Under Roman law before Christianity had gained control of the empire, a form of marriage existed known as “Usus,” which secured much freedom to wives. It was entered into without the terrifying religious ceremonies which made “Confarreatio,” practically indissoluble and the wife the veritable slave of the husband, who held power even over her life. Neither did it possess the civil formality of “Coemptio” under which the bride purchased entrance into the marriage duties and her husband’s household by the payment of three pieces of copper. “Coemptio” like “Confarreatio” gave the husband entire power over the person and property of the wife, while “Usus,” a form of simple consent left the wife practically free, keeping her own name and property. The real origin of this form of marriage is not fully known. Maine declared it to be as old as or even older than the Twelve Tables, under which woman possessed the right to repudiation in marriage. These laws, a compilation of still older ones, were afterwards incorporated into statutes by a woman of Athens, and were received by the Romans as extremely pure natural laws. Plato refers to an early Athens entirely ruled by women, its laws of pre-eminently just character. Tradition, whose basis is half forgotten, half remembered history, attributes the origin of Athens to the ancient Atlantians. The former existence of this submerged continent is daily becoming more fully recognized. The explorations of the “Challenger,” the “Dolphin,” the “Gazelle,” and the discoveries of Le Plongeon in Yucatan, at later date, confirming olden tradition. Maine thus ascribes a much older origin to “Usus” than Gibbon, who attributes it to the effect of the Punic triumphs. In reality “Usus” seems to have been a reminiscence of the Matriarchate, incorporated into the law of the Twelve Tables, and accepted by Rome as a more just form of the marriage relation for women than the religious “Confarraetio” or the civil form of “Coemptio.” But as Rome increased in wealth and luxurious modes of living, the influence of the Patriarchate correspondingly extended, the perception of justice at the same time diminishing.
Pomp and ceremony were associated with the marriage rite among patricians, while “Usus” was regarded as a plebeian form especially suited to the populace. But at later date when Rome rebelling against the tyranny of her rulers, tended towards a republican form of government, “Usus” again became general. It was impossible for patrician women not to see the greater freedom of plebeian wives under “Usus,” a form that while equally binding in the essentials of the union did not make the wife a marital slave, and “Usus” eventually became the basis of Roman legal conception of marriage, against which Christianity from the first waged a warfare of ever increasing fierceness, the very foundation of that religion being the subordination of woman in every relation of life. Under “Usus” the mere fact of two persons living together as husband and wife was regarded as a marriage. If during each year the wife remained away from the home for three days, she kept herself from under her husband’s power. She remained a part of her father’s family; her husband could not mortgage or in any way alienate her property. This was absolutely contrary to the laws of the christian form of marriage, under which the wife surrendered her person, her property, and her conscience, into the indisputable control of the husband. Under “Usus” a large proportion of Roman property fell into woman’s hands. She became the real estate holder of the Eternal City and its provinces, and in consequence was treated with great respect; the holding of property, especially of real estate conducing to that end. Under “Usus” the cruelties sanctioned by “Confarraetio” were rendered impossible; a wife could no longer be put to death, as was formerly the custom, for having tasted wine, a treacherous kiss from her husband upon his return home, betraying her, nor could her infant daughter be exposed or murdered at the pleasure of her husband who as inexorable master was frequently wont to refuse her pleadings for the life of her babe, calling her prayers naught but the scruples of a foolish woman.
Thus under “Usus” human life became more sacred, and woman endowed with a greater sense of personal security. It affected an entire change for the better, in the moral sentiments of the Roman empire. A complete revolution had thus passed over the constitution of the family. This must have been the period, says Maine, when a juriconsulist of the empire defined marriage as a life long fellowship of all divine and human rights.
Not alone Maine, but also Reeves, failed not to see that the disruption of the Roman Empire was very unfavorable to the personal and proprietory rights of woman. The practical effect of the common Roman form of marriage being the absolute legal independence of the wife, under which a large proportion of Roman property fell into the hands of women, the wife retaining her family name and family inheritance. All this was changed as soon as Christianity obtained the rule. Under Christian forms of marriage a wife was taken from her own family and transferred into that of her husband the same as a piece of property. She assumed his name, the same as the slave took that of the new master to whom he was transferred. That this idea of the wife as a slave did not belong alone to the earlier christian period, but is a part of christian doctrine of today is clearly shown by the continued custom of a woman’s dropping her family name upon marriage and assuming that of the husband-master.
