Marriage, As It Was, As It Is, And As It Should Be

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Annie Besant. Marriage, As It Was, As It Is, And As It Should Be

I. MARRIAGE

II. DIVORCE

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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."

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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.

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