England. By old law if a widow married within a year from the death
of her husband she forfeited her dower.[78] This law accounts for
the superstitious sentiment as to ill-luck following the woman who
re-marries within a year and a day. Like the freedom of the Roman
“Usus” kept up by a three days’ absence in each year, this extra day
of the widow’s mourning seems to have been added as security for the
dower; while under the most ancient law of christian Europe, the widow
lost her dower if she married again, the Turks recognizing the greater
freedom of a widow, pay her who re-marries, a sum for parting with her
liberty.
The general rule of dower[79] held that when arranged at time of
marriage, although the husband then possessed but a small portion of
freehold and afterwards made great acquisitions, if no mention of new
purchases was made at time of such arrangement, the widow could not
claim more than the third part of the land possessed by the husband at
time of marriage. In like manner if a husband had no land and endowed
his wife with chattels, money, or other things, afterwards making great
acquisitions in land, she could not claim dower in such acquisition.
Neither could a woman dispose of her dower during her husband’s life.
This was quite unlike the freedom enjoyed by a wife in ancient Wales
where the dower became absolutely her own, to dispose of as she
pleased. Under English law the husband during the lifetime of his
wife could give or sell or alien her dower in any way that it pleased
him to do, and the wife in this, as in all other things, was obliged
to conform to the husband’s will. The wife’s dower right in personal
property can be aliened by the husband in the United States. During
the wife’s lifetime he may give, sell, or in any way dispose of the
whole of his personal property absolutely, and the wife has no redress;
she is not held as having any right, title or interest in it as long
as her husband lives.[80] The husband can also alien his real estate,
subject only to his wife’s dower right in case she survive him; should
she decease before him she has no power over it. The law in England as
laid down by Glanville was that in case the wife withheld her consent
to the sale of property she might claim her dower after her husband’s
death, but this could only have had reference to real property, and is
the same in the United States. If the wife withholds her consent to
the sale of real estate, it still can be sold away from her and she
thus be deprived of a home. It is merely subject to her dower right in
the value of the property at time of sale, and in case she survives
her husband; should she die first, she has no redress. Sales of this
character are constantly made, at a small discount, upon chance of the
wife’s nonsurvival. As dower right in real estate does not invest the
wife with its ownership in fee, but merely the use of one-third during
her natural life, it will readily be seen how very small is the wife’s
protection in dower-right even in this last half of the nineteenth
century. Bracton gives two reasons why the English husband could sell
the dower assigned to the wife without her consent:
First, because a wife has no freehold in a dower previous to
its being assigned to her. Second, because she cannot gainsay
her husband.
As late as the last quarter of the present century, the learned
Professor of Jurisprudence of Cambridge University, attempted to
prove that it was no reproach against woman’s intellect that she was
prohibited from making a contract during marriage; although failing
in this attempt, he clearly succeeded in proving woman’s condition of
pecuniary and personal slavery in the marriage relation. He said:
It is not an imputation on the wife’s experience or strength
of mind, but is solely grounded on her not being assumed by
common law to have sufficient command of her purse or of her
future actions wherewith to procure materials for making a
contract. The legal presumption then is, that she did not
intend to make one, and therefore the allegation that she did
make a contract would imply on the face of it a fraud.[81]
The legal presumption that the wife has neither sufficient command of
her purse or of her future actions to guarantee an intent of making
a contract, needs no further assertion to prove her enslavement. The
person neither possessing control of property or of their own actions
is a slave, regardless of or under what verbiage of law or custom
that condition is represented. Attempts are constantly made both in
the United States and England to take from woman the dower right now
accruing to them. During 1883, an Act was passed taking from English
wives all dower right, giving the husband power to bar the wife in
all cases; and scarcely a legislature convenes in the United States
that has not a similar bill introduced before it. As dower rights
increase the complication of land transfer, just as soon as the law
which gave the husband the power to bar this right became operative in
England, conveyancers began to insert a debaring clause in every deed
of conveyance, thus systematically despoiling the wife even when the
husband might not otherwise have been so disposed.
As “masterless women,” widows in England have received similar
contemptuous treatment as accorded single women, to whom that country
long showed such barbarity. It is curiously noted by Alexander[82]
that Moses placed widows in the same rank as harlots and profane
women.[83] The law of tenancy by courtesy, which gives a husband rights
in the separate property of a wife, is very unjust when compared with
the dower rights of a wife. In such case, provided she has borne a
living child, even should such child breathe but once, the husband in
case of the death of his wife, holds the entire real estate during
his life, as “tenant by courtesy.” He also takes the whole of her
personal property absolutely, to dispose of as he chooses. In a few
of the United States, the wife can defeat this by will, but in the
large majority of christian lands, the full rights “of tenancy by the
courtesy,” still prevail. Where right of dower still prevails, the wife
if there are children, takes but one-third of the personal property
absolutely, one-half if there are no children, the rest passing to
collateral heirs, who may be the husband’s most distant relatives. In
case no such relative can be found, the balance escheats to the state,
although in the State of New York the widow, under such circumstances,
receives $2,000 over one half. Of the real property she has the use
of but one-third, in contradistinction to the use of the whole of her
real property, which goes to the husband by “tenancy of courtesy.” In
tenancy by courtesy the children are robbed of the mother’s real estate
during the life of the father, and of her personal property, forever.
