THE LAW AND
THE WOMAN

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Instead of using footnotes a short list of the main authorities referred to in each chapter is given for those who desire to study the subject more thoroughly.

CHAPTER I

“History of European Morals,” W. E. H. Lecky, 1890.

As to the sale of wives see “The Annual Register” and “Notes and Queries.”

“Ancient Laws and Institutes of England,” Benjamin Thorpe, 1840.

“History of the Anglo-Saxons,” Sharon Turner, 1836.

“Womankind in Western Europe,” Thomas Wright, 1869.

CHAPTER II

“The History of Human Marriage,” Edward Westermarck, 1894.

“London in the Eighteenth Century,” Sir Walter Besant, 1902.

CHAPTER III

“The Law of Domestic Relations,” W. P. Eversley.

“A History of the Rod,” Rev. W. M. Cooper, 1869.

“Commentaries on the Laws of England,” Sir William Blackstone, 1765-9.

“Regina v. Jackson,” Law Reports, 1891. 1 Queen’s Bench, p. 671.

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CHAPTER IV

“Report on the Royal Commission on Divorce and Matrimonial Causes,” 1912.

“Dodd v. Dodd,” Law Reports, 1906, Probate Division, p. 189.

CHAPTER V

“The Family,” Helen Bosanquet, 1906.

“Marriage,” Anne Besant, 1882.

“Rex v. Greenhill,” 1836. 4 Adolphus and Ellis, p. 624.

“Maternity Letters, collected by the Women’s Co-operative Guild,” 1915.

CHAPTER VI

“Pioneer Work in Opening the Medical Profession to Women,” Dr. Elizabeth Blackwell, 1895.

“Lay Sermons, Addresses and Reviews,” Thomas Henry Huxley, 1871.

CHAPTER VII

“The Queen against Foxby,” 1703. 6 Modern Reports

CHAPTER VIII

“Grinnell v. Wells,” 1844. 7 Manning and Granger, p. 1033.

“Laws for the Protection of Women,” James Edward Davis, 1854.

“Legal Protection of Women,” W. Rulkoetter, Chicago, 1900.

“Report of Conference of the Criminal Law Amendment Committee,” 1913.

CHAPTER IX

“The Subjection of Women,” John Stuart Mill, 1869.

“Ought Women to learn the Alphabet?” T. W. Higginson, 1873.

“The French Revolution,” Thomas Carlyle.

“Women in Politics,” Charles Kingsley, 1869.

“He that telleth a tale to a fool speaketh to one in a slumber: when he hath told his tale, he will say, What is the matter?”

Ecclesiasticus, xxii. 8.

I admire the way in which the old preachers and prophets who failed to make their meaning clear to their neighbours always turned round upon them and called them fools. It is a habit that still obtains with us, especially among modern journalists, but we do it, I think, with less conviction and certainly in poorer rhythm and epigram.

All that the writer in the Apocrypha wanted to say was that when he spoke about the social reforms with which his mind was over-burdened nobody wanted to listen to him, and this was no doubt entirely his own fault. The fact is that every citizen is in a slumber over the affairs of his own generation. He is wide awake enough about the shocking morals of Central African natives, or the awful social system of the eighteenth century, but when you want to tell him tales about slum dwellings, sweating and infant mortality in his own parish, he yawns deprecatingly and asks, “What is the matter?”

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I have noticed this attitude of mind among those to whom one has spoken upon the subject matter of this little book. When people discuss the rights and wrongs of Woman, other patient, sensible people are particularly puzzled to know “What is the matter?” Now there is probably a great deal the matter which is wholly outside the Law, and this may safely be left with the neurotic, hysterical and imaginative novelist to make her fortune with. Psychology and physiology are dangerous matters for the ignorant to write about, that the still more ignorant may enjoy unwholesome thrills. Herein I can promise you no such entertainment. All I have sought to do is to make a little practical handbook, stating in everyday language how the Law as administered in our Courts to-day seems to me to deal out to Woman justice of an inferior quality. How far this is so, how it came about, and how with the least alteration and confusion it can be remedied, is the plain tale I have set out to tell.

Let me say at the outset that this is not a law book, and though I do not suppose that there is more bad law contained in it than in many books written solely for lawyers, yet I wish to state that its primary object is not to interest professional legal men, and as unfortunately there are no professional legal women to be interested in it, I live in hopes that it may be found acceptable, as the Victorians would have phrased it, to many “fair readers.”

Though indeed I ought to warn intending fair readers that they may not find it altogether to their mind—I have a feeling that to write a popular book [Pg 11]about the Law and the Woman it ought to be written by some far-seeing philosopher who could assure Woman that in the near future simple adjustments and alterations of existing laws would bring about a vast increase in the happiness and prosperity of a large number of women. As I do not believe that this will happen I cannot prophesy it.

I have long come to the conclusion that Law has a great deal less to do with happiness and comfort than people imagine. I am rather of opinion that though it would be well if the laws of our country coincided with the general common sense and humanity of the generation we live in, yet in spite of the antiquated imperfection and even absurdity of much of our law, human beings can to-day, as they have in the past, achieve a certain amount of happiness by the exercise of good sense in the management of their own social affairs.

I remember more than thirty years ago when I was editing Dorothy Osborne’s letters, which were written in 1652-1654, making what was then to me a great discovery. I found that amidst the sweep up of the Civil Wars, when one would expect if ever to find bitterness, hatred and gloom, the social life of the countryside resumed its homely, placid course much as it does to-day within a few months of a general election. Men and women went on with their gossip and their social duties of everyday life, including the courtship and marriage of the young folk of enemy households, and very soon even visits to favourite watering-places and the pleasures of hospitality became the common [Pg 12]round and daily task of Dorothy Osborne and her friends.

The historians are no doubt right in impressing you with the idea that history is a matter of governments, treaties and parliaments and laws, but it dawns upon you when you escape from the glamour of the wisdom of professors that not one of these things exercises an overwhelming influence over the happiness of human beings.

Holding this view very strongly, it would be absurd in me to suggest that this little book could possibly bring about any reforms of great social value even if some caliph were to arise and enact it as Law the day after its publication. The best it can hope for is to assist the public in moving away some of the minor legal obstructions that are utterly out of date, and thereby to contribute in a small degree towards social betterment. There is a lot of legal machinery that is merely waiting for a friendly shove to topple on to its last resting-place on the scrap heap. Much of this Law is connected with Woman, and it is only chivalrous and respectful to help to clear it out of her path.

Here is where I think essays of this kind may be of service. Originating in a series of articles in the Sunday Chronicle, they have been revised and rewritten for the use of the average citizen who cannot in the nature of things read the multitude of books which deal with the history of the Law in relation to Woman; and without some notion of the evolution of things and how they stand at present there is little [Pg 13]hope of his finding out the line of least resistance along which he can advance towards reform.

Real reform perhaps does not come through Law, for Law is only a statement—or more often the repeal of a statement—made long after society has decided for itself what it intends to do. The real reform is made when the will of the people is decided and acted upon, though the legal reform may not come along for years afterwards.

The law relating to marriage with a deceased wife’s sister is an example. Here the reform of the Law did nothing more than formalize what all individuals with any sense of personal respect had long ago decided and enacted for themselves outside the Law. Still there is no doubt that many unjust laws are irksome, inconvenient and the cause of unhappiness, especially to women, and as they can readily and easily be repealed—and it is an undoubted fact that we want fewer laws—the cause is one well worth working for.

In these pages, then, I have sought to point out the paths along which the reformer can make for the heights of greater freedom and justice for Woman as far as these things are attainable by Law, and though I cannot see any Millennium to be brought about by legal reform, yet I do not despise it, for I believe it to be a sensible, practical business, and the study of it leads one among strange forgotten thinkers and writers and is full of entertainment. We cannot all be great statesmen bringing in far-reaching social schemes, nor are our great architects of social salvation palaces invariably successful, for even their magnificent edifices [Pg 14]are found sometimes in a few years to be letting in mud and water and showing signs of dry rot in the green timbers of their foundations.

There are many small matters of legal reform touched upon in these pages which could be made Law with very little trouble and which would in my view make for happiness. When the Man in the Street understands a little better how the Law stands in relation to Woman and what are the battles of reform which are already half won, he will be able to help Woman to fight these to a finish, and in this way leave the world a little better than he found it.

EDWARD A. PARRY.

Sevenoaks, 1916.

“After all these years I see that I was mistaken about Eve in the beginning; it is better to live outside the Garden with her than inside it without her.”

Extracts from Adam’s Diary, Mark Twain.

The late Sir William Bailey thought that no public banquet was complete unless Ox Tail Soup headed the menu. For this gave him the opportunity of opening his after-dinner speech with an ancient and familiar jest. “Gentlemen,” he would say with a merry twinkle in his eye, “when I saw Ox Tail Soup on the menu I could not help thinking that we were going a long way back to begin.”

I think he enjoyed that mild joke even more than his friendly hearers who dutifully laughed at it, but to him it was a kind of oratorical gambit from which he proceeded by skilful moves to discourse of the earliest beginnings of the matter in hand.

Happy the man who has been able to learn the causes of things. There is only one hopeful road towards this happiness—the study of the past. You must trace back the streams of life to the ancient sources of experience, and have enough of the child [Pg 16]in you to search contentedly and in faith among the myths and fairy tales wherein lie hid the secrets of the world’s childhood.

And that is why I choose Adam and Eve as a fitting title for our first consideration of the Law and the Woman. If I could have found any earlier fable of the relationships of Man and Woman I would have begun with that, but the story of Adam and Eve since it first passed the Press Censor has been held to contain a message to the world alike official, well-authenticated and popular, so that we may regard it, like Sir William Bailey’s Ox Tail, as a very convenient terminus from which to start.

John Milton set down in his story of Adam and Eve the basic truth about the Law and the Woman, as it was in his time and ever has been until the days of the present generation. The verses are the better worth remembering because they are almost exactly in the form in which mediæval man was wont to explain to mediæval woman the kind of thing she really was.

That is how Eve is said to have summed up the situation in the early days of Creation before lingerie was invented, and cunning generations of Adams have sought to enforce the precedent against her since she emerged from the Garden of Eden clothed and in her right mind.

All the old systems of Law known to the world [Pg 17]possess this chattel view of Woman’s status. Confucius tells his Chinese disciples that “man is the representative of heaven and controls all things; woman must obey the orders of man and aid him in carrying out his principles,” and even at a much later date we find St. Paul sending the Corinthians a message to the same effect.

As long as Woman herself was satisfied with the divine origin of a Law which gave her many duties but no rights all was well. Of late years, however, even the deafest and most ancient of our publicists must have heard rumours that Woman was not at peace with the Early Adamic theory of her legal and social position, and it is worth while to-day to understand not only what the Law in relation to Woman really is, but to consider whether everything necessary has been done to make it fit latter-day social conditions. We may, indeed, discover, though this should not be hurriedly concluded, that in their views of Woman, Confucius, St. Paul and even Milton are back numbers.

I doubt if any one ever made a really new law all at once and all on his own, as it were. I dare say if there were records to tell us about it that we should find that even the Ten Commandments did not come slap into the world as an entirely fresh proposition, but proved to be sound, satisfactory laws because they found an echo in the hearts of the people to whom they were given. Men probably had an instinct against stealing long before it was made a statutory crime.

And there is another truth to remember in studying these matters. Although the Law of the past may [Pg 18]turn out to have been harsh and cruel, yet the legal disabilities of Woman have not been meanly exploited by Man. Man, to do him justice, is generally better than his Laws. I confess I read with a light heart the diatribes of those social historians who groan over Woman’s slavery in the world’s history. They mistake the shadow of the Law for the substance of Life.

It is perfectly true, for instance, that in Roman Law man alone could be the “father of the household.” The legal position of the Roman head of the family—Paterfamilias—was one of much dignity and power, but I doubt whether the old gentleman had a much better time of it than he has to-day. Still, as far as the Law went, Paterfamilias bossed the show. The rest of the household—the wife, the child, the bullock, and the slave—were all equally destitute of legal rights.

Legally, it would appear that family life in Rome ought for the head of the household to have been a very happy affair indeed, if happiness can, as some think, be attained by having all your own way. Socially and morally, however, Roman wives and families gave the old man at home quite a lot of trouble on occasion, and many merry things happened not unworthy of modern Christian civilization.

Juvenal has a lot to say about Roman Woman that does not seem to prove that she was altogether a down-trodden victim of Law.

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That has quite a modern homely ring about it, and we may rest assured, I think, that no Law ever could or ever will restrain the right of Mrs. Caudle to deliver her curtain lecture.

But whatever really went on in Roman households there is no doubt about the Law, which is interesting to us inasmuch as it is one of the forbears of our own Law. Roman Law ignored the existence of Woman except as an appanage of her Lord and Master. He had rights in her, but she had none in herself.

“Truth will leak out even in an affidavit,” and one must not in an historical survey of this kind shut one’s eyes to the fact that some of our Law is of Germanic origin. It came across to us in Saxon times, and though no doubt we gave it the “Anglo” touch and turned it out a more highly-manufactured article than we could have hoped for from the very raw material we imported, still the tainted origin of it continues to haunt us, and perhaps accounts for some of the harsh, unsatisfactory nature of much of our Law.

The Saxons certainly treated Woman with greater respect than the Romans had done. They considered Woman to have a special insight into the mystery of things, and credited her with the gift of prophecy, and treated her accordingly.

Although there was an attitude of tolerance in the Saxon treatment of Woman, the law still regarded her as a chattel, as may be read in the “Dooms” of Alfred and Ethelbert and other Saxon kings. For these early legislators called their Statutes “Dooms,” [Pg 20]and their Judges were Doomsters or Deemsters, as they still are in our ancient Island of Man.

And throughout the Dooms you will find the patriarchal spirit strongly asserting itself. The father was absolute master of his daughters and sold them into wedlock. A maid or wife was regarded absolutely as an article of property, in the one case of her father, in the other of her husband. The ancient practice seems to have been to steal a wife first and pay the price afterwards, but the Dooms regularized this and the more legal and reasonable system of purchase took its place.

In early times the price of the maiden was fixed at so many head of cattle and we read in a Saxon chronicle “A King shall with cattle buy a Queen.” The form of the ceremony was outwardly much like our own, so lovingly do we cling to the old forms long after their meaning has departed. The father was there to give the bride away, the contracting parties took each other by the hand and proclaimed themselves man and wife. The lady’s friends were present and the father received the price and handed over the bride. The lady was in fact what pleaders call “goods sold and delivered”; so much so that if the husband discovered any deceit or guile in the transaction then he could bring her home again and have his money back.

Another interesting item in the ceremony was that the father delivered the bride’s shoe to the bridegroom and he touched her on the head with it to show that he assumed marital authority, and when the married pair retired to rest the shoe was placed at the head of the bed on the husband’s side. The shoe still plays [Pg 21]a low comedy part in some modern weddings but its symbolism is departed. The next morning if the husband was satisfied with his wife he made her a morgen-gifu or morning gift, and from that moment he had no longer the right to return his bride.

But what shocks and surprises one more than all the rest in these early Saxon Laws is their complacency towards crime against Woman which seems to have been the natural corollary of their assertion of her chattel status. Strange things might be done for cash down in Saxon times, and there was a tariff of crime by which, for forty shillings and costs, you could have a feast of sin and wickedness such as you could not purchase to-day under many years of penal servitude.

