{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_47000/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_47000","id":"gutenberg_47000","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/47000","summary":null,"tags":["Category: Gender & Sexuality Studies","Category: Philosophy & Ethics","Category: Politics","Category: Sociology","Marriage -- Great Britain","Marriage law -- Great Britain"],"text":"MARRIAGE, AS IT WAS, AS IT IS, AND AS IT SHOULD BE\n\nA PLEA FOR REFORM\n\nBy Annie Besant\n\nSecond Edition\n\nLondon: Freethought Publishing Company\n\n1882.\n\n\n\n\nMARRIAGE: AS IT WAS, AS IT IS, AND AS IT SHOULD BE.\n\n\"_Either all human beings have equal rights, or none have any_.\"\n\n--Condorcet.\n\n\n\n\nI. MARRIAGE\n\n|The recognition of human rights may be said to be of modern growth, and\neven yet they are but very imperfectly understood. Liberty used to\nbe regarded as a privilege bestowed, instead of as an inherent right;\nrights of classes have often been claimed: right to rule, right to tax,\nright to punish, all these have been argued for and maintained by force;\nbut these are not rights, they are only wrongs veiled as legal rights.\nJean Jacques Rousseau struck a new note when he cried: \"Men are\nborn free;\" free by birthright was a new thought, when declared as a\nuniversal inheritance, and this \"gospel of Jean Jacques Rousseau\"\ndawned on the world as the sun-rising of a glorious day--a day of human\nliberty, unrestrained by class. In 1789 the doctrine of the \"Rights of\nMan\" received its first European sanction by law; in the August of that\nyear the National Assembly of France proclaimed: \"Men are born, and\nremain, free and equal in rights.... The aim of political association is\nthe conservation of the natural and imprescriptible rights of man;\nthese rights are--liberty, property, safety, and resistance of tyranny.\"\nDuring savage and semi-civilised ages these \"imprescriptible rights\"\nare never dreamed of as existing; brute force is king; might is the only\nright, and the strong arm is the only argument whose logic meets with\ngeneral recognition. In warlike tribes fair equality is found, and the\nchief is only _primus inter pares_; but when the nomadic tribe settles\ndown into an agricultural community, when the habit of bearing arms\nceases to be universal, when wealth begins to accumulate, and the\nvillage or town offers attractions for pillage, then strength becomes\nat once a terror and a possible defence. The weak obey some powerful\nneighbour partly because they cannot resist, and partly because they\ndesire, by their submission, to gain a strong protection against their\nenemies. They submit to the exactions of one that they may be shielded\nfrom the tyranny of many, and yield up their natural liberty to some\nextent to preserve themselves from being entirely enslaved. Very slowly\ndo they learn that the union of many individually feeble is stronger\nthan a few powerful, isolated tyrants, and gradually law takes the\nplace of despotic will; gradually the feeling of self-respect, of\nindependence, of love of liberty, grows, until at last man claims\nfreedom as of right, and denies the authority of any to rule him without\nhis own consent.\n\nThus the Rights of Man have become an accepted doctrine, but,\nunfortunately, they are only rights of _man,_ in the exclusive sense of\nthe word. They are sexual, and not human rights, and until they\nbecome human rights, society will never rest on a sure, because just,\nfoundation. Women, as well as men, \"are born and remain free and equal\nin rights;\" women, as well as men, have \"natural and imprescriptible\nrights;\" for women, as well as for men, \"these rights are--liberty,\nproperty, safety, and resistance of tyranny.\" Of these rights only crime\nshould deprive them, just as by crime men also are deprived of them;\nto deny these rights to women, is either to deny them to humanity _qua_\nhumanity, or to deny that women form a part of humanity; if women's\nrights are denied, men's rights have no logical basis, no claim to\nrespect; then tyranny ceases to be a crime, slavery is no longer a\nscandal; \"either all human beings have equal rights, or none have any.\"\n\nNaturally, in the savage state, women shared the fate of the physically\nweak, not only because, as a rule, they are smaller-framed and less\nmuscular than their male comrades, but also because the bearing and\nsuckling of children is a drain on their physical resources from\nwhich men are exempt. Hence she has suffered from \"the right of the\nstrongest,\" even more than has man, and her exclusion from all political\nlife has prevented the redressal which man has wrought out for himself;\nwhile claiming freedom for himself he has not loosened her chains, and\nwhile striking down his own tyrants, he has maintained his personal\ntyranny in the home. Nor has this generally been done by deliberate\nintention: it is rather the survival of the old system, which has only\nbeen abolished so slowly as regards men. Mrs. Mill writes: \"That those\nwho were physically weaker should have been made legally inferior, is\nquite conformable to the mode in which the world has been governed.\nUntil very lately, the rule of physical strength was the general law of\nhuman affairs. Throughout history, the nations, races, classes, which\nfound themselves strongest, either in muscles, in riches, or in military\ndiscipline, have conquered and held in subjection the rest. If, even\nin the most improved nations, the law of the sword is at last\ndiscountenanced as unworthy, it is only since the calumniated eighteenth\ncentury. Wars of conquest have only ceased since democratic revolutions\nbegan. The world is very young, and has only just begun to cast off\ninjustice. It is only now getting rid of negro slavery. It is only now\ngetting rid of monarchical despotism. It is only now getting rid of\nhereditary feudal nobility. It is only now getting rid of disabilities\non the ground of religion. It is only beginning to treat any _men_ as\ncitizens, except the rich and a favoured portion of the middle\nclass. Can we wonder that it has not yet done as much for women?\"\n(\"Enfranchisement of Women,\" Mrs. Mill. In J. S. Mill's \"Discussions\nand Dissertations,\" Vol. II., page 421.) The difference between men and\nwomen in all civil rights is, however, with few, although important,\nexceptions, confined to married women; i.e., women in relation with men.\nUnmarried women of all ages suffer under comparatively few disabilities;\nit is marriage which brings with it the weight of injustice and of legal\ndegradation.\n\nIn savage times marriage was a matter either of force, fraud, or\npurchase. Women were merchandise, by the sale of whom their male\nrelatives profited, or they were captives in war, the spoil of the\nconqueror, or they were stolen away from the paternal home. In all\ncases, however, the possession once obtained, they became the property\nof the men who married them, and the husband was their \"lord,\" their\n\"master.\" In the old Hebrew books--still accounted sacred by Jews and\nChristians--the wife is regarded as the property of her husband. A man\nmay \"sell his daughter to be a maidservant\" i.e., a concubine, as is\nshown by the following verse (Ex. xxi. 7), and Jacob served seven years\nfor each of his wives, Leah and Rachel; his other two wives were his by\ngift, and were rather concubines than recognised wives, their children\ncounting to their mistresses. If a Hebrew conquered his enemies, and saw\n\"among the captives a beautiful woman, and hast a desire unto her, that\nthou wouldst have her to thy wife,\" he might take her home, and become\nher husband, \"and she shall be thy wife\" (Deut. xxi 10-14). After the\ndestruction of Benjamin, as related in Judges xx., it was arranged that\nthe survivors should possess themselves of women as wives by force\nand fraud: \"Life in wait in the vineyards, and see and behold if the\ndaughters of Shiloh come out to dance in dances, then come ye out of\nthe vineyards, and catch you every man his wife.... And the children of\nBenjamin did so, and took their wives according to their number, of them\nthat danced, whom they caught\" (Judges xxi. 20, 21, 23). The same plan\nwas adopted by the Romans in their earliest days, when they needed\nwives. Romulus invited the people of the Sabines and the neighbouring\ntowns to see some public games, and in the midst of the show the Romans\nrushed in and carried off all the marriageable maidens they could lay\nhands on (Liddell's \"History of Rome,\" p. 20). These instances may be\nobjected to as legendary, but they are faithful pictures of the rough\nwooing of early times. Among some barbarous nations the winning of a\nbride is still harsher: the bridegroom rushes into the father's house\nknocks the maiden down, picks up her senseless body, flings it over\nhis shoulder, and runs for his life; he is pursued by the youth of the\nvillage, pelted with stones, sticks, &c., and has to win his wife by\nsheer strength and swiftness. In some tribes this is a mere marriage\nceremony, a survival from the time when the fight was a real one, and\namongst ourselves the slipper thrown after the departing bridegroom and\nbride is a direct descendant of the heavier missiles thrown with deadly\nintent thousands of years ago by our remote ancestors. Amongst many\nsemi-barbarous nations the wives are still bought; in some parts of\nAfrica the wooer pays a certain number of cows for his bride; in other\nplaces, money or goods are given in exchange. The point to be noted is\nthat the wife is literally taken by force, or bought; she is not free to\nchoose her husband; she does not give herself to him; she is a piece\nof property, handed over by her original owner--her father--to her\nnew owner--her husband--in exchange for certain solid money or money's\nworth; hence she becomes the property of the man who has paid for her.\n\nIn an admirable article in the _Westminster Review_ for April, 1876, the\nfollowing striking passage is to be found:\n\n\"As Aristotle long since remarked, among savages women and slaves hold\nthe same rank. Women are bought primarily as slaves, to drudge and\ntoil for their masters, whilst their function as wives is secondary and\nsubordinate. It is more right to say of polygamous people that their\nslaves are also their wives, than to say that their wives are slaves.\nThey are purchased as slaves, they work as slaves, and they live\nas slaves. 'The history of uncultivated nations,' it has been said,\n'uniformly represents the women as in-a state of abject slavery, from\nwhich they slowly emerge as civilisation advances.' In Canada a strap,\na kettle, and a faggot are placed in the new bride's cabin, to indicate\nthat it will be henceforth her duty to carry burdens, dress food, and\nprocure wood for her husband. In Circassia it is the women who till\nand manure the ground, and in parts of China they follow the plough. A\nMoorish wife digs and sows and reaps the corn, and an Arabian wife feeds\nand cleans and saddles her master's horse. Indeed, the sole business of\nBedouin wives is to cook and work, and perform all the menial offices\nconnected with tent-life.... From the absolute power of a savage over\nhis slaves flow all those rights over a woman from which the marital\nrights of our own time are the genealogical descendants.... A trace\nof it [purchase] is found in the following customs of old English\nlaw:--'The woman at the church-door was given of her father, or some\nother man of the next of her kin, into the hands of her husband, and he\nlaid down gold and silver for her upon the book, as though he did buy\nher.'\" This custom is still maintained in the Church ritual; the priest\nasks: \"Who giveth this woman to be married to this man?\" and when the\nman gives the ring to the priest, he gives money with it, receiving back\nthe ring to give the woman, but the money remaining, a survival of the\ntime when wives were literally bought.\n\nBy the old Roman laws, the married woman had no personal rights; she\nwas but the head slave in her husband's house, absolutely subject in all\nthings to her lord. As the Romans became civilised, these disabilities\nwere gradually removed. It is important to remember these facts, as\nthese are the origin of our own marriage laws, and our common law really\ngrows out of them.\n\nOne other point must be noticed, before dealing immediately with the\nEnglish marriage laws, and that is the influence exerted over them by\necclesiastical Christianity.\n\nThe Old Testament expressly sanctions polygamy; but while the New\nTestament does not proscribe it--except in the case of bishops and\ndeacons--ecclesiastical Christianity has generally been in favour of\nmonogamy; at the same time, both the New Testament and the Church have\ninsisted on the inferiority of the female sex; \"the husband is the\nhead of the wife\" (Eph. v. 23); \"wives, submit yourselves unto your\nown husbands\" (Col. iii. 18); \"your women... are commanded to be under\nobedience\" (1 Cor. xiv. 34); \"ye wives, be in subjection to your\nown husbands... even as Sara obeyed Abraham, calling him lord, whose\ndaughters ye are as long as ye do well\" (1 Pet. iii. 1, 6). The\ncommon law of England is quite in accordance with this ancient Eastern\nteaching, and regards men as superior to women; \"Among the children of\nthe purchaser, males take before females, or, as our male lawgivers,\nhave expressed it, the worthiest of blood shall be preferred\" (\"Comm, on\nthe Laws of England,\" J. Stephen, 7th ed. vol. i. p. 402).\n\nThe feudal system did much, of course, to perpetuate the subjection of\nwomen, it being to the interest of the lord paramount that the fiefs\nshould descend in the male line in those rough ages, when wars and civil\nfeuds were almost perpetual, it was inevitable that the sex with the\nbiggest body and strongest sinews should have the upper hand; the pity\nis that English gentlemen to-day are content to allow the law to remain\nunaltered, when the whole face of society has changed.\n\nLet us now turn to the disabilities imposed upon women by marriage.\n\nBlackstone lays down, in his world-famous \"Commentaries on the Laws of\nEngland,\" that the first of the \"absolute rights of every Englishman\" is\n\"the legal and uninterrupted enjoyment of his life, his limbs, his body,\nhis health, and his reputation\" (9th ed., bk. 1, p. 129). The second\nright is personal liberty, and he says: \"the confinement of a person in\nanywise is an imprisonment. So that the keeping; a man against his will\nin a private house.... is an imprisonment\" (Ibid, 136): The third is\nproperty, \"which consists in the free use and enjoyment of all his\nacquisitions, without any control or diminution, save only by the\nlaws of the land\" (Ibid, 138). A subordinate right, necessary for the\nenforcement of the others, is \"that of applying to the courts of justice\nfor redress of injuries.\" I shall proceed to show that a married woman\nis deprived of these rights by the mere fact of her marriage.\n\nIn the first place, by marriage a woman loses her legal existence; the\nlaw does not recognize her, excepting in some few cases, when it becomes\nconscious of her existence in order to punish her for some crime or\nmisdemeanour. Black-stone says--and no subsequent legislation has in\nany way modified his dictum: \"By marriage the husband and wife are one\nperson in law; that is, the very being or legal existence of the\nwoman is suspended during the marriage, or at least is incorporated or\nconsolidated into that of the husband; under whose wing, protection,\nand _cover_, she performs every thing; and is therefore called in our\nlaw-French a _feme covert\"_ (p. 442). \"Husband and wife are one person\nin law\" (Comyn's Digest, 5th ed., vol. ii., p. 208), and from this it\nfollows that \"by no conveyance at the common law could the husband give\nan estate to his wife;\" that \"a. husband cannot covenant or contract\nwith his wife,\" even for her own advantage, and that any prenuptial\ncontract made with her as to money she shall enjoy for her separate use\nafter marriage, becomes void as soon as she is married. All covenants\nfor the wife's benefit must be made with some one else, and the husband\nmust covenant with some other man or unmarried woman who acts as trustee\nfor the wife. This is the fundamental wrong from which all the others\nflow: \"'Husband and wife are one person,' and that one is the husband.\"\nThe wife's body, her reputation, are no longer her own. She can gain no\nlegal redress for injury, for the law does, not recognize her existence\nexcept under cover of her husband's suit. In. some cases more modern\nlegislation has so far become conscious of her, as to protect her\nagainst her husband, and if this protection separates her from him, it\nleaves her the more utterly at the mercy of the world.\n\nVarious curious results flow, in criminal law, from this supposition\nthat husband and wife are only one person. They are incompetent--except\nin a few special instances--to give evidence for or against each other\nin criminal cases; if a woman's husband be one of several defendants\nindicted together, the woman cannot give evidence either for or against\nany of them. Where the wife of an accomplice is the only person to\nconfirm her husband's statement, the statement falls to the ground, as,\nin practice, confirmation thereof is required; in the case of Rex v.\nNeal (7 C. and P 168), Justice Park said: \"Confirmation by the wife is,\nin this case, really no confirmation at all. The wife and the accomplice\nmust be taken as one for this purpose. The prisoners must be acquitted.