English marriage laws, the wrongs of the mother must not be omitted. The
unmarried mother has a right to her child; the married mother has none:
"A father is entitled to the custody of his child until it attains the
age of sixteen, unless there be some sufficient reason to the contrary"
(Russell "On Crimes," vol. i., p. 898). The "sufficient reason" is
hard to find in most cases, as the inclination of the Courts is to make
excuses for male delinquencies, and to uphold every privilege which male
Parliaments have conferred on husbands and fathers. In Shelley's
case the father was deprived of the custody of his children, but here
religious and political heresy caused a strong bias against the poet.
The father's right to the custody of legitimate children is complete;
the mother has no right over them as against his; he may take them away
from her, and place them in the care of another woman, and she has no
redress; she may apply to Chancery for access to them at stated times,
but even this is matter of favour, not of right. The father may appoint
a guardian in his will, and the mother, although the sole surviving
parent, has no right over her children as against the stranger appointed
by the dead father. If the parents differ in religion, the children are
to be brought up in that of the father, whatever agreement may have been
made respecting them before marriage; if the father dies without leaving
any directions, the children will be educated in his religion; he can,
if he chooses, allow his wife to bring them up in her creed, but she can
only do so by virtue of his permission. Thus the married mother has no
rights over her own children; she bears them, nurses them, toils for
them, watches over them, and may then have them torn from her by no
fault of her own, and given into the care of a stranger. People talk of
maternal love, and of woman's sphere, of her duty in the home, of her
work for her babes, but the law has no reverence for the tie between
mother and child, and ignores every claim of the mother who is also a.
wife. The unmarried mother is far better off; she has an absolute right
to the custody of her own children; none can step in and deprive her of
her little ones, for the law respects the maternal tie when no marriage
ceremony has "legitimated" it. Motherhood is only sacred in the eye of
the law when no legal contract exists between the parents of the child.
Looking at a woman's position both as wife and mother, it is impossible
not to recognise the fact that marriage is a direct disadvantage to her.
In an unlegalised union the woman retains possession of all her
natural rights; she is mistress of her own actions, of her body, of her
property; she is able to legally defend herself against attack; all the
Courts are open to protect her; she forfeits none of her rights as an
Englishwoman; she keeps intact her liberty and her independence; she has
no master; she owes obedience to the laws alone. If she have a child,
the law acknowledges her rights over it, and no man can use her love for
it as an engine of torture to force her into compliance with his will.
Two disadvantages, however, attach to unlegalised unions; first, the
woman has to face social disapprobation, although of late years, as
women have been coming more to the front, this difficulty has been very
much decreased, for women have begun to recognise the extreme injustice
of the laws, and both men and women of advanced views have advocated
great changes in the marriage contract. The second disadvantage is of
a more serious character: the children proceeding from an unlegalised
union have not the same rights as those born in legal wedlock, do not
inherit as of right, and have no legal name. These injustices can be
prevented by care in making testamentary dispositions protecting them,
and by registering the surname, but the fact of the original unfairness
still remains, and any carelessness on the parents' part will result in
real injury to the child. It must also be remembered that the father, in
such a case, has no rights over his children, and this is as unfair to
him as the reverse is to the mother. As the law now is, both legal and
illegal unions have disadvantages connected with them, and there is only
a choice between evils; these evils are however, overwhelmingly greater
on the side of legal unions as may be seen by the foregoing sketch of
the disabilities imposed on women by marriage. So great are these that
a wise and self-respecting woman may well hesitate to enter into a
contract of marriage while the laws remain as they are, and a man who
really honours a woman must reluctantly subject her to the disadvantages
imposed on the English wife, when he asks her to take him as literally
her master and, owner. The relative position is as dishonouring to the
man as it is insulting to the woman, and good men revolt against it as
hotly as do the most high-spirited women. In happy marriages all these
laws are ignored, and it is only at rare intervals that the married
pair become conscious of their existence. Some argue that this being so,
small practical harm results from the legal injustice; it would be as
sensible to argue that as honest people do not want to thieve, it would
not be injurious to public morality to have laws on the statute book
legalising garotting. Laws are made to prevent injustice being committed
with impunity, and it is a curious reversal of every principle of
legislation to make laws which protect wrongdoing, and which can only
be defended on the ground that they are not generally enforced. If the
English marriage laws were universally carried out, marriage would not
last for a month in England; as it is, vast numbers of women suffer in
silence, thousands rebel and break their chains, and on every side
men and women settle down into a mutual tolerance which is simply an
easy-going indifference, accepted as the only possible substitute for
the wedded happiness which they once dreamed of in youth, but have
failed to realise in their maturity.
