AMERICAN WOMEN AND THE COMMON LAW
A little girl sat in a corner of her father's law library watching, with
wide, serious eyes, a scene the like of which was common enough a
generation or two ago. The weeping old woman told a halting story of a
dissipated son, a shrewish daughter-in-law, and a state of servitude on
her own part,--a story pitifully sordid in its details. The farm had
come to her from her father's estate. For forty years she had toiled
side by side with her husband, getting a simple, but comfortable,
living from the soil. Then the husband died. Under the will the son
inherited the farm, and everything on it,--house, furniture, barns,
cattle, tools. Even the money in the bank was his. A clause in the will
provided that the son should give his mother a home during her lifetime.
So here she was, after a life of hard work and loving service, shorn of
everything; a pauper, an unpaid servant in the house of another
woman,--her son's wife. Was it true that the law took her home away from
her,--the farm that descended to her from her father, the house she had
lived in since childhood? Could nothing, _nothing_ be done?
The aged judge shook his head, sadly. "You see, Mrs. Grant," he
explained, "the farm has never really been yours since your marriage,
for then it became by law your husband's property, precisely as if he
had bought it. He had a right to leave it to whom he would. No doubt he
did what he thought was for your good. I wish I could help you, but I
cannot. The law is inexorable in these matters."
After the forlorn old woman had gone the lawyer's child went and stood
by her father's chair. "Why couldn't you help her?" she asked. "Why do
you let them take her home away from her?"
Judge Cady opened the sheep-bound book at his elbow and showed the
little girl a paragraph. Turning the pages, he pointed out others for
her to read. Spelling through the ponderous legal phraseology the little
girl learned that a married woman had no existence, in the eyes of the
law, apart from her husband. She could own no property; she could
neither buy nor sell; she could not receive a gift, even from her own
husband. She was, in fact, her husband's chattel. If he beat her she had
no means of punishing, or even restraining him, unless, indeed, she
could prove that her life was endangered. If she ran away from him the
law forced her to return.
Paragraph after paragraph the child read through, and, unseen by her
father, marked faintly with a pencil. So far as she was aware, father,
and father's library of sheep-bound books, were the beginning and the
end of the law, and to her mind the way to get rid of measures which
took women's homes away from them was perfectly simple. That night when
the house was quiet she stole downstairs, scissors in hand, determined
_to cut every one of those laws out of the book_.
The young reformer was restrained, but only temporarily. As Elizabeth
Cady Stanton she lived to do her part toward revising many of the laws
under which women, in her day, suffered, and her successors, the
organized women of the United States, are busy with their scissors,
revising the rest.
Not alone in Russia, Germany, France, and England do the laws governing
men and women need equalizing. In America, paradise of women, the
generally accepted theory that women have "all the rights they want"
does not stand the test of impartial examination.
In America some women have all the rights they want. Your wife and the
wives of the men you associate with every day usually have all the
rights they want, sometimes a few that they do not need at all. Is the
house yours? The furniture yours? The motor yours? The income yours? Are
the children yours? If you are the average fond American husband, you
will return the proud answer: "No, indeed, they are _ours_."
This is quite as it should be, assuming that all wives are as tenderly
cherished, and as well protected as the women who live on your block.
For a whole big army of women there are often serious disadvantages
connected with that word "ours."
In Boston there lived a family of McEwans,--a man, his wife, and several
half-grown children. McEwan was not a very steady man. He drank
sometimes, and his earning capacity was uncertain. Mrs. McEwan was an
energetic, capable, intelligent woman, tolerant of her husband's
failings, ambitious for her children. She took a large house, furnished
it on the installment plan, and filled it with boarders. The boarders
gave the family an income larger than they had ever possessed before,
and McEwan's contributions fell off. He became an unpaying guest
himself. All his earnings, he explained, were going into investments.
The man was, in fact, speculating in mining stocks.
One day McEwan came home with a face of despair. His creditors, he told
his wife, had descended on him, seized his business, and threatened to
take possession of the boarding house.
"But it is mine," protested the woman, with spirit. "I bought every bit
of furniture with the money my boarders paid me. Nobody can touch my
property or my earnings to satisfy a claim on you. I am not liable for
your debts."
One of the boarders was a lawyer, and to him that night she took the
case. "A woman's earnings are her own in Massachusetts, are they not?"
she demanded.