\"\nThey may, however, be severally called as witnesses by the prosecution\nand the defence, in order that they may contradict each other. Where the\nwife has suffered personal violence from her husband she is permitted to\nswear the peace against him, and in divorce suits husband and wife are\nboth admissible as witnesses. A wife who sets fire to her husband's\nhouse may escape punishment, as in the case of Rex. v. March: \"March and\nhis wife had lived separate for about two years; and, previous to the\nact, when she applied for the candle with which it was done, she said it\nwas to set her husband's house on fire, because she wanted to burn\nhim to death. Upon a case reserved upon the question whether it was an\noffence within the 7 and 8 George IV., cap. 30, sec. 2, for a wife to\nset fire to her husband's house for the purpose of doing him a personal\ninjury, the conviction was held wrong, the learned judges thinking that\nto constitute the offence, it was essential that there should be an\nintent to injure or defraud some third person, not one identified\nwith herself\" (Ibid, p. 899). Identification with one's beloved may be\ndelightful in theory, but when, in practice, it comes to being burned\nat pleasure, surely the greatest stickler for the \"twain being one\" must\nfeel some twinges of doubt. The identity of husband and wife is often\nby no means advantageous to the husband, for he thereby becomes\nresponsible, to a great extent, for his wife's misdoings. \"For\nslanderous words spoken by the wife, libel published by her alone,\ntrespass, assault and battery, &c., he is liable to be so sued, whether\nthe act was committed with or without his sanction or knowledge.... And\nwherever the action is grounded on a tort, committed by the wife, it no\nway affects the necessity of joining the husband, that the parties are\nliving apart, nor even that they are divorced _a mens\u00e2 et thoro,_ or\nthat the wife is living in adultery\" (Lush's \"Common Law Practice,\"\n2nded. p. 156). Pleasant position for a man whose wife may have left\nhim, to be suddenly dragged before a court of justice for some misdeed\nof hers, of which he may never have heard until he finds himself\nsummoned to answer for it! A large amount of injustice arises from\nthis absurd, fiction that two are one; it sometimes injures, sometimes\nprotects the married woman, and it often shields those who have wronged\nher; but whether it injure or whether it protect, it is equally vicious;\nit is _unjust_, and injustice is a radical injury to a community, and by\ndestroying the reasonableness and the certainty of the law, it saps that\nreverence for it which is one of the safeguards of society.\n\nLet us now take Blackstone's \"rights of every Englishman,\" and see what\nrights the common law allowed to a married Englishwoman. A married woman\nis not protected by the law in the \"uninterrupted enjoyment of\" her\n\"limbs,\" her \"body,\" or her \"reputation.\" On the contrary: \"If a wife\nbe injured in her person, or her property, she can bring no action for\nredress without her husband's concurrence, and in his name as well as\nher own\" (Blackstone, p. 443). If in a railway accident a married woman\nhas her leg broken, she cannot sue the railway company for damages;\nshe is not a damaged _person_; in the eye of the law, she is a piece of\ndamaged _property_, and the compensation is to be made to her owner.\nIf she is attacked and beaten she cannot at law sue her assailant; her\nmaster suffers loss and inconvenience by the assault on his housekeeper,\nand his action is necessary to obtain redress. If she is libelled,\nshe cannot protect her good name, for she is incapable by herself of\nmaintaining an action. In fact, it is not even needful that her name\nshould appear at all in the matter: \"the husband may sue alone for\nloss of his wife's society by injury done to her, or for damage to her\nreputation\" (Comyn's Digest, under \"Baron and Feme\"). The following\ncurious statement of the law on this head is given in Broom's\n\"Commentaries:\"\n\n\"Injuries which may be offered to a person, considered as a husband, and\nwhich are cognizable in a court of common law, are principally three:\n1, abduction, or taking away a man's wife; 2, beating her; 3, indirectly\ncausing her some personal hurt, by negligence or otherwise. 1. As to the\nfirst sort, abduction, or taking her away, this may either be by fraud\nand persuasion, or open violence; though the law in both cases supposes\nforce and constraint, the wife having no power to consent, and therefore\ngives a remedy by action of trespass; and the husband is also entitled\nto recover damages in an action on the case against such as persuade and\nentice the wife to live separate from him without a sufficient cause....\n2, 3. The second and third injuries above mentioned are constituted by\nbeating a man's wife, or otherwise ill-using her; or causing hurt to her\nby negligence. For a common assault upon, or battery, or imprisonment,\nof the wife, the law gives the usual remedy to recover damages, by\naction of trespass, which must be brought in the names of the husband\nand wife jointly: but if the beating or other maltreatment be so\nenormous, that thereby the husband is deprived for any time of the\ncompany and assistance of his wife, the law then gives him a separate\nremedy by action for this ill-usage, _per quod consortium amisit_, in\nwhich he may recover a satisfaction in damages. By a provision of the C.\nL. Proc. Act, 1852, s. 40, in an action by husband and wife jointly for\nan injury to the wife, the husband is now allowed to add a claim in\nhis own right--as for the loss of the wife's society--or where a joint\ntrespass and assault have been committed on the husband and his wife\"\n(vol. iii., pp. 149, 150). So far is recognised the husband's complete\nclaim over his wife's person, that anyone who receives a married woman\ninto his house and gives her shelter there after having received notice\nfrom her husband that he is not to permit her to remain under his roof,\nactually becomes liable in damages to the husband. The husband cannot\nsue for damages if he has turned his wife out of doors, or if he has\nlost his right of control by cruelty or adultery; short of this, he may\nobtain damages against any friend or relative of the woman who gives her\nshelter. The wife has no such remedy against anyone who may induce the\nhusband to live apart, or who may give him house-room at his own wish.\nThe reason for the law being as we find it, is stated by Broom without\nthe smallest compunction: \"We may observe that in these relative\ninjuries notice is only taken of the wrong done to the superior of the\nparties related, by the breach and dissolution of either the relation\nitself, or at least the advantage accruing therefrom; while the loss of\nthe inferior by such injuries is, except where the death of a parent has\nbeen caused by negligence, unregarded. One reason for which may be, that\nthe inferior has no kind of property in the company, care, or assistance\nof the superior, as the superior is held to have in that of the\ninferior; and therefore the inferior can, in contemplation of law,\nsuffer no loss consequential on a wrongful act done to his superior. The\nwife cannot recover damages for the beating of her husband. The child\nhas no property in his father or guardian. And the servant, whose master\nis disabled, does not thereby lose his maintenance or wages (Ibid,\np. 153). A man may recover damages equally for the injury done to his\nservant or to his wife; in both cases he loses their services, and the\nlaw recompenses him. A peculiarly disgusting phase of this claim is\nwhere a husband claims damages against a co-respondent in the divorce\ncourt; if a wife be unfaithful, the husband can not only get a divorce,\nbut can also claim a money payment from the seducer to make up for the\ndamage he has sustained by losing his wife's services. An unmarried\ngirl, under age, is regarded as the property of her father, and the\nfather may bring an action against her seducer for the loss of his\ndaughter's services. It is not the woman who is injured, or who has any\nredress; it is her male owner who can recover damages for the injury\ndone to his property.\"\n\nIf a wife be separated from her husband, either by deed or by judicial\ndecree, she has no remedy for injury or for libel, unless by the\ndoubtful plan of using her husband's name without his consent. On this\ninjustice Lord Lyndhurst, speaking in the House of Lords in 1856, said:\n\"A wife is separated from her husband by a decree of the Ecclesiastical\nCourt, the reason for that decree being the husband's misconduct--his\ncruelty, it may be, or his adultery. From that moment the wife is almost\nin a state of outlawry. She may not enter into a contract, or if she\ndo, she has no means of enforcing it. The law, so far from protecting,\noppresses her. She is homeless, helpless, hopeless, and almost wholly\ndestitute of civil rights. She is liable to all manner of injustice,\nwhether by plot or by violence. She may be wronged in all possible ways,\nand her character may be mercilessly defamed; yet she has no redress.\nShe is at the mercy of her enemies. Is that fair? Is that honest? Can\nit be vindicated upon any principle of justice, of mercy or of common\nhumanity?\"\n\nA married woman loses control over her own body; it belongs to her\nowner, not to herself; no force, no violence, on the husband's part\nin conjugal relations is regarded as possible by the law; she may be\nsuffering, ill, it matters not; force or constraint is recognised by\nthe law as rape, in all cases save that of marriage; the law \"holds,\nit to be felony to force even a concubine or harlot\" (Broom's\n\"Commentaries,\" vol. iv., p. 255), but no rape can be committed by a\nhusband on a wife; the consent given in marriage is held to cover\nthe life, and if--as sometimes occurs--a miscarriage or premature\nconfinement be brought on by the husband's selfish passions, no offence\nis committed in the eye of the law, for the wife is the husband's\nproperty, and by marriage she has lost the right of control over her own\nbody. The English marriage law sweeps away all the tenderness, all the\ngrace, all the generosity of love, and transforms conjugal affection\ninto a hard and brutal legal right.\n\nBy the common law the husband has a right to inflict corporal punishment\non his wife, and although this right is now much restricted, the effect\nof the law is seen in the brutal treatment of wives among the\nrougher classes, and the light--sometimes no--punishment inflicted on\nwife-beaters. The common law is thus given by Blackstone: \"The husband\nalso (by the old law) might give his wife moderate correction. For as\nhe is to answer for her misbehaviour, the law thought it reasonable\nto entrust him with this power of restraining her, by domestic\nchastisement, in the same moderation that a man is allowed to correct\nhis apprentices or children. The lower rank of people, who were\nalways fond of the old common law, still claim and exert their ancient\nprivilege.\" Blackstone grimly adds, after saying this is all for woman's\nprotection: \"So great a favourite is the female sex of the laws of\nEngland\" (444 and 445). This \"ancient privilege\" is very commonly\nexercised at the present time. A man who dragged his wife out of bed\n(1877), and, pulling off her nightdress, roasted her in front of the\nfire, was punished (?) by being bound over to keep the peace for a short\nperiod. Men who knock their wives down, who dance on them, who drag them\nabout by the hair, &c., are condemned to brief terms of imprisonment,\nand are then allowed to resume their marital authority, and commence a\nnew course of ill-treatment. In dealing later with the changes I shall\nrecommend in the marriage laws, this point will come under discussion.\n\nComing to the second \"right,\" of \"personal liberty,\" we find that a\nmarried woman has no such right. Blackstone says, as we have seen:\n\"the confinement of a person in any wise is an imprisonment So that the\nkeeping a man against his will in a private house... is an imprisonment\"\n(p. 136). But a husband may legally act as his wife's gaoler; \"the\ncourts of law will still permit a husband to restrain his wife of her\nliberty, in case of any gross misbehaviour\" (Blackstone, p. 445). \"If\nthe wife squanders his estate, or goes into lewd company, he may deprive\nher of liberty\" (Comyn's Digest, under \"Baron and Feme\"). Broom says\nthat at the present time \"there can be no question respecting the\ncommon-law right of a husband to restrain his wife of her personal\nliberty, with a view to prevent her going into society of which he\ndisapproves, or otherwise disobeying his rightful authority; such right\nmust not, however, be exercised unnecessarily, or with undue severity:\nand the moment that the wife by returning to her conjugal duties, makes\nrestraint of her person unnecessary, such restraint becomes unlawful\"\n(vol. i, p. 547). In the year 1877 a publican at Spilsby chained up his\nwife to the wall from one day to the afternoon of the following one, in\norder, he said, to keep her from drink; the magistrates dismissed him\nwithout punishment. It may be argued that a woman should not get drunk,\ngo into bad company, &c. Quite so; neither should a man. But would men\nadmit, that under similar circumstances, a wife should have legal power\nto deprive her husband of liberty? If not, there is no reason in justice\nwhy the husband should be permitted to exercise it. Offences known to\nthe law should be punished by the law, and by the law alone; offences\nwhich the law cannot touch should entail no punishment on an adult at\nthe hands of a private individual. Public disapproval may brand them,\nbut no personal chastisement should be inflicted by arbitrary and\nirresponsible power.\n\nThe third right, of \"property,\" has also no existence for married women.\nUnmarried women have here no ground for complaint: \"A _feme sole_,\nbefore her marriage, may do all acts for disposition, etc., of her\nlands or goods which any man in the same circumstances may do\" (Comyn's\nDigest, under \"Baron and Feme\"). The disabilities which affect women\nas women do not touch property; a _feme sole_ may own real or personal\nestate, buy, sell, give, contract, sue, and be sued, just as though\nshe were of the \"worthier blood;\" it is marriage that, like felony and\ninsanity, destroys her capability as proprietor. According to the common\nlaw--with which we will deal first--the following results accrued from\nmarriage:--\n\n\"Whatever personal property belonged to the wife before marriage, is by\nmarriage absolutely vested in the husband... in chattel interests, the\nsole and absolute property vests in the husband, to be disposed of at\nhis pleasure, if he chooses to take possession of them\" (Blackstone,\nbook ii. 443). If he takes possession, they do not, at his death, revert\nto the wife, but go to his heirs or to anyone he chooses by will. \"If\na woman be seized of an estate of inheritance, and marries, her husband\nshall be seized of in her right\" (Comyn's Digest, under \"Baron and\nFeme\"). If a woman own land in her own right, all rents and profits are\nnot hers, but her husband's; even arrears of rents due before coverture\nbecome his; he may make a lease of her land, commencing after his own\ndeath, and she is barred, although she survive him; he may dispose of\nhis wife's interest; it may be forfeited by his crime, seized for his\ndebt; she only regains it if she survives him and he has not disposed of\nit. If a woman, before marriage, lets her land on a lease, the rental,\nafter marriage, becomes her husband's, and her receipt is not a good\ndischarge. If a wife grants a rent-charge out of her own lands (or,\nrather, what should be her own) without the husband's consent, it is\nvoid. All personal goods that \"the wife has in possession in her own\nright, are vested in her husband by the marriage\" (Ibid); gifts to her\nbecome his; if he sues for a debt due to his wife, and recovers it, it\nis his; if a legacy be left her, it goes to him; after his death, all\nthat was her personal property originally, goes to his executors and\nadministrators, and does not revert to her; so absolutely is all she\nmay become possessed of his by law that if, after a divorce _a mens\u00e2 et\nthoro_, the wife should sue another woman for adultery with her husband,\nand should be awarded her costs, the husband can release the woman from\npayment.\n\nIf a woman own land and lease it, then if, during marriage, the husband\nreduce it into possession, \"as where rent accruing on a lease granted by\nthe wife _dum sola_ is received by a person appointed for that purpose\nduring the husband's life,\" under such circumstances the husband's\n\"executors, not his widow, must sue the agent\" (Lush's \"Common Law\nPractice,\" 2nd. ed., p. 27). In a case where \"certain leasehold property\nwas conveyed to trustees upon trust to permit the wife to receive the\nrents thereof to her sole and separate use, and she after marriage\ndeposited with her trustees part of such rents and died; it was held\nthat her husband might recover the same in an action in his own right.\nSuch money, so deposited, was not a _chose in action_ belonging to\nthe wife, but money belonging to the husband, the trust having been\ndischarged in the payment of the rents to the wife\" (Ibid, p. 9 7 ).