Elizabeth Cady Stanton

On Divorce - Feb. 8, 1861

Elizabeth Cady Stanton
February 08, 1861— Albany, New York
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This speech was given before the Judiciary Committee of the New York Senate.

Gentlemen of the Judiciary--In speaking to you, gentlemen, on such delicate subjects as marriage and divorce, in the revision of laws which are found in your statute books, I must use the language I find there.

May I not, without the charge of indelicacy, speak in a mixed assembly of Christian men and women, of wrongs which my daughter may to-morrow suffer in your courts, where there is no woman's heart to pity, and no woman's presence to protect?

I come not before you, gentlemen, at this time, to plead simply the importance of divorce in cases specified in your bill, but the justice of an entire revision of your whole code of laws on marriage and divorce. We claim that here, at least, woman's equality should be recognized. If civilly and politically man must stand supreme, let us at least be equals in our nearest and most sacred relations.

As a distinguished Massachusetts lawyer [Wendell Phillips], not long ago, declared in a public meeting, that our laws on marriage and divorce, bore, equally, on man and woman, it may be that some, even among you, are ignorant of what your code really is on these questions. Permit me, as briefly as possible, to state some of the inequalities, not only in the contract itself, but in all its privileges and penalties. It must strike every careful thinker that an immense difference rests in the fact, that man has made the laws. Inasmuch as all history shows that one class never did legislate for another with justice and equality, those who lack time to look up authorities and facts, might safely decide by pure reason, that man had made the laws cunningly and selfishly for his own purpose.

When man suffers from false legislation, he has the remedy in his own hands; but an [sic] humble petition, protest or prayer, is all that woman can claim.

The contract of marriage, is by no means equal. From Coke [Sir Edward Coke, 1552-1634], down to Kent [James Kent, 1753-1847] who can cite one law under the marriage contract, where woman has the advantage? The law permits the girl to marry at twelve years of age, while it requires several years more of experience on the part of the boy. In entering this compact, the man gives up nothing that he before possessed; he is a man still: while the legal existence of the woman is suspended during marriage, and is known but in and through the husband. She is nameless, purseless, childless; though a woman, heiress, and a mother.

Blackstone says, "the husband and wife are one, and that one is the husband." Kent says, "the legal effects of marriage are generally deducible from the principle of common law, by which the husband and wife are regarded as one person, and her legal existence and authority lost or suspended during the continuance of the matrimonial union." Vol. 2, p. 109. Kent refers to Coke on Littleton, 112 A., 187 B., Litt., sec. 168, 291.

The wife is regarded by all legal authorities as a "feme covert," placed wholly "sub potestate viri." Her moral responsibility, even, is merged in the husband. The law takes it for granted that the wife lives in fear of her husband; that his command is her highest law; hence a wife is not punishable for theft committed in presence of her husband. Kent, vol. 2, p. 127. An unmarried woman can make contracts, sue and be sued, enjoy the rights of property, to her inheritance, her wages, her person, her children; but in marriage she is robbed by law of her natural and civil rights. "The disability of the wife to contract, so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection by which she is placed under the power and protection of her husband." Kent, vol. 2, p. 127. "She is possessed of certain rights until she is married; then all are suspended, to revive again the moment the breath goes out of the husband's body." See Cowen's Treatise, vol. 2, p. 709.5 If the contract be equal, whence come the terms, "marital power," "marital rights," "obedience and restraint," "dominion and control?" Many cases are stated showing a most questionable power over the wife sustained by the courts. See Bishop on Divorce, p. 489.

Woman, as woman, has nothing to ask of our legislators but the right of suffrage. It is only in marriage, that she must demand her rights to person, children, property, wages, life, liberty and the pursuit of happiness. All the special statutes of which we complain--all the barbarities of the law--fall on her as wife and mother. We have not yet outlived the old feudal idea, the right of property in woman.

The term marriage expresses the nature of the relation in which man alone is recognized. It comes from the Latin "maris," husband; hence, as you look through the statutes and old common law, you find constant mention of "marital rights." Here and there, through the endless labyrinth of authorities, you will be refreshed with a bit of benevolence for the wife in the form of "protection." You never hear of "uxorial rights"; but the "widow's dower," the "widow's incumbrance," "the wife's alimony."