"You are what the law calls a free trader," replied the lawyer, "and
whatever you earn is yours, certainly. That is--of course you are
recorded at the city clerk's office?"
"Why no. Why should I be?"
"The law requires it. Otherwise this property, and even the money your
boarders pay you, are liable to attachment for your husband's debts.
Unless you make a specific declaration that you are in business for
yourself, the law assumes that the business is your husband's."
"If I went to work for a salary, should I have to be recorded in order
to keep my own money?" Mrs. McEwan was growing angry.
"No," replied the lawyer, "not if you were careful to keep your income
and your husband's absolutely separate. If you both paid installments on
a piano the piano would be your husband's, not yours. If you bought a
house together, the house could be seized for his debts. Everything you
buy with your money is yours. Everything you buy with money he gives you
is his. Everything you buy together is his. You could not protect such
property from your husband's creditors, or from his heirs."
Mrs. McEwan's case is mild, her wrongs faint beside those of a woman in
Los Angeles, California. Her husband was a doctor, and she had been,
before her marriage, a trained nurse. The young woman had saved several
hundred dollars, and she put the money into a first payment on a pretty
little cottage. During the first two or three years of the marriage the
doctor's wife, from time to time, attended cases of illness, usually
contributing her earnings toward the payment for the house or into
furniture for the house. In all she paid about a thousand dollars, or
something like one-third of the cost of the house. Then children came,
and her earning days were over.
Unfortunately the domestic affairs of this household became disturbed.
The doctor contracted a drug habit. He became irregular in his conduct
and ended by running away with a dissolute woman. After he had gone his
wife found that the house she lived in, and which she had helped to buy,
had been sold, without her knowledge or consent. The transaction was
perfectly legal. Community property, that is, property held jointly by
husband and wife, is absolutely controlled by the husband in California.
In that State community property may even be given away, without the
wife's knowledge or consent.
It happened not many years ago that one of the most powerful
millionaires in California, in a moment of generosity, conveyed to one
of his sons a very valuable property. Some time afterwards the father
and son quarreled, and the father attempted to get back his property.
His plea in court was that his wife's consent to the transaction had
never been sought; but the court ruled that since the property was owned
in community, the wife's consent did not have to be obtained.
This particular woman happened to be rich enough to stand the experience
of having a large slice of property given away without her knowledge,
but the same law would have applied to the case of a woman who could
not afford it at all.
It is in the case of women wage earners that these laws bear the
peculiar asperity. Down in the cotton-mill districts of the South are
scores of men who never, from one year to the next, do a stroke of work.
They are supposed to be "weakly." Their wives and children work eleven
hours a day (or night) and every pay day the men go to the mills and
collect their wages. The money belongs to them under the law. Even if
the women had the spirit to protest, the protest would be useless. The
right of a man to collect and to spend his wife's earnings is protected
in many States in the chivalric South. In Texas, for example, a husband
is entitled to his wife's earnings even _though he has deserted her_.
I do not know that this occurs very often in Texas. Probably not, unless
among low-class Negroes. In all likelihood if a Texas woman should
appeal to her employer, and tell him that her husband had abandoned her,
he would refuse to give the man her wages. Should the husband be in a
position to invoke the law, he could claim his wife's earnings,
nevertheless.
The Kentucky lady who chose England for her future home, had she known
it, selected the country to which most American women owe their legal
disabilities. American law, except in Louisiana and Florida, is founded
on English common law, and English common law was developed at a period
when men were of much greater importance in the state than women. The
state was a military organization, and every man was a fighter, a
king's defender. Women were valuable only because defenders of kings
had to have mothers.
English common law provided that every married woman must be supported
in as much comfort as her husband's estate warranted. The mothers of the
nation must be fed, clothed, and sheltered. What more could they
possibly ask? In return for permanent board and clothes, the woman was
required to give her husband all of her property, real and personal.
What use had she for property? Did she need it to support herself? In
case of war and pillage could she defend it?
Husband and wife were one--and that one was the man. He was so much the
one that the woman had literally no existence in the eyes of the law.
She not only did not possess any property; she could possess none. Her
husband could not give her any, because there could be no contract
between a married pair. A contract implies at least two people, and
husband and wife were one. The husband could, if he chose, establish a
trusteeship, and thus give his wife the free use of her own. But you can
easily imagine that he did not very often do it.
