a curse. But the dignity of such a course is not its only,
nor, indeed, its main, recommendation. More important is the absolute
necessity that the conditions of the union of the two adult lives should
be clearly and thoroughly understood between them. No wise people enter
into engagements of an important and durable character without a written
agreement; a definite contract excludes all chance of disagreement as
to the arrangements made, and prevents misunderstandings from arising. A
verbal contract may be misunderstood by either party; lapse of time may
bring about partial forgetfulness; slight disagreements may result in
grave quarrels. If the contract be a written one, it speaks for itself,
and no doubt can arise which cannot be reasonably settled. All this is
readily seen where ordinary business partnerships are concerned, but
some--unconsciously rebounding from the present immoral system, and
plunging into the opposite extreme--consider that the union in marriage
of man and woman is too tender and sacred a thing to be thus dealt with
as from a business point of view. But it must be remembered that while
love is essential to true and holy marriage, marriage implies more than
love; it implies also a number of new relations to the outside
world which--while men and women live in the world--cannot be wholly
disregarded. Questions of house, of money, of credit, &c., necessarily
arise in connection with the dual home, and these cannot be ignored by
sensible men and women. The contract does not touch with rude hands
the sensitive plant of love; it concerns itself only with the garden
in which the plant grows, and two people can no more live on love alone
than a plant can grow without earth around its roots. A contract which
removes occasions of disagreement in business matters shelters and
protects the love from receiving many a rude shock. "Society will ere
long," said Mr. Conway, "be glad enough to assimilate contracts between
man and woman to contracts between partners in business. Then love will
dispense alike with the bandage on its eyes and the constable's aid."
Some pre-nuptial arrangement seems necessary which shall decide as to
the right of inheritance of the survivor of the married pair. As common
property will grow up during the union, such property should pass to
the survivor and the children, and until some law be made which shall
prevent parents from alienating from their children the whole of their
property, a provision guarding their inheritance should find its place
in the proposed deed. A definite marriage contract is also desirable for
the sake of the children who may proceed from the union. Society has a
right to demand from those who bring new members into it, some
contract which shall enable it to compel them to discharge their
responsibilities, if they endeavour to avoid them. If all men and women
were perfect, no contract would be necessary, any more than it would be
necessary to have laws against murder and theft; but while men and women
are as they are, some compulsive power against evil-doers must be held
in reserve by the law. Society is bound to guard the interests of the
helpless children, and this can only be done by a clear and definite
arrangement which makes both father and mother responsible for the lives
they have brought into existence, and which shows the parentage in a
fashion which could go into a law-court should any dispute arise.
Again, if there were no contract, in whom would the guardianship of the
children be vested, in case of wrongdoing of either parent, of death,
or of separation? Suppose a brutal father: his wife leaves him and takes
the children with her; how is she to keep them if he claims and takes
them? If she has the legal remedy of divorce, the Court awards her the
guardianship and she is safe from molestation. If a wife elope,
taking the children with her, is the father to have no right to the
guardianship of his sons and daughters, but to remain passive while they
pass under the authority of another man? Application for divorce would
guard him from such a wrong. If the parents separate, and both desire to
have the children, how can such contest be decided, save by appeal to
an impartial law? Marriage, as before urged, is a partnership, and where
common duties, common interests, and common responsibilities grow up,
there it is necessary that either party shall have some legal means of
redress in case of the wrongdoing of the other.
To those who, on the other hand, object to facility of divorce being
granted at all, it may fairly be asked that they should not forget
that to place divorce within the reach of people, is not the same as
compelling them to submit to it. Those who prefer to regard marriage as
indissoluble could as readily maintain the indissolubility of their own
wedded tie under a law which permitted divorce, as they can do at the
present time. But those who think otherwise, and are unhappy in their
marriages, would then be able to set themselves free. No happy marriage
would be affected by the change, for the attainability of divorce would
only be welcomed by those whose marriage was a source of misery and of
discord; the contented would be no less content, while the unhappy would
be relieved of their unhappiness; thus the change would injure no one,
while it would benefit many.
It is a pity that there is no way of obtaining the general feminine
view of the subject of marriage and divorce; women who study, who form
independent opinions are--so far as my experience goes--unanimous in
their desire to see the English laws altered; advanced thinkers of both
sexes are generally, one might say universally, in favour of change.
To those who think that women, if polled to-morrow, would vote for
a continuance of the present state of things, may be recommended the
following passage from Mrs. Mill: "Women, it is said, do not desire,
do not seek what is called their emancipation. On the contrary, they
generally disown such claims when made in their behalf, and fall with
_acharnement_ upon any one of themselves who identifies herself with
their common cause. Supposing the fact to be true in the fullest extent
ever asserted, if it proves that European women ought to remain as they
are, it proves exactly the same with respect to Asiatic women; for
they too, instead of murmuring at their seclusion, and at the restraint
imposed upon them, pride themselves on it, and are astonished at the
effrontery of women who receive visits from male acquaintances, and are
seen in the streets unveiled. Habits of submission make men as well
as women servile-minded. The vast population of Asia do not desire or
value, probably would not accept, political liberty, nor the savages
of the forest, civilization; which does not prove that either of those
things is undesirable for them, or that they will not, at some future
time, enjoy it. Custom hardens human beings to any kind of degradation,
by deadening the part of their nature which would resist it. And the
case of women is, in this respect, even a peculiar one, for no other
inferior caste that we have heard of have been taught to regard
their degradation as their honour." Mr. Conway considers that changed
circumstances would rapidly cause women to be favourable to the proposed
alteration: "Am I told," he remarks, "that woman dreads the easy
divorce? Naturally, for the prejudices and arrangements of society
have not been adapted to the easy divorce. Let her know that, under the
changed sentiment which shall follow changed law, she will meet with
sympathy where now she would encounter suspicion; let her know that she
will, if divorced from one she loves not, have only her fair share of
the burdens entailed by the original mistake; and she who of all persons
suffers most if the home be false will welcome the freer marriage" ("The
Earthward Pilgrimage," p. 289).
