B O O K S B Y RO B E R T G RA NT
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THE HI G H
RANDFATHE R
THE C NVI C TI NS O A
ND AL E S nm
THE C HIP
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RE AD
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RE AKERS n m
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THE o n mn Illut t
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LAW AND
F
.
P
O
F
O
PE
E
B
s ra e d .
E
-
E
T
O
E
xz
o
o
o
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.
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.
.
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o
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.
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s ra e
.
B
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.
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.
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E
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.
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o
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.
xz
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st
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te
.
.
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s ra e
.
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CHARLE S S CRIB NE R’ S S ONS
(BEING
AN
m
BAR
ar
m om vm
nsms
READ
A? A
ASSOCIATION DINNER)
A Prob ate Ju
dge wh o
talks inverse
Su
ggests a
So I will u
tilise
my time
By dropping
briefly into rhyme
A Probate Ju
dge wh o ou
tlives you
l—yes tax it too
May b reak you
r wil
C oncerning variou
s other thin
gs
His power ou
trivals that of kings
.
,
All you
r remonstrances
,
.
are vain
.
u
pport
And finds th e Ju
dge h er n
e arest frien
d
You
r wife
k
as s separate s
.
nfit
You
r children whenyouprove u
,
,
If
you
r accou
nts
t ju
st an
e
d tru
are n
’
[V]
,
FORE WORD
dge will su
e
d th e Ju
r b on
Up onyou
.
In short it may b e
,
ly
tru
said
h as yo uliving h as youde ad
dge ,
Th e moral is —as o n youtru
He
,
Propitiate
th e
Probate Judge
.
.
Patient h e sits while year by year
Old wome n whispe r in hi s e ar ;
All sorts of skeleto ns h e knows
Sad secrets told b ene ath th e rose
He may not lay his boso m bare ;
He tu
d keep s them there
rn
s th e key an
Where are there fiercer b attles fought
Thantho se peculiar to hi s C ou
rt ?
When rival kinsman chi ldren claim ;
When cestuis ho ld trustees to blame ;
When cousinly greed backed up by skill
C onspires to break a rich mans will
And if th e lawyers co mpromise
He knows th e fees and gently sighs
,
,
.
.
’
.
,
.
If youdesire to change you
r name
Th e Prob ate Ju
dge permits th e same ;
y yo uthf ul wed
His no d must bless th e nu
ptial b ed
And
e re
th e ver
[ vi ]
.
FORE WORD
He
co
And
nstru
es th e
h
s ows
o
bscu
re
devise
h h
th e diff erence w ic
lies
Twix t Tweedledum and Tweedledee
Which is sometimes hard to see
Intimes of stress his p owers prevail
He sends contemptu
ou
s folk to j ail
And by inju
nctions awfu
l might
Protects th e weak and gu
ards th e right
Thus equ
ity corre cts th e flaw
Which ju
stice fin
ds incommonlaw
’
,
.
,
’
.
.
And yet
as
dges
ju
go , h as
not
Probate Judge a happy lot ?
He always sleeps in his ownb ed
And eats three well cooked meals instead
Of te mpting a dyspeptic fate
By fre q
uent circu
its throu
gh th e State
As o ther C o u
rts are force d to do
He lives at home and knows who s wh o
Th e
-
.
’
.
[ vii ]
WO ME N
I
WO ME N AND PROPERTY
BY the will of a decease d lawyer o f
national reputation it appeare d re
cen
tly that one of the two executors
and trustees name d was a woman
The provision was unusual enough to
provoke the inquiry : H ow did he hap
pen to select her ? When it was ex
plained that she was his private secre
tary and had kept his books for many
years both captious conjecture and lat
ter day comm on sense were satisfied
An appointment anomalous a genera
tion ago except of a wife ceased to b e
even an idiosyncrasy the moment the
nominee s qualifications were disclosed
One c ould see that the choice had its
advantages ; that it would save trouble
.
!
,
-
.
,
,
’
.
[
3]
LAW AND THE
FAMILY
and accelerate the handling of the
estate While the testator undoubt
e dly inte nded it as a mark o f confidenc e
and gratitud e his controlling motive
must have been the woman s fitn ess
This instance provokes another—a
—
double barrelled inquiry : Why should
not women have a greater share in th e
management of property and why
should they no t understand more about
property than th ey do ? Their own
prop erty in the first place but also
other pe ople s In spite of the revola
tion in public s entiment concerning
what woman is fre e to do and ought to
know property in the s ens e of anything
larger than a pu
rse or v e ry moderat e
bank account remains virtually a s e ale d
book to her It compare s wi th 3 Sa
cred Wh ite E lephant— a tutelary divin
ity but august and unapproachable
Moreover this awesome attitud e is en
.
,
’
.
-
,
,
’
.
,
-
.
,
.
,
[
4
]
WOM EN AND PROPERTY
co
uraged by prevalent masculin e opin
ion,
which ii invite d to decide by a
referendum whether she would do b et
ter as a bishop or a banker would de
clare that though out of place as either
she could not do much harm as a
bishop but as a banker would inevita
bly make a mess of things Indeed the
blue lin e in Durham C athedral beyond
which no woman was allowed to pass
has proved with the march of time a
far more evanescent prejudice than the
taboo of the money changers Men
still hug th e tradition that in money
matters women are constitutionally
helple ss and nee d looking after
Thi s tradition dies hard because its
decaye d roots are ponderous with law
verbiage F or centuries the status of
a woman whi le single was solemnly de
fined as f emme sole and after marriage
as f emme covert Veritably it may be
,
,
,
,
,
.
,
-
.
.
,
.
.
[
5
]
LAW AND THE FAltflLY
aid that the s econd estate of th at
woman was far wors e than th e first
A femme sole was in legal phrase ology
“
an infant until her majority but
after attaining it she had full poss e ssion
and contr ol of her prop erty If she was
rich it was scarcely reputab l e that sh e
nless she becam e a
should not marry u
nun ; conse quently the interval b etween
minority and we dlock was so to spe ak
twixt hay and grass Neverthe le ss if
she defie d social s entiment and re
main ed single the law protecte d he r
own ership She might b e chous e d ou
t
ot
of he r poss e ssions but sh e could n
b e deprive d of them The instant she
marrie d however sh e b ecam e f emme
covert and e ve ry attribut e of own ershi p
cease d
Of every human status d evis ed b y
civilisation that of the f emme covert was
th e most ignominious tho u
gh it we re
s
.
,
.
,
'
'
,
,
’
.
,
,
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,
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,
,
,
.
,
l6 l
WOIWEN AND
PROPERTY
th e air o f chivalrous concern for the in
herent helplessness of women So ab
so lu
tely did the law insist on merging
h er e ntity in her lord and master s that
if she committed a crime (unless it
were very atrocious) she was assumed
to have acted at his instance and he
was held responsible for it She was
more completely a cipher than any
other soul o nthe sunny side of barbar
ism and the aftermath of her legal ob
lite ration crops out even in our day in
the maxim of the dome stic hearth al
“
beit play qy uttered : What s yours
is mi ne my d ear and what s mine s my
”
“
The author of The E nglish
o wn
”
Woman s Legal Guid e (London 1 9 1 3)
states her quondam predi cament suc
cin
ctly as follows
“
By the common law prior to the
series of acts known as the Married
Women s Property Acts 1 870—1 908 a
.
’
,
.
,
,
’
’
’
,
,
.
’
,
,
’
,
l7 l
,
THE FAMILY
LAW AND
woman by marrying stood to lose
ei ther permanen tly o r during married
life all act ual benefi t in any property
o f whi c h she was at the c ommen c emen t
o f or migh t during the marriage be pos
sessed The theory was tha t a man
and his wife are but one person inth e
law which sounds as favourable to wife
as to husband and which if literally
applied would have meant e qual en
j oyment by both o f their common prop
This however was not the
erty
meaning given to the phrase in pra e
tice The real meaning would b e ex
pressed better by saying that a man
and hi s wife are but o ne person in the
law and that one person is th e man
sinc e the immediat e interest in the
whole o f her property passed to her
husband while his property continued
”
to belong to h im solely
So genuine did th is legal fiction— that
,
,
‘
.
’
,
,
.
,
,
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‘
’
,
,
,
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[
8
]
WOME N AND PROPERTY
a married woman could not o wn any
thing— seem to the legal mind that as
time went o n and a desire was felt to
p rotec t the dowrie s of wives from the
rapacity or debts of husbands recourse
was had to circumvention B arred
from declaring that a wif e s property
should c ontinue hers the lawmakers of
the period devised a method of tying
it up so that her spouse or his cre ditors
cou
ld not reach th e principal and so
that the yearly income should be paid
over to her o wnuse This method sur
vives inthe comparatively modern sys
tem of trusts by which e states in Great
Britain or the United State s can b e
kept intact during a gen eration or so
for the support of widows unmarried
daughters or spendth rift sons and pro
Yet al
tection against sons in law
though bec ause of its historic origin the
tradition of woman s financial inepti
,
.
’
,
,
.
,
,
-
-
.
,
,
’
[
9
]
WOME N AND PROPERTY
property whether they were in
”
curred b efore or after marriage
And ye t though re strictions onfe mi
nin e own ership are obsolete and have
long sinc e ceas ed to be an incentive to
lack of familiarity with money mat
ters the American woman is pec uliarly
ignorant of e verything pertaining to
finance
Much more so than the wo
men of the Latin countries wh o espe
ly in the shop keeping class are
cial
often vigilant partners in their hus
bands fortunes and wh o pride them
s elves oukeeping the domesti c pot boil
ing by insisting on full money s worth
in their daily pu
rchase s
The E uro
p ean woman has the habit of saving
the American that of sp ending and as
t th e husband
has been often pointed o u
ly responsible for the an
of each is main
Unlike her foreign sister wh o
tith esis
is schoole d from childh ood to regard
th e
.
,
,
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,
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11
l
LAW AND
TH E FAM ILY
extravagance as a deadly sin the
Americ an wife in nin e cases o ut of ten
feels free to indulge even her caprices
and then collect at the source
Now that the challenge of war has
demanded e conomies we hear it said
that a Fren ch or Italian family could
subsist on the contents of many an
Americ an housewife s garbage pail
True as this probab ly is the blame b e
longs no more to her than to her hus
band wh o dazzled by the re sources of
this amazing continent where eve ry
man hopes to b e tter hims elf would not
be pleased unless she gave him red
meat c on
stantly and in her own prov
ince put her b est foot forward G ood
provider as the Am erican husband is
he will not b e able to go onind efinitely
giving hi s wife a free hand unless she
cc operates ineliminating what th ey do
not re quire or cannot a fford The 0 p
,
,
,
.
,
’
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.
12
l
WOME N AND PROPERTY
u
nitie s
for
rapid se lf advancement
will diminish as ou
r population grows
more dense O n the other hand after
taking fully into account the growing
vogue for economic independence wh o
can doubt that the vast majority of
women will continue to allow men to
support them ? The c linging vine is
likely to remain the hardiest of annuals
in the rosebud garden of girls Th e
Ameri c an wife of the future is sure to
be less wasteful and to know more of
food values if not eugenics but when it
c omes to money matters her chief func
tion (like O liver Twist s) will still b e
“
asking for more and if she inherits
stocks and bonds sh e will be little less
apt than formerly to hand them over
to her husband to care for
There will be exceptions and it is
desirable that there should b e ; but it is
in the interest of women seeking eco
port
-
.
,
,
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,
13 l
LAW AND
TH E FAM ILY
nomic independence rather than of the
housewife that this mystification con
c erning property needs clearing up It
is even more disproportionate than the
panic due to a scampering mouse
After all mice once in a while do invade
the person but the primary princ iples
relative to dividends and coupons are
too simple to justify confusion in any
brain In every large community a
much respected body of men makes a
living frequently a very comf ortab le
living by taking c are o f other people s
property They are known as trustees
a term that includes executors guard
ians and all wh o hold in a fiduciary
capacity Their first requi site is prob
ity— to b e scrupulously honest ; they
should possess good judgment which is
almost a synonym o f common sense
tac t show themselves pun c tual ac
ntants and preferably be e rudite in
cou
.
.
,
,
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,
14
l
W OLIEN AND
PRO PERTY
the branch of the law that governs the
devolution Of estates That integrity
is the paramount c onsideration in the
minds of those who employ them ap
pears from the current tendency to se
lect trust companies as fidu
ciaries
A
trust c ompany has no soul (the courts
dec ided long ago that every corporation
lacks one) and it does not pretend to
know law but a trust company cannot
abscond and its capital stock is a bul
wark against peculation It trains
some employe e as an expert or if an
abstruse or knotty point arises it sends
for a lawyer and deducts the amount
o f his bi ll from the beneficiary s income
In my experience th e vast majority
o f individual trustees are hone st and
the instance s to the contrary if we
take number and Opportunities as a
measure comparatively rare They
are scrupulous in the performance of
.
.
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,
15
l
LAW AND THE
FAMILY
their duties and now that inh eritance
and complicate d income taxes have
doubled thes e their b ed is no t always
I have no wish to under
on
e of roses
r at e their re sponsibilities or disparage
the ir effi ci ency by asking why woman
should not enter into comp etition with
th em and why woman is not better
adapte d for this employment th an for
certain others which sh e aspires to
share To m e her chief stumbling
b lock would seem to b e that she has
mad e a bogy of property
E very fre sh batch of candidates for
the bar shows I believe an in c reasing
p ercentage of women They still seem
lost in the multitude of male prac tition
ers and whatev er the future has in stor e
f or th em thus far produce an impre s
sion that Po rtia to th e contrary not
withstanding th ey are at a disadvan
tage in forensics Women speak admi
,
,
,
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,
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.
16
l
WOMEN AND PROPERTY
often quite as well as men before
committees and o n formal o ccasions ;
but in the hurly burly and give and
take of c ourt practice they are handi
c apped by their Own nicety the aban
do nment o f which makes them appear
e ither shr ewish or strident
Conspicu
g questions of pure
ou
s laur els in arguin
law before courts of last resort are still
to be won Their professional activities
for the most part are confined to quasi
Offic e work the collection of claims
often forlorn hopes — the redress of
minor grievances and th e preparation
— matters that require
o f probate papers
integrity patience tact and love of
detail all of them qualities essential to
the c are of property Women have the
reputation of being honester than men
but whether this is due to previous lack
ity only tim e will show
o f Opportun
When it comes to patience tact and
b ly,
ra
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,
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,
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,
17
l
,
WOMEN AND PROPERTY
women whose patrimony has been tie d
up for life Perplexe d as they Often
are why prop erty does not yie ld a larger
return or why he feels constrained to
add this or that increment to capi
tal inste ad of paying it over many
women hanker to catechi se the trustee
—
ask a string of questions no matter
h o w foolish
This is difficult when the
listen er is a man ; they shrink into their
shells in a presence which however
kindly is from forc e of habit conde
scending If they had a woman to deal
with they would regard a heart to
heart talk—e ncouragement to ask in
—
scri
inat
e
questions
as an e ssential
m
di
Is it ex trava
of satisfactory s e rvic e
gant to allege that many female b ene
ficiaries would rather have their inter
ests safeguarde d by a woman than a
man except for a single consideration
the fear of her not proving equal to
.
,
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l 19 l
LAW AND
TH E FAMILY
the responsibility through la c k of
equipment ? O r that but for this dr ead
many women property owners would
elec t to manage their own a ff airs or to
hand them over to some congenial per
so n O f the same sex ?
Woman seems to be constitutionally
n shy when confronted with mort
gu
gages stocks and bonds she Sheers o ff
as if afraid of being h i t and mani
fests a like tenden cy to become panic
stri cken or obfuscated over rates Of in
terest or the distinctions between capi
tal and incom e She has no fear of
money in the bank so long as she does
not overdraw her accounts but b e
c omes daz ed with apprehension when
any question Of inve stment is b ro ached
“
and is apt to murmur : I leave it all to
”
This is explicable enough o nthe
yo u
theory that her mind has been a b lank
o n these subjects for c enturies but far
-
-
,
,
,
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,
.
,
20
9
l
WOBIEN AND PRO PERTY
from flattering to her intelligence if in
herent diffic ulties be the test The
ability to make two blades of grass
grow where only o ne grew before ap
pro x imates genius in the constructive
type of modern finan cier but that
demanded of the successful c ustodian
of
property need no t rise above
the level o f normal vigilant wisdom
This normal wisdom seems beyond
feminine a ttainment largely bec ause
o f the outlook which it presupposes
From generation to gen eration when
girls were being grounded in needlework
and household deftness their brothers
were already listening in the smoking
room to the small talk of their elders
c onc erning the rise and fall of securities
But it is no severe tax o n the intellec
tual faculti es to acquire a speaking ac
quaintan ce with the railroads and
manufacturing companies of one s hab
.
,
.
.
.
’
21
l
LAW AND
THE FAMILY
itat Any woman wo rth her salt giv
ing her mind to it ought to find th e
study and comparison of statistics en
abli g her to discriminate b etween in
vestments no more difficu
lt than alge
b ra Th e good judgment alias the
normal wisdom of th e male trustee is
d erived from the analysis of reports th e
weighing of probabilities and th e nos
ing ou
F rom
t of inside information
these he reads the signs of the times
and if he re ads them correctly he pros
pers B ut there is nothing in the voca
tion which should bid a woman quail
exc ept a conspiracy by masculine free
masonry to discourage her in ad
vance —an odious impr obability The
prim ary rule s of th e gam e which
seems so terrifying at the outset are al
most as easy as th e alphab et : that a re
turn oi four to five per cent sp ells safety
and any more than this involves a sp e c
.
n
,
.
,
,
,
,
.
.
,
,
WOME N AND PROPERTY
u
lative risk which it is sometime s pru
dent and far often er not to take ; that a
mortgage and a b ond however formi
dable to look at are se verally nothing
but interest b e aring promises to pay
secured by collateral the first by land
the second by the property of the cor
porationwhich issue s it ; and that stock
certificates are merely shares in a cor
porate partn ership entitled to dividends
after the coupons on the bonds and
other fixed charges have been met
A few months study supplemented
by a little practical experience would
enable any reasonably inte lligent wom
an to master the se and other e lemen
tary technicalities ; at least to ceas e
Thus
to think of them as bugaboos
equipp ed she would no longer b e handi
capped by her inveterate and once
cherished disability Of being unab le to
comprehend th e language of the money
,
,
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,
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’
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23 l
LAW AND
THE FAM ILY
changers With this removed and
provided she kept in mind that the ad
“
monition Seest thou a man diligent
in his business ? H e shall stand before
kings has greater app lic ation to her
sex be c ause o f a c ertain scatter brain
atavis tic tenden cy she ought not to be
at a disadvan
tage in the arena of c om
petition Onthe score of ignoran c e Her
progress would be gradual but the re
actionaries of her own sex reluctant to
employ her would presently be out
numbered by those ready to reward her
zeal and W insome amiability Sh e
would no t b e so apt to b e grouchy or
dictatorial as men And yet the ulti
maté test of the rivalry— the c riterion
o f her fitn
e ss— must be th e quality Of
her brain cells for the prudent and dis
cerning care o f property rights is in th e
end a serious intellectual process
Is there a congenital kink in woman s
.
