property so fully became her husband’s that her use of any portion of
it thereafter without his consent was regarded as theft; and such is
still the law in the majority of christian countries; it is less than
sixty years since a change in this respect took place in any part of
the christian world. While a wife may steal from her husband it is
still the law that a husband cannot steal from his wife. If she allows
him to transact business for her, or in any way obtain possession of
her property even for a moment, he has acquired its legal ownership.
Since the passage of the Married Woman’s Property Act, the courts of
England have decided that a husband cannot steal from his wife while
she is living with him. A case before Baron Huddleston, 1888, commented
upon by the _Pall Mall Gazette_, under head of “Stealing from a Wife,”
called attention to the superior position of the mistress in respect to
property rights over that of the wife.
Can a husband rob his wife? Baron Huddleston yesterday
answered this by saying he can not rob her at all under the
common law, which regards all the wife’s property as the
husband’s; and, theft is only robbery under the Married
Women’s Property Act, when the wife is living apart from
her husband, or when he is preparing to desert her. It is
really quite amazing how many advantages a mistress has over
a wife in all matters relating to property and to person.
It almost seems as if the object of the law was to inflict
such disabilities on wives in order to induce the fair sex to
prefer concubinage to matrimony.
The separate moral codes for man and woman in all christian lands, show
their evil aspect in many ways. Adultery, in all christian countries
is held to be less sinful for men than for women. In England, while
the husband can easily obtain a divorce from the wife upon the ground
of adultery, it is almost impossible for the wife to obtain a divorce
from the husband upon the same ground. Nothing short of the husband’s
bringing another woman into the house to sustain wifely relations to
him, at all justifies her in proceedings for a separation; and even
then, the husband retains a right to all the wife’s property of which
he was in possession, or which may have fallen into his hands. Less
than a dozen years since, an English husband willed his wife’s property
to his mistress and her children of whom he was the father. The wife,
(in what is known as “The Birchall Case”), contested the will, but the
courts not only decided in its favor, but added insult to that legal
robbery, by telling the wife that a part of her money was enough for
her, and that she ought to be willing that her husband’s mistress and
illegitimate children should share it with her.
Woman’s disobedience to man is regarded by both the church and the
state as disobedience to God. As late as the first half of the present
century it was held as constructive treason, in England, punishable by
the state, for a wife to refuse obedience to her husband’s commands
or in any way to question his authority. She was required to be under
submission to him as the direct representative of the deity. For the
woman who protested against this annihilation of her individuality, a
flogging was the customary form of punishment and so common was the use
of the whip that its size was regulated by law.[33] The punishment of
petit treason[34] was more severe for woman than for man because her
crime was regarded as of a more heinous character. She was dragged on
the ground or pavement to the place of execution then burned alive;
a man was drawn and hanged. It was long after the conquest before
even a man convicted of treason secured the right of being carried to
execution on a sledge or hurdle. Blackstone comments upon the extreme
torment of being dragged on the ground or pavement. In case of a woman
the wounds and lacerations thus received must have greatly added to her
intensity of suffering, yet so blinded was he through those laws, that
he calls her punishment of burning, a tribute to the “decency due to
the sex.”[35]
During a portion of the christian era the wife has not been looked
upon as related to her husband. The residuum of this disbelief in the
relationship of husband and wife, occasionally shows itself to the
present day.[36] She was his slave under both religious and civil law,
holding the same relations to him as the subject did to the king, and
liable to punishments similar to those inflicted upon unruly slaves,
or disloyal subjects. Rebellion against the husband’s authority was
treason punishable by law, similarly as treason to the king. The
difference was but in name. Down to the end of the eighteenth century
in England, the wife who had murdered her husband was burned alive; if
the husband murdered his wife he suffered simple decapitation, “the
same as if he had murdered any other stranger.” For the wife’s crime
of petit treason the penalty was that of the slave who had killed her
master. It is scarcely a hundred years since the punishment of burning
the wife alive for the murder of her husband, or the female slave for
the murder of her master, as petit treason, passed out of the English
penal code; the last instance occurring in 1784, eight years after
our declaration of independence. This same code was operative in the
colonies; the last woman thus punished in this country, being a slave
in 1755, who had murdered her master, America having twenty-nine years
precedence in the abolition of this penalty.[37]
A cablegram from Europe, September 1892, proves the continued existence
in this last decade of the nineteenth century of the crime of petit
treason, and also the barbarous punishment still inflicted under
christian law, upon the wife who murders her husband. This case,
occurring in Finland, was carried up to the Court of Appeals, which not
only affirmed the decision of the lower court but decreed additional
punishment. Because the wife had also forged her husband’s name for
small sums of money, having under law, first been robbed by him of her
earnings, the judgment of having her right hand cut off, was added to
the original sentence. She was then decapitated, her body fastened to a
stake, covered with inflammable material and burned to ashes. Although
this wife was not burned alive, the barbarity of her punishment was
most atrocious, and took place under the christian laws of the church
and the state, in a Protestant country in the “year of our Lord,” 1892.
