"Legal Condition of Woman in 1492-1892." by Miss Mary A. Greene.
|MISS MARY A. GREENE.|
In order, then, to understand the legal condition of woman in any country, or at any era, we must study the social condition that existed at the time the laws were framed. At the date of the discovery of our continent, the dawn of a new civilization was breaking upon Europe. This intellectual awakening of the world awakens women as well as men. Women of gentle birth apply themselves with enthusiasm to the study of Greek and Latin, in order to obtain for themselves the learning of the ancients. So it happens that we know much about the women of the higher classes in 1492. But of the women of the lower classes very little is recorded. They were truly and absolutely "the submerged tenth," not worth the notice of historians. Here and there a glimpse is caught, which suggests to us their social bondage. A wedding custom among the German peasants was that the bride's father should remove her shoes and deliver them to the groom, who tapped the bride's forehead with them, in token of his matrimonial authority over her. The woman who married a slave could, by law, be put to death by her relatives, or be sold by them at their will.
The civilization of ancient Rome favored the domestic seclusion of woman. The European states, which arose out of the fall of the Roman empire, favored the same idea. Restriction and submission to a higher power was the policy of the middle ages. The laity were to be submissive to the clergy, vassals submissive to their lords, wives submissive to their husbands. In the rude and warlike society of those times, when shut up within his closely fortified castle, the feudal knight poured boiling oil or [Page 42] shot arrows from his towers upon his neighbors, or sallied forth to encounter like assaults at their hands, the safe seclusion of the castle and the quiet occupations of cooking and spinning were, no doubt, the best for the women of the family. As refinement increased, women were able to come out of their seclusion a little, and to participate to some extent in the social life of the men. The growth of chivalry also helped to elevate the women of the higher classes in feudal days. Religion and gallantry were blended together. The love of God and the ladies was enjoined as a single duty. At the institution of the Order of the Golden Shield, Louis II., Duke of Bourbon, enjoined his knights to honor above all the ladies, "because from them, after God, comes all the honor that men can acquire." The laws also recognized this chivalrous homage and extended their protection. James II., of Aragon, enacted a law "that every man, whether knight or no, who shall be in company with a lady, pass safe and unmolested, unless he be guilty of murder."
With the incoming of the Renaissance and the Reformation, with the new spirit of personal dignity and independence, begotten of a wider knowledge and broader culture, the crudities of chivalry and the restrictions of feudalism began to fade away. Expansion and independence took the place of restriction and submission Since the condition of the higher classes of women had been tending toward a higher position of esteem and honor under the later feudal system, their advancement could not fail to be rapid under the new order of the new age. This is shown by their educational elevation at the close of the fifteenth century.
Spain and Italy had at that time begun to admit women to the higher education of the universities. The Spanish Arabs were devoted to letters, and many of their high-born women publicly contended for prizes in science and arts at Cordova and Seville. The reign of Isabella counts among its many glories a galaxy of women whose scholarship would have been rare in any age. Isabella herself was learned in the classics, and her Latin instructor was a woman, Dona Beatriz de Galindo, who was called La Latina, on account of her rare acquirements. At the same time the University of Salamanca had as lecturer in the Latin classics another learned woman, Dona Lucie de Medrano, while at Alcala, Dona Francisca de Lebrija filled the chair of rhetoric
In Italy, a century earlier, Dotta, daughter of the celebrated Accursius, gave instruction in law at the University of Bologna, and nearly contemporary with her was Novella, the beautiful daughter of Andrea, who delivered her lectures upon the canon law from behind a curtain, as tradition has it, lest her beauty should distract the young men who were her pupils. These were the earliest of a long line of distinguished Italian women professors, reaching down to our own day, when Dr. Josephine Catani fills the chair of histology in the medical school of the ancient University of Bologna. The political status of woman in 1492 in Continental Europe was a survival of ancient ideas, of Roman jurisprudence. Even under the repression of the feudal system the capacity of woman to be a sovereign, a judge, an advocate and an arbitrator, was not denied. But the Roman law excluded her from all public offices, not, however, on the ground of incapacity, but simply on the ground of etiquette and expediency, as the Roman code puts it, "because it is not fitting that women and slaves should hold public offices." The system of civil law, which was built up in the fifteenth century from the ruins of the Roman code, incorporated this idea, so that we find it declared in the laws of Continental Europe that a woman may not be an advocate or a judge.