,
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’
24
l
W OBIEN AND PROPERTY
cranium whi ch would inte rfere with her
succe ss as a custodian of property or
fiduciary ? Le t me illustrate b y an
Object-le sson which though gleaned
from fiction was widely recognised as
veracious on its appearance n early
twenty years ago under the title of
“
”
The Woman and Her Bonds
The
heroin e of E dwin Lefévre s short story
was a widow with
to invest
and the hero (o r victim) a stock broker
who had b een her husband s intimate
friend and was desirous to do her a good
tu
We make her acquaintance at
rn
his office eager to asc ertain how sh e
can get a larger income from her money
than the trust company where it is
deposited is allowing her Mr C olwell
advises the purchase at 9 6 of 100 five
per-cent gold bonds of the Manhattan
Electric Light Heat
Power C om
pany in regar d to which as he te lls her
,
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25
l
,
WOME N AND PRO PERTY
poses to take her purchase Off her hands
for his own account at the original
price and return all her money she
jumps at the offer and goes away
happy B ut it is not V ery long before
th e bonds rise to 9 5 again and then to
96
This prompts another visit by the
widow to the broker s Office
Mr C olwell you still have thos e
”
b onds haven t you?
“
Why ye s
I— I think I d like to take them
”
b ack again
“
C ertainly Mrs Hunt I ll find ou
t
h ow much they are selling for
The quotation telephoned proves to
be
which as the broker points
ou
t is practically the pric e at wh ich
she bought them originally
Mrs Hunt hesitates and inquires
Didn t youbuy them from me a t 9 3
Mr C olwell explains that he bought
,
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27
l
them from her at 9 6 and gave her th e
full sum that she had paid
She makes answer : Well I don t see
why it is that I have to pay 9 6% now
for the very same bonds I sold last
Tuesday at 9 3 If it was some other
”
bonds I wouldn t mind so much and
though Mr C olwell knowing the plans
o f the syndi c ate does his best to induc e
her to change her mind and to let him
purchase them for her she goes away
obdurate and disgruntled
The sequel is heartrending Man
hattan E lectrics rise steadily and when
they are quoted at 1 0 6 back com e s
Mrs Hunt
“
Good morning Mr C olwell ; I cam e
to find out exactly what youpropos e to
”
do about my bonds
Then finding him mystified as to her
“
meaning she continues
But never
mind I have decided to accept your
O ffer ; I ll take those bonds at
.
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28
l
WOMEN AND PROPERTY
B ut Mrs Hunt you can t do that
Youwouldn t buy them
youknow
when I wanted yo ut o and I can t buy
them fo r younow at
R eally you
”
ought to see that
The widow remains unable to see
why she is not in the right and makes
her final exit in high dudgeon threat
en
ing to consult a lawyer
C ompression has ob liged me to omit
the finer shades o f the entertaining
story but the mental ob liquity it
suggests is obvious enough Yet I
h ave met women unab le to see any
thing odd in her attitude N0 one ex
cept a woman could possibly see the
matter in that light except an occa
I remember some
sion
al clergyman
years ago being asked by a member of
that profession to take a trustee to task
On the
for imposing on a poor woman
day appointed for the investigation it
app eared that the fiduc iary had re
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29
l
LAW AND THE FAMIILY
from the testato r ten bonds of a
construction company yielding e ight
p er cent which the complainant him
self hastene d to characteris e as a
”
“
mortgage on a lot of rotten Old cars
The se had b e en sold at pa r and th e pro
ceeds p rud e ntly inve sted
Wh en puz
zled
I inquire d what th e imposition
was the clerg manpromptly answer e d :
“
Don t yousee ? She used to rec eive
eight hundre d dollars yearly and now
”
she only gets six
“
B ut I urged the former inve st
ment was hazardous as you admit
What can the trustee do ?
And th en
came the extr aordi na ry ass ertion yet
“
mad e in good faith : He ought to pay
her th e diff erence ou
t of his ownpocket
I was unable though I laboure d har d
to make this clergyman s ee it oth er
wise
While the se example s c ertainly sug
ceived
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l 30 l
WOME N AND PROPERTY
gest a kink in the brain they scarcely
furnish grounds for deeming it organic
rather than functional—or in other
words incurable O n the contrary the
assumption is much more credible that
the obliquity they indi c ate is due to a
lack of experience and worldly wisdom
which has as it were atrophied certain
ordinary mental processes C ommon
sense to say nothing of a sense of jus
tice is largely a matter of background
and is hardly to be expected of one tra
ditio nally banish e d from any specific
field Of inquiry There is no one more
shrewd in bargaining than the woman
ental E urope who sells vegs
of contin
tables and posies and thi s is simply
becaus e she is schooled to give her
whole mind to her trade Much th e
same set of faculties is exercised by the
successful guardian Of property as by
the successful huckster It is simply
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31
l
LAW AND
THE FAMILY
a question of sufficient attention and
interest With the se assure d th e kink
whi ch produced the ethi cal vagari es of
”
“
would
th e woman and her bonds
sp eedi ly desert the brain of any woman
wh o for self suppo rt or self protection
sought to master the rudiments of
ld not b e
financial knowledge It wou
long before she would be able to
think in terms of principal and interest
b con
o r sto c ks and bonds alm ost as su
sl
scio u
y as she appraises f oular ds and
bombazine s
It will be argued by some that sophis
ticationin money mat te rs would rend er
women sordid and thereby imperil
the attribute we call charm The le ss
liberal men are in their views conc ern
ing feminine freedom the more like ly
are they to lie awake nights wre stling
with this particular dread— th e loss
of fascination
I am not sugge sting
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32
l
WOlWEN AND PROPERTY
th at all women should become ad epts
in finance but that systematic training
in the care of property would open to
a group of women a bread -winning oc
cu
pationwhere they would shine even
tu
ally to better advantage than insom e
o ther quasi mas c uline callings and that
a little resolute fami liarity with its
e very day symbols would add materi
ally to th e self respec t and convenience
While it would b e
o f th e sex at large
essential for those with professipnal
aims to avoid amateurishness ac
qua intance with the rudiments Of busi
ness knowledge posse ssed by most men
would render women in the aggregate
far more independent and leVel—headed
SO far as sordidness is concerned it
used to be admitted that the helpless
sex yearned for money and delighted in
its ex penditure If this be true why
should enlightenment as to its sourc e s
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33 l
freedom we still live in a practical age
which c ontinues to protect individual
ownership by bank accounts and strong
boxes E ven Liberty bonds may b e
lost or stolen and should be sheared of
coupons twice a year Up to this time
the custodians of property have been
men It may b e women are honester
than men
Let us stifle a lingering
doubt whether they have the same
amount of brains and declare that
there is no reason exc ept inex perience
why they should not manage their own
business affairs and thos e o f others to
a greater extent than they do They
would b e very pleasant to deal with ;
yet sex would be no protection against
the loss of dollars by poor judgment
So I venture to rep e at and italicise the
“
homily : See st thou a man diligent in
hi s business ? H e shall stand before
”
kings
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II
THE THIRD GE NERATION AND
INVE ST E D PROPERTY
THE THI R D GENERATION AND
INVE ST E D PROPERTY
1 RE CA LL that some years ago when
a will had been set aside by a jury and
after long delay in the settlement of the
estate the hour for division among the
victors had arrived the attorney for
two Of them shook his h e ad and re
marke d in an undertone for my ear
“
I hate to pay thi s over ; it won t last
”
long
A glance at his clients threw
light on his solicitude ; they evidently
belonged to the flotsam and jetsam
order of socie ty It seems they were
second cousins of the testator who had
not intended them to have a nickel ; but
after long waiting they were to receive
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39
l
LAW AND
TH E FAMILY
about four thousand dollars apiece
and were c orrespondingly e ager Both
bench and bar were powerless to pre
vent the transfer for no one can be ad
judged a spendthrift in advance and
the suggestion already mad e by th eir
counsel that they put at least a portion
of this treasure trove in trust had bee n
“
met with a suspicious Why should
we
The gist of the ane cdote lie s in th e
se quel When I next ran across th e
attorn ey wh o made the prediction h e
“
threw up his hands and said : I was
short of the truth It took them less
than a week to blow in th e entire eight
thousand They re p ennile ss and they
drifted into my office yester day to see
”
if I couldnt re cover som e of it
Nat
u
rall
n
y I was horrifi ed and shocke d u
speakably so for a moment Then I
caught myself smiling I saw th eir
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40
l
THE
THIRD GENERATION
point of View pathetic as it was They
had merely misapplie d the poetic li
cense :
.
,
s l
ho u
r of gloriou
if e
”
t a name
13 worth an age withou
One
crowde d
.
It was e asy to picture what had hap
pened They had emb raced their first
and only opportunity to live as they
imagin ed those with large means did
live —to taste all the costly and forbid
den pleasures to squander royally and
be robbed in the process E ight thou
sand in less than a week ' C olossal ;
comparing favourably with whatever
the plutocrats could do ; they wishe d to
b e in the running just for once to see
M agnvfiq
ue mais ce
h ow it would feel
ffi
erre
Yet I smack su
nest pas la gu
tly of the O ld Adam to b e able to
cien
sympathise with them whereas th ose
more deeply imbued w1th the new free
.
,
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41
l
TH E THIRD GENERATION
from th e executive to the tax collector
and from the tax collector to the man
in the street loses no opportunity to
discredit it A cynic might have con
vin
cin
g grounds for the belief that a
capi talist in this country is any one wh o
posse sse s more than the user of the
term Thus a dish washer wh o in
b erits a thousand dollars b ecomes one
in the eyes of the less fortunate
pick and shovel man next door But
stripped Of its cant a capitalist may
be said to be any individual whos e sup
port is derived either wholly Or in part
from the income of investments A
reprehensible status truly yet not
without its apologists We can all re
call the example Of the statesman— one
— who afte r
of o u
r greatest C omm oners
forbidding us to press down the c rown
of thorns upon the brow of labour or
crucify mankind upon a cross of gold
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43 l
LAW AND
TH E FAMILY
felt unable to live onhis salary of twelve
thousand dollars as Unite d State s See
and went on circuit
re tary of State
with yo dlers and bell ringers in ord er
And why ? Becaus e h e
t
to eke it ou
did not wish to eat into his capital
whi ch was said to aggregate s everal
hundred thousand dollars What b et
ld we d e si re for th e
ter authority cou
proposition that despite stump orato ry
the accumulation of we alth is not
n-Ama ican e ven by apostles
d eeme d u
of the n e w freedom som e of whom are
ad epts at it O ur savings banks with
lating d eposits
th eir huge and accu
mu
are the b e st proof that thrift is still th e
motto of the American p e ople ; and
what would b e come of ou
r ch urche s
college s
hospitals and diverse elee
mosynary or s c ientifi c bodie s but for
the incom e from invested property
theirs or somebody else s— which ke eps
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44
l
TH E
THHtD
GENERATION
them stable ? When one reads the
newspapers or talks with social reform
ers it is sometimes difficult to believe
that the practice Of laying by a penny
for a rainy day has not ceased to be
re spec table Perhaps we were in need
ip as the government s
o f just su c h a fill
call for billi ons of dollars from the sav
ings of the people to remind us that
any human panacea based on ob literat
ing the distin ction between principal
and income is likely to prove an ignis
,
.
’
us
f atu
The sp endthrif t as we have s een is
a person to be reckoned with and pro
tecte d ; likewis e he irs presumptive Of
immature years and daughters after
Such has been the theory
cove rture
glo-Saxon civilisation from which
of An
At the root of the
r o wnis d erive d
ou
Engli sh system of primogeniture with
its ban on the subdivision of landed
.
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45
l
LAW AND
TH E FAM ILY
property li es the purpos e to promote
the social longe vity of family tree s b y
r
a sufficiency of annual incom e Ou
ance stors d eeming a practice whi ch
tended to impoverish all except the eld
e st sonas incompatible with justice re
j ected this prin ciple from the sta rt
At the sam e time th ey gave sanction
to most of the oth er Anglo -Saxon d e
vice s for keeping capital intact for th e
ben efit (or annoyance) of the n ext gen
The American wh o wishe s to
cration
tie up his p roperty so that hi s benefi
ciaries may e njoy th e income b ut n
ot
the principal is free to do so provide d
the period of restraint befo re it will vest
in absolut e possession do e s not exc ee d
“
(according to legal jargon) a lif e or
”
live s in b eing and twenty-one years
In other words he can always prev ent
his children and often his grandchildren
from squandering his substance after
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I46 l
TH E TH IRD GENERATION
he is gone The generation beyond this
can make ducks and drakes of it if they
choose unless their own parents imitate
his example and exercising the power
of appointment by will which h e ordi
narily th rows them as a sop start the
tying u
p process all over again
What are th e benefits Of thus tying
up property ? What are its disadvan
tages ? Does the practice inure in the
long run to the welfare of the cestu
iq
ue
st (wh o mi ght better be described as
tru
the one not trusted) or does it hamper
him (or her) u
nduly by paralysing in
itiative ? Is it inmost cases a wise pre
caution or does it chiefly cater to
human vanity— the ambition of the
accumulator to keep his name alive and
defy the native saying that between
shirt sleeves and shirt sleeves there are
only three generations ? Does it con
flict with the new freedom o r is the
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47
l
LAW AND
THE FAMILY
f
o
tying-u
pro
c
ess
for
prot
e
c
tion
the
p
individual a neat handed Phyllis to th e
social d emo cratic code ?
It is pertinent to note by way of
preface in thi s connection that th e
Unite d States has gone Great B ritain
on
e better in th e matter o f prot ec ting
th e we ll to do individual wh o does not
s ee fit to pay hi s debts O ne b etter or
on
e worse a cc ording as we ch oos e to
think It is an axiom of American
society that e ve ry tub is assume d to
stand on its own bottom ; and in con
formity with this o u
r tradesp e opl e are
wont to remind pur chasers by a p er
“
sistent bill rendered that monthly or
at th e most trimonthly settlements are
a part of ou
r moral code
On the other
hand all wh o buy clothe s in England
are familiar with the time honoure d
p rejudice of the English tailor against
prompt payment It violates usage ;
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48
l
THE THIRD GENERATION
he does not understand it and detesting
innovation regards as unsophisticated
any one who offers c ash Yet never
th eless the policy of Obliging people to
settle promptly by holding over their
heads a social Obligation which could
b e enf orced at law if needs b e met with
a cropper when the Supreme C ourt of
th e land decided forty years ago that
money given in trust for the support of
a son for life could no t be reached by
his creditors and thus played into the
“
”
hands Of the idle rich
Moreover
th e court sealed th e do ctrine by going
ou
t of its way to say that whatever the
Engli sh view to the contrary this is the
American policy The learned justic e
wh o wr ote the Opinion arguing that it
was no new thing in any of the States of
th e Union to exempt from seizure on
execution a debtor s tools or home
ste ad proceeded as that mu ch re ve red
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49
l
THE TH IRD GENERATION
numb er of clubs
C ommenting on
this Mr Gray writes in the preface to
”
“
“
hi s R estraints on Alienation
To
say that whatever money is given to a
man cannot be taken by his creditors is
bad enough ; at any rate however it is
law for rich and poor alike ; but to say
that from a sum which creditors can
reach on e man who has lived simply
and plainly can deduct but a small
sum whi le a large sum may b e de
ducted by another because h e is of
is to
hi gh social standing e tc
d es c end to a depth of as shameless
snobbishn ess as any into which the jus
”
tice of a cou
ntry was eve r plunged
Yet as Mr Gray goes on to say
dirt is only matter ou
t of place ; and
what is a blot onthe scutcheon of the
common law may be a jewel in th e
crown of the social republic
It seems
to be accepted theory in our country
.
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51
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LAW AND
FAME Y
TH E
to day that tubs unable to stand on
their o wn bottoms should b e protected
against themselve s whether th ey b e
poor men force d to th e wall or gilded
youths with a propensity to squander
Weakness i n any form appeals to the
n eat handed Phyllis Of d emocracy eager
”
“
to supply first aid to the wounded
Laissezf aire has given way to the doc
trine that mortals must do what is good
for them— what so c iety thinks good for
them This is admirable when ap
plied to delinquents— to the maimed
the halt and th e blind of the so cial
order It is of the e ssence o f modern
progress to deprive conspicuously unfit
parents o f the custody o f their children
to segregate the feeble mind e d and to
take away from those who waste their
substance so as to expose themselves to
want the control of their affairs O n
the continent of E urope W here o u
r sys
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l 52 l
THE
THIRD GENERATION
tem of tying up e state s by elaborate
trusts doe s not obtain th e machine ry
for safeguarding spendthrifts is more
generally effic acious than here B ut if
we are to justify restraints on the vig
o ro u
s and the self reliant
it mu st b e
by a different set of arguments than
those whi ch convince us where the de
generate or the helpless are conc erne d
Yet it is still the tendency of men of
property no t to take a chan ce ; they pre
fer to assume that their progeny will b e
a bad lot and to hamper them collec
tively by ob liging them to di stinguish
principal from income Undoubtedly
this is salutary for the black sheep of
the family but the point whether it is
for the best interests of the other kind
is perhaps debatable
Tradition supplies abundant grounds
for the practice notwithstanding that
the desire to found a noble family looms
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53 l
LAW AND
THE FAM ILY
far less large on the horizon Of th e
American pluto crat than onthat Of hi s
compeer across the water where well
earned wealth in one generation may
bec ome the password to a title in the
second Yet our countrymen with for
“
tunes to dispose of both malefactors
mbler t e stators
and hu
of great wealth
who have accumulate d a modicum o f
this world s goods are only human if
they heed the desire as they constantly
do to prevent the fruit of their sagae
ity toil and good luck from speedy dis
They want it to last p artly
sipation
b ecaus e of the diffi culty in laying up
mon ey and partly as a monument to
themselve s They persuade themselve s
that they are fulfilling an obligation
to posterity in requiring that it shall
last as long as the law allows and th ey
expect th eir offspring to bless them for
keeping the wolf from the door during
,
.
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54
l
THE THIRD GENERATION
ne generation if no t a sec ond
More
over there are bugaboos to strengthen
this resolve notably their sons inlaw
To the traditional testator about to
make a will all sons in law whether
extan t or prospective are villains He
pictures them ruthlessly compelling his
daughters to hand over their patrimony
o r wheedli ng them o u
t of i t and sq
uan
dering it in riotous living or wild cat
ventures He might be induced to
trust his sons— but his sons inlaw
never ! To leave his daughters a t their
mercy would be an arran t lack of dis
cretion And so whatever else he
takes care to tie up their portions so
tight as to be u
navailable under all cir
mstance s for debts o f their husbands
cu
This savours of conventional prudence
doub tless But for every son in law
thus frustrated there are assuredly
many wh o would be as little apt as the
o
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l 55 l
-
LAW AND
TH E FAMILY
testator himself to make in roads onor
imperil th e portions of their wive s
Men lose their he ads u
nd er th e stress of
impending disaster it is tru e and wive s
at such moments are dispos e d to offer
e very thing ; and yet by th e assumption
that their daughters will wed lam e
ducks testators impos e a handicap at
th e start on the large numb e r of part
nersh ips wh ere freedom to exercis e th e
u
nited judgment of husband and wif e
in the use of property by way of taking
advantage of suitable Opportuniti e s for
advancem ent would far oftener p rov e
a b enefit than a detriment
Be sides a part of the inherent preju
dice against sons in law is derived from
the old conception of matrimony as a
status where women w ere e xpec te d to
have no opinions and to follow a blind
lead in all mon ey matters Now that
there is a growing tend ency among fem
.