That the punishment was infinitely more severe than would have been
inflicted upon the husband in case he had murdered his wife, was due
to christian teaching of woman’s inferiority and subordination to man;
thus making the wife’s crime that of petit treason, under law only a
trifle less heinous than murdering a king, or attempting destruction
of the government. Had the husband murdered the wife it would have
been, according to legal prevision, the same as if he had killed “_any
other stranger_.” The marriage ceremony robbed her of her property
and earnings, but in equity the money she was accused of stealing
from him belonged to her. Under the laws of most christian states, a
woman is robbed of herself and all of her possessions by the simple
fact of her marriage. Under christian laws the services of the wife in
the marital relation are all due to the husband,[38] her earnings all
belong to him; she is a slave owning nothing and with no rights in the
property her husband calls his own. This wife’s crime was provoked by
pre-existing criminal legislation of the christian church and state.
Possessing no legal right to the control of her own person, property
or conscience, the wife was held to have sinned against a divinely
appointed master to whom she owed more than human allegiance: she was
a criminal so great that the punishment of severing her hand and head
were deemed entirely inadequate, and her body fastened to a stake was
covered with inflammable material and burned to ashes.[39]
While the external government of Finland, as declarations of war,
peace, treaties, etc., is under control of the Czar, or Grand Duke,
yet in the internal administration of affairs this country is an
Independent State, under a Constitution dating 1772, and confirmed
by three successive czars. It became christianized in the twelfth
century but is not under the Greek church; its established religion
is Evangelical and Lutheran, under control of the archbishop of Abo,
and the bishops of Bogia and Knopo; an ecclesiastical assembly meeting
every ten years; and the Diet, composed of representatives of the
clergy, nobility, citizens and peasants, every five years. Without
consent of these bodies no laws are enacted or repealed; but woman
possesses no representation either in ecclesiastical or civil affairs.
The old law of marriage instituted by the church, which held the wife
as belonging body and soul to the husband who not alone possessed
control over her actions but decided her religion, is still extant.
In but few countries do we see a tendency towards its abolition, even
those that have somewhat favorably legislated upon the question,
still retaining the general principle of a wife’s subserviency to her
husband. A few years since an English lady desirous of uniting with
the Catholic church was refused consent by her husband, “a staunch
churchman.” Unknown to him she was received into that body, which
proved occasion of an animated controversy between the husband and the
late Cardinal Manning, the former basing his opposition and his letter
of remonstrance to the cardinal upon the ground of the admitted legal
right of a husband, under English law, to ordain the form of his wife’s
religion.[40] Nor do we find material difference in the United States.
In Virginia, in the winter of 1891, a wife, despite the opposition of
her husband caused her infant to be baptized by an Episcopal clergyman
into that church, the husband openly expressing his disapproval while
the ceremony was in progress, and afterwards suing the clergyman for
an interference with his vested rights over wife and child. This
supreme authority of the husband in christian countries is shown in
many strange ways. Among the Hindoos the naming of the child belongs
to the mother. If the father expresses desire for a different name,
each one is written upon a paper over which lighted lamps are set,
the one burning the longest deciding the choice of name. But in Rhode
Island as late as 1892, a controversy between the parents as to the
naming of a child was settled by law. The father and mother each filed
a certificate with the registrar; the father employing a lawyer who to
the satisfaction of the city solicitor proved his client’s prior right,
and an order was issued to the registrar in favor of the father’s
choice of name.[41] The claim of the christian husband in each of
these instances was that of his supreme and prior right, on the church
theory incorporated into law, that both wife and child belong to the
husband. The celebrated Agar-Ellis case in England during the latter
part of the seventies, was brought by a wife to compel the keeping by
a husband of his pledges in regard to the religious education of his
children. The decision was against the wife, upon the general ground
that a wife had no rights in law as against a husband. A man’s pledged
word broken at the gaming table renders him infamous and subjects him
to dishonor through life. But a husband’s pledged word broken to his
wife, under ruling of the highest court and the profoundest legal
talent of England, the Court of Appeals, and the Vice-Chancellor, is
just, implying no dishonor, but rather entitling him to respect as a
man who in a befitting manner has maintained his marital rights and
authority. The judge instructed the wife that she had no right to teach
her children what her husband did not believe, even though she herself
most fully believed what she taught. He impressed upon her that she was
not rearing her children for herself, but as her husband’s property,
over which she possessed no control only in so far as the husband made
her his agent. In affirming the order of the Vice-Chancellor, the court
of appeals declared that the father had the legal right to bring up the
children in his own faith, and in pledging his word to the contrary he
had in no way forfeited or abandoned his authority. This decision of
the English Court of Appeals, is in accord with the laws of the United
States. The Albany N.Y. _Law Journal_ in commenting upon this case
under the head of “Curious Question,” declared the decision to be in
harmony with the general rule as to religious education; the child is
to be educated in the religion of the father.
