"It was not Zeus who uttered this decree,
Or Justice, dwelling with the gods below:
Nor did I think thy will such power possessed,
That thou, a mortal, could o'errule the laws
Unwritten and immovable of God."
_Antigone_: SOPHOCLES.
"We seldom doubt that something in the large
Smooth order of creation, though no more
Than haply a man's footstep, has gone wrong."
E.B. BROWNING.
"The law of God, positive law and positive morality, sometimes
_coincide_, sometimes _do not coincide_, and sometimes
_conflict_."--JOHN AUSTIN: _Province of Jurisprudence Defined_.
"Of Law, no less can be said than that her seat is the bosom of God; her
voice, the harmony of the spheres. All things in heaven and earth do her
reverence; the greatest as needing her protection, the meanest as not
afraid of her power."
In reading this magnificent and well-known sentence from Hooker, the
imagination is easily kindled to a divine prescience. We accept the
definition. Fair before us rise the graceful proportions of eternal
order in society, upon which wait present peace and future progress;
towards which those bow most reverently who live most purely and see
most clearly. But alas! if the reader be a woman, her heart may well
sink when the enthusiasm of the moment has passed; and she must ask,
with a feeling somewhat akin to displeasure, "Of _what_ law realized on
earth, administered in courts, dealt out from legislatures or
parliaments, from republics or autocrats, were these sublime words
written?"
Where in the soft shadows of Oriental hareems, in the gloom of Hindoo
caves, Egyptian pyramids, or Attic porches, sculptured by divinest art,
and luminous with marbles of every hue; where in the porticos echoing to
Roman stoicism, or the baths floating on Roman license; where in the
saloons of French society, or by the hearths of good old England; where,
alas! in the free States of America, whether North or South,--has a
system of law prevailed that women could think of, without blasphemy, as
sitting in the bosom of God, and so entitled to the reverence of man?
We outgrow all things. Always the new patch breaks the fabric of the old
garment; always the new wine shatters the well-dried leathern pouch
which held the vintage of our ancestors. But most of all do we outgrow,
have we outgrown, our laws. They fall back, dead letters, into the abyss
of that past from which we have emerged. We put new laws upon the
statute-book, and do not pause to wipe out the old; finding our
protection in the public feeling and the public progress, if not in the
traditions of the elders.
This, and this only, saves old systems from violent demolition. Were the
State of Connecticut at this moment to attempt to put in force such of
the blue-laws as are technically unrepealed, she would be met by the
open rebellion of her highest officer; and the chief-justice who should
attempt to fine a bishop for kissing his wife on Sunday might shake
hands cordially with the chief-justice who once ruled that a man might
beat his wife with a stick no bigger than his thumb!
The laws which relate to woman are based, for the most part, on a very
old and a very Oriental estimate of her nature, her powers, and her
divinely ordained position. We shall see this, if we follow the course
of legal enactments or religious prohibitions from the beginning. When
the subject of Woman's Civil Rights first came to be considered, it was
customary to quote from the scholars one of the sayings of Vishnu Sarma:
"Every book of knowledge which is known to Oosana or to Vreehaspatee is
by nature implanted in the understandings of women."
Nobody asked what sort of knowledge was known to these two deities; but
most readers took it for granted that it was divine: and ordinary people
asked why, if society began with this reverent faith, we had nothing
better now than the practical scepticism of priest and lawyer. When the
names of these two deities were translated into Venus and Mercury (that
is, into _love_ and _cunning_), the announcement seemed more in keeping
with the subsequent revelations of Vishnu Sarma:--
"Women, at all times," he says, "have been inconstant, even among
the Celestials."
"Woman's _virtue_ is founded upon a modest countenance, precise
behavior, rectitude, and a _deficiency of suitors_."
"In infancy, the father should guard her; in youth, her husband; in
old age, her children: for at no time is a woman fit to be trusted
with liberty."
"Infidelity, violence, deceit, envy, extreme avarice, a total want
of good qualities, with impurity, are the innate faults of
womankind."
These extracts will throw some light, perhaps, upon the knowledge of
Oosana and Vreehaspatee, and will save modern women from any very strong
desire to restore the "good old rule." After such a commentary on this
seeming compliment, we shall not think it strange, that, in a country
where dialect is the exponent of condition, the most ancient drama
represents the Hindoo wife as addressing her lord and master in the
dialect of a slave.