In England, where the influence of the Roman law was slight, the capacity and fitness of women for public office was to some extent recognized, and when Queen Mary came to the throne she placed women in judicial office. Lady Berkeley was made a justice of the peace for Gloucestershire, and Lady Rous, as justice of the quorum for Suffolk, "did usually sit on the bench at assizes among the other justices, cincta gladio, girt with the sword." The hereditary office of high sheriff of Westmoreland was held at one time by a woman, and women were held to be eligible to election as burgesses, overseers of the poor, constables, sheriffs and marshals, and [Page 43] they occasionally occupied these positions. There is no doubt that women landowners were allowed to vote as well as to hold public office, but the privilege was so very seldom exercised that instances are very rare. Still, in theory, the single woman or widow had a lawful right to cast a vote, while her married sister was represented by the vote of her husband. The capacity of woman to be a sovereign was everywhere recognized, and even where the Salic law excluded woman from the throne her right and ability to rule as regent during the king's minority was fully admitted. Thus, in France, from 1483 to 1491, Anne of Beaujen held the office of regent during the minority of her brother, Charles VIII.
The royal Isabella, ruling in her own right as queen of Castile and Leon, and as co-equal with her husband, Ferdinand, of Aragon, in the government of the united countries, is a sufficient instance of the legal recognition of woman's right to the highest and most responsible of all public offices.
As our American orator has recently said: "It was a happy omen of the position which woman was to hold in America that the only person who comprehended the majestic scope of his (Columbus') plans and the invincible qualities of his genius was the able and gracious Queen of Castile. Isabella alone, of all the dignitaries of that age, shares with Columbus the honors of his great achievement. She arrayed her kingdom and her private fortunes behind the enthusiasm of this mystic mariner, and posterity pays homage to her wisdom and faith." And in less than a century after Isabella, another woman, Elizabeth, of England, the virgin queen whose flag swept the seas, was the mistress and patroness of the first permanent settlement of her race upon our shores, a race which was destined to possess and dominate this northern continent of the New World:
Turning to the personal and property rights of the woman of 1492, we look at a darker side of the picture. This branch of the law affects rich and poor, high and low alike. Only the high-born woman would be likely to hold public office, but every woman has a right to protection of her person and property. The laws of England differed from those of the continent of Europe in form and theory, but scarcely in their practical effect upon the woman. The theory of the common law of England derived from our Germanic forefathers, was that of a division of duties. As the wife had the care of the household, and the responsibility of rearing her family, it was thought unreasonable to subject her to the annoyances of a suit at law to protect or defend her rights and to preserve her property. This was laid upon the husband's shoulders. He was to protect her and perform these duties for her. The wife in English law was considered as under the protecting wing of her husband, which covered her from legal annoyance; hence, the old law–French term for a married woman, a femme covert, and her legal condition is her coverture. That this is the true theory of the law is evident from the laws governing the queen's consort of England. Such women, upon marriage, retained all their property and legal capacity to transact business. For as Sir Edward Coke puts it, "The wisdom of the common law would not have the king (whose continual care and study is for the public and circa ardua regni ) to be troubled and disquieted on account of his wife's domestic affairs; and, therefore, it vests in the queen a power of transacting her own concerns without the intervention of the king, as if she were an unmarried woman."
The theory of the civil law of Continental Europe, coming down from the Roman code, was very different. These laws are based upon the weakness, frailty and incapacity of the sex. The husband is made the curator of his wife much as the father is made guardian of his minor child. Upon this theory, also, a woman could not in early times be a witness in court, and long after she was made legally competent to testify, her testimony was held to be of slight worth. Whether the English or the Continental laws be considered, the effect upon the married woman was practically the same in respect to her ownership and control of her property. The husband had complete control of the wife's property, and was able to dispose of it at his own pleasure, without her knowledge or consent. She was not capable of making any binding [Page 44] contract whatever. The legal custody of the children was in the father, and by feudal law after the father's death, unless he had by his will appointed a guardian, the lord of the manor became the custodian of the person and property of the orphaned child. The consent of the lord was necessary to the marriage of a female ward, and in England the lord could dispose of her in marriage, exacting a heavy fine if she refused to marry according to his commands. Where, as in England, the possession of landed property qualified its owner to vote and hold public office, the husband of a woman who owned land, voted and sat in parliament by right of his joint ownership in his wife's land. This right of the husband has disappeared from American law, except in Rhode Island, where it still lingers only slightly modified by recent legislation. The condition of the widow under this regime was truly pitiable. She had no claim whatever upon the personal property of her late husband, not even though she had brought that property to him at her marriage.
