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BY
"It is a cemetery," replies the guide.
"A--what did you say?" inquires the son of the
star.
"A grave-yard; a place of public interment; where we bury our
dead," reiterates the cicerone.
The visitor, pale with awe and terror, learns at last that there is in
this world such a thing as Death, and (as he is forbidden to
return to his own planet) he resolves to dedicate every moment left to him
to prepare for that fearful event and all that may follow it.
Had that visitor heard for the first time upon his arrival on earth of
another incident of human existence--namely, Marriage, it
may be surmised that his astonishment and awe would also have been
considerable. To his eager inquiry whether men and women earnestly strove
to prepare themselves for so momentous an occurrence, he would have
received the puzzling reply that women frequently devoted themselves with
perfectly Hebraistic singleness of aim to that special purpose; but that
men, on the contrary, very rarely included any preparation for the married
state among the items of their widest Hellenistic culture. But this anomaly
would be trifling compared to others which would be revealed to him.
"Ah," we can hear him say to his guide, as they pass into a
village church, "What a pretty sight is this! What is happening to
that sweet young woman in white, who is giving her hand to the good-looking
fellow beside her; all the company decked in holliday attire, and the joy-bells shaking the old tower overhead? She is receiving some great honour, is she not? The Prize of Virtue, perhaps?"
"Oh, yes," would reply the friend; "an honour
certainly. She is being Married." After a little further explanation,
the visitor would pursue his inquiry:
"Of course, having entered this honourable state of matrimony, she
has some privileges above the women who are not chosen by anybody? I notice
her husband has just said, 'With all my worldly goods I thee
endow.' Does that mean that she will henceforth have the control of
his money altogether, or only that he takes her into partnership?
"Pas précisément, my
dear sir. By our law it is her goods and earnings, present and
future, which belong to him from this moment."
"You don't say so? But then, of course, his goods are hers
also?"
"Oh dear, no! not at all. He is only bound to find her food; and,
truth to tell, not very strictly or efficaciously bound to do
that."
"How! do I understand you? Is it possible that here in the most
solemn religious act, which I perceive your prayer book calls "The
Solemnization of Holy Matrimony," every husband makes a generous
promise, which promise is not only a mockery, but the actual reverse and
parody of the real state of the case: the man who promises giving nothing,
and the woman who is silent giving all?"
"Well, yes; I suppose that is something like it, as to the letter
of the law. But then, of course, practically--"
"Practically, I suppose few men can really be so unmanly and
selfish as the law warrants them in being. Yet, some, I fear, may avail
themselves of such authority. May I ask another question? As you subject
women who enter the marriage state to such very severe penalties as this,
what worse have you in store for women who lead a dissolute life, to the
moral injury of the community?"
"Oh, the law takes nothing from them. Whatever they earn or
inherit is their own. They are able, also, to sue the fathers of their
children for their maintenance, which a wife, of course, is not allowed to
do on behalf of her little ones, because she and her husband
are one in the eye of the law."
"One question still further--your criminals? Do they always
forfeit their entire property on conviction?"
"Only for the most heinous crimes; felony and murder, for
example."
"Pardon me; I must seem to you so stupid! Why is the property of
the woman who commits Murder, and the property of the woman who commits
Matrimony, dealt with alike by your law?"
Leaving our little allegory, and in sober seriousness, we must all admit
that the just and expedient treatment of women by men is one of the most
obscure problems, alike of equity and of policy. Nor of women only, but of
all classes and races of human beings whose condition is temporarily or
permanently one of comparative weakness and dependence. In past ages, the
case was simple enough. No question of right or duty disturbed the
conscience of Oriental or Spartan, of Roman or Norman, in dealing with his
wife, his helot, his slave, or his serf. "Le
droit du plus fort" was unassailed in theory and
undisturbed in practice. But we, in our day, are perplexed and well nigh
overwhelmed with the difficulties presented to us. What ought the Americans
to do with their negroes? What ought we to do with our Hindoos? What ought
all civilised people to do with their women? It seems very easy to go on
driving down the "high àpriori" road of equal rights for all human beings, but, as
it is quite clear that children and idiots cannot be entrusted with full
civil and political rights, the question always resolves itself into the
further one; where shall we draw the line? When has a human being fairly
passed out of the stage of pupilage, and attained his majority?
At the head of this paper I have placed the four categories under which
persons are now excluded from many civil, and all political rights in
England. They were complacently quoted last year by the
Times as every way fit and proper exceptions; but yet it has
appeared to not a few, that the place assigned to Women amongst them is
hardly any longer suitable. To a woman herself who is aware that she has
never committed a crime; who fondly believes that she is not an idiot; and
who is alas! only too sure she is no longer a minor,--there naturally
appears some incongruity in placing her, for such important purposes, in an
association wherein otherwise she would scarcely be likely to find herself.
But the question for men to answer is: Ought Englishwomen of full age, in
the present state of affairs, to be considered as having legally attained
majority? or ought they permanently to be dealt with, for all civil and
political purposes, as minors? This, we venture to think, is the real point
at issue between the friends and opponents of "women's
rights," and it would save, perhaps, not a little angry feeling and
aimless discussion, were
we to keep it well in view, and not allow ourselves to be drawn off into collateral debates about equality and abstract rights. Let us admit (if it be desired) that the pupilage in which women have been hitherto kept has been often inevitable, and sometimes salutary. The question is, should it be prolonged indefinitely?
In the present paper we shall attempt to consider the most striking
instance wherein the existing principle presses upon women, and where its
injustice appears most distinctly,--namely, in the regulation of the
Property of Married Women under the Common Law. We shall endeavour to do
this with all possible fairness and equanimity. The acrimony which too
often creeps into arguments on this subject is every way needless and
mischievous. Of course it is not pleasant to women to be told they are
"physically, morally, and intellectually inferior" to their
companions. Nevertheless, they are foolish to be angry with the man who in
plain words says straightforwardly that, in his opinion, such is the case.
After all, he pays them a better compliment than the fop who professes to
adore them as so many wingless angels, and privately values them as so many
dolls. In any case all such discussion is beside our present aim. We shall
endeavour, in these pages, neither to talk with one party, as if all
instinct and feeling were the creatures of law, and could be altered by
"An Act to Revise the Constitution of Human Nature;" nor with
another, as if the particular sentiment of our age and country about
"Woman's Sphere" were the only possible standard of
legislation for all time. If, as Pope said, "the world were inhabited
by men, women, and Herveys," we should endeavour to write like a
Hervey, to do justice to both the other parties!