A man could, also, devise property to his wife by will. Often this was
done, but too often the sons were made heirs, and the wife was left to
what tender mercies they owned. If a man died intestate the wife merely
shared with other heirs. She had no preference.
Under the old English common law, moreover, not only the property, but
also the services of a married woman belonged to her husband. If he
chose to rent out her services, or if she offered to work outside the
home, it followed logically that her wages belonged to him. What use had
she for wages?
On the other hand, every man was held responsible for the support of his
wife. He was responsible for her debts, as long as they were the
necessities of life. He was also responsible for her conduct. Being
propertyless, she could not be held to account for wrongs committed. If
she stole, or destroyed property, or injured the person of another, if
she committed any kind of a misdemeanor in the presence of her husband,
and that also meant if he were in her neighborhood at the time, the law
held him responsible. He should have restrained her.
This was supposed to be a decided advantage to the woman. Whenever a
rebellious woman or group of women voiced their objection to the system
which robbed them of every shred of independence they were always
reminded that the system at the same time relieved them of every shred
of responsibility, even, to an extent, of moral responsibility. "So
great a favorite," comments Blackstone, "is the female sex under the
laws of England."
You may well imagine that, in these circumstances, husbands were
interested that their wives should be very good. The law supported them
by permitting "moderate correction." A married woman might be kept in
what Blackstone calls "reasonable restraint" by her husband. But only
with a stick no larger than his thumb.
The husbandly stick was never imported into the United States. Even the
dour Puritans forbade its use. The very first modification of the
English common law, in its application to American women, was made in
1650, when the General Court of Massachusetts Bay Colony decreed that a
husband beating his wife, or, for that matter, a wife beating her
husband, should be fined ten pounds, or endure a public whipping.
The Pilgrim Fathers and the other early colonists in America brought
with them the system of English common law under which they and their
ancestors had for centuries been governed. From time to time, as
conditions made them necessary, new laws were enacted and put into
force. In all cases not specifically covered by these new laws, the old
English common law was applied. It did not occur to any one that women
would ever need special laws. The Pilgrim Fathers and their successors,
the Puritans, simply assumed that here, as in the England they had left
behind, woman's place was in the home, where she was protected,
supported, and controlled.
But in the new world woman's place in the home assumed an importance
much greater than it had formerly possessed. Labor was scarce,
manufacturing and trading were undeveloped. Woman's special activities
were urgently needed. Woman's hands helped to raise the roof-tree, her
skill and industry, to a very large extent, furnished the house. She
spun and wove, cured meat, dried corn, tanned skins, made shoes, dipped
candles, and was, in a word, almost the only manufacturer in the
country. But this did not raise her from her position as an inferior.
Woman owned neither her tools nor her raw materials. These her husband
provided. In consequence, husband and wife being one, that one, in
America, as in England, was the husband.
This explanation is necessary in order to understand why the legal
position of most American women to-day is that of inferiors, or, at
best, of minor children.
It is necessary also, in order to understand why, except in matters of
law, American women are treated with such extraordinary consideration
and indulgence. As long as pioneer conditions lasted women were valuable
because of the need of their labor, their special activities. Also, for
a very long period, women were scarce, and they were highly prized not
alone for their labor, but because their society was so desirable. In
other words, pioneer conditions gave woman a better standing in the new
world than she had in the old, and she was treated with an altogether
new consideration and regard.
In England no one thought very badly of a man who was moderately abusive
of his wife. In America, violence against women was, from the first, an
unbearable idea. Laws protecting maid servants, dependent women, and, as
we have seen, even wives, were very early enacted in New England.
But although woman was more dearly prized in the new country than in the
old, no new legislation was made for her benefit. Her legal status, or
rather her absence of legal status apart from her husband, remained
exactly as it had been under the English common law.
No legislature in the United States has deliberately made laws placing
women at a disadvantage with men. Whatever laws are unfair and
oppressive to women have just happened--just grown up like weeds out of
neglected soil.
Let me illustrate. No lawmaker in New Mexico ever introduced a bill into
the legislature making men liable for their wives' torts or petty
misdemeanors. Yet in New Mexico, at this very minute, a wife is so
completely her husband's property that he is responsible for her
behavior. If she should rob her neighbor's clothesline, or wreck a
chicken yard, her unfortunate husband would have to stand trial. Simply
because in New Mexico married women are still living under laws that
were evolved in another civilization, long before New Mexico was dreamed
of as a State.