In nearly every place where woman is mentioned in the Dooms she is mentioned as a thing rather than a person. In a Doom of Ethelbert it was enacted, for instance, that “if a man carry off a maiden by force let him pay fifty shillings to the owner, and afterwards buy the object of his will from the owner.” It is further enacted that if the young lady was already betrothed then the man who had carried her off had to pay further compensation to the extent of another twenty shillings to her original young man.

The import to us of the incidents of this transaction lies in the fact that the only person who had no legal interest in the matter was the poor maiden herself. Her owner got her price and a bit more for the compulsory purchase, so to speak, on the same principle perhaps as a railway pays more than the market price on the compulsory purchase of land; the maiden’s [Pg 22]young man got his bit to solace himself for his disappointment and enable him to set up in life with his second best girl; but, these payments being made, the world regarded the incident as legally closed.

It is an extraordinary thing that this Saxon notion of marriage by purchase got so firmly fixed into the heads of the populace by old tradition that up to quite recent times there were men and women in the country who believed that it was lawful for a man to sell his wife, and there are many authentic instances of such sales in the last hundred years.

The sale of the wife in Thomas Hardy’s Mayor of Casterbridge was drawn from the life. The traditional view seems to have been that if a man brought his wife into the open market with a halter round her neck and sold her to another man, that amounted to a divorce and the husband was then entitled to marry again. Smithfield in London and New Cross in Manchester were the scenes of many such sales.

In the North and the West Riding of Yorkshire the common people in the early nineteenth century believed the law of selling a wife to be as follows:

• 1. The same wife must not be sold more than once by the same husband.
• 2. The price of a wife must not be less than one shilling.
• 3. The wife must be delivered to her purchaser with a halter, if possible a new halter, round her neck.

As late as the eighteenth century official sanction of a base sort was given to such sales. On August 31, 1773, there is stated to be the following entry in a Toll [Pg 23]Book which seems to have been kept at the Bell Inn, in Edgbaston: “August 31, 1773, Samuel Whitehouse of the parish of Willenhall in the County of Stafford this day sold his wife Mary Whitehouse in open market to Thomas Griffiths of Birmingham value one shilling. To take with all faults.

Signed, Samuel Whitehouse,
Mary Whitehouse.

Voucher, Thomas Buckley of Birmingham.”

In 1816 a French visitor in a book entitled Six Mois à Londres, under the piquant heading, “À quinze shillings ma femme,” gives an entertaining account of what he saw with his own eyes at Smithfield Market. “A seller soon presented himself,” he writes, “leading his wife by a cord attached to her neck. Taking his stand he began to bawl: ‘À quinze shillings ma femme! Qui veut ma femme pour quinze shillings?’ But all seemed in vain. Beefs, veals and muttons disappeared about him but no one wanted a wife. The poor man became hoarse and was in despair; at last an ‘amateur’ presented himself who began to examine the wife, ‘comme il avait examinés quelques instans auparavant une jument que je l’avais vu marchander.’ The inspection was favourable and he offered the price demanded. The husband still repeated his cries, ‘Pour tâcher d’attirer des enchérisseurs,’ but none appearing he pocketed the money and the purchaser gave his arm to his new wife who ‘paraissait avoir de vingt à vingt deux ans et était assez jolie.’”

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A ballad from a song book of 1818 confirms the Frenchman’s story. I like it for its dramatic qualities and its happy ending, but it has its social and historical value as showing that at the date of it wife-selling was a sufficiently common thing to make a jesting song about. To-day it would have little point.

The Ballad of John Hobbs.

Here is a case as late as 1872 in which the parties were in a better station in life. It is quoted from a newspaper of July 6:—

“At the Exeter police court a smartly dressed woman applied for a summons against her husband for refusing to maintain his children, he having that morning turned them out of doors. Complainant and her husband separated some time since, he selling her to another man for £50 and agreeing to take two of the children and she the rest. Since however he had sold her he had followed her about and annoyed her in various ways and now he had turned the children he promised to support out of doors and told her to keep the lot.

“In answer to the bench as to how she supported herself, she said she received money from the man to whom she was sold. The bench thought it was a most disgraceful case and that she did not deserve any protection. If her husband threatened her violently and assaulted her then they would grant her a summons.”

There is no serious suggestion that the wife was wronged in these cases, on the contrary in nearly all of them she seems to have been a consenting party and that was thought essential to the sale in modern [Pg 26]times. The interesting thing in the survival of these cases is that the chattel theory of woman should be found existing in such a crude form right into the later years of the Victorian Era.

The last authenticated case of which I have read occurred in a County Court as late as 1881, where a woman gave evidence that she had been married to another man, but she added: “He sold me for twenty-five shillings, and I have it to show in black and white with a receipt stamp on it, as I did not want people to say I was living in adultery.”

I have very little doubt this strange traditional belief in the right of a man to sell his wife, is descended from the “Dooms,” wherein it is laid down that if a freeman seduced the wife of a freeman he had to pay, and in some cases “buy another wife for the injured husband and deliver her at his house.”

That such a custom of selling wives should have existed down to the present times, although only in holes and corners and among uneducated people, is a matter of some surprise even to one like myself who delights in tracing the forgotten folk-lore and fairy tale in the life of to-day.

Certainly it goes to show how tenaciously the traditional legal view of Woman as a chattel remains embedded in the English mind. “She is my goods, my chattels,” bawls out Petruchio, and the groundlings applaud this pithy statement of the English law. Nor can we justly add that the degraded wife-sellers of the slums are the only people who are still [Pg 27]willing to throw the rope of tradition round the neck of womankind.

But alongside of “Dooms” and Statutes and legal ideals grew up social and domestic ideals that had even a greater influence on the position of Woman than could be expected from new and better laws. The Saxons—ruffians as they were and are—had a higher ideal of family life than the Romans, and in so far as our nation has been a success in the world it has owed its progress to an extension of the Saxon ideal of the family as the nucleus of the nation. The future of a race will always, I think, depend on its home life, and the centre and guide of the family is the wife and the mother.

Once this began to be recognized, although the legal position of Woman remained unaltered, the social position of Woman and her power in family affairs and society became practically assured. Ruskin has a quaint thought for us about Shakespeare’s plays when he points out that “the catastrophe of every play is brought about by the folly or fault of a man; the redemption, if there be any, is by the virtue and wisdom of a woman, and failing that there is none.” And that, I suppose, is what experience found in the real dramas of family life.

In many ways Law may still regard Woman as an emancipated chattel, but Man has long since ceased to hold that view, though there may be occasional survivals of misconduct which go to show that traditional laws and customs die hard.

The Law is always the latest of our public institutions [Pg 28]to hear herald messages of new social ideals. But there is onward movement even in the Law. The present generation may hope to cut down the ancient, twisted, gnarled outposts that fence the old Law from the hands of the reformers, and to see a younger humanity laying a new foundation stone of freedom and equality.

Paradise Lost, John Milton.

Lord Bacon, who as Lord Chancellor really ought to have known better, sought to set youthful conceit against marriage by reminding the budding heroes of his day that “he that hath wife and children hath given hostages to fortune, for they are impediments to great enterprises, either of virtue or mischief.”

It is a wholly superficial saying in its conclusion. From the days of Solomon—who appears to hold the world matrimonial record—until to-day, you will find that the bachelor has had no sort of monopoly of great enterprises.

The Benedicts of Bacon’s day had their answer pat from the playhouse. “No; the world must be peopled. When I said I would die a bachelor I did not think I should live till I were married.” The Man in the Street has more sense than the philosopher, and the world has long recognized that whether the [Pg 30]result be virtue or mischief, marriage is in itself a great enterprise.

Would that some philosopher could tell us with certainty of the origins of marriage. The Chinese, who know most things, have it on record that marriage was decreed by that wise Emperor Fou Hi; the Egyptians knew that it was ordained by Menes; and even the Laplanders have their own quaint sagas telling them all about it. No ancient nation is so poor in mythical lore that it cannot produce its own particular legend about the origin of this necessary and universal institution.

The scientist of to-day leaves these old-world stories to the desultory reader. He observes Nature and speculates as boldly as the narrowest of us as to the nativity of marriage. One eminent and enthusiastic ornithologist, in admiration for the bird life he delights to study, declares that “real, genuine marriage can only be found among the birds.”

Certainly the domestic demeanour of the yellow-beaked blackbird collecting materials for his house, providing his wife and children with food, protecting them from danger and even on occasion sitting on the nest himself to give his wife an evening out, may serve as an example of married righteousness to the suburban husband in whose holly bush the young couple have built.

Another learned writer is equally cocksure that marriage was transmitted to man from some ape-like ancestor. He notes with approbation old man gorilla wandering gipsy-like through the forest with his wife [Pg 31]and child, building a rough nest for them in some inaccessible tree where they may safely pass the night, whilst the old man himself sits with his back to the trunk, asleep with one eye open on the watch for the nocturnal leopard. In all these things our learned one discovers that the higher monkeys possess the rudiments of human institutions.

Whether we accept the teachings of myth or science, we can say with some certainty that there was never a period in the history of human development when some form of marriage has not existed, though the origin of the institution seems to be lost in the mists of time.

When, however, we come into the historical ages and study the marriage systems of early races, we find that as among the animals so with mankind the root idea of marriage is to protect the family. As Westermarck says: “Marriage and family are thus intimately connected with each other: it is for the benefit of the young that male and female continue to live together.” Indeed in the earlier stages of civilization, among the Eastern Greenlanders, the Ainos of Yesso and others, the wife often remained at her father’s house until she had a child, when her husband took her away and the married life really commenced.

Nature having made up her mind that the interests of the children depend upon the sanctity of family life and that the success of family life depends in a great measure upon the wise regulation of marriage, any human law of marriage will of necessity be judged by its capacity to protect and maintain the highest [Pg 32]interests and best happiness of the children and the family.

The important matters in marriage that have come to be slowly recognized by civilized people are that there should be full liberty of choice between the parties, and that especially the consent on the part of the woman should be free and subject to no duress; that the matrimonial state should be safeguarded by legal regulations so that it may not be lightly entered upon and the parties may not be induced to marriage by fraud or mistake; lastly, a valid marriage must be permanently upheld by the Law until the conduct or circumstances of the contracting parties become such that it is to the best interests of themselves, the children and the community that the marriage should be set aside.

I like to say a good word for the Law when I honestly can, and it is to its credit for sanity and common sense that it has always been a great upholder of marriage, and that in its attitude towards Woman in the actual contract of marriage—I am not writing about divorce or other results of matrimony, but merely about the contract of marriage itself—here I make bold to say the Law has developed sensibly and justly.

The Law seems to have understood what I take to be a natural fact of life—that the family is the unit of our social and political existence. I do not claim that the Law has not made its blunders in construing the contract of marriage too strictly, but at the back of its mind, so to speak, there has been a wholesale [Pg 33]desire to maintain the sanctity and continuity of family life.

For it ought to be remembered that in English Law marriage is not merely a contract between two individuals. As Dr. Johnson wisely said: “To the contract of marriage, besides the Man and the Woman, there is a third party—Society.” That is a lot sounder than many of the old gentleman’s best tea-table sayings, and for us it has the recommendation of being good Law. Lawyers have always agreed that marriage was in the nature of an institution in which the State has an active interest.

It is fair to the Law, too, to remember that it has for many centuries been ahead of the thoughts and actions of mankind on the question of the right to freedom of consent to marriage on the part of Woman. Although parents and guardians have rights to forbid the marriage of minors, the absolute right of a woman of full age to decide of her own free-will whether or not she shall marry has been for many generations strenuously upheld by our Law.

The old idea of the rights of the Roman paterfamilias and the early Saxon father died hard, and all the best comedies of the seventeenth and eighteenth centuries turn on lovers bullied by their parents to give up their legal rights to exercise their free will in the choice of wife or husband. Sir Anthony Absolute was only a genial parody of the father of his day. When his son demands to know the name of the lady, Sir Anthony turns on him with “What’s that to you, sir? Come, give me your promise to love and to marry [Pg 34]her directly;” and doubtless in 1775 the touch of exaggeration throughout this scene between father and son was not too extravagant to destroy the sense of the real comedy of life. To-day it can only be for us the comedy of the manners of an extinct generation. It would be almost impossible to write a genuine comedy of the present day on this ancient theme, because society and human parents have attained to the knowledge that the Law in maintaining the right of young people to give or withhold their consent to a marriage union is on the whole a wise and just Law and brings about better results than the old-fashioned arbitrary decisions of parents and guardians as to the marriages of their children and wards.

The contract between the parties is a simple if momentous one. It is a civil contract between one man and one woman to unite under the Law for life, with obligations each to the other to carry out the duties and responsibilities of matrimony.

The Law sternly forbids polygamous marriage, and enforces regulations to witness and record the contract, thereby preventing informal and invalid marriages, by which in old days women were greatly wronged.

Moreover, in cases where a form of marriage has been gone through, or where a man and woman have lived in apparent marriage, the Law favours marriage by presuming that the status exists, and requires the party attacking the marriage to bring strong and satisfactory evidence to displace the presumption. The Law, therefore, is just to Woman in so far as it [Pg 35]endeavours to insist upon the certainty and security of her marriage.

In the same way, the Law will not permit contracts to be made restraining persons from marriage or providing in advance for the future separation of married persons, for these things tend to disturb the peace of matrimonial relations.

In the eighteenth century the Law had not taken these matters fully in hand. A marriage was valid if the parties agreed to live as man and wife, and afterwards did so, and went through a ceremony at church. Solemnization of matrimony without banns or licence being lawful, there sprang up a host of places where cheap marriages could be speedily obtained.

Among the most famous, or infamous, of these places were the chapels in the debtors’ prisons in the King’s Bench, the Marshalsea, and the Fleet. The clergy in the precincts of the Fleet put up small chapels, or converted rooms in low taverns into holy places, where marriages were performed. They sent their touts into Fleet Street and Ludgate Hill, and you might see a sign hung in a tavern window, “Marriages performed within.” There, in front of his shop, stood the parson, “a squalid, profligate figure, clad in a tattered plaid nightgown, with a fiery face, ready to couple you for a dram of gin or a roll of tobacco.”

There are many sad stories of victimized women ruined by the want of regulation in the Law of Marriage of that time. Moreover, it led to foolish clandestine marriages which caused a deal of misery. Strange were the uses to which Fleet marriages were put, and [Pg 36]at least on one occasion the woman was not the victim.

Deborah Nolan hit on the ingenious plan of getting rid of her debts by marrying, and thereby transferring them to her husband, and with this view she went down to the Fleet and was duly married to “John Ferren, gentleman.” When the creditors came round Deborah showed them her marriage certificate, and they went off with one accord to find “John Ferren, gentleman.” Here is where Deborah had the laugh of them, for they never found him; and had they found him it had been no matter, for “John Ferren” was a woman friend of Deborah, dressed as a man for the occasion, with intent to defraud the creditors.

I take heart of grace when I hear what a peck of trouble Lord Hardwicke went through in his endeavour to put an end to these irregular marriages and insist in the name of the Law on the public safeguards of banns and licences. There was never a more just and necessary measure of protection for women than Lord Hardwicke’s “Act for the Better Preventing of Clandestine Marriages,” yet it raised a storm of opposition.

Blackstone saw in it an “innovation upon our ancient laws and constitution”—a phrase, if you come to think of it, prohibiting all or any legal reform; Horace Walpole cursed it as an infraction of liberty; and Charles Townshend described it as “one of the most cruel enterprises against the fair sex that ever entered into the heart of man.” Such is the lot of the reformer. He stands to receive the abuse and opposition of the stupid generation in which he lives, and [Pg 37]never hears the praises of those who come into his kingdom and gather in the harvest he has sown.