In England the widow had from very early times a right to the income of one-third of the deceased husband's lands, during her life, and this life interest, known as "the widow's dower," was all that she could claim, unless, indeed, she had been so fortunate as to possess a marriage settlement. By a deed to trustees before her marriage, her property could be preserved to her and her heirs, free from any claim of her husband. This device of the English equity courts relieved in some degree the hardships of the common law, but obviously could only benefit the wealthy women of the kingdom. The widow under the civil law of Europe had no claim upon her deceased husband's property. It all went to his heirs. Under the feudal system, at least in England, a widow could remain for forty days in the mansion house of her husband without paying rent. At the end of this time her dower was assigned and she was then turned adrift upon the world at the mercy of her family and friends. If she married again, the lord of the manor could exact a fine from her for so doing, and it was no uncommon practice for these feudal masters to compel a widow to re-marry, in order to obtain the fine to replenish their exhausted treasuries.
The single woman under English law possessed all the legal rights of a man. On the Continent, the idea of woman's mental incapacity affected the legal condition of the single woman, as well as that of the wife. She had not the freedom of her English spinster sister. She had very limited contract powers, and could only make contracts to pay in money or in kind for purchases made by her. On the other hand, she had, by reason of this same conception of mental inferiority, less criminal responsibility, and where the English woman suffered the same penalties for her crimes that a man would do, the European woman had but half the penalty. As an old law quaintly says: "A woman shall suffer but half the punishment, where a man suffers the full penalty. * * * * Thus, a woman should not be put in irons, nor sent to the galleys, nor placed in a prison, which might enfeeble her body or wound her, or cause her to lose her memory, for women are frail by nature."
Offenses against the person of woman were not severely punished. One could scarcely expect that they would be when the social inferiority of woman was so clearly marked. A husband could chastise his wife by right of his position as head of the family. The degradation of marriage under the Roman law left its stain upon later generations. The monastic ideas of the middle ages sympathizing with the Roman theory, incorporated into the canon law the principle of the inferiority and subjection of woman.
At the time that the Renaissance began to elevate woman's social condition, the Reformation began to sweep away the errors that had collected around the original ecclesiastical conception of woman's sphere. The advancement of woman was assured when her intellectual and spiritual equality with man began to be perceived. Her social elevation thus secured, her legal enfranchisement must follow.
Let us pause and think how small a portion of this vast globe of ours shared in this great awakening of the fifteenth century. Not more than half of the European Continent saw this light. In Asia, in Africa, in the New World, lying unknown in an [Page 45] unknown ocean, in the undiscovered islands of the sea, what intellectual and moral darkness! Can we bear to think of, much less to relate in detail, the social degradation of woman in these dark places of the earth! Even where the heathen civilization had reached its highest mark, the condition of woman was scarcely one to be desired in point of personal respect and protection.
In the interval between 1492 and 1892 the social and legal development of woman was slow. The leaven of new ideas was working, but the mass of ignorance and prejudice, the accumulation of centuries, was not easily permeated. In England the condition of the widow was improved by granting to her a fraction of her husband's personal property, in addition to her dower in his real estate. The power of the lord over the widow and children of his vassal disappeared with the complete abolition of the feudal system in the seventeenth century. On the Continent the contract capacity of woman was enlarged, and greater personal protection accorded to her by law. A few persistent women secured for themselves the benefit of a liberal education. Italy continued to honor women as professors in her University of Bologna. Mary Somerville in England won recognition for her attainments, and here and there other women less known to fame gave proof of their ability and skill. But the gains of three hundred and sixty years were little compared with those of the last forty years. The long, slow process of seed sowing, the ages of germination, have been crowned in our time by wonderful fruitage. The inventions of science, which have brought together into closest relationship the nations of the earth, have also opened a highway for the advancement of women.
In order to get any adequate idea of the legal condition of woman in 1892 we must know of her present and past social condition and trace the history of the ancient laws affecting her. For these ancient laws, some of which are still in force, are responsible for the present anomalies of woman's legal condition. When enacted, they may have justly reflected woman's social condition, but now they should give place to new laws, framed to meet the existing social environment. To go into minute detail is impossible, and this address would become a mere catalogue were it to be attempted. We shall consider first the higher education of woman at the present day; secondly, the professions and occupations open to her; thirdly, her political status; fourthly, her personal rights; fifthly, her property rights, and lastly shall attempt to draw some lessons and conclusions from this historical survey of the legal condition of woman.
I. THE HIGHER EDUCATION OF WOMEN.
On the Continent of Europe women are admitted to the universities in Italy, France, Belgium Holland, Switzerland, Spain, Roumania, Sweden, Norway, Denmark and Iceland, and may in some of them receive university degrees.
In Great Britain the following are open both for instruction and degrees: The University of London, the universities of Ireland, and the Scottish universities of Edinburgh and of St. Andrews, the two latter very recently.