For this middle Roman period carried its blessings to wives no longer than until the empire became christianized, when the tyranny of ecclesiastical marriage again fell to woman’s lot. While under the influence of “Usus,” Roman jurists of the middle period had declared the ownership of property by married women to be a principle of equity; this drew forth opposing legislation from the christians, and under christian law, the husband again became master of his wife’s person, and property, her children also falling under his entire control, the mother possessing no authority over them. From that period down to the twentieth century of christianity, under all changing civil laws, woman has ever felt the oppressions of ecclesiasticism in this relation.
Guizot strangely declares that woman’s present, and what he terms, superior, position in the household today, is due to feudalism. The isolation and strife under which the nobility lived during the feudal period, warring against each other when not engaged in foreign aggression, compelled to certain forms of social life within each castle, thus creating the modern family, or the family under its present social form. At that period the feudal wife with her retinue of household serfs and a vast number of her husband’s retainers in charge, held a more responsible position than that of woman under primitive christian habits of life. But the knights and lords of these feudal castles were lecherous robbers, rather than men of kindly regard for womankind. Their inclination was not towards justice or family life, but the despoiling of all beneath them, and even of their equals with whom they were not upon terms of amity. The ruins of such castles, like the nest of the eagle, perched upon some inaccessible rock, add today an element of picturesque beauty to the Rhine and other rivers of Europe, but owe their elevated and isolated positions of the evil character of their owners, the banditti of the middle ages. When not engaged with their king in warfare, they made the despoiling of serfs and the betrayal of wives and daughters their chief diversion, the robbery of burghers and travelers their business; churchmen equally with laymen living by the same means.
During the year 1268, Rudolph of Germany, destroyed sixty-six castles of these christian robber nobility in Thuringia alone, and hung twenty-nine of these “family builders” at one time in Erfurt. He compared Rome to the lion’s den in fable; the footsteps of many animals to be found going thither, but none coming back. At this period the soldiers of Christian Europe found pleasure in torture for its own sake, chiefly selecting women as their victims. In mediaeval England the condition of woman was one of deep degradation. Wives were bought and daughters sold for many hundred years after the introduction of Christianity. Although England was christianized in the fourth century, it was not until the tenth that the christian wife of a christian husband acquired the right of eating at table with him, nor until the same century did a daughter gain the right of rejecting the husband her father might have selected for her. While the sale of daughters was practiced in England for seven hundred years after the introduction of Christianity, we note that by the ancient law of India, a father was forbidden to sell his daughter in marriage, or receive the smallest present therefor. In mediaeval England the daughter was held as a portion of the father’s property to be sold to the highest bidder. The Mundium recognized the father’s right to sell his daughter to the husband he might select for her, usually the highest bidder in point of wealth or political influence. While Marquette pertained to kings, feudal lords, and men of no family relationship to the victim, Mundium inhered in the father himself. Through it he sacrificed his own daughter for money or power.
The practice of buying wives with cattle or money was regulated both in the laws of King Aethelbert and King Ine. In event of the woman who had been thus bought, becoming a widow, half of the sum paid for her seems to have been set aside for her support, provided her husband had not died without issue. The other half remained absolutely the property of her father, brother, or guardian by whom she had been sold. At a somewhat later period the church doctrine of celibacy influenced all ranks of men, while at the same time an unmarried woman because of her maidenhood was regarded as disreputable. A bachelor held honorable place, even though all celibate men were looked upon as libertines of especially impure life. Warnings against matrimony were the ordinary topics of conversation, while virtue in women was held so little sacred that no nearness of relationship was security for either a married or a single woman. Husbands trafficked in the honor of their wives, fathers sold their daughters, yet if under temptation, a woman fell, outside of such sale, her punishment was most severe. To a husband was accorded the power of life and death over his household, and either personally or by means of a hired assassin he not unfrequently assigned his wife to death or to a punishment more atrocious and barbarous. Disraeli says:
If in these ages of romance and romances the fair sex were scarcely approached without the devotion of idolatry, whenever “the course of true love” altered; when the frail spirit loved too late, and should not have loved, the punishment became more criminal than the crime, for there was more selfish revenge and terrific malignity than of justice when autocratical man became the executioner of his own decree.