"It is proper," says an ancient Hindoo scripture, "for every woman,
after her husband's death, to burn herself in the fire with his corpse."
I quote this saying here only to advert to the power of public opinion,
which has been strong enough for ages to compel this sacrifice. But for
it, many a woman, who had been burnt during her whole conjugal life in
the fires of tyranny, self-will, and arrogant dominion, might have
hailed with joy the hour of her release. Under it, such a woman went
calmly to the new martyrdom.
An ancient Chinese writer tells us, that the newly married woman should
be but an echo in the house. Her husband may strike her, starve her,
nay, even _let her out_! Such was the spirit of most Oriental custom and
law. It has crossed the Ural; so that Köhl, the German traveller, tells
us that a Turk blushes and apologizes when he mentions his wife, as if
he had been guilty of a needless impertinence. The same thing is
reported of one of the Sclavic tribes, among whom it may have been
borrowed from their Ottoman conquerors.
In the "London Quarterly" for October, 1860, we are told that the
convent of Nuestra Senhora da Ajuda in Rio was long employed for the
purpose of locking up ladies whose husbands were on their travels. This
has been forbidden by the present emperor.
There were, however, singular exceptions to the prevailing estimate. In
the Island of Coelebes, where the government is republican in form,
the president, and four out of six councillors, are not unfrequently
women. In the diary of the Marquess of Hastings, we are told, that among
the Garrows, a populous and independent clan in the hill country in the
north-east of India, all property and authority descend in the female
line. On the death of the mother, the bulk of the possessions goes to
the favorite daughter, _so_ designated, without regard to primogeniture
in her lifetime. The widower has a stipend settled on him at the time of
marriage, and a moderate portion is given to each daughter. The sons are
expected to support themselves. A woman, called Muhar, is the chief of
each clan. Her husband is called Muharree, and has a representative
authority, but no right to her property. Should he incline to squander
it, the clan will interfere in her behalf. When the Duke of Wellington
fought the battle of Assaye, in 1803, against the Mahrattas, a woman,
the Begum of Lumroom, belonging to the military tribe of Nairs, fought
against him at the head of her cavalry. In this tribe the succession
follows, according to the duke's report, the female line. This was on
the coast of Malabar, south of Bombay, and in what we should call the
south-western part of the Deccan. In spite of the difference in
orthography, and the statement about the north-east, I think these
stories may refer to the same clan. An orthography so variously rendered
as the East Indian is a blind guide.
Quite evident is it that the proverbs of more western and later-born
nations grew out of the estimate of Vishnu Sarma and his compeers. Look
at them:--
"A rich man is never ugly in the eyes of a girl."
"A beautiful woman, smiling, tells of a purse gaping."
"Every woman would rather be handsome than good."
"A house full of daughters is a cellar full of sour beer."
"Three daughters and the mother are four devils for the father."
"A man of straw is worth a woman of gold."
"A rich wife is a source of quarrel."
"'Tis a poor roost where the hen crows."
"A happy couple is a husband deaf and a wife blind."
It is quite evident, I think, that men made these proverbs; and somewhat
mortifying, not to _women only_, but to our common humanity, that they
should have the run of society and the newspapers, in an age which has
given birth to Florence Nightingale, Mary Patton, and Dorothea
Dix,--women who have been born only to remind us that their counterparts
appeared a thousand years ago.
Aristophanes and Juvenal, Boileau and Churchill, turn these slanderous
proverbs into verse, if not into poetry; and, in examining the laws of
more modern times, we shall constantly trace the effect of the old
Oriental estimate. In all such examinations, we have four points to
consider:--
1st, That estimate of woman on which her civil position is founded, and
those rights of property which are granted or refused to her
accordingly.
2d, Such laws as relate to marriage and divorce.
3d, Such laws or customs as keep woman out of office, off the jury, and
refuse her all authorized legitimate interference in public affairs.
4th, Her right of suffrage.