,
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56
l
TH E THIRD GENERATION
inin e property-owners to familiaris e
’
themselve s with th eir aflairs and either
to exe rcise active control over them or
to in tr ust them to agents of their o wn
choice is not the likelihood Of coerc ion
o r cajolement so appre ciably less that
daughters may fairly complain of
wholesale dis crimination in favour of
th eir brothers ? A wife stands on a
somewhat different foo ting ; she has had
her day or at least a part of it E ven
in her c ase the haunting fear that she
may wed again on the strength of an
outright gif t or bequeath it to her next
—
f
kin
instead
o
f
his
two terrible
o
bogies—rarely merits the disparaging
lack Of confidence in the partner Of a
lifetime thereby displayed ; neverth e
less it is perhaps inevitable and judi
cions that husbands with large estates
at their disposal should c ontinue to
limit the share o f their widows to a life
,
.
,
,
,
'
l 57 l
THE THIRD GENERATION
th e
d eparting gen eration ceased to draw
so taut a rein onits successor ; but after
all society does not have to rely solely
o n trusts to fetter the indiscretions o f
youthful heirs Suppose the worst
-u point of vie w
from
th
e
tying
) to
(
p
happen : A multimi llionaire die s u
nex
pectedly at the h eight of his activitie s
and long before hi s time inte state leav
ing a widow and a bevy of minor chil
dren What ensues ? Chaos ? Very
far from it There is a family council ;
the widow consults persons in whom
she knows that he had confidence or on
whom she relies and administrators are
selected Frequently she is one of
them O rdinarily e specially if large
affairs are involve d several years must
e lapse before the estate can b e wound
up and preliminary to this guardians
are appointed for all the children non e
of whom can d eal with property b efore
,
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59
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LAW AND THE
FAM ILY
attain their majority which (ex
cept by statute) is twenty-one for both
sexes The widow owns one-thi rd in
her own right and th e children the re
mainder Sooner or later distribution
Of the estate among the s e veral bene
ficiarie s is requisite but in the interval
it will be managed by the administra
tors or other suitable representatives of
those c on cerned Finally after e very
thing is settled there will be apportion
ment acc ording to law with no dead
man s clutch upon it and on th e
strength of this complete ownershi p th e
children will be free to live their own
lives set up establishments and steam
ya chts sp eculate wildly marry chorus
girls and commit all o r any of th e othe r
extravagances which th e provident are
apt to conjure up and b ecom e panic
stricken over when in a testamentary
frame o f mind In other words th ey
th ey
,
.
.
,
.
,
’
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,
60
l
THE TH IRD GENERATION
will
b e free to learn experience first
hand whether it prove a spiritual bless
ing o r only Dead Sea fruit
Nothing so very disastrous in this in
testacy except that it leaves the barn
yard door ajar for the b lack sheep and
lame ducks o f the family and thereby
flies in the face of a tradition which
prides itself on hampering everybody
lest a few go miserably astray After
all in the final analysis the pra c tice of
tying up property for the lives of the
next generation is based on impli cit di s
trust of human nature especially one s
o wn fl esh and blood and an absence o f
humour which prevents perception that
if the objects o f one s bounty are not
fit to have riches the sooner it leaves
their hands and gets into some one
else s the better for society The lack
o f hum our is pardonab le in parents and
other near relatives ; their reasoning Of
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l 61 l
course runs exactly c ounter to this
We can sc arcely expect it to be other
i cs ap
wise and c onsequently even cyn
plaud prec autions taken to segregate th e
shares Of kinsmen already labelled de
fective— the feeble minded the vicious
and those who have made a signal mess
gs But what is the esp ecial
o f thin
merit Of punishing an entire brood b e
cause Of the possibl e d elinquen c ies of
unascertained individuals ? Does no t
closing the door of the barnyard tend
to paralyse initiative diminish energy
and generate a false atmosphere of
social importance the distingui shing
“
cackle of which is We would like to
t but we can t and so let s put o n
get ou
”
airs
If the toll of thos e spoiled for
world service by being left a comp e
’
teney in trust were set o fl against thos e
wh o came into their own only to sq
uan
der it over which should we b e dispos e d
to she d th e most tears ?
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62
l
B ut I hear some e stimable and puz
“
Many
ot shock e d p e ople say :
zled if n
b en eficiaries would prefer to have
others look after their property ; most
whatever th eir other merits are not
qualified to do so and there is a body
in the community with especial quali
fications for the task the professional
trustee s Before replying let me qual
ify my sympathy wi th the power to
spend as a tonic to character to this
extent : not only do individual cases de
mand exceptional treatment but no
on
e could reasonably quarrel with a
di scretion that would pos tpone c om
plete ownership in most cases to the
age of twenty five or thirty a period at
which the sec ond generation is apt to
show signs of ste adying down rather
than relinquish it at the bare limit of
twenty one As for disinclination to
care for property it is not feasible to
bu
ild on thi s b e cause of th e host of
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l 63 l
LAW AND
THE FAMILY
—
ff
gents
atto
neys
men
O
f
a
ai
r
s
call
r
a
them what youwill— waiting with their
mouths op en for just such choice mor
The fallacy lies in the failure to
sels
distingui sh that under the ty ing-u
p sys
tem th e b eneficiary has no power o f
selection and no option as to whether
he or sh e wishe s to take charge of the
An agent picked
inheritance or not
by th e absolute own e r of property is to
all intents as responsible as a trustee
named by a te stator with the advan
tage that there is a string attache d to
the employm ent which canb e twitch ed
if th e association prove unsatisfactory
As for the class with p e culiar qu
alifi
cations it is axiomatic that training
and exp erience should count in th e
management of investe d wealth and
que stionably they do For the sak e
of s e curity som e t e stators s e le ct a tru
st
company in preference to an individual
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64
l
THE THIRD GENERATION
n the theory that it cannot abscond
o
.
This is all very well from the point of
view of safety but in many instances
the tenant for life has to put up with a
lo w rate of income for the c orporation
is so intent onpreserving the principal
—
the corpus as it is called for its o wn
protection that it is apt to give pos
In
terity the benefit of most doubts
these days of high prices and high taxes
the special distributions familiarly
“
known as rights which accrue to
stockholders from time to time Often
come in handy A trustee is bound to
deal with these perquisites acc ording to
law and it is often a fine point whether
he may then pay over as income or
must add them to the principal Where
property has b een intrusted to an agent
no such distinction exi sts except as a
matter Of judiciou
s handling and it
rests solely with the owner whether to
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65
l
TH E THIRD GENERATION
to go to
slee p pro fitably onany invest
ment
The testator in question a bachelor
made a will shortly before hi s death
some seven ye ars ago in favour of two
niece s to whom he left seventy—
five
An
thousand dollars apiece in trust
ticipation of inc ome was forbidden th e
corpus securely guarded from the reck
le ssn e ss or gree d of future husbands
and the trustee chosen one Of the salt
a God fearing man and
of the e arth
contemporary of the testator noted for
The
his integrity and conservatism
property whi ch the trustee took over
consisted of gilt edged stocks yie lding
no t quite five per cent n et but tax
exempt so that each of the girls could
look forward to about three thousand
dollars annually What better could
on
e ask ? yo usay
!uite so ; but o ne
o f the s e girls was wise in her gen e ration
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67
l
LAW AND
TH E FAM ILY
and one was fooli sh and I leave it to
you to dec ide which was whi ch
Their names were Jane and Dorothy
but though sisters their characters
were very dissimilar Jane was a
model of amiability and reasonableness
b ut Doro thy was Opini onated and
fligh ty E ac h was thrilled by her in
heritan c e but not a great many moons
had waxed and waned before Dorothy
began to cause trouble Sh e was on
the eve of marriage and she got it
into her head that the trust fund did
not yield suffi cient in come
Possibly
the young man to whom she was eu
gaged put her up to it Whether this
was true I am uninformed but I know
that Mr Waters the trustee believed
so Dorothy retaliated by applying the
“
epithet back number freely to Mr
Wa ters when out o f his hearing and
by inquiring if there was no way of
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l 68 l
THE
THIRD GENE RATION
getting rid of him and substituting
”
some one more u
though
p to date
b e it said that Mr Waters was only
just sixty and well preserved
It is not material to give th e details
of Do rothy s ungrateful conduct ; suffic e
it that in the end her cantankerous
anim adver sions so
worked on Mr
Waters s s ensibili ties that h e consented
to re sign
H e regarded his decision as
weak but h e was we ary of being per
ally harasse d by th e cavillings O f
pe tu
thi s misguided b eneficiary— so unlike
her serene sister But he remained
firm on one point— h e Would not con
sent to th e appointment of Doro thy s
adviser wh o was now her husband as
his successor He compromised final
“
ly howe ve r by agreeing on a
dis
intereste d p erson of their se lection
a man against whom he kne w noth
ing prejudicial and about fifteen
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[
69
]
LAW AND
THE FAM ILY
nior —
years hi s j u
just to keep the pe ace
This was shortly before the outbreak of
the present E uropean war and o ne in
t to Mr Waters s cons e nt was
du
cemen
disagree able consciousness that
the
several of the gilt edge d secu
rities b e
longing to the trust had been mi sb e
having— shrinking in valu e for no ap
parent cause and in one o r two case s
threatening to pass their dividends
Their misbehaviour gave just enough
semblance of justification to Dorothy s
e agerness for a change
Mr Post the new trustee entered on
his duties informing Dorothy in an
swer to her hope for a larger return that
“
”
he was a believer in n ew values
whatever this mi ght mean It hap
pene d that th e reasonable Jan e married
about thi s time and reassure d by Mr
Waters that the loss o f income on her
share would in his opinion b e mere ly
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70
l
THE THIRD GENERATION
temporary ,
went to live in anothe r
city
Conse quently the sisters met but
se ldom and ceased to b e in close touch
with each other s concerns Three
year s e lapsed ; then one day Jane was
di stresse d by th e receipt of a letter from
Dorothy announcing that Mr Post h ad
sudd enly gone insane
stark staring
”
“
mad so it read and there is reason
to b eli e ve that he has b ee n ou
t o f his
head for some time All his affairs are
inconfusion and we are uncertain where
”
we stand
As Jane had been hanker
ing to ask her owntrustee some se arch
ing que stions her sister s tribulation
jib ed With her ownn ee ds and she hast
ened to her native city
A week of ex citement uncertainty
and re velation ensued afte r which to
make a long story sho rt an accou
nting
was require d of the respective trustee s
The ex hibit th us mad e—th e account of
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l 71 l
Mr Post the insane man being ren
dered by his legal guardian— was high
Taki ng Mr Waters s fig
ly edifying
ures first the gilt —
edged s ecurities that
he had received from his testator ap
pear with their inventoried then wi th
their present market value as follows :
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Dividends
u
nded
s spe
.
Before submitting Mr Post s figu
r es
(as rendere d by hi s legal guardian) i t
should be said that from the outset Of
hostilities he had b een known to e x pati
ate excitedly in private on the cheap
ness O f all American industrials having
to do with the Great War This idea
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l 792 l
TH E THIRD GENERATION
e vidently went to his head and may b e
regarded as the first stage in his dread
ful malady It appears that immedi
ately after his appointment as trustee
he sold all the securities handed over
to him by his predecessor and assumed
an initial loss of about fifteen thou
sand dollars ; then he plunged in; other
wise the schedule explains itself
.
,
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Of c ourse the guardian by consent of
court had already reduced to cash his
entire holdings, much to the joy of the
fligh ty Dorothy who could no t refrain
from whispering to her husband W hil e
,
73
l
PERILS OF WILL—M AKIN G
IN th e preceding paper I challenge d the
wisdom of hampering t h e next gen
cration except in the case of the palpa
bly incompetent by limiting the enjoy
ment Of property to income for life
O utright ownership especially to An
glo Saxon minds is a precious privilege
whi ch we covet for ourselves yet accord
cautiously to others From the dung
hill of absolute possession the owner of
property used to crow it over the world
by virtue of an inh erent right to com
plete control during lif e and power to
fix its di sposition after death restricted
only by the law against perpetuities A
“
”
generation ago th e word inh erent
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77
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LAW AND
TH E FAM ILY
was sacrosanct in this connection and
“
”
solemnly coupled with inviolable
It
r society that proud
was an axiom of o u
man dwe lling under free institution s
could do as he ch ose with hi s own and
that it remained his own under all con
The French law might pre
ditions
s crib e if it would that where there were
children or parents (ascendants or d e
scen
dants) a te stator co u
ld will away
only a certain portion of his e state ;
but the E nglish-speaking peoples hav e
prided themselves on th e right to disim
herit children absolutely provid ed they
made a reference in the will to show
Tom Dick or Harry that they w ere
not forgotten ; and henc e the origin of
“
”
the phras e cutting o ff with a shilling
The only exception was in the case of
a wife ; the law would step in and pro
vide for her if her husband did not ; but
otherwise assuming that the only cer
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78
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PERILS
OF
WILL MAKING
-
tainties
in lif e are taxes and death the
free born American used to feel that if
he paid the one and set his house in
order for the other his position was
impregnable
The first shock to hi s s erenity came
in the form of a new interpretation of
”
“
taxes
He had thought of them as
money paid for the privilege of domicile
in his commu
nity and of b e ing pro
tected with occasional extra levie s in
case o f war ; he had associate d them
with living but n ever with dying and
he took umbrage at first at the notion
that a dead man could b e taxed The
United States was among the last of the
civilised nations to sanction the doc
trine of inh eritance taxes ; at a time
when most countries including Great
B ritain had become habituate d to it
ou
r legislature s still harbou
red distrust
I rememb er Saying to a judge Of a high
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79
l
LAW AND
THE
FAME Y
e st (State) court that a progre ssive in
heritan c e tax was one of the most equi
table forms of taxation and receiving
an answer which not only conveyed
“
dissent but after thi s the deluge
Yet to day it is one of the common
places of ou
r social machinery
When
legislation did come it came with a
rush ; ou
r s eparate comm unities having
assimilated the formula that the power
Of transmitting and re ceiving by will or
d escent property on the death of the
owner is a privilege which is taxable
vied with e ach other in adopting thi s
shearing process Nor was the wind
temp ered to the shorn lamb ; it blew
upon him from vario s quarters and
frequently from s everal at once In
deed so fast and furious becam e the
competition in this n ew source of rev
enue that eve n the great and conserva
tive State of New York insisted for a
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l 80 l
PERILS OF WILL—MAKING
time on slicing o ff 25 p er cent from
every million dollars bequ
eathed to a
stranger to the b lood and terrib ly vera
s tale s were current Of h o w with
cio u
New York New Jersey and Kansas
(for example) working simultaneously
and overtime and with a second death
intervening it was possible to de
plete an estate valued at
a few months earlier to a melan choly
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,
This orgy could not last but sub
sided presently and more moderate
c ounsels prevailed Public sen timent
recognised that lack of legitimate ex
pectancy on the part o f a fortunat e
beneficiary was no t a wholly valid rea
son for turning his pockets inside o u
t
He should be made to pay for his good
luck but society could not a fford t o
show its rapacity and envy to the ex
tent of bec oming a highwayman instead
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81
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WILL-MAKING
PERILS OF
Another inroad on ab solute own er
ship is the inhibition against leaving
property L
ying ro und loose indefinite ly
It used to b e assumed that any one
cou
ld go wandering over the face of th e
globe without leaving an add re ss and
expect onhis re turn to find his belong
ings just as they were when he di sap
peared plus any windfalls by way of
inheritance in th e interval The theory
was that if he chos e to vanish for an nu
conscionable time leaving money in the
bank it was nobody s b usin e ss except
his own and nothing could b e don e
about it As a re sult innumerable
funds continue d to li e unclaimed in th e
savings-b anks for long p eriods for lack
of a visible own er and the cont rol over
prope rty of various kinds was sus
p end ed by the absence Of pe ople wh o
had voluntarily or involuntarily strayed
away of whom all trace s had b eenlost
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I83 l
LAW AND
THE FAMILY
Our modern society h as d eclin e d to
put up with inconvenience and has al
“
a rolling ston e gath
tered th e adage
ers no moss to read that a rolling stone
if it rolls too long is liable to find itself
ou
The first solution
t of the running
attempte d was to prescrib e that those
who took upon themse lve s to remain
away an un reasonable time from the
place where th ey had li ved or left prop
e rty did so at the risk o f b e ing d e clared
Officially d ead and deprive d of what
they had left behind This though
bold was convincing if th e wand e rer
never re tu
rned but wo uld prove highly
awkward in case he were to app ear in
the flesh lat er to conte st th e tr uth of
the pronouncement Such a situation
was th e issue when th e Supreme C ourt
o f th e Unit e d State s in 1 89 3 solemnly
reaffirme d that no c ourt has ju
risdic
tion to d eclare a person d ead wh o is
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l 84 l
,
PERILS
OF WILL—
MAKING
actually living and that letters of ad
ministration grant ed outhis presu
mp
tion are wholly void At the same
tim e no absentee should plume himself
o n this
It is also the law that if his
mother were to die in his absence the
court having jurisdiction of her estate
wou
ld have power to pre sume that he
was dead and in the event of his re
turn her administrator would b e pro
The wanderer s only recourse
tected
wou
ld b e against those wh o had re
ce ived his share
The second attempt at relief proved
entirely successful though by no means
nove l from a world point of view In
1 9 04 the Supreme C ourt of th e United
States prefaced its sanction of the doc
trine that long absence from one s domi
cile will justify interference by th e
“
state with th e remark : It may not be
doubte d that the power to de al with
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85
l
LAW AND
THE FAMILY
the e state of an absente e was recognise d
and exerted not only by th e common
law of Germany but also by th e cod e s
o f th e various state s of th e continent of
”
E urop e
In short it b ecame only
di sappear
necessary to substitute
”
”
“
ance for d eath in ord er to give th e
r s e ve ral State s j u
proper courts in ou
risdiction of th e e state s of abs entee s
It is now a wide ly e stablished doctrine
that if an own er Of prop erty cannot be
found a receiver o r caretaker may b e
appointed to take charge of it for th e
b en efit of thos e wh o wou
ld b e the own
ers but for him ; and while as complete
provision as is practicable for the re
e stabli shment of the rights and posse s
sion of the absentee onhis reapp earance
is always mad e h e is liab le to lose it
“
altoge ther by unreasonable ab sence
In 1 9 1 1 the supreme court of th e nation
sustaine d the constitutionality of a
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l 86 l
WILL—
MAKING
PERILS OF
State statute which authoris ed the dis
tio n of an e state to oth e rs afte r a
trib u
disapp earance of fourteen years hold
“
ing that constitutional law like other
mortal contrivance s has to take some
chances of infl icting injustice in ex
”
ary cas e s
traordin
Apart from inh eritance taxe s the
chief encroachment on complete power
of disposition by will lie s in th e possi
b ility that a testator s intentions may
b e set utterly at naught by the specious
instru
ment Of compromise and this
’
though the d esire to a scertain and eflec
tuate the real W ishes Of th e dead in
stead oi frustrating th em is as I shall
presently indicate a salient tendency
n
A will admitte d u
of modern justic e
alifi edly to probat e remains an obj e ct
qu
of ve neration by th e courts ; but yo u
must first catch your hare In the
limbo b etween death and probate dead
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87
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LAW AND
TH E FAMILY
men c an be prov ed conclusively to have
no rights if the legatees under the in
s trument and the di sgruntle d heirs at
law get together and de c ide to patch up
their differences Provided everybody
consents and is competent to consent
and no injustice is done to the living
the c ourts will give validity to an agree
ment in varian c e Of the contested docu
ment on the theory that people should
be allowed to do what they chose with
their own To be sure the law pune
sl
tiliou
y insists that the will be ad
mitted to probate but to be carried o u
t
no t ac c ording to its o wn terms but to
those of the instrument of c ompromise
a ceremonial suggestive of baring one s
head at a grave that has b e en rifled by
body snatchers Yet the principle it
self Of compromising a dispu ted will
although it impinges on the imagined
security Of solemn preparations for
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PERILS OF WILL—MAKING
death has won the sanction of hardy
c omm on sense and become another lim
itation on th e power of absolute dis
posal
Yet despite these encroachments
the right to regulate what shall be done
with one s property after death remains
substantially intact and thi s too not
wi thstanding the popular impression
that the intention O f testators is very
easily frustrated It is a current belief
which derives colo u
r from the sensa
tion
al contests of which we read in the
newspapers that a great many wills are
broken But though the attacks of
disappointed or gree dy relatives are nu
merou
s the contrary is true according
to the records Of the largest county of
th e State with which I am most familiar
and where predatory tendencies against
testators are well developed These rec
ords show a steady average of rather
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89
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PERILS OF WILL—
MAKING
should be so good considering the hap
hazard and hasty if not sloppy ex e cu
tion of so many wills Instead o f re
garding the making of a will as one of
the most solemn of ceremonials the
man in the street if not the capitalist
is constantly taking foolish chan c es as
if he conceived it to be a privilege of
democracy to be able to make a will in
”
any old way and have it stand
This is not the place to compare the
merits of notarial wills which obtain in
the Latin countries and French C an
ada with Anglo Saxon testamentary
procedure But it may b e pointed out
at least that a notarial will is a deliber
ate c eremony before one especially
trained for the function wh o retains
the instrument inhi s possession and re
produces it after death with all the pre
sumption of his ofli cial status in its fa
v our
In Great Britain and the United
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91
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LAW AND
TH E
FAM LY
State s the imp erative re quirem ents a re
th e signing or acknowle dgment of hi s
signatu
re by the testator in the p re sence
—
at present two in E ngland
o f witn e sses
and here either two or three as th e
State law happens to specify wh o must
subscrib e their names in his pres ence
and atte st the instru
ment after h e has
Aninh et
affix e d his signature thereto
ent ven eration for parchment and red
tap e still keeps the Engli sh te stato r
chary Of intrusting the preparation of
his will to any o ne but hi s legal adviser ;
but in this country the disin clination of
many pe ople to make a will until
oblige d to coupled with the ide a that
n ear ly e ve ry one c an make a will at a
pinch leads to a lo t of hasty and casual
execution which no t infre quently re
lts in disaste r
su
Indeed it may b e said th at one of
th e mod ern functions of courts of pro
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92
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PERILS OF WILL—MAKING
bate is to adjust the requirements Of
the existing law to the well meant but
inept looseness of those who make
wills or whose wills are made without
suitable preparation O ur legislatures
are constantly being asked to let down
the bars a little further because of some
more or less pathetic instance of inabil
ity to get by due to failure to comply
with existing requirements For after
all slight as the c eremony is when it
comes to the final test the law must be
If the requisites are no t
inexorable
performed the will bec omes waste pa
per and the only issue left is whether
ou
t of sympathy for ignoran c e the law
can by legislation reduce still further i ts
demands without encouraging fraud or
chaos
Three concrete case s from a single
recent volume of one of the State re
ports will illustrate the p erils to which
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93 l
PERILS
OF
WILL-MAKING
paper is hi s will there is no acknowl
edgmen
t by the d ecease d of hi s signa
ture and so no valid attestation of his
”
signature by the subscribing witn esse s
The second came near b eing a case of
The te stator a man
too many cooks
of means wh o was ill and had a lawyer
at his elbow was advise d while waiting
for the atte sting witnesse s to ea rmark
the pages of his will by wri ting his
name on the margin of each with the
exception of the last This he did and
at thi s point the lawyer left the room
On the arrival of th e witnesses the tes
tator was about to sign in the proper
place —between the inte stimonium and
attestation clause s— when his nurse
stopped him and instead he wr ote his
name in the margin of the last page
The attestation clause was then sub
scribed by the witnesses After their
d eparture th e lawyer return ed and said :
,
.
