Marriage, as it was, as it is and as it should be by Annie Besant

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Episode Transcript

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Section one of marriage as it was, as it is, and as it
should be. This is a LibriVoxrecording or LibriVox recordings are in the public
domain. For more information or tovolunteer, please visit LibriVox dot org.

(00:25):
Recording by Tony Addison, Marriage asit was, as it is, and
as it should be, by anybesse end either all human beings have equal
rights or none have any condors onemarriage. The recognition of human rights may

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be said to be of modern growth, and even yet they are but very
imperfectly understood. Liberty used to beregarded as a privilege bestowed instead of as
an inherent right. Rights of classeshave often been claimed, right to rule,

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right to tax, right to punish. All these have been argued for
and maintained by force. But theseare not rights. They are only wrongs
veiled as legal rights. Jean JacquesRousseau struck a new note when he cried,

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men are born free. Free bybirthright was a new thought when declared
as a universal inheritance, and thisgospel of Jean Jacques Rousseau dawned on the
world as the sun rising of aglorious day, a day of human liberty.

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Unrestrained by class. In seventeen eightynine, the doctrine of the rights
of man received its first European sanctionby law. In the August of that
year, the National Assembly of Franceproclaimed men are born and remain free and

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equal in rights. The aim ofpolitical association is the conservation of the natural
and imprescriptible rights of man. Theserights are liberty, property, safety,

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and resistance of tyranny. During savageand semi civilized stages, these imprescriptible rights
are never dreamed of as existing.Root force is king might is the only
right, and the strong garm isthe only argument whose logic meets with general

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recognition. In warlike tribes, fairequality is found and the chief is only
primus inter parise. But when thenomadic tribe settles down into an agricultural community,
when the habit of bearing arms ceasesto be universal, when wealth begins

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to accumulate and the village or townoffers attractions for pillage, then strength becomes
at once a terror and a possibledefense. The weak obey some powerful neighbour,
partly because they cannot resist, andpartly because they desire, by their

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submission, to gain a strong protectionagainst their enemies. They submit to the
exactions of one that they may beshielded from the tyranny of many, and
yield up their natural liberty to someextent, to preserve themselves from being entirely

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enslaved. Very slowly do they learnthat the union of many, individually feeble,
is stronger than a few powerful,isolated tyrants, and gradually law takes
the place of despotic will. Graduallythe feeling of self respect, of independence,

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of love, of liberty grows,until at last man claims freedom as
of right and denies the authority ofany to rule him without his own consent.
Thus, the rights of man havebecome an accepted doctrine. But unfortunately

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they are only rights of man inthe exclusive sense of the word. They
are sexual and not human rights,and until they become human rights, society
will never rest on as sure Becausejust foundation, women as well as men

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are born and remain free and equalin rights, Women as well as men,
have natural and imprescriptible rights. Forwomen as well as for men.
These rights are liberty, property,safety, and resistance of tyranny. Of

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these rights only crime should deprive them, just as by crime men also are
deprived of them. To deny theserights to women is either to deny them
to humanity qua humanity, or todeny that women form a part of humanity.

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If women's rights are denied, men'srights have no logical basis, no
claim to respect, then tyranny ceasesto be a crime. Slavery is no
longer a scandal. Either all humanbeings have equal rights or none have any.

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Naturally, in the savage state,women share the fate of the physically
weak, not only be course asa rule they are smaller framed and less
muscular than their male comrades, butalso because the bearing and suckling of children

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is a drain on their physical resourcesfrom which men are exempt. Hence,
she has suffered from the right ofthe strongest even more than has man,
and her exclusion from all political lifehas prevented the redressal which man has wrought
out for himself. While claiming freedomfor himself, he has not loosened her

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chains, and while striking down hisown tyrants, he has maintained his personal
tyranny in the home. Nor hasthis generally been done by deliberate intention.
It is rather the survival of theold system, which has only been abolished

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so slowly as regards men. MissusMill writes that those who were physically weaker
should have been made legally inferior.Is quite conformable to the mode in which
the world has been governed until verylately. The rule of physical strength was

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the general law of human affairs Throughouthistory the nations races, classes which found
themselves strongest either in muscles, inriches, or in military discipline, have
conquered and held in subjection the rest. If even in the most improved nations,

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the law of the sword is atlast discountenanced as unworthy. It is
only since the calumniated eighteenth century warsof conquest have only ceased, since democratic
revolutions began. The world is veryyoung and has only just begun to cast

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off injustice. It is only nowgetting rid of negro slavery. It is
only now getting rid of monarchical despotism. It is only now getting rid of
hereditary feudal nobility. It is onlynow getting rid of disabilities on the ground

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of religion. It is only beginningto treat any men as citizens except the
rich and a favored portion of themiddle class. Can we wonder that it
has not yet done as much forwomen enfranchisement of women. Missus Mill in

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JS Mills Discussions and Dissertations of Volumetwo pay four to one. The difference
between men and women in all civilrights is, however, with few,
although important exceptions confined to married womeni e. Women in relation with men.

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Unmarried women of all ages suffer undercomparatively few disabilities. It is marriage
which brings with it the weight ofinjustice and of legal degradation. In savage
times, marriage was a matter eitherof force, fraud, or purchase.

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Women were merchandise by the sale ofwhom their male relatives profited, or they
were captives in war the spoil ofthe conqueror, or they were stolen away
from the paternal In all cases,however, the possession once obtained, they

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became the property of the men whomarried them, and the husband was their
lord their master. In the oldHebrew books, still accounted sacred by Jews
and Christians, the wife is regardedas the property of her husband. A

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man may sell his daughter to bea maid servant i e. A concubine,
as is shown in the following verseExodus twenty one seven and Jacob served
seven years for each of his wives, Leo and Rachel. His other two

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wives were his by gift, andwere rather concubines than recognized, why their
children counting to their mistresses. Ifa Hebrew conquered his enemies and saw among
the captives a beautiful woman, andhast a desire unto her, that thou

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wouldst have her to thy wife,he might take her home and become her
husband, and she shall be thywife Deuteronomy twenty one, ten to fourteen.
After the destruction of Benjamin, asrelated in Judges twenty it was arranged

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that the survivors should possess themselves ofwomen as wives by force and fraud.
Lie in weight in the vineyards,and see and behold if the daughters of
Shilah come out to dance in dances, then come ye out of the vineyards

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and catch you. Every man andhis wife and the children of Benjamin did
so, and took their wives accordingto their number, of them that danced
whom they caught Judges twenty one,twenty twenty one, twenty three. The
same plan was adopted by the Romansin their earliest days. When they needed

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wives. Romulus invited the people ofthe sabines and the neighboring towns to see
some public games, and in themidst of the show, the Romans rushed
in and carried off all the marriageablemaidens they could lay hands. On Little's
History of Rome, page twenty.These instances may be objected to as legendary,

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but they are faithful pictures of therough wooing of early times. Among
so barbarous nations, the winning ofa bride is still harsher. The bridegroom
rushes into the father's house, knocksthe maiden dam picks up a senseless body,

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flings it over his shoulder, andruns for his life. He is
pursued by the youth of the village, pelted with stone sticks, et cetera,
and has to win his wife bysheer strength and sweftness. In some
tribes, this is a mere marriageceremony, a survival from the time when
the fight was a real one.And amongst ourselves, the slipper thrown after

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the departing bridegroom and bride is adirect descendant of the heavier missiles thrown with
deadly intent thousands of years ago byour remote ancestors. Amongst many semi barbarous
nations. The wives are still bought. In some parts of Africa, the

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wooa pays a certain number of cowsfor his bride. In other places,
money or goods are given in exchange. The point to be noted is that
the wife is literally taken by forceor bought. She is not free to
choose her husband. She does notgive herself to him. She is a

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piece of property handed over by heroriginal owner, her father, to her
new owner, her husband, inexchange for certain solid money or money is
worth. Hence, she becomes theproperty of the man who has paid for
her. In an admirable article inthe Westminster Review for April eighteen seventy six,

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the following striking passage is to befound, as Aristotle long since remarked
among savages, women and slaves holdthe same rank. Women are bought primarily
as slaves to drudge and toil fortheir masters, whilst their function as wives

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is secondary and subordinate. It ismore right to say of polygamous people that
their slaves are also their wives thanto say that their wives are slaves.
They are purchased as slaves, theywork as slaves, and they live as
slaves. The history of uncultivated nations, it has been said, uniformly represents

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the woman as in a state ofabject slavery, from which they slowly emerge
as civilization advances. In Canada,a strap, a kettle, and a
faggot are placed in the new bride'scabin to indicate that it will be henceforth

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her duty to carry burdens, dress, food, and procure wood for her
husband. In Sircassia, it isthe women who till and manure the ground,
and in parts of China they followthe plow. A Moorish wife digs

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and sows and reaps the corn,and an Arabian wife feeds and cleans and
saddles her master's horse. Indeed,the sole business of Bedouin wives is to
cook, and work and perform allthe menial officers connected with tent life.

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From the absolute power of a savageover his slaves flow all those rights over
a woman from which the marital ritesof our own time are the genealogical descendants.
A trace of it purchase is foundin the following customs of Old English

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law. The woman at the churchdoor was given of her father or some
other man, of the next ofher kin into the hands of her husband,
and he laid down gold and silverfor her upon the book, as
though he did by her. Thiscustom is still maintained in the Church ritual.

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The priest asks who giveth this womanto be married to this man?
And when the man gives the ringto the priest, he gives money with
it, receiving back the ring togive the woman, but the money remaining
a survival of the time when wiveswere literally bought by the old Roman laws,

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the married woman had no personal rights. She was but the head slave
in her husband's house, absolutely subjectin all things to our Lord. As
the Romans became civilized, these disabilitieswere gradually removed. It is important to

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remember these facts, as these arethe origin of our own marriage laws,
and our common law really grows outof them. One other point must be
noticed before dealing immediately with the Englishmarriage laws, and that is the influence
exerted over them by ecclesiastical Christianity.The Old Testament expressly sanctions polygamy, but

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while the New Testament does not prescribeit, except in the case of bishops
and deacons, Ecclesiastical Christianity has generallybeen in favor of monogamy. At the
same time, both the New Testamentand the Church have insisted on the inferiority

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of the female sex. The husbandis the head of the wife. Ephesians
five twenty three. Wives submit yourselvesunto your own husbands. Collosians three eighteen.
Your women are commanded to be underobedience. One Corinthians fourteen thirty four.

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Ye wives be in subjection to yourown husbands, even as Sarah abate
Abraham, calling him Lord, whosedaughters ye are, as long as ye
do well one Peter three one six. The common law of England is quite

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in accordance with this ancient Eastern teaching, and regards men as superior to women
among the children of the purchaser.Males take before females, or, as
our lawgivers have expressed it, theworthiest of blood shall be preferred. Commentary

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on the Laws of England. J. Stephen, seventh Edition, Volume one,
page four two. The feudal systemdid much, of course, to
perpetuate the subjection of women, itbeing to the interest of the lord paramount

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that the fiefs should descend in themale line. In those rough ages when
wars and civil feuds were almost perpetual. It was inevitable that the sex with
the biggest body and strongest sinners shouldhave the upper hand. The pity is

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that English gentlemen today are content toallow the law to remain unaltered when the
whole face of society has changed.Let us now turn to the disabilities imposed
upon women by marriage. Blackstone laysdown in his world famous Commentaries on the

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Laws of England that the first ofthe absolute rights of every Englishman is the
legal and uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation ninth Edition, Book one, page one two nine.

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The second right is personal liberty,and he says the confinement of a
person in any wise is an imprisonment, so that the keeping a man against
his will in a private house isan imprisonment ibid. One three six.

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The third is property, which consistsin the free use and enjoyment of all
his acquisitions, without any control ordiminution, save only by the laws of
the land ibid. One three eight. A subordinate right necessary for the enforcement

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of the others is that of applyingto the courts of justice for redress of
injuries. I shall proceed to showthat a married woman is deprived of these
rights by the mere fact of amarriage. In the first place, by
marriage, a woman loses her legalexistence. The law does not recognize her,

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excepting in some few cases when itbecomes conscious of her existence in order
to punish her for some crime ormisdemeanor, Blackstone says, and no subsequent
legislation has in any way modified hisdictum. By marriage, the husband and

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wife are one person in law.That is, the very being or legal
existence of the woman is suspended duringthe marriage, or at least is incorporated
or consolidated into that of the husband, under whose wing, protection and cover

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she performs everything, and is thereforecalled in our law French a fame covert,
page four four two. Husband andwife are one person in law.
Commons Digest, fifth Edition, Volumeone, page two eight. And from

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this it follows that by no conveyanceat the common law could the husband give
an a state to his wife,that her husband cannot covenant or contract with
his wife, even for her ownadvantage, and that any prenuptial contract made
with her as to money she shallenjoy for her separatus after marriage becomes void

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as soon as she is married.All covenance for the wife's benefit must be
made with someone else, and thehusband must covenant with some other man or
unmarried woman who acts as trustee forthe wife. This is the fundamental wrong

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from which all the others flow.Husband and wife are one person, and
that one is the husband. Thewife's body, her reputation are no longer
her own. She can gain nolegal redress for injury, for the law

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does not recognize her existence, exceptunder cover of her husband's suit. In
some cases, a more modern legislationhas so far become conscious of her as
to protect her against her husband,and if this protection separates up from him,
it leaves her the more utterly atthe mercy of the world. The

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various curious results flow in criminal lawfrom this supposition that husband and wife are
only one person. They are incompetentexcept in a fuse special instances to give
evidence four or against each other.In criminal cases, if a woman's husband

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be one of several defendants indicted together, the woman cannot give evidence either four
or against any of them. Wherethe wife of an accomplice is the only
person to confirm her husband's statement,the statement falls to the ground. As

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in practice confirmation thereof is required.In the case of Rex versus Neil seven
c and p. One six eight, Justice Park said confirmation by the wife
is in this case really no confirmationat all. The wife and the accomplice

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must be taken as one. Forthis purpose, the prisoners must be acquitted.
They may, however, be severallycalled as witnesses by the prosecution and
the defense, in order that theymay contradict each other. Where the wife
has suffered personal violence from her husband, she is permitted to swear the peace

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against him, and in divorce suits, husband and wife are both admissible as
witnesses. A wife who sets fireto her husband's house may escape punishment,
as in the case of Rex v. March. March and his wife had
lived separate for about two years,and previous to the act. When she

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applied for the candle with which itwas done, she said it was to
set her husband's house on fire becauseshe wanted to burn into death. Upon
a case reserved upon the question whetherit was an offense within the seven and
eight George fourth Cap. Thirty sec. Two For a why to set fire