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 a 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. 489. 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 a 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 and 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, tome 3, 186. Traite du Contrat de Marriage, 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 the courts? Are not young women, from our first families, dragged into your 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.

For years there has been before the legislature of this state, a variety of bills asking for divorce in cases of drunkenness, insanity, desertion, and cruel and brutal treatment, endangering life. My attention was called to this question very early in life, by the sufferings of a friend of my girlhood--a victim of one of those unfortunate unions, called marriage. What my great love for that young girl, and my holy intuitions, then decided to be right, has not been changed by years of experience, observation and reason. I have pondered well these things in my heart, and ever felt the deepest interest in all that has been written and said on this subject; and the most profound respect and loving sympathy for those heroic women, who, in the face of law and public sentiment, have dared to sunder the unholy ties of a joyless, loveless union.

If marriage is a human institution, about which man may legislate, it seems but just that he should treat this branch of his legislation with the same common sense that he applies to all others. If it is a mere legal contract, then should it be subject to the restraints and privileges of all other contracts. A contract, to be valid in law, must be formed between parties of mature age, with an honest intention in said parties to do what they agree. The least concealment, fraud or intention to deceive, if proved, annuls the contract. A boy cannot contract for an acre of land, or a horse, until he is twenty-one, but he may contract for a wife, at fourteen. If a man sell a horse, and the purchaser find in him "great incompatibility of temper"--a disposition to stand still, when the owner is in haste to go--the sale is null and void; the man and his horse part company. But in marriage, no matter how much fraud and deception are practised, nor how cruelly one or both parties have been misled; no matter how young or inexperienced or thoughtless the parties, nor how unequal their condition and position in life, the contract cannot be annulled. Think of a husband telling a young and trusting girl, but one short month his wife, that he married her for her money; that those letters, so precious to her, that she had read and re-read, and kissed and cherished, were written by another; that their splendid home, of which, on their wedding day, her father gave to him the deed, is already in the hands of his creditors; that she must give up the elegance and luxury that now surround her, unless she can draw fresh supplies of money to meet their wants. When she told the story of her wrongs to me--the abuse to which she was subject, and the dread in which she lived, I impulsively urged her to fly from such a monster and villain, as she would before the hot breath of a ferocious beast of the wilderness; and she did fly, and it was well with her. Many times since, as I have felt her throbbing heart against my own, she has said: "Oh, but for your love and sympathy, your words of encouragement, I should never have escaped from that bondage; before I could, of myself, have found courage to break those chains, my heart would have broken in the effort."

Marriage, as it now exists, must seem to all of you a mere human institution. Look through the universe of matter and mind--all God's arrangements are perfect, harmonious and complete; there is no discord, friction or failure in His eternal plans. Immutability, perfection, beauty, are stamped on all His laws. Love is the vital essence that pervades and permeates from center to circumference--the graduating circle of all thought and action; Love is the talisman of human weal and woe--the "open sesame" to every human soul. Where two human beings are drawn together by the natural laws of likeness and affinity, union and happiness are the result. Such marriages, might be divine. But how is it now? You all know our marriage is, in many cases, a mere outward tie, impelled by custom, policy, interest, necessity ; founded not even in friendship, to say nothing of love; with every possible inequality of condition and development. In these heterogeneous unions, we find youth and old age, beauty and deformity, refinement and vulgarity, virtue and vice, the educated and the ignorant, angels of grace and goodness with devils of malice and malignity; and the sum of all this is human wretchedness and despair--cold fathers, sad mothers and hapless children, who shiver at the hearthstone, where the fires of love have all gone out. The wide world and the stranger's unsympathizing gaze are not more to be dreaded for young hearts than homes like these. Now, who shall say that it is right to take two beings so unlike, and anchor them right side by side--fast bound--to stay all time, until God, in mercy, shall summon one away?

