Now, several things are quite evident to the eye of common sense:--

_First_, That the insane partner should be properly provided for during

life, in the upper classes, by the sane partner; in the lower, by the

parish or state.

_Second_, That as it is a sin against God and society to bring children

into the world, born of a hopelessly insane parent; so, on the other

hand, it is a sin against God and society to compel any man or woman to

a life of hopeless celibacy.

_Third_, That, if the law does use this compulsion, it is responsible

for the vicious connections that inevitably grow out of it; "_car les

mauvaises lois produisent les mauvaises moeurs_."[35] I should not

turn aside from my main point to consider this, even for a moment, if it

were not a striking instance of the want of common _sense_ which

afflicts the common _law_, and if I had not in my own experience been

made aware of its frightful results. Within the limits of one small

parish in the city of Toronto, Canada West, I found four instances in

which men of the middle class had taken the right of divorce into their

own hands, and were illegally married a second time. These persons, if

not markedly religious, were respectable, orderly members of society,

living properly in their families, supporting the wives they had left,

and justifying the course they had taken. Two of them had left England

on account of the hopeless insanity of their wives, and two on account

of their hopeless immorality; the latter, cases in which the law would

have granted a divorce, but at an expense which the husband could not

pay. When I first heard this account of one person, I resented it as a

slander, and went to console the afflicted wife, who was overwhelmed by

the supposed rumor.

The husband met me at the door, with an honest, unabashed, but

distressed face. "Don't deny it to her," said he. "I never committed but

one sin, and that was when I kept it from her. She was a sweet, pious

creature; and I feared she would not consent."

This man told me that he sent six hundred dollars yearly to his insane

wife; that this kept her better than he could afford to keep himself and

his family: "but," said he, "her station was always higher than mine."

In the other cases, the men had told their stories, and the wives had

consented to the arrangement. It is obvious, that, if a wife wished to

withdraw from a husband in this manner, she could not do it, on account

of property restrictions, and the common unfitness for self-support.[36]

In the marriage of a minor, the consent of the father, or of a guardian

appointed by him, is necessary, but _not_ that of the _mother_: another

indication of the estimate the law puts upon woman, as compared with

man; and this estimate, whenever and wherever it shows itself, has the

effect to depress every woman's desire to fit herself to be a good

citizen; and, when she fails in citizenship, man must fail also, as is

ably shown by De Tocqueville.

"A hundred times in the course of my life," he says, "I have seen weak

men display public virtue because they had beside them wives who

sustained them in this course, not by counselling this or that action in

particular, but by exercising a fortifying influence on their views of

duty and ambition. _Oftener still_, I have seen domestic influence

operating to transform a man, naturally generous, noble, and unselfish,

into a cowardly, vulgar, and ambitious self-seeker, who thought of his

country's affairs only to see how they could be turned to his own

private comfort or advancement; and this simply by daily contact with an

honest woman, a faithful wife, a devoted mother, from whose mind the

grand notion of public _duty_ was entirely absent."[37]

A man and wife are one person in law: _a wife loses all her rights_ as a

single woman. Her husband is legally responsible for her acts: so she is

said to live under his cover. A woman's body belongs to her husband. She

is in his custody, and he can enforce his right by a writ of _habeas

corpus_.

_This last_ is one of the points in which the public feeling is so far

before the law, that the latter could never be wholly enforced.

If a woman were unlawfully restrained of her liberty, her husband might

take advantage of a _habeas corpus_ to get possession of her; but it is

not probable that any court, in England or this country, would _now_

grant one to compel a wife to live with her husband against her will.

Still, the estimate of the marriage relation which such laws sustain is

so low, that one never can tell what will happen.

In the year 1858, a curious but _unintentional_ satire on the judicial

position of the husband occurred in one of the London courts. A

delicate, much-abused woman, unmarried, but who had been, in her own

phrase, "living for some time" with a man, brought an action against him

for assault. Erysipelas had inflamed her wounds, and endangered her

life.

"Had she died, sirrah," said the magistrate, addressing the criminal,

"you must have taken your trial for murder. What have you to say in your

defence?"