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to her husband's house for the purposeof doing him a personal injury? The
conviction was held wrong of the learnedjudges, thinking that to constitute the offense,
it was essential that there should bean intent to injure or defraud some

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third person, and not one identifiedwith herself ibid. Page eight ninety nine.
Identification with one's beloved may be delightfulin theory, but when in practice
it comes to being burned at pleasure, surely the greatest stickler for the twain

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being one must feel some twinges ofdoubt. The identity of husband and wife
is often, by no means advantageousto the husband, for he thereby becomes
respec onsible to a great extent forhis wife's misdoings, for slanderous words spoken

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by the wife, libel published byher alone, trespass, assault and battery,
et cetera. He is liable tobe so sued, whether the act
was committed with or without his sanctionor knowledge. And wherever the action is
grounded on a taught committed by thewife, it no way affects the necessity

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of joining the husband. That theparties are living apart, nor even that
they are divorced, omens are atfaro, or that the wife is living
in adultery. Thus, she isa common law practice second did page one,

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five six. Pleasant position for aman whose wife may have left him,
to be suddenly dragged before court ofjustice for some misdeed of hers,
of which you may never have hearduntil he finds himself summoned to answer for
it. A large amount of injusticearises from this absurd fiction that two are

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one. It sometimes injures, sometimesprotects the married woman, and it often
shields those who have wronged her.But whether it injure or whether it protect
it is equally vicious. It isunjust, and injustice is a radical injury
to a community. And by destroyingthe reasonableness and the certainty of the law,

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it SAPs that reverence for it,which is one of the safeguards of
society. Let us now take Blackstone'srights of every Englishman and see what rights
the common law allowed to a marriedenglishwoman. A married woman is not protected
by the law in the uninterrupted enjoymentof her limbs, her body, or

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her reputation. On the contrary,if a wife be injured in her person
or her property, she can bringno action for redress without her husband's concurrence
and in his name, as wellas her own Blackstone, page four four

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three. If in a railway accidenta married woman has her leg broken,
she cannot sue the railway company fordamages. She is not a damaged person
in the eye of the law.She is a piece of damaged property,
and the compensation is to be madeto her owner. If she is attacked

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and beaten, she cannot at lawsue her assailant. Her master suffers loss
and income convenience by the assault onhis housekeeper, and his action is necessary
to obtain redress. If she islibeled, she cannot protect her good name,

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for she is incapable by herself ofmaintaining an action. In fact,
it is not even needful that aname should appear at all in the matter.
The husband may sue alone for lossof his wife's society by injury done
to her, offer damage to herreputation commins digest under barren and fime.

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The following curious statement of the lawon this head is given in Broome's commentaries.
Injuries which may be offered to aperson considered as a husband, and
which are cognizable in a court ofcommon law, are principally three one of

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Dutch or taking away a man's wife, two beating her, three indirectly causing
her some personal hurt by negligence orotherwise one as to the first sort,
abduction or taking her away. Thismay either be by fraud and persuasion or

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open violence, though the law inboth cases supposes force and constraint the wife
having no power to consent, andtherefore gives a remedy by action of trespass.
And the husband is also entitled torecover damages in an action on the
case against such as persuade and enticethe wife to live separate from him without

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a sufficient cause. Two. Three. The second and third injuries above mentioned
are constituted by beating a man's wifeor otherwise ill using her or causing her
to her by negligence. For acommon assault upon or battery or imprisonment of

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the wife, The law gives theusual remedy to recover damages by action of
trespass, which must be brought inthe names of the husband and wife jointly.
But if the beating or other maltreatmentbe so enormous that thereby the husband
is deprived at any time of thecompany and assistance of his wife, the

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law then gives him a separate remedyby action for this ill usage per quad
Consortium AMESID, in which he mayrecover a satisfaction in damages by a provision
of the c L Proc Act eighteenfifty two s. Forty. In an

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action by husband and wife jointly foran injury to the wife, the husband
is now allowed to add a claimin his own right as for the loss
of the wife's society, or wherea joint trespass and assault have been committed
on the husband and his wife Volvethree, pages one four nine, one

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fifty. So far is recognized thehusband's complete claim over his wife's person.
That any one who receives a marriedwoman into his house and gives her shelter
there after having received notice from herhusband that he is not to permit her
to remain under his roof, actuallybecomes liable in damages to the husband.

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The husband cannot super damages if hehas turned his wife out of doors,
or if he has lost his rightof control by cruelty or adultery. Short
of this, he may obtain damagesagainst any friend or relative of the woman
who gives her shelter. The wifehas no such remedy against anyone who may

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induce the husband to live apart,or may give him house room at his
own wish. The reason for thelaw being as we find it, is
stated by Broom without the smallest compunction, we may observe that in these relative
injuries, notice is only taken ofthe wrong done to the superior of the

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parties related by the breach, anddissolution of either the relation itself, or
at least the advantage accruing therefrom whilethe loss of the inferior by such injuries
is except whether the death of aparent has been caused by negligence unregarded.

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One reason for which may be thatthe inferior has no kind of property in
the company, care, or assistanceof the superior, as the superior is
held to have in that of theinferior, and therefore the inferior can,
in contemplation of law, suffer noloss consequential on a wrongful act done to

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his superior. The wife cannot recoverdamages for the beating of her husband,
the child has no property in hisfather or guardian, and the servant whose
master is disabled does not thereby losehis maintenance or wages. Ibid. Page
one, five to three. Aman may recover damages equally for the injury

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done to his servant or to hiswife. In both cases, he loses
their services and the law recompenses him. A peculiarly disgusting phase of this claim
is where a husband claims damages againsta correspondent in the divorce court. If

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a wife be unfaithful, the husbandcan not only get a divorce, but
can also claim a money payment fromthe seducer to make up for the damage
he has sustained by losing his wife'sservices. An unmarried girl under age is
regarded as the property of her father, and the father may bring an action

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against her seducer for the loss ofhis daughter's services. It is not the
woman who is injured or who hasany redress. It is her male owner
who can recover damages for the injurydone to his property. If a wife
be separated from her husband, eitherby deed or by judicial decree, she

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has no remedy for injury or forlibel, unless by the doubtful plan of
using her husband's name without his consent. On this injustice, Lord Lyndhurst,
speaking in the House of Lords ineighteen fifty six said a wife is separated
from her husband by a decree ofthe ecclesiastical court, the reason for that

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decree being the husband's misconduct, hiscruelty, it may be, or his
adultery. From that moment a wifeis almost in a state of outlawry.
She may not enter into a contract, or if she do, she has
no means of enforcing it. Thelaw, so far from protecting, oppresses
her. She is homeless, helpless, hopeless, and almost wholly destitute of

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civil rights. She is liable toall manner of injustice, whether by plot
or by violence. She may bewronged in all possible ways, and a
character may be mercilessly deemed, Yetshe has no redress. She is of
the mercy of her enemies. Isthat fair? Is that honest? Can

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it be vindicated upon any principle ofjustice, of mercy or of common humanity?
A married woman who loses control overher own body it belongs to her
owner, not to herself. Noforce, no violence on the husband's part

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in conjugal relations is regarded as possibleby the law. She may be suffering
ill it matters not. Force ofconstraint is recognized by the law. As
rape. In all cases said thatof marriage, the law holds it to
be felony to force even a concubineor Hollot Broom's Commentaries, Volume four,

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page two five five. But norape can be committed by her husband on
a wife. The consent given inmarriage is held to cover the life,
and if, as sometimes occurs,a miscarriage or premature confinement to be brought

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on by the husband's selfish passions,no offense is committed in the eye of
the law, for the wife isthe husband's property, and by marriage she
has lost the right of control overher own body. The English marriage law
sweeps away all the tenderness, allthe grace, all the generosity of love,

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and transforms conjugal affection into a hardand brutal legal right. By the
common law, the husband has aright to inflict corporal punishment on his wife,
and although this right is now muchrestricted, the effect of the law
is seen in the brutal treatment ofwives among the rougher classes, and the

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light sometimes no punishment inflicted on wifebeaters. The common law is thus given
by Blackstone. The husband, alsoby the old law, might give his
wife moderate correction, for as heis to answer for her misbehavior. The

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law thought it reasonable to intrust himwith this power of restraining her by domestic
chastisement, in the same moderation thata man is allowed to correct his apprentices
or children. The lower rank ofpeople, who were always fond of the
old common law still claim and exerttheir ancient privilege. Blackstone grimly ads,

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after saying, this is all forwoman's protection, So great a favorite is
the female sex of the Laws ofEngland four four four and four four five.
This ancient privilege is very commonly exercisedat the present time. A man

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who dragged his wife out of bedeighteen seventy seven, and pulling off her
night dress, roasted her in frontof the fire was punished queried by being
bound over to keep the peace fora short period. Men who knock their
wives down, who dance on them, who dragged them about by the hair,

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et cetera, are condemned to briefterms of imprisonment, and are then
allowed to resume their marital authority andcommence a new course of ill treatment.
In dealing later with the changes Ishall recommend in the marriage laws, this
point will come under discussion and ofsection one Section two of marriage as it

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Was, as it is, andas it should be. This is a
LibriVox recording. All LibriVox recordings arein the public domain. For more information
or to volunteer, please visit LibriVoxdot org. Recording by Tony Addison,

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Marriage as it Was, as itis, and as it Should be by
Annie Bessant. Section two. Comingto the second right of personal liberty,
we find that a married woman hasno such right. Blackstone says, as

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we have seen, the confinement ofa person in any wise is an imprisonment,
so that the keeping a man againsthis will in a private house is
an imprisonment page one three six.But a husband may legally act as his

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wife's jailer. The courts of lawwill still permit a husband to restrain his
wife of her liberty in case ofany gross misbehavior Blackstone, page four four
five. If the wife squanders hisestate or goes into lute company, he

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may deprive it of liberty Commons digestunder Baron and Fime. Broome says that
at the present time there can beno question respecting the common law right of
a husband to restrain his wife ofher personal liberty. With a view to

(47:06):
prevent her going into society of whichhe disapproves, or otherwise disobeying his rightful
authority. Such right must not,however, be exercised unnecessarily or with undue
severity. And the moment that thewife, by returning to her conjugal duties,

(47:28):
makes restraint of her person unnecessary,such restraint becomes unlawful. Volume one,
page five four seven. In theyear eighteen seventy seven, a publican
at Spelsby chained up his wife tothe war from one day to the afternoon

(47:52):
of the following one, in order, he said, to keep her from
drink. The magistrates dismissed him withoutpunishment. It may be argued that a
woman should not get drunk, gointo bad company, et cetera. Quite

(48:14):
so neither should a man. Butwould men admit that, under similar circumstances,
a wife should have legal power todeprive her husband of liberty. If
not, there is no reason injustice why the husband should be permitted to
exercise it. Offenses known to thelaw should be punished by the law and

(48:38):
by the law alone. Offenses whichthe law cannot touch should entail no punishment
on an adult at the hands ofa private individual. A public disapproval may
brand them, but no personal chastisementshould be inflicted by arbitrary and irresponsible power.

(49:04):
The third right of property has alsono existence for married women. Unmarried
women have heard no ground for complaint. A fan's soul before her marriage may
do all acts for disposition, etcetera, of a lands or goods,

(49:27):
which any man in the same circumstancesmay do, commons, digest under baron,
and fame the disabilities which affect women, as women do not touch property.
A FAM's soul may own real orpersonal estate by soul, give contract,

(49:54):
sue, and be sued, justas though she were of the world
blood. It is marriage that,like felony and insanity, destroys a capability
as proprietor. According to the commonlaw with which we will deal first,

(50:17):
the following results accrued from marriage.Whatever personal property belonged to the wife before
marriage is by marriage absolutely vested inthe husband in chattel interests. The soul
and absolute property vests in the husband, to be disposed of at his pleasure

(50:45):
if he chooses to take possession ofthem Blackstone Book two four four three.
If he takes possession they do not, at death revert to the wife,
but go to his heirs, orto anyone he chooses by will. If

(51:09):
a woman be seized of an estateof inheritance and marries, her husband shall
be seized of in her right commonsdigest under baron and found. If a
woman own land in her own right, all rents and prophets are not hers,

(51:31):
but her husband's, even arrears ofrents due before couverture, become his.
He may make a lease of herland commencing after his own death,
and she is barred. Although shesurvive him. He may dispose of his
wife's interest. It may be forfeitedby his crime, seized for his debt.

(51:57):
She only regains it if she surviveshim and he has not disposed of
it. If a woman before marriagelets a land on a lease, the
rental after marriage becomes her husband's,and her receipt is not a good discharge.

(52:20):
If a wife grants a rent chargeout of her own lands, or
rather what should be her own,without the husband's consent, it is void.
All personal goods that the wife hasin possession in her own right are
vested in her husband by the marriage. IBID gifts to her become his.

(52:46):
If he sues for a debt dueto his wife and recovers it, it
is his. If a legacy beleft her, it goes to him.
After his death, all that washer personal property originally goes to his executors
and administrators, and does not revertto her. So absolutely is all she

(53:14):
may become possessed of his By lawthat if after a divorce our mensa et
thorough, the wife should sue anotherwoman for adultery with her husband, and
should be awarded her costs, thehusband can release the woman from payment.

