A brief summary, in plain language, of the most important laws concerning women, together with a few observations thereon/Remarks
REMARKS.
These are the principal laws concerning women.
It is not now as it once was, when all existing institutions were considered sacred and unalterable; and the spirit which made Blackstone an admirer of, rather than a critic on, every law because it was law, is exchanged for a bolder and more discriminating spirit, which seeks to judge calmly what is good and to amend what is bad.
Philosophical thinkers have generally come to the conclusion that the tendency of progress is gradually to dispense with law,—that is to say, as each individual man becomes unto himself a law, less external restraint is necessary. And certainly the most urgently needed reforms are simple erasures from the statute book. Women, more than any other members of the community, suffer from over-legislation.
A woman of twenty-one becomes an independent human creature,[1] capable of holding and administering property to any amount; or, if she can earn money, she may appropriate her earnings freely to any purpose she thinks good. Her father has no power over her or her property. But if she unites herself to a man, the law immediately steps in, and she finds herself legislated for, and her condition of life suddenly and entirely changed. Whatever age she may be of, she is again considered as an infant,—she is again under "reasonable restraint"—she loses her separate existence, and is merged in that of her husband.
"In short," says Judge Hurlbut, "a woman is courted and wedded as an angel, and yet denied the dignity of a rational and moral being ever after."
"The next thing that I will show you is this particularitie 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 loseth her name, it is carried and recarried with the new associate, it beareth no sway, it possesseth nothing during coverture. A woman as soone as she is married is called covert, in Latine nupta, that is vailed, as it were clouded and overshadowed she hath lost her streame. * * I may more truly farre away say to a married woman, her new selfe is her superior, her her companion, master. The mastership shee is fallen into be called in a terme which civilians borrow from may Esop's Fables, Leonina societate."[2]
Truly "she hath lost her streame," she is absorbed, and can hold nothing of herself, she has no legal right to any property; not even her clothes, books, and household goods are her own, and any money which she earns can be robbed from her legally by her husband, nay, even after the commencement of a treaty of marriage she cannot dispose of her own property without the knowledge of her betrothed. If she should do so, it is deemed a fraud in law and can be set aside after marriage as an injury to her husband.
It is always said, even by those who support the existing law, that it is in fact never acted upon by men of good feeling. That is true; but the very admission condemns the law, and it is not right that the good feeling of men should be all that a woman can look to for simple justice.
There is now a large and increasing class of women who gain their own livelihood, and the abolition of the laws which give husbands this unjust power is most urgently needed.
Rich men and fathers might still make what settlements they pleased, and appoint trustees for the protection of minors and such women as needed protection; but we imagine it well proved that the principle of protection is wrong, and that the education of freedom and responsibility will enable women to take better care of themselves and others too than can be insured to them by any legal precautions.
Upon women of the labouring classes the difficulty of keeping and using their own earnings presses most hardly. In that rank of life where the support of the family depends often on the joint earnings of husband and wife, it is indeed cruel that the earnings of both should be in the hands of one, and not even in the hands of that one who has naturally the strongest desire to promote the welfare of the children.
All who are familiar with the working classes know how much suffering and privation is caused by the exercise of this right by drunken and bad men. It is true that men are legally bound to support their wives and children, but this does not compensate women for the loss of their moral right to their own property and earnings, nor for the loss of the mental development and independence of character gained by the possession and thoughtful appropriation of money; nor, it must be remembered, can the claim to support be enforced on the part of the wife unless she appeals to a court of law. Alas, how much will not a woman endure before she will publicly plead for a maintenance!
Why, we ask, should there be this difference between the married and unmarried condition of women? And why does marriage make so little legal difference to men, and such a mighty legal difference to women? In France it is somewhat more equal; married women have a right, if they marry without a marriage contract, to claim at the death of a husband half of whatever he possessed at the time of marriage, or may have gained afterwards. If a woman have property of her own, she may if she please marry under the "régime de séparation de corps et de biens," in which case she has the entire control of her own fortune, and has no need of trustees. But usually marriages in France are of another description, or under the "régime dotal," in which case a portion of the property of the wife is left at the disposal of the husband, and the rest placed in the hands of trustees, much as it is with us in England. The choice which the French law allows is however a great improvement on our law.
