The Legal Subjection of Men

Front matter

THE LEGAL SUBJECTION OF MEN.

THE LEGAL

SUBJECTION OF MEN.

PREFACE TO NEW EDITION

PREFACE TO NEW EDITION.

I have been usually credited with being the chief author of the following brochure. Such, however, is not the case. "The Legal Subjection of Men" is in great part the work of an Irish barrister and LL.D. of Dublin, who died a few years ago. That portions here and there are from my pen is true, but for the bulk of the pamphlet I am not directly responsible, as any expert in literary style will probably detect. I mention the circumstance in writing the few words of preface for the new edition asked of me by the publishers, not with a view to any disclaimer, but simply in the interests of literary truth and accuracy. For though, as stated, only myself directly responsible for short sections, I none the less, in the main, heartily endorse the whole.

The present edition has been carefully corrected and the Law brought up to date, though the illustrative cases necessarily remain as in the original edition.

There have been few agitations in history which have been characterised by such hard lying and shameless perversion of fact as the so-called "Woman's Movement." Unfortunately, continually-reiterated assertions in direct contravention with the real state of the case have only too well succeeded. The public mind has been bull-dozed into assuming the reverse of what actually obtains to represent the truth, and has sympathised and given effect to its sympathies on the basis of these false representations. I need scarcely say that the advocates of "Woman's Rights" and female suffrage, whose whole credit is based upon the tissue of falsehood it is the mission of this little work to expose, have done their best to boycott and ignore the exposure. All honour then to the Twentieth Century Press for originally publishing, and to the New Age Press for having the courage to risk offending certain sections of "advanced" opinion by reprinting, the following unvarnished statement of Law and fact.

E. Belfort Bax.

PREFACE

PREFACE.

It seemed to the authors of the following pamphlet that the time had fairly come for confronting the false assumptions underlying the conventional whining cant of the Feminist advocate with a plain and unvarnished statement of Law and fact.

The "Woman's rights" (?) agitator has succeeded by a system of sheer impudent, brazen, "bluff," alternately of the whimpering and the shrieking order, in inducing a credulous public to believe that in some mysterious way the female sex is groaning under the weight of the tyranny of him whom they are pleased to term "man the brute." The facts show these individuals to be right in one point and only one, namely, that sex-injustice and sex-inequality exist; for it so happens that the facts further show the said injustice and inequality to exist wholly and solely in favour of women as against men.

In short, they disclose a state of things in which, down to the minutest detail of Law and administration, civil and criminal, women are iniquitously privileged at the expense of men. As it is, many an unhappy male victim of modern sex-prerogative would doubtless be only too delighted to be allowed to partake of a little of the dire oppression under which he is told unfortunate Woman is groaning, but from any share in which he sees himself to his detriment excluded. Mr. Hardcastle found his guest's new-fashioned shyness bore a strong resemblance to old-fashioned impudence, and our male victim of pro-feminist laws and tribunals may well be excused for failing to distinguish between this new-fashioned oppression and old-fashioned domination.

In conclusion, we would advise the Feminist guild to ignore our pamphlet with its tale of infamy. It is their only chance of gulling their sentimental dupes any longer. Let the latter once know of our sketch, and their game is up. For those who have read it, and who retain the vestiges of an open mind on the subject, the maundering farce of "down-trodden woman and the brute man" will be played out.

THE LEGEND

THE LEGAL SUBJECTION OF MEN.

I. THE LEGEND.

John Stuart Mill is dead! but his eloquent wail of the subjection of women is never let die—it rings in our ears every day. It is solemn, it is pathetic; it overflows with the chivalric sentiment which Mill professes to repudiate as out of date, like the clanship and hospitality of the wandering Arab, but which nevertheless, is so strongly developed in the average male. It has become the gospel of women's pretended wrongs, and has caused the ingenuous youth of Oxford and Cambridge to blush for their fellow males. The only objection that the lawyers of the present year of grace can raise to it is that it is really the reverse of legal truth.