A branch of the Law of Marriage not wholly unfavourable to Woman is the law relating to actions for breach of promise. From a dry-as-dust lawyer’s point of view, this form of action is as much the prerogative of Man befooled as it is of jilted Woman.

Statistics, however, bear me out in asserting that Man does not make use of his privileges. He prefers to carry his grief and disappointment into his private lodging and not flaunt them in the witness-box. On those few occasions when he has screwed up his courage to sue some lovely and wealthy woman who has changed her mind, his fellow-men in the jury-box have eloquently expressed their contempt for his action by assessing his broken heart at the value of one farthing. No! breach of promise is not a man’s job.

But we hope it will long be the right of an Englishwoman under the Law to appeal to an enlightened, a high-minded, a right-feeling, a conscientious, a dispassionate, a sympathizing, a contemplative jury of her civilized countrymen for damages—heavy damages—which, as Serjeant Buzfuz pointed out, are the only recompense for the wounded feelings of the unimpeachable female who has been wronged by a monster in the outward semblance of a man.

Many have claimed the right of Woman to a jury containing women in cases where her interests are at stake. In breach of promise cases, however, I very much doubt if Woman would receive better treatment from a jury of her own sex, for English jurymen seem [Pg 38]to me to take a virtuous pleasure in dipping their hands deep into the pockets of the defendant and soothing the unfortunate lady very amply at his expense.

There have been some who would abolish these actions, but if they are sensibly and seriously treated they seem to afford a reasonable protection for women, who in the nature of things suffer a greater material loss from the breach of such a promise than could possibly happen in the case of a man.

The Law in relation to such actions is clearly favourable to Woman, and rightly so, for it allows the jury to assess sentimental damages for the loss of position and the reasonable expectation of advancement in the world, whereas in the breach of other contracts our Law sets its face against the granting of any damages that are not strictly pecuniary.

Assuming, therefore, that the Law of Marriage should be based on a public appreciation of the importance of family life, how does our Law stand in its relation to Woman?

To begin with, it allows Woman freedom of consent to marriage without possibility of coercion. It guards her from polygamous and other undesirable unions. It surrounds the entrance to the state of marriage with reasonable and sufficient safeguards to hinder fraud and deception entering into the marriage ceremony.

It may be that more might be done to mark the public nature and importance of the institution of marriage in the eyes of the State, but there is a danger [Pg 39]in these things of moving counter to prejudices of individuals that deserve and command respect.

Where the Law has moved to regulate Marriage, it is pleasant to remember that it has been to promote decency and order and to guard the safety of Woman.

“’Tis reason a man that will have a wife should be at the charge of all her trinkets, and pay all the scores she sets on him. He that will keep a monkey, ’tis fit he should pay for the glasses she breaks.”

The Table Talk of John Selden, cxlviii. 3.

In the old three-volume novel—the three-decker that Kipling sings of as “taking tired people to the Islands of the Blest”—the end was always marriage and the young husbands and wives lived happily ever afterwards.

But the legal history of husbands and wives does not lead us to suppose that this was more true of married life in the past than it is to-day. Certainly the Law cannot lay claim to have made any mighty effort to help the married Woman to a happy and contented life.

When a man asserts solemnly on the day of his marriage “with all my worldly goods I thee endow,” he has about as much intention of doing it as the Woman has when she murmurs the word “obey.” Why should these pious young people be allowed to [Pg 41]enter into the holy state of matrimony with false promises on their lips?

The man’s phrase has at least this to be said for it, that it is an echo of old history. In the feudal times the man on the marriage day being a tenant of land endowed his wife at the church door with whatsoever of his lands he specially named. At his death she was in truth endowed and had rights of dower in the land, and the words seem to have remained in the service in an altered form long after the thing they stood for passed away.

At common law a married woman had no property. She could not acquire by gift or earning anything of her own without her husband’s consent. You remember the trouble in the Mantalini household when Mr. Mantalini poisons himself for the seventh time and his poor wife insists on being separated and left to herself.

“It would be well to reflect,” says Mr. Ralph Nickleby warningly to her. “A married woman has no property.”

“Not a solitary single individual dem, my soul,” said Mr. Mantalini, suddenly recovering himself.

Mr. Mantalini was a creature of the common law of England, and doubtless he was only a type. Mrs. Mantalini by her industry and business ability made the money, but she had no property in it, she had nothing, “not a solitary single individual dem,” and that was the Law of England in our own day until 1870 and 1882 when married women were given rights of [Pg 42]property in what they owned and earned, and rights to sue in their own name and access to our Courts of Justice.

It was a long struggle to get these new principles recognized, and all sorts of evils in matrimonial relations were prophesied as the obvious results of such reform.

But what seems to have happened since is merely that good husbands and wives live on similar give and take principles to those adopted by their ancestors in old days without any very special reference to the Law, and bad husbands can no longer steal their wives’ property and earnings to waste them in riotous living, whereby much scandal and unhappiness has been put an end to.

We shall indeed generally find that the Law has no great power of bringing about happiness by its own provisions, but that one of the chief difficulties of the lawgiver is to so frame his handiwork that it does not in the result encourage knavery and evil-doing. For in practice it chances too often that this is the outcome of careless legislation. The great adventurer who seeks to transform society by means of Law needs insight and cunning forethought as well as a kind heart. Mighty and also blessed will be the lawgiver who can devise a measure to ensure to the unfortunate and down-trodden equal conditions with those who live in pleasanter surroundings where human beings are ready to do what is right and just voluntarily and without the compulsion of judges and police.

Since the passing of the Married Women’s Property [Pg 43]Acts a wife has really no complaint to make about her liberty to use her own property and earnings in her own way. Her husband is still bound to support her and the family, and she in turn for the rights given to her is not allowed to let her husband and children go on the rates as long as she has separate means to support them. Moreover, when you come to the committing of torts or wrongs, one is bound to admit that the Married Woman is in a position of especial privilege under the Law. Ah, my dear ladies, have you ever considered with sufficient thankfulness what a delectable legal position is yours in having a husband responsible in damages for every legal wrong you commit? If you write libellous postcards to your neighbour, if you trespass on her backyard and destroy her washing in a fit of temper, if you tell her over the garden wall deliberately and adjectivally what you think of her, your husband pays.

The theory of the Law seems to be that the husband, good easy man, has control over the wife, and even in his absence can prevent such goings on, but we know, my dear ladies, what element of fact underlies such strange beliefs about human action. If the Law really believes that the husband can control his wife in these little social amenities, Bumble was not far wrong in thinking that the Law is an Ass.

It would seem, therefore, that having freed the wife from the legal control of her husband in all matters pertaining to the owning of property and the making of contracts, it would only be fair to the husband to relieve him from the responsibilities of paying [Pg 44]damages for wrongs the committal of which he can in no way prevent.

The personal dominion of a husband over his wife is a thing of the past even if it was ever much more than a legal myth.

But given a Petruchio in the olden time he certainly had the Law on his side. An Anglo-Saxon husband is said to have had the right which he duly exercised of beating his wife when she displeased him. The civil law allowed the husband for some misdemeanours flagellis et fustibus acriter verberare uxorem, for others only modicam castigationem adhibere. Blackstone says, “With us in the politer reign of Charles II, this power of correction began to be doubted and a wife may now have security of the peace against her husband and in return a husband against his wife. Yet the lower rank of people who were always fond of the old common law still claim and exact this ancient privilege.”

In Matthew Bacon’s Abridgment, published at the end of the eighteenth century and reprinted in 1832 as a legal authority, the Law is stated to be: “The husband has by law power and dominion over his wife and may keep her by force within the bounds of duty and may beat her but not in a violent or cruel manner.”

There seems no doubt then that at common law a husband had a right to chastise his wife and that in the cases of wife beating that disgraced the Victorian era, [Pg 45]as in the instances of wife-selling already referred to, the lower classes were exercising what they believed to be a legal right. Indeed many educated people recognized the legal right for many generations after the reign of Charles II. Steele, writing in the Spectator under date September 9, 1712, says: “I cannot deny but there are perverse jades that fall to men’s lots with whom it requires more than common proficiency in philosophy to be able to live. When these are joined to men of warm spirits without temper or learning they are frequently corrected with stripes: but one of our famous lawyers is of opinion that this ought to be used sparingly; as I remember these are his very words.” The lawyer referred to in a note is Bracton, but I have not found the passage.

Later on in 1782 the world is said to have been startled by a ruling of Mr. Justice Buller that a man might lawfully beat his wife with a stick if it were not thicker than his thumb. It is certain that Gillray caricatured him as Judge Thumb on November 27, 1782, but I know of no other authority for the suggestion that the learned judge ever gave such an absurd ruling. Antiquaries tell us that an old Welsh law allows a husband to give his wife three blows with a broom stick on any part of the person except the head, and another fixes the size of the stick at the length of the husband’s arm and the thickness of his middle finger. Here you probably have the origin of the Buller story which became so firmly planted in men’s minds that Praed refers to it in a poem called “The Crabstock” in which he jocularly writes:

[Pg 46]

and continues in eulogy of Buller—

Up to a late period it seemed still doubtful in the minds of lawyers how far a husband had a right to beat his wife, and that this is so is shown in a passage in the authoritative book on Criminal Law by Serjeant Woolrych, published in 1862, in which among “defences to common assaults” he includes “the parent who chastises his child with moderation, the gaoler who coerces his prisoner or even as some say the husband his wife.”

But all doubt on this matter was finally swept away by the decision in the celebrated Jackson case. It will be remembered that Mr. Edmund Haughton Jackson married his wife Emma Maud Jackson on November 5, 1887, and on November 10 he sailed for New Zealand. During his absence in 1888 his wife resided with her sisters and brother-in-law; it was arranged that she should join him in New Zealand, but she wrote pressing him to return to England. This he did, when she refused to live with him and he was denied access to her. Thereupon he obtained an order for restitution of conjugal rights—one of the most amusing farces known to our law, since no one need obey the order who does not desire to do so—and as the lady continued to refuse to come to him he drove up one Sunday morning to the church door [Pg 47]as she was coming out of morning service and carried off his wife by force in good old Anglo-Saxon style.

You could not possibly have invented a case which brought into more direct conflict the ancient and modern creeds as to the dominion of a husband over his wife, and the affair created world-wide excitement.

Curiously the ancient dicta which state that a husband has a right to imprison his wife also state that he has a right to beat her, and as the learned counsel for the husband refused to contend that a husband in 1891 had any right of castigation these authorities were not of much use to him.

The Court was a very fortunate one for the principle at stake, including as it did the Lord Chancellor, Lord Halsbury, and the Master of the Rolls, Lord Esher, two of the greatest lawyers of our time and two whose judgments constantly bear witness to the truth in Lord Reading’s pleasant paradox: “The idea that it is the duty of the Law Courts to dispense law is becoming obsolete. It is recognized that the true duty of the Courts is to dispense justice.”

The Lord Chancellor referred to the day when it had been contended that slavery had been part of the Law of England and continued: “In the same way such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilized country.” It would probably have been better to have spoken merely of his own country. In Russia, for instance, the right [Pg 48]and duty of a husband to chastise his wife seem to have been as well recognized in modern times as in our own country in past days, and if Gorki and Dostoevsky are to be trusted continue to this day.

Lord Esher went even further than his Chief: “One proposition,” he said, “that has been referred to is that a husband has a right to beat his wife—I do not believe this ever was the law,” and he then concurs in an elaborate judgment with the principles stated by the Lord Chancellor, and between them they swept away for ever all legal personal dominion of the husband over the wife.

It is a fine example of English judge-made law in which an instinct for justice in the human being overrides the binding force of pedantic antiquities and obsolete statements of laws which, by the rules of the game, judges are expected to reverence. But I repeat again, that the English world in general and Mrs. Jackson in particular were lucky in the constitution of the Court. Lord Justice Fry, the third judge, refused to advert to the older authorities cited, “Beyond saying that I do not regard them with exactly the same feelings as the Master of the Rolls, nor think that all our predecessors on the judgment seat were deficient in good sense.”

Indeed he was, as a lawyer, right; and it would have been easy to have picked a tribunal at that day who would probably have upheld the ancient letter of the Law against the Woman and left the matter for Parliament to put right. But that is one of the sane and healthy attributes of our judicial system. There comes [Pg 49]a breaking point where a great judge recognizes that the precedents in the books are obsolete and what has to be stated is the justice of the case according to the now existing standard of human righteousness. Lord Halsbury’s judgment in the Jackson case decreeing the liberty of English wives, and Lord Mansfield’s decision in the Somersett case that slavery was “so odious” that nothing could “be suffered to support it but positive law,” are to my mind two of the great triumphs of our English legal system which allows principles of liberty and justice a hearing in the Courts even when they run counter to the written word of the Law.

The Law having released Woman from the personal dominion and control of her husband Man, it makes Bumble’s complaint even more reasonable than it was, and it seems hard that a man should still be responsible for his wife’s misdoings.

But it is so. The husband’s part is to look on whilst his wife commits her favourite tort, whether it be trespass, slander, or assault, and pay up such damages for her naughtiness as the jury shall assess.

It may be, of course, that Bumble and I are wrong about it, and that for a husband to be responsible for a wife’s wrong-doings is one of the natural and holy privileges of matrimony. Let us at any rate hope that this earthly common Law of ours is merely crowner’s quest Law and ends with this world. For if it be otherwise husbands are indeed in a parlous state.

The right of a wife to run her husband into debt has always been well understood. Since the Married [Pg 50]Women’s Property Acts, a Woman who has means of her own can be sued for her own debts, but there are, of course, many cases where a Woman has no means of her own and she runs up bills with tradesmen for her husband to pay.

The principle on which such cases have to be decided is simplicity itself, but the practical application of the principle to each succeeding case is one of the most difficult legal jobs that any one can have to tackle.

What the Law calls “Agency” is at the bottom of it all, and a wife has no very different authority from any other agent in pledging the credit of her husband, the principal.

Whether a wife is her husband’s agent or not his agent to buy a certain article is a question of fact.

It is right that a husband should pay for what he has authorized his wife to buy, but it would be very hard that he should be ruined by having to pay for what he had not authorized his wife to buy—had perhaps in fact specifically forbidden his wife to buy. The difficulty of the unfortunate Judge who has to find out the truth about the matter is that agency may be implied from the surrounding circumstances of the case, and husband, wife, and tradesman do not always tell the truth, the whole truth, and nothing but the truth about the particular case.

Supposing, for instance, Mrs. Binks buys a pair of boots off Mr. Clout, the cobbler, for her little Tommy to go to school. These being necessaries, and Mrs. Binks having no separate estate, it seems a little rash of Binks to dispute the matter and refuse to pay.

[Pg 51]

But supposing that Binks proves that Mrs. Binks pawned the boots the same day and bought with the proceeds a bottle of tawny port wine, Binks’ case looks more hopeful and there is a distinct drop in Clout’s.

Clout, however, calls a neighbour who remembers helping to drink the port, at which festival Binks was present and took part and port. This rejoinder puts Clout in rather a strong position.

Binks, however, declares that that was another occasion, on which the port was purchased out of a wager made on the Grand National, but with the port the proceeds of Clout’s boots he was neither actor, art nor part.

It is all very well to write glibly about a wife’s agency in law books, but that is the kind of thing it turns out to be in real life, and it is sometimes a bit of a puzzler.