.
,
,
.
.
-
.
.
95
l
LAW AND
TH E FAMILY
Yo uhave no t
signed at the foot Of th e
”
will
To this the testator replied that
the nurse had said the directions were
that he was to sign in the margin
Wh en he heard that thi s was a mistake
“
the testator exclaimed
This looks
”
sloppy doesn t it ? and started to sign
in the proper place The lawyer ad
vise d him not to and suggested making
a clean copy but the testator d eclare d
that he wished to finish the matter that
day A ccordingly he was told that if
he insisted upon writing hi s name in the
proper place the attesting witn e sses
should be brought back so as to b e able
to say how his name got at the bottom
as well as on the side The lawyer then
“
add ed before I do call them do yo u
intend that (pointing to the margin) as
”
your signature to this will ?
To this
“
”
the testator said Yes and thereupon
the witne sses returned and th e te stator
.
.
,
’
,
.
,
.
.
,
,
,
,
90
l
PERILS
WILL-MAKING
OF
wro te
his name in the proper place but
the attesting witnesses did not again
subscrib e th e will The conte stants re
qu
ested the court to rule that th e tes
tator when he wrote in the margin did
no t intend his signature to b e operative
as an execution of the will but the
judge said that it was for the jury to
decide wheth er he so intended it as a
final signatu re and the jury very sen
bly replied in the affirmative Still it
was a close shave from intestacy
In the thi rd instance a will otherwise
valid was di sallowed b e cause it con
tained a b e quest of $30 0 to a churc h o n
th e condition that it b e applied to the
reduction of the mortgage onthe church
property and an attesting witne ss to
the will was one o f the guarantors of
the mortgage This too although the
value of the mortgaged property greatly
excee de d the amount of the note The
,
.
,
,
.
.
.
,
,
.
97
l
PERILS OF WILL MAKING
-
providing that the will shall stand but
th e legacy be void
Eighty years ago
it became the law of England that a will
shall no t b e invalid by reason of the
incompetency of any attesting witne ss
fli ciency
who is not disqualified by insu
of
understanding Yet conservative
tradition in alliance with defective tink
ering o f the statutes combined to pro
duce in one of the Oldest and most en
lightened States oi the Union the u
h
fortunate consequence just cited
The forms prescribed for the ex ecu
tion of wills are framed for the proteo
tion of those making them and the
witnesses have been aptly describ e d as
“
a body guard surrounding the testa
tor to circumvent fraud and collusion
Yet the changing spirit of human so
ciety with its repugnance to th e thwart
ing o f genuine wishes by mere tech ni
calities is o n its me ttle to seek in the
.
.
.
,
-
.
99
l
LAW AND
TH E FAMILY
interest of e rring mo rtals wheth e r this
or that te stam e ntary requir e m e nt is not
superfl uous ; and modern cou rts apply
ing a kindre d frame of mind to their
problems are dispose d to stretch the
law in their e ndeavours to e ff e ctuate a
manifest purpose O n th e oth er hand
th e abolition of all fo rms would b e a
premium on chicanery and a standing
invitation to ch aos Perhaps there is
no inherent reason except tradition and
obvious se quen c e why the validity of
a will should remain dep endent on
wheth er th e witnesses sign after or b e
fore th e te stator ; yet if thi s con cession
were mad e to ignorance which fails to
ire s att estation
realise that the law requ
of th e te stator s signature
it would
only b e a short step to asking legal
sanction for the convenient yet fatal
habit of altering wills after execution
indulged in especially by Old ladie s wh o
,
,
,
.
.
’
,
,
100
PERILS OF WILL—
MAKING
are fond of tucking into the vacant
spaces left by incautious s criveners or
inserting b etween the lines the various
changes and afterthou
ghts concerning
their possessions which occur to them
Nothing is more dangerous than tam
pering with one s will and nothing more
uncertain in its consequences ; the law
reports abound in cases which show re
su
lts utterly at variance wi th the inten
tion o f the tamperer Ye t democracy
is prone to ask pathetically and with
some surfac e show of reason : Must we
send for a lawyer and have the will re
executed every time we wish to make
a change when it would seem so simple
to scratch o u
t Jane and substitute
Emily in cas e we are ou
t of conceit with
Jane
Perhaps democracy would do better
to rely on the growing inclination Of
courts to further the testator s purpos e
.
’
.
,
’
1 01
quoted will b ring this ou
t more cl early
and furnish the disposer of property a
co ncluding assu ranc e that whate ver his
other wo e s h e has friends at court in a
literal sense
A woman from th e Middle West
r purpose
whom we will designate for ou
“
as Mary Jones well e ducate d intelli
”
gent and self reliant and about to go
to E urope sat down to draw her own
will in th e city of the port from which
she was sailing She proceeded to fill
ou
t the local blank sh e had procure d
by writing in th e exordi um or opening
“
paragraph : Be it rememb ered that 1
Mary Jones of
d h ere she struck
(an
ou
t th e printe d sp ecification of th e
foreign State substituting the city and
“
State of her own domicile)
b eing of
sound and disposing mind etc Next
k sp ac e provid ed
sh e filled in the blan
for the b ody of th e will with some
,
,
.
,
,
-
,
,
,
.
,
,
,
.
,
!
1 03
LAW AND
THE FAMILY
twenty different bequests and then the
spaces in the inte stimonium and attes
E ve ry word not in
tatio n claus e s
print was in h er own handwriting
Af ter this she approache d three ac
ain
tances to whom she showed the
qu
document declaring it to be her will
and asking them to sign as witnesse s
In no other way did she mention her
signature or call it to their attention
They signe d and the instrument was
deposited in her safety deposit box
where it remained until her d eath
There was no doubt that Mary Jones
supposed she had mad e a valid will ; but
had she ? Where was her signature ?
Certainly not at the end where it prop
e rly belonged A rock ribb e d tribunal
would have been apt to say that she had
forgotten or failed to sign her name ; but
a judge of the highest court d e cide d
that her name which she wrote in the
-
.
.
,
.
.
-
,
.
-
.
1 04. 1
PERILS
OF
WILL—MAKING
exordium or Opening paragraph was
meant b y h er as a signature and to
stand as h er signature to the will when
complete d— a conclusion with which
hi s associate s agree d onappeal to th e
full b ench They emphasise d intheir
opinion that tthe testatrix was ex cep
tion
ally intelligent but pe rhaps thi s
tribute was more properly th e due of
th eir colleagu e At all events the
will was admitte d to probate ; whe reas
it is prob able that twenty-five years
ago a cour t would have s et it aside
with an ex pression of regret at the
nece ssity
A woman whos e neare st relative s
were a marrie d childl ess son and three
two of whom were
grandchildren
daughters of a d eceased daughter and
the other the so n of a d eceased son
gave these instructions among others
to th e lawyer employe d to draw her
.
,
.
,
.
,
,
,
,
,
,
1 05
1
,
PERILS OF WILL MAKING
-
written langu
age the court could no t
permit itself to know what had hap
pened All the circumstances atten
dant onthe testatrix might b e shown
including th e numb er of her children
and grandchi ldren— but the stenogra
ph er s blunder could not be introduced
except su
b rosa; the judges were not
supposed to be aware of it
Realising that they were in an awk
ward fix the attorneys for the grand
“
children brought a bill in equity to re
”
mould the will but the c ourt made
short work of this saying that the writ
ten instrument is the final and unalter
able expression of the purpose of the
testator ; that the power of the court is
limited to interpretation and constru
c
tion but it cannot make a n ew will ;
and that to reform the will upon evi
den ce produced after death would Open
the door for fraud to substitute ulterior
,
.
’
.
,
,
,
107
LAW AND
TH E FAMILY
designs for th e express e d intent of a
testator Thereupon th e court pro
ceeded to interpre t and constru e th e
will on its face as if in complete
ignorance of the unfortunate mistake
though painfully aware of it And
after conference five of the seven
judge s came to the conclusion that the
phras eology to their th ree children
just as they stood imparte d an u
nmis
takable intent to give the share s at th e
expiration of the life estate to her the
testatrix s three grandchildren They
pointed o u
t that she knew her son and
his wife had no children ; that she had
three grandchildren of all of whom
she was fond ; and that children Of her
so n and his wife would of n e c e ssity b e
her own grandchildren Arguing from
“
this that the words their three chil
dren were meaningle ss for the reason
that the son had no chi ldren they
,
.
,
.
,
’
.
,
,
.
,
10 8
PERILS OF WILL—MAKING
treated them as an abbreviate d para
“
phrase which should really read my
three grandchildren th e children Of my
”
son and his wife
onth e gr ound that
n
th e testatrix kn ew they were an u
avoidable part of the d escription Hav
ing arrived at this result th ey struck
ou
t the word s the children of my son
”
and hi s wife as inapt and superfluous
which they had a perfect right to do
under the ru
les of law wi th the result
“
m left was my three
that th e re siduu
”
grandchildren the very words which
the careless stenographer had deleted
— a most happy coincidence esp ecially
as the tribunal was presumed to be
unaware of what had happened
It should b e adde d that the two
other justice s composing the court filed
a vigorous dissenting Opinion in which
“
th ey contende d that it was not p er
missible to read into the instrument
,
,
,
.
,
,
,
,
,
.
10 9
1
FEMINISM
IN
FI CTION
IV
FEMINISM IN FI CTION AND
W HAT will the womanof the future b e
like ? Wh at sort of person doe s she
really aspire to become ? After all it
is the vision o f the future in the mind
o f every int elligent woman that is th e
most vital factor in her chronic restless
n ess For sh e knows that the mou
lting
process b egun more than a generation
ago is still incomplete ; yet re alising
th at she has renounc ed th e static con
dition of slave dru
dge parasite or
plaything to which socie ty acco rding
to h er sph ere in life condemn ed h er
sh e is still a little at a loss as to
what sh e has d evelop ed into and as
On the
to where sh e is coming o u
t
,
.
,
,
,
,
,
,
.
1 13 ]
FEMINISM
been given house room There was
never a more well meaning period So
cial uplift with an utter disrelish for
precedents was its keynote and if the
leaders were women even more conspic
uo usly than men it was because it
se emed for a whi le as though the mil
lenniu
m was in sight by reason of th e
fervent impulse to eradicate those evils
most Obnoxious to feminine sensibili
—
ties poverty sexual vice and the rule
The hope was cher
o f phys ical force
ish ed that the day was not far O ff
when the creed of the brotherhood of
man and sisterhood of woman as
promulgated by American democracy
would provide a living wage for every
body aboli sh the double standard of
sexual morals and put an end to war
Not a few believed that they might live
to see a world or at le ast a nation eter
nally at peace safeguarded from intox i
-
.
-
.
,
,
,
,
,
.
,
115
1
LAW AND
TH E
FAM ILY
cants and debauchery and with not a
fly in a shop window where food was
exposed for sale
NO wonder th e vision was alluring
even though the cynical murmured that
life would become an interminable
afternoon tea ; we all of us fell mo re or
less under its glamour and were re ady
to admit that remarkable progre ss had
b een made in a very short time And
then o u
t of a clear sky—or now that
we look back a very murky one —c ame
the dynamic Europ ean tragedy delu
g
ing th e world with blood a conte st u
n
paralleled in the numb ers engaged the
deadliness of the projectiles and the
inhumanity of at least one o f th e par
ticipants
In th e twinkling of an eye
we seeme d to have gone back a hun
dred years ; th en E urope was an armed
camp yet scarcely so ruthless ; and o u
r
vision to be the very stuff of whi ch
,
-
.
,
,
.
,
,
,
.
,
1 16
FEMINISM
dreams are made for the gold en youth
o f the world we r e in th e trenche s
and all the en ergies latterly so rest
less of womankind had b ecome fo
cussed on th e old fashioned duties of
mothering nursing comforting and
b earing her load of sorrow Force
brute masculine forc e— was in the sad
dle again and th e hushed statistics of
thi s carnival of blood and fire attested
on ce more the price which women have
invariably paid as inhabitants of an
invaded country
While the war lasted o u
r souls were
so racked that the world looked topsy
turvy and nothing real except grim
courage and the power of munitions
But with the advent of peace society
is already re verting to the pro blems
which se emed to sanguine feminin e
minds nearly solve d Ye t in the light
of what has occurred should not wom
,
,
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,
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,
1 17
1
FEMINISM
and whether we like her or not if we
get in the way we are likely to be
run over Sexagenarians can remem
ber when it was the first duty of a
woman to sit at home and do fancy
work until she was asked in marriage
Now even the conservative take for
granted her right to make the most
Of her o wn life as th e phrase is in
some bread winning occupation In
deed the pendulum has swung so far
that the daughter who stays at home
to tend the o ld folk is apt to think she
makes a sa crifi ce
As to the wrongs which have not
been redressed and the rights if we
except the power to vote which will so
soon be hers what are they ? I speak
o f equality before the statute laws
In
my native State Massachusetts at
least she stands on a c omplete parity
with man as regards her person her
,
,
.
.
,
,
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,
1 19
LAW AND
THE FAMILY
property and her children Under the
law as it read when I came to the bar
the father was the natural guardian of
the minor children ; now very prop erly
both parents share th e right in com
me n and ne ith er h as more power of
control than the other B ut even nu
d er th e old law th e in e quality was one Of
form rather than substance for if dis
cord arose th e courts almost invariably
gave the custody of a child of tend er
years to the mother unl ess she had for
feited the right b y meretricious con
duct Tod ay one hears it urge d by
feminists of a certain typ e that a wife
should not be d eprive d of he r ch ild for
mere infidelity It is indissolubly hers
b ecaus e she gave birth to it—s uch is
the plea B ut this is parenthe tical
Woman has suff ere d so much in th e
past from oppression that it is no t u
n
natural sh e should think of herself as
.
,
,
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,
,
,
,
.
.
.
.