The _English Women’s Suffrage Journal_ in its comments, declared
English law to be based upon the Koran, quoting, in proof, from a
writer in the “Contemporary Review”:
The East has long been noted for the subordination of its
women, and this subjection is not only preached by Mussulmans
and Buddhists but even by Christian churches. Woman is not
regarded as a person but as a field, cultivable or not, as
the possessor desires. As a field can neither have faith, nor
intellect, nor a will of its own, it would be absurd for a
man to occupy himself about what a woman believes, thinks, or
wishes. She is absolutely nothing but her husband’s domain. He
cultivates it and reaps the harvest, for the harvest belongs
to the proprietor.
According to the _Women’s Suffrage Journal_, this condition accurately
depicted the spirit of the injunction laid upon Mrs. Agar-Ellis, by
Lord Justice James.
To the wife and mother he declared that she had no right
to teach her children what she believed, but must, to the
contrary, teach them what her husband believed, whether she
believed it or not; the law not concerning itself with what a
woman believes, or wishes, as she is in law absolutely nothing
but her husband’s domain.
The mistake of the _Journal_ lies in ascribing this law to the
teachings of the Koran, instead of the teachings of the Bible, which in
general tone, and through particular instruction, places woman upon the
same level as a man’s “flocks and herds, oxen and cattle.” We do not
find the personal rights of women in the United States differing from
those of the women of England. A famous suit was tried in Ohio, 1879,
known as the “Lucy Walker Case,” a former wife suing the present wife
for alienating her husband’s affections. Great attention was called to
this suit from the high position of the parties; Judge Seney, former
husband of one, and present husband[42] of the other wife, being widely
known as author of a “Civil Code,” bearing his name. The suit gained
still greater notoriety from the principle enunciated in his decision
rendered against the plaintiff, by Judge Dodge, before whom the case
came to trial; he dismissed it upon the ground that a wife had no
rights as against her husband. All testimony upon part of the injured
first wife was excluded upon the same ground. He decided:
First: That the husband has a property interest in his wife
which the wife does not possess in the husband.
Second: That the law protects him in this right of property in
her.
Third: Upon the ground that he holds her and dares the world
to meddle with him in the holding.
Fourth: But on the contrary the wife looks alone to the
husband, the law compelling her to do so.
Thus less than fifteen years since the legal decision was rendered
in the United States, that a wife is a husband’s property; that the
husband has a pecuniary interest in the wife, the law protecting his
right of property in her, while the wife possesses no reciprocal right
of property in the husband.
The _Toledo Bee_ gave the full text of Judge Dodge’s decision:
The question submitted in this: Has a wife such a property
in her husband, has she such a legal pecuniary interest in
him, that she can bring an action at law against one who
injures him, against one who imprisons him, and, finally, can
a wife recover damages at law against a woman who has carnal
intercourse with her husband without her consent? It will be
at once admitted that the question is a novel one. Our courts
adjudicate primarily upon property interests. A husband has a
pecuniary, a property interest in his wife. The law protects
this right of property.
A father can recover damages against a man who seduces his
daughter, but a mother can not recover for the seduction of
a daughter. Why not? Is she not as dear to the mother as the
father? Nay, dearer, by as much as a mother’s love exceeds a
father’s. But she has not property in her, is not entitled to
her wages; neither is a mother bound to support her children.
The father is the head of the family, not the mother. He, by
virtue of his headship, is legally entitled to the services of
his family. The husband is head of the wife; not the wife of
the husband.
But can a husband sue his wife if she refuses to support him
out of her property, to give him her earnings, or keep her
marriage contract? Not at all. Can a father sue his minor
child that refuses him obedience and service? Not at all.
And why is this? For the same reason that he cannot sue his
flocks or his herds, his oxen and his cattle—they are his.
His to command. He is responsible for and to them. He cannot
sue his own. He can sue any one who takes them away; any one
who keeps or harbors them; any one who injures them; because
they are his own. But the wife does not own her husband; the
child does not own the father, and, therefore, I hold that the
child cannot sue for an injury to the father, nor the wife for
an injury to the husband. There is in her no property right
upon which to found the action. My conviction is that the wife
looks to her husband alone for the fulfillment of his marriage
vows. If he refuses her the support, protection and love which
he pledged her, she applies to a court to enforce the claim
against him. Every dollar he has, every penny of his earnings,
all his arm can gain or his intellect can attain are subject
to her right. But she looks to her husband alone, the law
compels her to do so. The husband enforces his claim to his
wife by striking down every one who interferes with his right
to her. He holds her and dares the world to meddle with her.