And that brings me to the consideration of the one important reform that I think the Law ought to undertake in favour of a Married Woman. Every Married Woman ought to have a separate estate, and then we might safely modify a husband’s liabilities. That would solve a great many practical troubles, and do away with a lot of debt and disaster.

If you think of it, the great majority of married women have no actual money of their own, and never handle any money at all except as trustee for their husbands. A wife ought as of right to have a certain allowance of her own, payable to her weekly out of her husband’s wages.

In most sensible middle class households wives and [Pg 52]daughters have specific allowances made for dress and other personal concerns, and this has very largely done away with those tragedies of debt that we read of in the eighteenth and early nineteenth centuries. The tendency of the middle class, especially the professional middle class, has been to pay cash at stores, to run up no bills for longer than a week, and to allow the wife and daughters of the house a personal allowance of their own, about the spending of which no questions are asked.

The sense of this arrangement is that every member of the household has a personal interest and duty in co-operating with others to prevent debt. A wife or daughter with a proper allowance cannot pledge the father’s credit without obtaining money by false pretences, and the father has a sound answer to any claims against him if they make any such attempt.

No doubt the right of a wife to wages is not an urgent public grievance, since husbands and wives are more sensible than the Law, and manage their affairs equitably without its interference. Nevertheless, the Law has a duty towards Woman to make her right to wages for work done as clear as that of Man. If the labourer is worthy of his hire surely the housewife is of all labourers entitled to her reward.

“Let the British reader study and enjoy, in simplicity of heart, what is here presented him, and with whatever metaphysical acumen and talent for Meditation he is possessed of. Let him try to keep a free, open sense; cleared from the mists of Prejudice, above all from the paralysis of Cant.”

Sartor Resartus, Thomas Carlyle.

The history of any legal reform affecting the lives of the poor in this country is pathetic reading. It is generally a jumble of earnest, common-sense petitions from a few obscure social reformers, listless inattention and masterly inaction from governors and rulers, accompanied by a choral anthem to the Most High from the bishops, priests and deacons to leave well alone. If the two latter classes can keep the former class from rousing popular indignation against them, then to every one’s content the question is adjourned to another generation for further consideration.

Certainly the question of divorce reform, which every one who takes an interest in the social life of the poor knows to be of the deepest importance to them, has for many centuries followed the stereotyped course. [Pg 54]Fair play to the Church, it was an Archbishop of Canterbury, Thomas Cranmer, who nearly achieved a Law of moderate divorce reform in the reign of Edward VI. Unfortunately the matter never got formally through Parliament, and Cranmer and divorce reform perished together in the fire over against Balliol College, Oxford.

John Milton occurs to mind as a man of eminence who had ideas on the subject born of sad experience which might have been of use to our rulers. He, however, was almost bound to fail to get a hearing at Whitehall, the makers of our King’s speeches having always—according to William Cobbett—been very adverse to the expression of ideas in prose of the Miltonian vintage, and being wont to regard even the ordinary grammatical construction of the English language with suspicion.

So the years rolled on. Great men offered the generations they lived in sane plans of reform which were rejected and neglected, until of a sudden in 1845 the sarcasm of Mr. Justice Maule in his witty speech to a poor bigamist at Warwick Assizes, detailing to him how he ought before re-marrying to have obtained an Act of Parliament for his divorce, roused the people to the absurdity and injustice of the existing law, and after a decent interval of years the popular demand was pacified by the Divorce Act of 1857.

This, however, has been of little use to poor women and of very limited use to any one, although among the upper and middle classes it has no doubt relieved many homes from misery. It did not deal with more [Pg 55]than a small percentage of the lives that wanted help, and year by year obscure people recognized and pleaded for its extension. Once again it is to the credit of the legal profession that it was a great lawyer and judge who brought divorce reform into practical politics.

Lord Gorell in 1892 left a big commercial and Admiralty practice to become judge of the Probate, Divorce and Admiralty Division, and there he brought to bear on problems of divorce a mind singularly free from the ecclesiastical prejudices which surround the first two-thirds of the Division and a breezy outlook on human affairs that maybe he had learned from his professional associations with those who go down to the sea in ships.

Lord Gorell, when as Sir John Barnes he took his seat in the Probate Division, was only forty-four years old, and as far as I have heard had no preconceived ideas about divorce reform. The conclusions he ultimately came to sprang from experience. No one who is not case-hardened in ecclesiastic tradition could preside in the Divorce Division without having visions of reform.

The first message that the public received from Lord Gorell as divorce reformer was in the judgment he delivered in Dodd v. Dodd, in April, 1906. In this case a wife, whose husband, a drunken wastrel, was living upon her and doing no work, obtained a separation order from him before the magistrates, and after two years, finding he had committed adultery, she petitioned for a divorce. This it was decided she could [Pg 56]not have because her husband had never technically deserted her. If he had been an honest man, who had run off with another woman to escape from a shrew, the lady could have divorced him, but there was no machinery for an honest woman, whose husband was a drunken loafer wishing to live on his wife’s means and committing adultery, to obtain a divorce.

But the important part of the judgment socially was that Sir John Barnes called public attention to what the legislature had done in giving the magistrates these wide powers of granting separation orders. The Summary Jurisdiction Act (Married Women), 1895 had been passed through Parliament in modern fashion “almost without anything being said about it—although it gave power to grant non-cohabitation orders in large classes of cases where it did not exist before.” The result had been that numerous orders had been made, over 7,000 in that year, affecting the whole future lives of the parties and their children without any real consideration for the interests of the children, and Sir John Barnes then and there stated his view: “That the direct tendency of these orders appears to be to encourage immorality and to produce deplorable results.”

This is a system of which the Archbishop of York and his colleagues in the Minority Report of the Divorce Commission say: “On the whole the present system of separation orders, while in need of considerable amendment, probably fulfils its purpose fairly well.” To the plain unarchiepiscopal man in the [Pg 57]street, unless it is to be presumed that the system is there to promote adultery in man, misery in woman and injustice to children, the judgment of the President of the Divorce Court makes it clear that the present system of separation orders probably fulfils its purpose very badly.

It seems probable that the researches Lord Gorell made in preparing his learned and inspiring judgment in Dodd v. Dodd proved to his mind the urgent necessity of divorce reform. He moved, however, with caution, and it was not until July 14, 1909, that he made his great speech in the House of Lords on a resolution that it was expedient to confer divorce jurisdiction upon County Courts in the interest of the poorer classes.

If I had the means I would like to reprint that speech and place it in the hands of every citizen. It was never answered, for there is no answer to be made to it, and at the end of the debate Lord Lansdowne got up and said: “Justice is not difficult to do when you know the facts. My lords, let us have an inquiry and ascertain the facts.” There was no need of an inquiry. Any one who has passed the necessary standards, be he peer or peasant, could read all about it in official returns, statistics, treatises and books on social reform. Still we have had the inquiry, we have ascertained the facts, and yet we are as far away from justice as ever we were.

When the Royal Commission first sat I prophesied that there would be an intolerable deal of talk, but very little business done, and that the chief opposition [Pg 58]to any schemes of justice and mercy to the unhappily married would come from the highly-paid clergy and the ecclesiastically-minded laymen.

I take no pleasure in the mean and melancholy triumph of saying “I told you so.” It did not take much foresight to guess that indifference, inertia, and clericalism would win the first few rounds of the fight. What does require a certain amount of steadfastness is to keep your eye on the horizon and continue in the belief that right will ultimately prevail, and go on doing your bit to bring it about.

The years spent on the Royal Commission on Divorce, although they taught the world nothing it did not know before, were not years wholly wasted. The conclusions arrived at were not important, but the evidence of the witnesses telling their stories of ruined lives and desolated homes is there to refer to.

These volumes are of value as an armoury of weapons of facts. The next task is to use them.

The poor in this country have very little power to state their grievances and get them remedied, but Women are in a different case. When the Law and the Woman come up against each other I am not backing the Law, except at long odds with a short time limit. If Woman has made up her mind that Divorce reform is necessary, then we may make up our minds that Divorce reform will come along.

A large number of women gave evidence before the Commission, and I have been reading that evidence again. Women doctors, women of position who work in police courts and visit in the slums, women on [Pg 59]Boards of Guardians—in a word, all the women who go out into the world and work and see the world as it is—favour reform of some kind.

Generally the reforms they propose are similar to those ultimately suggested in the Majority Report, namely, that the two sexes should be placed on an equal footing as regards the grounds on which divorce should be obtained, and that divorce should be granted for adultery, desertion, insanity, habitual drunkenness, and long imprisonment.

A few ladies gave evidence on the clerical side, the general effect of which was that there was no demand for reform. One of these good persons had heard so little about the real lives of the poor she visited, that on being asked her opinion about the effect of separation orders, she murmured: “I am afraid I do not know exactly what a separation order is.”

One cannot weigh evidence of that kind against the thoughtful and knowledgeable statements of Dr. Helen Webb, Dr. Ethel Bentham and Miss Margaret Llewellyn Davies. If any one wants proof that Woman is capable of holding her own and doing work of great value in a discussion of legal reform let him read the evidence of these ladies.

Miss Llewellyn Davies had made a detailed investigation of the views and wishes of real working women. She proved conclusively that many intelligent working women are living in a strong hope that reform will come, that they universally condemn the inequality in the grounds for divorce for men and women, and that they believe, knowing the facts as they do, [Pg 60]that divorce reform will destroy much wrong and suffering and will ultimately tend to the happiness and stability of married life. Few could read the pages of actual cases she sets out without having his faith in the omnipotence of bishops slightly shaken.

The Archbishop of York in the Minority Report, though agreeing that her evidence must be “reckoned with seriously,” makes the suggestion that “personal bias” might in her case be sufficient to put such a witness out of Court. Why? Miss Davies is the daughter of a well-known divine of the Church of England, and has spent her life ministering to the poor. She is not paid a salary running to thousands of pounds. The State gives her no palace to live in. Where is her “personal bias” unless the words connote knowledge of the facts and intimate contact with the lives of poor women? For a priest to charge lay women workers with being biassed witnesses shows a forgetfulness of the words of the Master concerning motes and beams.

Dr. Ethel Bentham again speaking for the Fabian women’s group set out very clearly the method in which divorce reform should be pursued. In framing new laws, “the starting point,” she said, “should be ordinary principles of justice and equity without regard to expediency or vested interests of any kind, whether of the rich or of one sex against the other, or of any trade, profession or calling, and especially we feel that no section of the religious world, however numerous or influential, should be able through the [Pg 61]law of the land to impose burdens on the conscience of other sections who think differently.”

Again read Dr. Helen Webb’s plea for the children and consider in your own mind whether there be any answer to it. “The continuance of any marriage,” she writes, “which is physically and morally injurious to the offspring is a menace to society and calls for greater facility of divorce in all cases. Conventionally it is thought a dreadful thing for children if their parents are divorced and it is regarded as a slur on them and injurious for life, whereas in a great many instances the continuance of a wrong marriage keeps up such a state of friction and discord in the environment of the child in its home and everyday life as will do far more fundamental injury to its character and prospects. The birth of more children is also under such circumstances so highly undesirable that it is for the good of the offspring that there should be a divorce between incompatible parents or diseased parents.”

When the Majority came to report on the pages of clerical evidence that was laid before them we begin to see where the personal bias really lies. It is worth while to set out the Majority finding at length:—

“Having adverted to this difference of ecclesiastical opinion, we think we should point out as a striking feature of the evidence that theological difficulties have weighed little with the great mass of the lay witnesses, and, that among those who feel them there are great differences of opinion. With few exceptions [Pg 62]the lay witnesses pass them by, as if they concerned theologians rather than the practical legislator. English laymen seem generally to base their views, not upon ecclesiastical tradition or sentiment, but upon general Christian principles, coupled with common sense and experience of the needs of human life.”

“It has to be remembered that members of Christian Churches are not alone concerned in the matters which form the subject of our inquiry. There are large numbers of persons, subject to the State, who do not belong to any Christian communion, or are only nominally Christians, and are not interested in the theological points upon which opinions have been expressed before us.

“The result is that we are unable to find any general consensus of Christian opinion which would exclude any of the questions stated above from being freely considered. In view of the conflict of opinion which has existed in all ages and in all branches of the Christian Church among scholars and divines equally qualified to judge, and the fact that the State must deal with all its citizens, whether Christian, nominally Christian, or non-Christian, our conclusion is that we must proceed to recommend the Legislature to act upon an unfettered consideration of what is best for the interest of the State, society and morality, and for that of parties to suits and their families.”

We must go back to these brave words when legislation comes along if we have any political sense left in us. The evidence shows that whilst the women witnesses, workers among the poor, were thinking of the misery [Pg 63]of women and the sufferings of “little children,” the majority of priests were hampering the Commission with their considered judgments about the Codex Bezæ Cantabrigiensis and the School of Shammai, and the world may be thankful that the majority of the commissioners very wisely listened to the women and refused to have any truck with the theologians.

The Majority Report has indeed only told us what every one who thought about the matter knew before. When the lives of men and women are wrecked we ought to throw them what life-belt we can. For their children—the new citizens of the State—our clear duty is to endeavour to bring them into better and purer surroundings. And to carry out these great purposes it is something that a majority of a Royal Commission has reported to this Christian country that her churches can give us no help or guidance until they cease to wander in the idle groves of dogmatic theology and come out into the streets to talk to us of the Master’s message of love to existing human beings.

Until grievances are put before you, and the private sorrows of your neighbours are revealed, you cannot in the nature of things become aware that reform of the law is necessary. Happily married working women do not trouble their heads about divorce, having many pleasanter things to think about. People in social health do not want law any more than people in physical health want medicine. The best parish priest I ever knew used to snub any member of his [Pg 64]flock very cheerfully who came bleating to him about his soul. “A healthy Christian,” he would say, “doesn’t need to talk about his soul any more than a healthy man wants to talk about his liver.”

It is just the same about divorce reform. Divorce Law is in the nature of things ambulance law, salvage law, law to save wrecked lives and ruined homes. In times of domestic peace and joyous family life it would be unhealthy for young husbands and wives to run about, as these clerical ladies expect them to do, shouting for reform of Divorce Law.

But for our rulers and governors, and for those of us who have time and opportunity to devote to the study of social questions, other considerations prevail. We cannot shut our eyes to the degradation and misery of men, women, and children under the present Divorce Laws. We see the rocket go up, we hear the cries of the victims, and we know that our life-boat is water-logged. There are only two courses open to us. We can go down on our knees with the higher clergy and thank Providence for a rotten boat; or we can rouse up the Man in the Street to subscribe for a new one.

How can it be to the best interests of children to live in a household of friction and disorder, which is the natural outcome of married life under such conditions? The everyday life of a child in a home of this kind must do grave injury to its character and prospects in life. Then, too, the State has a right to consider how highly undesirable it must be that further children should be brought into such a life.

[Pg 65]

The most hopeful way, therefore, of discussing questions of divorce seems to me to bear in mind that the Family is the social unit, that marriage which does not result in happy family life has failed to serve its purpose, and when there is a chance of putting an end to the misery of children, women, or men, and of remedying human mistakes, the State should take the matter in hand and deal with it in a common-sense, business way, as a matter of moral sanitation.

There is no doubt that a real fear exists among good people that divorce made too easy would be an evil thing for the community. This feeling, very right and natural in itself, springs from our sacred regard for family life. It seems to some people logical to say that if it were cheap to obtain divorce, and the grounds for it were multiplied, every one would be rushing for freedom, and homes would be rashly broken up.

