sight to understand the causes; only, an unwillingness to adopt the cure is apt to blind men's eyes. But such a doctrine as free love or unlimited right of divorce would leave our most disgusting evils as they are, and heap upon us a vast new load of evil. Thus far our argument has been on the whole Conservative. It has seemed necessary to show that the theory which would throw off the State is a baneful delusion. But now, we must turn earnestly to remind Conservatives how powerless the State becomes from the day that any considerable portion of the people fanatically defy and refuse its marriage laws; and that the impotence of the State becomes worst, precisely against that combination which now is to be feared;-a combination of the old enemy, profligate vice, with the new enemy who confronts us in the near future, virtuously intended fanaticism. From this point, therefore, our argument is in favor of judicious Reform, as alone truly Conservative. In so far as the existing law is unjust, it must be promptly changed, 1. as to divorce, 2. as to the extravagant rights given to husbands. As to divorce, it is well to deal at once, and frankly, with "the religious argument," as it is called. It rests upon one solitary passage in the gospels, which is quite misinterpreted; and when that one passage is rightly understood, it becomes clear that no word is found in the Christian Scriptures prejudging the question of divorce. As we read in St. Matthew (xix. 3) the Pharisees asked Jesus, "Is it lawful for a man to put away his wife for every cause?" which "Moses in the law" distinctly allowed. Observe; the question is not, under what circumstances a court of law may pronounce a divorce that topic is not even touched: but whether a husband may under all circumstances use the liberty given him by Moses, of taking the decision into his own hand. The decision reported is: "Certainly not; but for one grave offence only." Now, that reply in no way touches this argument; for, in common with all Christendom, we refuse to the husband jurisdiction even in that extreme case. The reply of Jesus did but put a moral limitation on the Jewish husband's legal power. It in no respect dealt with the general question of divorce by a pub lie court of law. Hence, upon Christian grounds, it has no place whatever in this argument. But if there are Christians who have some mental incapacity to accept an interpretation which is not habitual; if, resolutely sticking to the traditional view of this passage, they insist on imposing that view upon everybody; it is proper to remind them of the consequences reasonably to be expected, unless indeed they are happily outvoted. They are aware that Queen Victoria's subjects are not all Christians. Many are Jews; many are Mohammedans, very many are Hindoos, some are Chinese, not to speak of mere barbarians: moreover an increasing fraction of Englishmen revere Christianity only so far as they find it to be moral and reasonable; and this class of Englishmen can but be driven into a refusal to coöperate with the law, if a religion which they disown is allowed to make the law unjust. Parliament has long conceded to Jews freedom for their own marriages: neither the Dissenters of the United Kingdom, nor the tens of thousands who profess no allegiance to Christianity, will endure to have their marriages controlled by High Church Traditionalism. In so critical a domestic interest the law must be based on broad arguments of human morality, not on the sectarian interpretation of a text. In no other way can the State avert that total neglect of its marriage ceremony, which would be a great national calamity. Germany and America have led the way in remodelling the law, and England will not long endure the present state of things, if it be defended only by Ecclesiasticism. Assuming then that divorce, not at a husband's will, but by the decision of an unbiassed and competent court, is a question clearly open; it is impossible to avoid pronouncing the English law to be still very unjust in its limitations, although it has been sensibly relaxed of late. It is evident from the course of legislation, both in Protestant Germany and in the United States, that so soon as men come to the question with open eyes, they find many more causes of divorce than we have ever admitted: namely, not only adultery and cruelty, keeping a wife in terror of her life, or trying to poison a husband; but any other gross conduct which ruins the moral purposes of marriage. Habitual drunkenness is among us one of the most urgent evils, which ought to be a ground of divorce. The drunkard not only cannot protect his wife, cannot duly feed, clothe, and care for his family, but keeps her in constant misery and frequent uncertainty of life. Wife-beating is a daily offence, wife-murder at least a weekly crime, as a direct result of drunkenness. Divorce in an extreme case might be enforced even without a wife's petition, for the sake of children, as well as wife. In some States of the American Union the drunkard is further treated as an insane man; and with much reason. Next, a man who is convicted of crime and punished by a long and distant imprisonment ought ipso facto to forfeit all rights to both wife and children, to none of whom he can perform his duties. It is cruel in the extreme to a woman to take away her husband for seven or fourteen years, suspend his power like a sword over her head, and then allow him to come back after long estrangement, probably