Women are excluded from the universities by express prohibition of law in Germany, Austria and Russia. In the latter country a medical school for women students, which was for a time suspended on account of political complications, is about to be re-established through the exertions of the czarina. While the conservative universities of Oxford and Cambridge in England do not admit to their lectures or degrees, they do permit women to take the university examinations, and we have not yet forgotten the triumph of Philippa Fawcett, who in 1890 overtopped the senior wrangler in the mathematical examinations at Cambridge. Under the shadow of these venerable universities, the colleges for women, Girton Newham and St. Margaret's are distinguished by the high attainments of their students.
In our own land there are over a hundred first class colleges and universities open to women. Some of these, like Vassar, Wellesley, Smith and Bryn Mawr, are for women exclusively; some like Barnard College of Columbia University and the [Page 46] Woman's College of Brown have an organic connection with a university for men; some like Tufts College have after establishment opened their doors to women on the same terms as men while many others, like Michigan University, Boston University, Cornell and nearly all the universities and colleges of the Western States, like the youngest of all, the great Chicago University, have been co-educational from their very foundation. Of our older universities, Brown in 1891, and Yale and the University of Pennsylvania in 1892, are the latest to open their post-graduate courses and degrees to women. Harvard, the oldest of all, seems to stand alone in its refusal to recognize officially the eligibility of women for the Harvard Annex, so-called, has no official connection with the university.
Nearly all the universities and colleges of Canada are open to women, and all those of Australia. In India the universities of Calcutta, Madras and Bombay. Opportunities are also increasing in Japan for the higher education of women.
Since Oberlin College in Ohio granted, in 1838, apparently the first collegiate diploma ever given to a woman in this country to this time, when in nearly every civilized country women may obtain degrees on the same terms as men, how great has been the advance! And nearly all this advance has been made within thirty years.
II. PROFESSIONS AND OCCUPATIONS OPEN TO WOMEN.
It naturally follows that the professions should be entered by women. Apparently the medical profession was the first sought by her. Sixty years ago the first woman medical student began her course of study, and now countless thousands of women practitioners of the healing art are scattered over the world, pursuing their profession with most signal success. In the East Indian zenanas, the homes of the helpless foot-bound Chinese, as in the homes and hospitals of Europe and America, they are doing a work that no man could possibly accomplish.
The profession of theology has attracted fewer women, and it has been less easy for them to obtain recognition as pastors and preachers, but the theological schools of Switzerland, and some of those in the United States, notably those of the Unitarian and Methodist Episcopal churches, admit women as students. There are ordained women preachers in the Baptist, Congregational, Universalist, Unitarian, "Christian," Protestant, Methodist, and Primitive Methodist denominations, and over three hundred and fifty women preachers among the Society of Friends. There are perhaps seven hundred women preachers to-day in the United States.
The legal profession was the last of the three so-called learned professions to be opened to women; not because of reluctance on the part of the courts, but because women did not so early apply for admission. Although isolated instances may be cited from the Roman Calphurnia to our own time of women who have pleaded causes in court, it was not till 1869 that a woman was formally admitted as an attorney and counselor at law. To the United States belongs this honor. Mrs. Arabella A. Mansfield was admitted without objection to the bar of the Supreme Court of Iowa in that year (1869). About the same time women students were received into the law schools of Washington University, St. Louis, and the Union College of Law at Chicago. There are now not less than eleven law schools in the United States open to women. Twenty-five States and Territories admit women to the bar. As to the rest we cannot safely say that they exclude women, for as a matter of fact no woman has as yet applied, except in Virginia, which has for three years steadfastly refused to grant admission to a lady lawyer. There are probably over two hundred women lawyers in the United States to-day, nine of whom are admitted to practice before the Supreme Court of the United States.
The universities of Paris, Brussels and Zurich have within five or six years graduated women from their law departments. The three graduates at Paris have not applied for admission to the bar. At Zurich Dr. Emilie Kempin, although denied admission to the bar, is a lecturer upon law in the university. Dr. Marie Popelin, a graduate in law at Brussels, has been formally denied admission to the bar. Italy, [Page 47] Russia and Denmark have also refused the petition of women for admission as advocates at the bar. India, Japan and the Hawaiian Islands recognize the woman lawyer. The Royal University of Ireland has recently conferred the degree of Doctor of Laws upon a woman; and in Canada, in the Province of Ontario, women have very recently been made eligible to admission to the study of the law. In England, no attempt to gain admission to the bar has yet been made. Several ladies, practicing as attorneys and solicitors, are patiently waiting for a change in public sentiment before asking for admission to plead as barristers.