Do wise Christian legislators need any arguments to convince them that the sacredness of the family relation should be protected at all hazards? The family--that great conservator of national virtue and strength--how can you hope to build it up in the midst of violence, debauchery and excess? Can there be anything sacred, at that family altar, where the chief priest who ministers makes sacrifice of human beings--of the weak and the innocent? where the incense offered up is not to a God of justice and mercy, but those heathen divinities who best may represent the lost man, in all his grossness and deformity? Call that sacred, where woman, the mother of the race--of a Jesus of Nazareth--unconscious of the true dignity of her nature, of her high and holy destiny, consents to live in legalized prostitution! her whole soul revolting at such gross association! her flesh shivering at the cold contamination of that embrace! held there by no tie but the iron chain of the law, and a false and most unnatural public sentiment? Call that sacred, where innocent children, trembling with fear, fly to the corners and dark places of the house, to hide from the wrath of drunken, brutal fathers, but forgetting their past sufferings, rush out again at their mother's frantic screams, "Help! oh, help!" Behold the agonies of those young hearts, as they see the only being on earth they love, dragged about the room by the hair of her head, kicked and pounded, and left half dead and bleeding on the floor! Call that sacred, where fathers like these have the power and legal right to hand down their natures to other beings, to curse other generations with such moral deformity and death!

Men and brethren! look into your asylums for the blind, the deaf and dumb, the idiot, the imbecile, the deformed, the insane; go out into the by-lanes and dens of your cities, and contemplate the reeking mass of depravity; pause before the terrible revelations, made by statistics, of the rapid increase of all this moral and physical impotency, and learn how fearful a thing it is, to violate the immutable laws of the beneficent Ruler of the Universe; and there behold the sorrowful retributions of your violence on woman. Learn how false and cruel are those institutions, which, with a coarse materialism, set aside the holy instincts of the woman, to seek no union but one of love.

Fathers! do you say, let your daughters pay a lifelong penalty for one unfortunate step? How could they, on the threshold of life, full of joy and hope, believing all things to be as they seemed on the surface, judge of the dark windings of the human soul? How could they foresee that the young man, to-day, so noble, so generous, would, in a few short years, be transformed into a cowardly, mean tyrant, or a foul-mouthed, bloated drunkard? What father could rest at his home by night, knowing that his lovely daughter was at the mercy of a strong man, drunk with wine and passion, and that, do what he might, he was backed up by law and public sentiment? The best interests of the individual, the family, the state, the nation, cry out against these legalized marriages of force and endurance.

There can be no heaven without love; and nothing is sacred in the family and home, but just so far, as it is built up and anchored in purity and peace. Our newspapers teem with startling accounts of husbands and wives having shot or poisoned each other, or committed suicide, choosing death rather than the indissoluble tie, and still worse, the living death of faithless men and women, from the first families in the land, dragged from the privacy of home into the public prints and courts, with all the painful details of sad, false lives.

Now, do you believe, honorable gentlemen, that all these wretched matches were made in heaven? that all these sad, miserable people are bound together by God? But, say you, does not separation cover all these difficulties? No one objects to separation, when the parties are so disposed. To separation, there are two serious objections: first , so long as you insist on marriage as a divine institution, as an indissoluble tie, so long as you maintain your present laws against divorce, you make separation, even, so odious, that the most noble, virtuous and sensitive men and women, choose a life of concealed misery, rather than a partial, disgraceful release. Secondly, those who, in their impetuosity and despair, do, in spite of public sentiment, separate, find themselves, in their new position, beset with many temptations to lead a false, unreal life. This isolation bears especially hard on woman. Marriage is not all of life to man. His resources for amusement and occupation are boundless. He has the whole world for his home. His business, his politics, his club, his friendships, with either sex, can help to fill up the void, made by an unfortunate union, or separation. But to woman, as she is now educated, marriage is all and everything-­her sole object in life--that for which she is taught to live--the all-engrossing subject of all her sleeping and her waking dreams. Now, if a noble girl of seventeen, marries, and is unfortunate in her choice, because the cruelty of her husband compels separation, in her dreary isolation, would you drive her to a nunnery, and shall she be a nun indeed? She, innocent child, perchance the victim of a father's pride, or a mother's ambition, betrayed into a worldly union for wealth, or family, or fame, shall the penalty be all visited on the heart of the only guiltless one in the transaction? If henceforth do you doom this fair young being, just on the threshold of womanhood, to a joyless, loveless solitude? By your present laws, you say, although separated she is married still; unbreakably bound to him who never loved, by whom she was never wooed or won; but by false guardians sold. And now , no matter though in the coming time her soul should, for the first time, wake to love, and one of God's own noblemen, should echo back her choice, the gushing fountains of her young affections must all be stayed. Because some man still lives, who once called her wife, no other man may give to her his love: and if she love not the tyrant to whom she is legally bound, she shall not love at all.