depraved by intimate association with worse criminals; to usurp her property and her person, and claim the children as his own. A third obvious case of rightful divorce is that of obstinate desertion. But as no dogmatism is here intended, further details are needless: it suffices to insist, that the whole question needs to be freely thrown open to discussion, as it is in other Protestant countries; and such relaxations of the law introduced, as impartial reason, unbiassed by ecclesiasticism, may suggest. So long as divorce is confined to those cases in which it leaves a deep moral stigma on one or other of the married persons, the difficulty of the topic is what it is in itself; but it is not aggravated by the danger of opening a door to licentiousness. This danger becomes urgent, if divorce be granted under circumstances which leave no stain on either party, and therefore put no moral difficulty in the way of a reputable second marriage: for any unwise laxity may (as we have seen in Prussia) lead to very licentious caprice. On first consideration it may seem that when neither party can be deeply stigmatized, divorce ought to be impossible; yet the reasons against such severity are very powerful, and seem to be unanswerable. First, in Protestants who insist that a nun's vows ought not to be binding when she repents of them and sees them to have been unwise, it is monstrous to press the mere fact of the "marriage vow" as an insuperable difficulty: more especially when it has been taken under parental pressure, and at a minor age. Indeed, while marriages of minors (especially of women in minority) are not forbidden, the mere fact of having been a minor is almost enough to give a woman a right to cancel the vow. The difference of a woman's knowledge and prudence at 18 and at 21 is generally very great. Next, when a married couple are decidedly unhappy, separation (so far as the law is concerned) is always possible for them; but separation is not only a poor consolation and insufficient substitute for divorce, but even peculiarly lays them open to dangerous sympathy. And if the law prescribe, that while innocent they may not be divorced, but when guilty they may, it gives a frightful premium on guilt; a guilt to which the conscience may reconcile itself, by the plea that the law will have it so. This argument urgently demands a reply. Thirdly, although there is danger in allowing such divorces, it is not a danger which admits of no precaution. Hungary, though a Catholic country, yet, being peculiarly free from bigotry, has here innovated boldly, and perhaps very sagaciously. If a young couple are unhappy, and desire to be divorced, they address a joint petition to the court; or one alone perhaps can thus petition. The court appoints two or more mediators, generally from the kinsfolk, to hear the complaints, to give advice, and try to reconcile them. Reconciliation is often thus effected. But if failure be reported, the court replies, that they must repeat the application for divorce after three years, and then it shall be granted. If the quarrel is very severe, they probably separate, and obtain the divorce at the expiration of the period. The delay in fallibly prevents any from seeking divorce in order to take a more acceptable partner; for no one can hope that another will wait three years for such a reversion. It may even seem that two years would suffice. When the aversion is so decided on both sides that no one expects reconciliation, we suppose that no social impropriety is felt in beginning new courtship before the three years is spent. But Hungarians say, that in the great majority of cases the young people are reconciled by their friends long before the time is complete, and do not come to the court again. Of course, when there are children, the evil of divorce is far greater; but so also is the chance of reconciliation greater. If instead of stagnating obstinately in a "non possumus" policy, our legislators would grapple with the difficulty as frankly as the Catholic Hungarians, good-sense would discover reasonable solutions. In every case for divorce, in which the causes are not in themselves public facts (such as drunkenness and crime), the tribunals which have to investigate details ought to be private, and either partially or wholly composed of kinsfolk and near friends of the parties. In this matter our publicity is outrageous. Our total ignoring of kinsfolk, whether to reconcile, to report, or to judge, is astonishing. We resolutely drag into daylight all sorts of offensive and pestilential matter, and expose to public ridicule weaknesses which ought to be sheltered in privacy by domestic tenderness. It is hardly too strong to say, that our whole law and practice on this subject are barbarous. What can be said to palliate the monstrosity, that if a young woman be cruelly seduced, the seducer can have no punishment but a fine, imposed at the expense of a suit from her father for pretended loss of her service during pregnancy? The father must dishonor his daughter in court, exposing her to public cross-examination by an impudent counsel, in order to get the verdict and the fine! Is this the way to save a young woman's modesty in the future? 