Nowhere else in the United States are women allowed to shelter their
weak moral natures behind the stern morality of their husbands, but in
more than one State the husband's responsibility for his wife's acts is
assumed. In Massachusetts, for one State, if a woman owned a saloon and
sold beer on Sunday, she would be liable to arrest, and so also would
her husband, provided he were in the house when the beer was sold. Both
would probably be fined. Simply because it was once the law that a
married woman had no separate existence apart from her husband, this
absurd law, or others as absurd, remain on the statute books of almost
every State in the Union.
The ascent of woman, which began with the abolishment of corporeal
punishment of wives, proceeded very slowly. Most American women married,
and most American wives were kindly treated. At least public opinion
demanded that they be treated with kindness. Long before any other
modification of her legal status was gained, a woman subjected to
cruelty at the hands of her lawful spouse was at liberty to seek police
protection.
The reason why police protection was so seldom sought is plain enough.
Imagine a woman complaining of a husband who would be certain to beat
her again for revenge, and to whom she was bound irrevocably by laws
stronger even than the laws on the statute books. Remember that the only
right she had was the right to be supported, and if she left her
husband's house she left her only means of living. She could hardly
support herself, for few avenues of industry were open to women. She was
literally a pauper, and when there is nowhere else to lay his head, even
the most miserable pauper thinks twice before he runs away from the
poorhouse. Besides, the woman who left her husband had to give up her
children. They too were the husband's property.
There were some women who hesitated before they consented to pauperize
themselves by marrying. Widows were especially wary, if old stories are
to be trusted. A story is told in the New York University Law School of
a woman in Connecticut who took with her, as a part of her wedding
outfit, a very handsome mahogany bureau, bequeathed her by her
grandfather. After a few years of marriage the husband suddenly died,
leaving no will. The home and all it contained were sold at auction. The
widow was permitted to buy certain objects of furniture, and among them
was her cherished bureau. Where the poor woman found the money with
which to buy is not revealed. In time this woman married again, and
again her husband died without a will. Again there was an auction, and
again the widow purchased her beloved heirloom. It seems possible that
this time she had saved money in anticipation of the necessity.
A little later, for she was still young and attractive, a suitor
appeared, offering his heart and "all his worldly goods." "No, I thank
you," replied the sorely tried creature, "I prefer to keep my bureau."
The first struggle made by women in their own behalf was against this
condition of marital slavery. Elizabeth Cady Stanton, Lucretia Mott,
Lydia Maria Child, and others of that brave band of rebellious women,
were active for years, addressing legislative committees in New York and
Massachusetts, circulating petitions, writing to newspapers, agitating
everywhere in favor of married women's property rights. Finally it began
to dawn on the minds of men that there might be a certain public
advantage, as well as private justice, attaching to separate ownership
by married women of their own property.
In 1839 the Massachusetts State Legislature passed a cautious measure
giving married women qualified property rights. It was not until 1848
that a really effective Married Women's Property Law was secured, by
action of the New York State Assembly. The law served as a model in many
of the new Western States just then framing their laws.
These New York legislators, and the Western legislators who first
granted property rights to married women, were actuated less by a sense
of justice towards women than by enlightened selfishness. The effect of
so much freedom on women themselves was a matter for grave conjecture.
It was not suggested by any of the American debaters, as it was later on
the floors of the English Parliament, that women, if they controlled
their own property, would undoubtedly squander it on men whom they
preferred to their husbands. But it was prophesied that women once in
possession of money would desert their husbands by regiments,--which
speaks none too flatteringly of the husbands of that day.
Men of property stood for the Married Women's Property Act, because they
perceived plainly that their own wealth, devised to daughters who could
not control it, might easily be gambled away, or wasted through
improvidence, or diverted to the use of strangers. In other words, they
knew that their property, when daughters inherited it, became the
property of their sons-in-law. They had no guarantee that their own
grandchildren would ever have the use of it, unless it was controlled by
their mothers.
It was the women's clubs and women's organizations in America, as it was
the Women's Councils in Europe, that actively began the agitation
against women's legal disabilities. The National Woman Suffrage
Association, oldest of all women's organizations in the United States,
has been calling attention to the unequal laws, and demanding their
abolishment, for two generations.