1 1 20 1
FEMINISM
still oppressed The law is merely crys
tallised public sentiment
and this
country still contains too many men
not all Of them recent emigrants wh o
treat their wives as vassals especially
in money matters doling ou
t to them a
niggardly pittance which is never paid
until prodde d ou
t of them
The Turks
still require I b elieve for the proof of
a will two witnesses if both are men
and three if one is a woman It took
a long time to persuad e the English
conscience either lay or clerical that
it was inequitable to grant a divorce for
infi delity to a husband and yet refuse
on
e to a W ife unless sh e could prove that
her lord and master s transgression was
couple d with cruel and abusive treat
ment or was so flagrant as to b e termed
notorious She was expected to b ear
her cross with becoming resignation
le st the foundations of th e family be
.
,
,
,
,
,
.
,
,
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’
.
,
121
1
FEMINISM
reservation let me hasten to add so as
to antic ipate the same stricture from
a s c ore Of feminine voices ; but even thi s
is a matter of lax administration rather
than Of positive inequality I refer to
O flen
against chastity Somehow
ces
the woman c ontinues to b e haled into
court while the man slips through the
net in whi ch they both were taken I
was assured the other day by an engag
ing femi nist at dinner that a woman in
New York had been sent to the peni
tentiary for six years for having stolen
two dollars from a man with whom she
was too intimate W hile ex pressing
u tter disbelief in the authenti city of
the story I agreed that it was sorry
justice
But after noting this exception it is
safe to assert that the woman who
pauses to think has to day little caus e
to complain o f being penalise d on ac
,
,
.
’
.
,
.
.
,
.
,
-
1 23
1
LAW AND
TH E FAMILY
count of her sex and least of all in these
United States where she is indulged as
no other wome n in the world have e ver
been Who are the chief b enefi ciaries
r liberal divorce laws ?
More
of o u
than two thirds of the libellants are
women and as every one familiar
with the subject knows W e far o u
t
distance in the number of divorces
granted annually every nation o n the
glob e with the single exception o f the
Japanese I am not among those wh o
regard liberal divorce laws as an evil ;
the point I am making is that frequent
divorce and the eman cipation o f wom
an have gone hand in hand It was he r
c on tinuous kno cking that caus ed the
doors o f legislation to Open wide and
it was her refusal to put up with intol
c rable c onditions that has made he r
such a frequent petitioner at the bar of
social justice It is chiefly b ecaus e it
,
,
.
-
,
,
,
.
.
,
.
1 24.
1
FEMINISM
l
relieves women from th e unhappiness
caused by some form of masculine
abuse that the remedy of divorce has
such a firm hold on the conscience of
democracy
And yet with this knowledge avail
able— that in the eye of the law men
and women stand on an equality it
could not be said that at the time the
war broke ou
t there was any abatement
in feminine restlessness On the con
trary woman s demeanour as she stood
with the remnants of her chains clank
ing about her heels s u
ggested one wh o
had seen a vision and been exalted
Far from b eing satisfie d with having
altered the written law she thrilled at
the prospect of being ab le to modify
that whole body of public Opinion
known as the unwritten law or social
conventions Here is the modern bat
tle ground She reason ed that men
.
,
-
.
’
,
,
,
.
,
.
-
.
1 125 1
FEMINISM
tempting to cop e with human nature
sh e had undertaken a larger task th an
she had anticipated
While this desire on the part of
woman to alter the unwritten law is
world wide her perspective varies ac
cording to nationality It is well to
remind any audience of Ameri can
women at the risk of displeasing that
as intellectual companions to their hus
bands they are apt to be far inferior to
their Gallic sisters who aim to look at
lif e from the same angle as the men
they marry in the interest of an equal
mental partnership French husbands
and wives play together much more
sympathetically than ours for the rea
so n that they more frequently have
tastes in common and view existence
through th e same lens The wife s
ruling motive is to retain h er hold on
her husband s fancy If he were to be
.
-
,
.
,
,
,
.
’
.
’
.
127
LAW AND
TH E FAMILY
come indiflerent it would be partly her
fault (so at le ast she automatically rea
sons) and she must not fail to keep
herself attractive She recognises that
if she b ores him sh e is lost ; conse
quently she is ever on the qui vive to
keep up with him ; and with all her au
dacitie s she n e ver forge ts that sh e is
feminin e
The national theory of the Am erican
marriage is that it is a mating of kin
dred souls Yet in numerous case s the
American husband has the app earanc e
o f lagging behind or his wife of soaring
ahead according as one chooses to put
it It has long been axiomatic that the
American wife felicitates herself onher
sup eriority to her husband though she
refrains from telling him so O n th e
other hand the American busine ss man
has e ver been accused of sacrificing h is
wife on th e altar o f his ownabsorption
’
,
f
,
.
.
,
.
,
.
,
128
1
FEN
IINISM
in money-making and of salving the
wounds due to his n eglect with the oint
ment of u
nlimite d credit This is not
the moment to inquire wh o is the more
My purpose is merely to
to blame
point ou
t that de spite the devotion
whi ch each take s for grante d the Ameri
can husband and wife are far too apt
“
to n eglect team wor
They do not
think about the same things and
largely for the reason that the wife
after child b earing is over prefers her
owntastes to thos e which might re nd er
her a factor in her husband s advance
ment The vast majority of American
wives make no deliberate contribution
to their husbands for un e s
If we seek
a reason why they do not cultivate
more telepathy it may b e found in
their taking for grante d that their hus
bands will not bolt but go plodding
o n and th e Am erican husband gene r
,
.
.
-
,
-
’
.
’
t
,
,
,
129
.
FEMINISM
unduly bitter—the E nglishwoman has
been vouchsafed some of the privileges
long wi thh eld by law and discou
nte
nanced by tradition Accustome d as
sh e was from infancy to b e the echo of
masculine opinion ; if marrie d to sub
ordin
ate her inclinations to her hus
band s will ; if single to follow the nar
row ruts prescribed as womanly pinch
ing herself to promote the careers of
her brothers and condemn ed to joy
less parochial tasks in the name of spir
itu
al contentment was it strange that
sh e should drink so deeply of the wine
o f liberty as to b e com e a little auto
intoxicated ? The ferment in her brain
repre sented the protest of ages with
the resu
lt that the eddi e s (or p erhap s
we should say W hirlpools) of advance d
femi nism in England to day foster a
breed of women who claim the privi
lege of sowing their wild oats and if
.
,
’
,
,
,
,
,
-
,
1 31
LAW AND
THE FAMILY
we may credit a recent writer in The
Atlantic would re serve to a wife the
privilege of abandoning the father of
h er child whenever h e has ce ase d to be
companionable
C onventional preconception of the
German wif e and mother dovetail
rather closely with the experiences of
“
the heroin e of The Pastor s Wife (by
the author of E lizab e th and H er Ger
man G arden
whos e ux orious hus
band was at a loss to understand why
nco n
she found the marital regime so u
genial that she broke down under it
We are often assure d that the modern
German Frauglories in her sex life and
has no ambition to ex tend her kingdom
b eyond the three K s which long have
“
bound it In a book entitled Femi
”
nism in Germany and Scandinavia
pub lishe d within a fe w years the
American author Katharin e Anthony
,
.
’
.
’
.
,
,
,
,
1 32
FEMINISM
says in her preface : For want of ade
quate accounts and specific reports of
feminist activitie s abroad there is a
mistaken impression that the German
woman still sleeps silently in a home
spun cocoon
Thi s impression is
due to o u
r meagre knowle dge
Eng
lish translations of the literature of
C ontinental feminism are few and al
most the only foreign echoes which
have gained currency in this country
are obviously misrepresentative— such
as what the German Emperor regards
as woman s sphere what the G erman
Empress thinks of woman suffrage
and what Schop enhauer has wri tten
against the sex
An extract or two
from the book itself will indicate the
movement made popular by the writ
ings o f the Swe dish author Ellen Key
and of the Scandinavian Frau Ruth
Bré whos e ambition it is to e qualis e il
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FEMINISM
which have nevertheless b een the logi
cal outgrowth oi th e self -same fai th
The femi nism of the English speaking
countries has culminated in the mili
taney of the Engli sh su
fi ragettes and
the feminism of the German speaking
c ountries has culminated in the literary
propaganda— much abused but little
understood in this country— for a n ew
morality (Die Neue
Though the angle of approach varies
with nationality it is upon the unwrit
ten law or the body of social conven
tions that feminin e attention is now
focussed The attention of women in
all lands is c entre d o n endeavours to
modify popular Opinion as to what they
ought to do say or think Up to a
certain point society has b een no
laggard in showing sympathy Who
longer demurs that women come and
go unattended simulate men s hats and
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1 35
LAW AND
TH E FAMILY
far as they can without dis
ing th e b eholder carry lat c h
sion
illu
keys have their separate clubs and sep
arate bank accounts read everything
under the sun and discuss almost
everything with n early everybody ?
These are but random symbols of liber
ties galore whi ch the world s changing
temper has grante d almost by acclama
tion The barriers to individual fre e
dom are down and progre ss virtually
unimp ede d until we reach the firing
line that battle ground of contempo
—
ary
lif
e
and
mod
e
rn
c
i
o
n
the ob li
fi
t
r
gations of husbands and wives towards
each othe r and th e world s attitude to
wards single women wh o choose to b e a
law unto themselve s
When women
talk of ine quality to day it will gen
erally b e found ( apart from the ballot)
that what they have in mind involves
the sex re lation
coats
so
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FEMINISM
Three-quarters of the plays and half
of the novels written during the last
twenty years have d ealt with one or
th e other of these themes which have
b ecome more o r less intermingled b e
c ause oi a lurking growth in the femi
nine mind that maternity is a right and
that th e sex relation may be casual
without detriment to the eternal scheme
o f things
A number of years ago a
clergyman now deceased told me of a
visit from a prepossessing but respect
able appearing young woman who asked
h im to tak e charge o f her bank book
She was going to the hospital ; if she did
no t survive h e was to use the money
fo r the baby s benefit
In the course
o f conve rsation it app e are d that she
was self supporting and single but
love d children and had longed to have
a child ; that acting on thi s impulse she
had picked ou
uain
t the man of h er acq
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FEMINISM
self supporting modern woman
puts to herself Some men are bru
tes
and comparative poverty jars on one
accustomed to the snugness of an apart
ment wh ere art and thrift or comfort
and social service walk hand in hand
But this po wer to choose may prove a
two -edged sword if brandished sol ely
“
in the interest of safety first as the
example of maternal craving just cite d
suggests The modern woman who
turns her back on matrimony unless it
promises dividends of eighty to one
hundred per cent must perforc e atrophy
her natural instin c ts unless she can
exact some concession from a sympa
thetic world
Is the day coming when women will
reserve as on e of the conditions of mar
riage the right to break away later with
ou
t the loss of self respect o r social
prestige ? The signs are multiplying
th e
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LAW AND
THE FAMILY
that this is what she is after C hief
among them is the alter ation in the
world s attitude towards the woman
“
We all know what
wh o has erre d
it used to b e— social ostr acism ; and
that the penalty was fixe d by oth er
women C onsider the change of sen
As we look b ack we might
timent
almost d escrib e the last quarter of
a century as the golde n age of the
her oine of irre gular life How many a
dramatist and novelist of this period
has devote d hi s wits to trying to re
habilitate her It is a long remove
from th e copious yet cr ocodil e tear s
that we she d at the de ath -bed of th e
C amille of ou
r youth to th e sophi sti
cate d apologie s we mak e for h er latt er
“
day succ essors In The S econd Mr s
”
Tanq
ueray publishe d in 1 894 th e
chivalrous middle aged her o takes as
hi s s econd wife a beautif ul woman of
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1
FEMINISM
twenty-seven with a notorious past
and youall know with what conse
is
en
Yet it is with an u
ndisgu
ce s
qu
edly mournful air that the d ramatist
Pinero re aches the conclusion that th e
v enture did not justify itself ; for he
puts into the mouth of the irreproach
able daughter wh o could not stomach
her stepmother s personality and was
thus the moving cause of the catastro
“
phe If I d only been merciful " a
th e closing tag of the play Some
time ago I attended the perform
ance of an agreeable English comedy
where the curtain descends on th e
mutual orthodox embraces of a stur dy
recluse with scholarly taste s and an
alluring female nomad whose shadowy
past was so far glosse d over that th e
audi ence skilfu
lly kept in th e dark as
discre
to th e exact natu
r e of h e r in
tions went home feeling that it really
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FEMINISM
a war heroine in contemporary E nglish
“
fiction of the serious sort who let I
dare not wait upon I would in her re
lations with her lover and not a single
novelist wh o would think of apologis
ing for her I am not c avilling ; I am
merely reporting the general drift of
pub lic sentiment Men never were
espec ially severe on women for such
shortcomings though they drew the
line at marrying them It was thei r
own sex which kept them social out
casts and to their own sex is mainly
due the more lenient attitude of the
present day The c urrent popularity
“
o f the Bib le text
He that is without
sin among you let him first cast a stone
”
at her is but the reflex of a feminin e
demand for more exac t justice which
“
can be reduced to the query : Why
should the world be so much harder
”
on wom en than o n m en ?
Here of
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1 43 1
LAW AND
THE FAMILY
course we are confronted by th e funda
mental facts of biology But wh en one
informs the advanced feminist th at m en
and women never were alike and n ever
will b e and that a cre ed which would
fix exactly the same standards in s e xual
matters for both with the sam e p enal
tie s for their infraction would conflict
with the laws of human nature in the
framing of which neither were con
lted— she flares up and says sh e
su
knows b etter And so as Henry Jame s
would have said there you are Not
content with th e compassion for and
readiness to befriend the fallen woman
which a sympathetic world has gen
crated the feminists would restore her
social position into the bargain Only
“
they put their grievance this way : If
m en do no t lose caste by lack of ch as
tity why should women ? Th ey ought
to stand or fall together
This is what
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144
FEMINISM
the modern woman has at the back of
her mind when she talks of inequality
When we turn to the reciprocal obli
gations o f husbands and wives we find
ourselves on the firing line and facing
the inquiry
Where do we go from
”
here ?
I refer in the main not to the
orthodox masses but to the tenden
cies of those wh o claim to be leaders of
thought Who but a ninny would ex
change the modern woman as she often
is for the old fashioned one as we are
apt to imagine her ? It being woman s
nature —ponder the word—~to be sweet
and charming compassionate self sac
rificin
g loving and tender hearted who
can regard her exchange of docility for
self reliance and an outlook limited
by her garden wall for the initiative
which enables her to see the world as
it really is as anything but a gain ?
There used to be dread in the days
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145
FEMINISM
Lily Dale —I chronicle almost at ran
What a delightful coterie yet
dom
how vibrant with th e elements of
weakn ess which the modern woman
is taught to despise ! Not an ounce
of sophi stication
as we now under
stand it inthe company There were
arrant yet charming gees e among them
notably the two daughters of the Vicar
low
of Wakefield and dear Dora Spen
wh o judged by modern standards
s carcely kn ew enough to go in when it
rained Yet while agreeing that if
they had known more of life they would
have b een spared some very harassing
ex periences are we not move d to think
at time s that the sophisticated woman
of o u
r day knows to o much for h er o wn
happiness ?
You will recall that David Copper
field after hi s aunt Betsy Trotwood
lost her money goes to tell Dora and
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147
1
LAW AND
THE FAMILY
release her if she wishe s from her en
“
H ow can you ask me
gagement
anything so foolish ? pouted Dora
Love a b eggar ! Dora my o wn
dearest said I I am a b eggar ! H ow
can yoube such a silly thing replied
Dora slapping my hand as to sit
there telling such stories ? I ll make
Jip bite you ! I declare I ll make Jip
bite you said Dora shaking her curls
if you are so ridiculous
But I looked
’
so serious that Dora left oflshaking her
curls and laid her trembling little hand
upon my shoulder and first looked
scared and anxious and then began to
”
cry
Whoever reads the entire scen e will
agree that no on e could be more charm
ingly inconsequential and b ewitchi ngly
vapid Yet if one were ob liged to
choos e I as a mere man should prefer
to take my chan c es with Dora assum
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1 48
FEMINISM
ing that she was not merely a figment
o f Dickens s fertile b rain than with the
very competent young woman whose
letter to a woman s column of the news
paper I read the other day
My hus
band stays at home evenings r eads and
smokes He gives me fifteen dollars
every Saturday to run the house and
expects me to do my o wn work He
earns four dollars per day He has
quite a bank account for the children s
education and won t give me o ne cent
over fifteen dollars except that in sick
ness he pays the doctor and the nurse
I think he is unfair When I
married him I was well dressed and be
longed to several c lubs but now I am
asked to give up my clubs I thi nk he
ought to give me five dollars a week to
do the work and b e able to dress like
”
other well dresse d women
This correspondent wh o signed her
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1 49
1
FEMINISM
old storage and her ability to b uy
ready made all sorts of things which
her predece ssor had to manufacture or
Even th e kitchen of the
go wi thout
working man s wife is a paradise com
pared with what it used to b e ; and it is
“
fortunate that the movies should
have bee n di scovered just at th e mo
ment when she has leisure enough to
enjoy them
ing f rom concrete re ality to the
Tu
rn
portrait-gallery of contemporary fic
tion wh o are the succe ssors to the list
of obso le t e h e roin e s just enumerate d ?
We should expect to find inspiring ex
amples of what woman would be now
that she has so n early entere d into her
o wn; and
if progress and charm go
hand in hand the very latest type
ought to b e the most engagingly repre
sen
tative D eliberate contributions are
not lacking ; indeed the novelists vied
c
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1 151 1
LAW AND
TH E FAMILY
with on e another in depicting her as sh e
was j ust b efore the war broke ou
t We
n ee d not dwell o n the meritorious
heroine s of that middle period wh en
woman s cause still hung in th e bal
ance and w r i t e r s were move d to
level their scorn at th e p rejudice s
that d enied woman brains and th e
right to think or rankly discriminate d
against h er Dorothea Brooke Tess of
the d Urb ervilles E sther Waters Mar
cella— to cite a few o ffhand— were
women trying to shake o fl the shackle s
o f s ex or wh o were m e rcilessly pillori e d
They had as a contemporary one D ai sy
Miller the frank and artlessly poise d
young woman who walked ou
t of Mr
Jame s s inner cons ciousness into the
limelight and d emonstrate d to an as
tonish ed E urope that an Ame rican
could paddle her c anoe o nany river and
yet remain irreproachable Alert as
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1 52
1
FEMINISM
she was and attractive as she was her
personality like a shellacked surface
radiated piquancy rather than charm ;
and undoubtedly her distinguished au
thor had his tongue in his cheek in offer
ing her as a national asset for cosmOpol
itan scrutiny Yet as we look back at
her to day doe s she not seem almost
o ld fashion e d
and her audacity prim
ness when we compare her with her
British successor of a quarter of a cen
tury later the emancipated Ann Ve
ronica ? In An we have the very stuff
o f which th e new woman s dreams are
fashioned if we are to credit her cre
ator a would b e psychologist as well as
gifted novelist On the river where
D aisy Miller paddled there were no
rapids and if there had been sh e
would have skilfully avoid ed them by
wading ashore ; but in her successor s
c as e no t to take the plunge was to re
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15 3
FEMINISM
eyes so as to seem blameless Not long
after their return to England the pro
fessor s undivorce d wife die s and we
leave the happy pair making overtures
towards social recognition Young girls
d evoured the book freely when it was
published and though there were mur
murs of di sgust here and there the
reading pub lic accepted it as it has ac
cepte d the author s later books as a
study in social progress piquing to
”
“
the curiosity
Who knows they said
“
to th ems elve s
but this may b e the
coming woman ?