But even apart from the late John Stuart Mill, for considerably more than a generation past—indeed, one may say, more or less from the beginning of the present century—mankind, in this and some other countries, has had sedulously instilled into its mind the notion that the female sex is labouring under a grievous oppression at the hands of the tyrant male. In the present day this opinion has acquired the character of an axiom which few people think of disputing. Every occurrence bearing upon the social or economical relation of the sexes is judged in the light of this fixed idea. The press in general voices the view of public opinion with the result that the assumption in question is continually being reiterated. The moral of the injustice exercised by man upon woman is insisted upon with all the devices of rhetoric, and every chance occurrence is eagerly seized upon and pressed into the service to point the moral and adorn the tale of the favourite theory.

No one, as far as we are aware, has seriously set him or herself to proving the theory to have any foundation at all. Starting with the assumption, the state of things it implies has been deplored, people have tried to explain it, to suggest remedies for it, but tested it has never been. We all know the story of King Charles II. and the Royal Society; how the Merry Monarch, shortly after the institution of that learned body, propounded a problem for its solution, to wit, why a dead fish weighed more than a live one? Many were the explanations suggested, till at length one bold man proposed that they should come back to first principles, and have a dead fish and a live fish respectively placed in the scales before them. The proposition was received with horror, one member alleging that to doubt the fact amounted to nothing less than high treason. After much difficulty, however, the bold man got his way; the matter was put to the test, when, to the utter discomfiture of the loyal members, the alleged fact which they were seeking to explain evinced itself as but a figment of the Royal fancy.

We propose in the following paragraphs to consider whether the matter does not stand similarly only very much "more so" as regards the conventional notion of the legal and social disabilities of women. In the present paper we shall merely confine ourselves to the legal aspects of the question.

It will not, we think, take us long to convince ourselves that the allegations on this subject which the present generation, at least, has had dinned into its ears from all sides since its infancy, are even on a less favourable footing as regards accuracy. Charles II. thought the dead fish weighed heavier than the live one. The event only proved that they weighed the same—not that the live one weighed heavier than the dead one. Our modern women's righters bewail the alleged legal oppression of women by men. The facts show not that neither sex is oppressed as such, but, on the contrary, they disclose a legalised oppression of men by women.

THE FACTS

II. THE FACTS.

We will in the first place give a short statement of the law of husband and wife, with a view to discovering on which side of the equation does the weight of privilege lie, regarding the marriage contract as it at present exists in this country.

Let us clearly understand what are the exact limitations, and what the extraordinary extent of these sex privileges conferred by law. Rich men are, on account of their wealth, in a more enviable position towards any litigant in the Law Courts than are poor men. The privilege here is of wealth. But rich women are enormously better off in the matter of legal privilege than are rich men, and poor women are similarly privileged by law as against men of their own class.

The Letter of the Law.

This privilege conferred on women arises in an extraordinary number of cases, for the express letter of the law discriminates in the sharpest possible manner between men and women in the matter of legal right and duty, of civil law advantage and criminal law exemption.

But the letter of the law is supplemented by the bias of tribunals and by the bias of the press, and of public opinion, of which opinion, after all, the action of the tribunals is but a reflection. Who interprets, enacts. The unfair incidence of the law, bad enough by itself, is rendered crushing by the made-up minds of judge and jury.

Bias of Tribunals.

The settled bias of the tribunals in favour of the woman complainant, actuating magistrates, judge and jury, operates in two ways. In the first place a woman has only to complain against a man, and the tribunal is already convinced, of the justice of her claim. The tribunal is only impartial if the complaint is by one woman against another. In the next place, no adequate repression of crime or other injury by a woman against a man is even attempted.

Bias of Press and Public Opinion.

This tendency of the tribunals is confirmed and rendered irresistible by the action of the press and public opinion. All injuries to a woman are chronicled with flaring headlines. Injuries by women to men are laughed at, or worse still, passed over in silence.