I cannot allow this prophecy to make my flesh creep. It is based on the suggestion that there are in the country a large number of husbands and wives who only continue to live together because the law compels them to. Frankly, I do not believe it. I may be an optimist, but I do not foresee husbands and wives taking advantage hastily of a greater freedom in divorce. Married life may not be all that every fancy painted it in the springtime of youth, or all that it should be; but, after all, what is there that is better?

Montaigne told his countrymen that “there is a certain nation where the enclosures of gardens and fields they would preserve are only made of a string of [Pg 66]cotton, and so fenced are more firm and secure than by our hedges and ditches.” From this he proceeds to argue that desires are really augmented by difficulties, and that the freedom to do a thing does not by any means encourage folk to do it, but, on the contrary, rather puts them off, as it were. “What you may is displeasing; what is forbidden whets the appetite.” And as an instance of what he means he refers to the Roman laws, which gave the fullest liberty of divorce, yet no married person made use of them for over five hundred years.

I do not fear for a moment the clerical bogey of an England wallowing in vice and immorality owing to extended facilities for divorce. I have investigated too many clerical bogeys, and know the turnips from which the lantern is made, and recognize the vicarage pitchfork underneath the surplice waving in the moonshine. On the other hand, I am ready to back my own prophecy that reasonable divorce reform and cheap tribunals will mean less degradation and misery, purer and better lives and happier homes.

Very interesting evidence was given on this very subject by Fru Ella Ankers, of Norway, where they have an extended divorce system going far beyond anything we propose for our country.

Without setting out the law in detail, it is sufficient to state that if husband and wife choose to separate for three years that becomes a divorce without decree at the end of the period. This, of course, is divorce by consent.

There is one very good point about Norwegian [Pg 67]divorce that might well be introduced into this country, and that is that before the Courts will consider certain cases they insist on a mediator seeing the parties and trying to reconcile them. Once, however, it becomes clear that the case is not one for reconciliation, then either with or without a decree divorce comes about very readily.

Now here we have a western European people, not wholly unlike our own, experimenting in divorce in a way that would horrify most of us. One would expect the evidence to show a very large percentage of divorces as against other nations where the rules are stricter. But this is not so at all, and Fru Ella Ankers tells us that the mere fact that divorce is so easily attainable makes the Norwegian husband better mannered, and the Norwegian wife more sweet tempered and more forgiving.

And this I believe to be no fiction. I can well imagine a Norwegian husband hesitating to express his views about the cold mutton taking its third encore when he knows that his good lady may resent his rudeness and get up and leave his table for ever. Also it is conceivable though less probable that a Norwegian wife might hesitate at an unnecessary and extravagant hat if she feared it would frighten her husband out of the house.

Be this as it may, enough has been done in Norway to show us that divorce reform does not mean decadence and race degeneration.

The Law in this matter owes long outstanding debts to Woman, and the community may hope that [Pg 68]in the near future Woman will enforce payment. For only through divorce reform can we attain that pure and honest condition of family life which is essential to the progress and happiness of the nation.

“More and more I am sure, and physiologists are becoming more sure also, that the mother is the more important, and in the case of the boy everything; the child is the mother, and her rights, opinions, feelings, even fancies about him, ought to be first regarded.”

Letters and Memories of Charles Kingsley, II. 252.

The earliest case on the books about the right of a mother to the custody of her child is that tried by Solomon in the porch of judgment.

Two mothers, you will remember, were contending for the ownership of a baby, and the learned judge made a great name for himself by the sensible, but irregular, procedure which he adopted to spot the real mother. Even in those early days a display of common sense upon the bench created considerable public amazement, and the affair is spoken of to this day.

The noteworthy point of the case for us is that the two lady litigants were unmarried mothers. From the days of Solomon until to-day it is only the unmarried mother who has rights of custody in her child.

But if the married woman has few mother’s rights she has at least certain duties, liabilities, and want of [Pg 70]rights which need sympathetic consideration from those who desire to remodel the Law on lines of greater liberty and justice to Woman.

We have spoken of the family as the unit of our national life. Now a family consists of a man, a woman, and a child, with power to add to their number. Of these three elements the man is undoubtedly the predominant partner, having rights over the other two of a very extensive and far-reaching character.

The child, being naturally dependent and subject to the care of its parents, can in the nature of things have but slender individual rights, though the State, as trustee for the child, takes care that it receives a certain amount of food, clothing, and education either from its parents or from the community.

The Woman of the family alone seems to have the scantiest rights, and what she has are of very modern growth. The Law never seems to have understood that

Whenever there has been a difference of opinion between a married man and woman as to the upbringing of their child, however young it might be, the Law has always sided with the man, and ignored the Woman.

This, of course, could not go on for ever, and the legal problem of recent years has been to hold the scales of justice fairly between the man and the woman as to the management of the child in those unfortunate families where they are unable to settle these things for themselves.

[Pg 71]

Stowed away in some old law reports of 1836 you may read a sad story of the Law and the Woman that seems to have touched the public conscience and started a movement of statutory reform that is still dragging its slow length along the highway of our social life.

Mr. and Mrs. Greenhill were a young married couple, well-to-do, with a place in Somersetshire, and three little girls aged 5½, 4½, and 2½. They went in the summer to Weymouth, and here Mr. Greenhill had a yacht, in which he sailed away on pleasure trips.

His absences became longer and longer, until some time in September he sailed to Portsmouth, and thence to London, and from information received Mrs. Greenhill became aware that he had gone away with the ubiquitous scarlet lady.

Left to herself Mrs. Greenhill and her three little girls retreated to her mother’s house at Exeter, whilst Mr. Greenhill and the aforesaid lady continued living in London under the style of Mr. and Mrs. Greenhill.

One might have thought that any man of self-respect, having by his own misfeasance wrecked the family life and broken up the home, would have at least lain low and said nothing. But that was not Mr. Greenhill’s way. On the contrary, sparing an hour or two from his criminal conversations with the scarlet lady, he walked over to his solicitor to consult him about the custody of the children he had deserted.

The law he found to be in a thoroughly satisfactory state. A habeas corpus was issued, and poor Mrs. [Pg 72]Greenhill had to bring her three little children up to London to submit to the judgment of the court. The case was not arguable. The common law was well known, and their lordships smiled at the simplicity of the woman who contested such an obvious and simple case.

“There was only one proper custody,” said Lord Denman, “and that undoubtedly is the custody of the father.” Another learned judge put it more brutally, and probably thereby did something for reform. “If,” said he, “a father and mother disagreed about the disposal of their children, and each of the parents appeared before the court and claimed the custody, there is no doubt that the court would give it to the father; the mother’s application would not be attended to.”

Up to the beginning of the reign of the late Queen Victoria, that was a fair statement of a mother’s right to her babies under the grand old common law of England. She had no rights whatever except a right of audience to a court that laid it down as a rule of law that as between herself and her husband her applications would not even be attended to.

Blackstone, who had a poetical mind that occasionally expressed itself in second rate verses, puts the mother’s rights to her child very prettily. During the father’s life, he says: “The mother as such is entitled to no power, but only reverence and respect.” What reverence and respect did the Law secure to the mother in Mrs. Greenhill’s case?

Friend Blackstone, like our old friend Silas Wegg, is, [Pg 73]I suspect, dropping into poetry when he talks about “reverence and respect” as the legal rights of a mother. At common law the mother had no rights whatever, and Blackstone knew that very well. Let us hope that it was a sense of shame at the condition of the law that led him into the artless alliteration of “reverence and respect.”

But Mrs. Greenhill did not suffer in vain. When a Parliamentary Minister tells you that it is impossible that any measures can be taken, you generally know that you are within a few fortnights of reform.

When Mr. Justice Littledale said that the law was that a mother’s application for her children could not be attended to, it was obvious that it was time to attend to it.

And so it was. Sergeant Talfourd, that enlightened lawyer and man of letters, endeared to most of us by the living memories he has bequeathed to mankind of his dear friend Charles Lamb, was then Member for Reading. Stirred to indignation and action by this and similar cases, he introduced with success an Infant Custody Bill, known to this day as Talfourd’s Act, which was the forerunner of a series of Statutes giving mothers greater rights in the custody of their young children. Space does not permit a statement of the evolutionary history of these Statutes, but though much has been done the legal question of Mothers’ Rights is not yet finally settled.

Nothing could be more illogical and contradictory than the common law of mother and child, for having decided that the married mother has no rights at all [Pg 74]in respect of her children, the Law gives the unmarried mother absolute custody of hers.

The maternal tie that could not be attended to when it was urged before the Courts in Mrs. Greenhill’s case is strictly upheld and respected when it is set up by an unmarried mother. So strong is this rule that if a father wished to educate and maintain an illegitimate child he would not be permitted to do so without the consent of the mother.

Here, in the interests of the children, the law seems as far removed from wisdom as in the case of the wife and mother. An unmarried mother has a right to a certain pittance from the father of the child sufficient to keep it off the rates, and then she has the sole custody of the child and the sole responsibility of its maintenance.

However desirous the father may be to bring the child within the family by marrying the mother, this the English law—despite the better example of our neighbours over the border—will not permit. The father’s interest in the child is strictly limited by law to the payment of a few shillings a week. That done, he has no more responsibility for its upbringing, and no possible control in its future career.

An ancient absurdity of the Law in relation to the children of unmarried women is this, that a man is not allowed to right the wrong he has done to the innocent child by subsequent marriage with the mother. If he marries the mother but a day or two before the child is born the child is legitimate, but, once born a bastard, no power in English Law short [Pg 75]of an Act of Parliament can relieve the infant of his unfortunate status.

Although perhaps this is a more serious grievance to the child than to the mother, yet undoubtedly the fact that a man cannot make his child legitimate even when he desires to act rightly, does away with what is a strong human incentive to an act of reparation by the father for the wrong done to the mother of the child. Other countries have recognized this, and the Law is more in accordance with justice and common sense in Scotland and many European countries where marriage places all the children of the man and the woman, whether born before or after wedlock, on the same legal footing.

So unjust has our law been considered by thoughtful and good men of all times that far back in the reign of Henry III we find that the bishops of that day desired to alter it and introduce the canon law rule of legitimation by marriage. Then arose the Knights and Barons in their might and announced to the world at large the great maxim which has been repeated from generation to generation and remains the battle cry of privilege and protection to this day: Nolumus leges Angliæ mutari. We are unwilling that the laws of England should be changed. When the good bishops heard this grand old English sentiment they stood repentant and convinced, their proposal was hastily abandoned and they gave up meddling with social reform from that time forward.

The old pagan Common Law of England seems, therefore, to have amounted to this, that in respect of [Pg 76]her children a married mother had no rights, and an unmarried mother had absolute rights.

It was obvious that as the importance of healthy children to the State became more fully understood, the legal relationship of mothers and children would have to be reconsidered, and that, at all events, in the earlier years, in the interests of life and health, the mother ought naturally to be the predominant partner in matters of custody and control.

Towards this goal we see the Law making timid steps. Fortunately social well being does not depend altogether on the state of the Law. Common Sense, which is always so much more powerful than Common Law, has in the everyday practice of family life enacted that the mother should have that control and predominance in the nursery that is necessary to the protection of infant life.

Nature is more powerful than Mr. Justice Littledale, and has overruled his lordship by deciding that the mother’s application must be attended to. To-day we see a law passed, with the consent, if not the approbation, of all men, giving the mother rights in a small sum of money which is called a maternity benefit. I like to think that this first little gift of the State to the Mother will prove like the grain of mustard in the parable which will gradually increase a thousandfold the legal provision for infant sustenance and protection.

The chief point to note is that this money is the mother’s money, and here we have the Law for the first time recognizing the mother’s personal right to [Pg 77]administer a fund, such as it is, for the benefit of herself and her offspring.

Thus we seem to see the Law rubbing its sleepy eyes, stretching its lazy limbs, and sitting up and taking notice that there are such things as Mothers’ Rights, and making a faint resolution that when it is a little more awake it will really attend to the matter.

There are indeed signs that the world is beginning to understand that if it wants citizens and healthy citizens the Law will have to bestir itself to study the problem of maternity in the human homes of the poorer men and women of the twentieth century. Those among the more fortunate classes who want to realize what this problem really is should study a little volume of letters of working women published by the Women’s Co-operative Guild under the title Maternity.

This book brings the average citizen and voter right up against the most important question of this time and all time: “How is the world to be peopled by sane and healthy men and women?” So largely is this matter left to the disastrous and haphazard methods of the ignorant and the careless, that the preventible waste of infant life and the cruel maternal sufferings of poor women have come to be regarded as something ordained for humanity by Providence that it is almost wanting in piety to put an end to. Let us hope that one of the matters that the war will force upon our notice is the necessity for legal protection for child-bearing women and young infants.

Much no doubt can be done and is being done by [Pg 78]voluntary work, but the Law must step in and give mothers and expectant mothers certain rights of food, rest, medical treatment and nursing without which they cannot successfully produce sane and healthy children and keep them in being. The problem is mainly an economic one; it will certainly cost more than the thirty pieces of silver we have already voted, but even if it runs into many millions it will be a happy change to be spending our taxes on the making of better lives and fighting battles against ignorance and disease for the benefit of the human race.

The Bothie of Tober-na-Vuolich, Arthur Hugh Clough.

Woman suffers from laws which forbid. The forbidden fruit always seemed to me an unfair bunker. No woman could be expected to keep out of it. At all events, to try to cultivate Woman and Forbidden Apples in the same garden was rash and hazardous horticulture. Bluebeard understood the basic sense of that proposition, and it was full in harmony with the wicked irony of his way with women.

If it is not impious to say so, I have often thought that it is an unfortunate thing that our earliest statutes begin with the words “Thou shalt not.” Lawgivers, always searching for precedents, have imagined that it was an essential part of every law to tell you not to do things. Nothing has been more detrimental to progress.

To my orthodox mind the sound view should be [Pg 80]that the subjects where forbiddance is necessary are exhausted in the Ten Commandments, and that it smacks of profanity to continue adding to these unnecessarily. At all events, for women workers I am satisfied that the only way to amend the law is to strike out of it all those statutes, clauses, sections, and considered judgments which forbid a woman from trying her hand at any sort of work that she has a mind to.

That is the Free Trade solution of Woman’s work, and there is no other sane one. A free field and no favour. We may trust Woman, after a very short experience, to discover that the devil takes the hindmost, and if she can outwit the old gentleman so much the better for every one.

It is easy enough to say that Woman is naturally unfitted for this or that position; but why argue about it when it is so simple a matter to test it by experience? I have a strong belief that Man is naturally incapable of boiling a potato, but I have heard of exceptional men who could achieve this delicate task, and, except in time of famine, I would not have a law forbidding them to try their hand at it.

If, for instance, we take the various money-making occupations which the Law forbids Woman to undertake, we shall find among the precedents of history many notable cases where individual women have achieved considerable success in them when they have had the opportunity of making the attempt.

Surely we may allow that Queen Elizabeth was as able and untrustworthy as any statesman in modern [Pg 81]Europe. In the matter of soldiering and generalship Joan of Arc made a certain name for herself; and, although women have small chance of going down to the sea in ships, do not let us forget that it was Grace Horsley Darling, the daughter of a lighthouse keeper on the Farne Islands, who started by her deeds of heroinism the idea of our life-boat system, of which she has remained the saintly patroness to this day.

Nor must it be forgotten that Shakespeare, in his portrait of Portia, has convinced all of us who are governed by reason that the task of stating bad law in eloquent periods to an indifferent judicial tribunal is one that may safely be left in the hands of Woman.

