CHAPTER XII
WOMEN BEFORE THE LAW
The publication of the Report of the Royal Commission on Divorce, at the time of writing these lines, is a reminder of the invidious position women at present hold under the law, a position which the majority recommend shall be abolished. The present law is based upon the conception, old as the hills, of the right of the husband to a position of privilege, and the proposals of a majority of the Commissioners, two of whom were women—the Lady Frances Balfour and Mrs H. J. Tennant—are all the more remarkable when it is remembered how strong is tradition and how powerful is custom. Should these recommendations be embodied in an Act of Parliament, England will at last take her place with all the other great nations of the world, and more particularly with her Colonies and the United States of America, as sufficiently awake to the needs of the age to put behind her an ancient and worn-out tradition and law.
Scotland is ahead of England, in that her law provides divorce facilities for husband and wife on equal terms. England shares with Greece the unenviable distinction amongst European countries of permitting to the man offences against the wife which he is not expected to tolerate in his partner against himself. The Roman Catholic Church recognises no divorce except under special dispensation, so that Ireland is greatly behind both England and Scotland in her divorce law practice.
The present English law provides that the husband may have a divorce if he can show one cause, the adultery of his wife. When the wife petitions, the adultery of her husband is not sufficient. She must prove cruelty in addition, or desertion for two years without reasonable cause. The reason given for this discrimination is, that the husband may have foisted upon him the child of some other man which he would be compelled to maintain. Here is an example of the tender regard for property interests which has shown itself all through the legislation of the past, whilst the moral point is conveniently set aside. It cannot seriously be debated that, considerations of property entirely aside, the unfaithful behaviour of the one partner is any less a moral offence than the unfaithfulness of the other.
The majority of the Commissioners recommend the establishment of the equality of the sexes in the causes of divorce, and even the minority of three—the Archbishop of York, Sir William Anson, and Sir Lewis Dibdin—are agreed upon the essentially Christian character of the equality principle.
But the Majority Report goes much further, and here comes the division between it and the distinguished churchmen who form the minority. The number of the causes of divorce is recommended to be increased. In addition to adultery, desertion for a period of three years and upwards, cruelty, hopeless insanity, incurable drunkenness, and imprisonment under a commuted death sentence are to constitute cause of divorce, should either party desire it. In all probability tens of thousands of people justly entitled to take advantage of one or more of these causes will decline to do so on religious, sentimental, or economic grounds. Experience in Scotland has not shown that there is a rush of injured wives to the Divorce Court because it has been placed within their power to divorce a faithless husband. Family ties and money considerations have probably exerted their restraining influence, and will continue to do so. Nor will those wishful of observing the canon law, who hold deep convictions concerning the indissolubility of marriage, be under any obligation to spare themselves one atom of suffering which may arise from an unhappy union. But those to whom a union has, for any one of these reasons become intolerable, will be able, should these recommendations become law, to free themselves from a bondage in some cases worse than death. To thousands of thoughtful Christian people it is more a sin against the gospel of love, more degrading to the human spirit, more destructive of self-respect to live in closest union and intimacy with one who has ceased to command either affection or respect, than to break the ancient law of the Church and accept the relief the civil law provides.
The Commission makes several other very important recommendations, including one for cheapening divorce and bringing it within the reach of people of limited means by making it possible for the High Court to hear cases locally. This is interesting as a measure of much-needed social justice. What is right for the rich man is equally right for the poor man or woman, and this proposal, if at any time proceeded with in Parliament, will give relief to many unhappy people of humble means, now tied for life to hopeless lunatics or incurable drunkards, and will provide for the thousands of unhappy deserted wives in the country some hope of a brighter future.
The special interest of the Report from the point of view of feminism is, of course, the proposed equality of treatment of men and women. Feminists have long felt that the unequal treatment of men and women under the law supplies the most disastrous and harmful object lesson in the inferiority of the position of women which the growing youth of the country could possibly witness. To know that the law permitted to his father conduct for which his mother would be divorced, and to note that this conduct carried with it no public censure for the man whilst it covered the woman with shame, was and is the finest instigator to similar practices that the young man could have.