2. The second point needing reform, is, the extravagant power given by our law to a husband. Especially: first, the husband's seizure of a wife's property is totally unjust, and all the arguments for it baseless. Secondly, the exclusive right attributed to him over the children is unjust and pernicious. Thirdly, his rights over his wife's person are extreme and monstrous. It is pretended by lawyers, that in justice to creditors, it is necessary that a wife's property be vested in the husband and therefore liable to his debts. After they have thus stripped the wife of everything, they next make the husband liable for her debts. From beginning to end, the pretended necessity is false. No difficulty is or ever was found by creditors, from that which happens every day, viz., that three sisters keep school together; or any two ladies or a brother and sister, keep house in common with (perhaps) several children under their charge. Who ever said, or dreamed, that to save the butcher, the baker, the grocer, the milliner, or the jeweller from loss, it is necessary or desirable, or could be endured, that as soon as two persons keep house together, one of the two shall forfeit his whole property to the other, and that other shall be responsible for the debts of the former? If a widower, left with children, put his sister or his eldest daughter at the head of his establishment, and the lady order silk dresses or jewelry for herself,--or provisions for the house,-do tradesmen grumble because the lady has a right of private property, and is not "under coverture," as lawyers phrase it? Does the jeweller think it hard, that he cannot judge by the exterior of the house whether the lady is likely to be able to pay? Rather, we suppose, he is aware, that no mere exterior is any guarantee. The more a man spends on his house, the less is left for tradesmen ; and many a one who makes display is a bad paymaster. Prudent tradesmen have their own ways of judging concerning the future by the past; and, even when past payments have been satisfactory, yet, if an unusual order be given, they pause before risking to obey it. Some are so prudent, as to sell for ready money only; and this may prove the true security against nine-tenths of our mercantile calamities. But to claim that a woman shall forfeit her property simply because she keeps house in common with a man, is mere audacious impudence. It is the more impudent, and the more ridiculous, because it is most notorious that by the existing law and practice tradesmen have none of the defence which is pretended. When a wife has much property, it is never permitted to come into a husband's power or to be answerable for his debts, but is vested in trustees who deal out to her the yearly income only. A man totally indigent may marry a wealthy wife; he may live in a splendid freehold house, belonging to her trustees; he may have the appearance of a wealthy man, because he spends, year by year, every shilling of her large income; and then, if one year, after earning the reputation of paying well, he run up high bills and be a thousand pounds in debt, the creditors will find that there is nothing but the clothes on his back of which they can lay hold. Even the furniture, books, and fixtures of the house may be the property of the wife's trustees, who are also the houseowners. In fact, the husband's legal position may be that of a man lodging in a ready furnished house. So shamelessly false is this argument. Evidently, it is a mere after-thought, made up to prop an ecclesiastical fiction, which the medieval law adopted; as though a married woman's personality were in some mystical sense absorbed and "covered" by that of her husband. Bit by bit of this fiction the law has yielded up, so that the grossest inconsistency with it is now found; yet the phraseology and theory of "coverture" remain, and the fabric of trusteeship (which ought to be optional) is made necessary by it. If a woman possessing property dare to marry without settling it on trustees, and her husband prove to be either a bad or imprudent man, no wisdom, no energy, no prudence or frugality on her part, can save her from utter ruin. By tormenting her into refusing to live with him, he simply carries off her money, and defies her. To the demand of a maintenance he has a ready reply: "Come back and live with me; I do not want you to go away." By this he can stop all legal action, and abandon her to absolute destitution,and as a fact such things do go on;while, on purpose to drive her from his house, he may kiss his servant-girls before her face, and talk impudently to them. Yet, unless she can bring legal proof of adultery,-often impossible,and furnish money for bringing up witnesses, and go through a disgusting process; the law gives her no redress. It first gratuitously strips her of her property; then bids her recover a fraction of it, if she can, by an expensive legal process and by stigmatizing another woman. So likewise when a wife has no property amassed, but is diligent and clever, a husband can remain idle himself, take away from her the wages which she earns, keep her on poor food and in shabby attire, half starve the children and deprive them of education, while he spends her earnings on luxuries for himself, such as gin and tobacco. A Turkish cadi would quickly deliver wife from a husband who was a mere idle bloodsucker upon her, or neglected duly to support her. And for what is the English wife exposed to all these cruelties? Solely to uphold an absurd fiction to which England is specially attached. Even Austrian law knows nothing of "coverture." When the estates of Hungarian exiles were confiscated after the war of 1849, the Austrian judges systematically pronounced