Part 4

It is sometimes further urged by those who like "a man to be master in his own house," that unless women forfeited their property in marriage, there would be constant discord in the home. Surely the contrary effect would be produced. Mrs. Mill well says, in the Essay before quoted from: "The highest order of durable and happy attachments would be a hundred times more frequent than they are, if the affection which the two sexes sought from one another were that genuine friendship which only exists between equals in privileges as in faculties." Nothing is so likely to cause unhappiness as the tendency to tyrannize, generated in the man by authority, and the tendency to rebel, generated in the woman by enforced submission. No grown person should be under the arbitrary power of another; dependence is touching in the infant because of its helplessness; it is revolting in the grown man or woman because with maturity of power should come dignity of self-support.

In a brilliant article in the _Westminster Review_ (July, 1874) the writer well says: "Would it not, to begin with, be well to instruct girls that weakness, cowardice, and ignorance, cannot constitute at once the perfection of womankind and the imperfection of mankind?" It is time to do away with the oak and ivy ideal, and to teach each plant to grow strong and self-supporting. Perfect equality would, under this system, be found in the home, and mutual respect and deference would replace the alternate coaxing and commandment now too often seen. Equal rights would abolish both tyranny and rebellion; there would be more courtesy in the husband, more straightforwardness in the wife. Then, indeed, would there be some hope of generally happy marriages, but, as has been eloquently said by the writer just quoted, "till absolute social and legal equality is the basis of the sacred partnership of marriage (the division of labours and duties in the family, by free agreement, implying no sort of inequality), till no superiority is recognized on either side but that of individual character and capacity, till marriage is no longer legally surrounded with penalties on the woman who enters into it as though she were a criminal--till then the truest love, the truest sympathy, the truest happiness in it, will be the exception rather than the rule, and the real value of this relation, domestic and social, will be fatally missed." That some marriages are happy, in spite of the evil law, no one will deny; but these are the exception, not the rule. The law, as it is, directly tends to promote unhappiness, and its whole influence on the relations of the sexes is injurious. To quote Mrs. Mill once more: "The influence of the position tends eminently to promote selfishness. The most insignificant of men, the man who can obtain influence or consideration nowhere else, finds one place where he is chief and head. There is one person, often greatly his superior in understanding, who is obliged to consult him, and whom he is not obliged to consult. He is judge, magistrate, ruler, over their joint concerns; arbiter of all differences between them.... His is now the only tribunal, in civilized life, in which the same person is judge and party. A generous mind in such a situation makes the balance incline against its own side, and gives the other not less, but more, than a fair equality, and thus the weaker side may be enabled to turn the very fact of dependence into an instrument of power, and in default of justice, take an ungenerous advantage of generosity; rendering the unjust power, to those who make an unselfish use of it, a torment and a burthen. But how is it when average men are invested with this power, without reciprocity and without responsibility? Give such a man the idea that he is first in law and in opinion--that to will is his part, and hers to submit--it is absurd to suppose that this idea merely glides over his mind, without sinking into it, or having any effect on his feelings and practice. If there is any self-will in the man, he becomes either the conscious or unconscious despot of his household. The wife, indeed, often succeeds in gaining her objects, but it is by some of the many various forms of indirectness and management." When marriage is as it should be, there will be no superior and inferior by right of position; but men and women, whether married or unmarried, will retain intact the natural rights "belonging to every Englishman."

In dealing with the wrongs of the wife, according to the present English marriage laws, the wrongs of the mother must not be omitted. The unmarried mother has a right to her child; the married mother has none: "A father is entitled to the custody of his child until it attains the age of sixteen, unless there be some sufficient reason to the contrary" (Russell "On Crimes," vol. i., p. 898). The "sufficient reason" is hard to find in most cases, as the inclination of the Courts is to make excuses for male delinquencies, and to uphold every privilege which male Parliaments have conferred on husbands and fathers. In Shelley's case the father was deprived of the custody of his children, but here religious and political heresy caused a strong bias against the poet. The father's right to the custody of legitimate children is complete; the mother has no right over them as against his; he may take them away from her, and place them in the care of another woman, and she has no redress; she may apply to Chancery for access to them at stated times, but even this is matter of favour, not of right. The father may appoint a guardian in his will, and the mother, although the sole surviving parent, has no right over her children as against the stranger appointed by the dead father. If the parents differ in religion, the children are to be brought up in that of the father, whatever agreement may have been made respecting them before marriage; if the father dies without leaving any directions, the children will be educated in his religion; he can, if he chooses, allow his wife to bring them up in her creed, but she can only do so by virtue of his permission. Thus the married mother has no rights over her own children; she bears them, nurses them, toils for them, watches over them, and may then have them torn from her by no fault of her own, and given into the care of a stranger. People talk of maternal love, and of woman's sphere, of her duty in the home, of her work for her babes, but the law has no reverence for the tie between mother and child, and ignores every claim of the mother who is also a. wife. The unmarried mother is far better off; she has an absolute right to the custody of her own children; none can step in and deprive her of her little ones, for the law respects the maternal tie when no marriage ceremony has "legitimated" it. Motherhood is only sacred in the eye of the law when no legal contract exists between the parents of the child.