Things being as they are, what is the best action for those to take who
desire to see a healthier and purer sexual morality--a morality founded
upon equal rights and diverse duties harmoniously discharged? The first
step is to agitate for a reform of the marriage laws by the passing of
such an Act of Parliament as is alluded to above. It would be well for
some of those who desire to see such a legislative change to meet and
confer together on the steps to be taken to introduce such a Bill into
the House of Commons. If thought necessary, a Marriage Reform League
might be established, to organize the agitation and petitioning which
are _de rigueur_, in endeavouring to get a bill passed through the
popular House. Side by side with this effort to reform marriage abuses,
should go the determination not to contract a legal marriage while the
laws remain as immoral as they are. It is well known that the Quakers
persistently refused to go through the legal English form of marriage,
and quietly made their declarations according to their own conscience,
submitting to the disadvantages entailed on them by the illegality,
until the legislature formally recognised the Quaker declaration as
a legal form of marriage. Why should not we take a leaf out of the
Quakers' book, and substitute for the present legal forms of marriage a
simple declaration publicly made? We should differ from the Quakers
in this, that we should not desire that such declaration should be
legalised while the marriage laws remain as they are; but as soon as
the laws are moralised, and wives are regarded as self-possessing
human beings, instead of as property, then the declaration may, with
advantage, seek the sanction of the law. It is not necessary that
the declaration should be couched in any special form of words; the
conditions of the contract ought to be left to the contracting parties.
What is necessary is that it should be a definite contract, and it is
highly advisable that it should be a contract in writing--a deed of
partnership, in fact, which should--when the law permits--be duly
stamped and registered. The law, while it does not dictate the
conditions of the contract, should enforce those conditions so long as
the contract exists; that is, it should interfere just as far as it does
in other contracts, and no further; the law has no right to dictate the
terms of the marriage contract; it is for the contracting parties to
arrange their own affairs as they will. While, however, the province of
the law should be thus limited in respect to the contracting parties,
it has a clear right to interfere in defence of the interests of any
children who may be born of the marriage, and to compel the parents to
clothe, feed, house, and educate them properly: this duty should, if
need be, be enforced on both parents alike, and the law should recognise
and impose the full discharge of the responsibilities of parents towards
those to whom they have given life. No marriage contract should be
recognised by the law which is entered into by minors; in this, as in
other legal deeds, there should be no capability to contract until the
contracting parties are of full age. A marriage is a partnership, and
should be so regarded by the law, and it should be the aim of those
who are endeavouring to reform marriage, to substitute for the present
semi-barbarous laws a scheme which shall be sober, dignified, and
practicable, and which shall recognise the vital interest of the
community in the union of those who are to be the parents of the next
generation.
Such a deed as I propose would have no legal force at the present time;
and here arises a difficulty: might not a libertine take advantage of
this fact to desert his wife and possibly leave her with a child, or
children, on her hands; to the cold mercy of society which would not
even recognize her as a married woman? Men who, under the present
state of the law, seduce women and then desert them, would probably
do the same if they had gone through a form of marriage which had no
legally binding force; but such men are, fortunately, the exception,
not the rule, and there is no-reason to apprehend an increase of
their number, owing to the proposed action on the part of a number of
thoughtful men and women who are dissatisfied with the present state
of the law, but who have no wish to plunge into debauchery. I freely
acknowledge that it is to be desired that marriage should be legally
binding, and that a father should be compelled to do his share towards
supporting his children; but while English law imposes such a weight of
disability on a married woman, and leaves her utterly in the power
of her husband, however unprincipled, oppressive, and wicked he may
be--short of legal crime--I take leave to think that women have a
fairer chance of happiness and comfort in an unlegalised than in a legal
marriage. There is many an unhappy woman who would be only too glad if
the libertine who has legally married her would desert her, and leave
her, even with the burden of a family, to make for herself and her
children, by her own toil, a home which should at least be pure,
peaceful, and respectable.
Let me, in concluding this branch of the subject, say a word to those
who, agreeing with Marriage Reform in principle, fear to openly put
their theory into practice. Some of these earnestly hope for change, but
do not dare to advocate it openly. Reforms have never been accomplished
by Reformers who had not the courage of their opinions. If all the men
and women who disapprove of the present immoral laws would sturdily _and
openly_ oppose them; if those who desire to unite their lives, but are
determined not to submit to the English marriage laws, would publicly
join hands, making such a declaration as is here suggested, the social
odium would soon pass away, and the unlegalised marriage would be
recognised as a dignified and civilized substitute for the old brutal
and savage traditions. Most valuable work might here be done by men and
women who--happy in their own marriages--yet feel the immorality of the
law, and desire to see it changed. Such married people might support and
strengthen by their open countenance and friendship those who enter into
the unlegalised public unions here advocated; and they can do what no
one else can do so well: they can prove to English society--the most
bigoted and conservative society in the world--that advocacy of change
in the marriage laws does not mean the abolition of the home. The value
of such co-operation will be simply inestimable, and will do more
than anything else to render the reform practicable. Courage and quiet
resolution are needed, but, with these, this great social change may
safely and speedily be accomplished.
