The Marriage Laws of England
June 29, 1899 — Industrial and Legislative Section, International Congress of Women, London, England
I well remember that, early in the year 1867, when a few of us were contemplating Parliamentary action for the amendment of the law relating to the property of married women, I received from Mr John Stuart Mill (who had given his name to our General Committee) an important communication, urging the propriety of beginning our efforts by seeking the overthrow of the sex-dominion of the husband in marriage. For various reasons this seemed impracticable at the time, chiefly, as I recollect, because it was felt that the time was fully ripe for the lesser reform, whilst men and women alike then needed educating and preparing for the vital change indicated by Mr Mill. If to-day I urge the consideration by women of this evil, it is because I hold that the conditions of to-day have made this far-reaching reform both necessary and possible as “the next great step in the evolutionary progress of the race.
Two years later, in his book, The Subjection of Women, Mr Mill, speaking of the sex slavery of the English wife, declared :—
“However brutal a tyrant she may unfortunately be chained to — though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him, he can claim from her and enforce the lowest degradation of a human being — that of being made the instrument of an animal function contrary to her inclinations.”
Some of us thought at the time that this was an over-statement of the case, and lawyers of eminence, notably the late Mr Justice Stephen, in his Digest of the Criminal Law, have questioned the legal validity of this doctrine.
The doctrine, as stated in the words of Judge Hale himself, upon whose solitary dictum alone it rests, is this: —
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contact the wife hath “given herself up in this kind unto her husband, which she cannot retract.”
Sir James Stephen’s comment upon this is; —
“Hale’s reason is that the wife’s consent at marriage is irrevocable. Surely, however, the consent is confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted of rape, notwithstanding Lord Hale’s dictum.”
So doubtful in fact did it seem that this was the law of England that the eminent judges, whose labours resulted in the Criminal Code Bill, 1878, proposed to make it law by Section 165 of that measure, which defined rape as the “act of a man, not under the age of fourteen years, having carnal knowledge of a woman, who is not his wife, without her consent; providing further “That a husband cannot commit rape upon his wife by carnally knowing her himself.” The Criminal Code Bill did not become law. Unhappily we can no longer doubt that the marriage law of England in this regard is today as unjust, cruel and infamous as was indicated by Mr Mill.
This has been brought about, not by statutory enactment, well-considered or otherwise, but by the declaration of the judges, made in the case Regina v. Clarence, The prisoner Clarence was charged, in one count, with unlawfully and maliciously inflicting grievous bodily harm upon his wife, Selina Clarence; and, in another count, with assaulting her, occasioning actual bodily harm. The evidence showed that the prisoner was aware of his suffering at the time from disease, and that she was not aware of it. The jury found the prisoner guilty on both counts. For the prisoner it was urged that “the conviction was contrary to the authorities, whilst for the prosecution other authorities were cited on the other side. It was finally held by the majority of the judges that the conviction under either section could not be supported. The conviction was therefore quashed. Those who wish to understand in its full degradation the actual character of the law of England at the present time respecting the relation of marriage ought to study this case with the greatest care.^ Its bearing, however, upon the marriage relation is not to be measured by the actual decision, but by the statements of the several judges, in which all of them implicitly concurred^ as to the legal position of a husband in relation to a wife.”
“Mr Justice Smith affirms: —
“At marriage the wife consents to the husband’s exercising the marital right. The consent then given is not confined to a husband when sane in body, for I suppose no one would assert that a husband was guilty of an offence because he exercised such right when afflicted with some complaint of which he was then ignorant. Until the consent given at marriage be revoked, how can it be said that the husband, in exercising his marital right, has assaulted the wife?”
Mr Justice Stephen, at the end of a very lengthy argument, declares: —
“I wish to observe, on a matter personal to myself, that I was quoted as having said, in my Digest of the Criminal Law, that I thought a husband might, under certain circumstances, be indicted for rape on his wife. I did say so in the first edition, but, on referring to the last edition, it will be found that that statement was withdrawn.”