Mr. G. Shaw Lefevre last summer carried through two readings in
parliament, and obtained a favourable report upon, "A Bill to Amend
the Law with respect to the Property of Married
Women."* Let us briefly
state what is the existing law which it is proposed to amend; what may be
urged in its behalf; and what may be said against it.
By the Common Law of England a married woman has no legal existence, so
far as property is concerned, independently of her husband. The husband and
wife are assumed to be one person, and that person is the husband. The wife
can make no contract, and can neither sue nor be sued. Whatever she possess
of personal property
___________________* Since Mr. Lefevre's
accession to office, the care of the Bill has been undertaken by Mr.
Russell Gurney.
Page 7
at the time of her marriage, or whatever she may afterwards earn or inherit, belongs to her husband, without control on her part. If she possess real estate, so long as her husband lives he receives and spends the income derived from it; being only forbidden to sell it without her consent. From none of her property is he bound to reserve anything, or make any provision for her maintenance or that of her children. This is the law for all, but practically it affects only two classes of women, viz., those who marry hurriedly or without proper advisers, and those whose property at the time of marriage is too small to permit of the expense of a settlement; in other words, the whole middle and lower ranks of women, and a certain portion of the upper ranks. Women of the richer class, with proper advisers, never come under the provisions of the common law, being carefully protected therefrom by an intricate system elaborated for the purpose by the courts of Equity, to which the victims of the Common Law have for years applied for redress. That system always involves considerable legal expenses, and an arrangement with trustees which is often extremely inconvenient and injurious to the interests of the married couple; nevertheless it is understood to be so great a boon that none who can afford to avail themselves of it, fail to do so.
What, then, is the principle on which the Common Law mulcts the poorer
class of women of their property and earnings, and entails on the rich, if
they wish to evade it, the costs and embarrassment of a
marraige settlement? There is, of course, a
principle in it, and one capable of clear statement. There are grounds for
the law; first of Justice, then of Expediency, lastly (and as we believe)
most influential of all, of Sentiment. Let us briefly describe them as best
we can.
First, the grounds of Justice.
Man is the natural bread-winner. Woman lives by the bread which man has
earned. Ergo, it is fit and right that the man who wins should have
absolute disposal, not only of his winnings, but of every other small
morsel or fraction of earnings or property she may possess. It is a fair
return to him for his labour in the joint interest of both. He supports
her, pays any debts she has incurred before or after marriage, and provides
for the children which are hers as well as his. For all this, it is but
just he should receive whatever she has to give. The woman's case is
that of a pauper who enters a workhouse. The ratepayers are bound to
support him; but if he have any savings they must be given up to the board.
He cannot both claim support and keep independent property.
Then for Expediency. "How can two walk together except they be
agreed?" says the Bible. "How can they walk together except one
of them have it all his own way?" says the voice of rough and ready
John Bull. Somebody must rule in a household, or everything will go to rack
and ruin; and disputes will be endless. If somebody is to rule it can only
be the husband, who is wiser, stronger, knows more of the world, and in any
case has not the slightest intention of yielding his natural predominance.
But to give a man such rule he must be allowed to keep the purse. Nothing
but the power of the purse--in default of the stick--can
permanently and thoroughly secure authority. Besides, for the good of the
whole family, for the children and the wife herself, it is far more
expedient that all the resources of the family should be directed by a
single hand, and that hand the one that can best transact business of all
kinds. Equally then, as a matter of Justice to the husband, and of
Expediency for the interests of the family at large, the law of England has
decreed, as aforesaid, that all a woman's present and prospective
property becomes on marriage the property of her husband.
But where women are concerned, English law ceases to be a dry system,
regardful only of abstract justice and policy. Themis, when she presides at
the domestic hearth, doffs her wig, and allows herself to be swayed by
poetical, not to say romantic, considerations. We are rarely allowed, in
debate, it to examine accurately the theory of conjugal justice. We are
called upon rather to contemplate the beautiful ideal of absolute union of
heart, life, and purse which the law has provided for, and which alone it
deigns to recognise. If it so happen that happy married couples do not want
the law to provide for them, and that the troubles of unhappy ones are
greatly aggravated by the law not providing for them, we are
told that it is an inconvenience to be regretted, but that it is
counterbalanced by the great public benefit of the existing system. That
the legislative judgment of England should hold up before the world a
perfect picture of what it understands that married life ought
to be, is affirmed to be of much more consequence than that it should try
to mend cases which must be bad at the best.
Now, let us admit heartily that there is much sense in these arguments
of justice and expediency, and much beauty in this ideal of absolute union
of interests. In what may fairly be taken as typical marriages, where the
man labours all day in the field or the office, and the woman provides for
the household at home, the woman has no
earnings independently of her husband, and what she has earned or inherited before marriage is employed for some purpose common to the family. There is no injustice here. When we remember the thousands of husbands and fathers who thus labour all their lives long for their wives and children--so commonly that it is only the exceptional selfishness we notice, never the rule of manly unselfishness--it may appear the plainest justice, that he on whom all depends (the "houseband," as our ancestors well called him,) should have all the power as well as the toil. True that men have other motives for work beside the love of their families; they have interest in their pursuits, ambition, and pride. Many a bachelor, with none to come after him to inherit his store, labours as sedulously to increase it as the most devoted of parents. But with how many hundreds and thousands is it otherwise! How many men long and pine to cast down the spade or the pen, to leave the bleak field for the fireside, the gloomy shop or office for the streets and the hills; and could do so in a moment and live in comfort with a quarter of their present toil, were it not for the thought of the wife who is sitting at home rocking the cradle, or the young daughters who are asking for all the luxuries and flipperies of fashion! We have heard a boy remark, that when he grew up he would never marry, because he noticed that when men married their wives enjoyed everything, and they had only to work harder than before. There was a good deal of truth in the remark; as doubtless the Saturday Review would readily corroborate. In the large sense and the common run of life, men are wonderfully unselfish towards women; and the general feeling of society has actually constituted it a rule that they should be expected to be so. Is it not, then, plainly just that he who plants the vineyards should eat--or at least have the distribution--of all the fruit thereof?