Of these points, the discussion of such laws as relate to marriage and
divorce is alone to be restricted by any considerations of prudence. It
has never seemed to me a wise thing to open needlessly this discussion;
and the opening of it by women is needless, while they are in no
position to discuss it equally with men. In the marriage relation,
whatever is the certain loss and misery of one sex is also the certain
loss and misery of the other. Whatever inequality and injustice
appertains to it will be best removed when the two sexes can consider it
together, like two equal and competent powers.[32] I shall advert to the
laws of marriage and divorce, only to point out mistakes or bad results
not generally perceived, and make no attempt to treat them at length.
When we consider what sort of public opinion has educated woman, what
estimate has lain at the bottom of all the laws passed concerning her,
it does not seem strange, that, after living for ages in a false
position, she should somewhat approximate to this estimate; so that we
say with pain of the mass of women, that _they themselves_ need a change
quite as much as their circumstances. It is common, in treating of this
subject, to dwell on the position of woman under the Roman law; but very
little is gained by it. We can see by the literature of the nation what
estimate was put upon woman, and what share she took in the degradation
of society; but how far this was the consequence of bad law, what
changes were wrought from the time of Justinian, not merely in law, but
in moral soundness under the law, it is not easy to tell in a country
which had neither printing-presses nor newspapers. We have only the
judgment of a few men, themselves law-makers, to rely upon; and their
opinions had a very limited circulation in their lifetime, and could not
be tested by any cotemporaneous verdict. It is in vain that we listen to
testimony when no competent witnesses appear on the "other side." Women,
however, ought always to remember to whom they owe the changes made in
Justinian's time. The life of Theodora is yet to be written. The
scandalous anecdotes of a secret history must some day be balanced by
the public testimony of Procopius, and some good be told of the woman
whose first thought, when raised to empire, was for the companions of
her previous infamy, and whose influence over her husband never
faltered, and is visible in every modification of the laws relating to
her sex. If we could realize the corruptness of the higher classes of
society, we should not wonder at the emperor who chose his wife from the
streets; and the fact itself tells a story which he who _heeds_ need not
misunderstand.[33]
The laws which most directly affect us here in America are
the laws of France and England: the laws of France, because they modify
the code of Canada, Florida, and Louisiana; the laws of England, because
in her common law, recognized all over the country by all the States, we
find the basis of all that is objectionable in our legislation.
First, then, let us consider the estimate on which the French law is
based, and then its property-laws. Civil position and the right of
franchise can be disposed of in a few words the world over. "There is
one thing which is not French," said Bonaparte, as he closed a cabinet
council, while preparing his famous Code; "and that is, a woman who can
do as she pleases."
The estimate of woman in France is of a double character.
It is _low_, because marriage among the upper classes is, at the best,
only a well-made bargain.
It is _high_, because women have been encouraged to enter trade, both by
law, which protects them in their capacity as merchants, and by the
military character of the nation, which prevents men from entering
business.
It is _low_, because throughout the provinces there are remnants of old
feudal custom, which keep her in the position of a slave. The peasant's
wife rarely sits at table: she crouches in the chimney-corner, eating
from the stew-pan; while her husband sits at the table in state before
his porringer. Yet, in another respect, this very woman helps to raise
the estimate of her sex; for she works with her husband in the field,
while a wealthier wife is often only a burden. Like him, she is exposed
to all the changes of the weather. Pregnancy does not save her from the
plough or the vintage. While her husband rests at noon, she must nurse
her babe or prepare his meal.
In most countries, it is desirable to turn the thoughts of women away
from love, and give them some healthier occupation. In France, it would
be well to stimulate the affections, because covetousness, a desire of
worldly position, or splendid wealth, is the main motive to a marriage.
With us, love constitutes the whole life of many a woman; while it may
be only an episode in that of her husband.
In France, even woman seldom loves, but marries to establish herself in
life. It is against this greed that she needs to be cautioned, _not_
against that emotion and sentiment which God meant should be both a
safeguard and a blessing. _Love_ must rescue woman from vanity,
self-indulgence, and empty show. Only through its divine power will she
come to perceive the true nature of that shameful bargain, by which she
surrenders what is most precious to appease the thirst of society. If we
would save and serve humanity _here_, we must let natural
susceptibilities have their full play.