The law protects him in holding. The law gives courage to his
heart, strength to his arm in defending his position. But the
wife looks to the husband. She relies upon his pledge and his
promise, which the law will enforce, and she looks to that
alone. The law does not permit her to go forth to smite the
seducer of her husband, nor the man or woman who entices him
away.
But as showing the rapid growth of public opinion in favor of the
wife’s equality of right with the husband, through the persistent
rebellion of woman against established laws and usages of Church and
States, thus forcing an advancing civilization upon the world, was a
decision rendered 1891, twelve years later, in the state of Indiana.
The case was that of Leah Haynes, plaintiff, against Flora Knowles,
defendant; a suit similar in character to the “Lucy Walker Case.” Judge
Elliot in Supreme Court of that State, on appeal from the decision
of the Circuit Court of Dearborn County, reversed the finding of the
lower court, deciding in favor of the right of a wife to sue for the
alienation of her husband’s affections. This decision, so contrary to
common law, and to ordinary christian legislation for woman, is proof
of an advancing civilization which does not look to the church for
approval. Court decisions of this character establishing a precedent,
are of far greater value in demonstrating the growth of a purer public
sentiment, than are simple legislative victories upon school or
municipal questions. They speak even more clearly than do the host of
newly opened industries, freer opportunities for education, married
woman’s property laws and similar legislation, of a growing recognition
of woman’s personal rights, and of a civilization founded upon the
common rights of humanity, and no longer upon church authority.
The general spirit and letter of the christian laws of husband and wife
was most fully carried out by a husband of the state of Missouri a few
years since. Mrs. Olive Davenport of St. Louis, suing for a divorce,
upon the ground that her husband required her to obey him in all
things. “Davenport’s rules for his Wife” were offered in evidence.
Rules for the Government of my Wife’s Conduct while away from
me, June 1, 1879:
First: Not to speak to any person or allow any person to speak
to her on the car except the conductor and porter in the
discharge of their duty.
Second: Go directly from depot in New York, to Mrs. Haight’s
house, and occupy room with mother and sleep only in room.
Third: Speak kindly and politely to Mrs. Haight, but not in
a friendly or familiar manner. Say to her you do not wish to
meet any one in the house. Ask for a table to yourself, with
only your family or go somewhere else.
Fourth: Never sing in the parlor or sing in your room when any
person except your immediate family be present.
Fifth: Never leave mother day or night for five minutes at
a time for any reason whatsoever. Do not walk, ride, or go
anywhere without her, even with your own brother.
Sixth: Do not call on any person whatsoever, and allow no one
who may call on you to see you unless they be your brothers or
their wives. Do not speak to any person you may meet whom you
have not known in the past.
Seventh: Write every night to me a full, truthful and exact
account of everything you have done, where you have been, to
whom you have spoken, and whom you have seen. This must be
done every night.
Let nothing but sickness or death prevent your keeping these
rules, for I will excuse no breach on any account.
Do not leave New York even for one hour without my permission,
except to Brooklyn or Harlem.
If my wife cannot keep these rules in word and spirit, I
desire never to see her again.
Benjamin R. Davenport.
The divorce suit showed the married pair to have been separated once
before, Mrs. Davenport, unable to bear her husband’s tyranny, returning
to her mother’s house. At that time her husband required her to eat
only what he directed, and to wear only those clothes he bade her wear,
selecting even the color of her ribbons. The only fault he had to find
with her was that she “talked back,” which has always been deemed
an unpardonable crime in woman; one for which the Ducking Stool and
Scold’s Bridle were invented. After she left him, Mr. Davenport wrote
affectionate letters to his wife, calling her the sweetest and best of
women, imploring her to return. She relented and lived with him once
more, but her husband again put his rules in force. She then sued for a
divorce, which the court granted. Mr. Davenport’s treatment of his wife
is by no means exceptional. The following excerpt is from a letter in
the Terra Haute, Ind., _Mail_, 1884.
An individual who considers himself a representative man in
the city, and perhaps he is, said in the presence of several
persons. “I went home at three o’clock this morning and found
my wife sitting up. She burst into tears and asked me where
I had been and why I treated her in that manner? I just told
her if she said another word I would leave the house; that as
long as she had a comfortable home where she could spend her
evenings it was none of her business where I spent mine. Now,
if I did not provide for my family, it would be a different
thing but so long as my wife is well provided for, she has no
right to complain and I don’t propose to allow it.” These are
the man’s own words, and there are a great many men who hold
the same opinions. If their wives protest because they drink,
gamble and spend their nights away, they say, “You have a good
home and enough to eat and wear; what more do you want?”
A lady of Richmond, Va., anxious to know from a legal source just what
her rights as a wife were, consulted a lawyer of that city.