The origin of this bias is a subject of deep interest, but not one capable of being discussed within brief limits. It is, of course, to be found in the history of England for some centuries past—practically since the Reformation—in so far as difference in the intensity of the sentiment differentiates England from other European peoples. It is to be found in the history of Europe and the race for many centuries before the period of the great European upheaval of the 16th century. It is enough for the present to note that the pro-feminist prejudice exists and is transmuted into positive rules of law, and legal administration by the action of public opinion and the press, Parliament, judges and juries, and crystallised into statutory enactment by an active pro-feminist propaganda of sex-conscious women's righters.

If anyone thinks the latter factor unimportant, it may be sufficient to remind him of the statutory innovation involving the most flagrant injustice, inasmuch as flagrant inequality, viz.:—

1. Summary Court for Separation. Open to women alone, except in the case of drunkenness (cf. Licensing Act, 1902).

2. Action for Slander. Open to women alone.

3. Duty of Husband to maintain his wife—notwithstanding her adultery.—This last a triumph of feminine privileges enacted in 1895!

It is impossible in any distribution of the main outlines of sex-privilege to avoid occasionally overlapping. One arrangement of the topics will be convenient. Let us consider women's privileges under the head of Matrimonial Law, and the Civil Law generally, and, further, of the Criminal Law.

These privileges arise indirectly from the action of the legislature, but mainly from that of the Courts, and consist of: first, the deliberate introduction of new rules of law and procedure, and, secondly, the retention of some old-world privileges of women, logical enough when women were dependent, but under modern conditions engines of tyranny against men.

MATRIMONIAL PRIVILEGES OF WOMEN

MATRIMONIAL PRIVILEGES OF WOMEN.

1. Breach of Promise of Marriage.

The law of George III., punishing by damages—usually vindictive damages—violation of breach of promise of marriage. The women's privilege to commit perjury plays a great part in this process. A woman swears a man promised to marry her. Judge and jury hold this statement false, and mark the result. No one suggests that she should be indicted for perjury. On the contrary, the grateful male litigant, happy to escape, settles £3,000 on her (Gore v. Lord Sudley, 10 June, 1896).

Furthermore, by custom of the tribunals creating the Common Law, this action is confined in its benefits to woman. A man suing in a like case is laughed out of Court. This may or may not be a just privilege conferred on women—that of breaking their promise free of legal penalty, but it is obviously a privilege conferred by the practice of the Courts on women as such. The rules of law invalidating contracts obtained by fraud, duress, or undue influence, have no effect as against a woman inducing a man, by subtle device or threats of scandal, to marry her. An experienced woman of 30 can entrap a boy of 22 into such a promise; the Court takes no notice of the invalidity from point of view of fair play. But a man suing a woman of any age would be laughed out of Court.

2. Privilege to Defraud Under Cover of Promise of Marriage.

This is, of course, a minor privilege compared with that of exacting damages for breach of promise. But it is a real privilege, nevertheless. A man gives valuable property—jewellery, furniture, or money—to a woman under an agreement to marry, fraudulently entered into on her part, inasmuch as she has no power to carry out her promise, being already married or preferring someone else. The man, in practice (whatever theory may be) is not assisted to recover the property, and the magistrate rebukes him for "unmanly" behaviour! Contrast the other side. A woman makes a loan to a man whom she knows to be married. He receives a sentence of five years penal servitude.

3. Maintenance.

As against her husband, the law confers on a woman who has married him the unilateral privilege of maintenance. The earlier law made this privilege dependent on her obedience, cohabitation with her husband, and her observance of outwardly decent behaviour. The present law has set her free from all these restraints. Since 1857 the Secular Court, which then assumed jurisdiction in matrimonial matters, has given up all attempt to enforce obedience, but the most violent methods, including imprisonment and sequestration of the property of the husband are employed to enforce her claim to maintenance. By a recent Statute (the Act of 1884) the process of imprisonment to make a wife obey an order to return to her husband was abolished. By the famous decision in the Jackson Case the husband was prohibited from himself using force to compel her to return. But the deserted wife by magisterial order can get her deserting husband sent to gaol. And neither legislature nor the Courts, which took away her duties of obedience and cohabitation, ever dreamt of depriving her of her privilege of being maintained by the man whom she can flout and insult with impunity. As a successful lady litigant (May, 1896) remarked to her husband, "There is no law which compels me to obey or honour you, but there is a law that you must keep me." This woman tersely sums up the position.