\nMarriage, to a man, is regarded as a kind of lucrative business: \"The\nnext method of acquiring property in goods and chattels is by marriage;\nwhereby those chattels, which belonged formerly to the wife, are by act\nof law vested in the husband, with the same degree of property, and with\nthe same powers, as the wife, when sole, had over them... A distinction\nis taken between chattels real and chattels personal, and of chattels\npersonal, whether in possession or reversion, or in action. A chattel\nreal vests in the husband, not absolutely, but _sub modo_. As, in\ncase of a lease for years, the husband shall receive all the rents and\nprofits of it, and nay, if he pleases, sell, surrender, or dispose of\nit during the coverture; if he be outlawed or attainted, it shall be\nforfeited to the king; it is liable to execution for his debts; and if\nhe survives his wife, it is to all intents and purposes his own. Yet, if\nhe has made no disposition thereof in his lifetime, and dies before his\nwife, he cannot dispose of it by will: for, the husband having made no\nalteration in the property during his life, it never was transferred\nfrom the wife; but after his death she shall remain in her ancient\npossession, and it shall not go to his executors. If, however, the wife\ndie in the husband's lifetime, the chattel real survives to him. As to\nchattels personal (or choses) in action, as debts upon bonds, contracts,\nand the like, these the husband may have if he pleases; that is, if he\nreduces them into possession by receiving or recovering them at law. And\nupon such receipt or recovery they are absolutely and entirely his own;\nand shall go to his executors or administrators, or as he shall bequeath\nthem by will, and shall not revest in the wife. But, if he dies before\nhe has recovered or reduced them into possession, so that, at his death,\nthey still continue choses in action, they shall survive to the wife;\nfor the husband never exerted the power he had of obtaining an\nexclusive property in them. If the wife die before the husband has\nreduced choses in action into possession, he does not become entitled by\nsurvivorship; nevertheless, he may, by becoming her administrator, gain\na title. Chattels in possession, such as ready money and the like, vest\nabsolutely in the husband, and he may deal with them, either whilst\nliving, or by his will, as he pleases. Where the interest of the wife\nis reversionary, the husband's power is but small; unless it falls into\npossession during the marriage, his contracts or engagements do not bind\nit\" (\"Comm, on the Laws of England,\" Broom and Hadley, vol. ii., pp.\n618, 619). So highly does the law value the claims of a husband that it\nrecognizes them as existing even before marriage; for if a woman who\nhas contracted an engagement to marry dispose of her property privately,\nsettle it on herself, or on her children, without the cognizance of the\nman to whom she is engaged, such settlement or disposition may be set\naside by the husband as a fraud.\n\nSo cruel, as regards, property, was felt to be the action of the common\nlaw, that the wealthy devised means to escape from it, and women of\nproperty were protected on their marriage by \"marriage settlements,\"\nwhereby they were contracted out of the law. A woman's property was\nby this means, \"settled on herself;\" it was necessary to treat her as\nincapable, so her property was not in her own power but was vested in\ntrustees for her separate use; thus che principal, or the estate, was\nprotected, but the whole interest or rental, as before, could be taken\nby the husband the moment it was received by the wife; her signature\nbecame necessary to draw it, but the moment it came into her possession\nit ceased to be hers. The next step was an attempt to protect women's\nmoney in their own hands; terrible cases of wrong were continually\narising: men who deserted their wives, and left them to maintain the\nburden of a family, came back after the wife had accumulated a little\nproperty, sold the furniture, pocketed the proceeds, and departed,\nleaving the wife to recommence her labours. Orders of protection were\ngiven by magistrates, but these were not found sufficient. At last,\nparliamentary interference was called for with an urgency that could\nno longer be resisted, and a Bill to amend the laws relating to married\nwomen's property was introduced into the House of Commons. How sore was\nthe need of such amendment may be seen from the following extracts:--\n\nMr. Russell Gurney, in moving (April 14, 1869) the second reading of\nthe Bill, observed: \"It is now proposed that, for the first time in our\nhistory, the property of one half of the married people of this country\nshould receive the protection of the law. Up to this time the property\nof a wife has had no protection from the law, or rather, he should say,\nin the eye of the law it has had no existence. From the moment of her\nmarriage the wife, in fact, possesses no property; whatever she may up\nto that time have possessed, by the very act of marriage passes from\nher, and any gift or bequest made to her becomes at once the property\nof the husband. Nay, Even that which one might suppose to be her\ninalienable right, the fruit of her mental or bodily toil, is denied\nher. She may be gifted with powers which enable her to earn an ample\nfortune, but the moment it is earned, it is not hers,' it is her\nhusband's. In fact, from the time of her entering into what is described\nas an honourable estate, the law pronounces her unfit to hold any\nproperty whatever.\"\n\nMr. Jessel (now Master of the Rolls) in seconding the motion, in the\ncourse of an able and impassioned speech, said: \"The existing law is a\nrelic of slavery, and the House is now asked to abolish the last remains\nof slavery in England. In considering what ought to be the nature of\nthe law, we cannot deny that no one should be deprived of the power of\ndisposition, unless on proof of unfitness to exercise that power; and\nit is not intelligible on what principle a woman should be considered\nincapable of contracting immediately after she has, with the sanction\nof the law, entered into the most important contract conceivable. The\nslavery laws of antiquity are the origin of the common law on this\nsubject. The Roman law originally regarded the position of a wife as\nsimilar to that of a daughter who had no property, and might be sold\ninto slavery at the will of her father. When the Roman law became that\nof a civilised people, the position of the wife was altogether\nchanged.... The ancient Germans--from whom our law is derived--put the\nwoman into the power of her husband in the same sense as the ancient\nRoman law did. She became his slave. The law of slavery--whether Roman\nor English--for we once had slaves and slave-laws in England--gave to\nthe master of a slave the two important rights of flogging and\nimprisoning him. A slave could not possess property of his own, and\ncould not make contracts except for his master's benefit, and the master\nalone could sue for an injury to the slave; while the only liability of\nthe master was that he must not let his slave starve. This is exactly\nthe position of the wife under the English law; the husband has the\nright of flogging and imprisoning her, as may be seen by those who read\nBlackstone's chapter on the relations of husband and wife. She cannot\npossess property--she cannot contract, except it is as his agent; and he\nalone can sue if she is libelled or suffers a personal injury; while all\nthe husband is compellable to do for her is to pay for necessaries. It\nis astonishing that a law founded on such principles should have\nsurvived to the nineteenth century.\"\n\nA quotation from a later debate finds its fit place here: Mr. Hinde\nPalmer, in moving (February 19, 1873) the second reading of the Married\nWoman's Property Act (1870) Amendment Bill, pointed out that the common\nlaw was, that by marriage \"the whole of a woman's personal property was\nimmediately vested in her husband, and placed entirely at his disposal.\nBy contracting marriage, a woman forfeited all her property. In 1868,\nthe Chancellor of the Exchequer, Mr. Lowe, said: 'Show me what crime\nthere is in matrimony that it should be visited by the same punishment\nas high treason--namely, confiscation, for that is really the fact.' Mr.\nMill, too, speaking on that question, said that a large portion of the\ninhabitants of this country were in the anomalous position of having\nimposed on them, without having done anything to deserve it, what we\ninflicted on the worst criminals as a penalty: like felons, they were\nincapable of holding property.\"\n\nSome great and beneficial changes were made by the Acts of 1870 and\n1873, although much yet remains to be done. By the Act of 1870, the\nwages and earnings of married women were protected; they were made\ncapable of depositing money in the savings' banks in their own names;\nthey might hold property in the Funds in their own names, and have the\ndividends paid to them; they might hold fully-paid up shares, or stock,\nto which no liability was attached; property in societies might be\nretained by them; money coming to a married woman as the next-of-kin, or\none of the next-of-kin to an intestate, or by deed or will, was made\nher own, provided that such money did not exceed \u00a3200; the rents and\nprofits of freehold, copyhold, or customary-hold property inherited by\na married woman were to be her own; a married woman might insure her\nown or her husband's life; might, under some circumstances, maintain\nan action in her own name; married women were made liable for the\nmaintenance of their husbands and children. The Act of 1873 relates\nentirely to the recovery of debts contracted by the woman before\nmarriage. It will be perceived that these Acts are very inadequate as\nregards placing married women in a just position towards their property,\nbut they are certainly a step in the right direction. The Acts only\napply to those women who have been married subsequently to their\npassing.\n\nOne great omission in them will have to be promptly remedied, both for\nthe sake of married women and for the sake of their creditors: while a\nmarried woman now may, under some circumstances, sue, no machinery is\nprovided whereby she may be sued--without joining her husband.\n\nIn an admirable letter to the Times of March 14, 1878, Mrs. Ursule\nBright, alluding to the \"obscurity and uncertainty of the law,\" points\nout \"The effect of that obscurity upon the credit of respectable married\nwomen earning their own and their children's bread, in any employment or\nbusiness carried on separately from their husband; the inconvenience and\nrisk to their creditors is, as you have most ably pointed out, great;\nbut the injury to honest wives is far greater. It puts them at a\nconsiderable disadvantage in the labour market and in business. A\nmarried woman, for instance, keeping a little shop, may sue for debts\ndue to her, but has no corresponding liability to be sued. If the\nwhereabouts of the husband is not very clearly defined, it is evident\nshe may have some difficulty in obtaining credit.\n\n\"Again, what employer of labour can with any security engage the\nservices of a married woman? She may leave her work at the mill at an\nhour's notice unfinished, and her employer has no remedy against her\nfor breach of contract, as a married woman can make no contract which is\nlegally binding. There is no question that such a state of the law must\noperate as a restriction upon her power to support herself and family.\n\n\"The state of muddle of the present law is almost inconceivable. Even\nnow a woman need not pay her debts contracted before marriage out of\nearnings made after marriage. Suppos an artist or a literary woman to\nmarry when burdened with debts and having no property; should she be\nearning \u00a31,000 or \u00a310,000 a year by her profession after marriage,\nthese earnings could not be made liable for her debts contracted before\nmarriage.\"\n\nIt cannot too plainly be repeated that non-liability to be sued means\nnon-existence of credit.\n\nThe law, as it stands at present, is the old Common Law, modified by\nthe Acts of 1870 and 1873. Archbold says--dealing with indictments for\ntheft--\"Where the person named as owner appears to be a married woman,\nthe defendant must, unless the indictment is amended, be acquitted...\nbecause in law the goods are the property of the husband; even though\nshe be living apart from her husband upon an income arising from\nproperty vested in trustees for her separate use, because the goods\ncannot be the property of the trustees; and, in law, a married woman\nhas no property\" (Archbold's \"Criminal Cases,\" p. 43). Archbold gives as\nexceptions to this general rule, where a judicial separation has taken\nplace, where the wife has obtained a protection order, or where the\nproperty is such as is covered by the Married Women's Property Act,\n1870. \"Where a married woman lived apart from her husband, upon an\nincome arising from property vested in trustees for her separate use,\nthe judges held that a house which she lived in was properly described\nas her husband's dwelling-house, though she paid the rent out of her\nseparate property, and the husband had never been in it. R. v. French,\nR. v. R., 491\" (Ibid, p. 521). If a burglary be committed in a\nhouse belonging to a married woman, the house must be said to be the\ndwelling-house of her husband, or the burglar will be acquitted; if she\nbe living separate from her husband, paying her own rent out of money\nsecured for her separate use, it makes no difference; it was decided, in\nthe case of Rex v. French, that a married woman could own no property,\nand that the house must, therefore, belong to the husband. If a married\nwoman picks up a purse in the road and is robbed of it, the property\nvests in the husband: \"Where goods are in the possession of the wife,\nthey must be laid as the goods of her husband; thus, if A is indicted\nfor stealing the goods of B, and it appears that B was a _feme covert_\nat the time, A must be acquitted. And even if the wife have only\nreceived money as the agent of another person, and she is robbed of that\nmoney before her husband receives it into his possession, still it\nis well laid as his money in an indictment for larceny. An indictment\ncharging the stealing of a \u00a35 Bank of England note, the property of E.\nWall, averring, in the usual way, that the money secured by the note\nwas due and payable to E. Wall; it appeared that E. Wall's wife had\nbeen employed to sell sheep belonging to her father, of or in which her\nhusband never had either possession or any interest, and she received\nthe note in payment for the sheep, and it was stolen from her before\nshe left the place where she received it. It was objected that the note\nnever was the property of E. Wall, either actually or constructively;\nthe money secured by it was not his, and he had no qualified property in\nit, as it never was in his possession; but it was held that the property\nwas properly laid\" (Russell on Crimes, 5th ed., vol. ii., pp. 243,\n244). Yet even a child, in the eye of the law, has property, and if\nhis clothes are stolen, it is safer to allege them to be the child's\nproperty. The main principle of English law remains unaltered by recent\nlegislation, that \"a married woman has no property.\" Married women\nshare incapacity to manage property with minors and lunatics; minors,\nlunatics, and married women are taken care of by trustees; minors become\nof age, lunatics often recover, married women remain incapable during\nthe whole of their married life.\n\nBeing incapable of holding property, a married woman is of course,\nincapable of making a will. Here, also, the Common Law may be\ncheckmated. She may make a will \"by virtue of a power reserved to her,\nor of a marriage settlement, or with her husband's assent, or it may be\nmade by her to carry her separate estate; and the court in determining\nwhether or not such will is entitled to probate, will not go minutely\ninto the question, but will only require that the testatrix had a power\nreserved to her, or was entitled to separate estate, and will, if so\nsatisfied, grant probate to her executor, leaving it to the Court of\nChancery, as the court of construction, to say what portion of her\nestate, if any, will pass under such will. In this case the husband,\nthough he may not be entitled to take probate of his wife's will, may\nadminister to such of her effects as do not pass under the will\" (\"Comm,\non the Laws of England,\" Broom and Hadley, vol. iii., pp. 427, 428).\nThus we see that a husband may will away from his wife her own original\nproperty, but a wife may not even will away her own, unless the right\nbe specially reserved to her before marriage. And yet it is urged that\nwomen have no need of votes, their interests being so well looked after\nby their fathers, husbands, and brothers!\n\nWe have thus seen that the \"rights of every Englishman\" are destroyed\nin women by marriage; one would imagine that matrimony was a crime for\nwhich a woman deserved punishment, and that confiscation and outlawry\nwere the fit rewards of her misdeed.\n\nFrom these three great fundamental wrongs flow a large number of legal\ndisabilities. Take the case of a prisoner accused of misdemeanour; he is\noften set free on his own recognizances; but a married woman cannot be\nso released, for she is incapable of becoming bail or of giving her own\nrecognizances; she is here again placed in bad company: \"no person\nwho has been convicted of any crime by which he has become infamous\nis allowed to be surety for any person charged or suspected of an\nindictable offence. Nor can a married woman, or an infant, or a prisoner\nin custody, be bail\" (Archbold, p. 88). Let us now suppose that a woman\nbe accused of some misdemeanour, and be committed for trial: she desires\nto have her case tried by a higher court than the usual one, and wishes\nto remove the indictment by writ of _certiorari_: she finds that\nthe advantage is denied her, because, as a married woman, she has\nno property, and she cannot therefore enter into the necessary\nrecognizances to pay costs in the case of a conviction. Thus a married\nwoman finds herself placed at a cruel disadvantage as compared with an\nunmarried woman or with men.