Then, again, for Expediency. How ignorant are most women in money
concerns! How little they understand the commonest transactions, and how
liable they are to be cheated, when they flatter themselves they do
understand them! In the lower classes, as a general rule, women are more
stupid than men; the feminine brain, such as it is, less well bearing rough
usage, and the education of girls being inferior to that of boys. For the
benefit of both husband, wife, and children, is it not every way expedient
to make the wiser of the two keep the common purse?
Lastly, for the Sentimental view. How painful is the notion of a wife
holding back her money from him who is every day toiling for
her support! How fair is the ideal picture of absolute concession on her part of all she possesses of this world's dross to the man to whom she gives her heart and life! How magnificent in its unreserve is Portia's endowment of Bassanio, as quoted by Mr. Lefevre:--
And in the humbler ranks, how sweet is the corresponding idyllic picture! The young man and maiden, after years of affection, and careful laying by of provision for the event, take each other at last, to be henceforth no more twain, but one flesh. Both have saved a little money, but it all now belongs to the husband alone. He lays it out in the purchase of the cottage where they are henceforth to dwell. Day by day he goes forth to his labour, and weekly he brings home his earnings, and places them in his wife's lap, bidding her spend them as she knows best for the supply of their homely board, their clothing which her deft fingers will make and many a time repair; and at last for their common treasures, the little children who gather around them. Thus they grow old in unbroken peace and love, the man's will having never once been disputed, the wife yielding alike from choice and from necessity to his superior sense and his legal authority.
Myself and what is mine, to you and yours
Is now converted. But now I was the lord
Of this fair mansion, master of my servants,
Queen o'er myself; and even now, but now,
This house, these servants, and this same myself
Are yours, my lord!
Surely this ideal of life, for which the Common Law of England has done
its utmost to provide, is well worth pondering upon before we attempt to
meddle with any of its safeguards? Who will suggest anything better in its
room?
Alas! there are other scenes besides idylls of domestic peace and
obedience promoted by the law we are considering. We must look on the dark
side as well as on the bright, before we determine that its preponderating
influence is beneficial. But of these we shall speak hereafter. Before
doing so we must traverse once more, and a little more carefully, the
ground we have gone over. Is the Justice, is the Expediency, is the
Sentiment of the Common Law all that appears at first sight?
What, in the first place, of the Justice of giving all a woman's
property to her husband? The argument is, that the wife gets an ample
quid pro quo. Does she get it
under the existing law? That is the simple question.
In the first place, many husbands are unable, from fault or from
misfortunes, to maintain their wives. Of this the law takes no note, proceeding on reasoning which may be reduced to the syllogism:
A man who supports his wife ought to have all her property;
MOST men support their wives;
Therefore, ALL men ought to have all the property of their
wives.
Let us suppose the managers of a public institution to engage with a
contractor, to pay him £1,000 on the nail for the supply of the
institution with provisions for a year. At the end of a month the
contractor has spent the £1,000 on his own devices and is bankrupt.
The institution starves accordingly. What, in such case, do we think of the
managers who gave the £1,000 without security for the fulfilment of
the contract, and what do we think of the contractor? But are not hundreds
of husbands in the position of the contractor, yet rather pitied than
blamed by public opinion? And is not the law in such cases precisely in the
position of the reckless managers? When all that a woman possesses in the
present and future is handed over unreservedly by the law to her husband,
is there the smallest attempt at obtaining security that he on his part
can fulfil that obligation which is always paraded as the
equivalent; namely, the obligation to support her for the rest of her life?
Nay, he is not so much as asked to promise he will reserve any portion of
her money for such purpose, or reminded of his supposed obligation. If he
spend £10,000 of her fortune in a week in paying his own debts, and
incapacitate himself for ever from supporting her and her children, the law
has not one word to say against him.
But waiving the point of the inability of many husbands to
fulfil their side of the understood engagement, one thing, at all events,
it must behove the law to do. Having enforced her part on the woman, it is
bound to enforce his part on the man, to the utmost of his
ability. The legal act by which a man puts his hand in his
wife's pocket, or draws her money out of the savings' bank, is
perfectly clear, easy, inexpensive. The corresponding process by which the
wife can obtain food and clothing from her husband when he neglects to
provide it, what may it be? Where is it described? How is it rendered safe
and easy to every poor woman who may chance to need its protection? When we
are assured that men are always so careful of the interests of the women
for whom they legislate, that it is quite needless for women to seek
political freedom to protect themselves, we might be inclined to take it
for granted that here, if anywhere, here where the very life and
subsistence of women are concerned, the legislation
of their good friends and protectors in their behalf would have been as stringent and as clear as words could make it. We should expect to find the very easiest and simplest mode of redress laid open to every hapless creature thus reduced to want by him to whom the law itself has given all she has ever earned or inherited. Nay, seeing the hesitation wherewith any wife would prosecute the husband with whom she still tries to live, and the exceeding cowardice and baseness of the act of maltreating so helpless a dependant, it might not have been too much had the law exercised as much severity in such a case as if the offender had voluntarily starved his ass or his sheep, and the Society for the Prevention of Cruelty to Animals were his prosecutors.
But this is the imaginary, what is the actual fact? Simply that the
woman's remedy for her husband's neglect to provide her with
food, has been practically found almost unattainable. The law which has
robbed her so straightforwardly, has somehow forgotten to secure for her
the supposed compensation. Since 1857, if the husband altogether forsake
his home for years together, the wife may obtain from the magistrate a
Protection Order, and prevent him from seizing her property. But, if he
come back just often enough to keep within the technical period fixed as
desertion, and take from her everything she may have earned, or which
charitable people may have given her, then there is absolutely no resource
for her at all. The guardians of her union, if she ask to be admitted into
the workhouse, may, if they please, receive her, and prosecute her husband,
at the petty sessions, for putting the parish to the expense of supporting
his wife. But the guardians are not obliged to admit her, and the trouble
and cost of prosecution is an argument which frequently weighs with them
against doing so. Then, as if to add insult to injury, when the poor
wretch, driven from the shelter of the workhouse, and perhaps on the point
of bearing a child to the man who is starving her, goes to the magistrate
to implore protection, what answer does she receive? She is told that he
cannot hear her complaint; that she cannot sue her husband, as he and she
are one in the eye of the law.*
___________________
* A horrible instance in
point occurred near Gainsborough, in Lincolnshire. The evidence given on
the inquest was published in the Lincolnshire Chronicle,
July 5, 1863.