Every known profession, occupation and trade seems now to be open to woman in some part of the civilized world. She can be a minister, doctor, lawyer, professor, lecturer, journalist, mechanic, architect, sculptor, painter, merchant, day-laborer. In fact, whatever she chooses to undertake she is permitted to do, if not in one country then elsewhere. In view of this entire revolution in her social status, should she not logically possess the same civil and legal rights, and be subject to the same civil and legal liabilities as a man in the same position.
III. .POLITICAL STATUS OF WOMEN.
After this preliminary glance at the social condition of women in 1192, let us look at her legal condition, and see whether her legal emancipation has kept pace with her social emancipation. The political status of women will first be considered. Women enjoy a more or less extended right of suffrage in a majority of all the civilized nations of the world. In the United States they have full suffrage in Wyoming and municipal suffrage in Kansas. In Montana, women have school suffrage, and if taxpayers, they can vote upon all questions involving the levy or disbursement of moneys for public purposes. In twenty more states they have a right to vote for school officers or upon school matters, and in at least six more states they may vote by petition upon certain local matters, such as local improvements, or the granting of liquor licenses; so that there are at least twenty-nine out of a total of forty-eight states and territories of our Union where women enjoy some form of suffrage. In Canada women can vote for all municipal officers throughout the length and breadth of the Dominion, although no married woman can vote except in Manitoba and British Columbia. The women of all the colonies of Great Britain, from Australia to Canada and from Cape Colony to New Zealand, enjoy municipal suffrage, including the presidencies of Madras and Bombay in India, if taxpayers, and the same is true of the rural districts of British Burmah. In England, Scotland and Wales single women and widows vote for all officers except members of Parliament. In Ireland they vote for guardians of the poor. In Continental Europe women are also to some degree enfranchised. In France women teachers vote for women members of boards of education. In Italy widows and wives separated from their husbands vote by proxy for members of Parliament (law of 1882). In Austria they vote by proxy at all elections, including elections of members of provincial and imperial parliaments. In Russia, and in all Russian Asia, women who are heads of households vote by proxy at municipal and village elections upon all local questions. (Law of 1870.) In Sweden, for many years, women have voted at local elections, and since 1862 they have had municipal suffrage. In Norway they have merely school suffrage. In Finland, all women, except wives living with their husbands, can vote for all elective officers save one. (Law of 1865.) In Iceland, as in Wyoming, and also on the Isle of Man, women enjoy full and equal suffrage with men. (1882.)
Woman's right to the ballot is recognized even in some very conservative countries, countries so conservative that by the same law which extends the franchise to woman she is herself excluded from occupying the offices voted for. This is the case in Italy, Russia, Sweden, Finland, Iceland and Austria, except as to a few petty positions.
The general principle of American law seems to be that where no express exception is made by law, the electors for an office are qualified to fill the office. Thus in Wyoming women are eligible to every public office on the same terms as men; in [Page 48] Kansas to municipal offices, and in the states where women may vote for school officers they are generally eligible to election to the office. Many of the states of the Union admit women to public office even though they refuse to them the ballot. A few of the strictly public offices now held by women in America are county recorder of deeds, assistant register of deeds, notary public, town clerk (Vermont), county clerk (Missouri), assistant clerk of the Supreme Court of Rhode Island, receiver of public moneys in Mississippi, custodian of the Mississippi state capital, mayor of cities in Kansas, and all kinds of school offices. Many offices connected with the public charities are held by women in this country. Thus they are members of state boards of charities in Massachusetts and Connecticut, visitors, managers and trustees of reformatory and penal institutions, physicians, visitors and trustees of state insane hospitals, overseers of the poor, and police matrons. By act of Congress in 1870 the clerkships of the Executive Department of the United States Government were opened to women, who now make up a large percentage of the total number of government clerks.
In England women serve as poor-law guardians, visitors to and physicians in government hospitals and insane asylums, as assistant commissioners of the Labor Commission, and the position of meteorologist at the Government Observatory at Hong Kong is now held by a lady. In France women are members of the boards of education. In the Austrian provinces of Bosnia and Herzegovina women have recently received appointments as government medical officers.
The political condition of woman to day may be briefly summed up thus: While she is not yet admitted to the full exercise of political rights, except in Wyoming and a few small islands, still she possesses very generally some right to vote upon local matters more or less closely affecting her as a citizen, and to hold many executive offices. Legislative and judicial offices are not as yet granted to women, except in a very few countries and states, and even where granted are not actually occupied by women.