Practically all of the state federations of women's clubs have
legislative committees, and it is usually the business of these
committees to codify the laws of their respective States which apply
directly to women. In some cases a woman lawyer is made chairman, and
the work is done under her direction. Sometimes, as in Texas, a well
known and friendly man lawyer is retained for the task. Almost
invariably the report of the legislative committee contains disagreeable
surprises. American women have been so accustomed to their privileges
that they have taken their rights for granted, and are usually
astonished when they find how limited their rights actually are.
There are some States in the Union where women are on terms of something
like equality with men. There is one State to which all intelligent
women look with a sort of envious, admiring, questioning curiosity,
Colorado, which is literally the woman's paradise. In Colorado it would
be difficult to find even the smallest inequality between men and women.
They vote on equal terms, and if any woman deserves to go to the
legislature, and succeeds in convincing a large enough public of the
fact, nothing stands in the way of her election. One woman, Mrs. Alma
Lafferty, is a member of the present legislature, and she has had
several predecessors.
But Colorado women have a larger influence still in legislative
matters. To guard their interests they have a Legislative Committee of
the State Federation of Women's Clubs, consisting of thirty to forty
carefully chosen women.
This committee has permanent headquarters in Denver during every session
of the legislature, and every bill which directly affects women and
children, before reaching the floor of either house, is submitted for
approval to the committee.
Miss Jane Addams has declared, and Miss Addams is pretty good authority,
that the laws governing women and children in Colorado are superior to
those of any other State. Women receive equal pay for equal work in
Colorado. They are permitted to hold any office. They are co-guardians
of their children, and the education of children has been placed almost
entirely in the hands of women. This does not mean that Colorado has
weakened its schools by barring men from the teaching profession. It
means that women are superintendents of schools in many counties, and
that one woman was, for more than ten years, State superintendent of
schools.
Contrast Colorado with Louisiana, possibly the last State in the Union a
well-informed woman would choose for a residence. The laws of Louisiana
were based, not on the English common law, but on the Code Napoleon,
which regards women merely as a working, breeding, domestic animal.
"There is one thing that is not _French_," thundered the great Napoleon,
closing a conference on his famous code, "and that is that a woman can
do as she pleases."
[Illustration: A "WOMEN'S RIGHTS" MAP OF THE UNITED STATES]
The framers of Louisiana's laws were particular to guard against too
great a freedom of action on the part of its women. Toward the end of
Mrs. Jefferson Davis's life she added a codicil to her will, giving to a
certain chapter of the Daughters of the Confederacy a number of very
valuable relics of her husband, and of the short-lived Confederate
Government. Her action was made public, and it was then revealed that
two women had signed the document as witnesses. Instantly Mrs. Davis's
attention was called to the fact that in Louisiana, where she was then
living, no woman may witness a document. Women's signatures are
worthless.
In Louisiana your disabilities actually begin when you become an engaged
girl. From that happy moment on you are under the dominance of a man.
Your wedding presents are not yours, but his. If you felt like giving a
duplicate pickle-fork to your mother, you could not legally do so, and
after you were married, if your husband wanted that pickle-fork, he
could get it. Your clothing, your dowry, become community property as
soon as the marriage ceremony is over, and community property in
Louisiana is controlled absolutely by the husband. Every dollar a woman
earns there is at her husband's disposal. Without her husband's consent
a Louisiana woman may not go into a court of law, even though she may be
in business for herself and the action sought is in defense of her
business.
Nor does the Louisiana woman fare any better as a mother. Then, in fact,
her position is nothing short of humiliating. During her husband's
lifetime he is sole guardian of their children. At his death she may
become their guardian, but if she marries a second time--and the law
permits her to remarry, provided she waits ten months--she retains her
children only by the formal consent of her first husband's family. If
they dislike her, or disapprove of her second marriage, they may demand
the custody of the children.
It is true that many of these absurd laws in Louisiana are not now often
enforced. It is also true that in Louisiana and other states few men are
so unjust to their wives as to take advantage of unequal property
rights. Laws always lag behind the sense of justice which lives in man.
But the point is that unequal laws still remain on our statute books,
and they may be, and sometimes are, enforced.
