"And we, perusing o'er these notes,
May know wherefore we took the sacrament,
And keep our faiths firm and inviolable."
_King John._
In approaching the subject of English common law, we come nearer to our
own special interests. Twenty years ago, I am safe, I think, in
presuming that this law was the basis of all our legislation in regard
to woman, if we except that in French or Spanish territory; and, in
criticising its provisions, I shall criticise all that is objectionable,
whether in the laws that have been changed, or in the laws that remain
to be changed, in our own States.
If we were to examine the literature of England with reference to this
subject, we should probably find from the beginning many protests
against the present position of woman. It is never safe, for instance,
to assume what poets may or may _not_ have said. If Dryden could get so
far as to say that there is "no sex in souls," one would think the
gentle Chaucer and heavenly-minded Daniel doubtless discerned still
deeper things; but of lawyers we may say with some truth, that their
early protests were so quietly made as scarcely to be recognized, or
were made for the most part by unread and anonymous writers.
In the "Lawe's Resolution of Woman's Rights," published in the year
1632, there seems to be a distinct recognition of the true nature of the
law:--
"The next thing that I will show you," says the author, "is _this_
particularity of law. In this consolidation which we call wedlock
is a locking together. It is true, that man and wife are one
person; but understand in what manner. When a small brooke or
little river incorporateth with Rhodanus, Humber, or the Thames,
the poore rivulet looseth her name; it is carried and recarried
with the new associate; it beareth no sway; it possesseth nothing
during coverture. A woman, as soon as she is married, is called
_covert_; in Latine, _nupta_,--that is, 'veiled;' as it were,
clouded and overshadowed: she hath lost her streame. I may more
truly, farre away, say to a married woman, Her new self is her
superior; her companion, her master."
Still farther: "Eve, because she had helped to seduce her husband,
had inflicted upon her a special bane. See here the reason of that
which I touched before,--that women have no voice in Parliament.
They make no laws, they consent to none, they abrogate none. All of
them are understood either married or to be married, and their
desires are to their husbands. I know no remedy, though some women
can shift it well enough. The common lawe here shaketh hand with
divinitye."
In this plain statement of the old black-letter book lies the root of
the evil with which we contend: "All of them are married or to bee
married, and their desires are to their husbands." Woman, single,
widowed, or pursuing an independent vocation, never seems to have
entered the head of the law, as a possible monster worth providing for.
The world of that day believed in the _sea-serpent_, but not in her.
This book, "The Lawe's Resolution of the Rights of Woman," was, so far
as I know, first brought under our notice by Mrs. Bodichon's quotation,
in her "Brief Summary of the English Law." Then a few copies found their
way to this country, and into the hands of curious persons. People began
to wonder who wrote the quaint old book. In pleading before our own
Legislature in the spring of 1858, I was myself asked by the committee
who was its author; and I think it but right to rescue from oblivion the
probable name of this early friend to woman and justice. It is always
difficult to trace an anonymous book, and, this time, more difficult
than usual, as it was probably published _after_ its author's death.
Sir John Doderidge, to whom my attention was directed by an eminent
antiquarian, was an able lawyer, and an industrious compiler of
law-books of a special kind. He was from Devonshire, and admitted as a
barrister in 1603. He was successively appointed Solicitor-General,
Judge of the Common Pleas and of the King's Bench. Among the works known
to be his, yet not commonly included in the list of his works, are the
"Lawyer's Light," published in 1629; and "The Complete Parson," with the
laws relating to advowsons and livings, in 1670,--books of the same
class, character, and appearance as the "Lawe's Resolution."
As he died in 1628, I was at first inclined to suspect the fairness of
this inference: but a further examination showed that all his
publications were _posthumous_; which accounts, perhaps, for the
_candor_ of their covert satire. A few particulars of his life and
standing may be gained from the new Life of Lord Bacon, where Hepworth
Dixon says that "the Solicitor-Generalship, vacant once more, is given,
over Francis Bacon's head, to Sir John Doderidge, Serjeant of the Coif."
In 1606, when Sir Francis Gawdy dies, "Coke goes up to the bench; and
Doderidge, the Solicitor-General, ought, by the custom of the law, to
follow Coke, leaving the post of Solicitor void: but Cecil raises Sir
Henry Hobart, his obscure Attorney of the Court of Wards, over both
Doderidge and Bacon's head, to the high place of Attorney-General."
Since that day, Bentham and Catharine Macauley, Mary Wollstonecraft, and
John Stuart Mill, have made the same complaint; sustaining it, however,
by vigorous argument for woman's full emancipation, and a demand for the
right of suffrage.
Let us look at this English law. So far as it affects _single_ women, it
is very simple.
A single woman has the same rights of property as a man; that is, she
may get and keep, or dispose of, whatever she can. She has a right, like
man, to the protection of the law, and has to pay the same taxes to the
State.