II. DIVORCE.
|Any proposed reforms in the marriage laws of England would be extremely
imperfect, unless they dealt with the question of divorce. Marriage
differs from all ordinary contracts in the extreme difficulty of
dissolving it--a difficulty arising from the ecclesiastical character
which has been imposed upon it, and from the fact that it has been
looked upon as a religious bond instead of as a civil contract. Until
the time of the Reformation, marriage was regarded as a sacrament by all
Christian people, and it is so regarded by the majority of them up to
the present day. When the Reformers advocated divorce, it was considered
as part of their general heresy, and as proof of the immoral tendency
of their doctrines. Among Roman Catholics the sacramental--and therefore
the indissoluble--character of marriage is still maintained, but among
Protestants divorce is admitted, the laws regulating it varying much in
different countries.
In England--owing to the extreme conservatism of the English in all
domestic matters--the Protestant view of marriage made its way very
slowly. Divorce remained within the jurisdiction of ecclesiastical
courts, and these granted only divorces _a mensâ et thoro_ in cases
where cruelty or adultery was pleaded as rendering conjugal life
impossible. These courts never granted divorces a _vinculo matrimonii_,
which permit either--or both--of the divorced persons to contract a
fresh marriage, except in cases where the marriage was annulled as
having been void from the beginning; they would only grant a separation
"from bed and board," and imposed celibacy on the divorced couple until
one of them died, and so set the other free. There was indeed a report
drawn up by a commission, under the authority of 3 and 4 Edward VI., c.
ii., which was intended as a basis for the re-modelling of the marriage
laws, but the death of the king prevented the proposed reform; the
ecclesiastical courts remained as they were, and absolute divorce
was unattainable. Natural impatience of a law which separated unhappy
married people only to impose celibacy on them, caused occasional
applications to be made to Parliament for relief, and a few marriages
were thus dissolved under exceptional circumstances. In 1701, a bill
was obtained, enabling a petitioner to re-marry, and in 1798, Lord
Loughborough's "Orders" were passed. By these orders, no petition could
be presented to the House, unless an official copy of the proceedings,
and of a definitive sentence of divorce, _a mensâ et thoro_, in the
ecclesiastical courts, was delivered on oath at the bar of the House at
the same time (Broom's "Comm.," vol. iii. p. 396). After explaining
the procedure of the ecclesiastical court, Broom goes on: "A definitive
sentence of divorce _a mensâ et thoro_ being thus obtained, the
petitioner proceeded to lay his case before the House of Lords in
accordance with the Standing Orders before adverted to, and, subject to
his proving the case, he obtained a bill divorcing him from the bonds of
matrimony, and allowing him to marry again. The provisions of the
bill, which was very short, were generally these:--1. The marriage was
dissolved. 2. The husband was empowered to marry again. 3. He was given
the rights of a husband as to any property of an after-taken wife. 4.
The divorced wife was deprived of any right she might have as his widow.
5. Her after-acquired property was secured to her as against the husband
from whom she was divorced. In the case of the wife obtaining the bill,
similar provisions were made in her favour" (p. 398). In 1857, an Act
was passed establishing a Court for Divorce and Matrimonial Causes, and
thus a great step forward was taken: this court was empowered to grant
a judicial separation--equivalent to the old divorce _a mensâ et
thoro_--in cases of cruelty, desertion for two years and upwards, or
adultery on the part of the husband; it was further empowered to grant
an absolute divorce with right of re-marriage--equivalent to the old
divorce _a vinculo matrimonii_--in cases of adultery on the part of the
wife, or of, on the part of the husband, incestuous adultery, or of
bigamy with adultery, or of rape, or an unnatural crime, or of adultery
coupled with such cruelty as would formerly have entitled her to a
divorce _a mensâ et thoro_, or of adultery coupled with desertion,
without reasonable excuse, for two years or upwards (Broom, vol. i., p.
542). The other powers held by the court need not now be specially dwelt
upon.
