THE MODERN BASES OF PRIVILEGE.
“All rights arise out of justice.... Justice is a constant and
perpetual will to award to each his right.... Jurisprudence is
the knowledge of divine and human things, the science of what is
just and unjust.”—BRACTON. DE LEGIBUS ANGLIÆ.“Of acquiring the
dominion of things.”—_Temp. Hen. III._
THE relation between property and privilege has been the determining
principle in Constitutional Evolution, and the distinction between the
sexes in the matter of Property has been the radical cause of the
distinction between them in regard to Privilege. It is necessary to
trace this. The custom of Military Tenure made male heirs more valuable
to the Crown than female heirs, inasmuch as personal service was more
effective and reliable than representative service; and, therefore, in
early Norman days, when all lands lay in the King’s gift, he was eager
to confirm each succeeding son of the last owner in his possessions,
before _any_ of the daughters. But the principles of justice, the
customs of the land, and the springs of human nature, combined in
opposition to a further exercise of the Royal will, so that _all_ the
daughters succeeded before any of the collateral heirs, before uncle,
cousin, or nephew. Husbands and fathers would not have risked their
lives freely in the King’s wars, if they knew that wives and daughters
were to lose their estates, at the same time as they lost the protection
of their strong right arms. A survival of Saxon opinion strangely
affected further the position of daughters, when the chaos of custom
took form in law. An eldest-born son could inherit to the detriment of
his younger brothers, following the Norman custom of primogeniture, but
the eldest-born daughter held no privilege over her younger sisters, who
were all _co-parceners_ with her as regarded the inheritance, in the
manner that children of both sexes inherited among the Saxons, and among
the representatives of the Saxons, the free men of Kent. An indivisible
inheritance, such as a title, fell in abeyance among daughters until
decided by the selection of the Crown, though it was generally granted
to the eldest daughter.[i.] Unless a woman, therefore, was an only
child, she did not succeed to the entire advantages of “the heir,” but
as only child, and sole heiress, she inherited to the full the rights
and privileges of her father, brother, or ancestor. Sex-in-itself did
not _disqualify_ a woman from anything. There was no excusing a woman a
duty, and _consequently_ no denying her a privilege. “_Essoin de
servitio regis_ lyeth not where the party is a woman” (Statutes 33, Ed.
I.). The only advantage granted her, that of “sending a deputy,” she was
allowed in common with men, frail or infirm, or over the age of bearing
arms.
The Feudal System has been credited with limiting Personality and
Privilege to males; therefore it startles some students of history to
find that it was only on the extinction of the Feudal System, and the
translation of service-payments into money-payments, that women lost the
definite place assigned to them. Women’s rights came second in Feudal
Times, because they had to be protected by men’s swords; women’s rights
came nowhere in later times, when freedom towards property would have
made them able to protect themselves. The encroachments naturally took
place first in regard to married women. In ancient times even a married
woman could be “free,” both as an inheritor and as an earner. In the
very highest ranks she remained so. She was free to contract, to sign,
to seal, to act as a _feme sole_. On her marriage she conferred her
title on her husband, as men did theirs upon their wives. The lands were
held in common. The responsibilities she could not undertake herself, he
fulfilled as her representative. When she died he lost his
representative character; his tenure of her lands was only “by
courtesy,” and that only if he had a child by her; if not, they reverted
at her death to the donor. (_See_ “Statutes of Realm,” vol. i., p. 220.)
But a widow also could hold her husband’s lands under certain
conditions, either by her marriage settlement, her husband’s will, the
King’s gift, or “the courtesy of England.” Many examples of widows doing
so are given later. Even where there were heirs, and her husband died
intestate, a widow had a legal right to the third part of her husband’s
property. In Kent she had a right to the half till she married again, as
a man held the half of his wife’s property till he married again. (_See_
“The Customal of Kent.”)
The Laws of Chivalry refined the Upper Classes, inculcating Truth,
Loyalty, Chastity, Courtesy, Liberality, Reverence for Women and
Generosity to the Weak. But the real foundation of Privilege in
Chivalric times was practically Strength, Courage and Success among men.
Beauty, Grace and Honour among women. These qualities being temporary,
were not synonymous with Justice. The position of Divinity is an
unstable one, depending on the attitude of the worshippers. When
Chivalry faded out of men’s hearts, women felt that the outer shell of
custom meant little. It only set them on the shelf.
A tone of Chivalry affected the hearts of the traders and manufacturers
of Chivalric Times, a tone healthier, because more founded on justice
and equality. There was even then a confusion of ideas between
return-value of labour abroad, and labour at home; but there was no
confusion about the return-values of similar labour performed by men or
by women. Women were equal in all social guilds, and trading women were
equal in trading guilds.