Her creator wh o stands in the front
rank of contemporary novelists and
whom many regard as a searching
interpreter of social lif e is evidently
sure she is and has taken pains to say
I admire Mr Wells s art
I
so
gratefully acknowledge the interest of
his novels and his ability to create real
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1 15 5 1
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LAW AND
TH E FAMILY
characters Nor do I s eek to impugn
his philosophy ; to do so would be beg
ging the question ; I am merely putting
him in the witness b ox — using his own
dogmas and his own creations as evi
den c e of his belief and hop e that the
enlightened normal woman of the fu
ture will c onsort with man whenever
and for so long as she likes and leave
him for some one else in case she
“
”
tires of him It will be up to him
to keep her steady ; and the lic ense
suring
o f c ourse would be reciprocal in
individual constancy only so long as
love lasted on both sides W hen I in
quired the other evening of an agree
able and not too sophisticated lady if
we were coming to this her reply was
“
”
surely and when I asked her how
of ten people would separa t e before they
“
were c ontent she said not more than
”
once or twice and the answer seemed
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1 15 6 1
FEM INISM
satisfy her completely So there
you are
“
In The New Machiavelli onpage
2 38 we find Mr Wells the philosopher
and social seer moralising as follows
and many modern women doubtless
have read the passage with supreme sat
“
isfactio n:
After two generations of
confused and experimental revolt it
grows clear to modern women that a
consc ious deliberate motherhood and
mothering is their Spec ial function in
the state and that a personal su
b ordi
nation to an individual man with an
unlimited power of c ontrol over this
in timate and supreme duty is a degra
dation
I confess myself alto
gether feminist I want this coddling
and browbeating of women to cease
I want to see them citizens with
a marriage law framed primarily for
them and for their protection and the
to
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15 7
FEMINISM
en
ce of which is anoth er case of hero
qu
and heroine going over the falls to
gether Isabel Rivers wh o does not
appear upon the scene until after the
middle of the four hundred and ninety
pages becomes so e ssential to the hero
that he abandons his intelligent if not
ve ry interesting wife who has shared
and sought to embellish his fortunes
and here is their dialogue on the eve of
“
eloping : We have made a mess of
things Isab el—o r things have made a
mess of us I don t know which O ur
fl ags are in the mud anyhow It s too
late to save those other things ! They
have to go Youcan t make terms
with defeat I thought it was Mar
garet neede d me most B ut it s yo u
And I need you I didn t think of that
e ither I haven t a doubt left in the
world now We ve got to leave every
thing rather than to leave each other
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LAW AND THE
FAMILY
I m sure of it But we have gone so
far we ve got to go right down to e arth
and b egin again
D ea r I want
disgrac e with you
The italics are Mr Wells s not mine
It would b e easy to o fler abundant evi
dence to substantiate that this is th e
drift I have put Mr We lls in th e
witn ess b ox partly because he is so well
known and is in a literary sens e author
itative and partly b e caus e h e is a pro
tagon
ist in social progre ss and high
priest of feminism What h e says is
regard ed as expert te stimony by a pub
lic which includes a host of women and
the p eople wh o prefer fiction which
make s them think He makes no se
cret of his ownevolutiona ry aspirations
for the sex of which he is an outspoken
champion
The evolutionary force s pay precious
little hee d to current morals or individ
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100
1
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FEMINISM
ual preferences The sanction of one
age is often the anathema of its prede
cessor Yet talking of heroines it is
pertin ent to wonder whether democ
racy can find no b etter cure for social
injustice than to crown the woman of
unstab le virtue as a symbol of enlight
ment— crown her in the nam e of in
en
dividual lib erty nicknamed the great
”
adventure with the assurance that all
the rest are cowards To those old
fashioned enough to believe that wom
an at her best should b e not merely
charming to the eye and senses so far
as nature gives her grace but spiritually
also so that she serves as an anchor in
the storms of life— the new doctrine
which ignores th e immutable laws of
human nature s e ems to invite the
ironic laughter of the gods Yet ad
van
ce d feminism was more than half
ready to set this newer type of heroine
.
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161
V
D O ME STI C R ELATIONS
D OME STI C RELATIONS AND
THE C HILD
NO T long
ago a petition for the adop
tion of an infant was presented in court
Of the th ree people who stood before
me all of whom were over forty one
was a man two were women and as I
looked them over I noticed the sweet
dignity of the elder woman s expression
The other was of coarser grain and the
male in the human triangle— for it
turned o u
t to b e a triangle— who must
have been close on fifty five was of
nondescript aspect a little shop worn
though fairly well to do I supposed it
to be the ordinary c as e of childless par
ents seeking to adopt a single woman s
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1 65
RELATIONS
DOME STIC
taken the p roof of his sin to her arms
A woman friend to whom I mentioned
th e episode replied
Well of course
”
sh e had c e ase d to care for h e r husband
This seeme d not unlikely and yet
penetrating as was the truly feminin e
comment I found it sup erficial Nev
erth eless as if to b e ar o u
t my friend s
implication that such magnanimity was
incompatible with matrimonial self
re spect a pleasant faced young woman
came b efore me a few weeks later with
the re quest that I p ermit some worthy
strangers to adapt her baby and inre
spou
se to my inquiry why she wished
to part with it answere d : I m married
now and we have another at home and
though my husband knows and has
paid for the board of the first he prefers
I shouldnt keep it These pe ople have
”
had it ever since I married
Yet until
th e gi r l be came explicit it h ad been on
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1 1 67 1
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LAW AND
TH E FAM ILY
the tip of my tongu
e to suggest that
if I talked to her husband he might
change his mind and this because his
unwillingness somehow jarred on me
from b eing so exceptional O r to put
’
this a little diflerently my memory
held such a long file of husbands ready
to embrace the full conse quence s of
their wive s mistake s before marriage
that I had becom e harden ed (or shall I
no t say softened ?) to the knowle dge
that they were apt to do so
Th e contrast between the two cases
s erv es as a peg on which to hang th e
skein of argument— a skein tangled
nevertheless by the crisscross of chang
ing social currents It happen ed that
the first person (also a woman) to whom
I spoke of the se cond incid ent re
“
marked : I m no t surprised that the
husband didn t care to support another
”
man s child born out of we dlock
The
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1 168 1
DOIWESTIC RE LATIONS
obvious answer was that in my official
consciousness it was the exceptional
husband wh o demurred B eing a nic e
iva
person she shook her head an e qu
lent to saying that in a similar plight it
es
would b e too much to exp ect Unqu
tionab ly it used to b e —and not very
long ago—the convention that the inno
’
fler and the maternal
cent child must su
tie b e severe d in ord er to avoid condon
ing sin or trampling on conjugal pro
A half century back
prietary rights
the conduct of the modern Griselda just
instanced would have seemed so qu
ix
otic as almost to merit reprobation If
to day we admire though marvel at the
magnanimity it is largely because of
th e change in society s sens e of respon
sib ility towards the child
The consciousness of the courts dif
fers from that of two other rival author
ities or te sts— that of the church and
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1 69
DOM STIC
RELATIONS
— which with time becomes
is going ou
a rich consciousness— more essential
than in th e courts which have to do
with domestic relations where legal
technicalities are largely subordinated
with the sanction of precedent to the
main issues involved I remember hear
ing a critic o f a c andidate for the presi
deney say that he would make a pretty
good probate judge This damning
with faint praise was meant to register
the benevolent inexactness permitted
to those who hold this judicial offic e
Yet if a wide and wise discretion is thus
allowed and expected it bec omes inev
itab le that thos e who exerc ise its func
tions vigilantly should di scover that
certain public state s of mind which
strainold conventions exist and have to
b e reckoned with This is merely a
prelim inary to the proposition that in
the mi rror of my judicial consciousn ess
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1 71
LAW AND
THE
FAM LY
refl ecting the experience of over twenty
fi ve years the child has acquired stature
and the parent dwindled proportion
ately where the happiness or welfare of
the one comes in confli ct with that of
the other ; and c orrelatively that the
”
“
woman in trouble has acquire d a
new rating
To be sure th e stock of the latter has
been going up steadily since the cast
“
”
iron days of the Scarlet Letter and
so rapidly of late that if we are to credit
the consciousne ss of the Wells Gals
worthy C ompton M cKenzie school of
—
i
fict on and are they not in th e fore
“
”
front o f the serious c ontemporary
novelists of old England —she has
nearly touched par as a subject of h u
man interest Although Mr Wells h as
recently discovered a Go d with his o wn
peculiar hall mark he has yet to dis
c laim that he would not regard a
.
,
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1 172 1
DOMESTIC RELATIONS
League o f Nations braced by domestic
continence as a menace to lib erty if not
contrary to nature ; and even Arnold
“
Bennett has strayed from the Five
”
Towns in order to introduce us in
“
London in war time to The Pretty
”
Lady with the apparent implication
that not only are the C olonel s lady
and Judy O Grady sisters under the
skin but that the underlying distin o
tion between a c ountess and a street
walker is far to seek
This consciousness of the novelists
and it could be matched over here—re
fleets the glare of the pavements and
footlights That of the c ourts which
deal with domestic relations is derived
from the slow round of drab and often
pathetic situations shorn of all except
sheer reality though co nstantly yield
ing s u
rprises
Ye t my exp erience tal
lie s with that of the novelists to the
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1 73
DOME STIC
RELATIONS
vailing euphemism) Th e freemasonry
of wome n which once was so re lentle ss
that it applied the thumb screw of tor
ture to offenders against chastity with
t discrimination has happily b een
ou
won to mercy ; indeed so intensely and
entirely so that what with helpful hands
and bountiful hearts and all the com
passionate ardour of scientific social ser
vice it is possible to day for a quizzical
court to wonder whether random child
birth is from the point of View of a
fresh start in life more of a handicap
to a young woman than an op eration
for appendicitis C ertainly for one rea
son or another the moral aspe ct which
used to separate the two misfo rtune s
like a gulf has b een considerably modi
fied ; and pressed by the economic prob
“
lem How shall I manage with this
”
new mouth to feed ? the mother finds
it easy to transfer the burden to society
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175
LAW AND
TH E FAMILY
which imp ersonate d by some childless
couple on the lookout for just such a
chance frequently provide s the only
pra ctical solution
Between the child and the rival trio
more or less at odds as to what is best
for it— the parents (or parent) the
charitable societies and institutions and
benevolent relatives or other aspirants
for custody —the consciousness of the
c ourts stands like a buc kler or wind
shield The cou
rts become the umpire
if these clash Why for instance when
adoption of an illegitimate child is
sought shou
ld th e mother b e re quired
to attend ? In order that the judge
may make sure that she is not b eing
coerced into compliance and that her
readiness to part with her baby for good
and all (if it be good) is genuine It
is easy to induce a woman under the
stress of weakn ess and mortification
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1 1 76 1
DOME STIC
RELATIONS
th at the b e st way ou
t of it is to hand
over her new—
born baby to people wh o
”
“
o ffer a good home and that all she
has to do is to sign th e paper Yet if
this is p ermitte d to su
ffice the maternal
instinct— the most precious in the
wo rld— is liable to be robbed of genu
ine choice as more th an one instance
known to me would bear out For the
woods are full of people eager to adopt
children the number appearing to be
o nth e in
crease —and it might be added
that superfluous infants just now are
much easier to b e had than cases of
champagne The old prejudice against
thrusting one s hands in a grab bag
eugenically speaking and breeding by
proxy is in abeyan ce if no t dying out
P arents who long for the joy of a child
in the house are less apt to b e deterred
by the dread of atavism and arguing
that environment and a good bringing
”
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1 177 1
,
DOME STIC
RELATIONS
parties at the same time The hide
and go seek meth od of interviewing
them separately or not at all d erogates
from the authority of the c ourt by
substituting another arbiter Further
more it ex poses the child to complete
ignorance of and disassociation from its
blood relative s in th e event that the
ex p eriment works badly or the adoptive
parents decease In cases of guardian
ship or adoption where the issue is b e
twe en vicious or improvident parents
and a charitable society it is often im
perative for th e child s sake to conce al
its whereabouts lest formative influ
dermine d or the patience of
en
ces b e un
those providing a good home abused
In e very instance involving custody
th e par amount consideration which
mi ght b e te rmed the pole star of prece
d ent where a child is concerned is
what is for its welfare or b e st intere sts ?
.
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1 1 79 1
LAW AND
THE FAM ILY
“
The b e st interests of the chi ld is a
glib and appealing phrase but less e asy
of exact interpretation than appears at
first sight and pole star as it is in th e
cons ciousness of the courts it shades
away in meaning every little while It
is commonly referred to as a modern
doc trine which strictly sp eaking it is
Yet we may fairly assume that the
E nglish judges who for centuries h a
ally awarded c hi ldren to the father
b itu
rather than the mother when the par
ents could not agree held the belief
that they were benefiting the child no
less than the father by recognising his
traditional title to custody The an
cient conception of the child as prop
e rty
with its consequence that the
father must be little less than a mon
ster t o forfeit exclusive rights of guard
iansh ip a do ctrine which left the
mother virtually in the lu
rch died har d
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1 180 1
.
DOME STIC
RELATIONS
in England even if it is entirely extinct ;
but the courts of our several States al
most u
niversally repudiated from the
outset the harshness of th e English
prin ciple by awarding children of ten
der years to the mother provided she
was not very much to blame for the
fami ly discord which usually meant
meretric ious and this to o though th e
statutes of most States constituted the
father the natural gu
ardian during wed
lock
If this favouritism between the
parents as to natural guardianship has
not been don e away with everywhere in
this country the date is not far distant
when it will b e O n the other hand
the attitude of the courts where parents
battle over children has inclined so
steadily towards the mother that unless
she has shown herself wanton o r ex cep
tionally recre ant or he artless sh e is not
likely to be separated from them In
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1 81
DOME STIC
RELATIONS
grow up a self respecting woman In
other words mother love though set
upon a pinnacle in th e conscience of
modern courts must yield to a higher
consideration the well being of her o fl
spring Where th e custody of children
is concerned the only enemy which the
modern woman has to fear is her own
unfitness This is more apt to be chal
lenged by the social workers and chari
table societies who might b e calle d
liaison officers o f the courts of domestic
relations
than by mascu
line ill will
The b eneficent body guard wh o probe
into and bring to the attention of the
court the conditions which menace the
chi ld serve as a buffer between it and
maternalBolshevism But an assu
mp
tion that the contest is one sided or in
variably simple would be far from cor
rect In its capac ity as umpire the
cour t will make sure that th e child is
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1 1 83 1
.
LAW AND
TH E FAMILY
safeguarded and yet not sacrifice d to
the indiscriminate ze al of the social
worker R emonstrance by the parents
will no t avail to prevent th e feebl e
mind ed off spring from b eing s egregate d
’
and so aflorded its only chance for social
development ; yet in d ealing with nor
mal children th e consciousn ess of th e
court keeps the balance even by allow
ing no one to forget that a dinn er of
herbs with parental affection is prefer
able if consistent with safe ty to th e
stalled ox of the institution—or even
the home provide d by the institution
R arely however do thos e wh o minister
to the n ee ds o f n eglecte d children fail
to live up to th e spirit of this cre e d in
their recommendations or to give the
b enefit of reasonable doubt to par
ents ambitious for another chance It
should b e said too that it is a part of
the consciousn ess of mod ern courts that
,
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.
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1 184 1
DOME STIC
RELATIONS
these liaison officers of ou
r social sys
tem who are truly indisp ensable allies
to justice do not often tre spass on on e
another s preserves or trample on one
another s toes in religious matters
Rarely do their interests c lash becaus e
o f an almost universal disposition to live
in peace with their philanthropic neigh
bours a course encouraged in some ju
risdiction
rescribe
s by statutes whi ch p
that wards of the State shall be brought
up in the religion of their parents
When we turn from the semisu
b
merged to the every day family what
human c ontests are fiercer than those
whi ch involve the c ustody of a child or
children ? And here the c ourts have to
reckon not only with maternal love but
with that of the grandmother On the
death of a young wife a man not infre
quently decides to break up housekeep
ing and confide their child for the time
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1 185 1
RELATIONS
DOME STIC
again and his choice oddly enough was
another deaf mute though c apable and
pleasing He had a terrible time in
recovering his baby for there was noth
ing the grandmother and her other chil
dren some of whom were deaf mutes
some normal did not allege against
him and the cou
rt room was vibrant
with sign language all th e deaf mute s
in the community having gathered in
his behalf It was clearly a case of
grandmother love but complicated for
me by the puzzling consideration as to
what effect li ving with two people wh o
were deaf and dumb would have on a
normal child so much so that I re quire d
medi cal advi ce whi ch declared posi
tively that the association would n
ot
be injurious and so the father pre
vailed although I have never felt ab so
lu
tely sure that I was right
It would b e erroneous to assu
me that
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187
,
LAW AND
THE FAMILY
b eing to her mother—an emin ently
suitable arrangement Sofar so good
but when two or three years later he
decides to marry again litigation is not
uncommon due to the refusal of the
grandmother to part with it and in h er
desperation (for otherwise she has not
a leg to stand on) she is apt to try
to prove that her late daughter s hus
band is a disreputable p erson if not
a fiend in human shap e—e vidence
which in the consciousn ess of the court
is liable to b e taken with a grain o f salt
Yet other women often express sym
pathy for the grandmother— as if to
say : It may be the law but it ought
”
to be different
In a case where two
deaf mutes had married and the wif e
had died the father intruste d the only
child who was free from d efe cts con
genitally in all resp ects to h is mother
inlaw
Pre sently h e decide d to marry
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1 86
DOME STIC
RELATIONS
misc egenation to consider
Would
i t be for the best interest of the child
who sooner or later must betray her
origin to stay where she was or be re
mande d to her c oloured natural mo ther
I remember vividly the franti c soli ci
tude of the foster mo ther who had ob
tained the child from a chari table home
a t the possibility of losing her The
case finally hinged o ndisinterested tes
timony which proved the real mo ther
to be so unfit to bring up the child that
“
though onc e more I saw th rough a
glass darkly I sent the foster parents
away rejoicing
Ac cording to the National C ensus of
1 90 6 over 7
divorces were granted
in the United States In the world cen
sus of 1 900 this c ountry stood second
only to Japan
divorc es as
against
with Fran ce and Ger
many showing less than
apiece
of
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1 89
RELATIONS
DOMESTIC
and gr owing conviction of democracy
that it is the b est and often the only
relief against the infernal b rutality of
whatever name and be it crude or
refin ed which at times makes a hell of
”
the holiest relations
Divorce is a
su
rgical operation with more or less
social stigma attached ; app endicitis
with th e differenc e that th e pati ent
though relieve d wears the e armark of
having made a mess of things and yet
constantly the only escap e from a liv
ing death
Incidentally a very consid erable
numb er of the di vorces appli ed for in
volves the custody of children It is
to b e borne in mind h erewith that
couple s deterred by reli gious scruples
from severing the marriage ti e a re per
mitted by the church without reproach
to seek separate maintenanc e— the
modern e quivalent though u
nilateral in
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1 1 91 1
LAW AND
TH E FAMILY
it can only b e brought by a wife
for the divorc e a mensa et th oro of the
i sh ed
old eccl e siastical courts as di stingu
“
from a divorc e from the bonds of mat
”—
a proceeding that pre scrib es
rimon
y
the terms on which warring couple s are
to live apart yet leaves them still man
ri te and much
Th is favou
and wife
invoke d modern e xpedient for all wh o
believe in the literalness of le t not man
”
put asunder is granted commonly on
somewhat less exigent grounds than
would justify divorce pure and simple
C onse quently so far as th e o ffspring
are concerned the consciousn ess of the
cour ts has much th e s ame probl em to
consider whether it b e a cas e of pu
lling
the tooth or killing the ne rve In each
case the truly vital consideration for
society is—h ow about the children ?
