On the present occasion the question was not a party one. It might be decided either way without affecting the momentous question of the fate of the Ministry. It was introduced by a private member, and it concerned nothing except the proprietary rights of one half of the nation, the condition of every family in it, and the general character of the institution of marriage upon which all society is founded. The discussion accordingly took place on a Wednesday afternoon, occupied the space which intervened between the Revenue Officers' Disabilities Removal Bill and the Burials (Ireland) Bill, and ended in a tie, 123 members voting on each side of the question. By way of letting the question go on, the Speaker gave his vote with the ayes, in conformity, as he said, with precedent upon such occasions. We do not say whether the House was right or wrong. No one can doubt that tile law as to the effect of marriage upon property is in an unsatisfactory condition, but we do feel the very gravest doubts whether the House of Commons, in its capacity of general discussion forum for the English nation, will set it to rights. Any one who Considers the matter calmly will surely see that this is the case. You take a few hundred gentlemen, most of whom have no special knowledge upon the subject, submit for their opinion a series of prepositions about the effect of marriage upon property, and regulate the law of the land upon that subject for all time to come by their answers in the affirmative or negative. It is idle to suppose that by such means we shall arrive at anything more solid or important than a translation into Act of Parliament language of the current floating opinions of the day; and, after all, the current fluctuating impressions of the day are slight, shallow, and of a very temporary nature.
Suppose a man were to walk down Pall-mall at about five clock in the afternoon, take the first ten men he met out of each of the clubs which line it, seat them comfortably in a large room, invite them to discuss the question whether divorce by consent of the parties would be a good thing, whether Buddhism or Mahometanism was the best creed, whether a hereditary aristocracy was beneficial or otherwise, and were to govern his conduct for the rest of his life by the opinion expressed by the majority, he would naturally be regarded as a fool; yet there is less substantial difference than may appear at first sight between such a proceeding as this and an appeal to the House of Commons upon a social question as to which they have no party feelings or passions to guide them. To put the matter another way, would the fact that a majority of the House of Commons took one view or the other on any important social question have any tendency to make a mart of average common sense change his own private opinion upon the subject? If not, what moral weight are laws likely to have which rest upon no firmer foundation? It may be asked to what these observations tend, and whether there is any remedy for the evils, if such they are, which they point out? The answer is, that they tend simply to raise a question which thoughtful men would do well to consider--the question, namely, whether it is desirable that law should be the object of reverence, and should not only compel the obedience but enlist the sympathy of those who live under it, and whether this can be so whilst laws upon subjects of the most vital importance are made in the manner in question. As to the remedy there is certainly none at present. Not one person in a thousand admits, or even suspects, the existence of any disease. The notion that the House of Commons is not morally omnipotent is as yet a heresy of which the very existence appears to be unsuspected by the great mass of the nation.
As to the debate itself we have not much to add to what we have said on former occasions, but the speeches of Mr. Lowe and Mr. Mill call for one or two remarks. Mr. Lowe, in particular, insisted again and again upon "justice and righteousness, equality and fairness," and Mr. Mill’s speech is based throughout upon the notion that the present law is unjust. We have not yet forgotten Mr. Lowe’s famous speech about the Reform Bill, in which he denounced as absurd the notion that people had any abstract rights to specific political powers, and laid down the doctrine that such words as "right" and "just" can have one only of two meanings. "Just" may be used as a synonym for legal, or it may mean coincidence with a rule calculated to produce happiness. The notion that there is a justice which may differ from legality on the one hand, and from what can be shown to be generally expedient on the other, is regarded by Mr. Lowe and Mr. Mill, and we think is rightly regarded, as chimerical. When, therefore, they denounce the present state of the law as unjust, unrighteous, unequal, and unfair, what they must mean is that it is on the whole inexpedient-- productive of more pain than pleasure. This being their meaning, they ought to prove it instead of passionately asserting it, and their proof ought to be based not merely upon isolated facts, however numerous, but upon the general principles which may be collected from them. This they do not appear to us to have done. They confined themselves to making more or less clever points suggested by the existing state of the law, but they never went into the principles of the subject. There is one great leading principle which appears to us to be systematically set on one side by almost every one who speaks upon this subject, though Lord Galway made a joke about it. Mr. Mill, we all know, denies it, and there is something unpleasant in asserting it in its integrity, but not only do we firmly believe it to be true, but we also believe that to neglect it in legislation will convert all legislation upon this subject into a mischievous mockery. That principle is the radical inequality of the sexes, and the radical inferiority, physical, moral, and intellectual, of women. This fact is, of course, no justification for male tyranny. It does not prove that the common law principles as to the effect of marriage on property are correct, or that the common law theory as to the personal rights which marriage confers is what it ought to be. Few parts of our law are perfectly consistent or humane, but it does not follow that the principles upon which they are founded are wrong in them- selves, or that a neglect or denial of those principles is the proper way to reform them. On the contrary, we believe that no system of law, whether it relates to property, to person, or to political rights, will ever be really just, that is generally beneficial, unless it presupposes and is founded upon the following principles:-- First, that men are superior to women-- that is, that we have more moral, intellectual, and physical strength than they have; that we know more, feel more, can do more, are their superiors in every sense in which one class of beings can be superior to another Secondly, that families are in the nature of small governments, and that the constitution of those governments should be monarchical, the husband being king. Thirdly, that family life, the position of a daughter, a wife, and a mother, is the normal and the most honourable course of life for women in general; that women who do not follow it should be regarded as exceptional persons, and that the law of the land should be based upon principles adopted for the case of those who do, not for the case of those who do not. If these principles are admitted, the rest is matter of detail, important detail no doubt, but still detail. If they are not admitted, we firmly believe that legislation proceeding upon neglect of them will do infinite and irreparable mischief.
Pall Mall Gazette, June 11, 1868.