MARRIAGE
Hail, wedded Love, mysterious law, true source
Of human offspring.
_Paradise Lost_, JOHN MILTON.
Lord Bacon, who as Lord Chancellor really ought to have known better,
sought to set youthful conceit against marriage by reminding the
budding heroes of his day that “he that hath wife and children
hath given hostages to fortune, for they are impediments to great
enterprises, either of virtue or mischief.”
It is a wholly superficial saying in its conclusion. From the days
of Solomon--who appears to hold the world matrimonial record--until
to-day, you will find that the bachelor has had no sort of monopoly of
great enterprises.
The Benedicts of Bacon’s day had their answer pat from the playhouse.
“No; the world must be peopled. When I said I would die a bachelor I
did not think I should live till I were married.” The Man in the Street
has more sense than the philosopher, and the world has long recognized
that whether the result be virtue or mischief, marriage is in itself a
great enterprise.
Would that some philosopher could tell us with certainty of the origins
of marriage. The Chinese, who know most things, have it on record that
marriage was decreed by that wise Emperor Fou Hi; the Egyptians knew
that it was ordained by Menes; and even the Laplanders have their own
quaint sagas telling them all about it. No ancient nation is so poor in
mythical lore that it cannot produce its own particular legend about
the origin of this necessary and universal institution.
The scientist of to-day leaves these old-world stories to the desultory
reader. He observes Nature and speculates as boldly as the narrowest
of us as to the nativity of marriage. One eminent and enthusiastic
ornithologist, in admiration for the bird life he delights to study,
declares that “real, genuine marriage can only be found among the
birds.”
Certainly the domestic demeanour of the yellow-beaked blackbird
collecting materials for his house, providing his wife and children
with food, protecting them from danger and even on occasion sitting
on the nest himself to give his wife an evening out, may serve as an
example of married righteousness to the suburban husband in whose holly
bush the young couple have built.
Another learned writer is equally cocksure that marriage was
transmitted to man from some ape-like ancestor. He notes with
approbation old man gorilla wandering gipsy-like through the forest
with his wife and child, building a rough nest for them in some
inaccessible tree where they may safely pass the night, whilst the old
man himself sits with his back to the trunk, asleep with one eye open
on the watch for the nocturnal leopard. In all these things our learned
one discovers that the higher monkeys possess the rudiments of human
institutions.
Whether we accept the teachings of myth or science, we can say with
some certainty that there was never a period in the history of human
development when some form of marriage has not existed, though the
origin of the institution seems to be lost in the mists of time.
When, however, we come into the historical ages and study the marriage
systems of early races, we find that as among the animals so with
mankind the root idea of marriage is to protect the family. As
Westermarck says: “Marriage and family are thus intimately connected
with each other: it is for the benefit of the young that male and
female continue to live together.” Indeed in the earlier stages of
civilization, among the Eastern Greenlanders, the Ainos of Yesso and
others, the wife often remained at her father’s house until she had
a child, when her husband took her away and the married life really
commenced.
Nature having made up her mind that the interests of the children
depend upon the sanctity of family life and that the success of family
life depends in a great measure upon the wise regulation of marriage,
any human law of marriage will of necessity be judged by its capacity
to protect and maintain the highest interests and best happiness of
the children and the family.
The important matters in marriage that have come to be slowly
recognized by civilized people are that there should be full liberty
of choice between the parties, and that especially the consent on the
part of the woman should be free and subject to no duress; that the
matrimonial state should be safeguarded by legal regulations so that
it may not be lightly entered upon and the parties may not be induced
to marriage by fraud or mistake; lastly, a valid marriage must be
permanently upheld by the Law until the conduct or circumstances of the
contracting parties become such that it is to the best interests of
themselves, the children and the community that the marriage should be
set aside.
I like to say a good word for the Law when I honestly can, and it is
to its credit for sanity and common sense that it has always been a
great upholder of marriage, and that in its attitude towards Woman in
the actual contract of marriage--I am not writing about divorce or
other results of matrimony, but merely about the contract of marriage
itself--here I make bold to say the Law has developed sensibly and
justly.