"I was in liquor, sir," pleaded the man. "I gave her some money to go to

market. I told her to look sharp; but she was gone more than an hour,

your worship: so, when she came back, I--I was in liquor, your honor."

The magistrate leaned over his desk, and, speaking in the most

impressive manner, thus endeavored to cut short the defence:--

"This woman is not your slave, man. She is not accountable to you for

every moment of her time. She is not," he continued with increasing

fervor, but a growing embarrassment,--"she is not--she is not"--

He paused; but the throng of wretched women who crowded the court

interpreted the pause aright, and were not likely to forget the lesson.

A suppressed titter ran through the court: for every married man knew

that the words, "she is not your wife," were those which had sprung

naturally to the worthy magistrate's lips; and must have passed them,

had not honest shame prevented.

The man then attempted to defend himself on the ground of jealousy: but

this was instantly set aside; the unmistakable impression left on the

mind of the court-room being, that the illegality of the relation was

wholly in the woman's favor.

Since the war, freed-women at Beaufort, S.C., have refused marriage for

this very reason.

Women long ago understood this, and literary gossip gives us a late

instance in a maiden aunt of Sir Charles Morgan. This woman, descended

from Morgan the buccaneer, has more than once turned the scales of an

Irish election. When she once arrested a robber on her own premises, and

held him fast till the arrival of an officer, the gentlemen of the

neighborhood advised her not to prosecute.

"It is well known," they argued, "that you refuse to employ a single

man on your premises, and you may be marked out for the revenge of the

gang."

"Justice is justice," she exclaimed in reply; "and the villain shall go

hang!"

It was quite natural that we should find this woman telling Lady

Caroline Lamb that no _man_ should ever have legal rights over her, or

her property. A wife's money, jewels, and clothes become absolutely her

husband's; and he may dispose of them as he pleases, whether he and his

wife live together or not. Her chattels real--that is, estates held for

a term of years--and presentations of church livings become absolutely

his; but, if she survive him, she may resume them.

Under such a common law as this, it is not surprising to find something

needed which is called _equity_. Therefore, if a wife, on her marriage,

gives all her property to her husband, the said _equity_ (Heaven save

the mark!) will, under certain circumstances, oblige him to make a

settlement upon her. That is, when the wife has an interest in property

which can only be reached by the husband through a court of equity, that

court will aid him to enjoy it, _only_ on condition that such part as it

thinks proper shall be settled on the wife.

The civil courts in England cannot compel a man to support his wife:

_that_ is left to the action of the church, and her own parish.

A husband has a freehold estate in his wife's lands as long as they both

live.

Money earned by a married woman belongs absolutely to her husband.

By her husband's particular permission, she may make a will; but he may

revoke his permission at any time before probate,--that is, before the

will is exhibited and proved,--even if _after_ the wife's death.

The custody of a child belongs to the father. The mother has no right of

control. The father may dispose of it as he sees fit. If there be a

legal separation, and no special order of the court, the custody of the

children (except the nutriment of infants) belongs legally to the

father.

_Except the nutriment of infants!_ Here is a hint from the good God

himself. Should we not think, that the first time these words were

written down, and men were compelled to see the natural dependence of

the child upon the mother,--to detect the obvious laws of nurture,

natural and spiritual,--the right of a good mother to her child would

have made itself clear?

Yet, to this day, there are many States of our own Union where a mother

can better authenticate her right to a negro slave than to the young

daughter who is bone of her bone, and flesh of her flesh!

If the direct influence of Christianity did not, in some measure, modify

the influence of the law in social life, there would be no such thing as

a mother's exercising maternal authority over a son. No matter how wise,

how old, how experienced, she may be, she never possesses, in the eye

of the law, the dignity of a boy who has just attained his majority.

Sufficiently instructed in legal maxims, he can always resist her, under

the influence of the most besotted or unprincipled of fathers.

The word of a married woman is not binding in law, and persons who give

her credit have no remedy against her.

The moral results of such a law are sufficiently obvious, not only in

England, but in our own country. The statute-book does not, cannot,

stand absolved, because public opinion in the present day abhors and

contemns the woman who assists her husband to defraud his creditors, or

takes refuge from her own debts behind this disgraceful cover. Yet, if

the law gives her husband her property, it ought surely to hold _him_

responsible for her debts. And this is what society calls _protection_!