The notion that partnership in toil could justify the assumption of the
whole proceeds of the common labours to the use and will of one of the
partners did not dawn on the simpler minds of our ancestors. It took
centuries of mistranslations of the first principles of government to
let this partial idea develop into its modern complexity. In Prynne’s
“Fundamental Rights of English Freemen,” p. 3, art. 7, we read, “That it
is the ancient and undoubted right of every freeman that he hath a full
and absolute propriety in his goods and estate. And that no taxes,
taillages, loans, benevolences, or other charge ought to be commanded,
imposed, or levied by the King or his ministers, without _common_
consent by Act of Parliament.” In order that husbands might have this
absolute proprietary right over the whole of the common property, it was
gradually extinguished among wives; and the second right for them
naturally lapsed in consequence of the other. The absorption of a
married woman’s property by her husband developed for her a massive code
of legal restrictions, and a stern doctrine of civil disabilities. She
was dissociated first from property, thence from privilege, finally she
became property. This was but the natural outcome of the non-recognition
of her Personal and Proprietary Rights. In any history, therefore, of
British Freewomen, we must practically follow legal precedent, in
assuming the non-existence of the _feme couverte_.
Through the different principles of inheritance, there have always been
fewer heiresses than heirs; through the success of the various methods
of protecting male professional and trade industries against female
competition, there have always been fewer female owners of earned
property; through the lower rate of women’s wages, and various causes
tending to disable single women even in the retention of property, these
owners represented smaller incomes than did men of their own class.
Representative Freewomen, therefore, have always been in a small
minority. The dominance of a _temporary majority_ sends a minority into
the Opposition; in which exile it lays plans for future action, when in
the see-saw of political change its turn comes to rise again. The
majority has always to consider the minority in its calculations and
actions. But a _permanent majority_, consciously or unconsciously,
labours to oust a _permanent minority_ from recognised and recognisable
existence even as an Opposition. By _always_ being able to overbear
opinion, it makes the expression of opinion futile. Either it is
concordant and unnecessary, or discordant and inoperative. The
expression of either becomes a waste of time, and is soon denied. And
thus women have been ousted by degrees from the building up of the
superstructure of the English Constitution, in whose foundations they
had been considered. The privilege of British Freewomen remained a
recognised quantity for ages. Though that quantity became “small by
degrees and beautifully less,” it was not finally annihilated till the
heart of the nineteenth century.
The process of diminution was hastened in periods of spasmodic activity
through association of principles that should have worked in the
opposite direction, had the principles been understood and applied in
their purity. No doctrine is more antagonistic to the spirit and
teaching of Christ than that of the subjection of women, and yet, though
the change from the Druidic religion to the worship of Odin affected
them but slightly, the changes within the Christian Creed mark epochs in
their gradual enthralment; as, for instance, the sixteenth century
Reformation and the seventeenth century Revival On the Suppression of
the Monasteries, Abbots and Abbesses were alike extinguished. But the
power and privilege of the Abbot in the House of Peers as in the Church,
survived in the Bishop. The extinction of the Abbess, without successor
either in Church or State, took away finally the right of one class of
representative women to sit in the Upper House. The suppression of the
Social and Religious Guilds founded and supported by women in common
with men, gave a seeming reason for later exclusion of Freewomen from
trade guilds.
The loudest Puritan cry of the seventeenth century was, it is true, “No
Bishop;” but the practical work Puritanism was really allowed to do in
politics was to make the representation of women in the Lower House
theoretically impossible.