The Law seems to have understood what I take to be a natural fact
of life--that the family is the unit of our social and political
existence. I do not claim that the Law has not made its blunders in
construing the contract of marriage too strictly, but at the back of
its mind, so to speak, there has been a wholesale desire to maintain
the sanctity and continuity of family life.
For it ought to be remembered that in English Law marriage is not
merely a contract between two individuals. As Dr. Johnson wisely
said: “To the contract of marriage, besides the Man and the Woman,
there is a third party--Society.” That is a lot sounder than many of
the old gentleman’s best tea-table sayings, and for us it has the
recommendation of being good Law. Lawyers have always agreed that
marriage was in the nature of an institution in which the State has an
active interest.
It is fair to the Law, too, to remember that it has for many centuries
been ahead of the thoughts and actions of mankind on the question of
the right to freedom of consent to marriage on the part of Woman.
Although parents and guardians have rights to forbid the marriage of
minors, the absolute right of a woman of full age to decide of her own
free-will whether or not she shall marry has been for many generations
strenuously upheld by our Law.
The old idea of the rights of the Roman _paterfamilias_ and the early
Saxon father died hard, and all the best comedies of the seventeenth
and eighteenth centuries turn on lovers bullied by their parents to
give up their legal rights to exercise their free will in the choice
of wife or husband. Sir Anthony Absolute was only a genial parody of
the father of his day. When his son demands to know the name of the
lady, Sir Anthony turns on him with “What’s that to you, sir? Come,
give me your promise to love and to marry her directly;” and doubtless
in 1775 the touch of exaggeration throughout this scene between father
and son was not too extravagant to destroy the sense of the real comedy
of life. To-day it can only be for us the comedy of the manners of an
extinct generation. It would be almost impossible to write a genuine
comedy of the present day on this ancient theme, because society
and human parents have attained to the knowledge that the Law in
maintaining the right of young people to give or withhold their consent
to a marriage union is on the whole a wise and just Law and brings
about better results than the old-fashioned arbitrary decisions of
parents and guardians as to the marriages of their children and wards.
The contract between the parties is a simple if momentous one. It is a
civil contract between one man and one woman to unite under the Law for
life, with obligations each to the other to carry out the duties and
responsibilities of matrimony.
The Law sternly forbids polygamous marriage, and enforces regulations
to witness and record the contract, thereby preventing informal and
invalid marriages, by which in old days women were greatly wronged.
Moreover, in cases where a form of marriage has been gone through, or
where a man and woman have lived in apparent marriage, the Law favours
marriage by presuming that the status exists, and requires the party
attacking the marriage to bring strong and satisfactory evidence to
displace the presumption. The Law, therefore, is just to Woman in so
far as it endeavours to insist upon the certainty and security of her
marriage.
In the same way, the Law will not permit contracts to be made
restraining persons from marriage or providing in advance for the
future separation of married persons, for these things tend to disturb
the peace of matrimonial relations.
In the eighteenth century the Law had not taken these matters fully in
hand. A marriage was valid if the parties agreed to live as man and
wife, and afterwards did so, and went through a ceremony at church.
Solemnization of matrimony without banns or licence being lawful, there
sprang up a host of places where cheap marriages could be speedily
obtained.
Among the most famous, or infamous, of these places were the chapels
in the debtors’ prisons in the King’s Bench, the Marshalsea, and the
Fleet. The clergy in the precincts of the Fleet put up small chapels,
or converted rooms in low taverns into holy places, where marriages
were performed. They sent their touts into Fleet Street and Ludgate
Hill, and you might see a sign hung in a tavern window, “Marriages
performed within.” There, in front of his shop, stood the parson, “a
squalid, profligate figure, clad in a tattered plaid nightgown, with a
fiery face, ready to couple you for a dram of gin or a roll of tobacco.”
There are many sad stories of victimized women ruined by the want of
regulation in the Law of Marriage of that time. Moreover, it led to
foolish clandestine marriages which caused a deal of misery. Strange
were the uses to which Fleet marriages were put, and at least on one
occasion the woman was not the victim.