At the same time, the business freedom which women enjoy in France has
led many women to reflect thoroughly and act vigorously. The reading
world is deluged with books relating to woman,--her education, her
labor, and her civil rights. Out of this condition of things spring a
class who long to share the sorrow and responsibility as well as the joy
of liberty. They will not accept the tenderness and pity of such men as
Michelet, who veil a profound sensualism with the graces of an affected
sentimentality. Sometimes, like George Sand, these women break loose
from social ties, test the world for themselves, and, when they have
squeezed the orange which looked so tempting, show to others the empty,
bitter rind, and return gladly to the daily bread of Divine Ordinance.
Once, in Rosa Bonheur, fresh and wise, energetic and vigorous, the
French woman has challenged the attention of the civilized world. With
no womanish weaknesses, frank, loyal, and endowed with a serious and
reflective nature, this artist has asked no leave to be of church or
society. "I have no patience," she once said, "with women who ask
permission to think. Let women establish their claims by great and good
works, and not by conventions." She took the whole world in her two
brave woman's hands, _found_ her inheritance, and resolved to enjoy it.
It is in France, too, that Clara Demars thinks out all the psychological
relations of love and marriage, and reminds us of Mrs. John Stuart Mill,
by saying that "truth will never reign over the world, nor between the
sexes, until, by being set free, woman loses all temptation to
dissimulate."
There, too, Flora Tristan provokes a smile by echoing in prose the
rhythmic platitudes of Mr. Coventry Patmore, and claiming, not
_equality_, but sovereignty and autocracy, for woman.
There Pauline Roland boldly claims that marriage shall never be
tolerated, till man as well as woman is compelled to keep the law of
chastity.
There Madame Moniot claims her civil rights from the lecturer's desk;
and Désirée Gay, interesting herself practically in the question of
woman's labor, rules the women of the national workshops.
When both sides of this picture are studied; when we look back, on the
one hand, to Marie Antoinette and Madame Récamier, and, on the other, to
Madame Roland, Madame de Staël, and Marie de Lamourous,--it is not
strange that the fanciful protectorship of such men as Michelet should
be balanced by a claim, made not only by Talleyrand, but Condorcet, for
woman's full equality as a laborer and a citizen. And this varying and
inconsistent estimate of woman, made evident in the social, industrial,
and literary spheres of France, is strangely sustained by her legal
enactments. The "Code Napoléon" is founded on the Roman, and is very
similar to the English common law, so far as it concerns woman: but
beside this law, which is called, in reference to married women, the
_dotal_, there is another, called the _communal_; and, before marriage,
parties may choose between these two. That contract once signed, they
must abide by their choice ever after. If the dotal law is founded on
Roman law and usage, and so came naturally enough to prevail in Southern
France until the time of the Revolution; so the communal law prevailed
at the North, and is founded on the German habits and laws, beneath
which always lay the idea, that, if not technically a laborer, the wife,
by care and industry,--the thrift of the housewife,--contributed to the
acquisition of property.
It is very singular that all the nations of Continental Europe, with the
exception of Spain, have rejected the dotal or Roman law. The objection
to it seems to have arisen out of the fact, that it permits the wife's
property to be settled _solely_ on herself, and to be so secured against
her husband's debts. In the community of estates, the property of each
is liable for the debts of either. It was on this account, probably,
that, while the "Code Napoléon" elucidated and defined the dotal system,
it expressly provided for the right of choice in the parties, and
declared, that, if no choice were made, they should be supposed to be
living under the German or communal law.
The Dutch law is essentially the same. When the "Code Napoléon" came
into force, there were not wanting French legislators to say, that woman
was now better _protected_ than ever before. But this _legal protection_
is of a kind due only to minors and lunatics. This law, like our own,
suspects, not only the _intelligence_ of woman, but her integrity; and
aims not to protect _her_, but _man_, against her weakness or fraud. In
marriage, the husband administers for both, not only the common
property, but her personal possessions. That is to say, by _pretending
to protect it_, the law _takes away_ from woman her personal property.
It often happens, that a woman who has brought her husband a large
property is compelled to shift in narrow ways, like a beggar or a miser,
on account of his parsimony or personal ill-will.
The wife cannot give away the smallest article, not even such as have
been gifts to her: and the 934th article of the "Code Napoléon"
declares, "that the wife may not accept a gift without the consent of
her husband; or, if he should refuse, without the approbation of a
magistrate." She cannot pledge their common property, even though it
were to set her husband free when imprisoned for debt; nor, in the event
of his absence, to secure necessaries for his children, without the same
magisterial authority. Commonly, this authority would be readily
obtained; but it is easy to see that many cases might arise, when, from
defeated purposes, personal enmity, or the influence of the husband
against her, it would be all but impossible.