The parish surgeon wrote thus to the clergyman of the
parish, who was also a magistrate:--
"Dear Sir,--I
have to-day seen Mrs. Seymour. I found her in a wretched weak state. She is
nursing a baby, which office she is not able to perform effectually from
her exhausted condition. Her husband, she says, does not allow her the
necessaries of life, which he, in his position, could find if he liked.
Without some means be taken to provide her with good diet, &c., or to
make her husband do so, she must die of starvation at no very distant
period. If you could, in your official capacity, help the poor creature,
you would confer a great blessing on the poor woman, and oblige yours
faithfully, "J. C. SMALLMAN."
The clergyman found,
however, that he had no power as a magistrate to take cognisance of the
case, unless the guardians would give the wife relief, and prosecute the
husband; and this they declined to do. In vain did the poor half-starved
wretch appear before them, and pray to be admitted into the workhouse. She
was refused admission on the ground that her husband earned good wages; and
so she went home, and, after lingering a while, probably fed now and then
by her neighbours, she died. The husband escaped without any punishment
whatever. The jury who tried him [men, of course!] gave him
the benefit of a doubt as to the cause of his wife's death, and
acquitted him--Illustrations of the Operations of our
Laws, p. 8.
Page 13
Again, the common law fails to secure justice to the wife, not only
during her husband's life, but after his death. The following story
was published many years ago in the Westminster Review, as
having then recently occurred. We cannot vouch otherwise for its veracity,
and must quote from memory, but, if it be only taken as a hypothetical
case, what a lesson does it convey! A gentleman, of landed estate, in the
north of England, became involved in debt, and finally ruined, and reduced
to actual want. His wife, a lady of ability and spirit, finding him
incapable of any effort for their joint support, opened a little shop for
millinery in the county town. Her old friends gave her their custom, and
her taste and industry made it a thriving business. For many years she
maintained her husband and herself, till at last having realised a small
competency, and grown old and feeble, she sold her shop, and retired to
spend, as she hoped, in peace with her husband, the remaining years of her
life. After a short time, however, the husband died, duly nursed and tended
to the last by his wife. When he was dead he was found to have left a will,
by which he bequeathed every shilling of his wife's earnings to a
mistress he had secretly maintained. Either the wife had originally married
without a settlement, or her settlements had not contemplated so singular a
fact as her earning a fortune. The husband's will, therefore, was
perfectly valid, and was executed.
So much for the Justice of the Common Law. What now shall we say to its
Expediency? The matter seems to lie thus. Men are usually more wise in
worldly matters than women; more generally able and intelligent, and their
wives habitually look up to them with even exaggerated confidence and
admiration. Such being the case, it would naturally happen, were there no
law in the case, that the husband should manage all the larger business of
the family. The law, then, when the husband is really wise and
good is a dead letter.
But for the opposite cases, exceptions though they be, yet alas! too
numerous, where the husband is a fool, a gambler, a drunkard, and where the
wife is sensible, frugal, devoted to the interests of the
children,--is it indeed Expedient that the whole and sole power should
be lodged in the husband's hands; the power not only over all they
already have in common, but the power over all the wife can ever earn in
future? Such a law must paralyse the energy of any woman less than a
heroine of maternal love. How many poor wives has it driven to despair, as
one time after another they have been legally robbed of their hard won
earnings, who can
calculate?* One such hapless one,
we are told,+ when her
lawful tyrant came home as usual, drunk with the spoils of her starving
children, took up some wretched relic of their ruined household and smote
him to death. She was a murderess. In former times she would have been
burnt alive for "petty treason" for killing her lord and
master. But what was the law which gave to that reckless savage a power the
same as that of a slave-holder of the South over his slave? Another case,
still more recent, will be in the memory of many of our readers. Susanna
Palmer was indicted on the 14th of January, 1869, at the Central Criminal
Court, for wounding her husband in a struggle, in which it appeared he had,
while drunk, endeavoured to wrench a table knife from her hand at supper.
The evidence, which has since been carefully sifted and amply corroborated,
showed Susanna Palmer to be a most industrious and sober woman. For twelve
years since her marriage with James Palmer she has managed to support
herself and her four children, having received from him during that period
the sum of five shillings for the purpose. He has been four or
five times in gaol for beating her, knocking out her teeth, and nearly
killing her boy. Each time he returned from prison only more brutal and
rapacious, and seized whatever money or furniture she had managed to
obtain, breaking up her home over and over again. She applied to the
magistrates at Clerkenwell for a Protection Order, to enable her to retain
her earnings, but was refused it as her husband had not
"deserted" her; and, of course, had not the slightest intention
of doing so. The law, as it at present exists, has absolutely no help to
___________________* See the overwhelming
evidence on this point given before the parliamentary committee this last
session, by the Rev. S. Hansard, rector of Bethnal Green; J.S. Mansfield,
Esq., police magistrate of Marylebone; Mr. Ormerod, president of the
Co-operative Society, at Rochdale; and Rev. Thomas Fowle, rector of
Hoxton.--Minutes of Evidence, pp. 65-70.
___________________+ Illustration
of the Operations of our Laws, p. 13.
Page 15
offer, and the charitable persons who desired to aid her have been compelled to place their contributions in the hands of the Ordinary of Newgate, in trust for her benefit.--(See Times, Jan. 15th and 16th, 1869.) Such cases, we believe, might be multiplied by scores; but it is rare that the woman's sobriety and industry do not break down under such trials, and the whole family go to ruin together.
It is continually repeated in this connection only that
laws cannot take note of exceptional cases; they must be laid down to suit
the majority, and the minority must do as best they can. But is there any
other department of public justice in which the same principle is applied?
What else is law for, but to be "a terror to evil
doers"?--always, as we trust, in a minority in the community.
The greater number of people are honest, and neither steal their
neighbour's goods nor break into their houses. Yet the law takes
pretty sharp account of thieves and burglars.