In Turkey, daughters succeed equally with sons in houses and landed property, and always take one-third of the personal property. A widow receives one-eighth of the personal property, and must be provided for during her life by the heirs. Women control their own inheritance when married; the husband has no power over the inherited portion of his wife or wives.
In Hungary, the common law, before 1849 (the German law is now introduced), made a broad distinction between inherited and acquired property, whether landed or personal. Whatever was inherited went to the heirs; it could not be subject to a will.
As to acquired property, the law only interfered to give half to the wife; it was her absolute property, of which she might dispose in any way during life or by will. Among the nobility this law did not obtain. In cases where inherited property had been so left by the will of the first acquisitor as to exclude the female sex, the brothers were oblige to give a handsome sum if they married to their sisters, and provide for them in a becoming way if they remained single.
The rights of a widow were great; she was guardian of children, administrator of property, and, as long as she bore the name of her husband, she could exercise all the political rights of a man; she could vote in elections of county officers, and in those of the Deputies to the Diet.
Single females, according to the Hungarian law, were considered as minors, who became of age upon marriage, and by marriage came into full control of all their estates. They were not liable for the debts of their husbands; they were not even bound to provide for the domestic expenses, the care of providing for the house and the education of the children being incumbent on the husband. Wives could make wills and sign deeds without the consent of the husbands. If a wife died intestate, her property went to her children or collaterals.
In fact a wife was not regarded in Hungary as a minor, her husband was not her guardian, nor were there trustees appointed for her property. "None of my countrywomen would ever have submitted to such a marriage settlement as is usual in England," said a Hungarian lady, well known for her genius and reputation. With the one exception of considering all unmarried women as minors, the Hungarian law is very much in advance of ours.
The laws in the United States are generally much the same as ours. As a general rule married women cannot make a devise of real estate. In some of the States there are more reasonable laws, and a married woman may make a will and devise lands in the same manner as men. These States are Ohio, Illinois, Connecticut, Mississippi, and Louisiana. In Ohio the laws are remarkably liberal to women. The first section of the statute of wills in Ohio declares that any person of full age and sound mind and memory may make a will. By the statute of Ohio it is expressly provided that the will of an unmarried woman shall not be revoked by her subsequent marriage.
What changes we find in the American laws are improvements upon ours. Is there not evidence in our English laws of old opinions relating to women which are passing away with the old state of things which engendered them? In the early times, when women were obliged by the violent state of society to be always under the guardianship of father, brother, or husband, these laws might be necessary; but in our peaceful times, such guardianship is proved to be superfluous by the fact of the secure, honourable, and independent position of single women who are sufficiently protected by the sanctuary of civilization.
Since all the unmarried women in England are supported either by their own exertions or by the exertions or bequests of their fathers and relations, there is no reason why upon marriage they should be thrown upon the pecuniary resources of their husbands, except in so far as the claims of a third party—children—may lessen the wife's power of earning money, at the same time that it increases her expenses. Of course a woman may, and often does, by acting as housekeeper and manager of her husband's concerns, earn a maintenance and a right to share in his property, independent of any children which may come of the marriage. But it is evident that daughters ought to have some sure provision—either a means of gaining their own bread, or property—as it is most undesirable that they should look upon marriage as a means of livelihood. Fathers seldom feel inclined to trust their daughters' fortunes in the power of a husband, and, in the appointment of trustees, partially elude the law by a legal device. Also, the much abused Court of Chancery tries to palliate the Common Law, and recognizes a separate interest between husband and wife, and allows the wife alone to file a bill to recover and protect her property, and trustees are not necessary if there has been an agreement.
Why should not these legal devices be done away with, by the simple abolition of a law which we have outgrown?
We do not say that these laws of property are the only unjust laws concerning women to be found in the short summary which we have given, but they form a simple, tangible, and not offensive point of attack.
- ↑ With regard to the property of women, there is taxation without representation, for they pay taxes without having the liberty of voting for representatives, and indeed there seems at present no reason single women should be denied this privilege.—Note to Christian's Blackstone.
- ↑ The Lawe's Resolutions of Women's Rights, A.D. 1632.