Even in case of bankruptcy, French legislators tell us, the rights of
the wife are protected. But this very protection is insulting; for it
treats the wife as if she must of necessity be either an inert
instrument in the hands of her husband, or a dupe, whose weakness he
might readily abuse. _Through_ such protection, the dishonest merchant
finds it easy to defraud his creditors.
Now, this "Code Napoléon" says that "the husband owes protection to his
wife; and the wife, on her side, owes obedience to her husband:" but it
goes on to secure the obedience by giving an unlimited right to the
person of the wife, without in any way providing the promised
protection.
"The wife must live with her husband, and follow him wherever he
sees fit to go. As for him, he must receive her, and furnish her
with necessaries according to her wealth and rank."
Now, this clause actually constrains no one but the wife; for what would
be the condition of a woman who followed her husband against his will,
and remained _under_ his roof when he was determined that she should
quit it? Under such circumstances, his recognition of her wealth and
rank would be very apt to fall to the level of his own irritation.
The French code will interfere to protect a wife against the total loss
of her property, if she can prove _some_ loss already experienced,
either from the improvidence or the bad conduct of her husband; but it
keeps her powerless to protect herself against that first loss. Having
thus, and for such reasons, obtained a separate jurisdiction over her
property, she cannot alienate, mortgage, or acquire a title to new
property, without her unworthy husband's consent in person or on paper.
The guardianship of the children is left to the survivor of the
marriage; but the mother's right in such case may be restrained by the
father's and husband's will. He can appoint a trustee to be associated
with her. As a business woman, even if separated in estate, the wife
cannot make or dissolve a contract without the consent of her husband.
As a "public merchant" under the communal system,--that is, pledged in
_her own name_,--she is free from this restraint. As a citizen of the
French republic, she in that case supports, conjointly with her husband,
all State charges. She is taxed as much as he; for their common income
is diminished as much for one as for the other. She has no suffrage;
but, on the other hand, she is not liable for military service. She has
no rights; a state of things, which, if it be excusable when she is
absorbed into her husband's personality, is only absurd when she fulfils
all the functions of a citizen. Well may Legouvé exclaim, "that, if the
household be woman's own sphere, she ought to be queen in it; and her
own faculties should secure her this supremacy. Her opponents should be
forced, on their own principles, to emancipate her as daughter, wife,
and mother." The woman who owns an estate is, under this law, sole
mistress of it. She signs the leases and makes the bargains. She pays
the State tax, an additional rate to her own department, a town tax, and
a tax on roads. It is with her that the local or general government
treat, if they cut through her estate for public ends. Against them, if
wronged, she herself carries suit. By her influence as a proprietor, she
controls many votes; yet she is not permitted to cast one. She cannot
_directly_ control the position of the very representative who imposes
her taxes. She is in the same position with regard to all the higher
officers, who decide such questions as affect the value of her estate.
As citizen, therefore, under the communal law, her position is uncertain
and contradictory.
So much for the estimate of woman in France; and so much for the rights
of property, of marriage, and of suffrage, founded upon that estimate.
What is her _civil position_? what office or employment is open to her?
Women are better off in France, it is again said, than ever before. As
merchants, fair chances, barred by some contradictions and anomalies,
await them; but whoever ponders their condition cannot fail to see, that
here, as elsewhere, the protection afforded by the law is merely the
vigilance of a police officer, which protects the criminal, not for _her
own_ sake, but for that of society, which her very existence is supposed
to endanger.
The most desirable amelioration of her lot will be secured by the
admission of her free personality. When society strikes out from the
statute-book all distinctions of sex, and admits that she is a person
capable of thinking and acting for herself, she will lay the foundation
of a new civilization.
