"Either all human beings have equal rights, or none have any."

– Condorcet.

I. MARRIAGE

The recognition of human rights may be said to be of modern growth, and even yet they are but very imperfectly understood. Liberty used to be regarded as a privilege bestowed, instead of as an inherent right; rights of classes have often been claimed: right to rule, right to tax, right to punish, all these have been argued for and maintained by force; but these are not rights, they are only wrongs veiled as legal rights. Jean Jacques Rousseau struck a new note when he cried: "Men are born free;" free by birthright was a new thought, when declared as a universal inheritance, and this "gospel of Jean Jacques Rousseau" dawned on the world as the sun-rising of a glorious day – a day of human liberty, unrestrained by class. In 1789 the doctrine of the "Rights of Man" received its first European sanction by law; in the August of that year the National Assembly of France proclaimed: "Men are born, and remain, free and equal in rights… The aim of political association is the conservation of the natural and imprescriptible rights of man; these rights are – liberty, property, safety, and resistance of tyranny." During savage and semi-civilised ages these "imprescriptible rights" are never dreamed of as existing; brute force is king; might is the only right, and the strong arm is the only argument whose logic meets with general recognition. In warlike tribes fair equality is found, and the chief is only primus inter pares; but when the nomadic tribe settles down into an agricultural community, when the habit of bearing arms ceases to be universal, when wealth begins to accumulate, and the village or town offers attractions for pillage, then strength becomes at once a terror and a possible defence. The weak obey some powerful neighbour partly because they cannot resist, and partly because they desire, by their submission, to gain a strong protection against their enemies. They submit to the exactions of one that they may be shielded from the tyranny of many, and yield up their natural liberty to some extent to preserve themselves from being entirely enslaved. Very slowly do they learn that the union of many individually feeble is stronger than a few powerful, isolated tyrants, and gradually law takes the place of despotic will; gradually the feeling of self-respect, of independence, of love of liberty, grows, until at last man claims freedom as of right, and denies the authority of any to rule him without his own consent.

Thus the Rights of Man have become an accepted doctrine, but, unfortunately, they are only rights of man, in the exclusive sense of the word. They are sexual, and not human rights, and until they become human rights, society will never rest on a sure, because just, foundation. Women, as well as men, "are born and remain free and equal in rights;" women, as well as men, have "natural and imprescriptible rights;" for women, as well as for men, "these rights are – liberty, property, safety, and resistance of tyranny." Of these rights only crime should deprive them, just as by crime men also are deprived of them; to deny these rights to women, is either to deny them to humanity qua humanity, or to deny that women form a part of humanity; if women's rights are denied, men's rights have no logical basis, no claim to respect; then tyranny ceases to be a crime, slavery is no longer a scandal; "either all human beings have equal rights, or none have any."

Naturally, in the savage state, women shared the fate of the physically weak, not only because, as a rule, they are smaller-framed and less muscular than their male comrades, but also because the bearing and suckling of children is a drain on their physical resources from which men are exempt. Hence she has suffered from "the right of the strongest," even more than has man, and her exclusion from all political life has prevented the redressal which man has wrought out for himself; while claiming freedom for himself he has not loosened her chains, and while striking down his own tyrants, he has maintained his personal tyranny in the home. Nor has this generally been done by deliberate intention: it is rather the survival of the old system, which has only been abolished so slowly as regards men. Mrs. Mill 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 very lately, the rule of physical strength was the general law of human affairs. Throughout history, the nations, races, classes, which found themselves strongest, either in muscles, in riches, or in military discipline, have conquered and held in subjection the rest. If, even in the most improved nations, the law of the sword is at last discountenanced as unworthy, it is only since the calumniated eighteenth century. Wars of conquest have only ceased since democratic revolutions began. The world is very young, and has only just begun to cast off injustice. It is only now getting 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 only now getting rid of disabilities on the ground of religion. It is only beginning to treat any men as citizens, except the rich and a favoured portion of the middle class. Can we wonder that it has not yet done as much for women?" ("Enfranchisement of Women," Mrs. Mill. In J. S. Mill's "Discussions and Dissertations," Vol. II., page 421.) The difference between men and women in all civil rights is, however, with few, although important, exceptions, confined to married women; i.e., women in relation with men. Unmarried women of all ages suffer under comparatively few disabilities; it is marriage which brings with it the weight of injustice and of legal degradation.