In the Churches of early days, priestesses were rulers of great influence, and throughout the history of nearly every ecclesiastical power women have had responsible positions. In the Salvation Army of to-day, a most successful organization, Woman has played a most important official part with notable success.

In voluntary religions the law can lay down no rule, but in a State Established Church all posts ought clearly to be open to man and woman alike. There is no duty cast upon an incumbent that could not just as well be performed by a woman as by a man.

In fact, in many country districts the active work of the parish is often entirely in the hands of the vicaress, and the vicar contents himself with his statutory duties and a certain amount of amateur magistracy [Pg 82]and other country pursuits, or crams students, or grows roses, or becomes the learned antiquary of the district.

The arrangement is usually a sound one, but why should not the Woman who does the work have the honour of the title and the office? Indeed, it would be more seemly and honest that this should be so. Mrs. Proudie was not a figment of Trollope’s imagination. She was the real wife of a real bishop. To what good purpose is it that the Law refuses the position of Bishop to a Woman when she can attain all the power of it by marrying the man in the office?

People, and especially advanced people, speak of woman’s work as though it was a new thing, but as a matter of history you will find that Woman has always been the real worker in the human partnership.

If you have read the old sagas and folk tales with affectionate attention, or if you have acquired the rare habit of loafing slowly through the museums of the world with your eyes open, you will know that women were the first millers and weavers and potters and basket makers, that they tilled the first fields, dressed and tanned the earliest skins and hides, invented the primitive forms of baskets, and were the first carriers and transport brigade when the tribes took the road. In a word, all the peaceful arts necessary to the feeding, clothing and travelling of early man were originally woman’s work.

As time rolled on these things passed under the domain of man, who has always recognized that a cunning tendency to exploit the abilities of others for [Pg 83]his own profit is a righteous quality worthy of the highest temporal reward.

But when in the course of time the old handicrafts pegged out, and skilled artists nimble in handiwork were no longer essential to human comfort, Woman—to put it in modern phrase—was “left.” The distaff gave way to the spinning wheel, the spinning wheel became a spinning jenny, and the motor power became steam or electricity in place of Woman. At last—in the Victorian era—which a few of us still hold in respectful memory—woman’s last glorious art, the art of the needle, disappeared, and the sewing machine threw out of domestic employment a vast number of home-keeping women. The word “spinster,” originally descriptive of an honourable craft, has become almost suggestive of idleness and reproach. To-day it is scarcely an exaggeration to say that the housewife’s power in the house depends mainly on man’s disability to cook his own food and sew on his own buttons. A satisfactory municipal restaurant supplying meals on the gas and water system by means of slot machines or otherwise, and a new American foolproof garment fastener in place of the button and buttonhole, and woman’s power in the household would be threatened with extinction.

Briefly put, these are the reasons why woman’s position towards the end of the Victorian era became a new problem. All the domestic work of the preparation of food supplies from farm and garden, the work of the laundry, the still room, the bakehouse and the brewhouse passed into outside machine factory hands, [Pg 84]and the wives and mothers and daughters had little left for their energies but “shopping,” a charming pursuit when left to the unfettered discretion of idle minds, but not economical.

What to do with our girls? was a common topic of conversation among Victorian fathers and mothers, but you cannot expect the fossils of the older strata to take a very intelligent interest in the living movements of the alert fauna in the sea of life that washes above their heads. The fathers and mothers and grandfathers and grandmothers lamented over the unfossilized tendencies of the giddy young swimmers caught by streams of life that led they knew not where; and the true history of the evolution of woman’s work is not to be found in the wisdom of the written words of our forbears, but in the actual lives of the younger women themselves who refused to sit down at home and do nothing, and started out into the world in search of a new life and great adventures.

A book of biography will some day be written showing how, in each great branch of work where Woman has taken or is taking an honoured part to-day, the initiative was struck out and pressed home against the active opposition of professors, priests and parents by the pioneer heroinism of Woman herself. Such a volume could not be published in this generation because history cannot be written whilst it is in the making, but one can set out shortly the story of one woman’s achievements as typical of the life story of many a similar brave and honourable career.

To-day the work of women doctors is an acknowledged [Pg 85]success. Their noble achievements in the great war are read with pride by their countrymen. Let one instance suffice, quoted from a daily paper of May, 1915, containing news from Serbia:—

“One English lady, Mrs. Hardy, who came alone, took charge single-handed of a surgical hospital of about 500 patients, and with the help of one woman, a Serbian lady doctor, turned it into a marvel of good order, and cleanliness without any other assistance. The Scottish hospital in charge of two lady doctors, Dr. Soltau and Dr. Holloway, was also a picture of cleanliness and comfort.”

When we read such things we should not rail at our fathers for their purblind refusal to temper the Law to modern social ideals, but rather search in our own up-to-date consciences to see if there is anything we can do to-day to repeal unnecessary laws of denial and give freedom to Woman to do good in the way that seems to her best.

Think what the medical service of Woman has meant to suffering humanity and humbly thank Providence for the courage of the pioneer women who made such deeds possible against the crass opposition of the leaner and more slippered pantaloons of early Victorian Harley Street.

Every one who is interested in Woman’s work should read the life story of Dr. Elizabeth Blackwell, the first Woman doctor, as told by herself in her modest honourable and inspiring record, Pioneer Work in Opening the Medical Profession to Women.

It is good to know that she was an Englishwoman, [Pg 86]though credit for the opportunity for her education must go to America. She was born in Bristol, February 3, 1821, the third daughter of Samuel Blackwell, a Bristol sugar refiner. Her father and mother and their eight children emigrated to America and remained for some years in New York, where they moved in the circle of William Lloyd Garrison and his friends, and Elizabeth obtained a good education at a New York day school. In 1838 her father moved with his family to Cincinnati, where he died after a short illness, leaving his widow and nine children entirely unprovided for.

Elizabeth and her sisters helped to keep things going by scholastic work and for several years she held different educational positions. At the age of twenty-five she seems to have been gradually drawn towards her real life work. The necessity to her of devoting herself to some absorbing occupation, and the call from sick women for medical help from one of their own sex, coupled doubtless with an intuition that she had the capacity within her to reach her goal, moved her to take active steps to become a doctor.

She now consulted several medical men of her acquaintance as to the possibility of her becoming a doctor, and the answers she received were that there was no way of obtaining such an education for a Woman and that the idea was impossible of execution. Here indeed the matter might have rested, but that the idea of winning a doctor’s degree gradually assumed to her the aspect of a great moral struggle. It was the [Pg 87]impossibility of the task that attracted Elizabeth Blackwell.

“This moral aspect of the subject was increased,” she tells us, “by a circumstance which made a very strong impression on me. There was at that time a certain Madame Restell flourishing in New York. This person was a noted abortionist and known all over the country. She was a woman of great ability and defended her cause in the public papers. She made a large fortune, drove a fine carriage, had a pew in a fashionable church, and though often arrested was bailed out by her patrons. She was known distinctively as a ‘female physician,’ a term exclusively applied at that time to those women who carried on her vile occupation.

“The gross perversion and destruction of motherhood by the abortionist filled me with indignation and awakened active antagonism. That the honourable term ‘female physician’ should be exclusively applied to these women who carried on this shocking trade seemed to me a horror. It was an utter degradation of what might and should become a noble position for women.”

I have set out this passage in her own words because it seems to me to contain a most interesting lesson for us in the history of social evolution. Here we have a semi-criminal carrying on a foul trade, tolerated and permitted by the medical, legal and magisterial hierarchy, and a clever girl of five and twenty, inspired by the foulness of the business, setting about without any help or encouragement from her elders to work [Pg 88]a reform. To the sage wisdom enshrined beneath the Victorian top hat and underneath the professional frock coat of the period Elizabeth’s intentions and desires were absurd and impossible. The encouraging part of the story to one who, like myself, believes with child-like faith in miracles and fairy tales, is that from the moment she starts on her career, in spite of the enormous difficulties and opposition she encounters, one has no more doubt that she is going to win her prize than that Cinderella will marry the Prince at the end of the story.

There was certainly no broad and easy path to success. The first step Elizabeth Blackwell took was to return to school-teaching for a few years to save enough money to follow a college career, and at the same time to study Greek and such elementary learning as she could. It was not until 1847 that she began to seek an entrance to a medical school. One doctor after another told her that in his college or university the idea of allowing a woman to study medicine would never be permitted, and a good Quaker doctor, who was not unfriendly to her scheme, said to her, “Elizabeth, it is no use trying. Thee cannot gain admission to their schools, thee must go to Paris and don masculine attire to gain the necessary knowledge.” Later on he told her he had made further inquiries and that Paris was such a horrible place that she must give up her wish for a medical education. Upon which Elizabeth tells us, “I told the doctor that if the path of duty led me to hell I would go there; and I did not think that by being with devils I should become a [Pg 89]devil myself,” at which the good doctor stared. Indeed it was just as well that he should stare, for unless Elizabeth could succeed in opening the eyes of the medical profession to the strength and earnestness of her intentions there was little chance of overcoming their opposition.

The great educational institutions of Philadelphia and New York remaining obdurate, Elizabeth wrote to twelve of the minor county schools, as they were called, for permission to study medicine. For many weeks there was no reply, and at length on October 20, 1847, the Dean of the Faculty of the medical department of the University of Geneva informed her of the following resolution of the entire medical class.

“Resolved—That one of the radical principles of a Republican Government is the universal education of both sexes: that to every branch of scientific education the door should be open equally to all, and therefore Elizabeth Blackwell was welcome to the classes and examinations and degrees of the Geneva University.”

It is interesting to find this example of good sense and right principle set by the professors and students of this smaller University to their wealthy exclusive and narrow-minded colleagues in Philadelphia and New York and thence across the ocean to the old-world school men of Oxford and Cambridge. The little governess of Philadelphia had won a great battle for educational freedom in this year 1847. From this time forward it was only a matter of time how soon or how long it was before all universities accepted the principle of universal education of both sexes. It [Pg 90]may be that some of the more antiquated institutions partly out of mere conservatism and partly with a desire to protect the male students from undesirable competition, will hesitate for some time yet to fall into line. But gradually it must appear clear to their governors that a University that shuts its doors to large numbers of eager and hard-working students will not for very much longer receive public toleration. There are many signs that our universities will soon be called upon to put their house in order; for the social and political wisdom of professors and the capacity and possible activities of women will be quoted on the world’s exchange at entirely new values after the war.

It is well to read of Miss Blackwell’s difficulties if only to appreciate the courage and steadfastness which enabled her to win through. At the dinner table of her boarding-house a doctor’s wife refused to notice her, and ladies in the street stopped to stare at her as at some curious animal. The rougher medical students, after some small demonstrations, behaved admirably to her, and to them and to her teachers she testifies her gratitude. On January 23, 1849, there is the following entry in her journal: “After the degree had been conferred on the others I was called up to the platform. The President rose as I came on the stage, and going through the usual formula of a short Latin address presented me my diploma. I said, ‘Sir, I thank you, it shall be the effort of my life, with the help of the Most High, to shed honour on my diploma.’”

How well she was enabled to fulfil her prayer remains [Pg 91]on record. We cannot follow here her career of study in Europe, hindered by the snubs and boycotting of many doctors, cheered by the kindly encouragement of a nobler few. The story of her life of sacrifice in the Paris Maternité which ended in the loss of the sight of an eye from purulent ophthalmia, destroying all her hopes of practical work in surgery, is a tragedy worthy to be read in her own brave words.

She went on her mission quietly and bravely without complaint against the folly and malice of her opponents, calmly reminding them that “a work of ages cannot be hindered by individual feeling, and a hundred years hence women will not be what they are now.” Her own success of achievement was indeed great, but it was in the inspiration of others and by the example of her career that her name will remain blessed. As the older friend and adviser of Florence Nightingale and Mrs. Garrett Anderson and many another woman worker, she did a great work for the cause she loved. Though the world she lived in took an evil delight in seeking to make her burden too heavy to be borne, yet I make no doubt that posterity will canonize her as a saintly type of professional woman.

Every experience we have had as yet of permitting Woman to undertake the work she desires to do, unhampered by the Law, has been a reasonable success, and has certainly not brought about the social disasters that Mrs. Grundy and her friends have so continuously prophesied. After all when there has been anything approaching the regulation of woman’s work on the principles of Free Trade, women have [Pg 92]taken their rightful place with reasonable modesty and without destroying altogether the occupations and remuneration of the timid man who craves for the protection of the law.

Marlborough’s armies had no women nurses and no Red Cross Society. It was a woman, Florence Nightingale, who raised her lamp to light the women of the world on this path of mercy. Fair play to mere man: when he understood the proposition he weighed in with cash and organizing energy to make it a success.

One would have thought that the experience of the enormous improvement that the nursing profession has made since the days of Sairey Gamp and Betsey Prig would have convinced mankind that Woman was capable of dealing with the sick and wounded, not only with enthusiasm and sympathy, but with an ability and insight that could be encouraged by suitable education to fit some women for the higher branches of medical work.

Nursing to-day is as important a branch of doctoring as any other. It is hard, uncongenial, distasteful work, and not over well paid, so it is left almost wholly in the hands of women. But there is no law hindering a man from taking to it if he pleases, and some few do with success. In the same way there should be no Law preventing Woman from entering the higher branches of the medical profession if she is able and willing to do so.

The beauty of the principle of Free Trade is not that it makes a different world or a better world, but only that it enables the world to be just as good [Pg 93]as the men and women of their day are capable of making it.

The education of Woman was bound to bring about a demand for forbidden apples, and the Law of Apples will have to be repealed. You cannot allow a woman to learn Law and Medicine, and Theology and Engineering, and go peddling about with her knowledge on some little nine-hole social course which no self-respecting man would play over.

Only if Woman is to come into the field and contest with Man she must play under the same rules and drive off the same tees. Where she has done so, in Literature and Art, for instance, she has done well, but she has not driven Man into the workhouse, and there is still room in these fields for men of industry and cunning.

As Thomas Huxley wrote fifty years ago: “Let women if they so please become merchants, barristers, politicians. Let them have a fair field, but let them understand as the necessary correlative that they are to have no favour. Let Nature alone sit high above the lists, ‘rain influence and judge the prize.’”

I do not understand those who fear that if the Law withdraws its veto from Woman’s right to work there will be a revolution. There will be a small enrichment of service in the older professions, but the world will roll on in much the same old way.

Man will continue to earn the money and Woman to spend it, just as in primeval times Man hunted and killed the deer and Woman cooked it and handed round the shares to the family and converted the skin [Pg 94]into a dress-piece. You may pass Laws until the Crack of Doom, but that little arrangement began at the beginning of things and came to stay.

The Woman is born to rule, and her methods of rule are predestined for her. Singing at her distaff and rocking her cradle she must for ever govern her household and the world with her pleasant sway, and good easy man must content himself with the proverb: “Whoso findeth a wife findeth a good thing, and obtaineth favour of the Lord.”

Address to the Unco Guid, Robert Burns.

This is an ungallant title. When Byron likened Woman to “a German clock, still a-repairing, ever out of frame, and never going a-right,” he was an impudent railer. But between that and the bare admission—of course without prejudice—that a woman may be a wrong-doer there is a double width of difference.

The Law seems to have thought that Woman was so perfect by nature that when she strayed from the true path it was reasonable to make it particularly hot for her. Thus, if a man killed his wife, that was murder; but if a wife killed her husband, that was petit treason.

For a wife was her husband’s servant, and it was petit treason for a servant to kill his master, or for a parson to kill his bishop; but if he killed the bishop of another diocese that would only be murder.