In the case of a man of property the Courts will expropriate him for the benefit of his wife. In the case of a wage-earner the Courts from police magistrates to Supreme Court will decree him to be her earning slave, bound to work for her or go to prison. A wife, no matter if rolling in wealth, is not obliged to contribute a penny to her husband's support, even if he be incapacitated from work through disease or accident. The sole exception which the law makes in derision is that if he be actually in such destitution as to go to the workhouse, then the wealthy wife is obliged to pay, not to her husband, but the local authorities, the cost of his maintenance at the exiguous scale usual in such cases.

Even a wife who, against her husband's wish, leaves his house after assaulting and insulting him can obtain against him an order for restitution of conjugal rights. This is a mere preliminary to form a basis for a claim for sequestration of his property for her maintenance. The Act of 1884 forbids the Court to order imprisonment for refusal to obey an order of restitution of conjugal rights, but enables such a refusal to be made a ground for confiscation of the husband's property in favour of the wife. No reciprocity here. Imprisonment before 1884 affected both husband and wife. Sequestration of property, the husband alone. Now imprisonment is abolished for the wife, and so the wife goes scot free, while the husband is as much bound as ever in person and in property.

This iniquitous statutory rule is made use of by women who have no wish whatever to return to their husbands. After overbearing ill-usage and desertion of the husband for years, the wife applies to the Court for an order for restitution, well knowing that her unfortunate victim will not obey the order. Then the robbery of his property is completed by a second order in Court.

But no disobedience to a like order on her part enables her property to be confiscated, or herself to be sent to prison.

4. Disposition of Property Free from Control of Husband.

By the Married Women's Property Acts a woman has complete control over all property acquired or inherited by her in any way, free from any claim on the part of her husband. With cynical injustice she is left in possession of all her old claims on her husband's property, and the latest charter of female privilege, the Statute of 1895, gives her claims regardless even of her adultery.

This matter deserves more attention than it usually receives. Let us consider the topics in order:—

(a) Source of Women's Property.

The piteous tales of artistic working women, of wives robbed by their worthless husbands, from the Mrs. Morton of fact to the Miss Trotwood of fiction, formed the foundation of the claim for a revision of the law. Liberty for women to retain their own earnings. Obvious equity here!

But the bulk of women's property, in 99 out of every 100 cases, is not earned by them at all. It arises from gift or inheritance from parents, relatives, or even the despised husband. Whenever there is any earning in the matter it is notoriously earning by some mere man or other. Nevertheless, under the operation of the law, property is steadily being concentrated into women's hands. "Once Stridhan always Stridhan."

(b) Control through Life.

The wife has absolute and unfettered control over her own property, man-earned though it be, and her person. This is the new style. But the gaoler and the broad arrow make the husband, her earning slave, to be insulted and jeered with impunity. This is the old style with a difference. "All yours is mine, and all mine's my own." Mere man is not worth considering when the material aggrandizement of women is concerned!

(c) Control at Death.

By the Married Women's Property Acts, a woman has complete power of leaving her property away from her husband, by will, even though in his prosperity he gave it to her. The husband can be prevented from doing so, by the wife's suing him for maintenance, when his property, or as much of it as judges think fit, is settled on her, and can no longer be disposed of by his will. Conveyancers aver that the steady tendency is for a woman to leave property acquired from some man always to a woman. A silent revolution in succession is being accomplished. But the man is left under his old burdens of supporting his wife.