The first reform here needed is that husband and wife should be placed
on a perfect equality in asking for a divorce: at present if husband and
wife be living apart, no amount of adultery on the husband's part can
release the wife; if they be living together, a husband may keep as
many mistresses as he will, and, provided that he carefully avoid any
roughness which can be construed into legal cruelty, he is perfectly
safe from any suit for dissolution of marriage. Adultery alone, when
committed by the husband, is not ground for a dissolution of marriage;
it must be coupled with some additional offence before the wife can
obtain her freedom. But the husband can obtain a dissolution of marriage
for adultery committed by the wife, and he can further obtain money
damages from the co-respondent, as a _solatium_ to his wounded feelings.
Divorce should be absolutely equal as between husband and wife: adultery
on either side should be sufficient, and if it be thought necessary to
join a male co-respondent when the husband is the injured party, then it
should also be necessary to join a female co-respondent where the wife
brings the suit. The principle, then, which should be laid down as
governing all cases of divorce, is that no difference should be made in
favour of either side; whatever is sufficient to break the marriage in
the one case should be sufficient to break it in the other.
Next, the system of judicial separation should be entirely swept away.
Wherever divorce is granted at all, the divorce should be absolute. No
useful end is gained by divorcing people practically and regarding them
as married legally. A technical tie is kept up, which retains on the
wife the mass of disabilities which flow from marriage, while depriving
her of all the privileges, and which widows both man and woman, exiling
them from home-life and debarring them from love. Judicial separation is
a direct incentive to licentiousness and secret sexual intercourse; the
partially divorced husband, refused any recognised companion, either
indulges in promiscuous lust, to the ruin of his body and mind, or
privately lives with some woman whom the law forbids him to marry and
whom he is ashamed to openly acknowledge. Meanwhile the semi-divorced
wife can obtain no relief, and is compelled to live on, without the
freedom of the spinster or the widow, or the social consideration of the
married woman. She can only obtain freedom by committing what the law
and society brand as adultery; if she has any scruples on this head, she
must remain alone, unloved and without home, living a sad, solitary life
until death, more merciful than the law, sets her free.
It is hard to see what object there can be in separating a married
couple, in breaking up the home, dividing the children, and yet
maintaining the fact of marriage just so far as shall prevent the
separated couple from forming new ties; the position of those who regard
divorce as altogether sinful, is intelligible, however mistaken; but
the position of those who advocate divorce, but object to the divorced
couple having the right of contracting a new marriage, is wholly
incomprehensible. No one profits by such divorce, while the separated
couple are left in a dubious and most unsatisfactory condition; they are
neither married nor unmarried; they can never shake themselves free from
the links of the broken chain; they carry about with them the perpetual
mark of their misfortune, and can never escape from the blunder
committed in their youth. They would be the happier, and society would
be the healthier, if the divorce of life and of interests were also a
divorce which should set them free to seek happiness, if they will, in
other unions--free technically as well as really, free in law as well as
in fact.
If it be admitted that all divorce should be absolute, the question
arises: What should be the ground of divorce? First, adultery, because
breach of faith on either side should void the contract which implies
loyalty to each other; the legal costs of both should fall on the
breaker of the contract, but no damages should be recoverable against a
third party. Next, cruelty, because where the weaker party suffers from
the abuse of power of the stronger, there the law should, when appealed
to, step in to annul the contract, which is thus a source of injury
to one of the contracting parties; if a man be brought up before the
magistrate charged with wife-beating or violence of any kind towards his
wife, and be convicted and sentenced, the Divorce Court should, on
the demand of the wife, the record being submitted to it, pronounce a
sentence of divorce; in the rare case of violence committed by a wife on
her husband, the same result should accrue; the custody of the children
should be awarded to the innocent party, since neither a man nor a woman
convicted of doing bodily harm to another is fit to be trusted with the
guardianship of a child. * The next distinct ground of divorce should
be habitual drunkenness; drunkenness causes misery to the sober
partner, and is ruinous in its effect, both on the _physique_ and on the
character of the children proceeding from the marriage. Here, of course,
the custody of the children should be committed entirely to the innocent
parent.
* Since these lines were published in the National Reformer,
a clause has been inserted in a bill now before Parliament,
empowering magistrates to grant an order of separation to a
wife? if it is proved that she has been cruelly ill-used by
her husband, and further compelling the husband, in such a
case, to contribute a weekly sum towards her maintenance.
This will be a great improvement on the present state of
things, but absolute divorce would be better than mere
separation.
At present, the usual unfairness presides over the arrangements as to
access to the children by the parents: "In the case of a mother who is
proved guilty of adultery, she is usually debarred from such access,
though it has not been the practice to treat the offending father with
the same rigour" (Broom's "Comm.," vol. iii., p. 404). In all cases of
divorce the interests of the children should be carefully guarded; both
parents should be compelled to contribute to their support, whether the
guardianship be confided to the father or to the mother.