The English christian husband of that age is paralleled by certain North American Indians of the present day. The horizon of woman’s life was bounded by the wishes of her father or husband. Single, she was regarded as a more or less valuable piece of property for whose sale the owner was entitled to make as good a bargain as possible. It was as a bride that the greatest sum was secured. Prominent among the laws of the first Christian king of Kent, were provisions for the transfer of money or cattle in exchange for the bride. The theory of woman’s ownership by man was everywhere carried into practice, and with great severity in case the wife proved unfaithful to her enforced vows. The facts that her consent to the marriage had not been asked, that mayhap the man she was forced to wed was utterly repugnant to her, that her affections might already have been bestowed, that she was transferred like a piece of goods with no voice upon the question, were not taken into consideration, and did the husband not choose to kill his derelict spouse, the question still remained one of property, and a new bride was demanded of the lover in place of the wife whose love he had gained.
A husband, attracted by a new face, more wealth, greater political influence, or for any reason desiring to be rid of his wife, was regarded as justifiable in hiring an assassin to strangle her, or if walking by a river-brink, of himself pushing her into the water where her cries for help were disregarded. Those in whose hearts pity rose, were prevented from giving aid, but such remarks as, “It is nothing, only a woman being drowned.” A horse or other domestic animal received more consideration than the women of a household. Notwithstanding this period, the early part of the fourteenth century, before the days of printing or rapid intercourse between nations, yet the evil fame of christendom reached distant lands. Its hypocrisy and baseness were known by those very Saracens from whom the Crusaders attempted to wrest the Holy Sepulchre. To Sir John Mandeville, the Sultan of Egypt mercilessly criticized the christianity of England and the christian method of serving God; the total disregard of chastity, the sale of daughters, sisters and wives. We cannot agree with Disraeli in his doubts if there was a single christian in all christendom at this period. To the contrary, it may be regarded as an epoch when the doctrines of christianity were most fully sustained, the church at that time carrying out the principles of both the Old and the New Testament regarding women. From Moses to Paul, the Bible everywhere speaks of her as a being made for man, secondary to man, and under his authority by direct command of the Almighty; the state, as coadjutor and servant of the church, basing her codes of law upon its teachings. Under these codes woman has not only been looked upon as naturally unchaste, but also regarded as a liar, the state demanding the testimony of two or three, and in some instances of seven women to invalidate that of one man; the man even then in extreme cases clearing himself by his single oath. Condemned as having brought evil into the world, woman’s every step was looked upon with suspicion, and the most brutal treatment as far short of her just deserts. To speak well of her was to cause misgivings of one’s self. The system of defamation inaugurated by the church in reference to women, was later recognized by the Jesuits as a most effective plan for the personal subjugation of men. Busenbaum, an influential writer of this order, directing:
Whenever you would ruin a person you must begin by spreading calumnies to defame them. Repetition and perseverance will at length give the consistency of probability, and the calumnies will stick to a distant day.
The astute Jesuits learned their lesson from church treatment of women. Its practical results were ever before their eyes in the contempt with which woman was regarded, and her own consequent loss of self respect. Under early and mediaeval christian law, as in most states today, the father alone had right to the disposal of his children. He possessed the sole power of giving away his daughter in marriage; if he died, this right devolved upon the eldest son; only in case there were no sons was the right of the mother in any way recognized. If neither father or brother were living, the mother gave her daughter away in marriage, and this was the only instance in which one woman possessed control over another woman, the law allowing the mother no voice in the marriage of her daughter unless she was a widow without sons. So greatly enslaved were daughters, that non-consent of the victim in no way impaired the validity of the marriage. A girl was simply a piece of family property to be disposed of as the family thought best. Although wives were simply the slaves of husbands, yet the condition of an unmarried woman was even more deplorable. Deprived of the society of young persons of her own sex, not allowed speech with any man outside of her own family, she was fortunate if she escaped personal ill-treatment in her father’s house. Not permitted to sit in the presence of either her father or her mother, continually found fault with, the laws constraining her to marry while giving her no preference as to a husband, and marriage still more fully taking from her the control of her own person, yet it was anxiously looked forward to as at least a change of masters, and the constant hope that in the husband she might find a lover who for dear love’s sake would treat her with common humanity.