(d) Bankrupting Husband for Money Lent.

A wife is privileged to recover judgment against, and bankrupt her husband for any money she may have lent him, and this privilege is no dead letter.

A husband does not lend, but gives money to his wife. If he were to attempt by legal documents to turn it into a loan, he would discover once again that what is sauce for the goose, is by no means sauce for the gander. There is no case on record of a husband daring to sue his wife for a loan.

5. Disposition of Property Free From Control of Creditors.

Not merely as against the husband, but against her creditors, the married woman is in a position of enviable privilege. A married woman, even when separated from her husband, and released from all duties towards him or her children, retains her privilege of having her property exempt from seizure for debt.

Technicalities would be tedious, but the following is the practical working of the law. In legal phraseology, if a married woman enters into a contract, and if (an important if) there is no restraint against anticipation in her settlement, then her property, or some of it, may be attached. As to the restraint against anticipating income, this clause, introduced by Lord Chancellor Thurlow to protect an interesting relative of his against her husband, is practically to be found in every settlement, being now useful against the creditor, although no longer needed against the husband.

6. Vicarious Responsibility of Husband Towards Third Persons for his Wife's Misconduct.

The husband is liable, and his wife is not, for all the civil wrongs (torts) she may commit. He has no control over her, but serves as her whipping-boy. This, though she publicly defames and insults him in every way, and has deserted him.

As Sir Frank Lockwood put it, one has the deep consolation of knowing that if Mrs. Jackson utters slanders Mr. Jackson can be sued.

Under the older English law, when the wife was "sous la verge de son marrye" (the canon law sub virga viri), the rule was reasonable enough. Now, however, it is only an illustration of the pro-feminist bias of the Courts. Every moth-eaten scrap of privilege, which is in favour of the woman, they retain.

All privileges of the husband, no matter how firmly established, they deny as having ever existed. Look at the astounding declaration of Lord Halsbury in the Jackson case, that the husband never had the right in English law to restrain his wife!!!

7. Impunity for Crimes Committed in Husband's Presence.

The "Doctrine of Coercion."

Again, a pious archeology animates the judges when the woman is to be benefited. Notwithstanding the revolutionary changes in the law, another old-world privilege of the "woman under the rod" is reserved for the dominating female of to-day. If her husband is present when she is committing a crime, a married woman is presumed by an intelligent administration of justice to have acted under his coercion. This is sometimes amusing, when, as often happens, the woman is the instigator of the crime.

This precious privilege is nominally confined to cases of minor importance, and in special is supposed not to affect murder. In practice it affects all crimes, and is no dead letter, as illustrative cases can show.

8. Facilities for Divorce.

No man can obtain a divorce except by a terribly expensive process in the High Court at a minimum charge of forty pounds. This means a denial of justice to the vast bulk of the male population. Any woman, by the asking for it, can get a summary separation and confiscation of her husband's property, and an order for her maintenance out of his earnings from the nearest police court. Recent Statutes confer this privilege. This process, which costs only a few shillings, the husband has to pay for.

But divorce or no divorce, the wife's property, where-ever acquired, cannot be touched. There is no question here of interfering with her "earnings" though she be an opera singer with £40,000 a year. Similarly with her capitalised property, which, though man-acquired, as usual, cannot be touched.

If her property, as well as her husband's, has been handed over to the trustees of her marriage settlement the Court has some power to make orders as to the income of that property, but in practice uses it only for the benefit of the children.

No matter how flagrant her conduct the wildest dream never suggested that the wife's "earnings" (as artist, opera singer, or what not) no matter how exorbitant, should ever be touched for the benefit even of her children. That a portion should be sequestrated for the maintenance of the husband—even though a husband is incapacitated by disease or accident—of course would be a barbarous suggestion, hardly to be discussed outside Bedlam.

But precisely analogous orders as to the hard-earned and miserably stinted wages of the male earner are made with scandalous levity in the Police Court every day. A working man, earning eighteen or twenty shillings a week, is calmly ordered to provide twelve shillings a week for life for the keep of a clamorous and malignant shrew.

