WOMAN’S LEGAL CONDITION.

“There is who hopes (his neighbor’s worth depressed),

Pre-eminence himself; and covets hence,

For his own greatness that another fall.”

                                                               – Dante.

     IN most nations, except Jewish and Christian, the condition of woman has been, from time immemorial, one of slavery. She was sold in marriage. Rome has given laws to the world, yet the young Roman, says Gibbon, “according to the custom of antiquity bought his bride of her parents, and she fulfilled the co-emption by purchasing, with three pieces of copper, a just introduction to his house and household deities.” Her servitude was decorated by the title of “adoption,” and, by a legal fiction, she became the “daughter” of her husband and the “sister” of her own children. Parental power in its fullest extent be-longed to the husband in relation to the wife, as well as to the children. “By his judgment or caprice her behavior was approved or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the case of adultery or drunkenness, the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year.”⁵

     The Spartan women were given the same physical training as men, and, as a consequence, they were more free in fact than the women of any other country of that age. “There can be little doubt,” says Mill, “that Spartan experience suggested to Plato, among many other of his doctrines, that of the social and political equality of the sexes.” Still, by law, in Sparta, as in the rest of Greece, the state of woman was that of subjection.

     Stanley, writing of Central Africa, says: “Though a woman is as much a chattel in these lands as any article their lords may own, and is priced at from one to five head of cattle, she is held in honor and esteem, and she possesses rights which may not be over-looked with impunity. The dower stock may have been surrendered to the father, but if she be ill used she can easily contrive at some time to return to her parents, and before she be restored, the husband must repurchase her, and as cattle are valuable, he is likely to bridle his temper. Besides, there is the discomfort of the cold hearth, and the chilly arrangement of the household, which soon serve to subdue the tyrant.”⁶

     Though Christianity has greatly ameliorated the condition of woman, it has not secured for her, even in the most enlightened nations, that equality which the Gospel inculcates. A writer of only thirty years ago said: “The German women of the lower, and to some extent of the middle classes, are subjected to greater hardships than the women of any other nation of Europe. The farm laborer, the mechanic, and even the small farmer, makes his wife or mother his drudge, and compels her to perform the most menial and severe labors, while he sits or walks by her side unemployed, smoking his pipe. Within a few years, American citizens have witnessed, in Vienna, women acting as masons’ tenders, carrying bricks and mortar up to the walls of lofty brick buildings in course of erection.”⁷

     John Stuart Mill, an English writer of highest authority, says:

     “By the old laws of England, the husband was called the lord of the wife; he was literally regarded as her sovereign, inasmuch that the murder of a man by his wife was called treason (petty as distinguished from high treason), and was more cruelly avenged than was usually the case with high treason, for the penalty was burning to death. Because these various enormities have fallen into disuse (for most of them were never formally abolished, or not until they had long ceased to be practiced); men suppose that all is now as it should be in regard to the marriage con-tract; and we are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband; no less so, as far as legal obligation goes, than slaves commonly so called. She vows a life-long obedience to him at the altar, and is held to it all through her life by law. Casuists may say that the obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do no act whatever but by his permission, at least tacit. She can acquire no property but for him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife’s position under the common law of England is worse than that of slaves in the laws of many countries; by the Roman law, for example, a slave might have his peculium, which, to a certain extent, the law guaranteed to him for his exclusive use. The higher classes in this country give an analogous advantage to their women, through special contracts setting aside the law, by conditions of pin-money, etc., etc.; since parental feeling being stronger with fathers than the class feeling of their own sex, a father generally prefers his own daughter to a son-in-law who is a stranger to him. By means of settlements, the rich usually contrive to withdraw the whole or part of the inherited property of the wife from the absolute control of the husband; but they do not succeed in keeping it under her own control; the utmost they can do only prevents the husband from squandering it, the same time debarring the rightful owner from its use. The property itself is out of the reach of both; and as to the income derived from it, the form of settlement most favorable to the wife (that called “to her separate use”) only precludes the husband from receiving it instead of her; it must pass through her hands, but if he takes it from her by personal violence as soon as she receives it, he can neither be punished, nor compelled to restitution. This is the amount of the protection which, under the laws of this country, the most powerful nobleman can give to his own daughter as respects her husband. In the immense majority of cases there is no settlement, and the absorption of all rights, all property, as well as all freedom of action, is complete. The two are called “one person in law,” for the purpose of inferring that whatever is hers is his, but the parallel inference is never drawn that whatever is his is hers; the maxim is not applied against the man, except to make him responsible to third parties for her acts, as a master is for the acts of his slaves, or of his cattle. I am far from pretending that wives are in general no better treated than slaves; but no slave is a slave to the same lengths, and in so full a sense of the word, as a wife is. Hardly any slave, except one immediately attached to the master’s person, is a slave at all hours and all minutes; in general he has, like a soldier, his fixed task, and when it is done, or when he is off duty, he disposes, within certain limits, of his time, and has a family life into which the master rarely intrudes. ‘Uncle Tom’ under his first master had his own life in his ‘cabin,’ almost as much as any man whose work takes him away from home, is able to have in his own family. But it cannot be so with the wife.

     “What is her position in regard to the children in whom she and her master have a joint interest? They are by law his children. He alone has any legal rights over them. Not one act can she do towards or in relation to them, except by delegation from him. Even after he is dead she is not their legal guardian, unless he by will has made her so. He could even send them away from her, and deprive her of the means of seeing or corresponding with them, until his power was in some degree restricted by Sergeant Talfourd’s act.

     “This is her legal state. And from this state she has no means of withdrawing herself. If she leaves her husband, she can take nothing with her, neither her children nor anything which is rightfully her own. If he chooses, he can compel her to return bylaw, or by physical force; or he may content himself with seizing for his own use anything which she may earn, or which may be given to her by her relations. It is only legal separation by a decree of a court of justice, which entitles her to live apart, without being forced back into the custody of an exasperated jailer or which empowers her to apply any earnings to her own use, without fear that a man whom perhaps she has not seen for twenty years will pounce upon her some day and carry all off. This legal separation, until lately, the courts of justice would only give at an expense which made it inaccessible to any one out of the higher ranks. Even now it is only given in cases of desertion, or of the extreme of cruelty; and yet com-plaints are made every day that it is granted too easily.”

     It is no wonder that our prejudices against the rights of woman, coming down to us from such sources, and infused into us from early childhood, should be so strong. But reason and grace serve to overcome prejudice.

     In no other nation of the world is woman’s legal condition as favorable as in this country, yet in thirty-six of our states the woman with a husband living is not the legal owner of her children. The husband has the legal control, and in some of the states he can will the child away from his wife before the child is born.