In France, we are told, women sometimes fill public functions. They may
be postmistresses, and inspectors of schools; or they may take charge of
the bureaus of wood or tobacco. They may also be inspectors of public
asylums,--a right and a duty of very great importance. As a public
functionary, woman fills few and inferior posts; but in these she
exercises and possesses all the rights of a man, with one
exception,--that exception, alas! the very keystone on which all human
success must rest: I mean, the right of _promotion_. Do not smile,
prompted by an unworthy apprehension of my meaning. It is _not_ because
women are more greedy or more ambitious than men that I call the right
to promotion the keystone of their success. Only small and narrow
natures can be content in a treadmill. If constant motion will not carry
her over the top of the wheel, instinct prompts the reasoning creature
to abate her efforts. No man of his own free will turns into a road
which abuts upon a stone wall. The State turnpike is better, where the
wayfarer may die by a sunstroke, or perish of a frost; where endless
miles stretch over uncultivated wastes: better; for here, at least, the
way is open, the sky overhead.
Before proceeding to speak of the English common law, it will perhaps be
well to turn from the "Code Napoléon" to the law of Louisiana, in which
the influence of the two forms of French law still shows itself. I do
not consider the laws of Canada, because they are complicated, not only
by the English common law, but by Canadian statutes, somewhat in the
spirit of our own recent enactments, and by curious archæological
remains of feudal law,--laws which would sound like the decrees of
Haroun al Raschid, were I to tax your soberness by setting them before
you. They are, let us be thankful, of small practical importance, as is
the great body of all law.[34]
In Louisiana, according to the civil code of 1824, the partnership of
gains arising during coverture exists by law in every marriage, without
express stipulation to the contrary. But the parties may regulate their
married obligations as they please, provided they do nothing immoral.
The wife's property is "dotal." What she _brings_, her paraphernalia, is
"extra-dotal." The dowry belongs to the husband during marriage; and he
has the administration of the partnership, and may alienate his revenue,
without his wife's consent: but he cannot convey the common estate. If,
before marriage, he should stipulate that there should be no
partnership, his wife preserves the entire control of her own property.
Her heirs take her separate estate; even money received by her husband
on her account. If there be no agreement as to the expenses, the wife
contributes one-half of her income. Her landed estate, whether dotal or
not, is not affected by his debts. She is a privileged creditor, and has
the first mortgage on his property.
If the parties have agreed to the "partnership of gains," the common
property is liable for the debts of either. On the death of either
party, one-half of the property goes to the survivor; the other, to the
heirs of the dead partner.
You will perceive that this law seems a loose mixture of the Roman or
dotal system with the German communal law, based on the partnership of
gains; but the common law takes it for granted that the partnership
exists, where there is no express stipulation to the contrary. As a
public trader, the wife may bind herself in whatever relates to her
business, without her husband's consent,--may even make a will; and
reference is made to the "Code Napoléon," in the same way, to all
appearance, that we refer to the common law of England.
The estimate of woman upon which the "Code Napoléon" is founded has the
same effect upon her earnings as the English common law. As, in
marriage, the policy has been to keep her subordinate and inferior; to
give her no privileges which should lead to independence: so, in
business, the effect of the law is to keep the price of her work down,
and give her as few escapes from household drudgery as may be; to offer
her, in fact, no _temptation_ to escape.
As polishers, burnishers, and copper-workers; as glove-makers,
enamellers, and wire-drawers; as flax-beaters and soakers; as spinners,
gauze-workers, and winders; as basket-makers, and temperers of steel; as
knife-handlers, embroiderers, and wheel-turners; as velvet-makers,
cockle-gatherers, and ivory-workers; as packers, knitters,
satin-makers, and folders; as picture-colorers, and workers in wood; as
casters, weighers, and varnishers; as shoe-makers, strap-makers,
lace-makers, and cocoon-winders,--the French employ many women; and the
estimate of the law is practically indicated, there as well as here, in
the price of the labor done.
The highest wages marked upon my list are those paid to the workers in a
porcelain factory, who received one franc and fifty centimes a day, or
thirty cents. The lowest are those paid to cockle-gatherers and
lace-makers; that is, from twenty to twenty-five centimes, or from four
to five cents a day.
The fact that the poor lace-makers, who lose their eyesight and their
lives bending over their bobbins, are paid the same wages as the
loitering girls who pick up gay cockles on the beach, shows how little
the price of the labor depends on the value of the work done, and tells
the whole story in a breath. The wages of the needlewomen of Paris have
been diminishing ever since 1847, and, according to the "Revue des Deux
Mondes," now average only from twenty to twenty-five cents a day.