Deborah Nolan hit on the ingenious plan of getting rid of her debts by
marrying, and thereby transferring them to her husband, and with this
view she went down to the Fleet and was duly married to “John Ferren,
gentleman.” When the creditors came round Deborah showed them her
marriage certificate, and they went off with one accord to find “John
Ferren, gentleman.” Here is where Deborah had the laugh of them, for
they never found him; and had they found him it had been no matter, for
“John Ferren” was a woman friend of Deborah, dressed as a man for the
occasion, with intent to defraud the creditors.
I take heart of grace when I hear what a peck of trouble Lord Hardwicke
went through in his endeavour to put an end to these irregular
marriages and insist in the name of the Law on the public safeguards
of banns and licences. There was never a more just and necessary
measure of protection for women than Lord Hardwicke’s “Act for the
Better Preventing of Clandestine Marriages,” yet it raised a storm of
opposition.
Blackstone saw in it an “innovation upon our ancient laws and
constitution”--a phrase, if you come to think of it, prohibiting all
or any legal reform; Horace Walpole cursed it as an infraction of
liberty; and Charles Townshend described it as “one of the most cruel
enterprises against the fair sex that ever entered into the heart of
man.” Such is the lot of the reformer. He stands to receive the abuse
and opposition of the stupid generation in which he lives, and never
hears the praises of those who come into his kingdom and gather in the
harvest he has sown.
A branch of the Law of Marriage not wholly unfavourable to Woman is
the law relating to actions for breach of promise. From a dry-as-dust
lawyer’s point of view, this form of action is as much the prerogative
of Man befooled as it is of jilted Woman.
Statistics, however, bear me out in asserting that Man does not make
use of his privileges. He prefers to carry his grief and disappointment
into his private lodging and not flaunt them in the witness-box. On
those few occasions when he has screwed up his courage to sue some
lovely and wealthy woman who has changed her mind, his fellow-men in
the jury-box have eloquently expressed their contempt for his action by
assessing his broken heart at the value of one farthing. No! breach of
promise is not a man’s job.
But we hope it will long be the right of an Englishwoman under the
Law to appeal to an enlightened, a high-minded, a right-feeling, a
conscientious, a dispassionate, a sympathizing, a contemplative jury of
her civilized countrymen for damages--heavy damages--which, as Serjeant
Buzfuz pointed out, are the only recompense for the wounded feelings
of the unimpeachable female who has been wronged by a monster in the
outward semblance of a man.
Many have claimed the right of Woman to a jury containing women in
cases where her interests are at stake. In breach of promise cases,
however, I very much doubt if Woman would receive better treatment
from a jury of her own sex, for English jurymen seem to me to take a
virtuous pleasure in dipping their hands deep into the pockets of the
defendant and soothing the unfortunate lady very amply at his expense.
There have been some who would abolish these actions, but if they
are sensibly and seriously treated they seem to afford a reasonable
protection for women, who in the nature of things suffer a greater
material loss from the breach of such a promise than could possibly
happen in the case of a man.
The Law in relation to such actions is clearly favourable to Woman,
and rightly so, for it allows the jury to assess sentimental damages
for the loss of position and the reasonable expectation of advancement
in the world, whereas in the breach of other contracts our Law sets
its face against the granting of any damages that are not strictly
pecuniary.
Assuming, therefore, that the Law of Marriage should be based on a
public appreciation of the importance of family life, how does our Law
stand in its relation to Woman?
To begin with, it allows Woman freedom of consent to marriage without
possibility of coercion. It guards her from polygamous and other
undesirable unions. It surrounds the entrance to the state of marriage
with reasonable and sufficient safeguards to hinder fraud and deception
entering into the marriage ceremony.
It may be that more might be done to mark the public nature and
importance of the institution of marriage in the eyes of the State, but
there is a danger in these things of moving counter to prejudices of
individuals that deserve and command respect.
Where the Law has moved to regulate Marriage, it is pleasant to
remember that it has been to promote decency and order and to guard the
safety of Woman.