You may say that these are technical details of [Pg 96]no great interest to Woman. Murder is just as foul an affair as petit treason, it is true, but the punishment for one up to 1790 was hanging, whereas the petit treasoner was dragged on a hurdle to the stake and burned alive.

I dare say there were quite a number of good citizens who deeply resented the abolition of this old world penal ceremony, and shook their heads over a generation that refrained from burning women alive.

Certainly the Law did very little to temper its brutal punishments for Woman. All the blame for the disorderly offences of the town was then, as now, cast on Woman, and magisterial and legislatory eighteenth century Man, having pardoned his own share in these offences, soothed his social conscience by decreeing double doses of whipping and pillory to the offending fair ones.

It was one of the sights of London to see the women whipped at Bridewell. The president—a worthy alderman—took the chair, and the rogues in blue beat the victims until the alderman struck the table in front of him with his official hammer.

“O, good Sir Robert, knock! Pray, good Sir Robert, knock!” the wretches shrieked out, and this so tickled the bystanders that they brought it out into the world with them and made a catchword of it, as we do to-day with “What ho! she bumps,” and other fool phrases.

Just as a number of things on the surface of the world to-day seem to us right, merely because they commonly happen, so this brutal treatment of unfortunate women caused no compunction among the good [Pg 97]men of the time. Even Fielding, as witty, wise and humane a man as most, was more disturbed by the injustice of the punishment than the brutality of it. He describes in one of his operas the fashionable demi-mondaine riding in her coach whilst

This light-hearted jingling song is a clear echo of the indifference of the eighteenth century towards brutal punishments.

Woman is the favourite of the Law to this extent, that she is the only sane person of full age who is allowed to say that she committed the crime for which she is indicted, but that she is not guilty, inasmuch as it was committed by her under her husband’s coercion, which the Law presumes hinders her acting as a free agent. This holds good for all crimes but treason and murder.

Lady Macbeth could not have pleaded that she acted under her husband’s coercion, but she might have done so if they had only been after Duncan’s pocket-book. Then Lady Macbeth would have certainly got an acquittal on the grounds that her husband coerced her. It was a statement of this legal principle that called forth the censure of Mr. Bumble.

Long-eared as the Law may be, we are face to face with its realities, and this peculiar freedom of Married Woman from the results of harbouring, comforting, and sustaining her criminal husband is one of those [Pg 98]occasional glimpses of urbanity and right-mindedness in the Law for which it deserves credit.

Man and wife are one, and it is really overdoing it to send two persons to jail for one crime. Chivalry suggests that jail-going is the husband’s perquisite. Moreover, there is some show of reason in the Law holding that a wife may commit crimes without any criminal intent. It would be manifestly unfair to send the wife of a burglar to prison for receiving stolen goods that her good man had brought home from an excursion arising out of and in the course of his occupation. The wife in hiding away the booty is not, we will hope, actuated by the criminal intention of depriving other people of their property, but is moved by the natural and almost laudable desire to conceal her husband’s guilt and prevent his wickedness from breaking up their happy home.

It seems a universal proposition that when Laws or Religions are in want of victims they take the weakest. Women and children have always been more acceptable sacrifices to the gods than seventeen-stone Man. Whether this has come about through the ascertained appetites of the immortals, or from the natural diffidence of the heavy champion to become a burnt offering—a whim which he could enforce upon the community with a mace—is mystery too deep for me. It almost seems as though Law was often on the lookout for the victim likely to offer the least resistance.

The history of witchcraft is a long-continued, unjust crusade against elderly and sometimes insane women carried on in the name of Law and Religion. Why [Pg 99]these offences should be so universally attributed to Woman, and not Man, it is hard to say. A Wizard was as great a criminal as a Witch, but the martyrs of justice were nearly always women.

Witchcraft is still believed in and guarded against in remote places in Britain, but it is no longer a criminal offence known to the Law. Yet less than three hundred years ago Chief Baron Hale directed a Suffolk jury to find two poor old women guilty of witchcraft, and pledged his judicial word that there were such creatures as witches for two reasons:—

“First, the Scriptures had affirmed so much. Secondly, the Wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime.”

On this conclusive reasoning were the two innocent old dames hustled on to the scaffold, and their lives sacrificed to the world’s great content. I have often wondered, as I read the good Sir Matthew Hale’s summing-up—he was a man of more than ordinary intellect and learning—whether three hundred years hence the world will be reading some of our own judicial learning and wisdom with a kindly smile of pity and contempt for its childish futility.

Another curious crime that our grandfathers reserved for Woman was that of the common scold. I suppose, again, that a man might be a common scold, but I can find no record of such. Perhaps the masculine form of such an offence was to be a common bore, yet I cannot remember to have heard of a man prosecuted for this crime.

[Pg 100]

The punishment for the common and unhappy scold was a ducking stool, which seems to have rested handy near every village pond, a kindly and practical reminder to the ladies of the village that a voice soft, gentle, and low is an excellent thing in Woman.

This was a legal punishment of very ancient lineage, but in Scotland and the North of England it was replaced by “The Branks,” an iron bridle with a padlock and a spike to enter the mouth, which was forced on to the offender. This was of doubtful legality.

These tortures were reserved for women, and were in common use up to the days of Queen Anne. The latest case I have come across is Mrs. Foxby’s case. She was indicted at Maidstone Assizes, found guilty, and sentenced to be ducked. Mrs. F., however, was not going to take her ducking “lying down,” as the saying is. She instructed her solicitor to enter a writ of error in London. Her point was that they had called her by the wrong Latin word for “scold” in the indictment.

The writ came on for hearing in Trinity Term, 1702, but the Judges refused to hear it, as Mrs. Foxby had not come up to town personally. An adjournment was asked for and granted, Chief Justice Holt—sly humorist—reminding Mrs. F.’s counsel that if at the Michaelmas Court the decision was against his client the Medway would be distinctly colder in October than it now was.

The lady, however, took to her bed and played a long suit of affidavits, and there were further adjournments, and much Medway rolled under the bridges [Pg 101]without a victim. Meanwhile, the Court leisurely discussed the law of scolds, and pointed out that it was no matter scolding now and again; it was the iteration of scolding that made it a nuisance.

Some of the Judges expressed doubts whether ducking was a legal punishment, and one kind-hearted Justice wondered whether it would do the lady any real good, and feared that after all it might harden her. Of a surety Kent water is not of a softening nature, and is to this day reckoned by housewives a great destructor of linen.

I like to pull down the various law reports in which Mrs. Foxby’s case is bound, and amble along with it term after term to its conclusion. It is symbolic of what I am writing about and what is going to happen in the end.

When Woman really takes a hand in the game and plays Law with its own foolish cards, she will win. Mrs. Foxby was never ducked. She had too much money and pluck for that. After many months’ delay it was ultimately decided that Mrs. Foxby had never been called a scold in the indictment; the Crown counsel had called her a calumniatrix instead of a rixatrix, and this blunder upset the Crown’s applecart. So did Mrs. Foxby escape the Medway, succeed in her writ of error, and build herself an everlasting name.

In the old days, when a woman married she shifted all the burden of her debts and the sole responsibility for all the trespasses and civil wrongs she had already committed, or was going to commit, on to her husband’s shoulders.

[Pg 102]

Since the Married Woman’s Property Act, 1882, if a woman has separate estate, the Law makes that liable to pay damages for any wrong she does.

This is fair enough, of course, but the Law seems to be rather harsh upon a husband, inasmuch as it no longer allows him to touch his dearly beloved’s bank balance, but he is still liable to pay if his wife goes trespassing and the injured person chooses to sue him for damages.

For what can the poor husband do? He can tell his wife not to go letting her hens into the next garden, and not to slap her neighbour’s child, and not to tell the lady opposite that the next-door lady—well, I won’t repeat it. But if she does not obey, he cannot lock her up, or chastise her, or bind her over to keep the peace; he can only wait until damages are claimed, and pay. Here is a case, then, where the Law is rather hard on Man.

The result of all this seems to be that although the Law has treated Woman the Wrong-doer harshly and unfairly in the past, the tendency of modern times is towards more equality and less brutality. The Criminal Law should be no respecter of persons, and the same crime should bring the same punishment, be the criminal Man or Woman.

The woman wrong-doer seems to me, too, to have a grievance in the fact that under our Law she is arrested by a male policeman, represented if at all by a male advocate, tried by a male jury and sentenced by a male Judge. We shall be called upon to alter this state of things before long, and already there is a [Pg 103]public demand for women to be appointed to some police duties. Other countries have already seen the value of women police in the prevention of much minor and juvenile crime by women. In crime it is certainly the first step that is fatal; once that is taken the volplane into hell is a simple and easy business. Women police might do good work among young women wrong-doers.

Our Police Courts, especially in urban centres where they are governed by Stipendiary Magistrates, have made great strides in humanity and much good work is done by devoted women who do the good work of the Police Court Missions. But it seems to me that the authorities ought to watch more closely what is being done on the Continent and in America and our Colonies in the way of investing women with official power to deal with criminal cases.

In some American towns there are women police constables who patrol the parks and have the right of entry into places of amusement and assist in the guardianship of the streets, and we have the official assurance of a Chief Constable—of Irish origin we may suppose—who says “That the best man in the Denver police force happens to be a woman.”

In South Australia they have gone the length of raising four women to the rank of Justices of the Peace, giving them all the powers possessed by the men Magistrates, and in other Australian countries there are already women police.

These experiments all prove that the idea is not a visionary one, and in so far as it has been tested it [Pg 104]seems to work well. In dealing with Woman as a wrong-doer, especially in the cases of young women and children, no one can doubt that a woman magistrate assisted by women police would have a better chance of achieving prevention and reform than the best understudies of Grummer and Mr. Nupkins who adorn our local police courts.

One of the reasons why the schools and professions of Law should be open to women is because, as we have already found in the case of Medicine, there are special offices in the State which can only be adequately filled by a woman. One of these is undoubtedly the position of Stipendiary Magistrate in a city court devoted to the cases of wrong-doers who are women or young children.

John Tobin, The Honeymoon, Act ii, Sc. 1.

Wherever there has been in the history of the world a community governed by Law, you will find the Law endeavouring to protect Woman from the machinations and allurements of Vice.

In the early ages these laws were made to oppose brute force and to restrain violence. Later on, when civilization and better manners, in alliance with Law, seemed to have gained some victory over mere brutishness, there still remained the harder task of overcoming the subtleties of fraud.

The complete protection of women and young girls from their own foolishness and the wiles of deceitful men will only be attained in Utopia, but at all events, in regard to youth, it is good to record that a far higher standard of moral conduct is now demanded from both Man and Woman than that which was current a hundred years ago, and modern public opinion has encouraged the Law to seek wide powers [Pg 106]and enforce stern measures on those who go about seeking to ensnare the young and ignorant.

In the civil codes of many countries seduction is an offence against the Law, and no doubt this in itself is a great protection to Woman, though it may lead to cases of blackmail and other evils. Crime is often a matter of geography. Under the Indian Penal Code, Section 497, for instance, we ourselves treat adultery as a crime punishable by fine and imprisonment for five years; here in Britain adultery is a non-criminal sin, like covetousness or gluttony, with which the police have no concern.

It is necessary to understand the outlook of the English Common Law in the matter of seduction, because it is, I believe, through the modifications and amendment of that law that better protection for Woman will be reached.

The Law is not wholly illogical. To constitute a public crime or private injury in the eye of the Law, there must be something done in the nature of a trespass, and it must be committed against the will of the party who is injured. As old Blackstone puts it:

“Our English Law does not entertain quite such sublime ideas of the honour of either sex as to lay the blame of a mutual fault upon one of the transgressors only.”

The Law resents the idea of A consenting to a mutual act with B, and afterwards claiming damages from him in relation to it.

The justice of reform lies in a little matter that Blackstone and the pundits seem to have overlooked. [Pg 107]The mutual act of A and B has not mutual results, and since A has to bear the burden of her act in body, mind, and reputation, B might well be asked to come forward with some contribution from his pocket to lighten the result of a condition of things for which he is at least equally responsible.

There was very little protection for Woman in the spacious days of Merrie England. The bashful young maiden of any age above twelve had absolute liberty to run away and get married to the most approximate man in the street.

Naturally, it was the rich and well-to-do who suffered under such a state of the Law, for there were plenty of gay young adventurers and rascals, like Mr. Jingle, who were only too ready to woo the unsuspecting heiress over the wall of the school garden.

But the Law soon gets busy to protect the rich, and one of the earliest statutes passed to put an end to the abduction of heiresses was in the reign of Henry VII. This was amended and enlarged in the days of Philip and Mary by what my Lord Coke called “a good and profitable statute” which strove to hinder maidens and women, children of gentlemen, being cruelly allured by flattery, trifling gifts and false promises to contract matrimony with light and unworthy personages.

Note that the crime is abducting a wealthy girl; the offence was really one against the property rather than the person. But it was a serious affair; it was a felony punishable by death, and so it remained until 1820, when it was reduced to a seven years matter.

[Pg 108]

There are many romantic stories of prosecutions and executions under these Acts. The interest in them for us to-day is to remember that if Woman is well-to-do, there is plenty of precedent for her protection from seduction, and that if it was ever “good and profitable” that a man should pay for seduction with his life, it might well be reasonable to consider why he should not be called upon for pecuniary compensation in every ordinary case.

The statutory history of the Law for protection of women is typically English. Long before you have finished reading it your ears will weary of the constant refrain, “Property! Property! Property!”

Peel discovered in 1828 that the crime of abduction extended only to heiresses of land, and thought it really time that heiresses of wealth in the public funds should also be protected. To no one does it seem to have occurred that Woman herself was a form of national property better worthy of protection than either funds or land.

It was in the reign of good Queen Victoria, the birth era and golden age of social movement, that the matter of the better protection of Woman came to the front. A society was formed called the Associate Institution for Improving and Enforcing the Protection of Women. It started work in the forties, and I take pride in remembering that its first secretary was my father, John Humffreys Parry, then a leading junior at the Bar.

Their work was not sensational. There were no highly-coloured tracts about the White Slave Traffic, [Pg 109]but there was a great deal of study and publication of the actual legal position that existed, and drafting of Bills, and bringing them before the Houses of Parliament.

When you remember that this Society brought forward the first Bill for the Protection of Women and Children in 1844, and that until that date Parliament had never even discussed the question from a social and moral point of view, you must acknowledge our social indebtedness to its labours.

Of course, the original Bill had to be withdrawn and new Bills were brought forward by the Government, and at last one of these reached the Statute Book in 1848, when the first step was taken by the English Law to protect women and children from being lured into evil by fraud and deceit. Since that day many new criminal laws have been passed strengthening the hands of the police, and our code in this respect is not one to be ashamed of.

Doubtless the Law can be strengthened for the protection of young girls, but it must be done without excitement and after the most careful discussion of wise men and women cognisant of the facts and difficulties of the matter and untrammelled by preconceived social and religious creeds. The test of any amendments of the Law would seem to be these. Do they strike at the liberty of Woman? Do they treat Man and Woman with equality? Do they tend to place innocent or foolish persons at the mercy of the blackmailer?

The average Man in the Street will probably do more [Pg 110]good in attacking the smaller matters which, after all, are at the root of the trouble. The economic position of Woman is undoubtedly at the bottom of a great deal of the trouble. With good wages, a better education and a brighter social life, many girls would never fall into the class of company that ultimately leads to disaster. The best of good work is done by those who have time and capacity to run clubs for working girls and keep them bright, cheerful and free from unnecessary limitations.