Think you that human law can set bounds to love? Alas! like faith, it comes upon us unawares. It is not by an act of will, we believe new doctrines, nor love what is true and noble in mankind. If you think it wise to legislate on human affections, pray make your laws with reference to what our natures are; let them harmonize in some measure with the immutable laws of god. A very wise father once remarked, that in the government of his children he forbid [sic] as few things as possible; a wise legislation would do the same. It is folly to make laws on subjects beyond human prerogative, knowing that in the very nature of things they must be set aside. To make laws that man cannot, and will not obey, serves to bring all law into contempt. It is all important in a republican government that the people should respect the laws; for if we throw law to the winds, what becomes of civil government?

What do our present divorce laws amount to? Those who wish to evade them have only to go into another state to accomplish what they desire. If any of our citizens cannot secure their inalienable rights in New York state, they may in Connecticut and Indiana.

Why is it that all contracts, covenants, agreements and partnerships are left wholly at the discretion of the parties, except that which, of all others, is considered most holy and important, both for the individual and the race?

But, say you, what a condition we should soon have in social life, with no restrictive laws. I ask you, what have we now? Separation and divorce cases in all your courts; men disposing of their wives in every possible way; by neglect, cruelty, tyranny, excess, poison, and imprisonment in insane asylums. We would give the parties greater latitude, rather than drive either to extreme measures, or crime. If you would make laws for our protection, give us the power to release from legal conjugal obligations, all husbands who are unfit for that relation. Woman loses infinitely more than she gains, by the kind of protection you now impose; for, much as we love and honor true and noble men, life and liberty are dearer far to us, than even the legalized slavery of an indissoluble tie. In this state, are over forty thousand drunkards' wives, earnestly imploring you to grant them deliverance from their fearful bondage. Thousands of sad mothers, too, with helpless children, deserted by faithless husbands, some in California, some in insane asylums, and some in the gutter, all pleading to be released. They ask nothing, but a quit-claim deed to themselves.

Thus far, we have had the man-marriage, and nothing more. From the beginning, man has had the whole and sole regulation of the matter. He has spoken in Scripture, and he has spoken in law. As an individual, he has decided the time and cause for putting away a wife; and as a judge and legislator, he still holds the entire control. In all history, sacred and profane, woman is regarded and spoken of, simply, as the toy of man. She is taken or put away, given or received, bought or sold, just as the interests of the parties might dictate. But the woman has been no more recognized in all these transactions, through all the different periods and conditions of the race, than if she had' no part or lot in the whole matter. The right of woman to put away a husband, be he ever so impure, is never hinted at in sacred history.

We cannot take our gauge of womanhood from the past, but from the solemn convictions of our own souls, in the higher development of the race. No parchments, however venerable with the mould of ages, no human institutions, can bound the immortal wants of the royal sons and daughters of the great I Am.

I place man above all governments, all institutions, ecclesiastical and civil, all constitutions and laws. It is a mistaken idea that the same law that oppresses the individual can promote the highest good of society. The best interests of a community never can require the sacrifice of one innocent being, of one sacred right.