Setting up an ideal of perfect marriage union sounds very well. But what
would it be to set up an ideal, say, between rich and poor, and to assume
that what ought to be their relation in a Christian country actually is so?
A new Poor Law based on the hypothesis that the Sermon on the Mount forms
the rule of English life, to which the exceptions are too trifling to be
regarded, would be at all events a novelty in legislation. Or rather, would
it not correspond in spirit with the law we have been considering? The poor
woman whose husband has robbed her earnings, who leaves her and her
children to starve, and then goes unpunished because the law can only
recognise the relation of husband and wife as it ought to be--and he
and she are one before the law;--such a woman's case would
resemble closely enough that of a pauper who should be told that the law
can only recognise the relation of rich and poor as it ought to be; and
that, as every one who has two coats must be assumed to give to him who has
none, and from him that would borrow nobody can be supposed to turn away,
the striking of a Poor's Rate in a Christian land must be wholly
superfluous.
It is one of the numerous anomalies connected with women's affairs,
that, when they are under debate, the same argument which would be held to
determine other questions in one way is felt to settle theirs in another.
If, for instance, it be proved of any other class of the community, that it
is peculiarly liable to be injured, imposed on, and tyrannised over
(e.g. the children who work in factories), it is considered to
follow as a matter of course, that the law must step
in for its protection. But it is the alleged helplessness of married women which, it is said, makes it indispensable to give all the support of the law, not to them, but to the stronger persons with whom they are unequally yoked. "Woman is physically, mentally, and morally inferior to man." Therefore it follows--what?--that the law should give to her bodily weakness, her intellectual dulness, her tottering morality, all the support and protection which it is possible to interpose between so poor a creature and the strong being always standing over her? By no means. Quite the contrary, of course. The husband being already physically, mentally, and morally his wife's superior must in justice receive from the law additional strength by being constituted absolute master of her property. Do we not seem to hear one of the intelligent keepers in the Zoological Gardens explaining to a party of visitors:--"This, ladies and gentlemen, is an inoffensive bird, the Mulier Anglicana. The beak is feeble, and the claws unsuited for grubbing. It seems to be only intelligent in building its nest, and taking care of its young, to whom it is peculiarly devoted, as well as to its mate. Otherwise it is a very simple sort of bird, picking up any crumbs which are thrown to it, and never touching carrion like the vulture, or intoxicating fluids like the maccaw. Therefore, you see, ladies and gentlemen, as it is so helpless, we put that strong chain round its leg, and fasten it to its nest, and make the bars of its cage exceptionally strong. As to its rudimentary wings we always break them early, for greater security; though I have heard Professor Huxley say that he is convinced it could never fly far with them, under any circumstances."
But the great and overwhelming argument against the Expediency of the
common law in this matter, is the simple fact that no parent or guardian
possessed of means sufficient to evade it by a marriage settlement, ever
dreams of permitting his daughter or ward to undergo its (alleged)
beneficial action. The parent who neglected to demand such a settlement
from a man before he gave him his daughter, would be thought to have failed
in the performance of one of his most obvious and imperative duties. Even
the law itself in its highest form in the realm (that of the Court of
Chancery) always requires settlements for its wards. How then can it be
argued that the same rule is generally considered Expedient, yet invariably
evaded by all who are able to evade it?
Again. There is the test of experience. Are married couples with
settlements obviously less harmonious, are they less united in
affection, are their children less well brought up than those who undergo the action of the law? When a woman has money of her own, so settled that she really has it for her separate use, do we find her always opposing her husband, and do her children seem to suffer from parental dissensions? Nay, let us go to the countries where no common law like ours exists at all, or where it has been repealed. In Russia marriage makes no difference in a woman's possession of property, to which also are attached the same political and municipal rights as belong to male proprietors. All that we know of Russian households is their peculiar harmony and mutual good feeling. And in the State of New York, where the Common Law was repealed in 1860, in Vermont, where it was changed in 1847, in Pennsylvania, where it was changed in 1848, and in Massachusetts, where it was changed in 1855, the report of the action of the new law, whereby the woman holds her own property and earnings, is entirely satisfactory. The following are some of the testimonies to the fact, collected by the Parliamentary Committee:--
"Mr. Washbourne, formerly Governor of Massachusetts, and now Professor of Law at Harvard University, and who allows that he viewed the change with apprehension that it would cause angry and unkind feelings in families, and open the door for fraud, now admits that he is so far convinced to the contrary, that he would not be one to restore the common law if he could. Any attempt to go back to it would meet with little favour at this day. The oral evidence we have received from members of the Vermont and Massachusetts bars, from Mr. Cyrus Field, of New York, and from the Hon. J. Rose, Finance Minister of Canada, is to the same effect. They state that the change has given entire satisfaction; that it has not caused dissension in families; .... that the benefit has chiefly accrued to women of small means. Mr. Wells, Judge of the Supreme Court of Massachusetts, says:--'That for which the law seems to me most commendable is the power which it gives to women of the poorer classes to control the fruits of their own labour. Many women of that class are left to struggle against the hardships of life, sometimes with a family of children, abandoned by their husbands, or, still worse, with a drunken, thriftless, idle vagabond of a man, claiming all the rights of a husband, and fulfilling none of the duties of the relation. When such men could take the hard earnings of their wives from service in the mills, and waste it upon their indulgences, no woman could have
Page 18courage to struggle long in such a hopeless effort. In our manufacturing towns there are a great many women thus situated, who are saved from the most hopeless poverty and slavery by this most just provision, which gives them the right to receive and to hold the wages of their own labour. The misfortune has been, that the more ignorant and degraded men were, the more rigorously they insisted upon and exercised their marital rights.... The law, by this change in the relative rights of husband and wife, has brought to the women of the poorer class a relief which touches the spring of hope and energy.' Mr. Dudley Field says of it, 'Scarcely one of the great reforms which have been effected in this State have given more satisfaction than this.'"*
But, as we have said already, there is an argument which has more force
in determining legislation about marriage than either considerations of
Justice or of Expediency. It is the Sentiment entertained by the majority
of men on the subject; the ideal they have formed of wedlock, the poetical
vision in their minds of a wife's true relation to her husband.
