John Stuart Mill (1806-1873) was one of the few classical liberals in the 19th century to object to the unequal nature of the so-called “marriage contract”. He questioned whether the consent of both partners to the contract was properly given, whether women were free to act on their own accord, or whether they had control of their own property. He concluded that a wife was no more than the “bondservant of her husband”:
… men suppose that all is now as it should be in regard to the marriage contract; and we are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband: no less so, as far as legal obligation goes, than slaves commonly so called. She vows a lifelong obedience to him at the altar, and is held to it all through her life by law. Casuists may say that the obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do not act whatever but by his permission, at least tacit. She can acquire no property but for him: the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife’s position under the common law of England is worse than that of slaves in the laws of many countries…
About this Quotation:
As a good classical liberal John Stuart Mill was very concerned with the freedom of contract and its protection under the rule of law. What was unusual about him was that he was one of the very few to apply the principle of the freedom of contract to the marriage contract which bound husbands and wives in the 19th century. He observed that the contemporary marriage laws bound women to men “by foul rather than fair means” by limiting their ability to consent, to act independently, to dispose of their property, to seek legal redress if the contract was violated, and to terminate it if necessary. In an interesting historical analysis, Mill compared 19th century marriage laws to the Roman law of slavery and the feudal laws governing bondsmen, concluding that 19th century English women were in many respects less free than Roman slaves and were in fact “the bondservant of (her) husband.” Whereas an American slave like “Uncle Tom” could enjoy some privacy in his own “cabin” away from his master for a short period of time, a married woman had no such temporary freedom. Mill’s conclusion was that in comparison “no slave is a slave to the same lengths” as a 19th century wife.