As a wife is always presumed to be under the control of her husband

(numerous instances to the contrary notwithstanding), she is not

considered guilty of any crime which she commits in his presence.

When a woman has consented to a proposal of marriage, she cannot give

away the smallest thing. If she do so without her betrothed husband's

consent, the gift is illegal; and, after marriage, he may avoid it as a

fraud on him: a strong temptation to any woman, one would think, to give

away her all. You see here what estimate the law puts on property, as

an inducement to marriage. This provision evidently grew out of the

exigencies of the time, when marriage among the Anglo-Saxons was a

_pure_ matter of bargain.

As a protection against the common law, it is usual to have some

settlement of property made upon the wife; and, in respect to _this_

property, the courts of equity regard her as a single woman. Such

settlements are very intricate, and should be made by an experienced

lawyer.

The wife's property belonging to the husband, should her scissors,

thimble, or petticoats be stolen, the indictment must describe either of

these articles as his!

Of divorce it is only necessary to say, that a divorce from the bonds of

matrimony in England could be obtained only by act of Parliament; the

right of investigation resting with the House of Lords alone. Until the

passage of the New Divorce Bill, only three such divorces had ever been

granted to a woman's petition. The expense of the most ordinary bill was

between three and four thousand dollars.

Nor need we dwell long on such laws as relate to _widows_. You may be

interested to hear, that, _after_ her husband's death, the widow

recovers her right to her own clothes and jewels; also that the law does

not compel her to bury him, that being the duty of his legal

representative.

The indignation which we might naturally feel at the suggestion that a

wife _could_ forsake her unburied dead, cools a little as the law goes

on to state, that a husband _can_, of _course_, deprive a wife of all

share in his personal estate. Very graciously, also, the widow is

permitted to remain forty days in her husband's house, provided that she

do not _re_-marry within that time!

The result of a great deal of reading of a great many law-books is only

this,--that we are more firmly convinced than ever, that the most

necessary reform is a simple erasure from the statute-book of whatever

recognizes distinctions of sex. You should make woman, in the eye of the

law, what she has always been in the eye of God,--a responsible human

being; and make laws which such beings, male or female, can obey.

Even Christian, in his edition of Blackstone, said long ago, that there

was no reason why civil rights should be refused to single women. In

every respect but this, the single woman is independent; but let her

take to herself a husband, and the law steps in to protect her, and she

finds herself in a position of what is called "reasonable restraint." He

may give her, says Blackstone, _moderate correction_; he may adopt any

act of coercion that does not endanger life; he may beat her, but not

violently. She may, by her labor, support him: but she cannot prevent

him from bestowing her earnings, should he happen to die, upon those who

have most wronged her in life; his mistress, it may be, or his

illegitimate children. Do you tell me that men of good feeling never

act on such laws? Why, then, should men of good feeling be unwilling to

wipe them from the statute-book?

For the most part, it is upon women of the lower class that the

property-laws most hardly press. It was the suffering of this class,

years ago, when the common law of Massachusetts was the same as that of

England, that first roused my interest, and excited my indignation; but

the story which the Hon. Mrs. Norton tells us shows that this class of

women are not the _only_ sufferers.

"I have learned the law piecemeal," she says, "by suffering all it

could inflict. I forgave my husband's wickedness again and again,

and found too late, that, in the eye of the law, practical

Christianity, the forgiving unto seventy times seven, was a

condonation which deprived me of all protection. My children were

stolen from me, and put into the vilest custody, where one of them

afterwards died for want of a mother's commonest care. My husband

brought an action against his kindest friend, of whom he borrowed

money and received office. The jury listened with disgust, and gave

their verdict against him. Then I was told that I might _write_ for

my bread, _or_ my family might support me. My children were kept

away, as their residence with me would make him liable for my

debts.