\n\nIn matters of business, difficulties arise on every hand: a married\nwoman is incapable of making a contract; if she takes a house without\nher husband's knowledge and without stating that she is married, the\nlandlord may repudiate the contract; if she states that she is married,\nthe landlord knows that she is unable to make a legal contract, and\nrefuses to let or lease to her, without heavy security. If she buys\nthings she cannot be sued for non-payment without making the husband a\ndefendant, and she consequently finds that she has no credit. If she\nis cheated, she cannot sue, except in cases covered by the recent\nActs, without joining her husband, and so she has often to submit to be\nwronged. \"A _feme covert_ cannot sue without her husband being joined as\nco-plaintiff, so long as the relation of marriage subsists. It matters\nnot that he is an alien, and has left the country; or that, being a\nsubject, he has absconded from the realm as a bankrupt or for other\npurpose; or that he has become permanently resident abroad; or that they\nare living apart under a deed of separation; or have been divorced _a\nmens\u00e2 et thoro_; for none of these events dissolve or work a suspension\nof the marriage contract, and so long as that endures, the wife\nis unable to sue alone, whatever the cause of action may be. This\ndisability results from the rule of law which vests in the husband not\nonly all the goods and chattels which belonged to the wife at the time\nof the marriage, but also all which she acquires afterwards\" (Lush's\n\"Common Law Practice,\" 2nd ed., pp. 33, 34). The same principle governs\nall suits against a married woman; the husband must be sued with her:\n\"In all actions brought against a _feme covert_ while the relation of\nmarriage subsists, the husband must be joined for conformity, it being\nan inflexible rule of law that a wife shall not be sued without her\nhusband.... If therefore a wife enters into a bond jointly with her\nhusband, or makes a bill of exchange, promissory note, or any other\ncontract, she cannot be sued thereon, but the action should be brought\nagainst, and the bond, bill, alleged to have been made by, the husband\"\n(Ibid, p. 75).\n\nThe thoughtful author of the \"Rights of Women\" remarks that the\nincapacity to sue is \"traceable to the time when disputes were settled\nby the judgment of arms. A man represents his wife at law now, because\nin the days of the judicial combat he was her champion-at-arms, and she\nis unable to sue now, because she was unable to fight then\" (p. 22). The\nexplanation is a very reasonable one, and is only an additional proof\nof the need of alteration in the law; our marriage laws are, as has\nbeen shown above, the survival of barbarism, and we only ask that modern\ncivilisation will alter and improve them as it does everything else:\ntrial by combat has been destroyed; ought not its remains to be buried\nout of sight? The consequence of these business disabilities is that a\nmarried woman finds herself thwarted at every turn, and if she be\ntrying to gain a livelihood, and be separated from her husband, she is\nconstantly pained and annoyed by the marriage-fetter, which hinders\nher activity and checks her efforts to make her way. The notion that\nirresponsibility is an advantage is an entirely mistaken one; an\nirresponsible person cannot be dealt with in business matters, and is\nshut out of all the usual independent ways of obtaining a livelihood.\nAuthorship and servitude are the only paths really open to married\nwomen; in every other career they find humiliating obstacles which it\nneeds both courage and perseverance to surmount.\n\nMarried women rank among the \"persons in subjection to the power of\nothers;\" they thus come among those who in many cases are not criminally\nliable; \"infants under the age of discretion,\" persons who are _non\ncompotes mentis_ (not of sound mind), and persons acting under coercion,\nare not criminally liable for their misdeeds. A married woman is\npresumed to act under her husband's coercion, unless the contrary\nbe proved, and she may thus escape punishment for her wrongdoings:\n\"Constraint of a superior is sometimes allowed as an excuse for criminal\nmisconduct, by reason of the matrimonial subjection of the wife to her\nhusband; but neither a son, nor a servant is excused for the commission\nof any crime by the command or coercion of the parent or master. Thus,\nif a woman commit theft, or burglary, by the coercion of her husband, or\neven in his company, which the law _prim\u00e2 facie_ construes a coercion,\nshe is dispunishable, being considered to have acted by compulsion, and\nnot of her own will\" (\"Comm, on the Laws of England,\" Broom and Hadley,\nvol. iv., p. 27). \"A _feme covert_ is so much favoured in respect of\nthat power and authority which her husband has over her, that she\nshall not suffer any punishment for committing a bare theft, or even a\nburglary, by the coercion of her husband, or in his company, which the\nlaw construes a coercion\" (Russell \"On Crimes,\" vol. i., p. 139). \"Where\nthe wife is to be considered merely as the servant of the husband,\nshe will not be answerable for the consequences of his breach of duty,\nhowever fatal, though she may be privy to his conduct. C. Squire and his\nwife were indicted for the murder of a boy;\" he had been cruelly\ntreated by both, and died \"from debility and want of proper food and\nnourishment;\" \"Lawrence, J., directed the jury, that as the wife was the\nservant of the husband, it was not her duty to provide the apprentice\nwith sufficient food and nourishment, and that she was not guilty of\nany breach of duty in neglecting to do so; though, if the husband had\nallowed her sufficient food for the apprentice, and she had wilfully\nwithholden it from him, then she would have been guilty. But that here\nthe fact was otherwise; and therefore, though _in foro conscienti\u00e6_ the\nwife was equally guilty with the husband, yet in point of law she could\nnot be said to be guilty of not providing the apprentice with sufficient\nfood and nourishment\" (Ibid., pp. 144, 145). It is hard to see what\nadvantage society gains by this curious fashion of reckoning married\nwomen as children or lunatics. Some advantages, however, flow to a\ncriminal husband: a wife is not punishable for concealing her husband\nfrom justice, knowing that he has committed felony; a husband may not\nconceal his wife under analogous circumstances: \"So strict is the law\nwhere a felony is actually complete, in order to do effectual justice,\nthat the nearest relations are not suffered to aid or receive one\nanother. If the parent assists his child, or the child his parent, if\nthe brother receives the brother, the master his servant, or the servant\nhis master, or even if the husband receives his wife, having any of them\ncommitted a felony, the receiver becomes an accessory _ex post facto_.\nBut a _feme covert_ cannot become an accessory by the receipt and\nconcealment of her husband; for she is presumed to act under his\ncoercion, and therefore she is not bound, neither ought she, to discover\nher lord\" (Ibid., p. 38). The wife of a blind husband must not, however,\nregard her coverture as in all cases a protection, for it has been held\nthat if stolen goods were in her possession, her husband's blindness\npreventing him from knowing of them, her coverture did not avail to\nshelter her.\n\nAny advantage which married women may possess through the supposition\nthat they are acting under the coercion of their husbands ought to be\nsummarily taken away from them. It is not for the safety of society\nthat criminals should escape punishment simply because they happen to\nbe married women; a criminal husband becomes much more dangerous to the\ncommunity if he is to have an irresponsible fellow-conspirator beside\nhim; two people--although the law regards them as one--can often commit\na crime that a single person could not accomplish, and it is not even\nimpossible that an unscrupulous woman, desiring to get rid easily for\nawhile of an unpleasant husband, might actually be the secret prompter\nof an offence, in the commission of which she might share, but in the\npunishment of which she would have no part. For the sake of wives, as\nwell as of husbands, this irresponsibility should be put an end to,\nfor if a husband is to be held accountable for his wife's misdeeds\nand debts, it is impossible for the law to refuse him control over her\nactions; freedom and responsibility must go hand in hand, and women who\nobtain the rights of freedom must accept the duties of responsibility.\n\nA woman has a legal claim on her husband for the necessaries of life,\nand a man may be compelled to support his wife. But her claim is a very\nnarrow one, as may be seen by the following case:--A man named Plummer\nwas indicted for the manslaughter of his wife; he had been separated\nfrom her for several years, and paid her an allowance of 2s. 6d. a week;\nthe last payment was made on a Sunday, and she was turned out of her\nlodgings on the Tuesday following; she was suffering from diarrhoea, and\non the Wednesday was very ill. Plummer was told of her condition,\nbut refused to give her shelter; the evening was wet, and a constable\nmeeting her wandering about took her to her husband's lodgings, but\nhe would not admit her; on Thursday he paid for a bed for her at a\npublic-house, and on Friday she died. Baron Gurney told the jury that\nthe prisoner could not be charged with having caused her death from\nwant of food, since he made her an allowance, and under ordinary\ncircumstances he might have refused to do anything more; the only\nquestion was whether the refusal as to shelter had hastened her death.\nThe man was acquitted. A wife has also some limited rights over her\nhusband's property after his death; she may claim dower, her wearing\napparel, a bed, and some few other things, including her personal\njewellery. Her husband's power to deprive her of her personal ornaments\nceases with his life.\n\nTo redress the whole of the wrongs as to property, and to enable justice\nto be done, it is only necessary to pass a short Act of Parliament,\nordaining that marriage shall in no fashion alter the civil status of a\nwoman, that she shall have over property the same rights as though she\nwere unmarried, and shall, in all civil and criminal matters, be held as\nresponsible as though she were a _feme sole_. In short, marriage; ought\nno more to affect a woman's position than it does a man's, and should\ncarry with it no kind of legal disability; \"marital control\" should\ncease to exist, and marriage should be regarded as a contract between\nequals, and not as a bond between master and servant.\n\nThose who are entirely opposed to the idea that a woman should not\nforfeit her property on marriage, raise a number of theoretical\ndifficulties as to household expenses, ownership of furniture, &c.,\n&c. Practically these would very seldom occur, if we may judge by the\nexperience of countries whose marriage laws do not entail forfeiture\non the woman who becomes a wife. In the \"Rights of Women,\" quoted from\nabove, a very useful summary is given of the laws as to property in\nvarious countries; in Germany these laws vary considerably in the\ndifferent states; one system, known as \"Gutergemeinschaft\" (community\nof goods) is a great advance towards equality, although it is not by any\nmeans the best resolution of the problem; under this system there is\nno separate property, it is all merged in the common stock, and \"the\nhusband, as such, has no more right over the common 'fund than the\nwife, nor the wife than the husband\" (p. 26); the husband administers as\n\"representative of the community, and not as husband. He is merely head\npartner, as it were, and has no personal rights beyond that;\" he may\nbe dispossessed of even this limited authority if he is wasteful; \"he\ncannot alienate or mortgage any of the common lands or rights without\nher consent--a privilege, it must be remembered, which belongs to her,\nnot only over lands brought by herself, but also over those brought\nby her husband to the marriage. And this control of the wife over the\nimmovables has, for parts of Prussia, been extended by a law of April\n16th, 1850, over movables as well; for the husband has been forbidden to\ndispose not only of immovables, but of the whole or part of the movable\nproperty, without the consent of his wife. Nor can the husband by\nhimself make donations _mortis causa_; such arrangements take the\nform of mutual agreements between the two respecting their claims of\ninheritance to one another\" (p. 27). In Austria, married couples are\nmore independent of each other; the wives retain their rights over their\nown property, and can dispose of it \"as they like, and sue or be sued\nin respect of it, without marital authorisation or control; and just as\nthey have the free disposition of their property, so they can contract\nwith others as they please. A husband is unable to alienate any of his\nwife's property in her name, or to lend or mortgage it, or to receive\nany money, institute any law-suits, or make any arrangements in respect\nof it unless he has her special mandate.... If no stipulation is made\nat the marriage, each spouse retains his or her separate property, and\nneither has a claim to anything gained or in any way received by the\nother during the marriage\" (p. 50). In the New York code (U.S.A.),\n\"beyond the claim of mutual support, neither [husband nor wife] has any\ninterest whatever in the property of the other. Hence either may into\nany enter engagement or transaction with the other or with a stranger\nwith respect to property, just as they might do if they continued\nunmarried\" (p. 95). The apportionment of household expenses must\nnecessarily be left for the private arrangement of the married pair;\nwhere the woman has property, or where she earns her livelihood it would\nbe her duty to contribute to the support of the common home; where\nthe couple are poor, and the care of the house falls directly on the\nshoulders of the wife, her personal toil would be her fair contribution;\nthis matter should be arranged in the marriage contract, just as similar\nmatters are now dealt with in the marriage settlements of the wealthy.\nAs means of livelihood become more accessible to women the question\nwill be more and more easily arranged; it will no longer be the fashion\nin homes of professional men that the husband shall over-work himself\nin earning the means of support, while the wife over rests herself\nin spending them, but a more evenly-divided duty shall strengthen the\nhusband's health by more leisure, and the wife's by more work. Recovery\nof debts incurred for household expenses should be by suit against\nhusband and wife jointly, just as in a partnership the firm may now be\nsued; recovery of personal debts should be by suits against the person\nwho had contracted them. Many a man's life is now rendered harder than\nit ought to be, by the waste and extravagance of a wife who can pledge\nhis name and his credit, and even ruin him before he knows his danger:\nwould not the lives of such men be the happier and the less toilsome if\ntheir wives were responsible for their own debts, and limited by their\nown means? Many a woman's home is broken up, and her children beggared,\nby the reckless spendthrift who wastes her fortune or her earnings:\nwould not the lives of such women be less hopeless, if marriage left\ntheir property in their own hands, and did not give them a master as\nwell as a husband? Women, under these circumstances, would, of course,\nbecome liable for the support of their children, equally with their\nhusbands--a liability which is, indeed, recognized by the Married\nWomen's Property Act (1870), s. 14.\n\nIt is sometimes further urged by those who like \"a man to be master in\nhis own house,\" that unless women forfeited their property in marriage,\nthere would be constant discord in the home. Surely the contrary effect\nwould be produced. Mrs. Mill well says, in the Essay before quoted from:\n\"The highest order of durable and happy attachments would be a hundred\ntimes more frequent than they are, if the affection which the two sexes\nsought from one another were that genuine friendship which only exists\nbetween equals in privileges as in faculties.\" Nothing is so likely to\ncause unhappiness as the tendency to tyrannize, generated in the man by\nauthority, and the tendency to rebel, generated in the woman by enforced\nsubmission. No grown person should be under the arbitrary power\nof another; dependence is touching in the infant because of its\nhelplessness; it is revolting in the grown man or woman because with\nmaturity of power should come dignity of self-support.\n\nIn a brilliant article in the _Westminster Review_ (July, 1874) the\nwriter well says: \"Would it not, to begin with, be well to instruct\ngirls that weakness, cowardice, and ignorance, cannot constitute at once\nthe perfection of womankind and the imperfection of mankind?\" It is time\nto do away with the oak and ivy ideal, and to teach each plant to grow\nstrong and self-supporting. Perfect equality would, under this system,\nbe found in the home, and mutual respect and deference would replace the\nalternate coaxing and commandment now too often seen. Equal rights would\nabolish both tyranny and rebellion; there would be more courtesy in the\nhusband, more straightforwardness in the wife. Then, indeed, would there\nbe some hope of generally happy marriages, but, as has been eloquently\nsaid by the writer just quoted, \"till absolute social and legal equality\nis the basis of the sacred partnership of marriage (the division of\nlabours and duties in the family, by free agreement, implying no sort of\ninequality), till no superiority is recognized on either side but that\nof individual character and capacity, till marriage is no longer legally\nsurrounded with penalties on the woman who enters into it as though she\nwere a criminal--till then the truest love, the truest sympathy, the\ntruest happiness in it, will be the exception rather than the rule, and\nthe real value of this relation, domestic and social, will be fatally\nmissed.