The divorce law of England has long been a scandal; but not the divorce law alone. England is one of the very few countries in the world in which the husband may, if he chooses, will away all his property to strangers, leaving his wife penniless and without redress. Englishmen are much better than their laws, but many cases have actually occurred where, on the death of a husband, the wife has discovered herself to be penniless, he having willed away to his mistress and her children all the fortune he possessed. If a husband should die without making a will the widow is entitled to the whole of the property, realty and personalty, if together the value is not more than £500. If the fortune left exceed this sum, she is entitled to one-third of the rents of the remaining realty after her share of £500 has been deducted. She is also entitled to half the personalty. The remainder goes to relatives in order of kinship, and in the absence of any relatives, to the Crown. If a wife die intestate the whole of the personalty goes to the husband, and the rents of the realty for the period of his life. The inheritance of freehold property is by way of the eldest son, who takes the whole; or if he should leave no son to inherit after him, the land is divided equally amongst his daughters.
The feminist view about all these things is opposed to laws based upon the feudal idea, with its supreme value of fighting capacity. Believing that a man and a woman are equally valuable parts of humanity, she would have no favouritism shown by the law. As in Sweden the property, when no will is made to the contrary, should be divided equally amongst the members of the family, the girls inheriting equally with the boys. In individual cases different arrangements might very properly be made with the consent of all the grown-up family; but in no circumstances should it be possible for a husband to leave his wife and family penniless; nor should the law of intestacy be so different for husband and wife. It should not be possible for the husband to appropriate all the money left by his wife if there are children to inherit. It is not safe to presume that the father will invariably live up to his responsibilities to his children and provide them with the things to which their mother's wealth entitles them.
Under the English law the mother of a legitimate infant is not entitled to its guardianship. Although to her has belonged the sufferings of motherhood and the long, weary days of caring for the child's welfare, she is not a full parent in the eyes of the law, unless her child be without legal father. Then, indeed, the responsibility is entirely borne by her, and society demands of her every duty which it places upon the father whose union is regular. The Guardianship of Infants Act of 1886 sought to remedy somewhat the injustice of shutting out the mother from the control of her child. The Act provides that the mother may be the guardian of her unmarried children if she should survive her husband, but she must share her power with another if her husband so appoint in his will. On the other hand, if by deed or will the mother appoint a guardian to act for her children in the event of her death, the Courts do not recognise such a guardian if the father is living unless it is demonstrated beyond the shadow of a doubt that the father is not a fit and proper person to take care of young children. The father has the sole right to have his children educated in his religious faith. No heed is given to the wishes of the mother in this particular. Even if the husband dies, having expressed no particular wish in the matter, or even if there has been an ante-nuptial arrangement by which the children, or some of them, were to be brought up in the faith of the mother, and which the husband seeks to set aside, the father's faith is the one selected, and the agreement can be made ineffective.
It is placing women in a very low position indeed to treat pledges, secured before marriage and as a condition of marriage, as so much waste paper. It is a grievous wrong to command, in the absence of any expression of his wishes, that the father's faith must be taught the children against the expressed desire to the contrary of the living parent. It is to be feared that these and kindred facts, when known, will have the effect of promoting irregular unions amongst the more thoughtful girls who are able by their own work to maintain themselves. Why should it be so difficult, for instance, for a mother who does not approve of vaccination to get an exemption order to prevent the vaccination of her baby? Why should she have to prove with such exactness that she is acting for her husband, as though he alone were the parent of the child? Why should some magistrates decline altogether to give the order to any but the husband? The inconvenience to him is frequently very great, but not to be compared with the indignity to her. Surely in matters affecting her own baby the mother's opinion is worthy of an independent consideration. The English law says no. The feminist insists, yes.