In enacting property laws, man, under tenancy by courtesy robs his own
children. The law of inheritance in Spain, that country distinguished
among European nations as “Most Christian land,” compels a man to
leave four-fifths of his property to his children, but does not make
it obligatory upon him to endow his wife with the remaining fifth.
Neither has the wife a dower right in property owned by her husband at
time of the marriage. The suite of a Spanish widow for dower right, in
an estate of several millions left by her deceased husband, was fully
reported by the New York daily papers within the past five years.
Suddenly reduced from affluence as the wife of this man, to the most
abject poverty as his widow, this wife and mother brought suit against
the estate and her children, who receiving all the property by the
husband’s will, left her absolutely beggared.
In ancient Ireland, the condition of woman was far superior to that
of the christian women of England or Scotland. Two forms of marriage
existed. Under that of “Equal Dignity,” the rights of the contracting
parties were the same, and took place when the man and woman possessed
the same amount of land, cattle, or household goods. No force or
sale accompanied it, the woman giving free consent equally with the
man. This marriage was looked upon as a contract between equals. The
property of the wife did not revert to the husband. She retained its
control, loaning it and receiving interest entirely free from the
interference of her husband.[84] Ancient Irish law, also secured to
the mother equal authority with the father over the children of the
marriage. There is no trace of that arbitrary control over both wife
and children with which Christianity endowed the father.[85] The
daughter was held to be more closely related to the father; a son to
the mother, this belief contributing an equality of right between the
sexes. These laws were authoritative over the whole of Ireland until
the invasion of the Danes, in the eight century (A.D. 792).
It is remarkable what effect the ownership of property by woman has
ever had in ameliorating her legal condition. Even in ancient Ireland
the wife without possessions became the slave of her husband. Although
the son was held as more nearly related to his mother, this ancient
code provided that in case his parents were poor and he had not wealth
enough to support both father and mother, he was to leave the latter to
die in the ditch, but was to carry his father back to his own home.[86]
Tradition ascribes this code to St. Patrick in the fifth century. Under
modern christian law, the legal obligation of a son to support his
father is greater than it is to support his mother, quite in opposition
to the old Scandinavian (pagan) law, which provided for the support of
the mother if but one parent could be cared for. Not the least among
the wrongs inflicted upon Ireland by English usurpation, has been the
destruction of the wife’s rights of property. The right of the Irish
wife to deal with her own property as she chose, irrespective of her
husband’s consent, was expressly declared illegal by English judges at
the beginning of the seventeenth century.
There are traces of separate property rights for woman, early among
Aryan peoples. By the old laws of Wales, a wife became legal owner of
part of her husband’s effects immediately upon marrying him, and had
the sole disposal of this portion even during her husband’s life. Debt
owed by a husband to a wife was as binding on him and his heirs and
executors as a debt to any other person. After the English laws were
introduced into Wales, innumerable disputes arose upon this ground. The
Welsh woman being persistent in her determination to cling to her old
rights, and for nearly two hundred years her will upon this subject
was stronger than the will of English legislators, as proven by legal
records.[87] In other respects the ancient law of Wales favored woman.
A husband’s fetid breath was held as good cause for divorce on part of
the wife, who in such case took with her the whole of her property.
While still living with her husband, the Welsh wife possessed the right
to three kinds of property, cowyll, gowyn, and sarand, known as her
three peculiars.[88] Old Welsh law was unique in that it forbade both
satisfaction and vengeance for the same wrong. Even if detecting his
wife in adultery, for which he should chastise her, the husband was
forbidden any satisfaction besides that. In case of an illegitimate
birth the law provided that the man should wholly maintain the
child,[89] a species of justice not found under Christianity. The laws
of “Howell the Good,” enacted at a later date under the supervision
of the church[90] favored the man at the woman’s expense. Under these
laws if a husband and wife separated, the father took two-thirds of
the children, the oldest and the youngest falling to his share, while
the middle one fell to the mother. A woman was not admitted as surety,
or as a witness in matters concerning a man.[91] In the division of
property the daughters received only one half the amount given to the
sons.