Such was the condition of women during eighteen hundred years of christianity. Legislated for as slaves, imprisoned for crimes that if committed by a man were only punished by branding the hand; buried alive for other crimes that committed by men were atoned for by the payment of a fine; denied a share in the government of the family or the church, their very sex deemed a curse, the twentieth century is now about to open showing no truly enlightened nation upon the face of the earth. From the barbarism of inhumanity the world is slowly awakening to the fact that every human being stands upon the plane of equal natural rights. The Church has not taught the world this great truth, the State has not conceded it; its acknowledgment thus far, has been due to the teachings of individual men and women, that self-constituted authority over others a crime against humanity. Under christian teaching regarding woman, the daughter was looked upon as a more remote relative and heir than the son and this upon the ground of her inferiority. Blackstone, although admitting that such views did not pertain in Rome, yet speaks of males as “the worthier of blood.” Such views were not held by pre-christian Britain. Under common law, before that country accepted christianity, property was equally divided between sisters, and only by special custom, between brothers. But as early as Henry II it was the general rule that a woman could not share an inheritance with a man. An exception sometimes existed in a particular city where such custom had long prevailed.
Until quite recently, English women have not been permitted to express an opinion upon political questions, although the Primrose League and other similar organizations have effected a great change within a few years. Yet it is but little more than two hundred years, in 1664, at Henley-upon-Thames, a woman having spoken against the taxation imposed by Parliament, was condemned for this freedom of political criticism, to have her tongue nailed to the body of a tree at the highway side upon a market day, and a paper fastened to her back detailing the heinousness of her offense. It was thus the state deterred similar politically-minded women from the expression of their views, and in line with the church used its most stringent measures to retain woman in the “sphere” to which both church and state assigned her. Many savage tribes of Africa exhibit the same grade of civilization that was extant in christian England from the fourth to the eighteenth centuries.
A father will sell his daughter among Unyamwazi, Africa, for one up to ten cows. A Lomali asks of a poor wooer from ten to twenty horses, of a wealthy one from 100 upward, together with fifty camels and 300 sheep. On the other hand, in Uganda, four oxen are sufficient to buy the most perfectly formed village belle, provided six needles and a box of cartridges are thrown in.
The sale is the same, the payment alone of different character. An African girl in case of a wealthy wooer, bringing even more than was ordinarily received during the middle ages for an English christian maiden. The patriarchal spirit wherever cropping out exhibiting the same characteristics, whether among Jews, Christians, or African savages. This is the more notable as among civilized or savage races yet governed by the principles of the Matriarchate, the position of woman is very high. In Samoa, no woman is compelled to work, all labor of whatever character being performed by the men. The celebrated traveler, Prof. Carl Lumholz, in his work “Among the Cannibals,” makes some interesting statements in regard to the course adopted by the natives of Georgia River, Australia, to save women from giving birth to undesired children, and to prevent the needless suffering and infant mortality so common in christian lands.
Among the methods adopted in christian countries for a continuance of the crimes common in the marriage relation, have been more or less stringent laws against divorce, ever falling with heaviest force upon her whom christian marriage laws have made a slave. The “Christian Union” declares as a significant act of evil import, that “in Wyoming, where the power of woman in affairs of government is greatest, one divorce takes place in every six marriages, the proportion being greater than in any other state.” But if this assertion of the “Christian Union” is true, it is proof that a share in making the laws which govern her is wisely used by the women of that state; and it marks a new era in civilization, when woman holding political power in her own hands, refuses longer to degrade herself by living in a relation that has lost the binding power of love. The laws of church and of state during the christian ages originated with man, and it is a promising sign of woman’s growth in self-reliance, independent thought, and purity of character, that she thus protests against the bondage of a relation which virtually holds the wife as slave of the husband; for despite the changes of the last four and a half decades, we still find the general tone of legislation in line with the church teaching of woman’s created inferiority to man. We still find belief in the wife’s duty of obedience to the husband; we still discover the church, the state, the world, all regarding the exercise of her own judgment even upon the questions most closely related to herself as woman’s greatest sin. As free as woman is called today, she has not yet as daughter secured perfect liberty of choice in marriage, the power of the family too often compelling her into a hated relation. Money still leads parents to prefer one suitor above another, even in the United States; while in many European countries, marriages are arranged by friends, or through a broker, entirely without the girl’s consent, who is frequently taken from a convent or school to be thus sold to some wealthy and perhaps octogenarian wooer, who covets the youth or beauty of the victim.