(53:36):
If a woman own land and leaseit, then if during marriage the husband
reduce it into possession, as whererent accruing on a lease granted by the
wife, dum sola is received bya person appointed for that purpose during the

(53:58):
husband's life. Under such circumstances,the husband's executors, not his widow,
must sue the agent. Lush's CommonLaw Practice a second edition, page twenty
seven. In a case where certainleasehold property was conveyed to trustees upon trust

(54:28):
to permit the wife to receive therents thereof to her sole and separate use,
and she, after marriage deposited withher trustees part of such rents,
and died. It was held thather husband might recover the same in an
action in his own right. Suchmoney so deposited was not, as shows

(54:54):
in action belonging to the wife,but money belonging to the husband, the
trust having been discharged in the paymentof the rents to the wife ibid.
Page ninety seven. Marriage to aman is regarded as a kind of lucrative

(55:20):
business. The next method of acquiringproperty in goods and chattels is by marriage,
whereby those chapels which belonged formerly tothe wife are by act of law
vested in the husband, with thesame degree of property and with the same
powers as the wife when soul hadover them. A distinction is taken between

(55:47):
chattels real and chattels personal, andof chattels personal, whether in possession or
reversion or in action. A chackelreal vests in the husband, not absolutely,
but submodo, as in case ofa lease for years. The husband

(56:14):
shall receive all the rents and profitsof it, and nay, if he
pleases sull surrender, or dispose ofit during the coverture. If he be
outlawed or attented, it shall beforfeited to the king, it is liable
to execution for his debts, andif he survives his wife, it is

(56:39):
to all intents and purposes his own. Yet if he has made no disposition
thereof in his lifetime and dies beforehis wife, he cannot dispose of it
by will. For the husband,having made no alteration in the property during
his life, it never was transferredfrom the wife. But after his death

(57:05):
she shall remain in her ancient possession, and it shall not go to his
executors. If, however, thewife die in the husband's lifetime, the
chattel reel survives to him, asto chattels personal or shows in action as

(57:27):
debts, upon bonds, contracts,and the like. These the husband may
have if he pleases, that is, if he reduces them into possession by
receiving or recovering them at law,and upon such receipt or recover it,
they are absolutely and entirely his own, and shall go to his executors or

(57:52):
administrators, or as he shall bequeaththem by will, and shall not revest
in the wife. But if hedies before he has recovered or reduced them
into possession, so that at hisdeath they still continue shows in action,
they shall survive to the wife,for the husband never exerted the power he

(58:15):
had of obtaining an exclusive property inthem. If the wife dies before the
husband has reduced shows in action intopossession, he does not become a title
by survivorship. Nevertheless, he may, by becoming an administrator, gain a

(58:37):
title. Chattels in possession, suchas ready money and the like, vest
absolutely in the husband, and hemay deal with them either whilst living or
by his will as he pleases.Where the interest of the wife is reversionary,

(59:00):
the husband's power is but small unlessit falls into possession during the marriage.
His contracts or engagements do not findit a Commentary on the Laws of
England, Broome and Hadling, Volumetwo, pages six one eight, six

(59:21):
one nine. So highly it doesthe law value the claims of a husband
that it recognizes them as existing evenbefore marriage. For if a woman who
has contracted an engagement to marry disposeof her property privately, a settle it
on herself or on her children,without the cognizance of the man to whom

(59:45):
she is engaged, such settlement ordisposition may be set aside by the husband
as a fraud. So cruel asregards property or was felt to be the
action of the common law that thewealthy devised means to escape from it.

(01:00:07):
And women of property were protected ontheir marriage by a marriage settlements, whereby
they were contracted out of the law. A woman's property or was, by
this means settled on herself. Itwas necessary to treat her as incapable,

(01:00:28):
so her property was not in herown power, but was vested in trustees
for her separate use. Thus theprinciple or the estate was protected, but
the whole interest or rental, asbefore, could be taken by the husband.
The moment it was received by thewife, her signature became necessary to

(01:00:53):
draw it, but the moment itcame into her possession it ceased to be
hers. The next step was anattempt to protect women's money in their own
hands. Terrible cases of wrong werecontinually arising men who deserted their wives and

(01:01:14):
left them to maintain the burden ofa family. It came back after the
wife had accumulated a little property,sold the furniture, pocketed the proceeds and
departed, leaving the wife to recommenceour labors. Orders of protection were given
by magistrates, but these were notfound sufficient. At last, parliamentary interference

(01:01:38):
was called for with an urgency thatcould no longer be resisted, and a
bill to amend the laws relating tomarried women's property was introduced into the House
of Commons. How sore was theneed of such amendment may be seen from
the following extracts a Mister Russell Gurneyin Moving April fourteenth, eighteen sixty nine.

(01:02:07):
The second reading of the bill observed, it is now proposed that,
for the first time in her history, the property of one half of the
married people of this country should receivethe protection of the law. Up to
this time, the property of awife has had no protection from the law,

(01:02:31):
or rather, he should say,in the eye of the law,
it has had no existence. Fromthe moment of her marriage. The wife,
in fact possesses no property. Whatevershe may up to that time have
possessed. By the very act ofmarriage passes from her, and any gift

(01:02:54):
or bequest made to her becomes atonce the property of those. Nay,
even that which one might suppose tobe her inalienable right. The fruit of
her mental or bodily toil is deniedher. She may be gifted with powers
which enable her to earn an amplefortune, But the moment it is earned,

(01:03:20):
it is not hers, it isher husband's. In fact, from
the time of her entering into whatis described as an honorable estate, the
law pronounces her unfit to hold anyproperty whatever. Mister Jessel, now Master
of the Rolls, in seconding themotion, in the course of an able

(01:03:45):
and impassioned speech, said, theexisting law is a relic of slavery,
and the House is now asked toabolish the last remains of slavery in England.
In considering what ought to be thenature of the law, we cannot
deny that no one should be deprivedof the power of disposition, unless on

(01:04:10):
proof of unfitness to exercise that power. And it is not intelligible on what
principle a woman should be considered incapableof contracting immediately after she has, with
the sanction of the law, enteredinto the most important contract conceivable. The

(01:04:30):
slavery laws of antiquity are the originof the common law on this subject.
The Roman law originally regarded the positionof a wife as similar to that of
a daughter who had no property andmight be sold into slavery at the will
of her father. When the Romanlaw became that of a civilized people,

(01:04:53):
the position of the wife was altogetherchanged. The ancient Germans, from whom
our law is derived, put thewoman into the power of her husband in
the same sense as the ancient Romanlaw did. She became his slave.
The law of slavery, whether Romanor English, for we once had slaves

(01:05:17):
and slaved laws in England, gaveto the master of a slave the two
important rights of flogging and imprisoning him. A slave could not possess property of
his own, and could not makecontracts accept by his master's benefit, and

(01:05:38):
the master alone could sue for aninjury to the slave, while the only
liability of the master was that hemust not let his slaves starve. This
is exactly the position of the wifeunder the English law. The husband has
the right of flogging and imprisoning her. As may be seen by those who

(01:06:00):
read Blackstone's Chapter on the Relations ofHusband and Wife. She cannot possess property,
she cannot contract except it is ashis agent, and he alone can
sue if she is libeled or suffersa personal injury. While all the husband

(01:06:21):
is compellable to do for her isto pay for necessaries. It is astonishing
that a law founded on such principlesshould have survived to the nineteenth century.
A quotation from a later debate findsits foot place here. Mister hind Palmer,

(01:06:45):
in Moving February nineteen, eighteen seventythree, the second reading of the
Married Woman's Property Act eighteen seventy AmendmentBirth pointed out that the common law was
that by marriage, the whole ofa woman's personal property was immediately vested in

(01:07:12):
her husband and placed entirely at hisdisposal. By contracting marriage, a woman
forfeited all her property. In eighteensixty eight, the Chancellor of the Exchequer,
mister Lowe, said, show mewhat crime there is in matrimony that
it should be visited by the samepunishment as high treason and namely confiscation,

(01:07:40):
For that is really the fact.Mister Mill too, speaking on that question,
said that a large portion of theinhabitants of this country were in the
anomalous position of having imposed on themwithout having done anything to deserve it.
What we inflicted on the worst criminalsas a penalty, Like felons, they

(01:08:04):
were incapable of holding property. Somegreat and beneficial changes were made by the
Acts of eighteen seventy and eighteen seventythree, although much yet remains to be
done. By the Act of eighteenseventy the wages and earnings of married women

(01:08:28):
were protected. They were made capableof depositing money in the savings banks in
their own names. They might holdproperty in the funds in their own names,
and have the dividends paid to them. They might hold fully paid up
shares or stock to which no liabilitywas attached. A property in societies might

(01:08:55):
be retained by them. Money comingto a married woman as the next of
kin or one of the next ofkin to an intestate, or by deed
or will, was made her own, provided that such money did not exceed
two hundred pounds the rent and profitsof freehold, a copyhold or customary hold

(01:09:19):
property inherited by a married woman orwere to be her own. A married
woman might ensure her own or herhusband's life, might, under some circumstances,
maintain an action in her own name. Married women were made liable for

(01:09:42):
the maintenance of their husbands and children. The Act of eighteen seventy three relates
entirely to the recovery of debts contractedby the woman before marriage. It will
be perceived that these acts are veryinadequate as regards placing married women in a

(01:10:04):
just position towards their property, butthey are certainly a step in the right
direction. The acts only apply tothose women who have been married subsequently to
their passing. One great omission inthem will have to be promptly remedied,

(01:10:26):
both for the sake of married womenand for the sake of their creditors.
While a married woman now may,under some circumstances sue, no machinery is
provided whereby she may be sued withoutjoining her husband. In an admirable letter

(01:10:46):
to the Times of March fourteenth,eighteen seventy eight, Missus A. Sule
Bright, alluding to the obscurity anduncertainty of the law, points out the
effect of that obscurity upon the creditof respectable married women earning their own and

(01:11:09):
their children's bread in any employment orbusiness carried on separately from their husband.
The inconvenience and risk to their creditorsis, as you have most ably pointed
out, great, but the injuryto honest wives is far greater. It
puts them at a considerable disadvantage inthe labor market and in business. A

(01:11:32):
married woman, for instance, keepinga little shop, may sue for debts
due to earth, but has nocorresponding liability to be sued. If the
whereabouts of the husband is not veryclearly defined, it is evident she may
have some difficulty in obtaining credit.Again, what employer of labor can with

(01:11:58):
any security engage the services of amarried woman. She may leave her work
at the mill at an hour's notice, unfinished, and her employer has no
remedy against her for breach of contract. As a married woman can make no
contract which is legally binding, thereis no question that such a state of

(01:12:19):
the law must operate as a restrictionupon her power to support herself and family.
The state of muddle of the presentlaw is almost inconceivable. Even now.
A woman need not pay her debtscontracted before marriage out of earnings made

(01:12:40):
after marriage. Suppose an artist ora literary woman to marry, when burdened
with debts and having no property.Should she be earning one thousand or ten
thousand a year by her profession aftermarriage, these earnings could not be made
liable for her debts contracted before marriage. It cannot too plainly be repeated that

(01:13:06):
non liability to be sued means nonexistence of credit. The law as it
stands at present is the old commonlaw, modified by the Acts of eighteen
seventy and eighteen seventy three, Archboldsays, dealing with indictments for theft,

(01:13:30):
when the person named as owner appearsto be a married woman, the defendant
must, unless the indictment is amended, be acquitted, because in law the
goods are the property of the husband, even though she be living apart from
her husband upon an income arising fromproperty vested intrustees for her separate use,

(01:13:58):
because the goods can not be theproperty of the trustees, and in law
a married woman has no property Archbold'sCriminal Cases, page forty three. Archbold
gibs as exceptions to this general rulewhere a judicial separation has taken place,

(01:14:21):
where the wife has obtained a protectionorder, or where the property is such
as is covered by the married woman'sa Property Act eighteen seventy, where a
married woman lived apart from her husbandupon an income arising from property vested in

(01:14:43):
trustees for her separate use, thejudges held that a house which she lived
in was properly described as her husband'sdwelling house, though she paid the rent
out of her separate property and thehusband had never been in it. R
The French r the R four nineone ibid Page five two one. If

(01:15:15):
a burglary be committed in a housebelonging to a married woman, the house
must be said to be the dwellinghouse of her husband, or the burglar
will be acquitted. If she beliving separate from her husband, paying her
own rent out of money secured forher separate use, it makes no difference.
It was decided in the case ofRex v. French that a married

(01:15:41):
woman could own no property, andthat the house must therefore belong to the
husband. If a married woman picksup a purse in the road and is
robbed of it, the property vestsin the husband. Where goods are in
the possession of the wife, theymust be laid as the goods of her
husband. Thus, if A isindicted for stealing the goods of B,

(01:16:06):
and it appears that B was afam covert at the time, A must
be acquitted. And even if thewife have only received money as the agent
of another person, and she isrobbed of that money before her husband receives
it into his possession. Still itis well laid as his money. In

(01:16:30):
an indictment for larceny, an indictmentcharging the stealing of a five pound Bank
of England note the property of eWall, averring in the usual way that
the money secured by the note wasdue and payable to e Wall. It
appeared that e Wall's wife had beenemployed to sell sheep belonging to her father

(01:16:56):
of Or, in which her husbandnever had either the possession or any interest,
and she received the note in paymentfor the sheep, and it was
stolen from her before she left theplace where she received it. It was
objected that the note never was theproperty of e War, either actually or
constructively, the money secured by itwas not his, and he had no

(01:17:21):
qualified property in it, as itnever was in his possession. But it
was held that the property was properlylaid. Russell on Crimes, fifth Edition,
Volume two, pages two four three, two four four. Yet even

(01:17:45):
a child, in the eye ofthe law, has propertied, and if
his clothes are stolen, it issafer to allege them to be the child's
property. The main principle of Englishlaw remains unaltered by recent legislation that a
married woman has no property. Marriedwomen share incapacity to manage property with miners

(01:18:14):
and lunatics. Miners, lunatics andmarried women are taken care of by trustees.
Miners become of age, lunatics oftenrecover. Married women remain incapable during
the whole of their married life,being incapable of holding property. A married

(01:18:40):
woman is, of course incapable ofmaking a will. Here also, the
common law may be checkmated. Shemay make a will by virtue of a
power reserved to her, or ofa marriage settlement, or with her husband's
assent, or it may be madeby her to carry her separate estate,

(01:19:04):
and the court, in determining whetheror not such will is entitled to probate,
will not go minutely into the question, but will only require that the
testatrix had a power reserved to heror was entitled to separate estate, and
will, if so satisfied, grantprobate to her executor, leaving it to

(01:19:30):
the Court of Chancery as the courtof construction, to say what portion of
her estate, if any, will, pass under such will. In this
case, the husband, though hemay not be entitled to take probate of
his wife's will, may administer tosuch of her effects as do not pass

(01:19:51):
under the will. Commentary on theLaws of England, Broome and Hadley,
Volume three, pages four, two, seven, four to eight. Thus
we see that a husband may willaway from his wife her own original property,

(01:20:13):
but a wife may not even willaway her own, unless the right
be specially reserved to her before marriage. And yet it is urged that women
have no need of votes, theirinterests being so well looked after by their
fathers, husbands and brothers. Wehave thus seen that the rights of every

(01:20:40):
Englishman are destroyed in women by marriage. One would imagine that matrimony was a
crime for which a woman deserved punishment, and that confiscation and outlawry were the
fit rewards of her misdeed. Endof section two. Section three of marriage

(01:21:16):
as it Was, as it isand as it should be. This is
a LibriVox recording. All LibriVox recordingsare in the public domain. For more
information or to volunteer, please visitLibriVox dot org. Recording by Tony Edison,

(01:21:40):
Marriage as it Was, as itis and as it Should Be?
By Annie Bessante. Section three Fromthese three great fundamental wrongs flow a large
number of eagal disabilities. Take thecase of a prisoner accused of misdemeanor.