"Duly qualified," she may _vote_ on parish questions and for parish
officers; and "duly qualified," in England, means that she shall have a
certain amount of property, and so a vested interest in the prosperity
of her parish. If her parents die without a will, she shares equally
with her brothers in the division of the personal property; but her
eldest brother and his issue, even if female, will take the real estate
as heirs-at-law. If she be an only child, she inherits both personal and
real, and becomes immediately that most pitiable of creatures, an
heiress.
The church and all state offices are closed to women. They find some
employment in rural post-offices; but there is no important office they
can hold, if we except that of sovereign. This is sometimes spoken of as
an inconsistency; but if we reflect upon the position of a
constitutional sovereign, whose speeches are the work of her minister,
and whose actions indicate the average conscience of a cabinet council,
we shall find her legally but very little more independent than other
women technically classed with minors and idiots.
There have been a few women governors of prisons, overseers of the poor,
and parish clerks; but public opinion still effectually bars most women
from seeking or accepting office.
The office of Grand Chamberlain was filled by two women in 1822. That of
Clerk of the Crown, in the Court of Queen's Bench, has been granted to a
female; and, in a certain parish of Norfolk, a woman was recently
appointed parish clerk, because, in a population of six hundred souls,
no man could be found able to read and write!
In an action at law, it has been determined that an unmarried woman,
having a freehold, might vote for members of Parliament. Mr. Higginson
tells us that a certain Lady Packington returned two.
In all periods, there have been women who have held exceptional
positions, under peculiar influence of wealth or rank or circumstances;
and though this has not affected the position of other women, or given
them any more freedom, yet it is valuable in itself, because it has kept
the _possibility_ of their employment always open, and acted like a
practical protest against the law.
The Countess of Pembroke was hereditary Sheriff of Westmoreland, and
exercised her office. In the reign of Queen Anne, Lady Rous did the
same, "girt with a sword." Henry VIII. once granted a commission of
inquiry, under the great seal, to Lady Anne Berkeley, who opened it at
Gloucester, and passed sentence under it.
Some of the old legal writers averred, that a woman might serve in
almost any of the great offices of the kingdom. Lately we find it stated
that a woman may be elected as constable, since she can _hire a man_ to
serve for her; but she may _not_ be elected overseer of the poor,
because, in this case, substitution, if not impossible, would be
difficult!
What were the peculiar political excitements which enabled Lady
Packington to return two members of Parliament, we are not told; but it
is quite certain that women of twenty-one, duly qualified, cannot and do
not vote for members of Parliament by virtue of that decision. In rural
districts, where personal influence weighed a good deal, such a vote
might be courteously winked at. A woman of property and standing, in
Nova Scotia, has in this manner, for more than forty years, cast her
annual vote, without rebuke or interruption; but, should any _number_ of
women act on this precedent, a legal restraint would doubtless be laid.
No single woman, having been seduced, has any remedy at common law;
neither has her mother nor next friend. If her father can prove
_service_ rendered, he may sue for loss of service.
In what "bosom of divinitye" does this law rest? Here is a remedy for
the loss of a few hours, but no penalty held up _in terrorem_, to warn
man that he may not trifle with honor, womanly purity, and childish
ignorance or innocence.
In the eye of this law, female chastity is only valuable for the work it
can do. It must not be thought, however, that the English common law
stands alone in this moral deformity. Under the French law, female
chastity does not seem of any worth, even in consideration of the work
it can do. In honest indignation, Legouvé exclaims,--
"Let a man, who has seduced a child of fifteen years by a promise
of marriage, be brought before a magistrate. He has under the law a
right to say, 'There is my signature, it is true; but I deny it. A
debt of the heart is void before the law.'"
Thus everywhere, in practice and theory, in society and in law, for rich
and poor, is public purity abandoned,--the bridle thrown upon the neck
of all restive and depraved natures.
Manufacturers seduce their work-people; the heads of workshops refuse to
employ girls who will not sell themselves, soul and body, to them;
masters corrupt their servants. Out of 5,083 lost women counted by
Duchâtelet at Paris in 1830, there were 285 domestic servants seduced,
and afterwards dismissed by their employers. Commission-merchants,
officers, students, deceive the poor girls from the province or the
country, drag them to Paris, and leave them to perish. At all the great
centres of industry, as at Rheims and at Lille, are societies organized
to recruit the houses of sin in Paris.
This is well known to be true of all the large English towns; yet the
law is powerless, and philanthropy interferes with no other result than
that of driving these societies from one post to another.
Can women be expected to believe that the law would be powerless, if
there were a sound public opinion behind it to sustain the law; if there
were any _desire_ on the part of the majority of men that it should be
sustained? "Punish the young girl, if you will," continued Legouvé;
"but punish also the man who has ruined her. She is already
punished,--punished by desertion, punished by dishonor, punished by
remorse, punished by nine months of suffering, punished by the charge of
a child to be reared. Let him, then, be struck in his turn. If not, it
is no longer public modesty that you defend: it is the 'lord paramount,'
the vilest of the rights of the 'seigneur.'"