Between these two extremes, Colorado and Louisiana, women have the other
forty-six States to choose. None of them offers perfect equality. Even
in Idaho, Wyoming, and Utah--the three States besides Colorado where
women vote--women are in such a minority that their votes are powerless
to remove all their disabilities. Very rarely have club women even so
much felicity as the New York State Federation, whose legislative
chairman, Miss Emilie Bullowa, reported that she was unable to find a
single unimportant inequality in the New York laws governing the
property rights of women.
In most of the older States the property rights of married women are now
fairly guaranteed, but the proud boast that in America no woman is the
slave of her husband will have to be modified when it is known that in
at least seventeen States these rights are still denied.
The husband absolutely controls his wife's property and her earnings in
Texas, Tennessee, Louisiana, California, Arizona, North Dakota, and
Idaho. He has virtual control--that is to say, the wife's rights are
merely provisional--in Alabama, New Mexico, and Missouri.
Women to control their own business property must be registered as
traders on their own account in these States: Georgia, Montana, Nevada,
Massachusetts, North Carolina, Oregon, and Virginia.
Nor are women everywhere permitted to work on equal terms with men.
[Illustration: MISS EMILIE BULLOWA.]
There is a current belief, often expressed, that in the United States
every avenue of industry is open to women on equal terms with men. This
is not quite true. In some States a married woman may not engage in any
business without permission from the courts. In Texas, Louisiana, and
Georgia this is the case. In Wyoming, where women vote, but where they
are in such minority that their votes count for little, a married woman
must satisfy the court that she is under the necessity of earning her
living.
If you are a woman, married or unmarried, and wish to practice law, you
are barred from seven of the United States. The legal profession is
closed to women in Alabama, Georgia, Virginia, Arkansas, Delaware,
Tennessee, and South Carolina.
In some States they discourage women from aspiring to the learned
professions by refusing them the advantages of higher education which
they provide for their brothers.
Four state universities close their doors to women, in spite of the
fact that women's taxes help support the universities. These States are
Georgia, Virginia, Louisiana, and North Carolina. The last-named admits
women to post-graduate courses.
You can hold no kind of an elective office, you cannot be even a county
superintendent of schools in Alabama or Arkansas, if you are a woman. In
Alabama, indeed, you may not be a minister of the gospel, a doctor of
medicine, or a notary public. Florida likewise will have nothing to do
with a woman doctor.
Only a few women want to hold office or engage in professional work.
Every woman hopes to be a mother. What then is the legal status of the
American mother? When the club women began the study of their position
before the law they were amazed to find, in all but ten of the States
and territories, that they had absolutely no control over the destinies
of their own children. In ten States only, and in the District of
Columbia, are women co-guardians with their husbands of their children.
In Pennsylvania if a woman supports her children, or has money to
contribute to their support, she has joint guardianship. Under somewhat
similar circumstances Rhode Island women have the same right.
In all the other States and territories children belong to their
fathers. They can be given away, or willed away, from the mother. That
this almost never happens is due largely to the fact that, as a rule, no
one except the mother of a child is especially keen to possess it.
It is due also in large measure to the fact that courts of justice are
growing reluctant to administer such archaic laws.
The famous Tillman case is an example. Senator Ben Tillman of South
Carolina has one son,--a dissipated, ill-tempered, and altogether
disreputable man, whose wife, after several miserable years of married
life, left him, taking with her their two little girls. South Carolina
allows no divorce for any cause. The sanctity of the marriage tie is
held so lightly in South Carolina that the law permits it to be abused
at will by the veriest brute or libertine. Mrs. Tillman could not
divorce her husband, so she took her children and went to live quietly
at her parent's home in the city of Washington.
One day the father of the children, young Tillman, appeared at that
home, and in a fit of drunken resentment against his wife, kidnapped the
children. He could not care for the children, probably had no wish to
have them near him, but he took them back to South Carolina, and _gave_
them to his parents, made a present of a woman's flesh and blood and
heart to people who hated her and whom she hated in return.