The obligation to maintain a wife is not directly recognised by English law, though there are indirect ways of effecting this result. The wife may either pledge her husband's credit, which she is lawfully entitled to do, or she may go into the workhouse and become a public charge, and the husband may be sued by the Guardians for money for her support. If a married woman earn money the Married Woman's Property Act of 1870 has secured her earnings to her; but such money as she manages to save, by dint of care and thrift, out of the housekeeping money, may be claimed by a drunken or worthless husband for his own purposes. The Married Woman's Property Act of 1882 was a fine piece of legislation which placed married women with property in the same position as propertied single women, giving them the right to use and control all their present or future property and endowing them with all the responsibilities and obligations contracted by them in respect of their separate estate. The Act is not perfect, however, for it still leaves the woman in the position of chattel in one or two important respects. By the wording of the Act the wife who breaks a contract made with a third person cannot be proceeded against except in respect of her separate estate. If she has no separate estate she cannot be imprisoned for her behaviour, because to imprison her would be to rob the husband unlawfully of his property, i.e. of her person. No self-respecting woman would claim a privilege of this sort, but would urge with the feminists that the woman be punished with the man for the same offence against commercial honour. It should be made possible for a married woman to be proceeded against on a Bankruptcy notice as in the case of men; she should also be made responsible for the payment of her own income-tax. The spectacle recently presented to the amused world of a poor husband imprisoned because a rich wife declined to pay her income-tax as a protest against her continued disfranchisement illustrates the present unsatisfactory condition of the law.
The law should be amended to make husband and wife equal in regard to a loan with which either may supply the other. A bankrupt husband whose wife has lent him money is not obliged to pay her before his other creditors have been paid, which probably the wife would approve. The man whose wife has become bankrupt, and who has lent her some money, is entitled before all the other creditors to take what belongs to him. This is unfair to the other creditors, and is using the wife's dependence and inferiority of legal position for an unworthy end. A husband should not be legally responsible for the libellous statements made or the assaults committed by his wife. She is a grown person and should bear the responsibility of her own misdeeds. In these ways and others should the principle of equal treatment and equal status be established.
The present apparent favouritism is not desirable for women, for it is based upon the assumption that they are the property of the men they marry, unreasoning and unreasonable beings for whom their men must be held responsible. It presupposes the absence of the moral sense in women and makes men the guardians of their infirmity. All this is ridiculous and out of date. The feminist idea that every human being should stand on his or her own feet, recognised by the law as a competent individual, recognised in the married state as one of two equal partners contracting to live together for a common end, each contributing to that end what each is specially designed to contribute, and each honouring the other for his or her share in the accomplishment of their common purpose, is more honouring to women and less harmful to men.
Feminists there are who would like to see the principle of equality so rigidly carried out in the letter that the spirit of equality would be practically defeated. The spirit is the important thing, and if that be safeguarded there can be no objection to social arrangements which, on the surface, appear to bear somewhat unfairly upon women. For instance, it is certainly desirable that a married woman should be in a position to command the means of life for herself independently of another individual. It should not be possible for a woman to have to wring every penny she spends upon herself or her children from a mean and reluctant husband. Nor should she be permitted to starve if an idle husband declines to support her or runs away from his responsibilities. Economic independence for married women is of the utmost importance; but is the best way of securing this an equal division of the husband's weekly wage, as some feminists suggest? The best working men, and they are not a few, give the whole of their scanty earnings to their wives for the needs of the household. The women could get no more from them in any circumstances. The best men realise that their wives are as much entitled to that weekly wage as they themselves, for they work at home to earn it as they themselves work at the mill or the workshop.