Looking at a woman's position both as wife and mother, it is impossible not to recognise the fact that marriage is a direct disadvantage to her. In an unlegalised union the woman retains possession of all her natural rights; she is mistress of her own actions, of her body, of her property; she is able to legally defend herself against attack; all the Courts are open to protect her; she forfeits none of her rights as an Englishwoman; she keeps intact her liberty and her independence; she has no master; she owes obedience to the laws alone. If she have a child, the law acknowledges her rights over it, and no man can use her love for it as an engine of torture to force her into compliance with his will. Two disadvantages, however, attach to unlegalised unions; first, the woman has to face social disapprobation, although of late years, as women have been coming more to the front, this difficulty has been very much decreased, for women have begun to recognise the extreme injustice of the laws, and both men and women of advanced views have advocated great changes in the marriage contract. The second disadvantage is of a more serious character: the children proceeding from an unlegalised union have not the same rights as those born in legal wedlock, do not inherit as of right, and have no legal name. These injustices can be prevented by care in making testamentary dispositions protecting them, and by registering the surname, but the fact of the original unfairness still remains, and any carelessness on the parents' part will result in real injury to the child. It must also be remembered that the father, in such a case, has no rights over his children, and this is as unfair to him as the reverse is to the mother. As the law now is, both legal and illegal unions have disadvantages connected with them, and there is only a choice between evils; these evils are however, overwhelmingly greater on the side of legal unions as may be seen by the foregoing sketch of the disabilities imposed on women by marriage. So great are these that a wise and self-respecting woman may well hesitate to enter into a contract of marriage while the laws remain as they are, and a man who really honours a woman must reluctantly subject her to the disadvantages imposed on the English wife, when he asks her to take him as literally her master and, owner. The relative position is as dishonouring to the man as it is insulting to the woman, and good men revolt against it as hotly as do the most high-spirited women. In happy marriages all these laws are ignored, and it is only at rare intervals that the married pair become conscious of their existence. Some argue that this being so, small practical harm results from the legal injustice; it would be as sensible to argue that as honest people do not want to thieve, it would not be injurious to public morality to have laws on the statute book legalising garotting. Laws are made to prevent injustice being committed with impunity, and it is a curious reversal of every principle of legislation to make laws which protect wrongdoing, and which can only be defended on the ground that they are not generally enforced. If the English marriage laws were universally carried out, marriage would not last for a month in England; as it is, vast numbers of women suffer in silence, thousands rebel and break their chains, and on every side men and women settle down into a mutual tolerance which is simply an easy-going indifference, accepted as the only possible substitute for the wedded happiness which they once dreamed of in youth, but have failed to realise in their maturity.

