Saturday, 20 December 2014


(From the Daily News.)

A vast deal of nonsense is being talked and written on the subject of the proposed reform in the laws affecting the property of married women. Blackwood and the Times have already taken up the cry against the movement, each after its kind — the "leading journal" with its usual amount of literary ability, and more than its usual amount of plausible sophistry; the Tory magazine with a rolling fire of hasty platitudes and sonorous verbiage aimed at, and adapted for, the more unimproved order of Conservative intellects. Squires and rectors, who believe in the honourable and learned member for Midhurst as an oracle of law, and Sir Archibald Alison as the hierophant, of philosophic history, may probably run some slight danger of being momentarily misled by the article in question. On no class of readers who have advanced beyond these elements can it produce any effect at all, unless, indeed, it be one contrary to the apparent intention of the writer. It is, indeed, difficult to imagine more comical instances of inaccurate thought than are to be found profusely scattered through the sixteen columns of this remarkable essay. A very few specimens must serve our turn. "Laws governing human nature," we are told, "are only fixed and arbitrary (!) demonstrations of natural rights and necessities." If this be meant, as the context shows it must be, of laws relating, to marriage, they only necessary conclusion is, either that such laws are not "laws governing human nature" (in which, case the passage has no relevancy to the argument), or, if they be, then they are "not a fixed demonstration of natural rights and necessities," the notorious fact being that the laws of marriage, instead of being fixed and immutable, have varied almost infinitely in different countries and at different times. Again, we are told that it is "a mere truism of nature" to assert that man and wife are one person. We are not quite sure that we know what " a truism of nature" means. If, however, this sentence means anything, it would appear to affirm, as an invariable truth, a proposition which is practically contradicted by the melancholy experience of every-day life. The personal unity thus affirmed may be, for aught we know, a "truism of nature ;" but in an age of wife-beating we must hesitate to accept it as a truth of society. A little further on we learn that "marrying is like dying, as distinct, as irrevocable, as complete." The simile strikes us as somewhat unsavoury. It may, however, be very sublime. We only crave leave to carry on the figure and improve the accuracy of the passage by adding that out of this state of connubial death the law of England allows a resurrection, in the shape of divorce, to all those, but to those only, who can afford to spend £1,200 for the privilege. One passage more, and we must however reluctantly, turn from the wisdom of this Northern oracle. The writer is bent on proving that no change in the law is desirable. He seeks to arrive at this conclusion by the very original process of showing that the present law operates quite as harshly on the husband as it does on the wife — a course of reasoning which may concisely be put as follows : — The existing law is bad, therefore no law can be good. "Can the law," he asks — that is the present law—" protect the honest husband's income from the extravagancies of the wasteful wife? Can the man, into whose existence his wife is absorbed, prevent that wife, if she be so minded, from bringing him to ruin ? No. The laws are all in his favour — he is entrenched and built about with legislation, yet he is as completely at tho mercy of the bad wife as a woman is at that of a bad husband." We entirely accept the above as a most accurate statement of the existing condition of things under our present law of husband and wife ; our only difficulty— a difficulty arising no doubt from the obtuseness inseparable from "Cotton and the Almighty Dollar" — is to see how this forcible statement of the admitted mischief of the present law can possibly be employed as an argument against attempting to improve the law. We know that the ladies in their petition adduce this very point as one of the most cogent reasons for the change they desire; and, as at present advised, we must really take leave to express an opinion that tho logic of the ladies is, at all events, more intelligible than the logic of Blackwood.
 It is, of course, scarcely necessary to say that the opposition of the "leading journal" to the views set forth in the " Women's Petition" is not discredited by any such palpable blundering as this. Apart from a few of those exaggerations into which lively writers are naturally betrayed by the very exuberance of their power, and which even the most unconvinced of readers readily pardon for the sake of their wit, the chief error of our contemporary is really an error of fact. His arguments are mainly based on tho assumption, that the relations of the sexes in respect of marriage and properly have in all ages of the world been substantially the same ; and from this mistaken assumption is drawn the necessarily mistaken, although logically correct, inference, "that the existing state of things is the result, not of human legislation, but of Nature's laws."
   Now it is really desirable that this plain matter of fact should be set right. Is it or is it not the case that the English law of husband and wife, as far as relates to property, is of such universal prevalence—of such immemorial antiquity in the world's history— that it can claim to be founded upon the eternal bases of natural law ? It requires very little knowledge of the past history or the present state of jurisprudence to know, that on neither ground has it any pretension to such claim. The civil law —in other words, the law of the whole civilized world as fixed by Justinian— knew absolutely nothing of that merger of the wife in the husband which we are now told is a result of the laws of Nature. As regarded property, marriage in the eye of the civil law was very much what our contemporary describes as "the cohabitation of man and wife, each with separate fortunes, separate expenses, separate bills, and separate liabilities." A certain portion of the wife's ante-nuptial fortune— her dos or dotal property, as the law styled it— went to make her share of the common marriage fund. A corresponding sum was put into the common stock by the husband. Whatever property the wife possessed beyond this dotal portion remained under her individual control, and subject to her separate liabilities ; in the same manner the husband had an absolute right of control over all that part of his own property not brought into the common stock, and to all his professional or other earnings. Such, in broad outline, was the law of property in marriage under which the Christian world lived till the Roman civilization gave way to the ruder and coarser customs of the Northern barbarism. In all countries that implicitly adopt the civil law, such is the law of marriage property at the present day. It prevails in the southern provinces of France. The code of Napoleon found two systems of law existing as to this matter; the civil law, as we have described it, in the south of France; the law of partnership, or commnio honorum, in the north. The great lawgiver wisely conceded to his subjects the liberty of living under either of these two systems at their pleasure. The result is, that in the south the dotal or civil law system prevails ; in the north, the partnership or community system, under which the marriage property is shared in common by man and wife, but the active control rests with the former. The dotal law prevails in Spain and all the colonies of Spanish origin ; in the United States it forms part of the code of Louisiana. The community system exists in Holland and all the Dutch settlements, in many districts of Continental Europe, and, in a modified form, in Scotland. Such, then, are some of the plain facts of the case— facts absolutely disproving the assumption that the laws of property, as they affect married women, "have been essentially the same in all ages of the world ;" and equally, therefore, disproving the inference, "that the existing state of things is the result not of human legislation, but of Nature's laws." So far is this from being true, that these "laws of Nature" are only to be found prevailing in full rigour in the United Kingdom (exclusive of Scotland), and in those amongst the American States which still adhere to the rules of the English common law.

 South Australian Register 6 August 1856,

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