In the absence of children it would be the best thing possible for married women to earn their own living; and no clamour for equality of status with men is worthy of a moment's attention if the request be not based upon a self-respecting demand for the opportunity to maintain themselves. Why should power and privilege be conferred upon women who are content to be fed and clothed by their men without their making any contribution whatever to the productive enterprises of the country? Women must cease to be consumers only and must be producers: in other words, they must work, if their demands are not to be regarded as seriously unjust. Married women who have the misfortune to be childless are not for that reason entitled to be maintained without work. Married women with children justify their existence by working and caring for them. A scheme of maternity benefits on a scale sufficient to maintain them honourably during the child-bearing period, to which every man and every unmarried woman should contribute in proportion to their means and their responsibilities, offers an alternative to the proposal to divide the already scanty income of the poorer fathers.
This proposal is often criticised by tender-hearted women, generally the fortunate wives of thoughtful husbands, who shrink from even appearing to doubt the readiness of the fathers of the country to treat their wives with generosity in their periods of utter dependence. No femininst would wish to reflect for a moment upon the well-known fatherliness of a vast number of fathers, nor upon their genuine tenderness for the well-being of their wives. The sin against the helpless wife, when committed, is usually one of thoughtlessness. It has never occurred to the husband that there could be anything valuable to a woman in having money of her own. Up to the limit of his means he has been willing to provide her with the things she wanted; he has always cheerfully paid the bills. What more could she ask for? And the feminist replies: 'The glorious privilege of being independent'; of having some little sum which she may regard as her very own, either to spend on herself or on her family, but for the spending of which she cannot be called to account; of being saved the bitter necessity of asking for every halfpenny.
There is one feature very noticeable in the administration of British law, and that is the extraordinary respect paid to property in all its forms, and the lesser importance attached to human honour, especially the honour of women. Cases are as common as may be of prisoners sentenced heavily for the most trivial offences against property, whilst others have been leniently treated for crimes against flesh and blood. Some time ago the country was outraged by the passing of a sentence of several months imprisonment upon a boy for stealing a few pennyworth of coal. At the same time a man was fined ten shillings for having criminally assaulted the wife of a neighbour. It is not suggested that this behaviour on the part of magistrates is invariable, but the tendency is always there. Only a few days ago a man was dismissed by the courts because he swore on oath that he thought the girl he had wronged was more than sixteen years of age. Wife-beating is a crime which generally meets with very lenient treatment in this country when compared with an offence against property.
The age at which a girl becomes responsible for her property is twenty-one; but long before that time she is held to be fully responsible for the care of her own person. She may consent to her own moral ruin at the tender age of sixteen. It is well to know in this connection that, in many of the States where women vote, the age of consent is eighteen, and even twenty-one. All feminists are in favour of raising this age; but no feminist would urge this proposal without at the same time taking steps to protect the sons of women from the temptations of light women. Soliciting in the streets by women is now punishable by law. This principle might be extended in some way to bring within the serious condemnation of the law those girls and women who seek to entrap simple youths into marriage, or who, by light behaviour, provoke young men to acts of immorality. It is an extremely difficult question; but girls above the age of fourteen, who bring to the Courts complaints of the behaviour of youths under eighteen, should have their cases dismissed with contempt if it can be demonstrated quite clearly that they have contributed to their own undoing.
The law has been described by a great writer as an ass; but, interpreted in the light of common sense, the law can do much to improve public morals and at the same time protect boys and girls from the devastating consequences of their own uncontrolled passions. Let the Courts set up a sufficiently high standard of morality by protecting girls at the most difficult and impressionable period of their lives; but, in the interpretation of the law, let the justices and magistrates remember that there is only one thing as dear to the heart of a mother as the honour and well-being of her daughter, and that is the well-being and honour of her son.
If the profession of the law be thrown open to women it goes without saying that time will prove the fitness of some gifted women of the future to occupy the high offices of the law. A woman judge in a woman's or children's court does not appear to be so very extraordinary and objectionable. In some countries of the world there are both women judges and jurors, with no greatly disturbing results to the countries in question. It is frequently said that it would not be to the advantage of women prisoners to be tried by women; that they receive better treatment at the hands of men. Women are supposed to be so terribly hard on their own sex that it would be impossible for them to be just to them, whilst, on the contrary, the handsome young male villain would get off with a light sentence.