The novelist E di th Wharton in her
“
”
b rilliant short story The O th er Two
that
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192
,
DOME STIC RE LATIONS
has e tche d with skilful irony the social
conse quence s of e asy divorce by letting
the curtain fall onthe wife serving after
noon tea to all three husb ands to the
quizzical dismay of the last legal and
fond possessor It would be easy to
match th e unsavo u
ry philandering with
the marriage tie still more or less in
vogue among the fashionable rich wh o
happen to be vulgar by equally gross
and increasingly pitifu
l re alities in the
descending social scale On the other
hand it is scarcely too much to say that
it often seems to the jaded conscious
ness of courts d ealing with discordant
domestic relations that Jack and Jill
might better be allowed to go their sep
arate ways except where there are chil
dren The power to perpetuate the tie
which holds together two utterly mis
mated live s pulling in opposite direc
tions is a thankless privilege unless re
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1 1 93 1
RELATIONS
DOME STIC
concerns herse lf and custody of
her children unless her conduct has
b een outrageous prompt the que stion
whe the r re sponsibility for the p reserva
tion of the family will not rest hence
forth largely on th e attitude of
woman ?
To develop thi s it is to day practi
cally possible for a wife to allow mere
caprice or unsubstantial grievances to
deprive her children of their father and
thus sacrifice their true welfare to her
No woman can b e com
ownegotism
pelled to live under the same roof with
her husband and if she leaves him
even liking some one else better may
no t prevent her from retaining th e cus
tody of young children if all that ap
p ears outhe surface is incompatibility
It would be incorrect to allege that the
consciousness of the cou rts re cognises
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1 1 95 1
LAW AND
TH E FAMILY
more than a drift in this di rection ; ye t
opportunity runs hand in glove with
the temptation— o ne extenuated by the
apostles of freedom who hold that mar
”
“
up to a man and that if he
riage is
’
cannot retain his wife s aflection she is
justified in leaving him This postu
late oi liberty if not e ncouraged by
current fiction is to be read between
its li nes Years ago when a woman in
whose favour I had de cided whispered
to the court ofli cer as she went o u
t
”
“
Tell the judge he s a darling
I
thought it not unlikely that I had been
cajoled Yet this was a mere error in
psychology When onthe other hand
only the other day a young woman (ac
companied by her mother) tripped up
to the b ench to inquire if she could
obtain a divorce or separate mainte
“
nance because her husband smoked in
”
b ed I was disposed to ask myself
,
’
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1 96
,
VI
THE LIMITS OF FEMININE
IND EPE ND E NCE
TH E LIMITS OF FE MININE
IND EPEND ENCE
No more firing was heard
at Brussels
the pursuit rolled mile s away Dark
ness came down o n the field and city
and Amelia was praying for George
wh o was lying on his face dead with a
bullet throu
gh his heart
So it was
“
written in Vanity Fair as e veryb ody
knows and even the gen eration wh o
“
no longer read Thack eray are famil
iar with C aptain George O sborne s and
Ame lia Se dley s Georgian romance
which ended at Waterloo R ather one
sided romance from the angle o f the
modern woman ; ye t vain fop and ego
tist as he fi gure d Ge orge O sborn e was
both brave and good natured breaking
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1 90 1 1
FEMININE IND EPEND ENCE
dull so intolerably constant On e al
most forgets whether she married big
hearted ungainly persevering Dobbin
in the end or not she took so long about
it
i te so ; th e only justification is
!u
that Amelia was a war bride and we
hear so much of war brides just now
She crosse d to F landers too not as a
hospital nurse or canteen worker but
as a camp follower for the wives of the
offic ers of the English army of occupa
tion were allowed to accompany their
husbands to Brussels Was it the
fashion o f that day for girls to marry
o nbriefest acquaintan c e the me n going
o ff to the wars with only a week end
for a honeymoon b efore they sailed ?
Whether they did or no t they would
have been ready to for woman s nature
has not changed she has merely ceased
to wear hobbles I remember hearing
in England in the summer of 1 9 1 6 a lit
.
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1 203 1
LAW AND
TH E FAMILY
tle under the ros e as if a disillusionising
phenomenon that th e widows of men
killed at the front were marrying again
The psychology of this appeared to b e
something in the air a by product of
the c arnival of war which if apolo gised
“
for at all was tagged as woman s bit
done because she was so sorry for the
men Dame Nature is never at a loss
for devi c es by which to repair the rav
ages in population but whatever th e
scientific key to this particular idi o syn
e would attempt to ascrib e
crasy no o n
the superb devotion and se lf sacrifi ce
and the infinite tenderness of woman
during the great war to a mating in
stin
ct
Moreover her display of just
these precious qualities has spiked for
ever the guns of defamers of either sex
who wished us to believe that the n ew
woman would renoun c e the o ld emo
tions which have made her for eternally
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204
FEMININE INDEPEND ENCE
contradictory re asons not always clear
to h ers elf th e slav e of man fr om the
b eginning of time Out of the welter
of world agony and b e caus e of it she
emerges the same old ministering angel
with the identical stock in trade B ut
“
henceforth she purposes to wear her
”
ru e with a diff erence ; the war has
demonstrated this if no thing else She
is demob ilising and though she may
still donher emergency uniform she is
giving up or retiring with good grace
from her emergency occupations Her
net social gain appears in her having
broken in the course of four years no
end of hobbles— hobbles both of body
and soul hobbles that she has thrown
And the net gain resulting
o ff forev e r
to man is that she still aspires to remain
fundamentally what she was before
She re co gnises her inability to compete
with him in physical strength and that
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205
FEMININE INDEPENDENCE
but except among the foreign born and
th e lowe st classes h e is a far le ss ire
quent figure in court than formerly if
only for the reason that his wife refus es
to liv e with h im on thos e terms
In
deed the policy oi marital brute force
may be said to have b ecome so discred
ited that courts vigilant to protect
proper victims have to b e a little in
isitive as to what really took place
qu
when wives seek separate support on
the score of b eing pinched slapped or
shoved Nevertheless as one ascends
in the social scale an irascible flip in the
face or pinch of the arm becomes no less
intolerable than a vicious blow that
really hurts and husbands who indulge
in the practice have only themselves to
blame if their wives d epart Not only
is the wife beater onthe wane but that
arch enemy of domestic happiness the
mal e skinflint who insists on holding
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1 2 07 1
LAW AND
THE FAMILY
the purse strings and administering
them on the the ory that his wife must
ask for what she requires needs far l ess
to eat than he does and that more than
It is
on
e dre ss or hat a year is vanity
p erhaps still a part of the consciousness
o f sophisticat e d cou rts that chiefly at
afternoon tea do women eat with gusto ;
but why elaborate the list of obvious
male tyrants ? Only the other day as
it were woman s self respect was so
timorous and her economic chann el of
escape from thraldom so und evelope d
that her reluctant appearance in court
was tantamount to a certificate that she
had suff ere d infernally It was part of
her creed that a nice woman will not
litigate her conjugal troubles u
ntil her
cup is running over When she could
endure no longer she solved he r s elf
“
resp ect by asking : What else was I to
”
do ?
And a nice woman was rather
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1 20 8 1
FEMININE INDEPENDENCE
exp ected to endure dragging round by
the hair of the head provided her hus
band did not do it too often and was
“
what was termed faithfu
l to the mar
”
riage tie
So much fo r yesterday To day
faithf ulness to the marriage tie in any
spiritual sense excludes so many things
whi ch husbands used to do (and utter)
with domestic impunity that the law
does not attempt to provide for them
Indeed so z ealous are both priest and
lawmaker to preserve the institution we
call the family that the arbitrary tests
whi ch they impose for the guidance of
nice people remain delib erately con
Most churches still forbid
servative
th e remarriage of divorced persons dis
cou
ntenance divorce except for flagrant
infidelity and are lukewarm as to that
and look askance at legal separations
(which do no t sever the marriage tie)
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1 209 1
FEMININE INDEPENDENCE
ordained with such d espatch that an
agonised minority is agitating the e s
tablish ment of floating saloons outside
the three-mile limit or a p eripatetic
“
cruiser to be known as D er Fliegend e
H oll ander (with apologies to Alice
“
B rown s striking war story The Fly
ing
only thre e States have
thus far consented to subordinate local
idiosyncrasies as to what should or
should not justify divorce to a national
cons ensus of opinion This suggests a
latent but unpatriotic distrust by the
individ ual States of extraneous interfer
ence with what the most divorce ridden
p eople in creation except Japan are
“
fond of styling the sanctity of the
hom e and yet a constitutional amend
ment that would prevent divorce in one
State from resulting inbigamy or adul
tery in som e o r all of the others would
seem quite as imp e rative as th e d e
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21 1
TH E FAMILY
LAW AND
th ronement
John Barleycorn But
however this may be it is indisputable
that the legal grounds for divorce in
this country when judge d by the mod
ern standard of what men or wom en
have a right to expect o f a partn er for
life are with rare exceptions almost
compulsory
In other words in this instance as in
others law d efine s the least not the
most which the conscience o f human
society insists on The statutes regu
lating crime cease to concern most of
us individually for the reason that
theft embezzlement and arson seem
utterly remote from ou
r social sph e re
Similarly the likelihood of landing in
the divorce court though l e ss incon
ceivab le than standing in the dock is
associated in our minds with unpleasant
or at the best very unlucky p e ople
Just as th e law sentences th e house
of
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2 12
FEMININE INDEPENDENC E
breaker but is powerless to d eal with
envy hatred and malice and all nu
charitableness so the c ourt of domestic
relations will set free the wife of a dipso
maniac but turn an inexorably deaf ear
to th e plea o f incompatib ility
And
yet the world over and especially
among nice people, the true test of wed
ded happiness the test whi ch breaks or
binds is ability to get along well to
gether While theoretically this has
always been the test it has become
significantly so with the progress o f
woman s emancipation Divorce laws
at their inception were passed primarily
fo r her benefit and at least two thirds
o f the proceedings for severance o f th e
marriage tie and all proceedings for
legal separation continue to emanate
from her Yet inord er to be convinced
th at the in hi bitions o n conduct laid
down by the statutes as safeguards to
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21 3
FEMININE INDEPENDENCE
Land ? The so called survival not
withstanding she had b een b eaten as
sidu
ou
sly o f th e old tim e woman s love
was partly due to her inability to help
hers elf Apologists for the old time
order of things have been known to
claim that she rather liked it Never
th eless in case she left her husband and
carried o ff her children he could re
cover them even though she disputed
their possession incourt and all access
to e conomic ind ependence was closed
to her
Unless she could make o u
t a
desperate case she had to grin and bear
it und er the conjugal roof or starve
It is no t necessary to sp ecify the ave
nues one should perhaps say alleys to
incom e producing employment open to
women to day which tortuous though
they be are widening and straightening
out so rapidly that the menace of in
ability to make both ends meet if she
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2 15
LAW AND
THE FAMILY
se
departs no longer confin e s the ho u
wife as in a bag with the strings drawn
Not only is the s elf resp ecting woman
freed to-day from marrying for purely
economic reasons b ut if ill tre atment
prove her matrimonial lot sh e is often
resourceful enough to b e able to say to
“
her husb and : I can stand it no longer
and can look after myse
In thi s
event the children usually go with th e
wife unless she has b een m ere tricious
and their father must support th em (if
not her) will he nill he which give s her
the whip hand even in a literal s ens e
So also will th e cou rts pre scri be if sh e
is forced to appe al to them In fact
from the angle of refusing to live with
a man after h e has b ecom e intolerabl e
nice women with any appreciable e arn
ing power are virtually prote ct e d to day
from airing their grievance s in public ;
they have only to le ave th e key of th e
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21 6
FEMININE
IND EPE NDENCE
fl at under the door mat and go Indeed
so fast and so far has the pendulum
o f re adjustment swung in her favour
that the c rucial inquiry of the modern
marital situation has come to b e : at
what point does a husband cease to b e
intolerable ? O r to phrase it a little
d ifferently : how poor a sort of man is
it a woman s duty to put up with ?
The latest statistics of the National
C ensus Bureau ( 1 9 1 6) show for that
year
marriages and 1 1 2 divorces to
each
of the popu
lation ; in other
words one divorce to every nin e mar
riages
a considerable increase since
lation in the ratio o f
the previous tabu
divorce to marriage in the United
States O ver against these figures is
to b e set the judicial consciousness that
eight women o u
t o f ten provide d their
husbands are kind aff ectionate sob er
and faithf ul will stick to them through
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1 217 1
,
,
FEMININE IND EPENDENCE
wh o
has told her husband that she is
tired of him and has become attached to
another man prefers to motor back to
quasi respectability over the causeway
of a c ollusive divorce Here is a ten
deney over which both the courts and
the church have ordinarily little con
trol A husband was always free to
leave his wife if ready to pay for the
luxu
ry Of supporting her apart
To
day the privilege is nearly reciprocal
for there is no bar except public opin
ion to prevent a wife from forsaking her
husband if she can maintain herself or
get some one else to maintain her and
provided she mend her fen ces (some
tim es even if she does not) public
Opinion before condemning her almost
invariably inquires : why did she have
to ? Indeed the radicals would per
suade us that to be merely hopelessly
bored by a man —o u
t of conceit of his
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1 219 1
,
TH E FAMILY
LAW AND
countenance and sure before he speaks
—
fficient
what he is going to say is su
justification for a change and that the
marriage of the near future will be ethi
cally dissoluble if a husband cannot
pass the test of being plumbed to the
depths and yet found interesting
After dis counting the auda cities of
fiction as a guide to the philo sophy Of
wedlo ck we must not ignore the resid
uum of truth responsible for this fer
ment— namely that if men persist in
their Old methods it will be more and
more i n the power Of wives to get rid
Of them But the ec onomic power o f
woman to enforce this quasi threat in
volves the gravest o f responsibilities
for it makes the stability of th e mar
riage tie largely dependent o n her rea
so n
ab leness as to what she has a right
to require The E uropean theory o f
marriage as every one knows was
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1 22 0 1
FEM ININE INDEPENDENCE
based onpreserving the husk or shell of
the family life at all costs with the
result that disaffected husbands and
wives who endured each other in pub
lic and strayed on the sly were tolerated
like the thief who returns goods on the
assurance that no questions will be
asked The peccadilloes o f the indi
vidual were winked at in order to pre
—
serve the social institu tion to safe
guard the rearing Of children and the
future Of the race E ven clerical re
pu
gnance to the remarriage of divorced
persons though reinforced by holy
writ springs from the same theoretical
loyalty to soc ial order What is to b e
c ome o f the world if the family per
ishes ? What indeed ! And yet the
growth of soc ial jus tic e has given the
san ction Of law to the severance Of
bonds which the victims of the past
were ex p ected to endure for the sake of
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1 221 1
FEM ININE INDEPENDENCE
pected,
or if there are no children and
he palls on her terminate their union
to all intents and purposes by leaving
a note on her pincushion and the wed
ding ring pendant from the gas fix tu
re
it is Obvious that she holds the holy
state Of matrimony in the hollow of her
hand to protect or to play fast and
loose with as she elects The inviola
b ili ty Of matrimony in the past was bul
warked by the plausible dogmas that
human beings being born to trouble as
the sparks fly upward it is the Chris
tian duty Of all and especially of the
weaker vessel to bear whatever comes
and not to exp ect to o much partien
larly from we dlock ; and that in return
for providing shelter and support a hus
band is entitled to c ertain prerogatives
euphemistically linked in the prayer
book by the words love honour and
Obey which put his wife s su
sceptibili
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223
,
LAW AND
TH E FAMILY
ties wholly at the mercy o f h is tempera
ment The church would still have
wives b elieve that the sanctity of mar
riage forbids its dissolution fo r mere
brutality enforced by a bludgeon o r
carving-knife ; but so man
y women in
the world refuse longer to subscribe to
this tenet that we have in th e United
States (and to a considerabl e extent
over the world) the anomaly Of a great
nation freely utilising divorce in oppo
sitio n to a church militant but legisla
tively powerless
South Carolina abol
ishod her divorc e laws in 1 878 but in
which o ther Of the United States would
a bill repealing them o r forbidding the
remarriage Of divorced persons have
a ghost Of a chan ce Of passage ? In
which of the c ountries Of Europe would
not any change in the relief already pro
ided by law for intolerable conditions
b e towards greater latitude rather than
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1 224 1
FEMININE INDEPENDENCE
restriction ? This obviously puts a
quietus on the theory that woman
should b e ex pected to endure matrimo
nial misery to the bitter end but falls
far short of a certifi cate that she ought
not to be ex pected to endure anything
C ivilisation by its laws has served no
tice on the church and all other social
reactionaries that a wife is justified in
ex pecting more of her husband than
husbands were once ready to concede ;
but the consciousness o f the courts
detects a new social mena c e to day in
the propensity Of some wives to ex
pee t too much
This takes us back to th e war brides
we left waiting on the pier to whose
theories Of what returning husbands
ought to b e the prototyp es of a century
ago and George O sborne in particular
seem obsolete as the dinotherium It
may be that a scarc ity Of men will ar
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1 225 1
FEMININE INDEPEND ENCE
once more in high light an Old truth
one which especially in the United
States was indanger Of being lost sight
o f in the m e dley Of oth e r spiritual forces
—namely that man is a robust and
a fighting animal One Of the effects
Of high explosive carnage has been
to emphasise the fundamental differ
en
ces betwe en the sexes whi c h quasi
feministic propaganda had begun to
discredit and confuse When the to c
sin sounded they rushed to their preor
dained posts — the men to the trenches
with their horrors Of hell fire and shell
shock the women to the canteens and
hospitals even the ambulances and ma
nitions works or to the task Of keeping
home fires burning and the pot a boil
In short when overwhelming
ing
dangers threaten society reverts auto
matically to primitive instincts and the
habits of the trib e
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1 227 1
LAW AND
TH E FAMILY
On this fundamental distinction b e
tween m en and wom en which dictates
to each s ex its offices in the domestic
partnership rests the stability Of the
family a conception at the very root of
the policy of both priest and lawmaker
concerning it Though th eir cast iron
dispositions have been greatly relaxed
th ey still hold fast because forged in na
ture s foundry no twithstanding woman
has lately demonstrated he r capac
ity to perform at a pinch or from eco
nomic choice nearly all of man s work
not re quiring brute forc e or brute
c ourage How is the family to b e p re
served ? Not surely by forbidding a
wif e to insist that the phras e I some
”
times take a glass Of beer th e ex tenu
ating formula so often uttere d in court
shall mean what it implies and not b e a
mere flimsy cloak to disguise the d e
bau
ch eries o f an habitual d ru
nkard
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228
FEMININE INDEPEND ENCE
No t surely by p erpetuating the already
challenged code Of secrecy which con
,
ceals
from wives the ailments o f their
husbands in the name Of professional
honour instead Of segregating or ear
marking all afflicted with the virulent
poison that makes the glory of mater
nity a cross The menace from these
robust vices is Obvious ; but turn about
is fair play The tastes and reac tions
’
o f men difler from those Of women and
no legislation will ever make them the
same Against abuses arising from the
first the law as has b een shown aff ords
ample relief and protection but against
the other only when they are glaring
This puts into the hands of woman a
weapon which if drawn capriciously or
without great caus e imperils the pres
ervatio n of th e family no less surely
than masculine tyranny or vice It is
a safeguard of the race that most
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[ 229 ]
FEMININE INDEPENDENCE
Against the view Of the church declar
ing the marriage tie indisso
e for any
cause (except perhaps adultery) and
that of the lawgiver permitting it to be
severed only fo r the weightiest reasons
is set the inchoate theory that it ought
to cease to bind so far as living together
is con c erned from the hour when the
sensib ilities Of the female are repelled
by the conditions of the partnership
If this cannot be cons trued as license
not to endure at all it certainly consti
tu
te s her the sole judge of what she is
expected to bear in the way of disap
pointment o r dissatisfaction Such a
result if widely sanctioned would from
the point o f view Of the family as we
know it at present be only one step re
moved from a virtual nationalisation Of
husbands
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[
231
]
DIVORCE
MA RRIA GE AND DIVOR CE
THAT there is urgent need of a uniform
divorce law and even more Of a uniform
marriage law to recon cile the diversities
o f our several States seems to be gen
eral
ly admi tted and ye t nothing dies
hard er in this country than local cus
tom and prejudice concerning the legal
formalities Of matrimony and Of its dis
solution Those familiar with the sub
ject are virtually inaccord that there is
little likelihood of se c uring the passage
o f a national
constitutional amend
ment and are resting their hopes on the
gradual in fluence Of the commissions on
uniform State laws established over
twenty years ago The commissioners
appointed from the several States have
,
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235
LAW AND
TH E FAMILY
framed and recommended to the legis
’
e ctin
res among other bills afl
latu
g all
ni
classes in the United States both a u
form marriage and a uniform divorce
ac t the former divided into two parts
a marriage license a ct approved by th e
c onference of c ommissioners August
1 9 1 1 and a marriage evasion act ap
proved August 1 9 1 2 Nevertheless
u
p to 1 9 1 8 the marriage li c ense act has
been adopted in only two out of fi fty
on
e States and Territories
the mar
riage evasion act in only five and the
uniform divorce act approved 1 907
in only three In the summ er o f 1 9 1 8
the uniform divorce a c t was subdivided
by the conferenc e Of c ommissioners into
two parts o ne relating to practice and
procedure the other to annulment of
marriage and to divorce This is a
pitiful showing from the point o f View
of re adiness to subordinate community
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2 36
MARRIAGE AND DIVORCE
sentiment to a carefully considered code
that would unify the laws in their appli
cation to family life from the Atlantic
to the Pacifi c
TO be sure th e attention Of the
United States has been centred on the
World War since 1 9 1 4 yet in the in
terim a crusade to estab lish national
prohibi tion has been succ essful and nu
mero u
s palliative measures in aid Of
social justice have been enacted Bu t
when inquiry is made why so little has
been don e to obliterate the interstate
confusion which makes a wife in one
jurisdiction a concub ine o r bigamist in
another we are told in the words of the
commissioners that the legislators re
“
port la ck Of public interest
Sanctity
”
is a favo urite buttered
o f the home
phrase in the mouth Of Americans The
taunt that we are the most divorce rid
d en people inthe univers e except Japan
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2 37
MARRIAGE AND
DIVORCE
American code s is so pronounced as in
th e numerous systems Of divorce law
maintained in the states of th e German
Empire until the enactment of the code
of
Yet why thi s lack Of current popular
ld seem to lie at
intere st in what wou
the very roots of national character ?
