THE ENGLISH COMMON LAW.

"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.'"

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