_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.