In the settlement, then, of any question, we must simply consider the highest good of the individual. It is the inalienable right of all to be happy. It is the highest duty of all to seek those conditions in life, those surroundings, which may develop what is noblest and best, remembering that the lessons of these passing hours, are not for time alone, but for the ages of eternity. They tell us, in that future home, the heavenly paradise, that the human family shall be sifted out, and the good and pure shall dwell together in peace. If that be the heavenly order, is it not our duty to render earth as near like heaven as we may? Inasmuch as the greater includes the less, let me repeat that I come not before you to plead simply the importance of divorce in cases proposed in your bill, but the justice of an entire revision of your whole code of laws on marriage and divorce. In our common law in our whole system of jurisprudence, we find man's highest idea of right. The object of law is to secure justice. But inasmuch as fallible man is the maker, administrator and adjudicator of law, we must look for many and gross blunders in the application of its general principles to individual cases. The science of theology, of civil, political, moral and social life, all teach the common idea that man ever has been and ever must be, sacrificed to the highest good of society--the one to the many--the poor to the rich--the weak to the powerful--and all to the institutions of his own creation. Look, what thunderbolts of power man has forged in the ages for his own destruction! at the organizations to enslave himself! And through these times of darkness, those generations of superstition, behold, all along, the relics of his power and skill, that stand like milestones, here and there, to show how far back man was great and glorious. Who can stand in those vast cathedrals of the old world, as the deep-toned organ reverberates from arch to arch, and not feel the grandeur of immortality. Here is the incarnated thought of man, beneath whose stately dome, the man himself, now bows in fear and doubt--knows not himself--and knows not God, a mere slave to symbols--and with holy water signs the cross while he who died thereon, declared man, God.

In closing, let me submit for your consideration the following propositions:

1st. In the language (slightly varied) of John Milton, "Those who marry intend as little to conspire their own ruin, as those who swear allegiance, and as a whole people is to an ill government, so is one man or woman to an ill marriage. If a whole people against any authority, covenant or statute, may, by the sovereign edict of charity, save not only their lives, but honest liberties, from unworthy bondage, as well may a married party, against any private covenant, which he or she never entered to his or her mischief, be redeemed from unsupportable disturbances to honest peace and just contentment."

2nd. Any constitution, compact or covenant between human beings that failed to produce or promote human happiness, could not, in the nature of things, be of any force or authority; and it would be not only a right, but a duty to abolish it.

3rd. Though marriage be in itself divinely founded and is fortified as an institution by innumerable analogies to the whole kingdom of universal nature, still, a true marriage is only known by its results, and like the fountain, if pure, will reveal only pure manifestations. Never let it ever be said, "What God hath joined together, let no man put asunder" [Matt. 19:6; Mark 10:9], for man could not put it asunder; nor can he any more unite what God and nature have not joined together.

4th. Of all insulting mockeries of heavenly truth and holy law, none can be greater than that physical impotency is cause sufficient for divorce, while no amount of mental or moral or spiritual imbecility is ever to be pleaded in support of such a demand.

5th. Such a law was worthy those dark periods when marriage was held by the greatest doctors and priests of the Church to be a work of the flesh only, and almost, if not altogether, a defilement; denied wholly to the clergy, and a second time, forbidden to all.

6th. An unfortunate or ill-assorted marriage is ever a calamity but not ever, perhaps never, a crime; and when society or government, by its laws or customs, compels its continuance, always to the grief of one of the parties, and the actual loss and damage of both, it usurps an authority never delegated to man, nor exercised by God himself.

7th. Observation and experience daily show how incompetent are men, as individuals, or as governments, to select partners in business, teachers for their children, ministers of their religion, or makers, adjudicators or administrators of their laws; and as the same weakness and blindness must attend in the selection of matrimonial partners, the dictates of humanity and common sense alike show that the latter and most important contract should no more be perpetual than either or all of the former.

8th. Children born in these unhappy and unhallowed connections are in the most solemn sense, of unlawful birth--the fruit of lust but not of love; and so not of God, divinely descended, but from beneath, whence proceed all manner of evil and uncleanness.

9th. Next to the calamity of such a birth to the child, is the misfortune of being trained in the atmosphere of a household where love is not the law but where discord and bitterness abound, stamping their demoniac features on the moral nature, with all their odious peculiarities, thus continuing the race in a weakness and depravity that must be a sure precursor of its ruin, as a just penalty of long violated law.

As transcribed in Campbell, K. K. (Ed.) (1989). Man Cannot Speak for Her, Volume II: Key Texts of the Early Feminists. New York, New York: Praeger Publishers.