If the contract be equal, whence come the terms "marital power"—"marital rights"—"obedience and restraint"—"dominion and control"—"power and protection," etc., etc.? Many cases are stated, showing the exercise of a most questionable power over the wife, sustained by the courts.—See Bishop on Divorce, p. 489.
The laws on Divorce are quite as unequal as those on Marriage; yes, far more so. The advantages seem to be all on one side, and the penalties on the other. In case of divorce, if the husband be the guilty party, he still retains the greater part of the property. If the wife be the guilty party, she goes out of the partnership penniless.—Kent, vol. 2, p. 33; Bishop on Divorce, p. 492.
In New York and some other States, the wife of the guilty husband can now sue for a divorce in her own name, and the costs come out of the husband's estate; but, in the majority of the States, she is still compelled to sue in the name of another, as she has no means of paying costs, even though she may have brought her thousands into the partnership. "The allowance to the innocent wife of ad interim alimony and money to sustain the suit, is not regarded as strict right in her, but of sound discretion in the court."—Bishop on Divorce, p. 581.
"Many jurists," says Kent, vol. 2, p. 88, "are of opinion that the adultery of the husband ought not to be noticed or made subject to the same animadversions as that of the wife, because it is not evidence of such entire depravity, nor equally injurious in its effects upon the morals, good order, and happiness of domestic life. Montesquieu, Pothier, and Dr. Taylor all insist that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offense on her part.—"Esprit des Loix," tom. 3, 186; "Traité du Contrat de Mariage," No. 516; "Elements of Civil Law," p. 254.
Say you, "These are but the opinions of men"? On what else, I ask, are the hundreds of women depending, who this hour demand in our courts a release from burdensome contracts? Are not these delicate matters left wholly to the discretion of courts? Are not young women from the first families dragged into the public courts—into assemblies of men exclusively—the judges all men, the jurors all men?—no true woman there to shield them by her presence from gross and impertinent questionings, to pity their misfortunes, or to protest against their wrongs?
The administration of justice depends far more on the opinions of eminent jurists, than on law alone, for law is powerless when at variance with public sentiment.
Do not the above citations clearly prove inequality? Are not the very letter and spirit of the marriage contract based on the idea of the supremacy of man as the keeper of woman's virtue—her sole protector and support? Out of marriage, woman asks nothing at this hour but the elective franchise. It is only in marriage that she must demand her rights to person, children, property, wages, life, liberty, and the pursuit of happiness. How can we discuss all the laws and conditions of marriage, without perceiving its essential essence, end, and aim? Now, whether the institution of marriage be human or divine, whether regarded as indissoluble by ecclesiastical courts, or dissoluble by civil courts, woman, finding herself equally degraded in each and every phase[Pg 740] of it, always the victim of the institution, it is her right and her duty to sift the relation and the compact through and through, until she finds out the true cause of her false position. How can we go before the Legislatures of our respective States, and demand new laws, or no laws, on divorce, until we have some idea of what the true relation is?