2. To the law's preference of males, and the issue of males, in the
division of estates.
3. We object to the estimate of woman which the law sustains, which
shuts her out from all public employment, for many branches of which she
is better fitted than man.
4. We object to that estimate of woman's chastity which makes its
existence or non-existence of importance only as it affects the comfort
or income of man.
We do not mean that the present _interpretation_ of the common law does
not _sometimes_ show a more liberal estimate than the law itself, but
rather that the existence of this law, unrepealed, _unchristianized_, is
a forcible restraint upon the progress of society.
"A legal fiction," says Maine in his "Ancient Law," "signifies any
assumption which conceals, or affects to conceal, the fact, that a rule
of law has undergone alteration, its _letter_ remaining unchanged, while
its operation is modified." Such fictions may be useful in the infancy
of society; but, like absurd formulas and embarrassing technicalities,
they should give way before advancing common sense, before the
diffusion of general intelligence and a common-school system, which is
destined to qualify the humblest man for a full understanding of the law
under which he lives.
We have now to consider the laws concerning _married women_. "On
whatsoever branch of jurisprudence may lie the charge," says a late
reviewer, "of working the heaviest sum of suffering, perhaps we shall
not err in saying that the sharpest and cruellest pangs are those which
have been inflicted by our marriage-laws." In making our abstracts, we
have need to avoid the absurd complications which confuse, not only
simple-minded people, but lawyers themselves; and, to avoid any charge
of ignorance or mistake, we will, as far as possible, adopt the language
of Mrs. Bodichon's "Summary," which has stood for six years before the
English public without impeachment.
We shall not discuss the question, as to what constitutes fitness for
marriage in the eye of the law. In Scotland and in England, the consent
of the parties is said to be the "essence of marriage;" but, alas! in
how many cases is this "consent" taken for granted only, it being, in
fact, the most baseless of legal fictions!
In commenting on the English law as compared with the Scotch, the
reviewer adds, "A code so unsatisfactory, so unsettled, and by every
alteration coming so palpably near to their own system, is one which
Scotchmen may be pardoned for declining further to consider, and which
certainly they cannot be expected to recognize as the model to which
their own should be conformed."
The rule of the English law was, at the institution of the Divorce
Court, that the wife should have the same domicile as her husband, and
that within English territory. A dishonest domicile barred her claim to
divorce; and the husband who abandoned his wife, and fixed his residence
abroad, effectually bound her to him. Justice has of late been done,
because it was justice, heedless of the question of domicile.
There are in relation to this subject many provisions which wrong men
and women alike; and, if there are any which especially wrong woman,
they wrong man in a still higher degree through her. As an example of
the former class, we may take the impossibility of release from a
hopelessly insane partner, which makes the point of the wonderful story
of "Jane Eyre."