The burning of twenty missionaries in a portion of savage Africa, a few years since, filled the civilized world with horror. But for several hundred years after the introduction of christianity into Great Britain, the penalty for simple theft by a woman slave was burning alive, and all the other women slaves were compelled to assist her auto-de-fe. Upon such an occasion mentioned by Pike, eighty other women each brought a log of wood for the burning. By the old Roman Code, burning alive as a punishment was forbidden because of its barbarity, but christianity reintroduced it, and for long centuries after the destruction of the Roman Empire, that other land aspiring to control of the sea, which proudly boasts that the sun never sets on her possessions, kept it in her criminal code for the punishment of helpless women. So rigorous was woman’s slavery that the friendships of women with each other, or with men, were strictly prohibited; yet the deep affection of one man for another to whom he consecrated his life and fortune, and of whom he spoke with that deep tenderness, was highly commended. The despotic, irresponsible power of husbands in christian England at this period is shown by the diverse manner in which the murder of a wife by a husband, or a husband by a wife, was regarded. For husband to murder a wife either by his own hands or those of a hired assassin, was of frequent occurrence, but as she was his slave over whom he had power of life and death, this was looked upon as a trivial affair. But under the laws of both church and state, the murder of a husband by a wife was regarded as petty treason, to be punished with the utmost severity, burning alive being a not uncommon form.
Under christian legislation not alone the wife’s person but her property so fully became her husband’s that her use of any portion of it thereafter without his consent was regarded as theft; and such is still the law in the majority of christian countries; it is less than sixty years since a change in this respect took place in any part of the christian world. While a wife may steal from her husband it is still the law that a husband cannot steal from his wife. If she allows him to transact business for her, or in any way obtain possession of her property even for a moment, he has acquired its legal ownership. Since the passage of the Married Woman’s Property Act, the courts of England have decided that a husband cannot steal from his wife while she is living with him. A case before Baron Huddleston, 1888, commented upon by the Pall Mall Gazette, under head of “Stealing from a Wife,” called attention to the superior position of the mistress in respect to property rights over that of the wife.
Can a husband rob his wife? Baron Huddleston yesterday answered this by saying he can not rob her at all under the common law, which regards all the wife’s property as the husband’s; and, theft is only robbery under the Married Women’s Property Act, when the wife is living apart from her husband, or when he is preparing to desert her. It is really quite amazing how many advantages a mistress has over a wife in all matters relating to property and to person. It almost seems as if the object of the law was to inflict such disabilities on wives in order to induce the fair sex to prefer concubinage to matrimony.
The separate moral codes for man and woman in all christian lands, show their evil aspect in many ways. Adultery, in all christian countries is held to be less sinful for men than for women. In England, while the husband can easily obtain a divorce from the wife upon the ground of adultery, it is almost impossible for the wife to obtain a divorce from the husband upon the same ground. Nothing short of the husband’s bringing another woman into the house to sustain wifely relations to him, at all justifies her in proceedings for a separation; and even then, the husband retains a right to all the wife’s property of which he was in possession, or which may have fallen into his hands. Less than a dozen years since, an English husband willed his wife’s property to his mistress and her children of whom he was the father. The wife, (in what is known as “The Birchall Case”), contested the will, but the courts not only decided in its favor, but added insult to that legal robbery, by telling the wife that a part of her money was enough for her, and that she ought to be willing that her husband’s mistress and illegitimate children should share it with her.
Woman’s disobedience to man is regarded by both the church and the state as disobedience to God. As late as the first half of the present century it was held as constructive treason, in England, punishable by the state, for a wife to refuse obedience to her husband’s commands or in any way to question his authority. She was required to be under submission to him as the direct representative of the deity. For the woman who protested against this annihilation of her individuality, a flogging was the customary form of punishment and so common was the use of the whip that its size was regulated by law. The punishment of petit treason was more severe for woman than for man because her crime was regarded as of a more heinous character. She was dragged on the ground or pavement to the place of execution then burned alive; a man was drawn and hanged. It was long after the conquest before even a man convicted of treason secured the right of being carried to execution on a sledge or hurdle. Blackstone comments upon the extreme torment of being dragged on the ground or pavement. In case of a woman the wounds and lacerations thus received must have greatly added to her intensity of suffering, yet so blinded was he through those laws, that he calls her punishment of burning, a tribute to the “decency due to the sex.”