IV. PERSONAL RIGHTS OF WOMEN.
With respect to the personal protection of woman by law, there has been a change for the better, as the dignity and sacredness of her person is more completely recognized. Severe punishments are inflicted for offenses against women, but still in many instances they are altogether too slight for the gravity of the offense. The "age of consent," which in many states was placed at the age of ten years, has been raised by very recent legislation to fourteen, sixteen, and in some states, eighteen years. For the better protection of women under arrest, police matrons have been placed in the station-houses of some of our American cities, to take charge of such women during the time of their detention. In New York and Massachusetts, by state legislation, all cities having a stated population must provide police matrons. Much of the recent labor legislation is in favor of women. The laws forbidding women to be employed about dangerous machinery, those requiring shopkeepers to provide seats for saleswomen, and the statutes requiring the appointment of women factory inspectors may be cited. As to the law in many states prohibiting women from making a contract to work more hours a week than the time fixed by law, while by the same law a man is free to contract for as many hours' labor as he chooses, one may question whether it does not really work an injustice, since, by interfering with her individual freedom to contract it places her at a disadvantage. An employer prefers to take an employee who is legally free to make agreements for extra work. Therefore, the woman's wages are likely to be decreased and her opportunities for employment lessened by this restriction. A married woman is now protected from the violence of her husband by the legal right given her to prosecute him for assaults upon her. The old theory of the husband's right to chastise his wife has disappeared from English and American law.
In the famous Jackson case in England the Lord Chief Justice, in setting free a [Page 49] woman whose husband had deprived her of her liberty, said, that he did not believe that it ever was the law of England that a husband could restrain his wife of her liberty, and that it certainly is not English law today. In India, under the power of a Christian government, the burning of a widow upon her husband's funeral pyre is forbidden by law, and the day seems not far distant when the seclusion of the zenana and the practice of child-marriages will also disappear. In Japan, where women are more respected than among many Eastern nations, a wife may still be divorced upon the very slightest grounds, even if she talks too much to suit her lord and master. The codes of Continental Europe fail to do justice to woman in respect to her personal protection in the matter of divorce for certain criminal offenses, where the privileges of the man are greater than those of the woman, making it less easy for her than for him to obtain a divorce. This seems to be a vestige of the ancient conception of woman's inferiority.
V. PROPERTY RIGHTS OF WOMEN.
The subject of the present property rights of women is lastly to be considered.
In England and America the unmarried woman is now, as she was four hundred years ago, possessed of all the property rights of a man. She can buy and sell her property, carry on business, bind herself by her contracts of every kind, make a will, and adopt a child if she chooses, just as her brother may do. She can sue and be sued in court, is a competent witness in all cases, and can be executrix of a will, administratrix of an estate, and guardian of children. On the Continent of Europe the unmarried woman is still hampered in some degree by the former legal conception of the essential frailty and incapacity of woman. She is bound by her contracts and may do business as a public merchant. She can make a will and adopt a child. But she cannot, except in Italy and Russia, sign her name as a witness to any legal document; neither can she, with a few exceptions, be a guardian of children, or act as a legal member of family councils. As to the property rights of the married woman, a most radical change has taken place within the last fifty years. Every state in the Union has passed statutes widening to some extent the legal powers of the married woman; and in England, by the Married Woman's Property Act of 1882, all legal restrictions are removed from the wife, who is capable of holding and transferring property, and can sue and be sued as if unmarried.
Rhode Island appears to have led in this reform in 1841, which gave to a wife coming into the state as a resident, being already separated from her husband, the sole ownership and control of her property. This was followed, in 1844, by an act securing to the wife her own property, including her earnings, so that it could not be taken for the husband's debts, and providing that in case she survived him it was to be her sole and separate property. Massachusetts followed, in 1845, with a similar statute, and New York, in 1848, passed a much more liberal one.
It is impossible to trace the history of or give in detail the law of each state. Only the general features can be presented. In every state of the Union, except Tennessee, the wife's property is so far secured to her that it cannot be taken for her husband's debts, and if she survives him it becomes her sole and separate property. But many, indeed a majority, of the states go much further than this, and give to the wife the sole ownership and control of her property as if she were unmarried. In nearly all the states, however, the real estate of the wife cannot be sold without the joinder of her husband in the deed, both signing it. In California, Colorado, Illinois, Iowa, Kansas, Maine, Michigan, New York and Wisconsin the wife's deed is good without the husband's signature. All the rest of her property she is free to dispose of as if she were single. In all the states a wife may make a will. In some of these she cannot by any means by her will deprive her husband of the legal share in her property which he would take if she made no will; but in a few, as in Massachusetts, she may cut off her husband's legal claim by securing his written consent thereto. The earnings of the wife belong to her in all but nine states and territories. In [Page 50] these the wife's earnings are either absolutely the husband's, or "subject to his control." The wife's power to do business and make contracts varies greatly in the different states. In most of the states she may be a trader and bind herself by any contract made in her business. In fact, there seems to be but four states which absolutely prohibit the married woman from doing business on her own account. These are Wisconsin, Vermont, Rhode Island and Texas, and in the two last named the wife has scarcely any more power to make any kind of a binding contract than she had at common law. The power to sue and be sued in court is a necessary consequence of legal permission to make a contract; so in every state where a wife can independently of her husband make a valid contract, the law furnishes a remedy upon such contracts by a right of suit by or against the wife for a breach thereof. An interesting question is, How far can husbands and wives have direct business dealings with each other, so that they may sue each other for breach of an ordinary business contract?