Against what more discreditable evil
could the n ext nationwide crusad e di
rect itself than the lack of harmony in
the State s Of the Union in all which
app ertains to marriage ? O ur spiritual
n ee d Of an interstate marriage and di
vorce law is quite as great as was ou
r
e conomic n ee d Of an interstate com
—
merce law some c ompromise Of local
customs that shall weld ban eful contra
dictions Of principle and practice into
se rviceable unity And here let it be
said that the obstacles to this are in
very small part cleric al but re sult in
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l 239 l
LAW AND
TH E FAM ILY
the main from the tenacity Of State
’
traditions and self satisfied indiflerence
to the value Of exact records The
churches as such except in especial
commu
nities conti nue to be powerless
as ever in this c ountry to control legis
lation concerning the requisite s for
marriage o r validity o f divorce South
C arolina is the one State where divorce
is not permitted ; the divorce laws were
repealed in 1 878 Prior to 1 9 1 2 she
presented the anomaly Of requiring nei
ther a marriage license nor a return or
record Of marriage If the pa rties sim
ply agreed that they were married it was
enough and no formalities were nece s
sary either before or after But leg
islationhas c ured this and th e assertion
to the contrary in the recently pub
lish e d R eport of the National B ureau
of the C ensus
o n marriage and
divorce would appear to b e inaccu
rate
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1 240 1
MARRIAGE AND DIVORCE
and misleading The se ction Of the
South C arolina Act of 1 9 1 2 which
“
reads that n o thing herein contained
shall render any marriage illegal without
”
the issuance Of a license presumably
was inserted merely to protect innocent
persons Life in a community where
the sole legal test of matrimony is th e
say so O f the contracting parties seems
however pastoral o r independent cas
ual from the point Of View of domestic
stability and lovers Of formalities will
be apt to c ondone the irony of an Eng
lish c ommentator not many years ago
wh o proposed to abolish divorce alto
gether and to establish the idyllic con
ditions Of a certain Americ an State
where owing to the absence of divorce
the laws Of succession are adapted to
the complicat ed requirements of polyg
”
amy and concubinage
The intensity of certain prejudice s
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24 1
]
MARRIAGE AND DIVORCE
which accomplished this omitted
to sanction the marriage Of a woman to
her deceased husband s b rother This
particular restriction by way Of affinity
never took root in th e United States
but was virtually repudiated from th e
outset as inconsistent with the com
mon sense argument that if a wife with
young children happens to die the
most suitable person in the world to b e
her successor may be her own sister
E ven the Roman C atholic Church re
gards the prohibition as resting not on
direct o r natural law but merely on an
e cclesiastical command and therefore
claims and c onstantly exercise s the
right O f dispensing with it
But at this point native uniformity
virtually ceases and the idiosyncrasies
Of separate or more frequently groups
e may marry or
o f States as to whom o n
under what conditions one may marry
1 907
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94 3 l
LAW AND
TH E FAMILY
are very far from identical H appily
many of the newer and a few Of the
Older States have taken for granted and
refrained from prescribing in cold type
that marriage with one s mother grand
mother O r grand child is forbidden but
as to more debatable restrictions the
statute books remain dec idedly at Odds
For example there is no consensus of
Opinion as to whether wedlo ck with a
stepmo ther or mother—inlaw is permis
sible and a woman brought up on
Tennyson looked aghast the other day
when informed that in a number o f
States of the Union the intermarriage
o f first cousins is unlawful
As to the
age of c onsent to marriage in some
States the common law rule o f fourteen
for boys and twelve for girls obtains
but this absen ce Of legislation is almost
invariably safeguarded by a statute fix
ing an age limit twenty -o ne fo r male s
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1 244 1
MARRIAGE AND DIVORCE
and ordinarily eighteen for females
below which paren tal consent to mar
riage is requisite
In other States the
age of c onsent to marriage is defined by
statute varying a ccording to lo cality
all the way from twenty one to four
teen for males ringing the intervening
changes and from twenty one to twelve
fo r females
In the provisions rel
ative to the celebration itself there is
no less dissimilarity If it will astonish
some to be told that in the early days
o f New England magistrates not cler
gymen had power to bind people in
matrimony and that prior to 1 686 no
“
marriage with prayer book and ring
was legal in Massachusetts it will seem
more surprising to others that though
marriage by civil authorities is sanc
niversally elsewhere in the
tione d u
country the la ws Of th ree States (Mary
land , West Virginia and Delaware) in
,
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l945 l
MARRIAGE AND DIVORCE
olemnis ed to b e reported to some Ofli
cial specified by law and for n e arly two
thirds of th e States there is legal pro
vision for the State registration of mar
riages even though insome of these
States this provision Of law is not fully
”
carried ou
t
As has b een already
pointed ou
t the governm ent statisti
cianwould seem to have slumbered in
continuing to make an exception of
South C arolina While this shows a
growing sentiment in favour of uniform
methods Of preserving these highly im
portant details c oncern ing family life
it is Obvious that at least one third Of
the sovereign States are still lukewarm
On the subj e ct
This random survey Of interstate
idiosyncrasies reveals a national crazy
quilt Of legislation re lative to all that
bears on matrimony the pattern Of
which displays broad strips of conform
s
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l 247 l
THE FAMILY
LAW AND
ity in custom variegated by patches O f
repugnancy The cardinal difficulty
in the way of recon ciling th e se nume r
ou
s disparities so that the marriag e
laws o f the nation may be virtually
similar is the tenacity of tradition
and community sentiment P erhaps
the most pressing immediate need is
general adoption Of the so —
called mar
the aim of whi ch
riage evasion act
is to prevent couples disabled o r pro
h ibited from marrying under th e laws
Of the State where they dwell from
going elsewhere to be married and re
turning to their native State to set u
p
housekeeping unchallenged There is
ltyfi
no difli cu
wh atever inpre vent ing this
dire and disgraceful cons e qu ence It
results solely from the lega
l necessity
an Odd one to laymen—O f recognising
the marriage re quirements sanction ed
by a sister State although the laws of
.
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l 948 l
MARRIAGE AND DIVORCE
the original domicile would pronounce
the parties fornicators Any State h as
th e power to prescribe by statute that
the marriage of those who leave it for
such a purpos e shall b e void with in its
b orders R eciprocally it may insist
that befo re issuing a license to a person
wh o re sides o r intends to continu e to
reside in another State the offi c er hav
ing auth ority shall satisfy himself by
afi davit that the petition er is not pro
h ib ited from marrying by the laws of
that other j u
risdiction This meets the
case Of off enders both going and com
ing so to speak and seems solely in the
interest of decent living ; neverthele ss
as has been already pointed ou
t n
o
alacrity has thus far b een shown by the
separate States inadopting it though a
few Of them have kindred provisions
already Thi s dilatoriness is due mainly
to jealousy Of outside dictation or inter
.
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249
l
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MARRIAGE AND DIVORCE
False s entimentality in alliance with
lgarly independent notion that
the vu
marriage in a democracy is nobody s
real busin ess exc ept the bride s and
groom s has a tendency to nip and re
tard measures whi ch like forward shoots
in a heterogeneous garden mark the
vitality Of social ethi cs for lack Of uni
formity has proved by no means a bar
to separate development No less than
six States have registered their faith in
eugenics by legislation which requires
either an affidavit or certificate from
persons intending to marry that they
are free from sexual disease Yet the
nconsti
attempts to prove these laws u
tu
tional on the ground among others
that they interf ere with the religious
liberty Of th e contracting parties illus
trate the reluctan c e of both the prudish
and the ignoran t to trammel the so
call ed rights of the individual for th e
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l 25 1 l
,
TH E FAMILY
LAW AND
sake of the general welfare O ne would
assume tha
t the marriage of the epilep
tic imbecile Or feeble minded would b e
u
niversally prohibited as tending to
perpetuate idiocy shiftle ssness and
crime but the roll call of the States
would show that the statutes restrain
ing thi s are lit tle more numerous than
those to prevent the clandestine mar
tside the State Of residents wh o
riage O u
thus seek to evade the requirements o f
their own laws
It will b e long perhaps if ever b e
fore all the local peculiarities Of mar
riage are reconciled and the Unit e d
States becomes on e table-land Of con
formity to the detriment possibly Of
ra c ial flavou
r and distinction Th e
several communities are likely to con
tinu
e hard to convinc e when th e issue
is merely the superiority Of other tribal
customs to their o wn Yet it shou
ld
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25 2
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MARRIAGE AND DIVORCE
be clear to all who think of them in
terms Of a nation that the existence
o f a separat e marriage code in each Of
forty eight independent sovereign and
contiguous commonwealths providing
usually a passport for all who wish to
evade it to seek some less exacting juris
diction with impunity is a men
ace to
the stability as well as the repute Of
American family life C an we wonder
that the domestic purity on which we
pride ourselves is sadly discredited :by
such a hydra headed condition of the
body politi c ? Is it strange that foreign
ers should sh rug their shoulders and de
cline to believe th at the institutions Of
a country where a woman may be ad
judged wife concubine or bigamist
acc ording as she inhabits one or another
Of several cities within the radius Of a
hundred miles can be either exemplary
Yet the real
or a stimulus to virtue ?
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MARR IAGE AND DIVORCE
variance between the States in the
grounds on which divorce is granted ;
with few exceptions they are identical
in the main
t at th e confe rence
It was brought ou
Of the International Law Asso ciation at
London in1 9 1 0 that there is not a cause
for divorc e in the United States which
cannot be duplicated o n the continent
Of E urope and that in most E uropean
countries mutual assent is a cause for
divorce u
nder c ertain restrictions The
confusion that throws a shadow on ou
r
family life and gives to foreigners a
wrong impression regarding it is due
largely to the flitting from State to
State which too much insisten c e on
local sovereignty safeguards to the p eril
Of national domes tic morals
Yet with this abuse remedied we
have still to reckon with collusive di
vorce which when both parties are
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255
LAW AND
TH E FAMILY
agreed on severance Of the bonds of
matrimony makes incompatibility th e
fli cient evi
decisive factor provided su
den ce be trumped up to satisfy o ne Of
—
o
th e legal statuto ry gr unds roughly
speaking adultery cruelty desertion
drunkenness neglect to provide
In his highly entertaining but frankly
“
cynical play Why Marry ? Mr Jess e
Lynch Williams holds up a mirror to
the American people in which the only
benedicts who remain unblemished are
the couple who just before the curtain
falls are save d from the radical expedi
ent Of consorting togeth er u
nconven
tion
ally b y a quick witted lawye r who
inspite of themselves pronounces them
man and wife according to the law Of
the State where they happened to be
b ecause they had so declared them
s elves to th e assembled company Th e
interrogation Of th e com e dy is a time ly
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1 256 1
MARRIAGE AND DIVORCE
hallenge to that American self con
to the mar
scio u
sn
ess which reads in
riage service the proviso that
until
death do us part is merely a Pick
wickian phrase ; but the satire is di
rec ted quite as much at th e lack of
spiritual consideration with which mat
rimo n
y is entered into as at the e ase
with which it is shuffled O ff E ven the
mercenary and utilitarian marriages of
E uropean countries acquire a certain
dignity when compared with those of
the same sort here from the formalities
whi ch attend them and from the lack
Of reserves as to their endurance Peo
ple in E urope still ex p ect to stay mar
ried even though disillusioned and are
correspo ndingly circumspect in consent
ing to wed ; but with us the delib eration
whic h ought to precede the most solemn
fu
nction inlife is too apt to yield to the
democratic innuendo :
Why worry
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1 25 7 1
MARRIAGE AND DIVORCE
there are exact statistics ; of these
more than a third were for de
sertion with cruelty second the two
combined accounting for very nearly
two thirds
per cent) of all the
divorces granted in that year adultery
figuring far behind and drunkenness
lagging in the rear While these causes
preserve the same order as in the two
previous c ensuses of twenty years apart
and are deceptive so far as they may
sometimes conceal the real reason for
separation they indi cate on their face
tha t one or the other spouse had
wearied Of the association— a decision
the soc ial morality of which rests on the
individual conscience Once more too
it appears that the proportion of di
v o rce s granted to the wife in compari
son with the husband has not stood
still the
per cent determined by
the twenty year investigation from
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THE FAMILY
LAW AND
to 1 9 0 6 having risen to
per
cent Of the whole W hile a portion of
this discrepancy between the sexes is
explicable on the ground that the wife
has a legal cause for divorce more fre
quently than the husband and that
certain grievances such as failure to
support and cruelty are more peculiar
to the wife the assumption that mar
ried life in this country continue s to b e
purer than elsewhere in the world must
face the dual knowledge that more peo
ple continue to obtain divorce s in the
United States than ever before and that
a larger numb er Of th e applicants are
women While th e vital social convie
tion Of our day that both sexes— and
—
especially wives hav e a right to de
mand a larger measure of decent living
from a partner for life may partly ac
count for and justify this there are
signs that the m ere weariness with the
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1 2 60 1
M ARRIAGE AND DIVORCE
ma rriage relation which results when
love flies ou
t of the window indep endent
pl
e
s
of tangible cau es off ends the scru
s
Of fewer wives than formerly as a self
respe cting gro und for divorce In this
connection it is intere sting to note that
at the very moment when the mutual
obligations Of matrimony are in a state
Of flu
owing mainly to the revolt Of
x
woman the Bolshevist programme
should o u
t o f its murky con sciousness
pre scribe as a panacea that her right to
suit hers elf in husbands should be abro
gated and turned topsyturvy
It should be add ed that where inno
ce nt partie s to marriage are c oncern ed
th e policy of the legislatu
res and the
courts has generally though by no
niversally kept pace with the
means u
humanitarian tendencies of the age
Off spring born ou
t o f we dlock b ecom e
l egitimate nearly everywhere on the
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M ARRIAGE AND DIVORCE
was bitterly claimed in a case be
“
”
fore me that good faith implied that
the second wife should have taken
proper precautions to asc ertain whether
the story which the man told her as to
his divorc e was true but each c ourt
which considered the point held that all
the statute required was honest inten
tion not pruden c e Indeed it may be
said that in most jurisdictions in this
c ountry the law already stretches a
point to avert the full c onsequences Of
an irregular marriage involving an in
no cent person— a course which su
b se
quent uniformity will perfect C ouples
who wish to stay married are given
ample protection under our legal sys
tems The vital question for Ameri
cans to consider is whether refusing to
stay married by hook or c rook and inci
dentally hoodwinking the courts is to
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1 263 1