Conjugal rights

“ It cannot enforce conjugal rights. Therefore it cannot divorce two spouses. They divorce themselves. The state can say what civil and property right shall be affected by the divorce, and how the force of the state shall enforce the consequences. The marriage relation is domestic and private, where the wills of the individuals prevail and where the police cannot act. ”

“ There existed no adequate provision for enforcing the father's performance of either conjugal or parental obligations, and the result has been the development of two bodies of legislative change. One of these has granted to the wife certain rights as against the husband, on the theory that the wife retains her separate existence after marriage and should retain rights of individual action. The other body of statutes imposes on the man the duty of support, making abandonment or refusal to support punishable by fine or imprisonment, or both. ”

“ All their gallant sympathy and protection explodes, when the angel they worship so far condescends to come down to the plane of mortals as to become a wife.
Admitting that it does not come within the scope of the law to regulate the marriage institution, which is the province of a higher tribunal, the conscience and the affections, it is the true province of legislation to recognize the equal rights of both sexes in entering into the relation, thus removing a great source of selfish motives in the thirst for gain and love of power. ”

“ There should be some uniformity of law, as to marriage contract and its dissolution by divorce, in the different States. Another practical consideration is this: women must be prepared to assume personal responsibilities as they attain personal rights. No State Legislature has said "Go to, let us make the married woman the legal equal of her husband," but legislation has pointed in that direction more and more during these last years, so pregnant of changes in her position. ”

“ The state, indeed, is generally obliged to grant a divorce to the wife, if she insists upon it. The female sex must be favored by the law to this extent, for the reason that, although the suit of the wife may prove nothing against the husband, it proves, at least, the absence of love in her, and no woman should be forced to give herself up without love. ”

“ It is said that there must be some one supreme authority; but this depends on the view taken of marriage. Under the old Common Law, the personality of the wife was merged completely in that of her husband; marriage was an absolute despotism. Under the Canon Law, woman is man's obedient and unquestioning subject; marriage is a benevolent despotism. To-day people are more inclined to look upon matrimony as a partnership of equal duties, rights, and privileges. ”

“ Or let us assume that the husband sues for divorce on the plea that his wife does not love him. If she admits the plea, the state must grant the divorce; for love only is the ground of a legal marriage, and where there is no love the relation is merely a concubinage. What reasons could a woman have, indeed, to continue to live with a man whom she confessedly did not love? These reasons could only be of an external character, and the man can not allow himself to be made their tool. ”

“ So, in case where the marital fails, she can have legal protection, while married as well as when single. Then when your darling daughter is called to exchange the paternal protection for the marital, she will not be obliged to alienate her right to governmental protection by this exchange of her natural protectors, but she, the tenderest and the best, can then claim of her government, [Pg 8] while a married woman, the same protection of her rights as a woman, which your sons now claim as men. ”

“ Their relation becomes reversed. The woman becomes the generous, and the husband the submissive party. This is, indeed, shown in common experiences. A wife who knows and tolerates the dissipations of her husband is not despised, but, on the contrary, is held all the more in esteem the gentler and wiser she bears it. The presupposition is, therefore, that she ought not to seek legal redress. Whence does this opinion rise, which is so deeply rooted in men's souls? From our legislation, or from our own sex? It seems not, since it exists also among the women, who complain about that legislation. ”

“ Thus that marriage should only be lawful with one wife, that it should be for life, that it should be terminable by the infidelity of either husband or wife, are rules of right; not of morality, as such, but of right. Without such rules the rights of the married persons are not maintained. Those outward conditions of family life would not be secured to them, which are necessary on the whole for the development of a free morality. ”

“ It is certainly to be expected in the case of the man, provided he marries a worthy woman; but in the case of the woman it is very uncertain; and it is terrible to sacrifice and degrade a whole human life upon the risk of this bare possibility.
The result of our argument is, that marriage must be an absolutely free act; and the state, as the protector of the rights of each individual, and particularly of the female sex, has the right and the duty to watch over this freedom of all matrimonial alliances. ”

“ As under the Mosaic law, these causes were invented only for the advantage of the husband. A wife had no right even to desire a divorce from her husband.
An examination of the seven causes shows that a woman could be divorced practically at her husband’s pleasure. The New Civil Code has changed all this. A wife has equal rights with her husband to the benefits of the divorce law. ”

“ For the sake of wives, as well as of husbands, this irresponsibility should be put an end to, for if a husband is to be held accountable for his wife's misdeeds and debts, it is impossible for the law to refuse him control over her actions; freedom and responsibility must go hand in hand, and women who obtain the rights of freedom must accept the duties of responsibility.
A woman has a legal claim on her husband for the necessaries of life, and a man may be compelled to support his wife. ”

“ The conception of marriage involves, that the woman who surrenders her personality shall at the same time surrender the possession of all her property and her exclusive rights in the state. The state, in recognizing the marriage, recognizes and guarantees the possessions of the wife to the husband; that is, not as against the claims of the wife, for a law dispute with her is impossible, under our presupposition, but against the claims and attacks of all other citizens. ”

