第16章 CHAPTER 2(1)

It will be well to commence the detailed discussion of the subject bythe particular branch of it to which the course of our observations has ledus: the conditions which the laws of this and all other countries annex tothe marriage contract. Marriage being the destination appointed by societyfor women, the prospect they are brought up to, and the object which it isintended should be sought by all of them, except those who are too littleattractive to be chosen by any man as his companion; one might have supposedthat everything would have been done to make this condition as eligible tothem as possible, that they might have no cause to regret being denied theoption of any other. Society, however, both in this, and, at first, in allother cases, has preferred to attain its object by foul rather than fairmeans: but this is the only case in which it has substantially persistedin them even to the present day. Originally women were taken by force, orregularly sold by their father to the husband. Until a late period in Europeanhistory, the father had the power to dispose of his daughter in marriageat his own will and pleasure, without any regard to hers. The Church, indeed,was so far faithful to a better morality as to require a formal "yes"from the woman at the marriage ceremony; but there was nothing to show thatthe consent was other than compulsory; and it was practically impossiblefor the girl to refuse compliance if the father persevered, except perhapswhen she might obtain the protection of religion by a determined resolutionto take monastic vows. After marriage, the man had anciently (but this wasanterior to Christianity) the power of life and death over his wife. Shecould invoke no law against him; he was her sole tribunal and law. For along time he could repudiate her, but she had no corresponding power in regardto him. By the old laws of England, the husband was called the lord of thewife; he was literally regarded as her sovereign, inasmuch that the murderof a man by his wife was called treason (petty as distinguished from hightreason), and was more cruelly avenged than was usually the case with hightreason, for the penalty was burning to death. Because these various enormitieshave fallen into disuse (for most of them were never formally abolished,or not until they had long ceased to be practised) men suppose that all isnow as it should be in regard to the marriage contract; and we are continuallytold that civilisation and Christianity have restored to the woman her justrights. Meanwhile the wife is the actual bond servant of her husband: noless so, as far as legal obligation goes, than slaves commonly so called.

She vows a livelong obedience to him at the altar, and is held to it allthrough her life by law. Casuists may say that the obligation of obediencestops short of participation in crime, but it certainly extends to everythingelse. She can do no act whatever but by his permission, at least tacit. Shecan acquire no property but for him; the instant it becomes hers, even ifby inheritance, it becomes ipso facto his. In this respect the wife's positionunder the common law of England is worse than that-of slaves in the lawsof many countries: by the Roman law, for example, a slave might have hispeculium, which to a certain extent the law guaranteed to him for his exclusiveuse. The higher classes in this country have given an analogous advantageto their women, through special contracts setting aside the law, by conditionsof pin-money, etc. : since parental feeling being stronger with fathers thanthe class feeling of their own sex, a father generally prefers his own daughterto a son-in-law who is a stranger to him. By means of settlements, the richusually contrive to withdraw the whole or part of the inherited propertyof the wife from the absolute control of the husband: but they do not succeedin keeping it under her own control; the utmost they can do only preventsthe husband from squandering it, at the same time debarring the rightfulowner from its use. The property itself is out of the reach of both; andas to the income derived from it, the form of settlement most favourableto the wife (that called "to her separate use") only precludesthe husband from receiving it instead of her: it must pass through her hands,but if he takes it from her by personal violence as soon as she receivesit, he can neither be punished, nor compelled to restitution. This is theamount of the protection which, under the laws of this country, the mostpowerful nobleman can give to his own daughter as respects her husband. Inthe immense majority of cases there is no settlement: and the absorptionof all rights, all property, as well as all freedom of action, is complete.