\" That some marriages are happy, in spite of the evil law, no one\nwill deny; but these are the exception, not the rule. The law, as it is,\ndirectly tends to promote unhappiness, and its whole influence on the\nrelations of the sexes is injurious. To quote Mrs. Mill once more: \"The\ninfluence of the position tends eminently to promote selfishness.\nThe most insignificant of men, the man who can obtain influence or\nconsideration nowhere else, finds one place where he is chief and head.\nThere is one person, often greatly his superior in understanding, who\nis obliged to consult him, and whom he is not obliged to consult. He\nis judge, magistrate, ruler, over their joint concerns; arbiter of all\ndifferences between them.... His is now the only tribunal, in civilized\nlife, in which the same person is judge and party. A generous mind in\nsuch a situation makes the balance incline against its own side, and\ngives the other not less, but more, than a fair equality, and thus the\nweaker side may be enabled to turn the very fact of dependence into an\ninstrument of power, and in default of justice, take an ungenerous\nadvantage of generosity; rendering the unjust power, to those who make\nan unselfish use of it, a torment and a burthen. But how is it when\naverage men are invested with this power, without reciprocity and\nwithout responsibility? Give such a man the idea that he is first in law\nand in opinion--that to will is his part, and hers to submit--it is\nabsurd to suppose that this idea merely glides over his mind, without\nsinking into it, or having any effect on his feelings and practice. If\nthere is any self-will in the man, he becomes either the conscious or\nunconscious despot of his household. The wife, indeed, often succeeds in\ngaining her objects, but it is by some of the many various forms of\nindirectness and management.\" When marriage is as it should be, there\nwill be no superior and inferior by right of position; but men and\nwomen, whether married or unmarried, will retain intact the natural\nrights \"belonging to every Englishman.\"\n\nIn dealing with the wrongs of the wife, according to the present\nEnglish marriage laws, the wrongs of the mother must not be omitted. The\nunmarried mother has a right to her child; the married mother has none:\n\"A father is entitled to the custody of his child until it attains the\nage of sixteen, unless there be some sufficient reason to the contrary\"\n(Russell \"On Crimes,\" vol. i., p. 898). The \"sufficient reason\" is\nhard to find in most cases, as the inclination of the Courts is to make\nexcuses for male delinquencies, and to uphold every privilege which male\nParliaments have conferred on husbands and fathers. In Shelley's\ncase the father was deprived of the custody of his children, but here\nreligious and political heresy caused a strong bias against the poet.\nThe father's right to the custody of legitimate children is complete;\nthe mother has no right over them as against his; he may take them away\nfrom her, and place them in the care of another woman, and she has no\nredress; she may apply to Chancery for access to them at stated times,\nbut even this is matter of favour, not of right. The father may appoint\na guardian in his will, and the mother, although the sole surviving\nparent, has no right over her children as against the stranger appointed\nby the dead father. If the parents differ in religion, the children are\nto be brought up in that of the father, whatever agreement may have been\nmade respecting them before marriage; if the father dies without leaving\nany directions, the children will be educated in his religion; he can,\nif he chooses, allow his wife to bring them up in her creed, but she can\nonly do so by virtue of his permission. Thus the married mother has no\nrights over her own children; she bears them, nurses them, toils for\nthem, watches over them, and may then have them torn from her by no\nfault of her own, and given into the care of a stranger. People talk of\nmaternal love, and of woman's sphere, of her duty in the home, of her\nwork for her babes, but the law has no reverence for the tie between\nmother and child, and ignores every claim of the mother who is also a.\nwife. The unmarried mother is far better off; she has an absolute right\nto the custody of her own children; none can step in and deprive her of\nher little ones, for the law respects the maternal tie when no marriage\nceremony has \"legitimated\" it. Motherhood is only sacred in the eye of\nthe law when no legal contract exists between the parents of the child.\n\nLooking at a woman's position both as wife and mother, it is impossible\nnot to recognise the fact that marriage is a direct disadvantage to her.\nIn an unlegalised union the woman retains possession of all her\nnatural rights; she is mistress of her own actions, of her body, of her\nproperty; she is able to legally defend herself against attack; all the\nCourts are open to protect her; she forfeits none of her rights as an\nEnglishwoman; she keeps intact her liberty and her independence; she has\nno master; she owes obedience to the laws alone. If she have a child,\nthe law acknowledges her rights over it, and no man can use her love for\nit as an engine of torture to force her into compliance with his will.\nTwo disadvantages, however, attach to unlegalised unions; first, the\nwoman has to face social disapprobation, although of late years, as\nwomen have been coming more to the front, this difficulty has been very\nmuch decreased, for women have begun to recognise the extreme injustice\nof the laws, and both men and women of advanced views have advocated\ngreat changes in the marriage contract. The second disadvantage is of\na more serious character: the children proceeding from an unlegalised\nunion have not the same rights as those born in legal wedlock, do not\ninherit as of right, and have no legal name. These injustices can be\nprevented by care in making testamentary dispositions protecting them,\nand by registering the surname, but the fact of the original unfairness\nstill remains, and any carelessness on the parents' part will result in\nreal injury to the child. It must also be remembered that the father, in\nsuch a case, has no rights over his children, and this is as unfair to\nhim as the reverse is to the mother. As the law now is, both legal and\nillegal unions have disadvantages connected with them, and there is only\na choice between evils; these evils are however, overwhelmingly greater\non the side of legal unions as may be seen by the foregoing sketch of\nthe disabilities imposed on women by marriage. So great are these that\na wise and self-respecting woman may well hesitate to enter into a\ncontract of marriage while the laws remain as they are, and a man who\nreally honours a woman must reluctantly subject her to the disadvantages\nimposed on the English wife, when he asks her to take him as literally\nher master and, owner. The relative position is as dishonouring to the\nman as it is insulting to the woman, and good men revolt against it as\nhotly as do the most high-spirited women. In happy marriages all these\nlaws are ignored, and it is only at rare intervals that the married\npair become conscious of their existence. Some argue that this being so,\nsmall practical harm results from the legal injustice; it would be as\nsensible to argue that as honest people do not want to thieve, it would\nnot be injurious to public morality to have laws on the statute book\nlegalising garotting. Laws are made to prevent injustice being committed\nwith impunity, and it is a curious reversal of every principle of\nlegislation to make laws which protect wrongdoing, and which can only\nbe defended on the ground that they are not generally enforced. If the\nEnglish marriage laws were universally carried out, marriage would not\nlast for a month in England; as it is, vast numbers of women suffer in\nsilence, thousands rebel and break their chains, and on every side\nmen and women settle down into a mutual tolerance which is simply an\neasy-going indifference, accepted as the only possible substitute for\nthe wedded happiness which they once dreamed of in youth, but have\nfailed to realise in their maturity.\n\nThings being as they are, what is the best action for those to take who\ndesire to see a healthier and purer sexual morality--a morality founded\nupon equal rights and diverse duties harmoniously discharged? The first\nstep is to agitate for a reform of the marriage laws by the passing of\nsuch an Act of Parliament as is alluded to above. It would be well for\nsome of those who desire to see such a legislative change to meet and\nconfer together on the steps to be taken to introduce such a Bill into\nthe House of Commons. If thought necessary, a Marriage Reform League\nmight be established, to organize the agitation and petitioning which\nare _de rigueur_, in endeavouring to get a bill passed through the\npopular House. Side by side with this effort to reform marriage abuses,\nshould go the determination not to contract a legal marriage while the\nlaws remain as immoral as they are. It is well known that the Quakers\npersistently refused to go through the legal English form of marriage,\nand quietly made their declarations according to their own conscience,\nsubmitting to the disadvantages entailed on them by the illegality,\nuntil the legislature formally recognised the Quaker declaration as\na legal form of marriage. Why should not we take a leaf out of the\nQuakers' book, and substitute for the present legal forms of marriage a\nsimple declaration publicly made? We should differ from the Quakers\nin this, that we should not desire that such declaration should be\nlegalised while the marriage laws remain as they are; but as soon as\nthe laws are moralised, and wives are regarded as self-possessing\nhuman beings, instead of as property, then the declaration may, with\nadvantage, seek the sanction of the law. It is not necessary that\nthe declaration should be couched in any special form of words; the\nconditions of the contract ought to be left to the contracting parties.\nWhat is necessary is that it should be a definite contract, and it is\nhighly advisable that it should be a contract in writing--a deed of\npartnership, in fact, which should--when the law permits--be duly\nstamped and registered. The law, while it does not dictate the\nconditions of the contract, should enforce those conditions so long as\nthe contract exists; that is, it should interfere just as far as it does\nin other contracts, and no further; the law has no right to dictate the\nterms of the marriage contract; it is for the contracting parties to\narrange their own affairs as they will. While, however, the province of\nthe law should be thus limited in respect to the contracting parties,\nit has a clear right to interfere in defence of the interests of any\nchildren who may be born of the marriage, and to compel the parents to\nclothe, feed, house, and educate them properly: this duty should, if\nneed be, be enforced on both parents alike, and the law should recognise\nand impose the full discharge of the responsibilities of parents towards\nthose to whom they have given life. No marriage contract should be\nrecognised by the law which is entered into by minors; in this, as in\nother legal deeds, there should be no capability to contract until the\ncontracting parties are of full age. A marriage is a partnership, and\nshould be so regarded by the law, and it should be the aim of those\nwho are endeavouring to reform marriage, to substitute for the present\nsemi-barbarous laws a scheme which shall be sober, dignified, and\npracticable, and which shall recognise the vital interest of the\ncommunity in the union of those who are to be the parents of the next\ngeneration.\n\nSuch a deed as I propose would have no legal force at the present time;\nand here arises a difficulty: might not a libertine take advantage of\nthis fact to desert his wife and possibly leave her with a child, or\nchildren, on her hands; to the cold mercy of society which would not\neven recognize her as a married woman? Men who, under the present\nstate of the law, seduce women and then desert them, would probably\ndo the same if they had gone through a form of marriage which had no\nlegally binding force; but such men are, fortunately, the exception,\nnot the rule, and there is no-reason to apprehend an increase of\ntheir number, owing to the proposed action on the part of a number of\nthoughtful men and women who are dissatisfied with the present state\nof the law, but who have no wish to plunge into debauchery. I freely\nacknowledge that it is to be desired that marriage should be legally\nbinding, and that a father should be compelled to do his share towards\nsupporting his children; but while English law imposes such a weight of\ndisability on a married woman, and leaves her utterly in the power\nof her husband, however unprincipled, oppressive, and wicked he may\nbe--short of legal crime--I take leave to think that women have a\nfairer chance of happiness and comfort in an unlegalised than in a legal\nmarriage. There is many an unhappy woman who would be only too glad if\nthe libertine who has legally married her would desert her, and leave\nher, even with the burden of a family, to make for herself and her\nchildren, by her own toil, a home which should at least be pure,\npeaceful, and respectable.\n\nLet me, in concluding this branch of the subject, say a word to those\nwho, agreeing with Marriage Reform in principle, fear to openly put\ntheir theory into practice. Some of these earnestly hope for change, but\ndo not dare to advocate it openly. Reforms have never been accomplished\nby Reformers who had not the courage of their opinions. If all the men\nand women who disapprove of the present immoral laws would sturdily _and\nopenly_ oppose them; if those who desire to unite their lives, but are\ndetermined not to submit to the English marriage laws, would publicly\njoin hands, making such a declaration as is here suggested, the social\nodium would soon pass away, and the unlegalised marriage would be\nrecognised as a dignified and civilized substitute for the old brutal\nand savage traditions. Most valuable work might here be done by men and\nwomen who--happy in their own marriages--yet feel the immorality of the\nlaw, and desire to see it changed. Such married people might support and\nstrengthen by their open countenance and friendship those who enter into\nthe unlegalised public unions here advocated; and they can do what no\none else can do so well: they can prove to English society--the most\nbigoted and conservative society in the world--that advocacy of change\nin the marriage laws does not mean the abolition of the home. The value\nof such co-operation will be simply inestimable, and will do more\nthan anything else to render the reform practicable. Courage and quiet\nresolution are needed, but, with these, this great social change may\nsafely and speedily be accomplished.\n\n\n\n\nII. DIVORCE.\n\n|Any proposed reforms in the marriage laws of England would be extremely\nimperfect, unless they dealt with the question of divorce. Marriage\ndiffers from all ordinary contracts in the extreme difficulty of\ndissolving it--a difficulty arising from the ecclesiastical character\nwhich has been imposed upon it, and from the fact that it has been\nlooked upon as a religious bond instead of as a civil contract. Until\nthe time of the Reformation, marriage was regarded as a sacrament by all\nChristian people, and it is so regarded by the majority of them up to\nthe present day. When the Reformers advocated divorce, it was considered\nas part of their general heresy, and as proof of the immoral tendency\nof their doctrines. Among Roman Catholics the sacramental--and therefore\nthe indissoluble--character of marriage is still maintained, but among\nProtestants divorce is admitted, the laws regulating it varying much in\ndifferent countries.\n\nIn England--owing to the extreme conservatism of the English in all\ndomestic matters--the Protestant view of marriage made its way very\nslowly. Divorce remained within the jurisdiction of ecclesiastical\ncourts, and these granted only divorces _a mens\u00e2 et thoro_ in cases\nwhere cruelty or adultery was pleaded as rendering conjugal life\nimpossible. These courts never granted divorces a _vinculo matrimonii_,\nwhich permit either--or both--of the divorced persons to contract a\nfresh marriage, except in cases where the marriage was annulled as\nhaving been void from the beginning; they would only grant a separation\n\"from bed and board,\" and imposed celibacy on the divorced couple until\none of them died, and so set the other free. There was indeed a report\ndrawn up by a commission, under the authority of 3 and 4 Edward VI., c.\nii., which was intended as a basis for the re-modelling of the marriage\nlaws, but the death of the king prevented the proposed reform; the\necclesiastical courts remained as they were, and absolute divorce\nwas unattainable. Natural impatience of a law which separated unhappy\nmarried people only to impose celibacy on them, caused occasional\napplications to be made to Parliament for relief, and a few marriages\nwere thus dissolved under exceptional circumstances. In 1701, a bill\nwas obtained, enabling a petitioner to re-marry, and in 1798, Lord\nLoughborough's \"Orders\" were passed. By these orders, no petition could\nbe presented to the House, unless an official copy of the proceedings,\nand of a definitive sentence of divorce, _a mens\u00e2 et thoro_, in the\necclesiastical courts, was delivered on oath at the bar of the House at\nthe same time (Broom's \"Comm.,\" vol. iii. p. 396). After explaining\nthe procedure of the ecclesiastical court, Broom goes on: \"A definitive\nsentence of divorce _a mens\u00e2 et thoro_ being thus obtained, the\npetitioner proceeded to lay his case before the House of Lords in\naccordance with the Standing Orders before adverted to, and, subject to\nhis proving the case, he obtained a bill divorcing him from the bonds of\nmatrimony, and allowing him to marry again. The provisions of the\nbill, which was very short, were generally these:--1. The marriage was\ndissolved. 