This is the kind of flippant argument which has always been used against the admission of women to new powers and responsibilities. They are supposed to bring with them an extraordinary bias against their own sex, particularly the handsome and attractive members of their sex. The lie is very old. The sex-influence is in the Courts at present. It is not good for the State that offences should be condoned because of a jury's admiration of a pair of blue eyes or a magistrate's appreciation of a well-cut gown. The poor drunken creatures who so frequently appear in Court have no reason to believe their present judges so perfect that no change for the better could possibly be effected. The exclusion of women from the office of judge and juror makes it quite impossible for women to be tried by their peers in the complete sense of that expression, and doubtless many times injustice is done because the woman prefers to be misunderstood and to suffer rather than explain to a company of men, with no woman present, all the details of her case.
One thing is quite certain: that women on the bench and in the jury-box would use the last syllable of the law to aid them in more justly apportioning the blame in all those cases of immorality and its consequences in which one partner to the act of both seems to get off so lightly. It is true that the utmost the law can do is not much, but when the deserted unmarried wife appeared before the Court for some means of support, the women magistrates would surely show more interest in the whereabouts of the father than seems to move those in authority to-day. The circumstances of the lives of women being more intimately known to them than to men, they would be able better to measure the strength of the temptation to wrongdoing which has brought their unfortunate sisters within the clutches of the law. In brief, they would introduce into the administration of the law an emphasis upon the rights of human beings to balance the present too heavy emphasis upon the rights of property.
Touching upon questions of morals reminds one that feminism is frequently, by its critics, associated with the completest immorality. No charge is more often levelled against the feminist by uninformed critics than the charge of immoral teachings, if not immoral conduct. The supporter of feminism is supposed by some to be involved in an acceptance of the doctrine of free love, and to be bound to oppose the marriage laws, whether of Church or State. Nothing could be more false than this idea of the feminist. The doctrine of free love with all that it implies is held by many people, sick of the living lies that so many people are, and utterly weary of the sight of human suffering consequent upon unhappy marriage bonds, who would strongly disavow any connection with the feminist movement. At the same time this same doctrine is roundly repudiated by thousands who believe in feminism. The one central fact of feminism is equality, the equality of men and women in all those affairs of life which women can occupy without injury to their essential femininity, the equality of men and women as human beings in all those spheres of activity into which sex does not necessarily intrude and to which sex is no essential.
It is true also that feminists believe in freedom, but the freedom that the feminist stands for is not freedom of passion, better called licence, but freedom to develop, freedom to achieve, freedom to serve. Anarchists there are who do not believe in law at all for any purpose. These people are the free lovers in the sense in which this language is used. Neither are they necessarily immoral people, for selfishness only is real immorality. Many mistake freedom of passion for the real freedom which ennobles and dignifies, and wreck themselves on the rock of self-indulgence before they discover that freedom is of the spirit and of the intellect rather than of the flesh. This is the freedom for which the feminist yearns.
Although feminism does not stand for the abolition of the marriage laws, but for the equality of man and woman in the married state, the supporters of the movement realise that, with communities as with individuals, there is no standing still; that laws which were useful in the past are of little use and of much harm to-day, and that the laws of to-day will not reflect the public opinion of the future. Thus she is in sympathy with the majority of the Divorce Commissioners in wishing to see the divorce law altered, not because she regards it as a step in the direction of free love, but because the alterations proposed will meet the requirements of the time, and are in harmony with the development of both thought and feeling on this grave question. Marriage as it is known to-day will not always be the same in form, but will change from time to time; though it is to be sincerely hoped that the essential spirit of real marriage, the holy ideal of two people joined in love, and through care and suffering, joy and prosperity, living out their lives together, will never be lost.