(01:22:05):
He is often set free on hisown recognizances. But a married woman cannot
be so released, for she isincapable of becoming bail or of giving her
own recognizances. She is here againplaced in bad company. No person who
has been convicted of any crime bywhich she has become infamous is allowed to

(01:22:30):
be surety for any person charged orsuspected of an indictable offense. Nor can
a married woman, or an infant, or a prisoner in custody be bail
Archbold, page eighty eight. Letus now suppose that a woman be accused

(01:22:53):
of some misdemeanor and be committed fortrial. She desires to have her case
tried by a higher court than theusual one, and wishes to remove the
indictment by writ of sertoriarid. Shefinds that the advantage is denied her because,
as a married woman, she hasno property, and she cannot therefore

(01:23:16):
enter into the necessary recognizances to paycosts in the case of a conviction.
Thus, a married woman finds herselfplaced at a cruel disadvantage as compared with
an unmarried woman or with men.In matters of business, difficulties arise on

(01:23:39):
every hand. A married woman isincapable of making a contract. If she
takes a house without her husband's knowledgeand without stating that she is married,
the landlord may repudiate the contract.If she states that she is married,
the landlord knows that she is unableto make a legal contract and refuses to

(01:24:02):
let or least do it without heavysecurity. If she buys things, she
cannot be sued for non payment withoutmaking the husband a defendant, and she
consequently finds that she has no creditIf she is cheated. She cannot sue

(01:24:24):
accepting cases covered by the recent actswithout joining her husband, and so she
is often to submit to be wronged. A fam covert cannot sue without her
husband being joined as co plaintive.So long as the relation of marriage subsists.

(01:24:45):
It matters not that he is analien and has left the country,
or that, being a subject,he has absconded from the realm as a
bankrupt or for other purpose, orthat he has become permanently resident abroad,
or that they are living apart undera deed of separation, or have been
divorced are mentsir at thorough For noneof these events dissolve or work a suspension

(01:25:14):
at the marriage contract, and solong as that endures, the wife is
unable to sue alone, whatever thecause of action may be. This disability
results from the rule of law whichvests in the husband not only all the
goods and chattels which belonged to thewife at the time of the marriage,

(01:25:36):
but also all which she acquires afterwards. Lush's Common Law Practice, second edition,
pages thirty three, thirty four.The same principle governs all suits against
a married woman. The husband mustbe sued with her. In all actions

(01:26:00):
brought against a fame covert, whilethe relation of marriage subsists, the husband
must be joined for conformity, itbeing an inflexible rule of law that a
wife shall not be sued without herhusband. If therefore, a wife enters
into a bond jointly with her husband, or makes a bill of exchange,

(01:26:25):
promisory note, or any other contract, she cannot be sued thereon, but
the action should be brought against andthe bond bill alleged to have been made
by the husband ibid. Page seventyfive, the thoughtful author of the Rights

(01:26:47):
of Women remarks that the incapacity tosue is traceable to the time when disputes
were settled by the judgment of arms. A man represents his wife at law
now because in the days of thejudicial combat, he was her champion at

(01:27:08):
arms, and she is unable tosoon now because she was unable to fight
then, page twenty two. Theexplanation is a very reasonable one, and
is only an additional proof of theneed of alteration in the law. Our

(01:27:28):
marriage laws are as has been shownabove the survival of barbarism, and we
only ask that modern civilization will alterand improve them, as it does everything
else. Trial by combat has beendestroyed, ought not its remains to be

(01:27:48):
buried out of sight. The consequenceof these business disabilities is that a married
woman finds herself thwarted at ever return, and if she be trying to gain
a livelihood and be separated from herhusband, she is constantly pained and annoyed
by the marriage fatter, which hindersher activity and checks her efforts to make

(01:28:14):
her way. The notion that irresponsibilityis an advantage is an entirely mistaken one.
An irresponsible person cannot be dealt within business matters and is shut out
of all the usual independent ways ofobtaining a livelihood. Authorship and servitude are

(01:28:38):
the only paths really open to marriedwomen. In every other career, they
find humiliating obstacles which it needs bothcourage and perseverance to surmount. Married women
rank among the persons in subjection tothe power of others. They thus come

(01:29:00):
among those who, in many casesare not criminally liable. Infants under the
age of discretion, persons who arenon compoteis mentis not of sound mind,
and persons acting under coercion are notcriminally liable for their misdeeds. A married

(01:29:25):
woman is presumed to act under herhusband's coercion unless the contrary be proved,
and she may thus escape punishment forher wrongdoings. Constraint of a superior is
sometimes allowed as an excuse for criminalmisconduct by reason of the matrimonial subjection of

(01:29:46):
the wife to her husband. Butneither a son nor a servant is excused
for the commission of any crime bythe command or coercion of the parent or
master. Thus, if a womancommit theft or burglary by the coercion of
her husband, or even in hiscompany, which the law prima fassier construes

(01:30:12):
a coercion. She is dispunishable,being considered to have acted by compulsion and
not of her own world Commentary onthe Laws of England, Broome and Hadley,
Volume four, page twenty seven.A fam covert is so much favored

(01:30:32):
in respect of that power and authoritywhich her husband has over her, that
she shall not suffer any punishment forcommitting a bare theft or even a burglary,
by the coercion of her husband orin his company, in which the
law construes a coercion. Russell onCrimes, Volume one, page one thirty

(01:30:57):
nine. While the wife is tobe considered merely as the servant of the
husband, she will not be answerablefor the consequences of his breach of duty,
however fatal, though she may beprivy to his conduct. She squire
and his wife were indicted for themurder of a boy. He had been

(01:31:18):
cruelly treated by both and died fromdebility and want of proper food and nourishment.
Lawrence Jay directed the jury that asthe wife was the servant of the
husband, it was not her dutyto provide the apprentice with sufficient food and
nourishment, and that she was notguilty of any breach of duty in neglecting

(01:31:43):
to do so. Though if thehusband had allowed her sufficient food for the
apprentice, and she had wilfully withholdenit from him, then she would have
been guilty. But that here thefact was otherwise. And therefore, though
in fore or conscientia, the wifewas equally guilty with the husband, yet

(01:32:08):
in point of law she could notbe said to be guilty of not providing
the apprentice with sufficient food and nourishmentibid. Pages one four four, one
four five. It is hard tosee what advantage society gains by this curious
fashion of reckoning married women as childrenor lunatics. Some advantages, however,

(01:32:35):
flow to a criminal husband. Awife is not punishable for concealing her husband
from justice knowing that he is committedfelony. A husband may not conceal his
wife under analogous circumstances. So strictis the law where a felony is actually

(01:32:56):
complete in order to do effectual justice, that the nearest relations are not suffered
to aid or receive one another.If the parent assists his child or the
child his parent. If the brotherreceives the brother, the master his servant,
or the servant his master, oreven if the husband receives his wife,

(01:33:19):
having any of them committed a felony, the receiver becomes an accessory ex
post facto. But a fam covertcannot become an accessory by the receipt and
concealment of her husband, for sheis presumed to act under his coercion,

(01:33:39):
and therefore she is not found.Neither ought she to discover her lord ibid.
Page thirty eight. The wife ofa blind husband must not, however,
regard her coverture as in all casesa protection, for it has been

(01:34:00):
held that if stolen goods were inher possession, her husband's blindness preventing him
from knowing of them, her coverturedid not avail to shelter her. Any
advantage which married women may possess throughthe supposition that they are acting under the
coercion of their husbands ought to besummarily taken away from them. It is

(01:34:26):
not for the safety of society thatcriminals should escape punishment simply because they happen
to be married women. A criminalhusband becomes much more dangerous to the community
if he is to have an irresponsiblefellow conspirator beside him. Two people,
although the law regards them as one, can often commit a crime that a

(01:34:51):
single person could not accomplish, Andit is not even impossible that an unscrupulous
woman is desiring to get rid easilyfor a while of an unpleasant husband might
actually be the secret prompter of anoffense, in the commission of which she
might share, but in the punishmentof which she would have no part.

(01:35:15):
For the sake of wives as wellas of husbands, this irresponsibility should be
put an end to, for ifher husband is to be held accountable for
his wife's misdeeds and debts, itis impossible for the law to refuse him
control over her actions. Freedom andresponsibility must go hand in hand, and

(01:35:39):
women who obtain the rights of freedommust accept the duties of responsibility. A
woman has a legal claim on herhusband for the necessaries of life, and
a man may be compelled to supporthis wife, but her claim is a
very narrow one, as may beseen by the following case. A man

(01:36:02):
named Plumber was indicted for the manslaughterof his wife. He had been separated
from her for several years and paidher an allowance of two shillings and sixpence
a week. The last payment wasmade on a Sunday and she was turned
out of her lodgings. On theTuesday following. She was suffering from diarrheat

(01:36:25):
and on the Wednesday was very ill. Plumber was told of her condition,
but refused to give her shelter.The evening was wet, and a constable,
meeting her wandering about, took herto her husband's lodgings, but he
would not admit her. On Thursday, he paid for a bed for her
at a public house, and onFriday she died. Baron Gurney told the

(01:36:50):
jury that the prisoner could not becharged with having caused her death from want
of food, since he made heran allowance, and under ordinary circumstances he
might have refused to do anything more. The only question was whether the refusal
as to shelter had hastened her death. The man was acquitted. A wife

(01:37:15):
has also some limited rights over herhusband's property after his death. She may
claim dower, her wearing apparel,a bed, and some few other things,
including her personal jewelry. Her husband'spower to deprive her of her personal
ornaments, ceizes with his life toredress the whole of the wrongs as to

(01:37:42):
property, and to enable justice tobe done. It is only necessary to
pass a short Act of Parliament ordainingthat marriage shall in no fashion all to
the civil status of a woman,that she shall have over property the same
rights as though she were unmarried,and shall, in all civil and criminal

(01:38:08):
matters be held as responsible as thoughshe were a FAM's soul. In short,
marriage ought no more to affect awoman's position than it does a man's,
and should carry with it no kindof legal disability. Marital control should

(01:38:29):
cease to exist, and marriage shouldbe regarded as a contract between equals and
not as a bond between master andservant. Those who are entirely opposed to
the idea that a woman should notforfeit a property on marriage raise a number
of theoretical difficulties as to household expenses, ownership of furniture, et et cetera.

(01:38:58):
Practically, these would very so occur, if we may judge by the
experience of countries whose marriage laws donot entail forfeiture on the woman who becomes
a wife. In the Rights ofWomen, quoted from above, a very
useful summary is given of the lawsas to property in various countries. In

(01:39:19):
Germany, these laws vary considerably inthe different states. One system, known
as a gutter ger mind shaft communityof goods, is a great advance towards
equality, although it is not byany means the best resolution of the problem.

(01:39:43):
Under this system, there is noseparate property. It is all merged
in the common stock, and thehusband, as such has no more right
over the common fund than the wife. Not the wife than the husband page
twenty six. The husband administers asa representative of the community and not as

(01:40:09):
husband. He is merely had partneras it worked, and has no personal
rights beyond that. He may bedispossessed of even this limited authority if he
is wasteful. He cannot alienate ormortgage any of the common lands or rights

(01:40:29):
without her consent, a privilege itmust be remembered, which belongs to her,
not only over lands brought by herself, but also over those brought by
her husband to the marriage. Andthis control of the wife over the immovables
has for parts of Prussia been extendedby a law of April sixteenth, eighteen

(01:40:54):
fifty over movables as well, forthe husband has been forbidden to dispose not
only of immovables, but of thewhole or part of the movable property without
the consent of his wife, norcan the husband by himself make donations mortis

(01:41:15):
kawsar. Such arrangements take the formof mutual agreements between the two respecting their
claims of inheritance to one another,page twenty seven. In Austria, married
couples are more independent of each other. The wives retain their rights over their

(01:41:36):
own property and can dispose of itas they like and sue or be sued
in respect of it without marital authorizationor control, and just as they have
the free disposition of their property,so they can contract with others as they
please. The husband is unable toalienate any of his wife's in her name,

(01:42:00):
or to lend or mortgage it,or to receive any money, institute
any lawsuits, or make any arrangementsin respect of it, unless he has
her special mandate. If no stipulationis made at the marriage, each spouse
retains his or her separate property andneither has a claim to anything gained or

(01:42:24):
in any way received by the otherduring the marriage. Page fifteen. In
the New York Code USA. Beyondthe claim of mutual support, neither husband
nor wife has any interest whatever inthe property of the other. Hence,

(01:42:45):
either may enter into any engagement ortransaction with the other or with a stranger
with respect to property, just asthey might do if they continued unmarried,
page ninety five. The apportionment ofhousehold expenses must necessarily be left for the
private arrangement of the married pair.Whether woman has propertied or where she earns

(01:43:11):
her livelihood, it would be herduty to contribute to the support of the
common home. Where the couple arepoor, and the care of the house
falls directly on the shoulders of thewife, her personal toil would be her
fair contribution. This matter should bearranged in the marriage contract, just as
similar matters are now dealt with inthe marriage settlements of the wealthy. As

(01:43:38):
means of livelihood become more accessible towomen, the question will be more and
more easily arranged. It will nolonger be the fashion in homes of professional
men that the husband shall overwork himselfin earning the means of support, while
the wife overrests herself in spending them. But a more evenly divided duty shall

(01:44:02):
strengthen the husband's health by more leisure, and the wives by more work.
Recovery of debt incurred for haushold expensesshould be by suit against husband and wife
jointly, just as in a partnershipthe firm may now be sued. Recovery

(01:44:24):
of personal debts should be by suitsagainst the person who had contracted them.
Many a man's life is now renderedharder than it ought to be by the
waste and extravagance of a wife,who can pledge his name and his credit,
and even ruin him before he knowshis danger. Would not the lives

(01:44:45):
of such men be the happier andthe less toilsome yef their wives were responsible
for their own debts and limited bytheir own means. Many a woman's home
is broken up, and a childrenbeggared by the reckless spenthrop who wastes her
fortune or her earnings. Would notthe lives of such women be less hopeless

(01:45:10):
if marriage left their property in theirown hands and did not give them a
master as well as her husband.Women under these circumstances would of course become
liable for the support of their childrenequally with their husbands. A liability,
which is indeed recognized by the MarriedWomen's Property Act eighteen seventy s. Fourteen.