"When my mother died, and left me, through my brother, a small

income, he balanced the first payment by arbitrarily stopping his

own allowance. For the last three years, I have not received a

farthing from him. He retains all my personal property which was

left in his home, the gifts of the royal family on my marriage,

articles bought with my own earnings, and presents from Lord

Melbourne. He receives from my trustees the income which my father

bequeathed to me, which the 'non-existent' wife must resign to

the 'existent' husband.

"I have also the power of earning by literature; but even this

power, the gift of God, not the legacy of man, bears fruit only for

him. Let him _subpoena_ my publishers, and enjoy his triumph: he

has shown me that I was not meant to write novels and tales, but to

rouse the nation against such men as he, and such laws as they

sustain. Let him eat the bread I earn; but it shall be bought with

the price of his own exposure. If law will not listen to me, to

literature I will devote my power, and secure for others what I

have not been able to secure for myself."

No wonder that provident parents circumvent such a common law by a

settlement before marriage! There is no chance for a partnership of

gains or losses in England.

As we have already said, all sexual laws ought to be wiped off the

statute-book; but the Hungarian law which was in force until 1849, when

the German law was introduced into Hungary, is a comment on the

absurdity of the English.

"No countrywoman of mine," said a proud sister of Kossuth, "would ever

submit to such a marriage settlement as is common in England." In

Hungary, inherited property could not be devised by will, and all

unmarried women were considered minors. As soon as she married, a woman

came of age, and into the full control of her estates. She could make a

will, and sign deeds; and was not responsible for her husband's debts or

the family expenses. As a widow, she was guardian of her children, and

administrator on her husband's property. So long as she bore his name,

she could exercise all his political rights. She could vote in the

county elections, and for deputies to the Diet. Trained up under such a

law, what could the Hungarian woman think who found herself for the

first time in the power of the English law?

Among the refugees whom the misfortunes of a leading Hungarian family

drove to these shores was one woman of the highest natural gifts, the

best social station. She was married to a man, handsome, accomplished,

and reckless, but hardly patriotic enough to have need to fly with her.

In the city of New York she opened a boarding-house of the highest

class, by which she strove to support herself and her children. A

fascinating hostess, a skilful manager, she succeeded, as might be

expected. Soon her improvident husband followed her. At first, he did

not attempt to annoy her; but, in time, some one was found cruel enough

to expound to him the English common law. He stared, refused to believe;

but finally entered his wife's house, seized her earnings, compelled her

boarders to pay their money into his hands, stripped her of all power to

pay her rent and provide for her family, and then took himself off,

enraptured, doubtless, with his brief experience of English and American

liberty. Stripped of peace, position, and property, the injured wife had

no longer courage to struggle. In underhand ways, to evade the unjust

law, her personal friends settled her upon a little farm, where her

shattered hopes found a short repose.

A few years ago, an American woman of captivating address gained great

reputation in Paris as a milliner. She had a profligate husband, whom

she invited to tea every Sunday, supplying him at that time with a sum

for his weekly expenses. In an evil day, seduced by promises of high

patronage, she went to London. She was very successful; but in a few

months her husband surprised her, seized all she possessed, and, turned

adrift on the streets, she went back to a country where the law would

protect her industry. Marriage has been sought only to legalize a

theft,--to apply the words of Wendell Phillips, when "_union was

robbery_." A respectable servant, who had laid by a considerable sum,

was sought in marriage by an apparently suitable person. On the day

before the marriage, she put her bank-book into his hands. After the

ceremony, he said to her, "I am not well in health, and do not feel

equal to supporting a family: you had better go back to service."

Naturally indignant, she responded, "Give me, then, my bank-book."--"I

am too feeble to spare the money," he replied. She went back to service,

and has never seen him since; but, of course, she has been often obliged

to change her name and residence to protect herself from a long

succession of extortions.

We see thus, that if a woman is able to conquer her fate, and to gain a

livelihood in spite of a dissolute or incompetent husband, her home is

not her own. Her husband's folly may, at any moment, deprive her

children of bread.

I have said that there was no woman so pitiable as an heiress. I said it

advisedly. I thought of the long persecution she must bear from

unwelcome suitors,--of all appreciation of her personality, ever so

lovely or gifted or individual, sunk, as it must be, in the mire of her

money.