Legislators talk in parliament with a certain conviction that the
principles of fairness and policy are the only ones to be referred to
there. But whenever the subject is freely discussed, in
private or in a newspaper, there is sure to burst out sooner or later the
real feeling. Nothing can be more amusing than to watch such spontaneous
outbreaks of the natural man in the dignified columns of the
Times, or the hard-hitting periods of a well-known writer in
the Pall Mall Gazette. Let us try to fathom this sentiment,
for till we understand it we are but fighting our battles in the dark. Is
it not this: that a woman's whole life and being, her soul, body,
time, property, thought, and care, ought to be given to her husband;
___________________* Special Report of
Parliamentary Committee on Married Women's Property Bill. It
is satisfactory to know that separate property and the right of contract,
has been accorded to married women by the new law of India, compiled by
some of the ablest lawyers in this country:--Lord Romilly, Sir W.
Erle, Mr. Justice Willes, Sir Edward Ryan, and Mr. Lowe.
Page 19
that nothing short of such absorption in him and his interests makes her a true wife; and that when she is thus absorbed even a very mediocre character and inferior intellect can make a man happy in a sense no splendour of endowments can otherwise do? Truly I believe this is the feeling at the bottom of nearly all men's hearts, and of the hearts of thousands of women also. There is no use urging that it is a gigantic piece of egotism in a man to desire such a marriage. Perhaps it is natural for him to do so, and perhaps it is natural for a great number of women to give just such absorbed adoring affection. Perhaps it is a tribute to the infinite nature of all love, that for those who know each other best, as a wife knows her husband, there is no limit to human affection. At all events it seems a fact that the typical man (if we may call him so) desires such love, and the typical woman is ready to give it to him. He is impatient at the notion of a marriage in which this conception of absolute absorption of his wife's interests in his own shall not be fulfilled; and, so far as legislation can create such an ideal, he is resolved that it shall do so.
So far all is plain, but the question is this: Supposing such marriages
to be the most desirable, do men set the right way about securing them, by
making such laws as the Common Law of England? Is perfect love to be called
out by perfect dependence? Does an empty purse necessarily imply a full
heart? Is a generous-natured woman likely to be won, and not rather to be
alienated and galled, by being made to feel she has no choice but
submission? Surely there is great fallacy in this direction. The idea which
we are all agreed ought to be realised in marriage is that of the highest
possible Union. But what is that most perfect union? Have we
not taken it in a most gross commercial sense, as if even here we were a
nation of shopkeepers? Let us go into this matter a little carefully. It is
rather instructive.
Husband and wife, in the eye of the poet, the divine, and--shall we
say, the Judge of the Divorce Court? are "not twain, but one
flesh." I know not whether Mr. Darwin will sanction that theory
concerning the Origin of Species, which tells us that
or whether Dr. Carpenter and Professor Huxley have verified the anatomical doctrine held by our nurses, that in consequence of Adam's sacrifice of his rib, men have ever since had one rib fewer than women. Still, however learned physiologists may decide this obscure problem
Man came from nothing, and by the same plan
Woman was made from the rib of a man;
we shall all agree that it is a noble oriental metaphor, to describe a wife's relation to her husband as "bone of his bone, and flesh of his flesh." But the union of two human beings may, as preachers say, be considered three ways. Firstly, there is the sort of union between any friends who are greatly attached to one another; a union oftenest seen, perhaps, between two sisters, who each have full liberty to come and go, and dispose of their separate resources, but who yet manage commonly to live in harmony and affection, and not unfrequently to bring up a whole batch of little nephews and nieces in their common abode. Two such we know, who for many years have kept the same account at their banker's, and say that they find only one serious objection to the plan--they can never make each other a present!
Secondly, there is the union of the celebrated Siamese twins, who are
tied together--not by Mother Church but by Mother Nature--so
effectually that Sir William Fergusson and Sir William Wilde are equally
powerless to release them. Each of them has, however, the satisfaction of
dragging about his brother as much as he is dragged himself; and if either
have a pocket, the other must needs have every facility of access
thereto.
Lastly, for the most absolute type of union of all, we must seek an
example in the Tarantula spider. As most persons are aware, when one of
these delightful creatures is placed under a glass with a companion of his
own species, a little smaller than himself, he forthwith gobbles him up;
making him thus, in a very literal manner, "bone of his bone"
(supposing tarantulas to have any bones) "and flesh of his
flesh." The operation being completed, the victorious spider visibly
acquires double bulk, and thenceforth may be understood to "represent
the family" in the most perfect manner conceivable.
Now, of these three types of union, it is singular that the only one
which seems to have approved itself, in a pecuniary point of view, to the
legislative wisdom of England should be that of the Tarantula. Unless a man
be allowed to eat up the whole of a woman's fortune, there is
apparently no union possible between their interests. Partnerships, limited
liabilities, and all other devices for amalgamation of property are here
considered inadmissible. The way in which brothers and sisters settle their
affairs when they reside under the same roof, would never suffice, it
seems, to keep things straight between those who hold a yet more tender and
trustful relationship.
Englishmen have, perhaps beyond all men, generous hearts and chivalrous
natures. They delight in such glorious lines as that of their own poet:
Yet were life a charnel, where
Hope lay coffined with Despair;
Yet were Truth a sacred lie,
Love were lust--if Liberty
Lent not life its soul of light,
Hope its iris of delight,
Truth its prophet's robe to wear,
Love its power to give and bear.*
Is it possible that one of them, whose eye kindles over such words,
seriously believes that his own mother, sister, daughter, is made of such
different clay from himself, as that for her, abject
dependence is calculated to create and foster love, while for
him it would be gall and wormwood, turning his affection into
bitterness and revolt?
Truly I am persuaded it is not thanks to the Common Law,
but in spite thereof, that there are so many united and happy
homes in England.
To sum up our argument. The existing Common Law is not
just, because it neither can secure nor actually even attempts
to secure for the woman, the equivalent support for whose sake she is
forced to relinquish her property.
It is not expedient, because while in happy marriages it is
superfluous and useless, in unhappy ones it becomes highly injurious; often
causing the final ruin of a family, which the mother (if upheld by law)
might have supported single-handed. It is also shown not to be really
considered expedient by the conduct of the entire upper class of the
country, and even of the legislature itself, in the system of the Court of
Chancery. Where no one who can afford to evade the law fails to evade it,
the pretence that it is believed to be generally expedient is absurd.