Under the old English equity system, still in force in our country, also, if a wife loaned money to her husband upon his promise to repay, a court of equity would upon her petition compel him to refund the money. This was the only instance where a wife could sue her husband. A court of law would never allow husbands and wives to sue each other, or even to testify for or against each other. But our modern statutes are in many states sufficiently broad to allow husbands and wives to contract as freely with each other, and to sue and be sued, as if they were not married. This is especially true of the states west of the Mississippi, but a number of the older states, as New York, Pennsylvania, Mississippi and South Carolina, grant a like freedom.
Although the legal separate existence of the wife is now a fact in our country, the husband is still viewed as the head of the family, the natural guardian of the children, and he alone is liable for the support of the family. In some of our newer western states, all property acquired by either husband or wife during the marriage is the joint property of both, and in such a case the parents are jointly liable for the support of the family. The same is true in a few other states, which hold the parents jointly liable (while not recognizing any joint ownership of property) out of their own separate estates. In but six states of the Union is the mother's right to the guardianship of her children recognized by statute as equal to that of the father. These states are Oregon, Washington, Nebraska, Kansas, Iowa and New York.
In England the wife has full property rights and contract powers. Turning to the condition of the married woman under the codes of Continental Europe, we see that very much progress has been made. The doctrine of all those countries which have for a fundamental law the code Napoleon, is that of the marital supremacy of the husband and the complete subjection of the wife. It is the old idea of the frailty of the sex. It is true that the code recognizes a common ownership of property, but the complete management and control of the same is in the husband. If the dowry of the wife is imperiled, or the husband's affairs are in a serious condition, the wife may have her property set apart for her out of the common purse. The earnings of the wife belong to the husband, and he can pledge her personal effects for his debts. She may be a merchant, but she must first be authorized by her husband to do so, and even then her contracts are not as absolutely binding upon her as upon a man. She cannot be the guardian of her children. In Italy and Russia these features are somewhat modified, and the wife's property is, as with us, her sole and separate property. In Russia she maintains a completely separate legal existence, and can do business, sue and be sued, independently of her husband. The husband is obliged to support the family however, and the wife is not bound to do so. In Italy she needs merely a general power of attorney from her husband to enable her to act as a single woman in respect to her property, and not even this is necessary for her to be a merchant, nor in case of the minority, imprisonment or absence of the husband.
The condition of the widow is much changed in England and America. The ancient law of dower, that is, the life interest in one-third the husband's real estate, has been very generally abolished, and instead thereof the widow or the widower is entitled [Page 51] to an equal share in the estate of the deceased spouse, with full power to alter the same by will. This is the case in many American states, but still in many others the old common law estates of the widow's dower and the widower's courtesy are even now recognized and cannot be cut off by will. In a few states, too, the old rule of law survives which gives to the widower all his deceased wife's personal property, unless she has otherwise disposed of it by will. In every state the widow and children are entitled to support out of the husband's estate for a length of time varying from forty days in Massachusetts to a year in many western states, and during this time of support the widow may remain in the mansion house without paying rent, and even longer than this in some states. If the laws of the state recognize a homestead estate in the dwelling house of the family, this secures a home to the widow until she marries again, and to the family until the youngest child is twenty-one.
In Europe, exclusive of England and Italy, the widow has a very limited interest in the property of the husband. Under the French and Belgian codes she only receives the husband's property when all heirs to the twelfth degree have failed. In Germany she has a certain portion of his property set apart for her. In Italy the laws resemble those of the most advanced of our United States in giving to either spouse a child's share in the property of the other, and if no children or heirs survive the widow or widower has the whole estate. In England and America a widow, like a single woman, has the legal freedom of a man, and can be executrix of his will, administratrix of his estate, and guardian of her children. In Europe the widow has not full power to be guardian of her children; she must act under the advice of a special council appointed by the father in his will, if he has seen fit to do so, and the widow cannot discipline the children without the concurrence of the two nearest relatives on the father's side.