During a portion of the christian era the wife has not been looked upon as related to her husband. The residuum of this disbelief in the relationship of husband and wife, occasionally shows itself to the present day. She was his slave under both religious and civil law, holding the same relations to him as the subject did to the king, and liable to punishments similar to those inflicted upon unruly slaves, or disloyal subjects. Rebellion against the husband’s authority was treason punishable by law, similarly as treason to the king. The difference was but in name. Down to the end of the eighteenth century in England, the wife who had murdered her husband was burned alive; if the husband murdered his wife he suffered simple decapitation, “the same as if he had murdered any other stranger.” For the wife’s crime of petit treason the penalty was that of the slave who had killed her master. It is scarcely a hundred years since the punishment of burning the wife alive for the murder of her husband, or the female slave for the murder of her master, as petit treason, passed out of the English penal code; the last instance occurring in 1784, eight years after our declaration of independence. This same code was operative in the colonies; the last woman thus punished in this country, being a slave in 1755, who had murdered her master, America having twenty-nine years precedence in the abolition of this penalty.
A cablegram from Europe, September 1892, proves the continued existence in this last decade of the nineteenth century of the crime of petit treason, and also the barbarous punishment still inflicted under christian law, upon the wife who murders her husband. This case, occurring in Finland, was carried up to the Court of Appeals, which not only affirmed the decision of the lower court but decreed additional punishment. Because the wife had also forged her husband’s name for small sums of money, having under law, first been robbed by him of her earnings, the judgment of having her right hand cut off, was added to the original sentence. She was then decapitated, her body fastened to a stake, covered with inflammable material and burned to ashes. Although this wife was not burned alive, the barbarity of her punishment was most atrocious, and took place under the christian laws of the church and the state, in a Protestant country in the “year of our Lord,” 1892. That the punishment was infinitely more severe than would have been inflicted upon the husband in case he had murdered his wife, was due to christian teaching of woman’s inferiority and subordination to man; thus making the wife’s crime that of petit treason, under law only a trifle less heinous than murdering a king, or attempting destruction of the government. Had the husband murdered the wife it would have been, according to legal prevision, the same as if he had killed “any other stranger.” The marriage ceremony robbed her of her property and earnings, but in equity the money she was accused of stealing from him belonged to her. Under the laws of most christian states, a woman is robbed of herself and all of her possessions by the simple fact of her marriage. Under christian laws the services of the wife in the marital relation are all due to the husband, her earnings all belong to him; she is a slave owning nothing and with no rights in the property her husband calls his own. This wife’s crime was provoked by pre-existing criminal legislation of the christian church and state. Possessing no legal right to the control of her own person, property or conscience, the wife was held to have sinned against a divinely appointed master to whom she owed more than human allegiance: she was a criminal so great that the punishment of severing her hand and head were deemed entirely inadequate, and her body fastened to a stake was covered with inflammable material and burned to ashes.
While the external government of Finland, as declarations of war, peace, treaties, etc., is under control of the Czar, or Grand Duke, yet in the internal administration of affairs this country is an Independent State, under a Constitution dating 1772, and confirmed by three successive czars. It became christianized in the twelfth century but is not under the Greek church; its established religion is Evangelical and Lutheran, under control of the archbishop of Abo, and the bishops of Bogia and Knopo; an ecclesiastical assembly meeting every ten years; and the Diet, composed of representatives of the clergy, nobility, citizens and peasants, every five years. Without consent of these bodies no laws are enacted or repealed; but woman possesses no representation either in ecclesiastical or civil affairs.