The denial to the working man of the same facilities for summary separation, through the police court, granted to every brawling wife who chooses to ask for it, simply means that the man is in a state of legal subjection to his wife. The wife has but to scream and appeal to the nearest policeman, and prison, separation, custody of children, and maintenance, are decreed as matters of course.

A woman can habitually repudiate her duties, neglect her children, pawn her husband's and children's clothes, waylay her husband at his work, and disgrace him before his friends, procure his dismissal, assault him, and there is no remedy open to the working man. To tell him that he can appeal to the Divorce Court at a cost of forty pounds, is a piece of savage and scornful irony. He might as well be told that he can, if he has the money, promote a private Act of Parliament, at the cost of some thousand pounds.

If goaded by intolerable misery, he so far forgets himself as to strike his torturer, he is sent to gaol, with his condemnation headed "A cowardly brute."

The special facilities for women to obtain divorce, separation, confiscation of the husband's property, do not end with the provision of a cheap and expeditious Court for women alone. If the woman elects to go to the Divorce Division of the High Court, the path is made similarly smooth for her. Her unfortunate husband, who may afterwards be held to be quite guiltless of the lying charges brought against him, is ordered to find money for her solicitors, and has to pay in advance!! He must also pay her alimony pendente lite.

Then when he is dragged to Court by a heartless and vindictive woman, he finds the scales still more heavily weighted against him. The rules might be formulated somewhat in this way:—

1. Every woman's statement complaining of her husband is assumed to be true until he conclusively proves it to be false. The onus probandi is on him, and the difficulty he has to face is that of proving a negative.

2. The slightest harshness or even carelessness of speech or behaviour, no matter under what provocation (the records of years being searched to find one) is absolutely final proof of "cruelty" if committed by the husband. No amount of insolence and brutality—short of actual attempt to maim—is cruelty in a wife. Anything she does is a pardonable exhibition of feminine temper.

3. The husband and his witnesses are prosecuted for perjury on the slightest inaccuracy being discerned in their narration of facts. Deliberate perjury is passed over if committed by the wife, her paramour, or her witnesses.

4. No charge, no matter of what infamous crime, falsely made by a wife against a husband, is a ground for his refusing to take her back. If he should refuse, the Court confiscates for her benefit as much of his property or earnings as they think fit.

One result of these instructive rules of practice is to be found in the number of undefended divorce suits. It is a common saying of the legal profession that multitudes of husbands allow judgments to go against them by default, as they are quite conscious that no man, not of absolutely angelic character—unless he be himself a lawyer—has any chances before a prejudiced pro-feminist judge and jury.

9. Endowment of Adulteress out of Damages.

Here we come upon a marvellous specimen of judicial legislation, wherein Parliament has not been troubled. In case of a husband succeeding under the Act of 1895 he will have difficulty in future in getting a divorce from his wife by reason of adultery. He is entitled to damages from the co-respondent for the injury to him, done in breaking up his home, and exposing him to mental suffering and material loss. The damages are supposed to be paid to the husband on this basis—that they were in compensation for his loss. They are still assessed on this basis, but at the end of the nineteenth century we find the judges creating a legal fiction. Influenced by the wave of feminist sentimentality, the judges have actually seized on these damages as a fund for endowing the adulteress.

The way this insidious device was introduced was as follows:—It not unfrequently happened that a husband assented of his own free will to the damages, which in law were his own property, being settled on the children of the marriage. Sometimes he included his late wife in that dedication of the fund. This was generous of him, as the woman had obviously forfeited her claims on him. Now, however, the judge, without consulting Parliament, has deprived the injured husband of the merit of generosity. Without the husband's consent, in fact, notwithstanding his opposition, the judge will hand over the damages, which in strict law are the husband's, to such trustees as they think fit, and transform the fund into an endowment for the adulteress who has prudently selected a rich man as co-respondent.