2. The husband was empowered to marry again. 3. He was given\nthe rights of a husband as to any property of an after-taken wife. 4.\nThe divorced wife was deprived of any right she might have as his widow.\n5. Her after-acquired property was secured to her as against the husband\nfrom whom she was divorced. In the case of the wife obtaining the bill,\nsimilar provisions were made in her favour\" (p. 398). In 1857, an Act\nwas passed establishing a Court for Divorce and Matrimonial Causes, and\nthus a great step forward was taken: this court was empowered to grant\na judicial separation--equivalent to the old divorce _a mens\u00e2 et\nthoro_--in cases of cruelty, desertion for two years and upwards, or\nadultery on the part of the husband; it was further empowered to grant\nan absolute divorce with right of re-marriage--equivalent to the old\ndivorce _a vinculo matrimonii_--in cases of adultery on the part of the\nwife, or of, on the part of the husband, incestuous adultery, or of\nbigamy with adultery, or of rape, or an unnatural crime, or of adultery\ncoupled with such cruelty as would formerly have entitled her to a\ndivorce _a mens\u00e2 et thoro_, or of adultery coupled with desertion,\nwithout reasonable excuse, for two years or upwards (Broom, vol. i., p.\n542). The other powers held by the court need not now be specially dwelt\nupon.\n\nThe first reform here needed is that husband and wife should be placed\non a perfect equality in asking for a divorce: at present if husband and\nwife be living apart, no amount of adultery on the husband's part can\nrelease the wife; if they be living together, a husband may keep as\nmany mistresses as he will, and, provided that he carefully avoid any\nroughness which can be construed into legal cruelty, he is perfectly\nsafe from any suit for dissolution of marriage. Adultery alone, when\ncommitted by the husband, is not ground for a dissolution of marriage;\nit must be coupled with some additional offence before the wife can\nobtain her freedom. But the husband can obtain a dissolution of marriage\nfor adultery committed by the wife, and he can further obtain money\ndamages from the co-respondent, as a _solatium_ to his wounded feelings.\nDivorce should be absolutely equal as between husband and wife: adultery\non either side should be sufficient, and if it be thought necessary to\njoin a male co-respondent when the husband is the injured party, then it\nshould also be necessary to join a female co-respondent where the wife\nbrings the suit. The principle, then, which should be laid down as\ngoverning all cases of divorce, is that no difference should be made in\nfavour of either side; whatever is sufficient to break the marriage in\nthe one case should be sufficient to break it in the other.\n\nNext, the system of judicial separation should be entirely swept away.\nWherever divorce is granted at all, the divorce should be absolute. No\nuseful end is gained by divorcing people practically and regarding them\nas married legally. A technical tie is kept up, which retains on the\nwife the mass of disabilities which flow from marriage, while depriving\nher of all the privileges, and which widows both man and woman, exiling\nthem from home-life and debarring them from love. Judicial separation is\na direct incentive to licentiousness and secret sexual intercourse; the\npartially divorced husband, refused any recognised companion, either\nindulges in promiscuous lust, to the ruin of his body and mind, or\nprivately lives with some woman whom the law forbids him to marry and\nwhom he is ashamed to openly acknowledge. Meanwhile the semi-divorced\nwife can obtain no relief, and is compelled to live on, without the\nfreedom of the spinster or the widow, or the social consideration of the\nmarried woman. She can only obtain freedom by committing what the law\nand society brand as adultery; if she has any scruples on this head, she\nmust remain alone, unloved and without home, living a sad, solitary life\nuntil death, more merciful than the law, sets her free.\n\nIt is hard to see what object there can be in separating a married\ncouple, in breaking up the home, dividing the children, and yet\nmaintaining the fact of marriage just so far as shall prevent the\nseparated couple from forming new ties; the position of those who regard\ndivorce as altogether sinful, is intelligible, however mistaken; but\nthe position of those who advocate divorce, but object to the divorced\ncouple having the right of contracting a new marriage, is wholly\nincomprehensible. No one profits by such divorce, while the separated\ncouple are left in a dubious and most unsatisfactory condition; they are\nneither married nor unmarried; they can never shake themselves free from\nthe links of the broken chain; they carry about with them the perpetual\nmark of their misfortune, and can never escape from the blunder\ncommitted in their youth. They would be the happier, and society would\nbe the healthier, if the divorce of life and of interests were also a\ndivorce which should set them free to seek happiness, if they will, in\nother unions--free technically as well as really, free in law as well as\nin fact.\n\nIf it be admitted that all divorce should be absolute, the question\narises: What should be the ground of divorce? First, adultery, because\nbreach of faith on either side should void the contract which implies\nloyalty to each other; the legal costs of both should fall on the\nbreaker of the contract, but no damages should be recoverable against a\nthird party. Next, cruelty, because where the weaker party suffers from\nthe abuse of power of the stronger, there the law should, when appealed\nto, step in to annul the contract, which is thus a source of injury\nto one of the contracting parties; if a man be brought up before the\nmagistrate charged with wife-beating or violence of any kind towards his\nwife, and be convicted and sentenced, the Divorce Court should, on\nthe demand of the wife, the record being submitted to it, pronounce a\nsentence of divorce; in the rare case of violence committed by a wife on\nher husband, the same result should accrue; the custody of the children\nshould be awarded to the innocent party, since neither a man nor a woman\nconvicted of doing bodily harm to another is fit to be trusted with the\nguardianship of a child. * The next distinct ground of divorce should\nbe habitual drunkenness; drunkenness causes misery to the sober\npartner, and is ruinous in its effect, both on the _physique_ and on the\ncharacter of the children proceeding from the marriage. Here, of course,\nthe custody of the children should be committed entirely to the innocent\nparent.\n\n     * Since these lines were published in the National Reformer,\n     a clause has been inserted in a bill now before Parliament,\n     empowering magistrates to grant an order of separation to a\n     wife? if it is proved that she has been cruelly ill-used by\n     her husband, and further compelling the husband, in such a\n     case, to contribute a weekly sum towards her maintenance.\n     This will be a great improvement on the present state of\n     things, but absolute divorce would be better than mere\n     separation.\n\nAt present, the usual unfairness presides over the arrangements as to\naccess to the children by the parents: \"In the case of a mother who is\nproved guilty of adultery, she is usually debarred from such access,\nthough it has not been the practice to treat the offending father with\nthe same rigour\" (Broom's \"Comm.,\" vol. iii., p. 404). In all cases of\ndivorce the interests of the children should be carefully guarded; both\nparents should be compelled to contribute to their support, whether the\nguardianship be confided to the father or to the mother.\n\nThese glaring reasons for granting a divorce will be admitted by\neveryone who recognises the reasonableness of divorce at all, but there\nwill be more diversity of opinion as to the advisability of making\ndivorce far more easily attainable. The French Convention of 1792 set\nan example that has been only too little followed; for the first time\nin French history divorce was legalised in France. It was obtainable \"on\nthe application of either party [to the marriage] alleging simply as a\ncause, incompatibility of humour or character. The female children were\nto be entirely confided to the care of the mother, as well as the males,\nto the age of seven years, when the latter were again to be re-committed\nto the superintendence of the father; provided only, that by mutual\nagreement any other arrangement might take place with respect to the\ndisposal of the children; or arbitrators might be chosen by the nearest\nof kin to determine on the subject. The parents were to contribute\nequally to the maintenance of the children, in proportion to their\nproperty, whether under the care of the father or mother. Family\narbitrators were to be chosen to direct with respect to the partition\nof the property, or the alimentary pension to be allowed to the party\ndivorced. Neither of the parties could contract a new marriage for the\nspace of one year\" (\"Impartial History of the Late Revolution,\" vol.\nii., pp. 179, 180). This beneficial law was swept away, with many other\nuseful changes, when tyranny came back to France. At the present time\nthe only countries where divorce is easily obtainable are some of the\nstates of Germany and of America. It has been held in at least one\nAmerican state that proved incompatibility of temper was sufficient\nground for separation. And reasonably so; if two people enter into a\ncontract for their mutual comfort and advantage, and the contract issues\nin mutual misery and loss, why should not the contract be dissolved?\nIt is urged that marriage would be dishonoured if divorce were easily\nattainable; surely marriage is far more dishonoured by making it a chain\nto tie together two people who have for each other neither affection nor\nrespect. For the sake of everyone concerned an unhappy marriage should\nbe easily dissoluble; the married couple would be the happier and the\nbetter for the separation; their children--if they have any--would be\nsaved from the evil effect of continual family jars, and from the\nloss of respect for their parents caused by the spectacle of constant\nbickering; the household would be spared the evil example of the\nquarrels of its heads; society would see less vice and fewer scandalous\ndivorce suits. In all cases of contract, save that of marriage, those\nwho make can, by mutual consent, unmake; why should those who make the\nmost important contract of all be deprived of the same right?\n\nMr. John Stuart Mill, dealing very briefly with the marriage contract\nin his essay \"On Liberty,\" points out that the fulfilment of obligations\nincurred by marriage must not be forgotten when the contract is\ndissolved, since these \"must be greatly affected by the continuance\nor disruption of the relation between the original parties to the\ncontract.\" But he goes on to say: \"It does not follow, nor can I\nadmit, that these obligations extend to requiring the fulfilment of the\ncontract at all costs to the happiness of the reluctant party; but they\nare a necessary element in the question; and even if, as Von Humboldt\nmaintains, they ought to make no difference in the _legal_ freedom of\nthe parties to release themselves from the engagement (and I also hold\nthat they ought not to make _much_ difference), they necessarily make a\ngreat difference in the _moral_ freedom. A person is bound to take all\nthese circumstances into account before resolving on a step which may\naffect such important interests of others; and if he does not allow\nproper weight to those interests, he is morally responsible for the\nwrong. I have made these obvious remarks for the better illustration of\nthe general principle of liberty, and not because they are at all needed\non the particular question, which, on the contrary, is usually discussed\nas if the interest of children was everything, and that of grown persons\nnothing\" (p. 61). The essay of Von Humboldt, referred to by Mr. Mill, is\nthat on the \"Sphere and Duties of Government;\" Von Humboldt argues\nthat \"even where there is nothing to be objected to the validity of a\ncontract, the State should have the power of lessening the restrictions\nwhich men impose on one another, even with their own consent, and by\nfacilitating the release from such engagements of preventing a moment's\ndecision from hindering their freedom of action for too long a period\nof life\" (p. 134, of Coulthard's translation). After pointing out that\ncontracts relating to the transfer of _things_ should be binding, Von\nHumboldt proceeds: \"With contracts which render personal performance a\nduty, or still more with those which produce proper personal relations,\nthe case is wholly different. With these coercion operates hurtfully on\nman's noblest powers; and since the success of the pursuit itself which\nis to be conducted in accordance with the contract, is more or less\ndependent on the continuing consent of the parties, a limitation of such\na kind is in them productive of less serious injury. When, therefore,\nsuch a personal relation arises from the contract as not only to require\ncertain single actions, but, in the strictest sense, to affect the\nperson, and influence the whole manner of his existence; where that\nwhich is done, or left undone, is in the closest dependence on internal\nsensations, the option of separation should always remain open, and the\nstep itself should not require any extenuating reasons. Thus it is with\nmatrimony\" (pp. 134-135).\n\nRobert Dale Owen--the virtuous and justly revered author of \"Moral\nPhysiology;\" a man so respected in his adopted country, the United\nStates of America, that he was elected as one of its senators, and was\nappointed American ambassador at the Court of Naples--Robert Dale Owen,\nin a letter to Thomas Whittemore, editor of the Boston Trumpet, May,\n1831, deals as follows with the contract of marriage:--\n\n\"I do not think it virtuous or rational in a man and woman solemnly to\nswear that they will love and honour each other until death part them.\nFirst, because if affection or esteem on either side should afterwards\ncease (as, alas! we often see it cease), the person who took the\nmarriage-oath has perjured himself; secondly, because I have observed\nthat such an oath, being substituted for the noble and elevating\nprinciple of moral obligation, has a tendency to weaken that principle.\n\n\"You will probably ask me whether I should equally object to a solemn\npromise to live together during life whatever happens. I do not think\nthis _equally_ objectionable, because it is an explicit promise possible\nto be kept; whereas the oath to love until death, may become impossible\nof fulfilment. But still I do not approve even this possible promise;\nand I will give you the reasons why I do not.\n\n\"That a man and woman should occupy the same house, and daily enjoy each\nother's society, so long as such an association gives birth to\nvirtuous feelings, to kindness, to mutual forbearance, to courtesy, to\ndisinterested affection, I consider right and proper. That they should\ncontinue to inhabit the same house and to meet daily, in case such\nintercourse should give birth to vicious feelings, to dislike, to ill\ntemper, to scolding, to a carelessness of each other's comfort and a\nwant of respect for each other's feelings,--this I consider, _when the\ntwo individuals alone are concerned_, neither right nor proper;\nneither conducive to good order nor to virtue. I do not think it well,\ntherefore, to promise, at all hazards, to live together for life.\n\n\"Such a view may be offensive to orthodoxy, but surely, surely it is\napproved by common sense. Ask yourself, sir, who is--who can be the\ngainer--the man, the woman, or society at large--by two persons living\nin discord rather than parting in peace, as Abram and Lot did when their\nherdsmen could not agree. We have temptations enough already to ill\nhumour in the world, without expressly creating them for ourselves; and\nof all temptations to that worst of petty vices, domestic bickering,\ncan we suppose one more strong or more continually active than a forced\nassociation in which the heart has no share? Do not the interests of\nvirtue and good order, then, imperiously demand (as the immortal author\nof 'Paradise Lost' argued, in his celebrated work 'On Divorce,') that\nthe law should abstain from perpetuating any association, after it has\nbecome a daily source of vice?\n\n\"If children's welfare is concerned, and that they will be injured by\na separation, the case is different. Those who impart existence to\nsentient beings are, in my view, responsible to them for as much\nhappiness as it is in their power to bestow. The parent voluntarily\nassumes this greatest of responsibilities; and he who, having so\nassumed it, trifles with his child's best interests for his own selfish\ngratification, is, in my eyes, utterly devoid of moral principle; or, at\nthe least, utterly blind to the most sacred duty which a human being\ncan be called to perform. If, therefore, the well-being and future\nprosperity of the children are to be sacrificed by a separation of\nthe parents, then I would positively object to the separation, however\ngrievous the evil effects of a continued connection might be to the\ndissentient couple.\n\n\"Whether the welfare of children is ever promoted by the continuation\nof an ill-assorted union, is another question; as also in what way they\nought to be provided for, where a separation actually takes place.