(01:45:38):
It is sometimes further urged by thosewho are like a man to be
master in his own house, thatunless women forfeited their property in marriage,
they would be constant discord in thehome. Surely the contrary effect would be
produced. Missus Melwell says in theessay before or quoted from the highest order

(01:46:02):
of durable and happy attachments would bea hundred times more frequent than they are
if the affection which the two sexessought from one another were that genuine friendship
which only exists between equals in privilegesas in faculties. Nothing is so likely

(01:46:25):
to cause unhappiness as the tendency totyrannize generated in the man by authority,
and the tendency to rebel generated inthe woman by enforced submission. No grown
person should be under the arbitrary powerof another. Dependence is touching in the

(01:46:46):
infant because of its helplessness. Itis revolting in the grown manner woman,
because with maturity of power should comedignity of self support. In a brilliant
article in the Westminster Review, Julyeighteen seventy four, The writer well says,

(01:47:10):
would it not to begin with bewell to instruct girls that weakness,
cowardice, and ignorance cannot constitute atonce the perfection of womankind and the imperfection
of mankind. It is time todo away with the oak and ivy ideal,

(01:47:30):
and to teach each plant to growstrong in self supporting. Perfect equality
would under this system be found inthe home, and mutual respect and deference
would replace the alternate coaxing and commandmentnow too often seen. Equal rights would
abolish both tyranny and rebellion. Therewould be more courtesy in the husband,

(01:47:57):
more straightforwardness in the wife. Then, indeed will there be some hope of
generally happy marriages. But as hasbeen eloquently said by the writer just quoted,
till absolute social and legal equality isthe basis of the sacred partnership of
marriage, the division of labors andduties in the family by free agreement,

(01:48:21):
implying no sort of inequality till nosuperiority 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 intoit as though she were a criminal.

(01:48:43):
Till then the truest love, thetruest sympathy, the truest happiness in it
will be the exception rather than therule, and the real value of this
relation, domestic and social, willbe fatally messed. That some marriages are
happy in spite of the evil law, no one will deny. But these

(01:49:05):
are the exception, not the rule. The law as it is directly tends
to promote unhappiness, and its wholeinfluence on the relations of the sexes is
injurious. To quote missus Mill oncemore, the influence of the position tends

(01:49:26):
eminently to promote selfishness. The mostinsignificant 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, andwhom he is not obliged to consult.

(01:49:51):
He is judge, magistrate, rulerover their joint concerns, arbiter of all
differences between them. His is nowthe only tribunal in civilized life in which
the same person is judge and jury. A generous mind in such a situation

(01:50:14):
makes the balance incline against its ownside, 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 dependenceinto an instrument of power, and,
in default of justice, take anungenerous advantage of generosity, rendering the unjust

(01:50:39):
power to those who make an unselfishuse of it a torment and a burden.
But how is it when average menare invested with this power, without
reciprocity and without responsibility. Give sucha man the idea that he is first
in law and in a opinion,that to will is his part and hers

(01:51:03):
to submit. It is absurd tosuppose that this idea merely glides over his
mind without sinking into it or havingany effect on his feelings and practice.
If there is any self will inthe man, he becomes either the conscious
or unconscious despot of his household.The wife, indeed, often succeeds in

(01:51:30):
gaining her objects, but it isby some of the many various forms of
indirectness and management. When marriage isas it should be, there will be
no superior and inferior by right ofposition. But men and women, whether
married or unmarried, will retain intactthe natural rights belonging to every Englishman.

(01:51:57):
In dealing with the wrongs of thewife. According to the present English marriage
laws, the wrongs of the mothermust 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 hischild until it attains the age of sixteen.

(01:52:21):
And as there be some sufficient reasonto the contrary Russell on Crimes,
Volume one, page eight nine eight. The sufficient reason is hard to find
in most cases, as the inclinationof the courts is to make excuses for

(01:52:41):
male delinquencies and to uphold every privilegewhich male parliaments have conferred on husbands and
fathers. In Shelley's case, thefather was deprived of the custody of his
children, but here religious and politicalheresy caused to strong bias against the poet.

(01:53:02):
The father's right to the custody oflegitimate children is complete. The mother
has no right over them, asagainst his. He may take them away
from her and place them in thecare of another woman, and she has
no redress. She may apply tochancery for access to them at stated times,

(01:53:24):
but even this is matter of favor, not of right. The father
may appoint a guardian in his will, and the mother, although the sole
surviving parent, has no right overher children as against the stranger appointed by
the dead father. If the parentsdiffer in religion, the children are to

(01:53:45):
be brought up in that of thefather, whatever agreement may be made respecting
them before marriage. If the fatherdies without leaving any directions, the children
will be educated in his religion.He can, if he chooses, allow
his wife to bring them up inher creed, but she can only do

(01:54:06):
so by virtue of his permission.Thus, the married mother has no rights
over her own children. She bearsthem, nurses them, toils for them,
watches over them, and may thenhave them torn from her by no
fault of her own and given intothe care of a stranger. People talk

(01:54:29):
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, andignores every claim of the mother, who
is also a wife. The unmarriedmother is far better up. She has
an absolute right to the custody ofher own children. None can step in

(01:54:55):
and deprive 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 existsbetween the parents of the child. Looking

(01:55:15):
at a woman's position both as wifeand mother, it is impossible not to
recognize the fact that marriage is adirect disadvantage to her. In an unlegalized
union, the woman retains the possessionof all her natural rights. She is
mistress of her own actions, ofher body, of her property. She

(01:55:38):
is able to legally defend herself againstattack. All the courts are open to
protect her. She forfeits none ofher rights as an englishwoman. She keeps
intact her liberty and her independence.She has no master. She owes obedience
to the laws alone. If shehave a child, the law acknowledges her

(01:56:02):
rights over it, and no mancan use her love for it as an
engine of torture to force her intocompliance with his will. Two disadvantages,
however, attached to unlegalized unions.First, the woman has to face social
disapprobation. Although of late years,as women have been coming more to the

(01:56:27):
front, this difficulty has been verymuch decreased, for women have begun to
recognize the extreme injustice of the laws, and both men and women of advanced
views have advocated great changes in themarriage contract. The second disadvantage is of
a more serious character. The childrenproceeding from an unlegalized union have not the

(01:56:54):
same rights as those born in legalwedlock, do not inherit as of right,
and have no legal name. Theseinjustices can be prevented by care in
making testamentary dispositions protecting them and byregistering the surname, but the fact of

(01:57:14):
the original unfairness still remains, andany carelessness on the parent's part will result
in real injury to the child.It must also be remembered that the father
in such a case has no rightso by his children, and this is
as unfair to him as the reversesto the mother. As the law now

(01:57:39):
is, both legal and illegal unionshave 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 bymarriage. So great are these that a

(01:58:04):
wise and self respecting woman may wellhesitate to enter into a contract of marriage
while the laws remain as they are, and a man who really honors a
woman must reluctantly subject her to thedisadvantages imposed on the English wife when he
asks her to take him as literallyher master and owner. The relative position

(01:58:31):
is as dishonoring to the man asit is insulting to the woman, and
good men revolt against it as hotlyas do the most high spirited women.
In happy marriages, all these lawsare ignored, and it is only at
rare intervals that the marriage pair becomeconscious of their existence. Some argue that

(01:58:56):
this being so small, practical harmresult 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 publicmorality to have laws on the statute
book legalizing garrotting. Laws are madeto prevent injustice being committed with impunity,

(01:59:21):
and it is a curious reversal ofevery principle of legislation to make laws which
protect wrongdoing and which can only bedefended on the ground that they are not
generally enforced. If the English marriagelaws were universally carried out, marriage would

(01:59:43):
not last for a month in England. As it is, vast numbers of
women suffer in silence, thousands rebeland break their chains, and on every
side men and women settle down intoa mutual tolerance which is simple be an
easy going indifference, accepted as theonly possible substitute for the wedded happiness which

(02:00:06):
they once dreamed of in youth,but have failed to realize in their maturity.
Things being as they are, whatis the best action for those to
take who desire to see a healthierand purer sexual morality, a morality found

(02:00:28):
that upon equal rights and diverse dutiesharmoniously discharged. The first step is to
agitate for a reform of the marriagelaws by the passing of such an Act
of Parliament. As is alluded toabove. It will be well for some
of those who desire to see sucha legislative change to meet and confer together

(02:00:54):
on the steps to be taken tointroduce such a bill into the House of
Commons. If thought necessary, amarriage reformly might be established to organize the
agitation and petitioning which are derrigered inendeavoring to get a bill passed through the
popular House. Side by side withthis effort to reform marriage abuses should go

(02:01:19):
the determination not to contract a legalmarriage while the laws remain as immoral as
they are. It is well knownthat the Quakers persistently refuse to go through
the legal English form of marriage andquiet be made their declarations according to their
own conscience, submitting to the disadvantagesentailed on them by the illegality. Until

(02:01:45):
the legislature formally recognized the Quaker declarationas a legal form of marriage. Why
should not we take a leaf outof the Quaker's book and substitute for the
present legal forms of marriage a simpledeclaration publicly made. We should differ from
the Quakers in this that we shouldnot desire that such declaration should be legalized

(02:02:12):
while the marriage laws remain as theyare. But as soon as the laws
are moralized and wives are regarded asself possessing human beings instead of as propertied,
then the declaration may, with advantage, seek the sanction of the law.
It is not necessary that the declarationshould be couched in any special form

(02:02:35):
of words. The conditions of thecontract ought to be left to the contracting
parties. What is necessary is thatit should be a definite contract, and
it is highly advisable that it shouldbe a contract in writing, a deed
of partnership, in fact, whichshould, when the law permits, be

(02:02:58):
duly stamped and readil. The law, while it does not dictate the conditions
of the contract, should enforce thoseconditions so long as the contract exists.
That is, it should interfere justas far as it does in other contracts,
and no further, the law hasno right to dictate the terms of

(02:03:20):
the marriage contract. It is forthe 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 contractingparties. It has a clear right to
interfere in defense of the interests ofany children who may be born of the

(02:03:44):
marriage, and to compel the parentsto clothe, feed, house, and
educate them properly. This duty shouldit need, be be enforced on both
parents alike, and the law shouldrecognize and impose the full discharge of the
responsibilities of parents towards those to whomthey have given life. No marriage contract

(02:04:10):
should be recognized by the law whichis entered into by miners. In this
as in other legal deeds, thereshould 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, andit should be the aim of those who

(02:04:31):
are endeavoring to reform marriage to substitutefor the present semi barbarous laws a scheme
which shall be sober, dignified andpracticable, and which shall recognize the vital
interest of the community in the unionof those who are to be the parents

(02:04:54):
of the next generation. Such adeed, as I propose, would have
no legal force at the present time, and there arises a difficulty. Might
not a liberty take advantage of thisfact to desert his wife and possibly leave
her with a child or children onher hands to the cold mercy of society,

(02:05:17):
which would not even recognize her asa married woman. Men who,
under the present state of the lawseduce women and then desert them would probably
do the same if they had gonethrough a form of marriage which had no
legally binding force. But such menare fortunately the exception, not the rule,

(02:05:41):
and there is no reason to apprehendan increase of their number, owing
to the proposed action on the partof a number of thoughtful men and women
who are dissatisfied with the present stateof the law, but who have no
wish to plunge into debauchery. Freelyacknowledge that it is to be desired that

(02:06:02):
marriage should be legally binding, andthat 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 andleaves her utterly in the power of her
husband, however unprincipled, oppressive,and wicked he may be, short of

(02:06:26):
legal crime, I take leave tothink that women have a fairer chance of
happiness and comfort in an unlegalized thanin a legal marriage. There is many
an unhappy woman who would be onlytoo glad if the libertine who has legally
married her would desert her and leaveher, even with the burden of a

(02:06:49):
family, to make for herself andher children by her own toil, a
home which should at least be pure, peaceful and respectable. Lect me,
in concluding this branch of the subject, say a word to those who agreeing
with marriage reform in principle fear toopenly put their theory into practice. Some

(02:07:14):
of these earnestly hope for change,but do not dare to advocate it openly.
Reforms have never been accomplished by reformerswho have not the courage of their
opinions. If all the men andwomen who disapprove of the present immoral laws
would sturdily and openly oppose them,If those who desire to unite their lives

(02:07:38):
but are determined not to submit tothe English marriage laws would publicly join hands
making such a declaration as is heresuggested, the social odium would soon pass
away, and the unlegalized marriage willbe recognized as a dignified and civilized substitute

(02:07:59):
for the old, brutal and savagetraditions. Most valuable work might here be
done by men and women who happyin their own marriages, yet feel the
immorality of the law and desire tosee it changed. Such married people might
support and strengthen by their open countenanceand friendship those who enter into the unlegalized

(02:08:24):
public unions here advocated, and theycan do what no one else can do
so well. They can prove toEnglish society the most bigoted and conservative society
in the world that advocacy of changein the marriage laws does not mean the

(02:08:45):
abolition of the home. The valueof such cooperation will be simply inestimable and
will do more than anything else torender the reform practicable. Courage and quiet
resolution unneeded. But with these thisgreat social change may safely and speedily be

(02:09:09):
accomplished. And of Section three Sectionfour of marriage as it was, as
it is and as it should be. This is a deprivox recording. All

(02:09:33):
LibriVox recordings are in the public domain. For more information or to volunteer,
please visit liprivox dot org. Recordingby Abbaye in July twenty sixteen. Marriage
as it Was, as it isand as it should be by any bezant
Section four two Divorce. Any proposedrew in the marriage laws of England would

(02:10:01):
be extremely imperfect unless they dealt withthe question of divorce. Marriage differs from
all ordinary contracts in the extreme difficultyof dissolving it, a difficulty arising from
the ecclesiastical character which has been imposedupon it, and from the fact that
it has been looked upon as areligious bond instead of as a civil contract.