Mrs. Reid says, justly, that this money is not so much her own as a

perquisite attached to her person for the benefit of her _future

husband_; the larger portion of which will eventually pass to his heirs,

whether of her blood or not. If forced from ill treatment to leave his

roof, the law will return her but a scanty pittance.

The nature of the law itself, and that estimate of woman on which it is

based, are so identical, that we are compelled, as we turn over its

pages, to treat these two points as one.

"For one-half the human race," said Mrs. Reid years ago, "the highest

end of civilization is to _cling_ like a weed upon a wall;" a curious

instance of the power that the use of language has over a fact. There is

nothing captivating in clinging like a "weed to a wall;" but most women

are satisfied to hang like the "vine about the oak."

It is a great misfortune, that this estimate of woman not only governs

the courts in their decisions, but enters into and moulds all the

movements of society. Such an estimate leads to constant

contradictions; being, as it is, directly the opposite of the _fact_ in

so many cases, and of the Divine Will in all. In a book on woman

recently published by a lawyer in England, I found a pithy paragraph to

this point, concluding some observations on the comparative longevity of

the sexes: "The wife," he says, "_fitly survives the husband_, both to

take care of _his_ premature infirmity, and to consummate the rearing of

their offspring"!--a creative effort of the imagination which certainly

entitles the writer to the laurels of the century.

One reason that the wages of women are kept down is, that, for the most

part, women do not begin to labor early; do not devote themselves _in

youth_ to any trade or profession, so as to compete with men who have.

The plodding and steady habits of the man of business, he has acquired

in his early years; and they are developed by the fact, that he is sole

master of what he can earn, and can dispose of it as he thinks proper:

but his wife has been brought up in no such school,--has no such motive

to industry. Should she toil on for ever, she cannot possess what she

acquires, nor lay out the smallest part of it, without another's leave.

Even when man says to her with the sanction of the church and in the

presence of God, "With all my worldly goods I thee endow," it means only

that she is invited to enjoy, not possess them. This estimate of her

rights, her position, and her ability, made manifest in every law-book,

in the church itself, and obvious in every social form, discourages her

whenever she would devote herself to any lucrative employment; so that

it is only in desertion and despair, for the most part, that she becomes

a laborer. She is not always conscious of this discouragement. She

quiets the Cerberus within by a three-times-repeated "It is not proper,"

without pausing to analyze the conventional instinct. Here we find the

real significance of the proverb, "A man of straw is worth a woman of

gold;" for the "man of straw" is, at least, worth such money as he may

hereafter earn, which the "woman of gold" is not.

We hear a great deal about laws for the _protection_ of women; but we

cannot urge too often the remark of James Davis in his Prize Essay of

1854, "that all early legislation for woman was founded, not on her own

rights, but on those of her husband and children, and the _State over

her_."

When one remembers that the "seat of the law is the bosom of God," it

strikes one strangely, that moral consequences to character have so

little to do with what one may call "sexual legislation."

In speaking of the frequenting of disreputable houses, neither

Montesquieu, nor Dr. Wood in his "History of Civil Law," finds a single

word to say as to the moral degradation of the race, of the special

degradation of woman involved in it, but both grow eloquent concerning

the ruin of the State. It requires a sounder mode of thinking than most

men possess to see the relation between the ruin of the State and their

own bad habits, the loss of one man's purity. Thus the laws concerning

adultery, or divorce for that cause, bring the heaviest penalties,

social and legal, upon the head of an offending woman. The legal excuse

for this positive injustice is the safety of the family and the

State,--the great crime of imposing upon a family false representatives

of its name and honor; but a woman's brain and conscience are too clear

to rest in this masculine decision.

If a man cannot bring a false representative into _his own family_, he

can carry it into his neighbor's, when his profligate life violates the

social compact; and, as to his own family, his vices may injure it far

more than the infidelity of his wife. At the worst, her misconduct will

only bring into the shelter of his home a child who grows up protected

socially by her fraud; but, if _he_ choose to "spend his substance in

riotous living," his wife and children may, while the law gives him

exclusive right to their common property, be deserted, or driven from

their homes, to make room for those who are the companions of his guilt.