As antagonistic to the doctrine of the subjection of women are the
Principles of Liberty. How can men become truly free that ignore, for
others, the liberties founded on the same reasonings by which they
enfranchised themselves? Yet every great era in the Evolution of
so-called _Popular Liberty_ has been marked by contemporary restrictions
of Feminine Freedom. Hence, in the seventeenth century, when hereditary
serfdom was finally abolished, and when slavery, by purchase, became
impossible in Britain, we first find the doctrine promulgated that
tended to disfranchise women. When outbursts of fervid eloquence on
“Liberty” were preparing the nation to lay out its millions in
enfranchising even its colonial slaves, in 1832, the disfranchisement of
women was effected by the use of a single statutory word. When, on the
29th of June, 1867, William Lloyd Garrison, the champion of Negro
Emancipation, was receiving an ovation at St. James’ Hall, men were
discussing in St. Stephen’s whether to give women political existence or
not. Though the single excluding word was erased from the statute book,
the House and the Courts of Law next year determined that its spirit
lingered there. When a new extension of the Suffrage took place in 1884,
the claims of women were again disallowed. The new rights of men
emphasised more strongly the old wrongs of women. A lowered
qualification for the Franchise protected property, not only inherited
or earned, but that which was only in the process of earning. This
privilege of prospective property increased the opportunities of earning
enormously. But _only_ when its possession was vested in a man. Women’s
possession of property, more difficult to acquire through laws of
nature, custom, inheritance, marriage, and the protection of male
industries, was further rendered less stable by their exclusion from the
faintest voice in determining laws, taxation, and home and foreign
policy. The progress of education has enriched public ideas, has altered
the Content of public Conscience, has facilitated public discussion of
facts and theories. The relations of representation to taxation are
assailed. New bases of privilege are being proposed. There are those who
hold that Property is no sound foundation on which to build a
Constitution. Some would put in its place the notion of Justice, which
others name the right of the Individual. But those who accept this are
divided into two great classes, the first considering Justice in its own
nature, and treating Individuals as the indivisible units to which
Justice is to be applied, units not to be segregated by _any_ test into
groups receiving Justice or no Justice. The second class also considers
Justice applicable to all individuals, but adds a rider, that, in their
opinion, _individuals can be only masculine_. Something in the
construction of their minds permits them to harmonise, to their own
satisfaction, two discordant ideas. Masculinity seems to them a natural
basis of privilege—a solid foundation of Justice.
Others hold the older doctrines in a modified form, believing that
individuality without qualification of individuals cannot provide a
stable basis. If the idle and improvident, by mere force of numbers, are
to dominate the industrious and the provident, the ends of justice would
be defeated. By property or industry tests those are included who have
interests to preserve. Those who help to support the State should have a
voice in determining its action. No one is excluded from Enfranchisement
thereby. A very moderate degree of industry or success will make it
possible to any one to attain the franchise. A worthy incentive to
labour is a moral good. Amidst these thinkers there are also two
classes: those who consider that the rights of women in themselves, and
in the property they inherit or acquire, are as important as those of
men, and should be made as stable; and those that, by combining two
principles of Enfranchisement, make a logical cross division, importing
the totally unconnected dividing principle of sex into the consideration
of the rights of property. What is simply _unjust_, when individuals are
selected on the basis of sex, becomes both _illogical_ and _unjust_ when
questions of sex are imposed on those of property. Sex is an inseparable
accident, and when accepted as the Basis of Justice, closes the
question; property is a separable accident, and must be considered upon
different lines. The various objections to any simple, logical,
homogeneous, and just arrangement of the Bases of Privilege, while
depending on the doctrine of sex, are worked out by two sub-sections of
thinkers upon different lines. One section says boldly, “when persons
qualified by property are also qualified by masculinity, we grant them
privilege.” The other section analyses the attributes of masculinity,
and apply each as a separate test to the person qualified by property.
“The physical force argument is the foundation of government, most men
are stronger than most women, therefore no women must interfere in
government.” Women would “require an improved understanding to vote for
a member of Parliament.” “Women cannot understand mathematics, nor
master the classics,” and when they proved they could, the principle was
sent back further into statements that “their brains were not heavy
enough,” “their moral force not strong enough.” “Women have not written
Shakespeare, composed Beethoven, painted Raphael, built St. Peter’s.”
The understanding of proportional representation, and the far-reaching
economic results of bi-metallism, have been seriously proposed as tests
for women. But have the whole series, or _any one of them_, ever been
applied to the mere male electors of the realm? When pressed hard on
this point, these objectors, in their confusion, fall back upon
precedent and on authority to prove that to be _legal_ which they cannot
prove to be _just or reasonable_. It is no argument in favour of
anything that _it has been_, or else reformation would be impossible.
But when the sole argument against its _being_ is that it _has not
been_, the consideration of Legality and of Precedent becomes a
necessity to the advocates of Justice. Many mistakes have been taken for
facts, many fallacious arguments based upon erroneous premises. A Review
of the History of Women that have hitherto ever exercised any privilege
is necessary for generalisations to be based thereon. For by this
process we may unite the followers of Legality and Precedent with the
worshippers of Justice and Equality, and the union of the two forces,
like those of the sun and moon upon the sea, may raise the high “tide in
the affairs of women that leads on to fortune.”
The Review is encouraging in two aspects. In the light of the modern
doctrine of Heredity, we see that our far-away ancestors held opinions
to which we may hope that our successors may yet _revert_; and from
Ancient History we find that a recognition of the existence of women in
the State, far from being novel or revolutionary, would only be the
fulfilling of the fundamental principles of the English Constitution.
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