Under christian legislation not alone the wife’s person but her

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.

Woman, Church & State The Original Exposé of Male Collaboration Against the Female Sex · 第 19 / 44 段