Things being as they are, what is the best action for those to take who desire to see a healthier and purer sexual morality--a morality founded upon equal rights and diverse duties harmoniously discharged? The first step is to agitate for a reform of the marriage laws by the passing of such an Act of Parliament as is alluded to above. It would be well for some of those who desire to see such a legislative change to meet and confer together on the steps to be taken to introduce such a Bill into the House of Commons. If thought necessary, a Marriage Reform League might be established, to organize the agitation and petitioning which are _de rigueur_, in endeavouring to get a bill passed through the popular House. Side by side with this effort to reform marriage abuses, should go the determination not to contract a legal marriage while the laws remain as immoral as they are. It is well known that the Quakers persistently refused to go through the legal English form of marriage, and quietly made their declarations according to their own conscience, submitting to the disadvantages entailed on them by the illegality, until the legislature formally recognised the Quaker declaration as a legal form of marriage. Why should not we take a leaf out of the Quakers' book, and substitute for the present legal forms of marriage a simple declaration publicly made? We should differ from the Quakers in this, that we should not desire that such declaration should be legalised while the marriage laws remain as they are; but as soon as the laws are moralised, and wives are regarded as self-possessing human beings, instead of as property, then the declaration may, with advantage, seek the sanction of the law. It is not necessary that the declaration should be couched in any special form of words; the conditions of the contract ought to be left to the contracting parties. What is necessary is that it should be a definite contract, and it is highly advisable that it should be a contract in writing--a deed of partnership, in fact, which should--when the law permits--be duly stamped and registered. The law, while it does not dictate the conditions of the contract, should enforce those conditions so long as the contract exists; that is, it should interfere just as far as it does in other contracts, and no further; the law has no right to dictate the terms of the marriage contract; it is for the contracting parties to arrange their own affairs as they will. While, however, the province of the law should be thus limited in respect to the contracting parties, it has a clear right to interfere in defence of the interests of any children who may be born of the marriage, and to compel the parents to clothe, feed, house, and educate them properly: this duty should, if need be, be enforced on both parents alike, and the law should recognise and impose the full discharge of the responsibilities of parents towards those to whom they have given life. No marriage contract should be recognised by the law which is entered into by minors; in this, as in other legal deeds, there should be no capability to contract until the contracting parties are of full age. A marriage is a partnership, and should be so regarded by the law, and it should be the aim of those who are endeavouring to reform marriage, to substitute for the present semi-barbarous laws a scheme which shall be sober, dignified, and practicable, and which shall recognise the vital interest of the community in the union of those who are to be the parents of the next generation.

Such a deed as I propose would have no legal force at the present time; and here arises a difficulty: might not a libertine take advantage of this fact to desert his wife and possibly leave her with a child, or children, on her hands; to the cold mercy of society which would not even recognize her as a married woman? Men who, under the present state of the law, seduce women and then desert them, would probably do the same if they had gone through a form of marriage which had no legally binding force; but such men are, fortunately, the exception, not the rule, and there is no-reason to apprehend an increase of their number, owing to the proposed action on the part of a number of thoughtful men and women who are dissatisfied with the present state of the law, but who have no wish to plunge into debauchery. I freely acknowledge that it is to be desired that marriage should be legally binding, and that a father should be compelled to do his share towards supporting his children; but while English law imposes such a weight of disability on a married woman, and leaves her utterly in the power of her husband, however unprincipled, oppressive, and wicked he may be--short of legal crime--I take leave to think that women have a fairer chance of happiness and comfort in an unlegalised than in a legal marriage. There is many an unhappy woman who would be only too glad if the libertine who has legally married her would desert her, and leave her, even with the burden of a family, to make for herself and her children, by her own toil, a home which should at least be pure, peaceful, and respectable.

Let me, in concluding this branch of the subject, say a word to those who, agreeing with Marriage Reform in principle, fear to openly put their theory into practice. Some of these earnestly hope for change, but do not dare to advocate it openly. Reforms have never been accomplished by Reformers who had not the courage of their opinions. If all the men and women who disapprove of the present immoral laws would sturdily _and openly_ oppose them; if those who desire to unite their lives, but are determined not to submit to the English marriage laws, would publicly join hands, making such a declaration as is here suggested, the social odium would soon pass away, and the unlegalised marriage would be recognised as a dignified and civilized substitute for the old brutal and savage traditions. Most valuable work might here be done by men and women who--happy in their own marriages--yet feel the immorality of the law, and desire to see it changed. Such married people might support and strengthen by their open countenance and friendship those who enter into the unlegalised public unions here advocated; and they can do what no one else can do so well: they can prove to English society--the most bigoted and conservative society in the world--that advocacy of change in the marriage laws does not mean the abolition of the home. The value of such co-operation will be simply inestimable, and will do more than anything else to render the reform practicable. Courage and quiet resolution are needed, but, with these, this great social change may safely and speedily be accomplished.