In savage times marriage was a matter either of force, fraud, or purchase. Women were merchandise, by the sale of whom their male relatives profited, or they were captives in war, the spoil of the conqueror, or they were stolen away from the paternal home. In all cases, however, the possession once obtained, they became the property of the men who married them, and the husband was their "lord," their "master." In the old Hebrew books – still accounted sacred by Jews and Christians – the wife is regarded as the property of her husband. A man may "sell his daughter to be a maidservant" i.e., a concubine, as is shown by the following verse (Ex. xxi. 7), and Jacob served seven years for each of his wives, Leah and Rachel; his other two wives were his by gift, and were rather concubines than recognised wives, their children counting to their mistresses. If a Hebrew conquered his enemies, and saw "among the captives a beautiful woman, and hast a desire unto her, that thou wouldst have her to thy wife," he might take her home, and become her husband, "and she shall be thy wife" (Deut. xxi 10-14). After the destruction of Benjamin, as related in Judges xx., it was arranged that the survivors should possess themselves of women as wives by force and fraud: "Life in wait in the vineyards, and see and behold if the daughters of Shiloh come out to dance in dances, then come ye out of the vineyards, and catch you every man his wife… And the children of Benjamin did so, and took their wives according to their number, of them that danced, whom they caught" (Judges xxi. 20, 21, 23). The same plan was adopted by the Romans in their earliest days, when they needed wives. Romulus invited the people of the Sabines and the neighbouring towns to see some public games, and in the midst of the show the Romans rushed in and carried off all the marriageable maidens they could lay hands on (Liddell's "History of Rome," p. 20). These instances may be objected to as legendary, but they are faithful pictures of the rough wooing of early times. Among some barbarous nations the winning of a bride is still harsher: the bridegroom rushes into the father's house knocks the maiden down, picks up her senseless body, flings it over his shoulder, and runs for his life; he is pursued by the youth of the village, pelted with stones, sticks, &c., and has to win his wife by sheer strength and swiftness. In some tribes this is a mere marriage ceremony, a survival from the time when the fight was a real one, and amongst ourselves the slipper thrown after the departing bridegroom and bride is a direct descendant of the heavier missiles thrown with deadly intent thousands of years ago by our remote ancestors. Amongst many semi-barbarous nations the wives are still bought; in some parts of Africa the wooer pays a certain number of cows for 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 force, or bought; she is not free to choose her husband; she does not give herself to him; she is a piece of property, handed over by her original owner – her father – to her new owner – her husband – in exchange for certain solid money or money's worth; hence she becomes the property of the man who has paid for her.

In an admirable article in the Westminster Review for April, 1876, the following striking passage is to be found:

"As Aristotle long since remarked, among savages women and slaves hold the same rank. Women are bought primarily as slaves, to drudge and toil for their masters, whilst their function as wives is secondary and subordinate. It is more right to say of polygamous people that their slaves are also their wives, than to say that their wives are slaves. They are purchased as slaves, they work as slaves, and they live as slaves. 'The history of uncultivated nations,' it has been said, 'uniformly represents the women as in-a state of abject slavery, from which they slowly emerge as civilisation advances.' In Canada a strap, a kettle, and a faggot are placed in the new bride's cabin, to indicate that it will be henceforth her duty to carry burdens, dress food, and procure wood for her husband. In Circassia it is the women who till and manure the ground, and in parts of China they follow the plough. A Moorish wife digs 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 all the menial offices connected with tent-life… From the absolute power of a savage over his slaves flow all those rights over a woman from which the marital rights of our own time are the genealogical descendants… A trace of it [purchase] is found in the following customs of old English law: – 'The woman at the church-door was given of her father, or some other man of the next of her kin, into the hands of her husband, and he laid down gold and silver for her upon the book, as though he did buy her.'" This custom is still maintained in the Church ritual; the priest asks: "Who giveth this woman to be married to this man?" and when the man gives the ring to the priest, he gives money with it, receiving back the ring to give the woman, but the money remaining, a survival of the time when wives were literally bought.

