CHAPTER XI

THE LEGAL AND POLITICAL STATUS OF WOMEN

Position of women under the English common law, 448. Woman suffrage, 452. Mill's classic argument for woman suffrage, 452. The modern economic argument for equal suffrage, 466. — A statement of the case against equal

suffrage, 478

[Blackstone published his Commentaries in 1765. The legal status of women in England remained substantially as he stated it until a beginning of a slow reform was made by the first Married Women's Property Act in 1870-followed by further reforms in 1874, 1882, 1893, and 1907. In the United States the first significant reform of the legal disabilities of married women was made in New York in 1848, but no lasting reform was made in that state until 1860, and the movement to grant married women the right of contract, to own and control property, etc., did not gain headway in the country at large until after the Civil War. The brutal injustices to which women were subjected under the old law, and which they still may be called upon to endure in some belated States,1 was a powerful stimulus to the early women's rights campaigns, although on the surface the movement in this country started as a by-product of the antislavery agitation in the early 40's. That the early ideals of feminism. were not concerned, any more than those of to-day, merely with political rights is clear. Women have sought the franchise first as a right—a means of protection — and latterly as a means to larger social service—whether advisedly or not must be left to the student of the question. While the suffrage movement, from the granting of the right to vote for poor-law guardians in

1 In 1911 there were, for instance, still seven states in which the father could by will prevent the mother from being the guardian of her own children after his death. There were twenty-four states in which the mother during the lifetime of the father had no legal right whatever in the control of the children, that is, states in which the father was the sole guardian.

England, in 1834, and for school trustees in Kentucky, in 1838, was of slow growth, it has now, for good or ill, become a powerful world-wide movement. The change in the character of the chief line of argument for equal suffrage is shown in the two selections here given, the one from Mill, the other from a recent campaign pamphlet, and the arguments which in one shape or another have been urged against it from the first are shown in their most unmistakable form in the selection from the historian Parkman.1]

44. THE POSITION OF WOMEN UNDER THE COMMON LAW 2

By marriage the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, fæmina viro co-operta; is said to be covert baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend most of the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason a man cannot grant anything to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence and to covenant with her would be only to covenant with himself and therefore it is also generally true that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman may indeed be

1 Full suffrage has been granted to women on equal terms with men in the following states and countries: Wyoming, 1869; Colorado, 1893; New Zealand, 1893; South Australia, 1895; Utah, 1896; Idaho, 1896; West Australia, 1900; The Australian Federation, 1902; New South Wales, 1902; Tasmania, 1904; Queensland, 1905; Finland, 1906; Victoria, 1908; Washington, 1910; California, 1911; Oregon, 1912; Kansas, 1912; Arizona, 1912; Alaska, 1913; Norway, 1913; Montana, 1914; Nevada, 1914; Manitoba, 1916; Alberta, 1916.

2 By William Blackstone. From Commentaries on the Laws of England, 15th edition, Vol. I, pp. 441-445. London, 1809. First published in 1765.

attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath anything to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them; but for anything besides necessaries he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person who furnishes them is sufficiently apprised of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own: neither can she be sued, without making the husband a defendant. There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished, for then he is dead in law; and the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defense at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other: partly because it is impossible their testimony should be indifferent; but principally because of the union of person and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, "nemo in propria causa testis esse debet;" and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare." But, where the offense is directly against the person of the wife, this rule has been usually dispensed with: and therefore, by statute 3 Hen. VII. c. 2, in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also

there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact.

In the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries and therefore in our ecclesiastical courts a woman may sue and be sued without her husband.

But, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void; except it be a fine or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion. And in some felonies, and other inferior crimes, committed by her, through restraint of her husband, the law excuses her: but this extends not to treason or murder.

The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her behavior, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet. The civil law gave the husband the same, or a larger, authority over his wife: allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem; for others, only modicum castigationem adhibere. But, with us in the politer reign of Charles the Second, this power of coercion began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who

were always fond of the old common law, still claim and exert their ancient privilege; and the courts of law still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior.

These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England.

[How great a "favorite" the female sex was of the law of England is brought out by Edward Christian, the editor of this edition of the Commentaries, in a footnote :]

Nothing, I apprehend, would more conciliate the good will of the student in favor of the laws of England, than the persuasion that they had shown a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not fully deserve. In addition to what has been observed in this chapter, by the learned Commentator, I shall here state some of the principal differences in the English law, respecting the two sexes; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is supported by truth. Husband and wife, in the language of the law, are styled baron and feme: the word baron, or lord, attributes to the husband not a very courteous superiority. But we might be inclined to think this merely an unmeaning technical phrase, if we did not recollect, that if the baron kills his feme, it is the same as if he had killed a stranger or any other person; but if the feme kills her baron, it is regarded by the laws a much more atrocious crime; as she not only breaks through the restraints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason (though in petit treason the punishment of men was only to be drawn and hanged) till the 30 Geo. III. c. 48 the sentence of women was to be drawn and burnt alive. By the common law all women were denied the benefit of clergy; and till the 3 and 4 W. & M. c. 9 they received the sentence of death, and might have been executed, for the first offense in simple larceny, bigamy, manslaughter, etc., however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man who could read was for the same crime subject only to burning in the hand and a few months imprisonment.

These are the principal distinctions in criminal matters. Now let us see how the account stands with regard to civil rights.