The housing question is another matter where the average citizen can bring his influence to bear, and this is a vital matter in social morals as it is in nearly all the affairs of life. With bad overcrowded houses no home life is possible, and the want of home life of necessity drives the younger generation into the miscellaneous society of the streets.

The English Sunday with its half empty churches, its absence of all rational entertainment and amusement bringing about the enforced idleness of young people without home, club or any centre of decent social companionship, has a great deal to answer for. Idleness and opportunity whet Satan’s appetite for mischief, and except for the rich our Sunday, especially in the big towns, is not so much a day of rest as a day of idleness.

These are matters where social ideals will have to be reformed before any change in the law can usefully be made, but it would be easy to amend our law relating to seduction without upsetting any old world moral susceptibilities.

[Pg 111]

As I have already pointed out, a woman has no right of action against her seducer, but there is a right of action arising out of seduction. It is the right of the father of the girl to an action for what is called “loss of service.”

The Law does not give the father any right because he is a father, but because he is a master, and his daughter is his servant, and he has lost material service for which he can have money compensation.

Poor Mr. Grinnell, at Gloucester Assizes in 1844, got a verdict of £200 against his daughter’s seducer, but they brought him up to London on Appeal, and he found it was of no use to him, for his counsel had omitted to claim what was not true, that his daughter was his servant, and they had set out what was true, that he had expended money and incurred debts in his daughter’s sickness—she was only fourteen, poor child—and that she had been and still was unable to work and earn her living. But all this was useless without some proof of “service,” though little or nothing of service is sufficient to win a verdict.

Indeed, a learned lawyer has said in relation to this very case that the Law gives a right of action to a rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers. Such is the Gamble of the Law.

The peculiar incompetence and stupidity of the Law is manifest in cases where a girl is seduced by her own master. Here she is often returned on her father’s hands, and he has no remedy unless he can prove to [Pg 112]the satisfaction of a jury that the master in giving the girl employment intended from the first to seduce her. Even then he must also satisfy the jury that he had in some way or other lost his daughter’s services, which, if she is a girl going from one place to another, is hard to do.

Looking at the matter dispassionately, what ought to be done?

We are not to-day, I think, much overpowered by the Blackstonian argument that if A and B do a mutual Act, B should not be made to pay money to A in compensation for the results of it.

That principle has been knocked on the head by the Workmen’s Compensation Act. B, the employer, is made to pay A, the workman, compensation for injuries sustained by him which are in no way due to B’s wrongdoing. It has been settled that it is public policy to make B pay.

If we recognize that it is public policy to make a seducer pay compensation to the woman seduced, if we put seduction of a woman on a similar legal basis to an accident arising out of and in the course of the employment of a man, it would be easy to frame a scheme of social justice dealing sensibly with the matter.

The two objects to be kept in view should be first to provide care and attention for the woman, and ultimately to place her in work and beyond temptation of other evil—this point is very important, as, for want of a second chance, many women go but too easily from bad to worse. Secondly, the form of action [Pg 113]should be so arranged that it could not be used against a man for the purpose of blackmail.

I should, therefore, abolish the action by the father, and give an action direct to the girl to be used if she be under twenty-one in conjunction with her father or other next friend. The action should be brought in the County Court.

The utmost sum to be recoverable should be £150, and whatever was recovered should be paid into court and administered for the benefit of the Woman and the child by the Court. The right to alimony for the child, now recoverable by affiliation order, should still remain, and a duty should be cast upon the County Court to collect this money—often a difficult task—and administer it.

Furthermore, we should adopt a provision which is working well in New South Wales, where in the interests of the next generation a man who has made no provision for the expenses of the birth of his child can be brought before the Court and made to deposit a sum of not more than £20 for preliminary expenses.

In all affiliation cases the provision of a lump sum in Court where attainable would be a great safeguard to the woman and child.

These perhaps are not heroic measures, but I believe they contain a practical business proposition worthy of consideration.

The Bishop of Exeter, speaking in 1844 on this subject in the House of Lords, eloquently declared that “Of all the followers of Satan—of all the ministers of Satan—there were none so thoroughly satanical as [Pg 114]the seducer,” and then went on to regret that it was impossible to frame laws to reach him.

For my part, I throw no stones at seducers or any other brother sinners, but as a practical man I do really believe that a short Statute on the lines I have indicated would cause the seducer even more discouragement and annoyance than all the episcopal censures in the world.

The Princess, Tennyson.

The simple reason why the Law should be amended to give Woman full rights of citizenship is best stated in the homely saying that “two heads are better than one.”

In the dark ages this maxim did not apply, for learned Man doubted whether Woman had a head in any but a physical sense, and the early celibate theologians went so far as to deny her a soul, regarding her with dread as a noxious animal.

Remembering these ancient beliefs a French satirist of the eighteenth century solemnly proclaimed his “Plan for a Law prohibiting the Alphabet to Women,” and small wonder that many good simple people took him quite seriously, which is the nasty way your dull world has of crabbing the humorist. For until [Pg 116]quite modern days we were all Chinese in our outlook on the Woman question, holding it to be an unanswerable article of faith that “for men to cultivate virtue is knowledge; for women to renounce knowledge is virtue.”

But once Woman has eaten of the Tree of Knowledge who can forbid her the right to use her knowledge for the benefit of the human race? A woman, like any other human being, may do far more harm by dropping a letter into a pillar box than by placing a voting paper in a ballot box. The Frenchman was right. The mistake that the Chinese and the early Fathers had so clearly warned us against has been made. We should never have taught Woman the Alphabet. That, in the thoughtful phrase of modern slang, has “torn it,” and having torn up the old heathen ideal of womanhood let us by all means put the remnants in the fire of forgetfulness and have done with them.

An educated woman will naturally expect a better fortune in life than to “suckle fools and chronicle small beer.” Man in a minority has always preached to his discontented disciples that the cure-all for political evils is the vote, and how can he with any self-respect ask Woman to believe that all the time he has been talking to the poor and down-trodden with his tongue in his cheek. If we have upheld the suffrage as a way out of all evil for the slave, the serf, the conquered nation and the submerged tenth of our own male citizens, it is pure cant to tell Woman that it will not help her to realize her ideals.

For my part, though I recognize the elementary [Pg 117]right in every citizen to share in choosing those who make the laws so that he may have some small voice in preventing unjust and socially injurious laws being passed, yet I do not think any new and beautiful world is going to be created even by a new and more beautiful electorate.

It is the inherent justice in Woman’s demand that attracts me, and not any hope or belief that much immediate reform will come of it.

On the contrary, many of the things I care about would probably receive scant support from the first generation of women voters. When you deny rights to any body of citizens they are ardent progressives and march in the ranks of radicals and reformers, but they are generally reactionary at heart. The Catholics and the Jews have proved this in the past, and any old electioneering hand who knows the country will tell you that there are thirty Welsh constituencies waiting for the disestablishment of the Welsh Church to vote Conservative.

The philosopher tells us that there must be a new world if there is to be any world at all, but history does not encourage the belief that it will be made by the votes or hands or even the brains of the “Six hundred and fifty-eight miscellaneous persons set to consult about ‘business,’ with twenty-seven millions, mostly fools, assiduously listening to them.” On the contrary, for any real progress we shall have to look for individual personal improvement in actions and ideals, upon which the power to vote has very little influence. You cannot follow the excellent prescription of the Psalmist [Pg 118]for the betterment of the world and renew a right spirit within yourself merely by voting for the kind of being that wants to get into Parliament.

But this does not belittle the right of Woman to her place in the sun of citizenship. John Morley used to say that every public reform went through three stages, neglect, epigram and the guillotine; then came universal acceptance. I think in our sensible English way the question of Woman’s citizenship is rapidly approaching the final stage of universal acceptance which we may hope to achieve without the guillotine.

Nor ought the supporters of the movement to grumble at the pace at which it has progressed. At the beginning of last century the idea of citizenship in relation to Woman was hardly thought of in Western Europe and was quite unknown in this country.

It was true that a woman might be a churchwarden or a sexton, or even, I believe, a surveyor of highways, not to mention a reigning Sovereign, but these offices were not suited to every woman’s taste. The main avenues of a citizen’s life were closed to Woman by Law.

It was the French Revolution that swept away the cobwebs of custom which obscured society’s outlook on the world, and encouraged Woman to demand a citizen’s share in the rule, supremacy and sway which she had long considered entirely beyond her reach.

For centuries Woman had stood aloof from affairs of government and the Law, but all this came to an end in the early days of the Revolution, when starvation [Pg 119]stalked through the squalid Paris garrets, and in Carlyle’s pithy phrase: “On Monday morning maternity awoke to hear children weeping for bread.”

That was the end of it. The Law which Woman had stared at from afar with superstitious veneration was a discredited failure. There before their mother’s eyes were starving children. If laggard Man with all the resources of the Law could handle the affairs of the world no better than this the hour had surely struck for Woman to take up the burden.

It is no sooner thought than done. In a flash the idea seizes all the women of Paris. A young girl catches up a drum and sets forth beating it with loud deliberation, a universal press of women following her, until there are some ten thousand Judiths clamouring at the doors of the Hôtel de Ville and threatening it with fire.

Of a sudden Woman of the Western world had made up her mind to commence citizen. This was the first act of her insurrection, and the end of the play will scarcely be reached in our lifetime.

What may be called the Petruchio sculpture of womanhood utterly perished on that memorable Monday morning in Paris, and all the king’s horses and all the king’s men were entirely incapable of picking up the pieces and restoring the idol of their worship to its former subordinate position.

As long as we live in the world without thinking about it, as most of us do, whatever is going on around us seems naturally right and proper. The legal [Pg 120]subordination of one sex to the other has not worked so very badly because man, being in the main a reasonable, well-disposed sort of animal, has seldom claimed to make full use of his so-called legal rights.

If this principle of legal subjection were changed to a legal principle of perfect equality, allowing no power or privilege on the one side, nor disability on the other, it would probably affect the lives of most men and women very slightly. Moreover, when we had lived side by side with such a condition of Law for a few generations, we should be wondering how our dear old ancestors got along in the barbarous days of the early twentieth century.

It was only a few years ago that both education and physical exercise for women were thought to be not only unnecessary, but positively harmful. The general opinion seems to have been that the care and solicitude which a mother feels for her children depended directly on her ignorance of Greek and Latin, and that she would desert an infant for a quadratic equation.

Who to-day would close our High Schools and Women’s Colleges and shut the gates of our tennis lawns and golf links against lady members?

Our forefathers were just as absurd and inconsistent as we are, for rich women were always permitted to ride horses for pleasure and exercise, and poor women to work in coal-mines, at a time when most English middle-class girls were decreed to spend their girlhood in a common round of petty, frivolous, and “lady-like” occupations.

Our fathers and mothers, and more especially our [Pg 121]grandmothers, were always prophesying red ruin if the young person were allowed to read the literature of the world and walk about without a chaperon. Their dreams of evil, like all such dreams, sound very foolish in the morning light of to-day.

Let us bear all this in mind when we are pondering over the troubled questions that surround us at this present. Any one can sit in an arm-chair in the club and join in the chorus of middle-aged Jeremiahs who never tire of chanting their dirges about the evil tendency of the age. No question was ever settled in that way, and Woman is quite unlikely nowadays to accept any final Law as to her citizenship from any gathering of superior persons of ancient and fish-like political principles. The business has got to be discussed on new lines by newer and younger people. I fancy the next generation will want to have less Law and more Liberty.

I have pointed out more than once in these papers that to make unnecessary laws forbidding people to do things is a great source of trouble in the world.

I suppose every one will agree that there is no necessity to make laws to forbid women to do what Nature has rendered it impossible they should do. Reckless lecturers tell you Woman is incapable of political understanding. If so, we must admit that no amount of legislation will make her acquire the faculty, whatever it may be.

But do we really believe that Woman is less capable of sane and honest political action than the average [Pg 122]Man in the Street who goes to the poll? The fact is that until we experiment in the matter it is folly to dogmatise on the question whether, if we open the door to women citizens, they will be found capable or incapable of representing their own and their country’s interests.

A very little while ago in the history of the world it appeared absurd in Court circles to suggest that a country could be properly governed except by a particular breed of royal person dressed in ermine and wearing a crown and carrying a sceptre.

The idea that it could be equally well done by any old boy in a top hat and frock coat whose presidential ticket had caught on with the public fancy would have appeared in mediæval times as an insanity. Charles I was no fool, but I doubt if any University professor who ever lived could have explained to his Royal Highness the true inwardness of the Sovereign power of George Washington.

If, therefore, the principle of the open door in the question of Woman’s citizenship seems to some of us a strange one, it is probably only because we have got into a habit of thinking the world around us is more or less as good as it is possible to be.

In the case of election to public offices should Woman take any part? Clearly these matters touch her life and her interest, and it would seem just that she should have a say in them.

Try to imagine meeting a Messenger from Mars and asking him what he thought about it. “Ah,” he would say, “I see you allow Woman no voice in [Pg 123]choosing her governors. How wise, how sane! To what department, then, in your government belongs that difficult task of choosing the Woman’s husband?”

Of course, you explain to Mr. Mars that a woman chooses her own husband. But how are you to explain to his dense astronomical mind that it is a wise and sane thing to allow a woman by her sole casting vote to choose her own Lord and Governor, the father of future citizens, the ruler of the family, and having given her this monstrous and terrible power, to deny her the trumpery gratification of voting for a middle-aged gentleman to be one of many hundred others who exercise very little practical control of the affairs of the nation?

Now to us there is nothing Gilbertian in allowing a woman to elect her own husband, yet what an absurd idea it seems if you give it serious and unbiassed consideration. I suspect we acquiesce in it either because we have been duly elected to a satisfactory post, or live in hopes of drawing a prize in the lottery.

But when I hear Jeremiah groaning about the inherent incapacity of Woman to exercise a vote, I often feel that we shall have to adopt something like the Martian Marriage Act. For my friend from Mars tells me that in his planet husbands are assigned to wives by the Board of Trade Allotment Department, which if it is anything like our Board of Trade must be very satisfactory to everybody.

There are some worthy enthusiasts who tell you that if you grant the rights of Citizenship to Woman [Pg 124]there will be a tremendous alteration in her manners and customs. Her passion for dress and things that are both beautiful and expensive will disappear in her interest in Blue Books, and mischievous luxury will be subordinated to political economy. Candidly I believe this as little as I believe the other side of the matter, that the result will be a campaign of united Woman to domineer over and displace discredited Man.

The fact is that there is no great evidence in the history of franchises that they ever had any very serious and certainly no very sudden moral effect on human character.

If I were enfranchising the beings of my garden I should not expect that if I gave a vote to a butterfly it would adopt a grey moth-like demeanour and walk seriously about the gravel paths on its hind legs.

But you say triumphantly, Why give a vote to a butterfly? To which I reply that in my garden I act on principle—the principle of equality—and I cannot deny to the butterfly the vote that I have already given to the slug and the snail.

Ultimately we shall no doubt have a universal suffrage of both sexes, and I expect Woman will make a peculiarly free and independent voter. I do not expect she will vote as a class, because I firmly believe with Gilbert that every little boy or girl is either a little Liberal or else a little Conservative, and will vote accordingly.

Franchises have never been fruitful of reform, and we need not hope to make a new world out of a Woman’s [Pg 125]vote. The reason for granting citizenship to Woman is the selfish and sensible one that it is good business to make use of every human power for improvement that the State possesses.

Woman is “some” power.