II. DIVORCE.

|Any proposed reforms in the marriage laws of England would be extremely imperfect, unless they dealt with the question of divorce. Marriage differs from all ordinary contracts in the extreme difficulty of dissolving it--a difficulty arising from the ecclesiastical character which has been imposed upon it, and from the fact that it has been looked upon as a religious bond instead of as a civil contract. Until the time of the Reformation, marriage was regarded as a sacrament by all Christian people, and it is so regarded by the majority of them up to the present day. When the Reformers advocated divorce, it was considered as part of their general heresy, and as proof of the immoral tendency of their doctrines. Among Roman Catholics the sacramental--and therefore the indissoluble--character of marriage is still maintained, but among Protestants divorce is admitted, the laws regulating it varying much in different countries.

In England--owing to the extreme conservatism of the English in all domestic matters--the Protestant view of marriage made its way very slowly. Divorce remained within the jurisdiction of ecclesiastical courts, and these granted only divorces _a mensâ et thoro_ in cases where cruelty or adultery was pleaded as rendering conjugal life impossible. These courts never granted divorces a _vinculo matrimonii_, which permit either--or both--of the divorced persons to contract a fresh marriage, except in cases where the marriage was annulled as having been void from the beginning; they would only grant a separation "from bed and board," and imposed celibacy on the divorced couple until one of them died, and so set the other free. There was indeed a report drawn up by a commission, under the authority of 3 and 4 Edward VI., c. ii., which was intended as a basis for the re-modelling of the marriage laws, but the death of the king prevented the proposed reform; the ecclesiastical courts remained as they were, and absolute divorce was unattainable. Natural impatience of a law which separated unhappy married people only to impose celibacy on them, caused occasional applications to be made to Parliament for relief, and a few marriages were thus dissolved under exceptional circumstances. In 1701, a bill was obtained, enabling a petitioner to re-marry, and in 1798, Lord Loughborough's "Orders" were passed. By these orders, no petition could be presented to the House, unless an official copy of the proceedings, and of a definitive sentence of divorce, _a mensâ et thoro_, in the ecclesiastical courts, was delivered on oath at the bar of the House at the same time (Broom's "Comm.," vol. iii. p. 396). After explaining the procedure of the ecclesiastical court, Broom goes on: "A definitive sentence of divorce _a mensâ et thoro_ being thus obtained, the petitioner proceeded to lay his case before the House of Lords in accordance with the Standing Orders before adverted to, and, subject to his proving the case, he obtained a bill divorcing him from the bonds of matrimony, and allowing him to marry again. The provisions of the bill, which was very short, were generally these:--1. The marriage was dissolved. 2. The husband was empowered to marry again. 3. He was given the rights of a husband as to any property of an after-taken wife. 4. The divorced wife was deprived of any right she might have as his widow. 5. Her after-acquired property was secured to her as against the husband from whom she was divorced. In the case of the wife obtaining the bill, similar provisions were made in her favour" (p. 398). In 1857, an Act was passed establishing a Court for Divorce and Matrimonial Causes, and thus a great step forward was taken: this court was empowered to grant a judicial separation--equivalent to the old divorce _a mensâ et thoro_--in cases of cruelty, desertion for two years and upwards, or adultery on the part of the husband; it was further empowered to grant an absolute divorce with right of re-marriage--equivalent to the old divorce _a vinculo matrimonii_--in cases of adultery on the part of the wife, or of, on the part of the husband, incestuous adultery, or of bigamy with adultery, or of rape, or an unnatural crime, or of adultery coupled with such cruelty as would formerly have entitled her to a divorce _a mensâ et thoro_, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards (Broom, vol. i., p. 542). The other powers held by the court need not now be specially dwelt upon.

The first reform here needed is that husband and wife should be placed on a perfect equality in asking for a divorce: at present if husband and wife be living apart, no amount of adultery on the husband's part can release the wife; if they be living together, a husband may keep as many mistresses as he will, and, provided that he carefully avoid any roughness which can be construed into legal cruelty, he is perfectly safe from any suit for dissolution of marriage. Adultery alone, when committed by the husband, is not ground for a dissolution of marriage; it must be coupled with some additional offence before the wife can obtain her freedom. But the husband can obtain a dissolution of marriage for adultery committed by the wife, and he can further obtain money damages from the co-respondent, as a _solatium_ to his wounded feelings. Divorce should be absolutely equal as between husband and wife: adultery on either side should be sufficient, and if it be thought necessary to join a male co-respondent when the husband is the injured party, then it should also be necessary to join a female co-respondent where the wife brings the suit. The principle, then, which should be laid down as governing all cases of divorce, is that no difference should be made in favour of either side; whatever is sufficient to break the marriage in the one case should be sufficient to break it in the other.