\n\n\"But to regard, for the moment, the case of the adults alone. You will\nremark, that it is no question for us to determine whether it is better\nor more proper that affection, once conceived, should last through life.\nWe might as well sit down to decree whether the sun should shine or be\nhid under a cloud, or whether the wind should blow a storm or a gentle\nbreeze. We may rejoice when it does so last, and grieve when it does\nnot; but as to legislating about the matter, it is the idlest of\nabsurdities.\n\n\"But we _can_ determine by law the matter of living together. We may\ncompel a man and woman, though they hate each other as cordially as any\nof Byron's heroes, to have one common name, one common interest, and\n(nominally) one common bed and board. We may invest them with the legal\nappearance of the closest friends while they are the bitterest enemies.\nIt seems to me that mankind have seldom considered what are the actual\nadvantages of such a proceeding to the individuals and to society. I\nconfess that I do not see what is gained in so unfortunate a situation,\nby keeping up the appearance when the reality is gone.\n\n\"I do see the necessity, in such a case, if the man and woman separate,\nof dividing what property they may possess equally between them; and\n(while the present monopoly of profitable occupations by men lasts)\nI also see the expediency, in case the property so divided be not\nsufficient for the woman's comfortable support, of causing the man to\ncontinue to contribute a fair proportion of his earnings towards it. I\nalso see the impropriety, as I said before, that the children, if any\nthere be, should suffer. But I cannot see who is the gainer by obliging\ntwo persons to continue in each other's society, when heart-burnings,\nbickerings, and other vicious results, are to be the consequence.\n\n\"There are cases when affection ceases on one side and remains on the\nother. No one can deny that this is an evil, often a grievous one; but I\ncannot perceive how the law can remedy it, or soften its bitterness, any\nmore than it can legislate away the pain caused by unreturned friendship\nbetween persons of the same sex.\n\n\"You will ask me, perhaps, whether I do not believe that, but for the\nlaw, there would be a continual and selfish change indulged, without\nregard to the feelings or welfare of others. What there might be in the\nworld, viciously trained and circumstanced as so many human beings now\nare, I know not, though I doubt whether things _could_ be much worse\nthan they are now; besides that no human power can legislate for the\nheart. But if men and women were trained (as they so easily might!) to\nbe even decently regardful of each other's feelings, may we not assert\npositively, that no such result could, possibly happen? Let me ask each\none of your readers, and let each answer to his or her own heart: 'Are\nyou indeed bound to those you profess to love and honour by the law\n_alone?_ Alas! for your chance of happiness, if the answer be 'Yes!'\"\n\nThe fact is, as Mr. Owen justly says, that a promise to \"love... until\ndeath us do part\" is an immoral promise, because its performance is\nbeyond the power of those who give the promise. To love, or not to love,\nis not a matter of the will; Love in chains loses his life, and only\nleaves a corpse in his captive's hand. Love is, of its very nature,\nvoluntary, freely given, drawing together by an irresistible sympathy\nthose whose natures are adapted to each other. Shelley well says, in\none of the notes on Queen Mab: \"Love is inevitably consequent on the\nperception of loveliness. Love withers under constraint; its very\nessence is liberty; it is compatible neither with obedience, jealousy,\nnor fear; it is there most pure, perfect and unlimited, where its\nvotaries live in confidence, equality, and unreserve.\" To say this, is\nnot to say that higher duty may not come between the lovers, may not,\nfor a time, keep them apart, may not even render their union impossible;\nit is only to recognize a fact that no thoughtful person can deny, and\nto show how utterly wrong and foolish it is to promise for life, that\nwhich can never be controlled by the will.\n\nBut marriage, it is said, would be too lightly entered into if it were\nso easily dissoluble. Why? People do not rush into endless partnerships\nbecause they are dissoluble at pleasure; on the contrary, such\npartnerships last just so long as they are beneficial to the contracting\nparties. In the same way, marriage would last exactly so long as its\ncontinuance was beneficial, and no longer: when it became hurtful, it\nwould be dissolved. \"How long then,\" asks Shelley, \"ought the sexual\nconnection to last? what law ought to specify the extent of the\ngrievances which should limit its duration? A husband and wife ought to\ncontinue so long united as they love each other; any law which should\nbind them to cohabitation for one moment after the decay of their\naffection, would be a most intolerable tyranny, and the most unworthy\nof toleration. How odious a usurpation of the right of private judgment\nshould that law be considered which should make the ties of friendship\nindissoluble, in spite of the caprices, the inconstancy, the fallibility\nand capacity for improvement of the human mind. And by so much would\nthe fetters of love be heavier and more unendurable than those of\nfriendship, as love is more vehement and capricious, more dependent\non those delicate peculiarities of imagination, and less capable of\nreduction to the ostensible merits of the object.... The connection\nof the sexes is so long sacred as it contributes to the comfort of the\nparties, and is naturally dissolved when its evils are greater than its\nbenefits. There is nothing immoral in this separation\" (Notes on \"Queen\nMab\"). In spite of this facility of divorce, marriage would be the most\nenduring of all partnerships; not only is there between married couples\nthe tie of sexual affection, but around them grows up a hedge of common\nthoughts, common interests, common memories, that, as years go on, makes\nthe idea of separation more and more repulsive. It would only be where\nthe distaste had grown strong enough to break through all these, that\ndivorce would take place, and in such cases the misery of the enforced\ncommon life would be removed without harm to any one. Of course, this\nfacility of divorce will entirely sweep away those odious suits for\n\"restitution of conjugal rights\" which occasionally disgrace our courts.\nIf a husband and wife are living apart, without legal sanction, it is\nnow open to either of them to bring a suit for restitution of conjugal\nrights. \"The decree of restitution pronounces for the marriage,\nadmonishes the respondent to take the petitioner home and treat him or\nher as husband or wife, and to render him or her conjugal rights; and,\nfurther, to certify to the court, within a certain time, that he or she\nhad done so; in default of which, an attachment for contempt of court\nwill be issued against the offending party\" (Broom's \"Comm.,\" vol. iii.,\np. 400). It is difficult to understand how any man or woman, endued with\nthe most rudimentary sense of decency, can bring such a suit, and, after\nhaving succeeded, can enforce the decision. We may hope that, as sexual\nmorality becomes more generally recognised, it will be seen that the\nessence of prostitution lies in the union of the sexes without mutual\nlove; when a woman marries for rank, for title, for wealth, she sells\nherself as veritably as her poorer and more unfortunate sister; love\nalone makes the true marriage, love which is loyal to the beloved, and\nis swayed by no baser motive than passionate devotion to its object.\nWhen no such love exists the union which is marriage by law is nothing\nhigher than legalised prostitution: the enforcement on an unwilling\nman or woman of conjugal rights is something even still lower, it is\nlegalised rape.\n\nIt may be hoped that when divorce is more easily obtainable, the\nmajority of marriages will be far happier than they are now. Half\nthe unhappiness of married life arises from the too great feeling of\nsecurity which grows out of the indissoluble character of the tie. The\nhusband is very different from the lover; the wife from the betrothed;\nthe ready attention, the desire to please, the eager courtesy, which\ncharacterised the lover disappear when possession has become certain;\nthe daintiness, the gaiety, the attractiveness which marked the\nbetrothed, are no longer to be seen in the wife whose position is\nsecure; in society a lover may be known by his attention to his\nbetrothed, a husband by his indifference to his wife. If divorce were\nthe result of jarring at home, married life would very rapidly change;\nhard words, harshness, petulance, would be checked where those who had\nwon the love desired to keep it, and attractiveness would no longer be\ndropped on the threshold of the home. Here, too, Shelley's words are\nwell worth weighing: \"The present system of restraint does no more, in\nthe majority of instances, than make hypocrites or open enemies. Persons\nof delicacy and virtue, unhappily united to those whom they find\nit impossible to love, spend the loveliest season of their life in\nunproductive efforts to appear otherwise than they are, for the sake of\nthe feelings of their partner, or the welfare of their mutual\noffspring; those of less generosity and refinement openly avow their\ndisappointment, and linger out the remnant of that union, which only\ndeath can dissolve, in a state of incurable bickering and hostility. The\nearly education of the children takes its colour from the squabbles\nof the parents; they are nursed in a systematic school of ill-humour,\nviolence and falsehood. Had they been suffered to part at the moment\nwhen indifference rendered their union irksome, they would have been\nspared many years of misery: they would have connected themselves more\nsuitably, and would have found that happiness in the society of more\ncongenial partners which is for ever denied them by the despotism of\nmarriage. They would have been separately useful and happy members of\nsociety, who, whilst united, were miserable, and rendered misanthropical\nby misery. The conviction that wedlock is indissoluble, holds out the\nstrongest of all temptations to the perverse; they indulge without\nrestraint in acrimony, and all the little tyrannies of domestic life,\nwhen they know that their victim is without appeal. If this conviction\nwere put on a rational basis, each would be assured that habitual\nill-temper would terminate in separation, and would check this vicious\nand dangerous propensity\" (Notes on \"Queen Mab\"). To those who had\nthought over the subject carefully, it was no surprise to hear\nMr. Moncure Conway say--in a debate on marriage at the Dialectical\nSociety--that in Illinois, U.S.A., where there is great facility of\ndivorce, the marriages were exceptionally happy. The reason was not far\nto seek.\n\nDealing elsewhere with this same injurious effect of overcertainty on\nthe relations of married people to each other, Mr. Moncure Conway writes\nas follows:--\"In England we smilingly walk our halls of Eblis, covering\nthe fatal wound; but our neighbours across the Channel are frank. Their\nmoralists cannot blot out the proverb that 'Marriage is the suicide of\nlove.' Is it any truer here than there that, as a general thing, the\ncourtesies of the courtship survive in the marriage? 'Who is that domino\nwalking with George?' asks Grisette No. 1, as, reported by _Charivari_.\n'Why,' returns Grisette No. 2, 'do you not walk behind them, and listen\nto what they say?' 'I have done so, and they do not say a word.' 'Ah,\nit is his wife.' But what might be George's feeling if he knew his\nwife might leave him some morning? 'If conserve of roses be frequently\neaten.' they say in Persia, 'it will produce a surfeit.' The thousands\nof husbands and wives yawning in each other's faces at this moment need\nnot go so far for their proverb. If it be well, as it seems to me to be,\nthat this most intimate relation between man and woman should be made as\ndurable as the object for which it is formed will admit, surely the bond\nshould be real to the last, a bond of kindliness, thoughtfulness, actual\nhelpfulness. So long as the strength of the bond lies simply in the\ndisagreeable concomitants of breaking it, so long as it is protected\nby the very iron hardness which makes it gall and oppress, what need\nis there of the reinforcement of it by the cultivation of minds, the\npreservation of good temper, and considerate behaviour? Love is not\nquite willing to accept the judge's mace for his arrow. When the law no\nlonger supplies husband or wife with a cage, each must look to find and\nmake available what resources he or she has for holding what has been\nwon. We may then look for sober second thoughts both before and after\nmarriage. Love, from so long having bandaged eyes, will be all eye.\nEvery real attraction will be stimulated when all depends upon real\nattraction. When the conserve becomes fatiguing, it will be refreshed\nby a new flavour, not by a certificate. From the hour when a thought\nof obligation influences either party to it, the marriage becomes a\nprostitution.\" (\"The Earthward Pilgrimage,\" pp. 289, 290, 291).\n\nA remarkable instance of the permanence of unions dissoluble at pleasure\nis to be found related by Robert Dale Owen, in an article entitled\n\"Marriage and Placement,\" which appeared in the _Free Inquirer_ of May\n28, 1831. It deals with the unions between the sexes in the Haytian\nRepublic, and the facts therein related are well worthy of serious\nattention. Mr. Owen writes:--\n\n\"Legal marriage is common in St. Domingo as elsewhere. Prostitution,\ntoo, exists there as in other countries. But this institution of\n_placement_ is found nowhere, that I know of, but among the Haytians.\n\n\"Those who choose to marry, are united, as in other countries, by a\npriest or magistrate. Those who do not choose to marry, and who\nequally shrink from the mercenary embrace of prostitution, are (in the\nphraseology of the island) _plac\u00e9s_: that is, literally translated,\n_placed._\n\n\"The difference between _placement_ and marriage is, that the former\nis entered into without any prescribed form, the latter with the usual\nceremonies: the former is dissoluble at a day's warning, the latter\nis indissoluble except by the vexatious and degrading formalities\nof divorce; the former is a tacit social compact, the latter a legal\ncompulsory one; in the former the woman gives up her name and her\nproperty; in the latter, she retains both.\n\n\"Marriage and placement are, in Hayti, equally respectable, or, if\nthere be a difference, it is in favour of placement; and in effect ten\nplacements take place in the island for one marriage. _P\u00e9tion_, the\nJefferson of Hayti, * sanctioned the custom by his approval and example.\n_Boyer_, his successor, the president, did the same; ** and by far\nthe largest portion of the respectable inhabitants have imitated their\npresidents, and are _placed_, not married. The children of the placed\nhave, in every particular, the same legal rights and the same standing\nas those born in wedlock.\n\n     * \"It may suffice, in illustration of P\u00e9tion's character, to\n     quote the touching inscription found on his tomb--'Here lies\n     P\u00e9tion, who enjoyed for twelve years absolute power, and\n     during that period never caused one tear to flow.'\"\n\n     ** \"Boyer's resolution in this matter is the more\n     remarkable, as he has been urged and pestered to submit to\n     the forms of marriage. Gr\u00e9goire, archbishop of Blois, and\n     who is well known for the perseverance and benevolence with\n     which he has, for a long series of years, advocated the\n     cause of the African race, wrote to the president of Hayti\n     in the most urgent terms, pressing upon him the virtue--the\n     necessity, for his salvation--of conforming to the sacrament\n     of marriage. To such a degree did the good old archbishop\n     carry his intermeddling officiousness, that when Boyer\n     mildly but firmly declined availing himself of his grace's\n     advice, a rupture was the consequence, greatly to the sorrow\n     of the president, who had ever entertained the greatest\n     respect and affection for his ecclesiastical friend.\"\n\n\"I imagine I hear from the clerical supporters of orthodoxy one general\nburst of indignation at this sample of national profligacy; at this\ncontemning of the laws of God and man; at this escape from the Church's\nceremonies and the ecclesiastical blessing. I imagine I hear the\nquestion sneeringly put, how long these same _respectable_ connections\ncommonly last, and how many dozen times they are changed in the course\nof a year.\n\n\"Gently, my reverend friends! it is natural you should find it wrong\nthat men and women dispense with your services and curtail your fees in\nthis matter. But it is neither just nor proper, that because no\nprayers are said, and no fees paid, you should denounce the custom as a\nprofligate one. Learn (as I did the other day from an intelligent\nFrench gentleman who had remained some time on the island)--learn, that\n_although there are ten times as many placed as married, yet there are\nactually fewer separations among the former than divorces among the\nlatter_. If constancy, then, is to be the criterion of morality, these\nsame profligate unions--that is, unions unprayed-for by the priest and\nunpaid for to him--are ten times as moral as the religion-sanctioned\ninstitution of marriage.