Further, the classes which actually evade it, and the countries where it is
non-existing, show in no degree less connubial harmony than those wherein
it is enforced.
Lastly, it does not tend to fulfil, but to counteract, the sentiment
regarding the marriage union, to which it aims to add the pressure of
force. Real unanimity is not produced between two parties by forbidding one
of them to have any voice at all. The hard mechanical contrivance of the
law for making husband and wife of one heart and mind is calculated to
produce a precisely opposite result.
___________________* Shelley's
"Hellas."
Page 22
The proposal, then, to abolish this law seems to have in its favour
Justice, Expediency, and even the Sentiment which has hitherto blindly
supported the law. As the Parliamentary Committee report, they are strongly
of opinion "that the Common Law of this country, which gives the
wife's property to her husband, should be repealed, and that the wife
should have control over her property and earnings; and that her disability
to contract and sue and be sued in respect of them should be
removed."
That certain difficulties must arise in carrying out so extensive a
change is obvious, yet they are probaly less
than might be supposed; and a brief trial of the working of a new law would
enable the legislature to find out the weak point (if any) of their present
Bill. As the committee remark:--"Questions of importance arise
in settling details of such a matter. Whether, for instance, the poor law
liability of the father for the maintenance of the children should be
extended to the mother; whether the change should be confined to future
marriages only, or should be applied to existing marriages where other
property is acquired, &c.
One thing, however, was unanimously agreed upon, and it is an important
point in question:--"It does not appear to be necessary to make
any alteration in the liability of a husband to maintain his wife in
consequence of such a change in the law with regard to the property of
married women. A married woman, living apart from her husband, can only
bind him for what is necessary, and the possession of property of her own,
pro tanto, negatives the authority arising
from necessity. A married woman, living with her husband, has an authority
which, in spite of some fluctuations and uncertainty of judicial decisions,
seems to be regulated by the general principle of the law of agency. Agency
is a mixed question of law and fact, and the courts will give due weight to
such a fact as the possession of property by a married woman, without any
express statutable
direction."* That such a
change could not entail injurious consequences is guaranteed by two
facts:--First, there follow no injurious consequences to the richer
classes in England, by whom the law is practically set aside; second, there
have followed no injurious results, but very beneficial ones, to the lower
classes in the American States, by whom the law has been repealed. We have
already cited the testi-
___________________* Special Report from
the Select Committee on Married Women's Property Bill, p.
vii.
Page 23
mony of the distinguished American lawyers, Mr. Dudley Field, Judge Welles, Governor Washbourne, and others, to this point.
Justice, Expediency, a truly guided Sentiment, and such experience as is
yet attainable--all these, then, point unanimously to the repeal of
the existing Common Law, as it touches the property of married women.
But leaving this special, though typical case if the Property of Married
Women, may we not for a moment try to answer, if it be but vaguely, the
larger question in which it is involved:--What ought to be the general
tone of legislation, the general line of policy pursued in these days by
English men towards English women? It is clear enough that we have come to
one of those stages in human history which, like a youth's attainment
of majority, makes some change in the arrangements of past time desirable,
if not imperative. There is no use reverting, on the one side with
pertinacious dogmatism, and on the other with scorn and indignation, to old
Eastern, or Classic, or Feudal relations between men and women. Any one who
has lived in southern and eastern lands can perfectly understand, from the
nature of the women of those passionate races, how such states of things
arose at first, and have been maintained ever since without blame or
cruelty. In Feudal times, also, the blended chivalry and tyranny of men
towards women was rather to be admired, for the chivalry then condemned for
a tyranny which probably fell more lightly on women than on any inferior
class of men in the social scale. But all these things are changed for us.
Our Teuton race, from the days of Tacitus, has borne women whose moral
nature has been in more than equipoise with their passions; and who have
both deserved and obtained a freedom and a respect unknown to their sisters
of the South. As the ages of force and violence have passed away, and as
more and more room has been left for the growth of gentler powers, women
(especially in England) have gradually and slowly risen to a higher place.
It is indeed quite possible still to point out thousands who are unfit for
any important excercise of freedom, who are mere
dolls, or something worse. Half the discussions which go on about women
would be stopped at the outset, if the speakers could settle what women
they are going to talk of; the women of strong characters, or the women who
have as little character as their own looking-glasses. One woman lives for
affection, for duty, for elevated and refined pleasures of taste and
intellect; not incapable of devoted love, yet not living with love alone in her thoughts; pleased to adorn her person, yet not dreaming and chattering of dress from morning till night. Another woman lives for admiration and passion, for low pleasures of vanity and sense; having for her sole ambition to befool the men who surround her, and for her sole serious employment to deck herself for their gaze. To one the society of men and women is equally interesting, provided each be equally intelligent. To the other, the presence of a man, be he almost an idiot, is so exciting and delightful that every woman in company is forgotten, and the most ludicrous changes of tastes and opinions are effected at a moment's notice, to fall in with his pleasure, as if they were the furniture of a lodging-house, to be moved to suit a new lodger. As George Sand says: if the minds of such women have received any impression over night, it is carefully smoothed down next morning, like a gravel walk, avec le rateau, to be quite ready to receive a fresh impression from the next visitor.
Such are the differences, the contrasts rather, between two orders of
women; and it is not unnatural that when "women's rights"
are under discussion and one interlocutor is thinking of one sort of woman,
and the other of the other, they should not readily agree to what is either
just or expedient to be done for them. It seems equally out of question to
withhold the franchise from Florence Nightingale when she asks for
it,* or to grant it to the
"Girl of the Period." Unfortunately, as strong minded women are
apt to associate only with the strong of her own sex, and as men are apt to
be a good deal more familiarised with the man-adoring type of women than
with them, it is common when they argue for each to go on contradicting the
other without the slightest hope of coming to an understanding.
But it must be granted, we think, that the numbers of those of whom Pope
could affirm that
has a tendency to diminish year by year; and the numbers of women with characters to increase. How much faster the alteration will go on under improved education, if such splendid schemes as that of Miss Davies' and Madame Bodichon's College can be carried out, is hard to judge. Already the classification of which we have already spoken, with the "idiots" and the "minors," seems hardly such as the
Most women have no characters at all,
scientific intellect would be satisfied with in other departments of zoology. Shall we say it resembles the botanical scheme of the governess who informed her pupils that "plants are divided into Monandria, Bulbous Roots, and Weeds?".