The old law of marriage instituted by the church, which held the wife as belonging body and soul to the husband who not alone possessed control over her actions but decided her religion, is still extant. In but few countries do we see a tendency towards its abolition, even those that have somewhat favorably legislated upon the question, still retaining the general principle of a wife’s subserviency to her husband. A few years since an English lady desirous of uniting with the Catholic church was refused consent by her husband, “a staunch churchman.” Unknown to him she was received into that body, which proved occasion of an animated controversy between the husband and the late Cardinal Manning, the former basing his opposition and his letter of remonstrance to the cardinal upon the ground of the admitted legal right of a husband, under English law, to ordain the form of his wife’s religion. Nor do we find material difference in the United States. In Virginia, in the winter of 1891, a wife, despite the opposition of her husband caused her infant to be baptized by an Episcopal clergyman into that church, the husband openly expressing his disapproval while the ceremony was in progress, and afterwards suing the clergyman for an interference with his vested rights over wife and child. This supreme authority of the husband in christian countries is shown in many strange ways. Among the Hindoos the naming of the child belongs to the mother. If the father expresses desire for a different name, each one is written upon a paper over which lighted lamps are set, the one burning the longest deciding the choice of name. But in Rhode Island as late as 1892, a controversy between the parents as to the naming of a child was settled by law. The father and mother each filed a certificate with the registrar; the father employing a lawyer who to the satisfaction of the city solicitor proved his client’s prior right, and an order was issued to the registrar in favor of the father’s choice of name. The claim of the christian husband in each of these instances was that of his supreme and prior right, on the church theory incorporated into law, that both wife and child belong to the husband. The celebrated Agar-Ellis case in England during the latter part of the seventies, was brought by a wife to compel the keeping by a husband of his pledges in regard to the religious education of his children. The decision was against the wife, upon the general ground that a wife had no rights in law as against a husband. A man’s pledged word broken at the gaming table renders him infamous and subjects him to dishonor through life. But a husband’s pledged word broken to his wife, under ruling of the highest court and the profoundest legal talent of England, the Court of Appeals, and the Vice-Chancellor, is just, implying no dishonor, but rather entitling him to respect as a man who in a befitting manner has maintained his marital rights and authority. The judge instructed the wife that she had no right to teach her children what her husband did not believe, even though she herself most fully believed what she taught. He impressed upon her that she was not rearing her children for herself, but as her husband’s property, over which she possessed no control only in so far as the husband made her his agent. In affirming the order of the Vice-Chancellor, the court of appeals declared that the father had the legal right to bring up the children in his own faith, and in pledging his word to the contrary he had in no way forfeited or abandoned his authority. This decision of the English Court of Appeals, is in accord with the laws of the United States. The Albany N.Y. Law Journal in commenting upon this case under the head of “Curious Question,” declared the decision to be in harmony with the general rule as to religious education; the child is to be educated in the religion of the father.
The English Women’s Suffrage Journal in its comments, declared English law to be based upon the Koran, quoting, in proof, from a writer in the “Contemporary Review”:
The East has long been noted for the subordination of its women, and this subjection is not only preached by Mussulmans and Buddhists but even by Christian churches. Woman is not regarded as a person but as a field, cultivable or not, as the possessor desires. As a field can neither have faith, nor intellect, nor a will of its own, it would be absurd for a man to occupy himself about what a woman believes, thinks, or wishes. She is absolutely nothing but her husband’s domain. He cultivates it and reaps the harvest, for the harvest belongs to the proprietor.
According to the Women’s Suffrage Journal, this condition accurately depicted the spirit of the injunction laid upon Mrs. Agar-Ellis, by Lord Justice James.
To the wife and mother he declared that she had no right to teach her children what she believed, but must, to the contrary, teach them what her husband believed, whether she believed it or not; the law not concerning itself with what a woman believes, or wishes, as she is in law absolutely nothing but her husband’s domain.
The mistake of the Journal lies in ascribing this law to the teachings of the Koran, instead of the teachings of the Bible, which in general tone, and through particular instruction, places woman upon the same level as a man’s “flocks and herds, oxen and cattle.” We do not find the personal rights of women in the United States differing from those of the women of England. A famous suit was tried in Ohio, 1879, known as the “Lucy Walker Case,” a former wife suing the present wife for alienating her husband’s affections. Great attention was called to this suit from the high position of the parties; Judge Seney, former husband of one, and present husband of the other wife, being widely known as author of a “Civil Code,” bearing his name. The suit gained still greater notoriety from the principle enunciated in his decision rendered against the plaintiff, by Judge Dodge, before whom the case came to trial; he dismissed it upon the ground that a wife had no rights as against her husband. All testimony upon part of the injured first wife was excluded upon the same ground. He decided:
First: That the husband has a property interest in his wife which the wife does not possess in the husband.
Second: That the law protects him in this right of property in her.
Third: Upon the ground that he holds her and dares the world to meddle with him in the holding.
Fourth: But on the contrary the wife looks alone to the husband, the law compelling her to do so.
Thus less than fifteen years since the legal decision was rendered in the United States, that a wife is a husband’s property; that the husband has a pecuniary interest in the wife, the law protecting his right of property in her, while the wife possesses no reciprocal right of property in the husband.
The Toledo Bee gave the full text of Judge Dodge’s decision:
The question submitted in this: Has a wife such a property in her husband, has she such a legal pecuniary interest in him, that she can bring an action at law against one who injures him, against one who imprisons him, and, finally, can a wife recover damages at law against a woman who has carnal intercourse with her husband without her consent? It will be at once admitted that the question is a novel one. Our courts adjudicate primarily upon property interests. A husband has a pecuniary, a property interest in his wife. The law protects this right of property.