(02:10:24):
Until the time of the Reformation,marriage was regarded as a sacrament by
all the Christian people, and itis so regarded by the majority of them
up to the present day. Whenthe Reformers advocated divorce, it was considered
as part of their general heresy andas proof of the immoral tendency of their
doctrines. Among Roman Catholics, thesacramental and therefore the indissoluble character of marriage

(02:10:52):
is still maintained, but among Protestantsdivorces admitted, the laws regulating it varying
much indifferent country. In England,owing to the extreme conservatism of the English
in all domestic matters, the Protestantview of marriage made its way very slowly.
Divorce remained within the jurisdiction of ecclesiasticalcourts, and these granted only divorces

(02:11:16):
a mensa et thorough in cases wherecruelty or adultery was pleaded as rendering conjugal
life impossible. These courts never granteddivorces a vinculu matrimoni, which permit either
or both of the divorced persons tocontract a fresh marriage, except in cases

(02:11:37):
where the marriage was annulled as havingbeen void from the beginning. They would
only grant a separation from bed andboard, 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 bya commission under the authority of three and
four Edward, the sixth Chapter eleven, which was intended as a basis for

(02:12:01):
the remodeling of the marriage laws,but the death of the King prevented the
proposed reform. The ecclesiastical courts remainedas they were, and absolute divorce was
unattainable. Natural impatience of a lawwhich separated unhappy married people only to impose
celibacy on them caused occasional applications tobe made to Parliament for relief, and

(02:12:24):
a few marriages were thus dissolved underexceptional circumstances. In seventeen o one a
bill was obtained enabling a petitioner toremarry, and in seventeen ninety eight Lord
Loughborough's orders were passed. By theseorders, no petition could be presented to
the House unless an official copy ofthe proceedings and of a definite sentence of

(02:12:48):
divorce a mensa et thorow in theecclesiastical courts was delivered on oath at the
bar of the house at the sametime, after explaining the procedure of the
ecclesiastical court, Broom goes on adefinite sentence of divorce amenza at thorow.
Being thus obtained, the petitioner proceededto lay his case before the House of

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Lords. In accordance with the standingorders before adverted to and subject to his
proving the case, he obtained abill 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 Onethe marriage was dissolved. Two the husband

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was empowered to marry again. Threehe was given the rights of a husband
as to any property of an aftertaken wife. Four the divorced wife was
deprived of any right she might haveas his widow. Five Her after acquired
property was secured to her as againstthe husband from whom she was divorced.

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In the case of the wife obtainingthe bill, similar provisions were made in
her favor. In eighteen fifty seven, an act was passed establishing a court
for divorce and matrimonial causes, andthus a great step forward was taken.
This court was empowered to grant ajudicial separation equivalent to the old divorce a

(02:14:16):
mensa at sorrow in cases of cruelty, desertion for two years and upwards,
or adultery on the part of thehusband. It was further empowered to grant
an absolute divorce with right of remarriageequivalent to the old divorce a vinculu matrimoni
in cases of adultery on the partof the wife, or of on the

(02:14:37):
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 adivorce amenza at sorrow, or of adultery
coupled with desertion without reasonable excuse fortwo years or upwards. The other powers

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held by the court need not nowbe specially dwelt upon. The first reform
here needed is that husband and wifeshould 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'spart can release the wife. If they
be living together, a husband maykeep as many mistresses as he will,

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and provided that he carefully avoid anyroughness which can be construed into legal cruelty,
he is perfectly safe from any suitfor dissolution of marriage. Adultery alone,
when committed by the husband, isnot crowned for a dissolution of marriage.
It must be coupled with some additionaloffense before the wife can obtain her

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freedom. But the husband can obtaina dissolution of marriage for adultery committed by
the wife, and he can furtherobtain money damages from the correspondent as a
solatium to his wounded feelings. Divorceshould be absolutely equal as between husband and
wife. Adultery on either side shouldbe sufficient, and if it be thought

(02:16:07):
necessary to join a male correspondent whenthe husband is the injured party, then
it should also be necessary to joina female correspondent where the wife brings the
suit. The principle, then,which should be laid down as governing all
cases of divorce, is that nodifference should be made in favor of either
side. Whatever is sufficient to breakthe marriage in the one case should be

(02:16:31):
sufficient to break it in the other. Next, the system of judicial separation
should be entirely swept away wherever divorceis granted at all. The divorce should
be absolute. No useful end isgained by divorcing people practically and regarding them
as married legally. A technical tieis kept up which retains on the wife

(02:16:54):
the mass of disabilities which flow frommarriage, while depriving her of all the
privileges, and which widows both manand woman, exiling them from home life
and debarring them from love. Judicialseparation is a direct incentive to licentiousness and
secret sexual intercourse. The partially divorcedhusband, refused any recognized companion, either

(02:17:16):
indulges in promiscuous lust to the ruinof his body and mind, or privately
lives with some woman whom the lawforbids him to marry, and whom he
is ashamed to openly acknowledge. Meanwhile, the semi divorced wife can obtain no
relief, and is compelled to liveon without the freedom of the spinster or

(02:17:37):
the widow, or the social considerationof the married woman. She can only
obtain freedom by committing what the lawand society brand as adultery. If she
has any scruples on this head,she must remain alone, unloved, and
without home, living a said,solitary life until death, more mercifully than
the law sets her free. Itis hard to see what object there can

(02:18:03):
be in separating a married couple,in breaking up the home, dividing the
children, and yet maintaining the factof marriage, just so far as shall
prevent the separated couple from forming newties. The position of those who regard
divorces altogether sinful is intelligible, howevermistaken. But the position of those who
advocate divorce but object to the divorcedcouple having the right of contracting a new

(02:18:28):
marriage is wholly incomprehensible. No oneprofits by such divorce. While the separated
couple are left in a dubious andmost unsatisfactory condition. They are neither married
nor unmarried. They can never shakethemselves free from the links of the broken
chain. They carry about with themthe perpetual mark of their misfortune, and
can never escape from the blunder committedin their youth. They would be the

(02:18:54):
happier, and society would be thehealthier, if the divorce of life and
of interests were also a divorce whichshould set them free to seek happiness.
If they will in other unions freetechnically as well as really free in law
as well as in fact. Ifit be admitted that all divorce should be

(02:19:16):
absolute, the question arises what shouldbe the ground of divorce. First adultery,
because breach of faith on either sideshould void the contract which implies loyalty
to each other. The legal costsof both should fall on the breaker of
the contract, but no damages shouldbe recoverable against the third party. Next,

(02:19:37):
cruelty, because where the weaker partysuffers from the abuse of power of
the stronger they are the law should, when appealed to step in to annull
the contract, which is thus asource of injury to one of the contracting
parties. If a man be broughtup before the magistrate charged with wife beating
or violence of any kind towards hiswife, and be convicted and sentenced,

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the divorce court should, on thedemand of the wife, the record being
submitted to it, pronounce a sentenceof divorce. In the rare case of
violence committed by a wife on herhusband, the same result should accrue.
The custody of the children should beawarded to the innocent party. Since neither
a man nor a woman convicted ofdoing bodily harm to another is fit to

(02:20:24):
be trusted with the guardianship of achild. Footnote. Since these lines were
published in the National Reformer, aclause has been inserted in a bill now
before Parliament empowering magistrates to grant anorder of separation to a wife if it
is proved that she has been cruellyill used by her husband, and further

(02:20:46):
compelling the husband in such a caseto contribute a weekly sum towards her maintenance.
This will be a great improvement onthe present state of things, but
absolute divorce would be better than mereseparation and footnote. The next distinct ground
of divorce should be habitual drunkenness.Drunkenness causes misery to the sober partner and

(02:21:09):
is ruinous in its effect both onthe 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 theinnocent parent. At present, the usual
unfairness presides over the arrangements as toaccess to the children by the parents.

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In the case of a mother whois proved guilty of adultery, she is
usually debarred from such excess. Thoughit has not been the practice to treat
the offending father with the same rigor. In all cases of divorce, the
interests of the children should be carefullyguarded. Both parents should be compelled to
contribute to their support, whether theguardianship be confided to the mother or to

(02:21:54):
the father. These glaring reasons forgranting a divorce will be admitted by by
everyone who recognizes the reasonableness of divorceat all, but there will be more
diversity of opinion as to the advisabilityof making divorce far more easily attainable.
The French Convention of seventeen ninety twoset an example that has been only too

(02:22:16):
little followed. For the first timein French history, divorce was legalized in
France. It was obtainable on theapplication of either party to the marriage,
alleging simply as a cause incompatibility ofhumor or character. The female children were
to be entirely confided to the careof the mother, as well as the

(02:22:37):
males to the age of seven years, when the latter were again to be
recommitted to the superintendence of the father, provided only that by mutual agreement any
other arrangement might take place with respectto the disposal of the children, or
arbitrators might be chosen by the nearestof kin to determine on the subject.

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The parents were to contribute equally tothe maintenance of the children in proportion to
their property, whether under the careof the father or mother. Family arbitrators
were to be chosen to direct withrespect to the partition of the property or
the elementary pension to be allowed tothe party divorced. Neither of the parties

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could contract a new marriage for thespace of one year. This beneficial law
was swept away with many other usefulchanges when tyranny came back to France.
At the present time, the onlycountries were divorces easily obtainable are some of
the states of Germany and of America. It has been held in at least

(02:23:39):
one American state that proved incompatibility oftemper was sufficient ground for separation, and
reasonably so. If two people enterinto a contract for their mutual comfort and
advantage, and the contract issues inmutual misery and lass, why should not
the contract be dissolved? It isurged that marriage would be dishonored if divorce

(02:24:03):
were easily attainable. Surely marriage isfar more dishonored by making it a chain
to tie together two people who havefor each other neither affection nor respect.
For the sake of every one concerned, an unhappy marriage should be easily dissoluble.
The married couple would be the happierand the better for the separation.
Their children, if they have any, would be saved from the evil effect

(02:24:26):
of continual family jars, and fromthe loss of respect for their parents caused
by the spectacle of constant bickering.The household would be spared the evil example
of the quarrels of its heads.Society would see less vice and fewer scandalous
divorce suits. In all cases ofcontract save that one of marriage, those

(02:24:48):
who make can, by mutual consent, unmake Why should those who make the
most important contract of all be deprivedof the same right. Mister John Stewart
Mill, dealing very briefly with themarriage contract in his Essay on Liberty,
points out that the fulfillment of obligationsincurred by marriage must not be forgotten when

(02:25:11):
the contract is dissolved, since thesemust be greatly affected by the continuance or
disruption of the relation between the originalparties to the contract. But he goes
on to say, it does notfollow nor can I admit that these obligations
extend to requiring the fulfillment of thecontract at all costs to the happiness of

(02:25:33):
the reluctant party. But they area necessary element in the question. And
even if, as from Whomboard maintains, they ought to make no difference in
the legal freedom of the parties torelease themselves from the engagement, and I
also hold that they ought not tomake much difference, they necessarily make a

(02:25:54):
great difference in the moral freedom.A person is bound to take all these
circumstances into account before resolving on astep which may affect such important interests of
others, And if he does notallow proper weight to those interests, he
is morally responsible for a wrong.I have made these obvious remarks for the

(02:26:15):
better illustration of the general principle ofliberty, and not because they are at
all needed on the particular question,which, on the contrary, is usually
discussed as if the interest of childrenwas everything and that of grown persons nothing.
The essay of von Humboldt, referredto by mister Mill is that on
the sphere and duties of government,von Humbaldt argues that even where there is

(02:26:41):
nothing to be objected to the validityof a contract, the state should have
the power of lessening the restrictions whichmen impose on one another, even with
their own consent, and by facilitatingthe release from such engagements, of preventing
a moment's decision from hindering their freedomof an action for too long a period
of life. After pointing out thatcontracts relating to the transfer of things should

(02:27:07):
be binding, for Homeboard proceeds withcontracts which render personal performance a duty,
or still more with those which produceproper personal relations, the case is wholly
different. With these, coercion operateshurtfully on man's noblest powers. And since
the success of the pursuit itself,which is to be conducted in accordance with

(02:27:30):
the contract, is more or lessdependent on the continuing consent of the parties,
a limitation of such a kind isin them productive of less serious injury.
When therefore, such a personal relationarises from the contract as not only
to require certain single actions, butin the strictest sense, to affect the

(02:27:52):
person and influence the whole manner ofhis existence. Where that which is done
or left undone is in the closedependence on internal sensations. The option of
separation should always remain open, andthe step itself should not require any extenuating
reasons. Thus it is with matrimonyRobert Dale Owen, the virtuous and justly

(02:28:16):
revered author of moral physiology, aman so respected in his adopted country,
the United States of America, thathe was elected as one of its senators
and was appointed American Ambassador at theCourt of Naples. Robert Dale Owen,
in a letter to Robert Whitmore,editor of the Boston Trumpet, May eighteen

(02:28:37):
thirty eight, deals as follows withthe contract of marriage. I do not
think it virtuous or rational in aman and woman solemnly to swear that they
will love and honor each other untildeath part them. First, because if
a fiction or esteem on either sideshould afterwards cease as alas we often see

(02:28:58):
it sees, the person who tookthe marriage oath has perjured himself. Secondly,
because I have observed that such anoath, being substituted for the noble
and elevating principle of moral obligation,has a tendency to weaken that principle.
You will probably ask me whether Ishould equally object to a solemn promise to
live together during life, whatever happens. I do not think this equally objectionable,

(02:29:24):
because it is an explicit promise possibleto be kept, whereas the oath
to love until death may become impossibleof fulfillment. But still I do not
approve even this possible premise, andI will give you the reasons why.
I do not that a man andwoman should occupy the same house and daily

(02:29:45):
enjoy each other's society, so longas such an association gives birth to virtuous
feelings, to kindness, to mutualforbearance, to courtesy, to disinterested affection,
I consider right and proper that theyshould continue to inhabit the same house
and to meet daily, in casesuch intercourse should give birth to vicious feelings,

(02:30:07):
to dislike, to ill temper,to scolding, to a carelessness of
each other's comfort, and a wantof respect for each other's feelings. This
I consider, when the two individualsalone are concerned neither rite nor proper,
neither conducive to good order nor tovirtue. I do not think it well,

(02:30:28):
therefore, to promise at all hazardsto live together for life. Such
a view may be offensive to Orthodoxy, but surely, surely it is approved
by common sense. Ask yourself,sir, who is who can be the
gainer the man, the woman,or society at large by two persons living

(02:30:50):
in discord, rather than parting inpeace, as Abraham and Lord did when
their herdsmen could not agree. Wehave temptations enough already to ill humor in
the world without expressly creating them forourselves. And of all temptations to that
worst of petty vices, domestic bickering. Can we suppose one more strong or

(02:31:11):
more continually active than a forced associationin which the heart has no share?
Do not the interests of virtue andgood order? Then imperiously demand? As
the immortal author of Paradise Lost arguedin his celebrated work on Divorce, that
the law should abstain from perpetuating anyassociation after it has become a daily source

(02:31:35):
of vice. If children's welfare isconcerned, and that they will be injured
by a separation, the case isdifferent. Those who impart existence to sentient
beings are in my view, responsibleto them for as much happiness as it
is in their power to bestow.The parent voluntarily assumes this greatest of responsibilities,

(02:31:58):
and he who has, having soassumed it, trifles with his chrial's
best interests for his own selfish gratification, is in my eyes, utterly devoid
of moral principle, or at theleast utterly blind to the most sacred duty
which a human being can be calledto perform. If, therefore, the
well being and future prosperity of thechildren are to be sacrificed by a separation

(02:32:24):
of the parents, then I wouldpositively object to the separation, however grievous
the evil effects of a continued connectionmight be to the dissentient couple. Whether
the welfare of children is ever promotedby the continuation of an ill assorted union
is another question, as also inwhat way they ought to be provided for

(02:32:45):
where a separation actually takes place.But to regard for the moment the case
of the adults alone, you willremark that it is no question for us
to determine whether it is better ormore proper that affection, once conceived,
should last through life. We mightas well sit down to decree whether the

(02:33:05):
sun should shine or be hid undera cloud, or whether the wind should
blow a storm or a gentle breeze. We may rejoice when it does so
last, and grieve when it doesnot. But as to legislating about the
matter, it is the idlest ofabsurdities. But we can determine by law
the matter of living together. Wemay compel a man and woman, though

(02:33:28):
they hate each other, as cordiallyas any of Byron's heroes, to have
one common name, one common interest, and nominally one common bed and board.
We may invest them with the legalappearance of the closest friends, while
they are the bitterest enemies. Itseems to me that mankind have seldom considered
what are the actual advantages of sucha proceeding to the individuals and to society.

