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[H]e can produce to order, almost any revolution out of the Mass'tts Bill of Rights...
FREE LOVE IN MASSACHUSETTS.—Its Legal aspects.
Knowing Col. Wm. B. Greene to be a conservative in matters of love and marriage, and yet that he can produce to order, almost any revolution out of the Mass'tts Bill of Rights, we asked his "legal opinion," and, in reply to our request, he sent us the following:—
You ask me if I can put the free-love doctrine on the basis of the Massachusetts bill of rights. I don't know precisely what the free-love doctrine is; and it is a matter which interests me very little. Nevertheless, I think you might do something in the way of making your free-love crusade something conservative and legal, instead of revolutionary. If you expect to do anything, you must have a grievance. The attack upon other people's privileges, however illogical they may be, if those privileges involve no grievance to you, seldom amounts to much. An attack on the existing marriage laws would be resisted by persons who claim the right to be married in the old way, if they prefer to do so. You must, as it seems to me, demand a new way of marriage for such persons as don't like the old way, but aspire to a new marriage relation in which (1) the contract shall be terminable at will, (2) the property shall remain with the woman at the termination of the contract, (3) the children shall belong to the mother, and (4) the mother and children shall have a satisfactory status sanctioned by law. I think these four are the points made by the free-lovers who go a transformation, and not the abolition of marriage. As I understand your position, it is that of marriage-reform.
The 6th section of chap. 165. General Statutes, does not interfere with your project, since you do not, as I suppose, go for either promiscuity or "complex marriage," but for monogamic marriage terminable at will, and to be sanctioned by law. The "not being married" will not be predicable, under the new law, of your man and woman. All you require is, it seems to me, an utter repeal of §8 of the same chap. That § being repealed, marriages terminable at the will of either party may be contracted, and will be marriages if the contracting parties so call them in a terminable contract. All the clauses of the contract will be like all other contracts not forbidden by law, under the sanction of law. I know no statute directly forbidding marriages terminable at will, and no statute except this §8 indirectly forbidding them.
The effect of the repeal of §8 would be to legalize the relation of single men to their kept-mistresses. The domicile of a kept-mistress is her domicile not that of the man; and the property in it, the furniture and the like, is prima facie her property. Of course, the kept-mistress has no claim on the property of the man; but whatever the man gives her, by putting it into her house, is hers, and her earnings otherwise acquired are also hers. He has no claim on her earnings unless she gives them to him; and she, conversely, etc. In the new marriage, the man would give his wife her dowry at, or before, the moment of marriage, and at subsequent times as she may prevail upon him, not at his death. She would not inherit from him, nor he from her, except by will. To-day, if a man gives his mistress watches, pianos, furniture, and the like and they quarrel with her, he cannot recover back the presents he has made her. "Chip, chop, chain, etc."
In §7 chap. 72, legal provision is made for coercing the father of a bastard to assist the mother in maintaining it. By what has been before remarked, it will be seen that the woman has her separate property, just as the man has his. By this section the woman has a guarantee that the man shall not, by desertion, throw all the burthen of maintaining the children on the mother. By section 2 chap. 91, a bastard or it lawful representatives, inherits from the mother and maternal ancestors; and, by §3, the mother (and not at all the father) inherits from the bastard. Thus the bastard belongs in every way to the mother, and not to the father, as the women's rights people say ought always to be the case, and is always the case where the woman has not deeded away her right in a contract of marriage.
Conclusion. Sect. 8, chap. 165 Gen. Statutes being repealed, young couples desiring to do so, can contract marriages terminable at will, and, by their praiseworthy deportment, make fornication and bastardy respectable. Nothing can be made respectable by law; and agitation for a law that any one thing rather than another should be respectable, would be futile. Laws abolishing marriages, or sanctioning adultery, would, as it seems to me, be in violation of the constitution of the U. S., which says: "No state shall pass any law impairing the obligation of contracts." Sect. 8, chap. 165 Gen. Statutes remaining in force, young couples contracting marriages terminable at will, render themselves liable to the martyrdom of three months imprisonment and thirty dollars fine, the mildest martyrdom known in the history of martyrdoms. Young couples violate this law continually, and I never heard of the law being enforced in cases when there was no violation of public decency. Perhaps §6, which has the word "cohabit," would give 2 yrs. imprisonment and $300 fine. Did you ever hear of a man's being sent to the State's prison for "cohabiting" with his kept-mistresses? or of the mistress being so sentenced? What you really want is not change in the law, but young couples who will so live as to make fornication and bastardy respectable.
Now for the Mass'tts. Bill of Rights. The contract of marriage is a religious covenant, sanctioned by sworn obligations. But it is written, "Swear not at all." Are not you, as a reformer, and a notorious peace-man, conscienciously "agin" swearing? Are you not conscienciously opposed to any contracting of obligations, of your own free accord, that you know not whether you will or will not be able to keep? It seems to me, if you want to stand on the bill of rights, that you must organize your free-love party as "a religious sect and denomination," and fall back on the XI amendment of the Mass. constitution, which says: "No subordination of any one sect or denomination to another shall ever be established by law." The XI amendment says "religious denomination," and not at all "christian denomination:" the amendment had the effect of taking Christianity entirely out of the constitution. Now if one sect believes, or if many sects believe, that religion requires marriage to be for life; and your sect believes, on religious and moral grounds, that it is wicked to put all people, whatever may be their religious convictions, under the alternative of either not marrying at all or marrying for life; where is the constitutionality of the law which subordinates the religious belief of your sect to the religious beliefs of other sects, and forces members of your denomination, under a severe penalty, to marry in a way against which they have conscientious scruples?
Nobody seems to know exactly what christian marriage is. As I read the New Testament it tolerates polygamy, but does not tolerate "putting away." The Mass. law seems to be anti-christian inasmuch as it tolerates no polygamy. Your doctrine seems to be anti-christian, inasmuch as it is grounded on the fact of "putting away." The Old Testament say, "Jehovah hateth putting away."—You asked me for my opinions, and I have given them; but I take no stock at all, on either side, in this free-love muddle.