Such then is the existing marriage law of England — modified only by the fact that, since the passing of the Matrimonial Causes Act, 1884, the wife who refuses to obey a decree for the restitution of conjugal rights will not be imprisoned by any Court, nor, since the decision in the Clitheroe case, 1891, will the husband be permitted to seize and restrain of her liberty a wife who refuses to live with him. But so long as a wife continues to live under the roof of her husband this law takes effect in all its brutality.
I denounce this infamy in the name of the wife, the mother, the child, the race, and the higher humanity to which we aspire.
The wife. Can any other slavery equal this slavery ? The female slave, who refused to submit to outrage at the hands of her master would, at least in any Christian country, be held justified. Even the poor outcasts of our streets, much as they suffer “at the hands of a false and cruel civilisation, are protected by law from such an outrage. I affirm, with Mr Mill, that ” The time will come when it will be recognised that of all the superstitions that ever existed, the most barbarous was the idea that one individual could, under any circumstances, have a right to the person of another.” Yet this “most barbarous superstition” is actually embodied in and promulgated by the marriage law of England at this hour. And so long as this remains the case the legal position of the English wife living with her husband is that of the most degraded slavery. That no humane^ or decent man could be capable of enforcing his legal rights is no excuse whatever for the continuance of our unjust and most immoral law; rather should the law at once be brought up to the level of the practice of men possessed of heart and conscience. For many men are still base “enough, inhuman enough, to use to the utmost the iniquitous prerogative conferred upon them. Only those who are constantly called to help and advise suffering wives can know what unspeakable infamies are sometimes hidden by the veil of legal marriage.
An enforced maternity is a crime against the mother. She who bears the burden of maternity should be a free, purposeful, loving mother, and not the abject slave of the lowest appetites of the mere animal man.
A coerced maternity is a crime against the child, whose first right it is to be “well-born,” and no child born of compelled motherhood can be well-born. The offspring of uncontrolled and selfish lust on the one side, and abject subservience on the other, is ill-born, no matter upon what external prosperity“ it may be ushered.
It is a crime against the race. In both England and America public attention has at last been directed to the vast array of defective and undeveloped children. Of America, Mrs [Helen Hamilton] Gardener says: —
“We begin to wonder that man has been so slow in learning to read the message that Nature has telegraphed to him in letters of fire, and photographed with a terrible persistency upon the distorted, diseased bodies and minds of his children, and upon the moral imbeciles she has set before him as an answer to his message of sex domination. Do you know that there is an army of 700,000 defectives in this country? Don’t you know that this means something to every mother in the world? Seven hundred thousand forced into life without their birthright! Seven hundred thousand imbecile, “insane, deaf, dumb, blind and criminal victims of maternal and paternal ignorance! Stop and think of it.”
It is a crime against the higher humanity, since, as Mrs Gardener most justly says, —
“Subject mothers never did, and subject mothers never will, produce a race of free, well-poised, liberty-loving, justice-practising children. Maternity is an awful power. It blindly strikes back at injustice with a force that is a fearful menace to mankind. And the race which is born of mothers who are harassed, bullied, subordinated, or made the victims of blind passion or power, or of mothers who are simply too petty and self-debased to feel their subject status, cannot fail to continue to give the horrible spectacles we have always had of war, of crime, of vice, of trickery, of double-dealing, of pretence, of lying, of arrogance, of subserviency, of incompetence, of brutality, and alas! of insanity, idiocy, and disease added to a fearful and unnecessary mortality.
To women — educated, thoughtful, purposeful women — I appeal to put an end to this crime by putting an end to sex dominion and to sex slavery.
Source: Women in Industrial Life, The Transactions of the Industrial and Legislative Section of The International Congress of Women, London, July 1899 (London: T. Fisher Unwin), 1900, pp. 115-119.