_First_, If the husband abscond without making sufficient provision for
his wife, she is _permitted_ (!) to use her own property and earnings,
or the earnings of her minor children, to secure a support. This
_permission_ indicates the tender mercies of the common law, and reminds
us of the Helvetian peasant-woman.
_Second_, She is exempted from personal restraint during the pendency of
a divorce suit.
_Third_, A mother and her illegitimate child may inherit from each
other.
A married woman may devise her real estate, and it is exempt from
attachment for the sole debts of her husband. She may have her husband's
life insured, the insurance to be made payable to her or her children.
If he should be put into the penitentiary, she may transact business as
if she were a _feme sole_.
The laws of inheritance are liberal; and the common law prevails by
statute, when not repugnant to any recorded statute.
In Connecticut, in 1855, all the real estate owned at the time of
marriage, or subsequently inherited by the wife, rests absolutely in
her. All her personal estate passes to her husband; but all that she may
afterward receive remains in her right, her husband being only her legal
trustee. Her earnings are subject to his trusteeship, and nothing more.
She is the guardian of her own children; and the court always confirms
this right, unless she is incapacitated. In case of divorce, the father
is entitled to the children, unless objection is made. On the decease of
the husband childless, one-half of his personal estate goes to the
wife, and a life-interest in one-third of the real; or the whole, if it
be needed for her support.
In New Hampshire, the common law prevails for the most part. What
express enactments she passed in 1853 seem to refer rather to making the
position of a deserted wife equivalent to that of a _feme sole_ than any
thing else.
As regards Massachusetts, it is common to say that the legislation of
1855 leaves very little to be desired, beside the right of suffrage; but
a keen eye still detects more than one shortcoming. The custody of the
wife's person still vests in the husband.
With reference to the guardianship of children, the custom is in advance
of the law; while her power to make a will is so carefully guarded, that
it might as well be surrendered.
A married woman in Massachusetts can make no contract to bind her,
except one strictly relating to her trade, business, or property. She
cannot, for instance, indorse a note, or be a surety for another person
in any way.
In Maine, since 1857, a wife may hold the wages of her own labor.
In Ohio, at the same date, the law gave this right only _under
conditions_. Long before any such changes took place, however, the
current of public opinion often forced courts to decide against the
common law, and in accordance with equity,--equity not technically, but
divinely, considered.
Judge Graham, of the Court of Common Pleas in Perry County, Penn., made
such a decision in a suit where a wife claimed return of earnings loaned
by her to her husband, and accumulated _after_ marriage. The legal
question brought before Judge Graham was, "Can a wife maintain a suit
against her husband?" He decided that she could legally hold him to a
contract of the kind under consideration; and a verdict was rendered for
the woman, in the sum of $2,508.
In August, 1859, Mrs. Dorr put in a claim for $40,000 on her husband's
estate, in the Court of Insolvency in Worcester County. The court
objected to entertaining the claim until after the choice of an
assignee. The hearing was never completed; some private adjustment
taking its place. The claim was said to be the first of the kind in the
Commonwealth.
We come now to the consideration of the Property Bill, passed in the
spring of 1860 by the State of New York. Not only as the latest act of
specific legislation, but as the most complete provision ever made by
any government to outwit the common law, it demands our attention. After
it was passed, a deficiency relating to the rights of guardianship was
discovered, and a supplement was added. By these two acts, the "New-York
Tribune" tells us that at least five thousand women in that State are
redeemed from pauperism, and established in peaceful homes.
But the supplement bears on one important point, which should be alluded
to. According to the common law, as I showed in referring to England, a
daughter owes service _only_ to her father. The mother, who bore and
nursed her; who has trained her up, it may be by painful sacrifices, to
habits of propriety and thrift,--has no claim upon her service, even in
her minority. By conferring on the mother, in case of the father's
decease, all the rights, remedies, privileges, and responsibilities in
law appertaining to the father, the new act meets the difficulty.
Before quitting the subject, we cannot refrain from alluding to the
fact, that, as early as 1849, the State of New York had passed a
qualified measure in regard to property; and directing your attention to
the manifest truth, that every imperfect act of legislation constitutes
a new set of exceptions to general rules, and very undesirably
complicates legal practice.