By the old Roman laws, the married woman had no personal rights; she was but the head slave in her husband's house, absolutely subject in all things to her lord. As the Romans became civilised, these disabilities were gradually removed. It is important to remember these facts, as these are the origin of our own marriage laws, and our common law really grows out of them.

One other point must be noticed, before dealing immediately with the English marriage laws, and that is the influence exerted over them by ecclesiastical Christianity.

The Old Testament expressly sanctions polygamy; but while the New Testament does not proscribe it – except in the case of bishops and deacons – ecclesiastical Christianity has generally been in favour of monogamy; at the same time, both the New Testament and the Church have insisted on the inferiority of the female sex; "the husband is the head of the wife" (Eph. v. 23); "wives, submit yourselves unto your own husbands" (Col. iii. 18); "your women… are commanded to be under obedience" (1 Cor. xiv. 34); "ye wives, be in subjection to your own husbands… even as Sara obeyed Abraham, calling him lord, whose daughters ye are as long as ye do well" (1 Pet. iii. 1, 6). The common law of England is quite 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 male lawgivers, have expressed it, the worthiest of blood shall be preferred" ("Comm, on the Laws of England," J. Stephen, 7th ed. vol. i. p. 402).

The feudal system did much, of course, to perpetuate the subjection of women, it being to the interest of the lord paramount that the fiefs should descend in the male 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 sinews should have the upper hand; the pity is that English gentlemen to-day are content to allow 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 lays down, in his world-famous "Commentaries on the Laws of England," that the first of the "absolute rights of every Englishman" is "the legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation" (9th ed., bk. 1, p. 129). The second right is personal liberty, and he says: "the confinement of a person in anywise is an imprisonment. So that the keeping; a man against his will in a private house… is an imprisonment" (Ibid, 136): The third is property, "which consists in the free use and enjoyment of all his acquisitions, without any control or diminution, save only by the laws of the land" (Ibid, 138). A subordinate right, necessary for the enforcement of the others, is "that of applying to the courts of justice for redress of injuries." I shall proceed to show that a married woman is deprived of these rights by the mere fact of her marriage.

In the first place, by marriage a woman loses her legal existence; the law does not recognize her, excepting in some few cases, when it becomes conscious of her existence in order to punish her for some crime or misdemeanour. Black-stone says – and no subsequent legislation has in any way modified his dictum: "By marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated or consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme covert" (p. 442). "Husband and wife are one person in law" (Comyn's Digest, 5th ed., vol. ii., p. 208), and from this it follows that "by no conveyance at the common law could the husband give an estate to his wife;" that "a. husband cannot covenant or contract with his wife," even for her own advantage, and that any prenuptial contract made with her as to money she shall enjoy for her separate use after marriage, becomes void as soon as she is married. All covenants for the wife's benefit must be made with some one else, and the husband must covenant with some other man or unmarried woman who acts as trustee for the wife. This is the fundamental wrong from which all the others flow: "'Husband and wife are one person,' and that one is the husband." The wife's body, her reputation, are no longer her own. She can gain no legal redress for injury, for the law does, not recognize her existence except under cover of her husband's suit. In. some cases more modern legislation has so far become conscious of her, as to protect her against her husband, and if this protection separates her from him, it leaves her the more utterly at the mercy of the world.