Under the laws of South Carolina, under the printed statutes, young
Tillman had a perfect right to do this thing, and his father, a United
States Senator, upheld him in his act. Young Mrs. Tillman, however,
showed so little respect for the statutes that she sued her husband and
his parents to recover her babies. The judge before whom the suit was
brought was in a dilemma. There was the law--but also there was justice
and common sense. To the everlasting honor of that South Carolina judge,
justice and common sense triumphed, and he ruled that _the law was
unconstitutional._
There are other hardships in this law denying to mothers the right of
co-guardianship of their children. Two names signed to a child's working
papers is a pretty good thing sometimes, for it often happens that
selfish and lazy fathers are anxious to put their children to work,
when the mothers know they are far too young. A woman in Scranton,
Pennsylvania, told me, with tears filling her eyes, that her children
had been taken by their father to the silk mills as soon as they were
tall enough to suit a not too exacting foreman. "What could I say about
it, when he went and got the papers?" she sighed.
The father--not the mother--controls the services of his children. He
can collect their wages, and he does. Very, very often he squanders the
money they earn, and no one may interfere.
A family of girls in Fall River, Massachusetts, were met every pay day
at the doors of the mill by their father, who exacted of each one her
pay envelope, unopened. It was his regular day for getting drunk and
indulging in an orgy of gambling. Often more than half of the girls'
wages would have vanished before night. Twice the entire amount was
wasted in an hour. This kept on until the girls passed their childhood
and were mature enough to rebel successfully.
It is the father and not the mother that may claim the potential
services of a child.
Many times have these unjust laws been protested against. In every State
in the Union where they exist they have been protested against by
organized groups of intelligent women. But their protests have been
received with apathy, and, in some instances, with contempt by
legislators. Only last year a determined fight was made by the women of
California for a law giving them equal guardianship of their children.
The women's bill was lost in the California Legislature, and lost by a
large majority.
What arguments did the California legislators use against the proposed
measure? Identically the same that were made in Massachusetts and New
York a quarter of a century ago. If women had the guardianship of their
children, would anything prevent them from taking the children and
leaving home? What would become of the sanctity of the home, with its
lawful head shorn of his paternal dignity? In California a husband is
head of the family in very fact, or at least a law of the State says so.
At one time the law which made the husband the head of the home
guaranteed to the family support by the husband. It does not do that
now. There are laws on the statute books of many States obliging the
wife to support her husband if he is disabled, and the children, if the
husband defaults. There are no laws compelling the husband to support
his wife. The husband is under an assumed obligation to support his
family, but there exists no means of forcing him to do his duty. Family
desertion has become one of the commonest and one of the most baffling
of modern social problems. Everybody is appalled by its prevalence, but
nobody seems to know what to do about it. The Legal Aid Society of New
York City reports about three new cases of family desertion for every
day in the year. Other agencies in other cities report a state of
affairs quite as serious.
Laws have been passed in most States making family desertion a
misdemeanor, and in New York a recent law has made it a felony.
Unfortunately there has been devised no machinery to enforce these laws,
so they are practically non-existent. It is true that if the deserting
husband is arrested he may be sent to jail or to the rock pile.
But that does not cure him nor support his family. Mostly he is not
arrested. He has only to take himself out of the reach of the local
authorities. In New York a deserting husband, though he is counted a
felon, needs only to cross the river to New Jersey to be reasonably
safe. Imagine the State of New York spending good money to chase a man
whom it does not want as a citizen, and whom it can only punish by
sending to jail for a short period. The State is better off without such
a man. To bring him back would not even benefit his deserted family.
Women, far more law abiding than men, insist that a system which evolved
out of feudal conditions, and has for its very basis the assumption of
the weakness, ignorance, and dependence of women, has no place in
twentieth century civilization.
American women are no longer weak, ignorant, dependent. The present
social order, in which military force is subordinated to industry and
commerce, narrows the gulf between them, and places men and women
physically on much the same plane. As for women's intellectual ability
to decide their own legal status, they are, taken the country over,
rather better educated than men. There are more girls than boys in the
high schools of the United States; more girls than boys in the higher
grammar grades. Fewer women than men are numbered among illiterate. As
for the great middle class of women, it is obvious that they are better
read than their men. Their specific knowledge of affairs may be less,
but their general intelligence is not less than men's.
Increasingly women are ceasing to depend on men for physical support.
Increasingly even married women are beginning to think of themselves as
independent human beings. Their work of bearing and rearing children, of
managing the household, begins to assume a new dignity, a real value,
in their eyes.
In New Zealand at the present time statutes are proposed which shall
determine exactly the share a wife may legally claim in her husband's
income. American women may not need such a law, but they insist that
they need something to take the place of that one which in eleven States
makes it possible for a husband to claim all of his wife's income.