Both in theory and in practice advanced thinkers have claimed facility
of divorce. John Milton, in his essay on "Divorce," complains that "the
misinterpreting of Scripture... hath changed the blessing of matrimony
not seldom into a familiar and co-inhabiting mischiefe; at least into
a drooping and disconsolate household captivitie, without refuge or
redemption" (p. 2), and in his Puritan fashion he remarks that because
of this "doubtles by the policy of the devill that gracious ordinance
becomes insupportable," so that men avoid it and plunge into debauchery.
Arguing that marriage is not to be regarded merely as a legitimate kind
of sexual intercourse, but rather as a union of mind and feeling, Milton
says: "That indisposition, unfitness, or contrariety of mind, arising
from a cause in nature unchangable, hindring and ever likely to hinder
the main benefits of conjugall society, which are solace and peace, is a
greater reason of divorce than natural frigidity, especially if there
be no children, and that there be mutual consent" (p. 5). Luther, before
Milton, held the same liberal views. Mary Wolstonecraft acted on the
same theory in her own life, and her daughter was united to the poet
Shelley while Shelley's first wife was living, no legal divorce having
severed the original marriage. Richard Carlile's second marriage was
equally illegal. In our own days the union of George Henry Lewes and
George Eliot has struck the key-note of the really moral marriage. Mary
Wolstonecraft was unhappy in her choice, but in all the other cases the
happiest results accrued. It needs considerable assurance to brand
these great names with immorality, as all those must do who denounce as
immoral unions which are at present illegal.
In the whole of the arguments put forward in the above pages there
is not one word which is aimed at real marriage, at the faithful and
durable union of two individuals of opposite sexes--a union originated
in and maintained by love alone. Rather, to quote Milton once more, is
reverence for marriage the root of the reform I urge: he who "thinks
it better to part than to live sadly and injuriously to that cherfull
covnant (for not to be belov'd and yet retain'd, is the greatest injury
to a gentle spirit), he I say who therefore seeks to part, is one who
highly honours the married life, and would not stain it; and the reasons
which now move him to divorce, are equal to the best of those that
could first warrant him to marry" (p. 10). In the advocacy of such views
marriage is elevated, not degraded; no countenance is given to those who
would fain destroy the idea of the durable union between one man and
one woman. Monogamy appears to me to be the result of civilization, of
personal dignity, of cultured feeling; loyalty of one man to one woman
is, to me, the highest sexual ideal. The more civilized the nature the
more durable and exclusive does the marriage union become; in the lower
ranges of animal life difference of sex is enough to excite passion:
there is no individuality of of choice. Among savages it is much the
same: it is the female, not the woman, who is loved, although the savage
rises higher than the lower brutes, and is attracted by individual
beauty. The civilised man and woman need more than sex-difference and
beauty of form; they seek satisfaction for mind, heart, and tastes as
well as for body; each portion the complex nature requires its answer
in its mate. Hence it arises that true marriage is exclusive, and
that prostitution is revolting to the noble of both sexes, since in
prostitution love is shorn of his fairest attributes, and passion, which
is only his wings, is made the sole representative of the divinity.
The fleeting connections supposed by some Free Love theorists are
steps backward and not forward; they offer no possibility of home,
no education of the character, no guarantee for the training of the
children. The culture both of father and of mother, of the two
natures of which its own is the resultant, is necessary to the healthy
development of the child; it cannot be deprived of either without injury
to its full and perfect growth.
But just as true marriage is invaluable, so is unreal marriage
deteriorating in its effects on all concerned: therefore, where mistake
has been made, it is important to the gravest interests of society
that such mistake should be readily remediable, without injury to the
character of either of those concerned in it. Freed from the union which
injures both, the man and woman may seek for their fit helpmeets, and in
happy marriages may become joyful servants of humanity, worthy parents
of the citizens of to-morrow. Men and women must know conjugal, before
they can know true parental, love; each must see in the child the
features of the beloved ere the perfect circle of love can be complete.
Husband and wife bound in closest, most durable and yet most eager
union, children springing as flowers from the dual stem of love, home
where the creators train the lives they have given--such will be the
marriage of the future. The loathsome details of the Divorce Court will
no longer pollute our papers; the public will no longer be called in to
gloat over the ruins of desecrated love; society will be purified
from sexual vice; men and women will rise to the full royalty of their
humanity, and hand in hand tread life's pathways, trustful instead of
suspicious, free instead of enslaved, bound by love instead of by law.
Printed by Annie Besant and Charles Bradlaugh,
28, Stone-cutter Street, London, E.C.
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