We wish that we could persuade men more often to try and realise for
themselves what is actually the life of a woman. Not as an appeal for
compassion. It is very much to be questioned whether the warm affections
and simple hearts of the better sort of women do not make life sweeter to
them than to most men. "Happiness," says Paley, "is to be
found no less with the purring cat than with the playful kitten."
Enjoyment is a hardy little plant which grows at all altitudes above the
level of actual starvation. There are glories of the nursery and ambitions
of the kitchen which fill human hearts no less than the contests of the
senate and the triumphs of the battle field. To the majority of men the
life of a woman with its narrow household cares, its small social
emulations, and its slightly flavoured pleasures, seems dull and insipid to
the verge of disgust. Very few would hesitate to repeat the thanksgiving of
the Rabbins for "being born of the human race, and not a brute; a
Jew, not a Gentile; a man, and not a woman." Yet happiness is quite
sufficiently elastic to shrink into the narrow circle of domestic life even
while it is capable of stretching itself to the wide bounds of imperial
power. Maria Theresa, and Catherine the Great might have made themselves
content, the one perhaps as the mistress of a well frequented inn, or the
other as an actress at a provincial theatre. Women who are not utterly
ground down by the sordid cares of poverty, are quite as cheerful and a
good deal more resigned to the decrees of Providence than their lords. It
is, therefore, with a pity not dashed with compassion, but partaking of the
tenderness wherewith we watch a child pleased with its doll and its
baby-house, that men usually regard the lives of those dearest to them in
the world. Were they ever to ask themselves how such an existence would
suit them, they might perhaps be startled at the reflections
which would suggest themselves. Any way I believe they would thenceforth
carefully endeavour that none of the little patrimony of women's
pleasures should be retrenched, none of the bounds of their interests and
duties made narrower than nature herself has drawn them by the laws of
their physical constitutions and their domestic affections.
Last summer the Times remarked that "when working
men desired to have votes they threw down the park palings,
but that
women have not shown their wish for the same privilege by any such proceedings." Were we not on that same enchanted ground whereon all arguments are turned topsy turvy, we should have supposed that the mob who attacked the police and spoiled the public park, and the women who stopped at home and signed Mr. Mill's petition, had respectively shown the one their unfitness, the other their fitness for the franchise of a law-respecting nation. But, in truth, women very rarely throw down any palings, either material or only imaginary; and they generally hurt themselves cruelly when they do so. Not for that reason ought men to refuse to them whatever rights may seem for them fairly established. Among these I trust, in the present paper, I have placed that of Married Women to the use of their own earnings and inheritances.
In conclusion, I would make one remark on the general question. Much
time and more temper have been lost in debating the sterile problem of the
"equality" of men and women, without either party seeming to
perceive that the solution either way has no bearing on the practical
matters at issue; since civil rights have never yet been reserved for
"physical, moral, and intellectual" equals. Even for political
rights, among all the arguments eagerly cited last year against extending
the franchise, no one thought it worth while to urge that the class
proposed to be admitted to them was, or was not, physically,
intellectually, or morally inferior to the classes which already possessed
it. As for civil rights--the right to hold property, to make
contracts, to sue and be sued--no class, however humble, stupid, and
even vicious, has ever been denied them since serfdom and slavery came to
an end. If men choose to say that women are their inferiors in
everything, they are free and welcome then to say so. Women
may think that they are the equivalents, if not the equals of men; that
beauty is as great a physical advantage as the strength which man shares
with the ox; that nimble wits and quick intuitions are on the whole as
brilliant, though not as solid intellectual endowments as the strong
understanding and creative imaginations of men; and finally, that for
morality,* that aged man is happy
whose
___________________* It must be confessed that,
to a woman, the claim of superior morality for men sounds supremely absurd.
Look at the three most hateful forms of vice--cruelty, drunkenness,
unchastity--are they most common in women or in men? Watch for the
first, the devil-vice of cruelty, among children. See how the little girl
tends her birds and animals, and, as Chaucer describes her, "all
conscience and tendre heart," "greting" when anyone
strikes her dog. See how her brother (brought up just as tenderly) begins
in the nursery to pull flies to pieces, to worry the cat; then to terrify
the sheep, to lay traps in the snow for sparrows. Observe how it is always
his mother's soft words, his sister's tears, which
win him at last, and make of him that really tender-hearted being a perfect
English gentleman. It is never his schoolfellows who correct him, rarely
his master. Watch the class below. Is it the poor wild street girls who
persecute and stone to death the hapless lost dogs of London? Read the
reports of the Society for the Prevention of Cruelty to Animals, and
observe whether it be men or women who are commonly prosecuted for
torturing domestic creatures. Would any woman's devotion
to science (does the reader think) lead her to practise vivisection? Nay,
but it is hard for a man to tell the misery and disgust, rising almost to
revolt against the order of the world, which fills many a woman's
heart when she sees daily around her the instances of man's wanton and
savage cruelty to the harmless creatures for whom she can only plead, and
pleads usually in vain. As I have been actually writing these pages, some
dozen young men, of the labouring class, have passed under my window,
pursuing, with volleys of heavy stones, a hapless little canary, which had
escaped out of its cage, and, in its feeble flight, was striving to find
shelter among the trees below. Is it needful to say there was no woman
among the gang, and that the appeal of other women beside myself to give up
their cruel chase, was unheeded? "It ought to be
killed!" shouted one young ruffian in reply. A canary worthy
of death! I sit down to pursue the theme of woman's moral inferiority.
But where was I? Did I hear anybody say that women were more cruel than
men?--or, perhaps, that cruelty is not the very crown of--shall
we call it, Moral Superiority?
Page 27
conscience as lie leaves the world is as void of grave offence as that of the majority of aged women. But whatever a woman may think on these subjects, she has no need to argue, much less to grow shrill and angry about it. "Granted," she answers to all rebuffs; "let me be physically, intellectually, and morally your inferior. So long as you allow I possess moral responsibility and sufficient intelligence to know right from wrong (a point I conclude you will concede, else why hang me for murder?) I am quite content. It is only as a moral and intelligent being I claim my civil rights. Can you deny them to me on that ground?"
A. Ireland and Co., Printers, Manchester.