(02:33:54):
I confess that I do not seewhat is gained in so unfortunate a
situation by keeping up the appearance whenthe reality is gone. I do see
the necessity in such a case,if the man and woman separate, of
dividing what property they may possess equallybetween them. And while the present monopoly
of profitable occupations by men lasts,I also see the expediency in case the

(02:34:20):
property so divided be not sufficient forthe woman's comfortable support of causing the man
to continue to contribute a fair proportionof his earnings towards it. I also
see the impropriety, as I saidbefore, that the children, if any
there be, should suffer. ButI cannot see who is the gainer by
obliging two persons to continue in eachother's society. When heart burnings, bickerings,

(02:34:45):
and other vicious results are to bethe consequence. There are cases when
affection ceases on one side and remainson the other. No one can deny
that this is an evil, oftena grievous one. That I cannot perceive
how the law can remedy it orsoften its bitterness, any more that it
can legislate away the pain caused byunreturned friendship between persons of the same sex.

(02:35:11):
You will ask me, perhaps,whether I do not believe that but
for the law, there would bea continual and selfish change, indulged without
regard to the feelings or welfare ofothers. What there might be in the
world viciously trained and circumstanced, asso many human beings now are I know

(02:35:31):
not, though I doubt whether thingscould be much worse than they are now.
Besides that, no human power canlegislate for the heart. But if
men and women were trained, asthey so easily might, to be even
decently regardful to each other's feelings,may we not assert positively that no such
result could possibly happen. Let meask each one of your readers, and

(02:35:56):
let each answer to his or herown heart. Are you indeed bound to
those you profess to love and honorby the law alone, alas for your
chance of happiness? If the answerbe yes, The fact is, as
mister Owen justly says, that apromise to love until death do us part

(02:36:18):
is an immoral promise because its performanceis beyond the power of those who give
the promise. To love or notto love is not a matter of the
will. Love in chains loses hislife and only leaves a corpse in his
captive's hand. Love is, ofits very nature, voluntary, freely given,

(02:36:39):
drawing together by an irresistible sympathy,those whose natures are adapted to each
other. Shelley Well says in oneof the notes on Queen mab love is
inevitably consequent on the perception of loveliness. Love wither is under constraint. Its
very essence is liberty. It iscompatible neither with obedience, jealousy, nor

(02:37:01):
fear. It is their most pure, perfect and unlimited, where its votaries
live in confidence, equality and unreserve. To say this is not to say
that higher duty may not come betweenthe lovers, may not for a time
keep them apart, may not evenrender their union impossible. It is only

(02:37:22):
to recognize a fact that no thoughtfulperson can deny, and to show how
utterly wrong and foolish it is topromise for life that which can never be
controlled by the will. End ofSection four, Section five of marriage as

(02:37:46):
it was, as it is,and as it should be. This is
a liprivox recording. All LibriVox recordingsare in the public domain. For more
information or to volunteer, please visitliprivox dot org. Recording by Ava'i in
July two thousand sixteen. Marriage asit was, as it is, and

(02:38:07):
as it should be by any bezant. Section five Divorce, Part two.
But marriage, it is said,would be too lightly entered into if it
were so easily dissoluble. Why peopledo not rush into endless partnerships because they
are dissoluble at pleasure. On thecontrary, such partnerships last just so long

(02:38:33):
as they are beneficial to the contractingparties. In the same way, marriage
would last exactly so long as itscontinuance was beneficial, and no longer when
it became hurtful it would be dissolved. How long, then, asks Shelley,
ought the sexual connection to last?What law ought to specify the extent

(02:38:54):
of the grievances which should limit itsduration? A husband and wife ought to
con continue so long united as theylove each other. Any law which should
bind them to cohabitation for one momentafter the decay of their affection would be
a most intolerable tyranny, and themost unworthy of toleration. How odious a

(02:39:16):
usurpation of the right of private judgmentshould that law be considered, which should
make the ties of friendship indissoluble inspite of the caprices, the inconstancy,
the valuability and capacity for improvement ofthe human mind, And by so much
would the fetters of love be heavierand more unendurable than those of friendship,

(02:39:37):
As love is more vehement and capricious, more dependent on those delicate peculiarities of
imagination and less capable of reduction tothe ostensible merits of the object. The
connection of the sexes is so longsacred as it contributes to the comfort of
the parties, and is naturally dissolvedwhen its evils are greater than its benefits.

(02:40:00):
There is nothing immoral in this separation. In spite of this facility of
divorce, marriage would be the mostenduring of all partnerships. Not only is
there between married couples the tie ofsexual affection, but around them grows up
a hedge of common thoughts, commoninterests, common memories, that, as

(02:40:20):
years go on, makes the ideaof separation more and more repulsive. It
would only be where the distaste hadgrown strong enough to break through all these
that divorce would take place, andin such cases the misery of the enforced
common life would be removed without harmto any one. Of course, this

(02:40:41):
facility of divorce will entirely sweep awaythose odious suits for restitution of conjugal rights
which occasionally disgrace our courts. Ifa husband and wife are living apart without
legal sanction, it is now opento either of them to bring a suit
for restitution of conjugal rights. Thedecree of restitution pronounces for the marriage,

(02:41:03):
admonishes the respondent to take the petitionerhome and treat him or her as husband
or wife, and to render himor her conjugal rights, and further to
certify to the court within a certaintime that he or she had done so,
in default of which an attachment forcontempt of court will be issued against

(02:41:24):
the offending party. It is difficultto understand how any man or woman endued
with the most rudimentary sense of decencycan bring such a suit, and,
after having succeeded, can enforce thedecision. We may hope that as sexual
morality becomes more generally recognized, itwill be seen that the essence of prostitution

(02:41:48):
lies in the union of the sexeswithout mutual love. When a woman marries
for rank, for title, forwealth, she sells herself as veritably as
her poorer and more unfortunate sister.Love alone makes the true marriage, love
which is loyal to the beloved anddissuaded by no baser motive than passionate devotion
to its object. When no suchlove exists, the union, which is

(02:42:13):
marriage by law, is nothing higherthan legalized prostitution. The enforcement on an
unwilling man or woman of conjugal rightsis something even still lower it is legalized
rape. It may be hoped thatwhen divorce is more easily obtainable, the
majority of marriages will be far happierthan they are now. Half the unhappiness

(02:42:35):
of married life arises from the toogreat feeling of security, which grows out
of the indissoluble character of the tie. The husband is very different from the
lover, the wife from the betrothed. The ready attention, the desire to
please, the eager courtesy which characterizedthe lover disappear when possession has become certain.

(02:42:56):
The daintiness, the gaiety, theattractiveness which marked the betrothed are no
longer to be seen in the wife, whose position is secure in society.
A lover may be known by hisattention to his betrothed, a husband by
his indifference to his wife. Ifthe worst were the result of jarring at
home, married life would very rapidlychange. Hard words, harshness, petulance

(02:43:20):
would be checked, where those whohad won the love desired to keep it,
and attractiveness would no longer be droppedon the threshold of the home.
Here too, Shelley's words are wellworth weighing. The present system of restraint
does no more in the majority ofinstances than make hypocrites or open enemies.

(02:43:41):
Persons of delicacy and virtue unhappily unitedto those whom they find it impossible to
love, spend the loveliest season oftheir life in unproductive efforts to appear otherwise
than they are for the sake ofthe feelings of their partner or the welfare
of their mutual offspring. Those oflefe his generosity and refinement openly avow their

(02:44:03):
disappointment and linger out the remnant ofthat union which only death can dissolve in
a state of incurable bickering and hostility. The early education of the children takes
its color from the squabbles of theparents. They are nursed in a systematic
school of ill, humor, violence, and falsehood. Had they been suffered
to part at the moment when indifferencerendered their union irksome, they would have

(02:44:28):
spared many years of misery. Theywould have connected themselves more suitably, and
would have found that happiness in thesociety of more congenial partners which is forever
denied them by the despotism of marriage. They would have been separately useful and
happy members of society, who,whilst united, were miserable and rendered misantropical

(02:44:50):
by misery. The conviction that wedlockis indissoluble holds out the strongest of all
temptations to the perverse. They indulgewithout res strained in acrimony and all the
little tyrannies of domestic life when theyknow that their victim is without appeal.
If this conviction were put on arational basis, each would be assured that

(02:45:11):
habitual ill temper would terminate in separation, and would check his vicious and dangerous
propensity. To those who had thoughtover the subject carefully, it was no
surprise to hear mister Moncure Conway sayin a debate on marriage at the Dialectical
Society that in Illinois, USA,where there is great facility of divorce,

(02:45:33):
the marriages were exceptionally happy. Thereason was not far to seek dealing elsewhere
with the same injurious effect of overcertainty on the relations of married people to
each other. Mister Moncure Conway rightsas follows. In England, we smilingly
walk our halls of Ebliss covering thefatal wound. But our neighbors across the

(02:45:56):
channel are frank. Their moralists cannot blot out the proverb that marriage is
the suicide of love? Is itany truer here than there that, as
a general thing, the courtesies ofthe courtship survive in the marriage. Who
is that domino walking with George?Asks Grisette number one, as reported by

(02:46:18):
Chardi Bardi, Why returns Grisette numbertwo? Do you not walk behind them
and listen to what they say?I have done so? And they do
not say a word. Ah,it is his wife. But what might
be George's feeling if he knew hiswife might leave him some morning? If
conserve of roses be frequently eaten,they say in Persia, it will produce

(02:46:43):
a surfeit. The thousands of husbandsand wives yawning in each other's faces at
this moment need not go so farfor their proverb. If it be well,
as it seems to me to be, that this most intimate relation between
man and woman should be made asdurable as the open for which it is
formed will admit. Surely the bondshould be real to the last. A

(02:47:05):
bond of kindliness, thoughtfulness, actualhelpfulness. So long as the strength of
the bond lies simply in the disagreeableconcomitants of breaking it, So long as
it is protected by the very ironhardness which makes it gal and oppress,
what need is there of the reinforcementof it by the cultivation of minds,
the preservation of good temper and consideratebehavior. Love is not quite willing to

(02:47:30):
accept the judge's mace for his arrow. When the law no longer supplies husband
or wife with a cage, eachmust look to find and make available what
resources he or she has for holdingwhat has been won. We may then
look for sober second thoughts, bothbefore and after marriage. Love, from
so long having bandaged eyes, willbe all aye. Every real attraction will

(02:47:54):
be stimulated when all depends upon realattraction. When the conc becomes fatiguing,
it will be refreshed by a newflavor, not by a certificate from the
hour. When a thought of obligationinfluences either party to it, the marriage
becomes a prostitution. A remarkable instanceof the permanence of unions dissoluble at pleasure

(02:48:18):
is to be found related by RobertDale Owen in an article entitled Marriage and
Placement, which appeared in the FreeInquirer of May twenty eighth, eighteen thirty
one. It deals with the unionsbetween the sexes in the Hayton Republic,
and the facts therein related are wellworthy of serious attention. Mister Owen writes,

(02:48:39):
legal marriage is common in Saint Domingoas elsewhere. Prostitution too, exists
there as in other countries. Butthis institution of placement is found nowhere that
I know of. But among theHaytians, those who choose to marry are
united, as in other countries,by a priest or magistrate. Those who

(02:49:01):
do not choose to marry, andwho equally shrink from the mercenary embrace of
prostitution, are in the phraseology ofthe island plus c that is literally translated
placed. The difference between placement andmarriage is that the former is entered into
without any prescribed form, the latterwith the usual ceremonies. The former is

(02:49:24):
dissoluble at a day's warning. Theletter is indissoluble except by the vexatious and
degrading formalities of divorce. The formeris a tacit social compact. The latter
a legal compulsory one. In theformer, the woman gives up her name
and her property. In the lattershe retains. Both marriage and placement are

(02:49:46):
in Haiti equally respectable, or ifthere be a difference, it is in
favor of placement, and in effectten placements take place in the island for
one marriage. Petime. The Jeffersonof Haiti sanctioned the custom by his approval
and example Boyer, his successor,the president, did the same, and

(02:50:07):
by far the largest portion of therespectable inhabitants have imitated their presidents and are
placed not merrit The children of theplacet have in every particular the same legal
rights and the same standing as thoseborn in wedlock. I imagine I hear
from the clerical supporters of Orthodoxy onegeneral burst of indignation at this sample of

(02:50:31):
national profligacy, at this contemning ofthe laws of God and Man, at
this escape from the Church's ceremonies andthe ecclesiastical blessing. I imagine I hear
the questions, sneeringly put, howlong these same respectable connections commonly last,
and how many dozen times they arechanged in the course of a year.