In most of our states a father may appoint, by will, a guardian for his minor children, but this guardian cannot act as such if considered by the probate court to be an unfit person.
In England a father may appoint by his will a guardian to act conjointly with the mother. The Asiatic and African colonies of European and English nations are slowly receiving the benefit of their laws, as civilization and Christianity advance.
There are still dark spots upon the earth's surface where the condition of woman is no better than it was four hundred years ago; where she is the slave, machine and plaything of the tyrant man, with no hope for the future, either in this life or a life to come, unless she holds the Mohammedan faith of future salvation by a union with man.
In summing up the results of our survey of woman's present legal condition, let us first observe that while theoretically the legal condition of woman is determined by her social condition, yet now, in fact, because of the survival of ancient laws, which are out of joint with woman's present social and intellectual emancipation, the reverse seems to be the case, and woman's social development is hampered by useless legal al restrictions. Take for example the law, still existing in some places, that a married woman shall not do business as a trader. This law is powerless to prevent a married woman from going into any kind of business if she chooses. Its only effect is to encourage her in dishonesty, by absolving her from any legal obligation to pay her just debts incurred in the business. Her employes and creditors are absolutely dependent upon her sense of honor, and cannot compel her in any way to pay them, if she refuses to do so.
This law may have been well enough in the days when no woman could attempt with social propriety to carry on business. It is now demoralizing to the woman it protects, and unjust to those who deal with her. The same is true of the laws excluding woman from public office, those rendering her incompetent to be a witness, to make a valid promissory note, and those denying to her the guardianship of her children. Women are nearly, if not quite, upon a recognized social equality with men in respect to freedom to labor and earn money, and in justice to men and women alike [Page 52] they should be made equally responsible before the law. It is as true as it was four hundred years ago that the condition of the women of a nation is the measure of its culture and civilization. Whether we look at our own land where women may vote, hold office, do business, enter upon any profession as the social equal of man, enjoying respectful consideration and chivalrous treatment; or whether we turn our eyes to our sisters in Eastern lands, shut up in the harems and zenanas of the rich, or toiling like slaves in the hovels of the poor, where woman's social condition is so low that to mention a man's wife in his presence is an insult to him, we shall still find it true that the condition of woman is a true gauge of a people's advancement in civilization. And, lastly, another great truth comes before us, that while intellectual culture and other systems of religion have tended to elevate the women of the higher classes, it is Christianity alone that elevates the women of the lower classes.
Investigate as you will the legal freedom of woman under the civilization of ancient Egypt, her intellectual culture in the palmiest days of Hinduism in India, the courtesy and respect shown to her in Japan, and whatever privileges are accorded to her in China; or turn to the honor paid her in the days of chivalry, and the half heathen civilization of the middle ages–you will find that the light shines only upon the woman of higher birth and gentle breeding, and that a heavy, dark cloud of ignorance, superstition, helplessness and hopelessness weighs down the women of the lower classes. But under our modern Christian civilization the working-woman is recognized as the peer before the law of her wealthier sister, with a legal right to equal advantages of education, to equal protection of person and property, and equal freedom to use her powers for the good of herself and mankind. And where, in fact, woman's equality with man is not yet fully recognized, it is because of the survival of ancient ideas, which are to disappear very speedily. Thus we are more and more closely approaching the time when woman shall be recognized as the full legal and social equal of man, and the ideal of human as of Divine law shall be attained when "there can be neither Jew nor Greek, there can be neither bond nor free, there can be no male or female–for ye are all one man in Christ Jesus."
Miss Mary Anne Greene was born at Warwick, R. I., in 1857. Her parents were John Waterman Aben Greene and Mary Frances (Low) Greene. She was educated for the legal profession at the Boston University Law School, receiving in 1888 the degree of Bachelor of Laws magna cum laude, and was admitted to the Suffolk Bar in Boston in September, 1888 where she practiced several years. Her principal literary works are articles upon legal subjects, for magazines and papers such as "The Chautauquan," "The American Law Review," etc. She is the regular lecturer on Business Law for Women, at Lasell Seminary, Auburndale, Mass., and was invited to address the Congress of Jurisprudence and Law Reform, of the World's Congress Auxiliary in August, 1893. She spoke upon "Married Woman's Property Acts in the United States and Needed Reforms Therein." An extremely fragile constitution obliged her to refrain from the active practice of her chosen profession, since her return to her native state, and hence she has never applied for admission to the Rhode Island bar. Miss Greene is a member of the Baptist Church. Her postoffice address is Providence, R. I.