Under the christian laws of England, by which the property of a married
woman passed entirely into the control of her husband, the abduction
of heiresses in that country was very common for many hundred years,
no punishment following such a theft, although the most compulsory
measures were used, even to forcibly bending the bride’s head in
affirmative response during the marriage ceremony. She was a woman;
the law furnished her no redress. It regarded her as the legal wife of
her abductor, to whom she thereafter under this christian law, owed
service and obedience. The sole right to her person, her property, her
children then becoming legally invested in the robber husband. As noted
in the opening chapter, the abduction of a woman, or even an immodest
proposal to her, was punished in older un-christianized Scandinavia,
by greater or lesser outlawry; rape being a capital crime, placing the
culprit’s life in the hands of any man. He was outside the pale of law.
France under frequent changing names and forms of government, and with
a broader general recognition each year of human rights, is yet very
closely allied to the barbarism of the middle ages in its treatment of
woman, and its conception of her natural rights. This was shown even
during the revolution of 1787, of which Madame Roland and Charlotte
Corday were such central heroic figures. Although this revolution
established an equal succession between sons and daughters, yet it did
not tolerate the proposition of Sieyes and Condorcet that woman should
be endowed with the suffrage. One hundred years later, in 1887, a bill
was introduced during the legislative session, to secure to woman the
same political rights accorded man. This bill was lost; “Le Gaulois,”
commenting upon it, declared that in whatever manner the question was
discussed, it appeared grotesque and ridiculous. In the Legislative
Assembly of 1851, M. Chapot, proposed the prohibition of the right
of petition to women upon all subjects of a political nature. During
the same session, Athenase Coquerel, the most distinguished member of
a Protestant family of clergymen, presented a bill to the Chambers
excluding women from political clubs. Woman’s testimony is not accepted
in regard to civil acts. They cannot attest to a birth or a death, nor
is their testimony admitted in the identification of persons. Neither
can they become members of the family council, nor are they accepted
as guardians of their own children. It is only since 1886 that their
condition has been in any way ameliorated. The re-marriage of widows is
forbidden under ten months after the husband’s death, and until within
the last decade, divorces were of great rarity. The oppressed condition
of woman in the marriage relation, was notably shown by the vast number
of applications for release from the hated bond upon the passage of the
new law; a number so great,—eleven thousand,—that two years scarcely
sufficed to reach them all. No stronger argument against the evils of
an indissoluble marriage is required, and as the greater number of
applicants were women, it is farther evidence of woman’s degradation
under christian marriage laws.
According to the famous Code Napoleon, accepted by France as her modern
system of jurisprudence and declared (by man) to be nearly perfect
in its provisions, every child born outside of wedlock is deemed
to be fatherless unless such father of his own free will formally
acknowledges his offspring. While fifty per cent of all children born
in Paris are illegitimate, statistics prove that such acknowledgement
takes place but once in fifty births. Thus forty-nine per cent of
Parisian children under the Code Napoleon, theoretically come into the
world without fathers—they are born fatherless. A still more heinous
provision of this Code, forbids all research into paternity.[92]
The father of an illegitimate child—rendered illegitimate by church
canons—is held as both morally and legally irresponsible for his
fatherhood. Under this Code, upon the mother falls all the contumely
associated with such birth, together with the care and expense of
rearing the child. We cannot be surprised at the prevalence of
infanticide, a crime resulting from such unjust legislation, and
for which the church is directly responsible. In the whole history
of French jurisprudence, not a single case can be found where the
father of an illegitimate child has been compelled to acknowledge his
offspring.[93] Under French law, woman is a perpetual minor under the
guardianship of her own, or that of her husband’s family. Only in case
of the birth of an illegitimate child is she treated as a responsible
being, and then only that discomfort and punishment may fall upon her.
The same legal degradation of the unmarried mother, the same protection
accorded the unmarried father, the same enticement of the law for man
to assume a fatherhood freeing him from accountability, the same covert
contempt of womanhood and of motherhood, also exists in Italy, its
penal code forbidding all research into paternity. And this is not the
legislation of the middle ages but of the nineteenth century.