\n\n\"But this is not all. It is a fact notorious in Hayti, that libertinism\nis far more common among the married than among the placed. The\nexplanatory cause is easily found. A placement secures to the consenting\ncouple no _legal_ right over one another. They remain together, as\nit were, on good behaviour. Not only positive tyranny or downright\nviragoism, but petulant peevishness or selfish ill humour, are\nsufficient causes of separation. As such, they are avoided with sedulous\ncare. The natural consequence is, that the unions are usually happy, and\nthat each being comfortable at home, is not on the search for excitement\nabroad. In indissoluble marriage, on the contrary, if the parties should\nhappen to disagree, their first jarrings are unchecked by considerations\nof consequences. A husband may be as tyrannical as to him seems good;\nhe remains a lord and master still; a wife may be as pettish as she\npleases; she does not thereby forfeit the rights and privileges of a\nwife. Thus, ill humour is encouraged by being legalized, and the natural\nresults ensue, alienation of the heart, and sundering of the affections.\nThe wife seeks relief in fashionable dissipation; the husband, perhaps,\nin the brutalities of a brothel.\n\n\"But, aside from all explanatory theories, the fact is, as I have stated\nit, viz.: that (taking the proportion of each into account) _there are\nten legal separations of the married, for one voluntary separation of\nthe placed_. If anyone doubts it, let him inquire for himself, and he\nwill doubt no longer.\n\n\"What say you to that fact, my reverend friends? How consorts it with\nyour favourite theory, that man is a profligate animal, a desperately\nwicked creature? that, but for your prayers and blessings, the earth\nwould be a scene of licentiousness and excess? that human beings remain\ntogether, only because you have helped to tie them? that there is no\nmedium between priestly marriage and unseemly prostitution?\n\n\"Does this fact open your eyes a little on the real state of things to\nwhich we heterodox spirits venture to look forward? Does it assist in\nexplaining to you how it is that we are so much more willing than you to\nentrust the most sacred duties to moral rather than legal keeping?\n\n\"You cannot imagine that a man and a woman, finding themselves suited\nto each other, should agree, without your interference, to become\ncompanions; that he should remove to her plantation, or she to his, as\nthey found it most convenient; that the connection should become known\nto their friends without the agency of banns, and be respected, even\nthough not ostentatiously announced in a newspaper. Yet all this happens\nin Hayti, without any breach of propriety, without any increase of\nvice; but, on the contrary, much to the benefit of morality, and the\ndiscouragement of prostitution. It happens among the white as well as\nthe coloured population; and the president of the country gives it his\nsanction, in his own person.\n\n\"Do you still ask me--accustomed as you are to consider virtue the\noffspring of restrictions--do you still ask me, what the checks are that\nproduce and preserve such a state of things? I reply, good feeling\nand public opinion. Continual change is held to be disreputable; where\nsincere and well-founded affection exists, it is not desired; and as\nthere is no pecuniary inducement in forming a placement, these voluntary\nunions are seldom ill-assorted.\"\n\nWhere social anarchy is feared, facts like these are worth pages of\nargument. If the Haytians are civilised enough for this more moral kind\nof marriage, why should Europeans be on a lower level? For it should not\nbe forgotten that the experiment was tried in St. Domingo under great\ndisadvantages, and these unlegalised unions have yet proved more\npermanent than those tied with all due formality and tightness.\n\nIt may be urged: if divorce is to be so easily attainable, why\nshould there be a marriage contract at all? Both as regards the pair\nimmediately concerned, and as regards the children who may result from\nthe union, a clear and definite contract seems to me to be eminently\ndesirable. It is not to be wished that the union of those on whom\ndepends the next generation should be carelessly and lightly entered\ninto; the dignity and self-recollection which a definite compact implies\nare by no means to be despised, when it is remembered how grave and\nweighty are the responsibilities assumed by those who are to give to the\nState new citizens, and to Humanity new lives, which must be either a\nblessing or a curse. But the dignity of such a course is not its only,\nnor, indeed, its main, recommendation. More important is the absolute\nnecessity that the conditions of the union of the two adult lives should\nbe clearly and thoroughly understood between them. No wise people enter\ninto engagements of an important and durable character without a written\nagreement; a definite contract excludes all chance of disagreement as\nto the arrangements made, and prevents misunderstandings from arising. A\nverbal contract may be misunderstood by either party; lapse of time may\nbring about partial forgetfulness; slight disagreements may result in\ngrave quarrels. If the contract be a written one, it speaks for itself,\nand no doubt can arise which cannot be reasonably settled. All this is\nreadily seen where ordinary business partnerships are concerned, but\nsome--unconsciously rebounding from the present immoral system, and\nplunging into the opposite extreme--consider that the union in marriage\nof man and woman is too tender and sacred a thing to be thus dealt with\nas from a business point of view. But it must be remembered that while\nlove is essential to true and holy marriage, marriage implies more than\nlove; it implies also a number of new relations to the outside\nworld which--while men and women live in the world--cannot be wholly\ndisregarded. Questions of house, of money, of credit, &c., necessarily\narise in connection with the dual home, and these cannot be ignored by\nsensible men and women. The contract does not touch with rude hands\nthe sensitive plant of love; it concerns itself only with the garden\nin which the plant grows, and two people can no more live on love alone\nthan a plant can grow without earth around its roots. A contract which\nremoves occasions of disagreement in business matters shelters and\nprotects the love from receiving many a rude shock. \"Society will ere\nlong,\" said Mr. Conway, \"be glad enough to assimilate contracts between\nman and woman to contracts between partners in business. Then love will\ndispense alike with the bandage on its eyes and the constable's aid.\"\nSome pre-nuptial arrangement seems necessary which shall decide as to\nthe right of inheritance of the survivor of the married pair. As common\nproperty will grow up during the union, such property should pass to\nthe survivor and the children, and until some law be made which shall\nprevent parents from alienating from their children the whole of their\nproperty, a provision guarding their inheritance should find its place\nin the proposed deed. A definite marriage contract is also desirable for\nthe sake of the children who may proceed from the union. Society has a\nright to demand from those who bring new members into it, some\ncontract which shall enable it to compel them to discharge their\nresponsibilities, if they endeavour to avoid them. If all men and women\nwere perfect, no contract would be necessary, any more than it would be\nnecessary to have laws against murder and theft; but while men and women\nare as they are, some compulsive power against evil-doers must be held\nin reserve by the law. Society is bound to guard the interests of the\nhelpless children, and this can only be done by a clear and definite\narrangement which makes both father and mother responsible for the lives\nthey have brought into existence, and which shows the parentage in a\nfashion which could go into a law-court should any dispute arise.\nAgain, if there were no contract, in whom would the guardianship of the\nchildren be vested, in case of wrongdoing of either parent, of death,\nor of separation? Suppose a brutal father: his wife leaves him and takes\nthe children with her; how is she to keep them if he claims and takes\nthem? If she has the legal remedy of divorce, the Court awards her the\nguardianship and she is safe from molestation. If a wife elope,\ntaking the children with her, is the father to have no right to the\nguardianship of his sons and daughters, but to remain passive while they\npass under the authority of another man? Application for divorce would\nguard him from such a wrong. If the parents separate, and both desire to\nhave the children, how can such contest be decided, save by appeal to\nan impartial law? Marriage, as before urged, is a partnership, and where\ncommon duties, common interests, and common responsibilities grow up,\nthere it is necessary that either party shall have some legal means of\nredress in case of the wrongdoing of the other.\n\nTo those who, on the other hand, object to facility of divorce being\ngranted at all, it may fairly be asked that they should not forget\nthat to place divorce within the reach of people, is not the same as\ncompelling them to submit to it. Those who prefer to regard marriage as\nindissoluble could as readily maintain the indissolubility of their own\nwedded tie under a law which permitted divorce, as they can do at the\npresent time. But those who think otherwise, and are unhappy in their\nmarriages, would then be able to set themselves free. No happy marriage\nwould be affected by the change, for the attainability of divorce would\nonly be welcomed by those whose marriage was a source of misery and of\ndiscord; the contented would be no less content, while the unhappy would\nbe relieved of their unhappiness; thus the change would injure no one,\nwhile it would benefit many.\n\nIt is a pity that there is no way of obtaining the general feminine\nview of the subject of marriage and divorce; women who study, who form\nindependent opinions are--so far as my experience goes--unanimous in\ntheir desire to see the English laws altered; advanced thinkers of both\nsexes are generally, one might say universally, in favour of change.\nTo those who think that women, if polled to-morrow, would vote for\na continuance of the present state of things, may be recommended the\nfollowing passage from Mrs. Mill: \"Women, it is said, do not desire,\ndo not seek what is called their emancipation. On the contrary, they\ngenerally disown such claims when made in their behalf, and fall with\n_acharnement_ upon any one of themselves who identifies herself with\ntheir common cause. Supposing the fact to be true in the fullest extent\never asserted, if it proves that European women ought to remain as they\nare, it proves exactly the same with respect to Asiatic women; for\nthey too, instead of murmuring at their seclusion, and at the restraint\nimposed upon them, pride themselves on it, and are astonished at the\neffrontery of women who receive visits from male acquaintances, and are\nseen in the streets unveiled. Habits of submission make men as well\nas women servile-minded. The vast population of Asia do not desire or\nvalue, probably would not accept, political liberty, nor the savages\nof the forest, civilization; which does not prove that either of those\nthings is undesirable for them, or that they will not, at some future\ntime, enjoy it. Custom hardens human beings to any kind of degradation,\nby deadening the part of their nature which would resist it. And the\ncase of women is, in this respect, even a peculiar one, for no other\ninferior caste that we have heard of have been taught to regard\ntheir degradation as their honour.\" Mr. Conway considers that changed\ncircumstances would rapidly cause women to be favourable to the proposed\nalteration: \"Am I told,\" he remarks, \"that woman dreads the easy\ndivorce? Naturally, for the prejudices and arrangements of society\nhave not been adapted to the easy divorce. Let her know that, under the\nchanged sentiment which shall follow changed law, she will meet with\nsympathy where now she would encounter suspicion; let her know that she\nwill, if divorced from one she loves not, have only her fair share of\nthe burdens entailed by the original mistake; and she who of all persons\nsuffers most if the home be false will welcome the freer marriage\" (\"The\nEarthward Pilgrimage,\" p. 289).\n\nBoth in theory and in practice advanced thinkers have claimed facility\nof divorce. John Milton, in his essay on \"Divorce,\" complains that \"the\nmisinterpreting of Scripture... hath changed the blessing of matrimony\nnot seldom into a familiar and co-inhabiting mischiefe; at least into\na drooping and disconsolate household captivitie, without refuge or\nredemption\" (p. 2), and in his Puritan fashion he remarks that because\nof this \"doubtles by the policy of the devill that gracious ordinance\nbecomes insupportable,\" so that men avoid it and plunge into debauchery.\nArguing that marriage is not to be regarded merely as a legitimate kind\nof sexual intercourse, but rather as a union of mind and feeling, Milton\nsays: \"That indisposition, unfitness, or contrariety of mind, arising\nfrom a cause in nature unchangable, hindring and ever likely to hinder\nthe main benefits of conjugall society, which are solace and peace, is a\ngreater reason of divorce than natural frigidity, especially if there\nbe no children, and that there be mutual consent\" (p. 5). Luther, before\nMilton, held the same liberal views. Mary Wolstonecraft acted on the\nsame theory in her own life, and her daughter was united to the poet\nShelley while Shelley's first wife was living, no legal divorce having\nsevered the original marriage. Richard Carlile's second marriage was\nequally illegal. In our own days the union of George Henry Lewes and\nGeorge Eliot has struck the key-note of the really moral marriage. Mary\nWolstonecraft was unhappy in her choice, but in all the other cases the\nhappiest results accrued. It needs considerable assurance to brand\nthese great names with immorality, as all those must do who denounce as\nimmoral unions which are at present illegal.\n\nIn the whole of the arguments put forward in the above pages there\nis not one word which is aimed at real marriage, at the faithful and\ndurable union of two individuals of opposite sexes--a union originated\nin and maintained by love alone. Rather, to quote Milton once more, is\nreverence for marriage the root of the reform I urge: he who \"thinks\nit better to part than to live sadly and injuriously to that cherfull\ncovnant (for not to be belov'd and yet retain'd, is the greatest injury\nto a gentle spirit), he I say who therefore seeks to part, is one who\nhighly honours the married life, and would not stain it; and the reasons\nwhich now move him to divorce, are equal to the best of those that\ncould first warrant him to marry\" (p. 10). In the advocacy of such views\nmarriage is elevated, not degraded; no countenance is given to those who\nwould fain destroy the idea of the durable union between one man and\none woman. Monogamy appears to me to be the result of civilization, of\npersonal dignity, of cultured feeling; loyalty of one man to one woman\nis, to me, the highest sexual ideal. The more civilized the nature the\nmore durable and exclusive does the marriage union become; in the lower\nranges of animal life difference of sex is enough to excite passion:\nthere is no individuality of of choice. Among savages it is much the\nsame: it is the female, not the woman, who is loved, although the savage\nrises higher than the lower brutes, and is attracted by individual\nbeauty. The civilised man and woman need more than sex-difference and\nbeauty of form; they seek satisfaction for mind, heart, and tastes as\nwell as for body; each portion the complex nature requires its answer\nin its mate. Hence it arises that true marriage is exclusive, and\nthat prostitution is revolting to the noble of both sexes, since in\nprostitution love is shorn of his fairest attributes, and passion, which\nis only his wings, is made the sole representative of the divinity.\nThe fleeting connections supposed by some Free Love theorists are\nsteps backward and not forward; they offer no possibility of home,\nno education of the character, no guarantee for the training of the\nchildren. The culture both of father and of mother, of the two\nnatures of which its own is the resultant, is necessary to the healthy\ndevelopment of the child; it cannot be deprived of either without injury\nto its full and perfect growth.\n\nBut just as true marriage is invaluable, so is unreal marriage\ndeteriorating in its effects on all concerned: therefore, where mistake\nhas been made, it is important to the gravest interests of society\nthat such mistake should be readily remediable, without injury to the\ncharacter of either of those concerned in it. Freed from the union which\ninjures both, the man and woman may seek for their fit helpmeets, and in\nhappy marriages may become joyful servants of humanity, worthy parents\nof the citizens of to-morrow. Men and women must know conjugal, before\nthey can know true parental, love; each must see in the child the\nfeatures of the beloved ere the perfect circle of love can be complete.\nHusband and wife bound in closest, most durable and yet most eager\nunion, children springing as flowers from the dual stem of love, home\nwhere the creators train the lives they have given--such will be the\nmarriage of the future. The loathsome details of the Divorce Court will\nno longer pollute our papers; the public will no longer be called in to\ngloat over the ruins of desecrated love; society will be purified\nfrom sexual vice; men and women will rise to the full royalty of their\nhumanity, and hand in hand tread life's pathways, trustful instead of\nsuspicious, free instead of enslaved, bound by love instead of by law.\n\nPrinted by Annie Besant and Charles Bradlaugh,\n\n28, Stone-cutter Street, London, E.C.","title":"Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform","tradition":"philosophy-ethics","translated_text":null,"word_count":24665}