that the property of their wives was inviolable; and that wherever it had been seized, this was from inadvertence, and was unlawful. A Hungarian woman forfeits no rights of independent proper ty by marrying: she remains mistress of all that was her own. Yet English law does not know that, as to its fundamental theory concerning a wife's legal status, it is deplorably behind the Con tinent; nay, behind the Mohammedans. Mr. Hepworth Dixon, in his book on New America (ii., p. 65) commenting on this topic, says: "A Persian, a Turkish bride, being married to a man of her own rank and creed, retains in the new household her separate existence as her father's child. A New England bride, on being married to a man of her own rank and creed, becomes lost in him. A Turkish wife is an independent and responsible person, with the same faculty of receiving and devising property which she held in her spinster days. What is hers, is not her lord's. She may sue her debtor, without the concur rence of her nearest friend. She may receive a pension, sign a bond, execute a trust. Compared against her Asiatic sister, what a help less being an American [married] lady seems!" From the private information of Amer icans, who declare that they state what they know, and that they have in vain tried to convince and dissuade ladies, who have adopted the theory of free love; we are constrained to believe that already in some cities in the North, nay, in accomplished and pure-hearted circles, free from any perturbations of religious fanaticism, the essential injustice of the marriage laws is driving women to a defiance of them; and this, though our law of divorce is already beneficially relaxed in many, perhaps most, of the States. A high-minded lady is pleased at the advances of a lover, and consents to become his, provided the marriage be wholly illegal! because (says she) "I have no idea of any union but that of equality. If you love me, you cannot wish to make me your inferior, or to exact a promise of obedience, or to get exclusive rights over children; and much less, to take my property* as yours, except in the same sense in which I take your property as mine; or to make me essentially dependent, and unable to protect myself. The rights given to unmarried women by the law are few enough: it is indeed very unjust to them also: but such as my rights now are, I mean to keep them. I will have nothing to do with a marriage which sacrifices them. Our union must be between our two selves and God; and we shall love one another all the better, because we do not let any one else interpose." When we learn from the last census, that the United States contain nearly 730,000 more men than women, it is pretty clear that women who are worth having are sure to be able to prescribe to lovers the conditions on which they will accept them; and if this state of sentiment spread, the marriage law will go out of use in precisely the most spirited and most intellectual part of American society. Nor can anything be reasonably expected to secure us from the evil but a decisive change of the marriage law. 477 change her legal status or lose any part over ment' When the great "beard-movecommenced, it was ludicrous to but did not dare, for fear of being sinsee how many men wished to join it, gular. For more than two years there was suspense, and it almost seemed to be a failure, through the strong opposition of influential persons at the head of great establishments: then in one half year the new idea suddenly triumphed; and huge beards, huge mustachios, became quite a national feature in all the cities. So, too, may it be in the matter of marriage. If ever that come about (which we heartily deprecate, and desire to avert by the establishment of justice), but, if ever English women do rebel against the marriage law, it may begin with some martyr-spirited heroine, perhaps some accomplished and graceful lady; who will no more quail from male ker or Dr. Elizabeth Blackwell; and just or female reproof, than Dr. Mary Walwhen men begin to think it is all nonsense and moonshine, they may find hundred and the thousand following the women of the working classes by the example, sheltering themselves from reproof by their own numbers. to obviate this result, that we implore It is all true and genuine Conservatives not do justice to the sex in good time. to delay and use half measures, but to who tries to uphold injustice is the true and efficient revolutionist, while he thinks he is Conservative. He We do not need reforms in detail bit by bit-fragments of justice-so that in fifty years' time Englishwomen may nearly reach the point at which the Women of Hungary and of Turkey now are. We need a single, short, sweeping actment, that, notwithstanding any darling of her heart, the image of her thing to the contrary in past statutes, no dreams, a great centre of her thoughts woman henceforth shall by marriage and hopes; and after all her toils, the But, not only in regard to property, unjust to women. also in regard to children, the law is The mother has to undergo much in bringing a child to maturity; next the agony of childbirth, the exhaustion of suckling, the countless Mr. Hepworth Dixon, we are assured that in some and by day. law permits a husband to take the child permanently out of her sight, and (if he New England States a wife retains her private prop- choose) to put it under the charge of an erly as completely as a sister. enemy, perhaps under that of a rival, |