“ This jurisdiction of the state over the freedom of all marriages involves, that the state must recognize and confirm all marriages of its citizens.
Every marriage must have legal validity, that is, it must not infringe upon the rights of the woman, who must give herself up with her free will, and from love. A citizen must be obliged to prove this to the state, unless he wishes to render himself suspicious of having used violence. This proof he can not well furnish otherwise than by causing the woman to declare the marriage to be her own free will before the law. ”

“ Women soon grew to value their freedom too highly to enter it; as early as 23 A.D. the Senate had to relax some of the rigour of the old laws on the matter as a special inducement for women to consent to enter this union. [102]
We may now observe what became of the wife's property after divorce and what her rights were under such circumstances. If it was the husband who had taken the initiative and had sent his wife a divorce, and if the divorce was not the fault of the woman, she at once had an action in law for complete recovery of her dowry ”

“ But with us in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband, or, 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 exert their ancient privilege; and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour. ”

“ Let us assume the case of a husband suing for civil divorce on account of the adultery of his wife. According to the above, it is against the honor of the man to keep up his relation with her; indeed this relation is no longer a marriage, but a concubinage. But the state can not force a person to do any thing against his honor and moral feelings. It is, therefore, the duty of the state in this case to rid the husband of his wife. What reasons, indeed, could the wife have to desire the continuance of this relation? Love is not to be presumed in her ”

“ There is, secondly, the legal standard, for which men and women have not equal rights, but which, in the marriage and divorce laws, accords to woman an inferior position—which takes no cognizance of immorality between unmarried persons unless children result and which, in England as distinguished from Scotland, attaches no penalties to infidelity on the part of a husband. ”

“ The legal position of married women to-day represents as many different views of woman's legal rights in marriage as there are States in our Union. But all those States recognize that she has some rights of independent action, not only when her husband is bad or imbecile, but when he is good or competent. The confusing varieties of legislation on this point make summarizing extremely difficult. No generally received principle respecting the just legal relation between husband and wife has controlled the sweeping changes which the legislation of the last thirty years records. ”

“ But no rational woman can give such a promise, nor can the state rationally accept it. For woman is destined to love, and love comes to women of itself—does not depend upon her free will. But when she loves, it is her duty to marry, and the state must not form an obstacle to this duty. Now, if a woman, holding a public office, were to marry, two cases are possible. Firstly, she might not subject herself to her husband so far as her official duties were concerned. But this is utterly against female dignity; for she can not say then, that she has given herself up wholly to the husband. ”

“ While separation from bed and board—the only form of divorce obtainable in the state—"is a judicial barrier to any attempt to exercise the rights or enforce the duties of the parties affected by the judgment, yet the courts are only too willing to have the parties restored to their original status quo, upon good cause shown. While the remedy is a hard one, and to a certain extent interferes with the operation of the laws of nature, still woman must be protected! After all, an unbending adhesion to the laws of right living has a healthy effect upon the lives of others. ”

“ It is considered necessary not only to make very formal provision for the personal welfare and comfort of the wife during her married life, and during her widowhood in case of the death of her husband, but also to settle beforehand the questions of succession which might arise out of the marriage, and to define precisely the rights and powers both of the husband and the wife, in the two countries to which they respectively belong. ”

“ The Mohammedan women have a legal supporter of their demands in Kassim Amin Bey, counselor of the Court of Appeals in Cairo. In his pamphlet on the woman’s rights question he proposes the following programme:—
Legal prohibition of polygamy.
Woman’s right to file a divorce suit. (Hitherto a woman is divorced if her husband, even without cause, says thee times consecutively “You are divorced.”) ”

“ And since our legislative changes have been, for the most part, attempts to limit the power of abuse of the domestic control vested in the man, rather than efforts to secure the freedom of women from that control by the husband, the result is an inconsistent medley of laws, which at one time recognize the married woman as an independent unit, and at another time as the mere ward of her husband. The great practical need for the parties most interested—thoughtful, intelligent women—is a clear ideal of the just legal relations of men and women. ”

“ It is the necessity incumbent on us in present conditions to save women and children from helplessness, from ruin, and not the nature of marriage, that brought society, which did not wish to be burdened with the care of women and children, to change marriage into an obligatory relationship controlled by law. ”

“ The law of husband and wife, as modified by statute in the course of the nineteenth century, as I have often enough had occasion to point out, is a monument of legalised tyranny over the husband in the interests of the wife. ”

“ Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract pointing in one direction, and social considerations in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords. ”

“ At our recent National Woman's Rights Convention many were surprised to hear Wendell Phillips object to the question of marriage and divorce as irrelevant to our platform. He said: 'We had no right to discuss here any laws or customs but those where inequality existed for the sexes; that the laws on marriage and divorce rested equally on man and woman ”

“ Nor is it at all certain that the granting of individual rights to women would tend to purify sex relations, but it is quite conceivable that the old moral and religious sanctions of marriage may disappear and the State assume the task of caring for all children. It is clear that the rights and duties of women constitute a very serious part of the problem of family life. ”