It is quite possible, it will be seen, therefore, to show another side

to this matter, in no better light than that of expediency. One canton

of Switzerland (the Canton Glarus) possesses laws in regard to such

matters, in marked contrast to those of the whole civilized world. The

consequence is, that the falsehood and crime so common elsewhere are

here unknown.[38]

"Perhaps it would be just," says Poynter on "Marriage and Divorce," in

1824,--"_perhaps_ it would be just, that where the husband violates the

matrimonial compact, and the property originally belonged to the wife,

he should give back the whole of it. Courts, however, have never gone

that length."

One would think, nevertheless, that husbands themselves might go that

length, and that men who aspire to the credit of decency would be

ashamed to eat the bread of her they have betrayed and wounded. How is

it that they have deceived themselves from the beginning, and have

fancied that God requires of woman a fidelity and purity that was not of

the smallest consequence to themselves?

In the late debate in Parliament on the New Divorce Bill, when a member

objected to the introduction of a clause equalizing the relief of

divorce to both sexes, he asked, "If this clause were adopted, I should

like to know how many married men there would be in this house?" He was

answered by shouts of laughter.

Would these men have laughed, think you, if they had been asked how many

_pure wives_ could be found in their family circles? and, if _not_,

would it have been because they were capable of estimating the value of

womanly virtue? No: _he_ cannot estimate that who has never known the

worth of manly purity. The spectres of illegitimacy and civil ruin are

what would stare them in the face, and turn their very lips so white.

In France, says the "Westminster Review," fidelity on the part of the

husband is considered a sort of imbecility. What is thought of it in

England? Does this scene in Parliament, printed for all our girls to

read, suggest any higher view?

"The frequenting of disreputable places," says Davis, "was once an

indictable offence in a _man_; but that is now obsolete." Obsolete? and

why? A lawyer once told me, that the most obscene publication he had

ever read was a book upon divorce. I can well believe it. I thought I

knew how corrupt modern society could be; but I did not know how

unsoundness had darted to its very core, till I began to read law, and

to understand the estimate which that puts upon woman and chastity.

When I think of these things, I wonder that this platform is not

thronged with the ghosts of dead and ruined women, crowding here to

second my appeal to beseech you to grant human justice, to require human

virtue! And all this sin is sheltered under the plea of protection! "How

many delicious morsels I should miss if it were not for _thy_ care, O

most excellent jackal!"

"Lawyers," says Johnson in 1777,--"lawyers often pay women the high

compliment of supposing them proof against all temptations combined."

Certainly, whatever the _lawyers_ may do, the _law itself_ confidently

expects of them a superhuman strength. It gives them no defence but

immaculateness. It offers them no shelter but God's temple, no robe but

spotless ermine; and then, turning the page, it says, "A _husband_ is

expected to be vigilant, and so prevent his own dishonor:" as if his

_vigilance_ and quick-wittedness could save the woman whom his _love_

had not blessed.

Ah! these lawyers are but blind guides, after all. Centuries of

discomfiture and defeat have not sufficed to teach them how little

security is to be found in suspicion and scepticism. If I do not want my

groceries stolen, I must leave my storeroom open. The very servant who

would not scruple to pick my locks will know better than to pick that of

her own heart. "A thorough-bred woman," says Mrs. Reid, "is good only so

far as her husband suggests and allows;" and, so long as _this_ is the

standard, woman's duplicity may well match man's utmost expectation, and

there is not a privilege of his open vice that she will not secure by

stealth.

There was a time when all the women at the court of France blushed for

one of their number who unluckily made use of a hard word in a _proper_

place. In like manner, the woman who reads law blushes to find herself

even tolerably sincere and modest. It is not expected of her. Why has

she never done any of the bad things the law so confidently predicts?

All thinking people must see how easily we turn from the consolidated

law of ages, with its false views, its untrue estimate of woman and

duty, to the question of the right of suffrage.

In 1848 and 1850, we used to hear a great deal of three objections to

conferring this right upon women:--

1st, Its incompatibility with household care and the duties of

maternity.

2d, Its hardening effect on the character; politics not being fit

for woman.

3d, The inexpediency of increasing competition in the already

crowded fields of labor and office.

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