But French disregard for the rights of woman, as already shown, far
preceded the Code Napoleon; that system but legally emphasized the low
estimate of the feminine we have traced through the Salic, Feudal,
and Witchcraft periods. Louis VII referring to the number of girls
born in his dominions, requested his subjects to pray unto God that
he should accord them children of the better sex. Upon the birth of
his first child, Margaret, who afterwards married Henry Courtmantel of
England, his anger was so great that he would not look at her; he even
refused to see his wife. He afterwards accorded an annual pension of
three livres to the woman who first announced to him the birth of
a son. Although five hundred years have passed since the graphic
portrayal of woman’s condition, in the ballad of the Baron of Jauioz,
we find the Breton farmer whose wife has given birth to a daughter,
still saying, “my wife has had a miscarriage.” Question an ordinary
French peasant in regard to his family and the father of girls alone,
he will reply, “I have no children, sir, I have only daughters.”[94]
During the feudal period parents gave themselves up to merry-making
and rejoicing upon the marriage of the last of their daughters.[95]
Even yet, in some countries, the birth of a boy is announced by a
servant wearing a white apron and carrying two bouquets in her hand;
if a girl she carries but one; in some countries the father of a boy
annually received the gift of two loads of wood from the state; but
a single one if the child was a girl. Even in the United States we
yet see this contempt of the feminine variously manifested, although
the kindness and affection of girls to their parents, is usually more
notable, than that of boys.[96] Family regard is usually manifested in
the descending, rather than the ascending line, yet Herbert Spencer
declares that full civilization is dependent upon the respect and
affection shown to parents. France is not the only christian land that
invalidates a woman’s testimony, receiving the assertion of the woman
with less authority than the denial of the man. In Scotland in case
of an illegitimate birth, the accused man is allowed to clear himself
upon oath, in opposition to that of the woman. Under Scottish law the
child born outside of marriage was formerly compelled to do penance
in church for the sins of his parents. Such has been the justice of
christianity to women and children during the ages. These methods of
christianity were in great contrast to those of heathendom. The early
Anglo-Saxon (pagan) laws contained provisions for the punishment of
assaults upon women. Crimes against her were punished by greater or
less outlawry according to the attendant circumstances. Old Scandinavia
possessed many laws for the protection of woman. It has sometimes been
asserted that these laws were a dead letter, so many instances of
loose connections are recorded in the Iceland Sagas. It is, however,
a question of fact that these illegal relations, according to the same
Sagas were much more frequent after the introduction of christianity
than before.[97] Roman law presumed that no woman went astray without
the seduction and arts of the other sex, upon whom alone the punishment
fell. Under old Saxon, Gothic and Scandinavian law, rape was punished
by death. Under the Conqueror, its punishment was castration and loss
of the eyes, which continued English law until after Bracton wrote in
time of Henry III. A lighter punishment then superseded it, but the
effects of this leniency was so evil the old penalty was restored.
While forbidding woman control of her own property, common law, under
one of those anomalous renderings which mark the constant injustice
of Church and State towards woman, held twelve years as the age of
female discretion or consent, rape after that age not being regarded as
criminal.
Germany with sudden strides has coalesced from a number of independent
principalities through the management of him of the iron hand, into
a magnificent empire, based upon the destruction of human life. In
this empire, where war underlies all, we find woman much more deeply
degraded than during the old pagan days, when as chieftain and
prophetess her voice was heeded even upon the battlefield. Now, while
men are preparing to kill other men, the agriculture of the country and
the lowest forms of mechanical labor fall into her hands. But it is not
as responsible owner we thus find her; she cultivates the fields as a
drudge, upon whom falls all the most severe portion of work. Equally
in Germany as in other christian lands, is the wife looked upon as the
servant of the husband, to whom she bears children that are his alone,
and to whom greater deference is paid by the mother when a large number
of little ones call him father.[98] It has been the custom to reward a
husband in proportion to the number of children borne him by his wife,
and it is but a year since a Parisian journalist suggested that for
each additional child borne by his wife, the husband should be allowed
half a vote. In Germany as under the common law of England, the wife
is subject to chastisement by her husband, its severity being left to
his discretion. But the height of barbaric absurdity and wickedness is
found in that provision of the Prussian common law which decrees that a
husband can determine the length of time his wife must nurse her child.
As might be expected, at his death the wife is not regarded capable
of caring for the children, and must accept a guardian for them; the
law going so far as to declare her under age similarly to that French
law which makes woman a perpetual minor. It matters not if the family
property all came through the wife, or was accumulated by her labor,
she is still held as not of sufficient judgment for its control. In
Prussia, woman is still forbidden to take part in political or other
public meetings.[99]
Morganatic or left-hand marriage still continues the custom in Germany.
Under its provisions the wife does not take the husband’s rank, nor do
the children inherit the father’s property, as they are not regarded as
of full legitimacy. This form of marriage is recognized by the civil
law of Germany, and is sustained by the church. The custom, at first
confined to princes, gradually extended to the higher aristocracy,
and as the moral perceptions of a nation bends itself to unison with
civil law, the inferior gentry began to contract marriages of this
kind. Under a morganatic union woman is still more debased than in
the ordinary marriage relation. Aside from the ceremony, the wife
is scarcely other than a concubine. The children of the morganatic
marriage do not bear the father’s name, nor inherit from him, under
the law of the state. Neither they nor the wife have more lasting
claim upon him in these respects than had the concubines known as
“the Honored Ones” upon the priestly destroyers of the thirteenth,
fourteenth and fifteenth centuries.