If reforms are not to be unpopular, they should be simple and
complete.[44]
In commenting on the passage of these bills, advocated by Mrs. Stanton
before the committees of the Assembly and the Senate, the "New-York
Tribune" says,--
"Mrs. Stanton talked forcibly. It is needless for me to say that she
talked earnestly of woman's sufferings, sweetly of her endurance,
eloquently of her rights. When she talked of her right to be
protected in the enjoyment of her property, of her right to be
released from the bondage of an ill-assorted marriage, she was
listened to with marked favor. She pleaded these demands with the
feeling of a true woman; and she carried the conviction, that she
was not asking more than policy, as well as justice, demanded should
be conceded. When she claimed that her voice should be heard on the
hustings, and her vote be received at the ballot-box, she was
earnest and eloquent and _plausible_; but she must have felt that
she was not convincing her audience, and she did not."
Here the single word _plausible_ vitiates, as cunning reporters well
know how to do, the whole effect of the sentence. Far more reasonably,
the "Tribune" might have said she was earnest, eloquent, and _sensible_;
and so have spurred its readers to thought instead of ridicule. His
criticism, however, launches fairly our last subject of discussion. It
is needless to say, that nowhere in the United States has woman the full
power of suffrage.
In New Jersey, women formerly possessed, and often exercised, this
right. By the Constitution, adopted July 2, 1776, the privilege of
voting was accorded to all inhabitants, of full age and clear estate,
who had resided for a certain time in the country, and who had fifty
dollars in proclamation-money.
In 1790, a Quaker member of the Assembly had the act so drawn as to read
"he or she." Until 1807, women often voted, especially in times of great
political excitement; at such times, for the most part, "under
influence," we may presume. Many voted in the presidential contest of
1800; and a newspaper of that period thanks them for unanimously
supporting John Adams in opposition to Jefferson. So they were supposed,
at times, to act independently. At an election in Hunterdon County in
1802, the ballots of some colored women elected a member of the
legislature. Probably this fact, by stimulating the local prejudice
against color, and the fading-out of all aristocratic distinctions,
which left no property qualifications on the statute-book, led to a
change; for, in 1807, an act was passed, limiting the right of suffrage
to "free white male citizens of twenty-one years."[45]
In later times, committees of intelligent men, in Wisconsin, Michigan,
and Ohio, have reported in favor of granting to women the right of
suffrage; but the question was lost in the ballot which followed.
If the constitution prepared for Kansas should be accepted by the
people, single women will be empowered to vote there. In Nebraska, the
lower house passed a vote, conferring the privilege; but it was too late
in the session for the question to come before the upper branch.
In 1858, a proposition to amend the Constitution of the State of
Connecticut, so as to extend the franchise to women, received eighty-two
votes in the House of Representatives. It was defeated by a majority of
forty-five. In 1852, the Kentucky Legislature, in providing for the
election of school-trustees, enacted that "any widow, having a child
between six and eighteen years, may vote in person or by proxy."
A provision thus limited by public opinion and prejudice would probably
have very little force. I have understood that such a provision has
taken effect in some parts of Michigan, and it has also been recommended
to the State of Massachusetts. Very early in the history of our
government, its inconsistencies became a matter of comment among women
themselves. How could it be otherwise? How can she be said to have a
right to _life_, who has never consented to the laws which may deprive
her of it, who is steadily refused a trial by her peers, who has no
voice in the election of her judges? How can she be said to have a right
to _liberty_, whose person, if not yet in custody, almost inevitably
becomes so on her maturity, who does not own her earnings, who can make
no valid contract, and is taxed without representation? How can that
woman be said to possess either the right or the reality of _happiness_,
who is deprived of the custody of her own person, of the guardianship of
her children, of the right to devise or share her property?
The government is tyrannical which leaves a single citizen in this
predicament. What is to be said of a government which enforces it upon
half its subjects?
It is not strange then, that, half in jest, half in earnest, the wife of
John Adams wrote to him in 1776 to ask if it "were generous in American
men to claim absolute power over wives at a moment when they were
emancipating the whole earth." Nor was it strange, that, in a more
serious mood, Hannah Corbin of Virginia should write to her brother,
Richard Henry Lee, on the same subject.
The American Colonies were struggling against the mother-country, on the
ground that taxation and representation should be inseparable.
The "National Intelligencer" has to confess, when it tells the story,
that it was not strange if "strong-minded" women of that era, finding
themselves _taxed_, should wonder why they could not vote.