Front Page Quotations Other Quotes Week of 8 October, 2012
About this Quotation:
As a good classical liberal John Stuart Mill was very concerned with the freedom of contract and its protection under the rule of law. What was unusual about him was that he was one of the very few to apply the principle of the freedom of contract to the marriage contract which bound husbands and wives in the 19th century. He observed that the contemporary marriage laws bound women to men “by foul rather than fair means” by limiting their ability to consent, to act independently, to dispose of their property, to seek legal redress if the contract was violated, and to terminate it if necessary. In an interesting historical analysis, Mill compared 19th century marriage laws to the Roman law of slavery and the feudal laws governing bondsmen, concluding that 19th century English women were in many respects less free than Roman slaves and were in fact “the bondservant of (her) husband.” Whereas an American slave like “Uncle Tom” could enjoy some privacy in his own “cabin” away from his master for a short period of time, a married woman had no such temporary freedom. Mill’s conclusion was that in comparison “no slave is a slave to the same lengths” as a 19th century wife.
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8 October, 2012
Read the full quote in context here.
John Stuart Mill (1806-1873) was one of the few classical liberals in the 19th century to object to the unequal nature of the so-called “marriage contract”. He questioned whether the consent of both partners to the contract was properly given, whether women were free to act on their own accord, or whether they had control of their own property. He concluded that a wife was no more than the “bondservant of her husband”:
… men suppose that all is now as it should be in regard to the marriage contract; and we are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband: no less so, as far as legal obligation goes, than slaves commonly so called. She vows a lifelong obedience to him at the altar, and is held to it all through her life by law. Casuists may say that the obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do not act whatever but by his permission, at least tacit. She can acquire no property but for him: the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife’s position under the common law of England is worse than that of slaves in the laws of many countries…
The full passage from which this quotation was taken can be be viewed below (front page quote in bold):
It will be well to commence the detailed discussion of the subject by the particular branch of it to which the course of our observations has led us, the conditions which the laws of this and all other countries annex to the marriage contract. Marriage being the destination appointed by society for women, the prospect they are brought up to, and the object which it is intended should be sought by all of them, except those who are too little attractive to be chosen by any man as his companion; one might have supposed that everything would have been done to make this condition as eligible to them as possible, that they might have no cause to regret being denied the option of any other. Society, however, both in this, and, at first, in all other cases, has preferred to attain its object by foul rather than fair means: but this is the only case in which it has substantially persisted in them even to the present day. Originally women were taken by force, or regularly sold by their father to the husband. Until a late period in European history, the father had the power to dispose of his daughter in marriage at his own will and pleasure, without any regard to hers. The Church, indeed, was so far faithful to a better morality as to require a formal “yes” from the woman at the marriage ceremony; but there was nothing to shew that the consent was other than compulsory; and it was practically impossible for the girl to refuse compliance if the father persevered, except perhaps when she might obtain the protection of religion by a determined resolution to take monastic vows. After marriage, the man had anciently (but this was anterior to Christianity) the power of life and death over his wife. She could invoke no law against him; he was her sole tribunal and law. For a long time he could repudiate her, but she had no corresponding power in regard to him. By the old laws of England, the husband was called the lord of the wife; he was literally regarded as her sovereign, inasmuch that the murder of a man by his wife was called treason (petty as distinguished from high treason), and was more cruelly avenged than was usually the case with high treason, for the penalty was burning to death. Because these various enormities have fallen into disuse (for most of them were never formally abolished, or not until they had long ceased to be practised) men suppose that all is now as it should be in regard to the marriage contract; and we are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband: no less so, as far as legal obligation goes, than slaves commonly so called. She vows a lifelong obedience to him at the altar, and is held to it all through her life by law. Casuists may say that the obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do not act whatever but by his permission, at least tacit. She can acquire no property but for him: the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife’s position under the common law of England is worse than that of slaves in the laws of many countries: by the Roman law, for example, a slave might have his peculium, which to a certain extent the law guaranteed to him for his exclusive use. The higher classes in this country have given an analogous advantage to their women, through special contracts setting aside the law, by conditions of pin-money, &c.: since parental feeling being stronger with fathers than the class feeling of their own sex, a father generally prefers his own daughter to a son-in-law who is a stranger to him. By means of settlements, the rich usually contrive to withdraw the whole or part of the inherited property of the wife from the absolute control of the husband: but they do not succeed in keeping it under her own control; the utmost they can do only prevents the husband from squandering it, at the same time debarring the rightful owner from its use. The property itself is out of the reach of both; and as to the income derived from it, the form of settlement most favourable to the wife (that called “to her separate use”) only precludes the husband from receiving it instead of her: it must pass through her hands, but if he takes it from her by personal violence as soon as she receives it, he can neither be punished, nor compelled to restitution. This is the amount of the protection which, under the laws of this country, the most powerful nobleman can give to his own daughter as respects her husband. In the immense majority of cases there is no settlement: and the absorption of all rights, all property, as well as all freedom of action, is complete. The two are called “one person in law,” for the purpose of inferring that whatever is hers is his, but the parallel inference is never drawn that whatever is his is hers; the maxim is not applied against the man, except to make him responsible to third parties for her acts, as a master is for the acts of his slaves or of his cattle. I am far from pretending that wives are in general no better treated than slaves; but no slave is a slave to the same lengths, and in so full a sense of the word, as a wife is. Hardly any slave, except one immediately attached to the master’s person, is a slave at all hours and all minutes; in general he has, like a soldier, his fixed task, and when it is done, or when he is off duty, he disposes, within certain limits, of his own time, and has a family life into which the master rarely intrudes. “Uncle Tom” under his first master had his own life in his “cabin,” almost as much as any man whose work takes him away from home, is able to have in his own family. But it cannot be so with the wife.
[More works by John Stuart Mill (1806 – 1873) and on The Rights of Women]