(02:50:52):
Gently, my reverend friends. Itis natural you should find it wrong that
men and women dispense with your servicesand to curtail your fees in this matter.
But it is neither just nor properthat, because no prayers are said
and no fees paid, you shoulddenounce the custom as a profligate one.
Learn, as I did the otherday from an intelligent French gentleman who had

(02:51:15):
remained some time on the island.Learn that although there are ten times as
many placed as married, yet thereare actually fewers separations among the former than
divorces among the latter. If constancythen is to be the criterion of morality,
these same profligate unions, that is, unions unprayed for by the priest

(02:51:37):
and unpaid for to him, areten times as moral as the religion sanctioned
institution of marriage. But this isnot all. It is a fact notorious
in Haiti that libertinism is far morecommon among the married than among the placed.
The explanatory cause is easily found aplacement secure to the consenting couple no

(02:52:01):
legal right over one another. Theyremain together, as it were, on
good behavior, not only positive tyrannyor downright viagoism. But petulant, peevishness,
or selfish ill humor are sufficient causesof separation. As such, they
are avoided with sedulous care. Thenatural consequence is that the unions are usually

(02:52:24):
happy, and that each being comfortableat home, is not on the search
for excitement abroad in indissoluble marriage.On the contrary, if the parties should
happen to disagree, their first jarringsare unchecked by considerations of consequences. A
husband may be as tyrannical as tohim seems good. He remains a lord
and master. Still, a wifemay be as pettish as she pleases,

(02:52:48):
she does not thereby forfeit the rightsand privileges of a wife. Thus,
ill humor is encouraged by being legalized, and the natural results ensue alienation of
the heart and sundering of the affections. The wife seeks relief in fashionable dissipation,
the husband perhaps in the brutalities ofa brothel. But aside from all

(02:53:11):
explanatory theories, the fact is asI have stated it. That is that,
taking the proportion of each into account, there are ten legal separations of
the married, for one voluntary separationof the plaste. If any one doubts
it, let him inquire for himself, and he will doubt no longer.

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What say you to that fact,my reverend friends, how consorts it with
your favorite theory That man is aprofligate animal, a desperately wicked creature,
that, but for your prayers andblessings to earth, would be a scene
of licentiousness and excess. That humanbeings remain together only because you have helped
to tie them, That there isno medium between priestly marriage and unseemly prostitutions.

(02:54:00):
Sis fact, open your eyes alittle on the real state of things
to which we heterodox spirits venture tolook forward. Does it assist in explaining
to you how it is that weare so much more willing than you to
entrust the most sacred duties to moralrather than legal keeping. You cannot imagine

(02:54:20):
that man and a woman, findingthemselves suited to each other, should agree,
without your interference, to become companions, That he should remove to her
plantation or she to his, asthey found it most convenient, that the
connection should become known to their friendswithout the agency of bands, and be
respected, even though not ostentatiously announcedin a newspaper. Yet all this happens

(02:54:43):
in Haiti without any breach of propriety, without any increase of vice. But
on the contrary, much to thebenefit of morality and the discouragement of prostitution,
it happens among the white as wellas the colored population, and the
president of the country gives it hissanction in his own person. Do you

(02:55:05):
still ask me, accustomed as youare, to consider virtue the offspring of
restrictions, do you still ask mewhat the checks are that produce and preserve
such a state of things? Ireply, good feeling and public opinion.
Continual change is held to be disreputable. Where sincere and well founded affection exists,

(02:55:26):
it is not desired. And asthere is no pecuniary inducement in forming
a placement, these voluntary unions areseldom ill assorted. Where social anarchy is
feared, facts like these are worthpages of argument. If the Haitians are
civilized enough for this more moral kindof marriage, why should Europeans be on

(02:55:48):
a lower level. For it shouldnot be forgotten that the experiment was tried
in Saint Domingo under great disadvantages,and these unlegalized unions have yet proved more
permanent than those tied with all dueformality and tightness. It may be urged,
if divorce is to be so easilyattainable, why should there be a

(02:56:09):
marriage contract at all, Both asregards the pair immediately concerned and as regards
the children who may result from theunion, a clear and definite contract seems
to me to be eminently desirable.It is not to be wished that the
union of those on whom depends thenext generation should be carelessly and lightly entered

(02:56:30):
into the dignity and self recollection whicha definite compact implies are by no means
to be despised when it is rememberedhow grave and weighty are the responsibilities assumed
by those who are to give tothe state new citizens and to humanity new
lives, which must be either ablessing or a curse. But the dignity

(02:56:52):
of such a course is not itsonly, nor indeed its main recommendation.
More important is the absolute noness necessitythat the conditions of the union of the
two adult lives should be clearly andthoroughly understood between them. No wise people
enter into engagements of an important anddurable character without a written agreement A definite

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contract excludes all change of disagreement asto the arrangements made, and prevents misunderstandings
from arising. A verbal contract maybe misunderstood by either party. Lapse of
time may bring about partial forgetfulness,Slight disagreements may result in grave quarrels.
If the contract be a written one, it speaks for itself, and no

(02:57:37):
doubt can arise which cannot be reasonablysettled. All this is readily seen where
ordinary business partnerships are concerned. Butsome unconsciously rebounding from the present immoral system
and plunging into the opposite extreme,consider that the union in marriage of man
and woman is too tender and sacreda thing to be thus there with as

(02:58:00):
from a business point of view.But it must be remembered that while love
is essential to true and holy marriage, marriage implies more than love. It
implies also a number of new relationsto the outside world, which, while
men and women live in the world, cannot be wholly disregarded. Questions of
house, of money, of credit, et cetera necessarily arise in connection with

(02:58:24):
the dual home, and this cannotbe ignored by sensible men and women.
The contract does not touch with rudehands the sensitive plant of love. It
concerns itself only with the garden inwhich the plant grows, and two people
can no more live on love alonethan a plant can grow without earth around
its roots. A contract which removesoccasions of disagreement in business, matters,

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shelters, and protects the love fromreceiving many a rude shock. Society will
e along, said mister Conway,be glad enough to assimilate con tracts between
men and women to contracts between partnersin business. Then love will dispense alike,
with the bandage on its eyes andthe constable's aid. Some pre nuptial

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agreement seems necessary which shall decide asto the right of inheritance of the survivor
of the married pair. As commonproperty will grow up during the union,
such property should pass to the survivorand the children. And until some law
be made which shall prevent parents fromalienating from their children the whole of their
property, a provision guarding their inheritanceshould find its place in the proposed deed.

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A definite marriage contract is also desirablefor the sake of the children who
may proceed from the union. Societyhas a right to demand from those who
bring new members into it some contractwhich shall enable it to compel them to
discharge their responsibilities if they endeavored toavoid them. If all men and women
were perfect, no contract would benecessary any more than it would be necessary

(03:00:01):
to have laws against murder and theft. But while men and women are as
they are, some compulsive power againstevil doers must be held in reserve by
the law. Society is bound toguard the interests of the helpless children,
and this can only be done bya clear and definite arrangement which makes both
father and mother responsible for the livesthey have brought into existence, and which

(03:00:26):
shows the parentage in a fashion whichcould go into a law court should any
dispute arise. Again, if therewere no contract in whom would the guardianship
of the children be vested in caseof wrongdoing of either parent, of death
or of separation. Suppose a brutalfather his wife leads him and takes the

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children with her, how is sheto keep them if he claims and takes
them. If she has the legalremedy of divorce, the court awards her
the guardianship and she is safe frommolestation. If a wife elope taking the
children with her. Is the fatherto have no right to the guardianship of
his sons and daughters, but toremain passive while they pass under the authority

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of another man. Application for divorcewould guard him from such a wrong.
If the parents separate and both desireto have the children, how can such
contest be decided save by appeal toan impartial law. Marriage, as before
urged, is a partnership, andwhere common duties, common interests, and

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common responsibilities grow up, there itis necessary that either party shall have some
legal means of redress in case ofthe wrongdoing of the other. To those
who, on the other hand,object to facility of divorce being granted at
all, it may fairly be askedthat they should not forget that to place
divorce within the reach of people isnot the same as compelling them to submit

(03:01:54):
to it. Those who prefer toregard marriage as indissoluble could as readily maintain
the indissolubility of their own wedded tieunder a law which permitted divorce, as
they can do at the present time. But those who think otherwise and are
unhappy in their marriages would then beable to set themselves free. No happy

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marriage would be affected by the change, for the attainability of divorce would only
be welcomed by those whose marriage wasa source of misery and of discord.
The contented would be no less content, while the unhappy would be relieved of
their unhappiness. Thus the change wouldinjure no one, while it would benefit
many. It is a pity thatthere is no way of obtaining the general

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feminine view of the subject of marriageand divorce. Women whose study, who
form independent opinions, are so faras my experience goes, unanimous in their
desire to see the English laws altered. Advanced thinkers of both sexes are generally,
one might say, universally in favorof the change. To those who

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think that women, if palled tomorrow, would vote for a continuance of the
present state of things, may berecommended the following passage from missus Mill.
Women it is said, do notdesire, do not seek what is called
their emancipation. On the contrary,they generally disown such claims when made in
their behalf, and fall with acharlement upon any one of themselves who identifies

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herself with their common cause. Supposingthe fact to be true in the fullest
extent ever asserted. If it provesthat European women ought to remain as they
are, it proves exactly the samewith respect to Asiatic women, for they,
too, instead of murmuring at theirseclusion and at the restraint imposed upon
them, pride themselves on it andare astonished at the effrontery of women who

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receive visits from male acquaintances and areseen in the streets. Unveiled habits of
subbiion make men as well as womenservile minded. The vast population of Asia
do not desire or value, probablywould not accept political liberty, nor the
savages of the forest civilization, whichdoes not prove that either of those things

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is undesirable for them, or thatthey will not, at some future time
enjoy it. Custom hardens human beingsto any kind of degradation by deadening the
part of their nature which would resistit, and the case of women is
in this respect even a peculiar one, for no other inferior caste that we
have heard of have been taught toregard their degradation as their honor. Mister

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Conway considers that changed circumstances would rapidlycause women to be favorable to the proposed
alteration am i told. He remarksthat women dreads the easy divorce naturally,
for the prejudices and arrangements of societyhave not been adapted to the easy divorce.
Let her know that under the changedsentiment which shall follow changed law,

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she will meet with sympathy when nowshe would encounter suspicion. Let her know
that she will, if divorced fromone she loves not, have only her
fair share of the burdens entailed bythe original mistake. And she, who
of all persons suffers most if thehome be false, will welcome the freer
marriage. Both in theory and inpractice, advanced thinkers have claimed facility of

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divorce. John Milton, in hisEssay on Divorce, complains that the misinterpreting
of Scripture hath changed the blessing ofmatrimony, not seldom into a familiar and
co inhabiting mischief, at least intoa drooping and disconsolate household, captivity without
refuge or redemption. And in hisPuritan fashion, he remarks that because of

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this, doubtless by the policy ofthe devil, that gracious ordinance becomes in
supportable, so that men avoid itand plunge into debauchery, arguing that marriage
is not to be regarded merely asa legitimate kind of sexual intercourse, but
rather as a union of mind andfeeling. Milton says that in this position,

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unfitness or contrarity of mind, arisingfrom a cause in nature unchangeable,
hindering, and ever likely to hinderthe main benefits of conjugal society, which
are solace and peace, is agreater reason of divorce than natural frigidity,
especially if there be no children,and that there be mutual consent. Luther

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before Milton, held the same liberalviews. Mary Wollstonecraft acted on the same
theory in her own life, andher daughter was united to the poet Shelley.
While Shelley's first wife was living nolegal divorce, having severed the original
marriage. Richard Carlyle's second marriage wasequally ill. In our own days,

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the union of George Henry Lewis andGeorge Elliott has struck the keynote of the
really moral marriage. Mary Wollstonecraft wasunhappy in her choice, but in all
the other cases the happiest results accrue. It needs considerable assurance to brand these
great names with immorality, as allthose must do who denounce as immoral unions

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which are at present illegal. Inthe whole of the arguments put forward in
the above pages, there is notone word which is aimed at real marriage,
at the faithful and durable union oftwo individuals of opposite sexes, a
union originated in and maintained by lovealone. Rather, to quote Milton once

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more, is reverence for marriage theroot of the reform. I urge he
who thinks it better to part thanto live sadly and injuriously to that cheerful
covenant, for not to be belovedand yet retained it the greatest injury to
a gentle spirit. He I say, who therefore seeks to part, is
one who highly honors the married lifeand would not stain it. And the

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reasons which now move him to divorceare equal to the best of those that
would first warrant him to marry.In the advocacy of such views, marriage
is elevated, not degraded. Nocountenance is given to those who would fain
destroy the idea of the durable unionbetween one man and one woman. Monogamy

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appears to me to be the resultof civilization of personal dignity, of cultured
feeling. Loyalty of one man toone woman is to me the highest sexual
ideal. The more civilized the nature, the more durable and exclusive does the
marriage union become. In the lowerranges of animal life, difference of sex

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is enough to excite passion. Thereis no individuality of choice among savages.
It is much the same. Itis the female, not the woman,
who is loved. Although the savagerises higher than the lower brutes and is
attracted by individual beauty, the civilizedman and woman need more than sex difference
and beauty of form. They seeksatisfaction for mind, heart, and tastes,

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as well as for body. Eachportion the complex nature requires its answer
in its mate. Hence it arisesthat true marriage is exclusive, and that
prostitution is revolting to the noble ofboth sexes, since in prostitution love is
shorn of its fairest attributes, andpassion, which is only his wings,

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is made the sole representative of thedivinity. The fleeting connections supposed by some
free love theorists are steps backward andnot forward. They offer no possibility of
home, no education of the character, no guarantee for the training of the
children, the culture both of fatherand of mother, of the two natures

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of which its own is the resultand is necessary to the healthy development of
the child. It cannot be deprivedof either without injury to its full and
perfect growth. But just as truemarriage is invaluable, so is unreal marriage,
deteriorating in its effects on all concerned. Therefore, where mistake has been

(03:10:20):
made, it is important to thegravest interests of society that such mistake should
be readily remediable without injury to thecharacter of either of those concerned in it.
Free from the union which injures,both the man and women may seek
for their fit help meets, andin happy marriages may become joyful servants of
humanity, worthy parents of the citizensof tomorrow. Men and women must know

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conjugal before they can know true parentallove. They must see in the child
the features of the beloved. Erethe perfect circle of love can be complete.
Husband and wife bound in closest,most durable, and yet most eager
union. Children springing as flowers fromthe duel stem of love home where the
creators train the lives they have given. Such will be the marriage of the

(03:11:09):
future, the loathsome details of thedivorce court will no longer pollute our papers.
The public will no longer be calledin to gloat over the ruins of
desecrated love. Society will be purifiedfrom sexual vice. Men and women will
rise to the full royalty of theirhumanity, and hand in hand tread life's

(03:11:31):
pathways, trustful instead of suspicious,free instead of enslaved, Bound by love
instead of by law. Printed byany Bezant and Charles Bred Law, twenty
eight, Stonecutter Street, London,e Cy. End of Section five.

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End of marriage as it was,as it is, and as it should
be, by any Bezant,