A father can recover damages against a man who seduces his daughter, but a mother can not recover for the seduction of a daughter. Why not? Is she not as dear to the mother as the father? Nay, dearer, by as much as a mother’s love exceeds a father’s. But she has not property in her, is not entitled to her wages; neither is a mother bound to support her children. The father is the head of the family, not the mother. He, by virtue of his headship, is legally entitled to the services of his family. The husband is head of the wife; not the wife of the husband.
But can a husband sue his wife if she refuses to support him out of her property, to give him her earnings, or keep her marriage contract? Not at all. Can a father sue his minor child that refuses him obedience and service? Not at all. And why is this? For the same reason that he cannot sue his flocks or his herds, his oxen and his cattle—they are his. His to command. He is responsible for and to them. He cannot sue his own. He can sue any one who takes them away; any one who keeps or harbors them; any one who injures them; because they are his own. But the wife does not own her husband; the child does not own the father, and, therefore, I hold that the child cannot sue for an injury to the father, nor the wife for an injury to the husband. There is in her no property right upon which to found the action. My conviction is that the wife looks to her husband alone for the fulfillment of his marriage vows. If he refuses her the support, protection and love which he pledged her, she applies to a court to enforce the claim against him. Every dollar he has, every penny of his earnings, all his arm can gain or his intellect can attain are subject to her right. But she looks to her husband alone, the law compels her to do so. The husband enforces his claim to his wife by striking down every one who interferes with his right to her. He holds her and dares the world to meddle with her. The law protects him in holding. The law gives courage to his heart, strength to his arm in defending his position. But the wife looks to the husband. She relies upon his pledge and his promise, which the law will enforce, and she looks to that alone. The law does not permit her to go forth to smite the seducer of her husband, nor the man or woman who entices him away.
But as showing the rapid growth of public opinion in favor of the wife’s equality of right with the husband, through the persistent rebellion of woman against established laws and usages of Church and States, thus forcing an advancing civilization upon the world, was a decision rendered 1891, twelve years later, in the state of Indiana. The case was that of Leah Haynes, plaintiff, against Flora Knowles, defendant; a suit similar in character to the “Lucy Walker Case.” Judge Elliot in Supreme Court of that State, on appeal from the decision of the Circuit Court of Dearborn County, reversed the finding of the lower court, deciding in favor of the right of a wife to sue for the alienation of her husband’s affections. This decision, so contrary to common law, and to ordinary christian legislation for woman, is proof of an advancing civilization which does not look to the church for approval. Court decisions of this character establishing a precedent, are of far greater value in demonstrating the growth of a purer public sentiment, than are simple legislative victories upon school or municipal questions. They speak even more clearly than do the host of newly opened industries, freer opportunities for education, married woman’s property laws and similar legislation, of a growing recognition of woman’s personal rights, and of a civilization founded upon the common rights of humanity, and no longer upon church authority.
The general spirit and letter of the christian laws of husband and wife was most fully carried out by a husband of the state of Missouri a few years since. Mrs. Olive Davenport of St. Louis, suing for a divorce, upon the ground that her husband required her to obey him in all things. “Davenport’s rules for his Wife” were offered in evidence.
Rules for the Government of my Wife’s Conduct while away from me, June 1, 1879:
First: Not to speak to any person or allow any person to speak to her on the car except the conductor and porter in the discharge of their duty.
Second: Go directly from depot in New York, to Mrs. Haight’s house, and occupy room with mother and sleep only in room.
Third: Speak kindly and politely to Mrs. Haight, but not in a friendly or familiar manner. Say to her you do not wish to meet any one in the house. Ask for a table to yourself, with only your family or go somewhere else.
Fourth: Never sing in the parlor or sing in your room when any person except your immediate family be present.
Fifth: Never leave mother day or night for five minutes at a time for any reason whatsoever. Do not walk, ride, or go anywhere without her, even with your own brother.
Sixth: Do not call on any person whatsoever, and allow no one who may call on you to see you unless they be your brothers or their wives. Do not speak to any person you may meet whom you have not known in the past.
Seventh: Write every night to me a full, truthful and exact account of everything you have done, where you have been, to whom you have spoken, and whom you have seen. This must be done every night.
Let nothing but sickness or death prevent your keeping these rules, for I will excuse no breach on any account.
Do not leave New York even for one hour without my permission, except to Brooklyn or Harlem.
If my wife cannot keep these rules in word and spirit, I desire never to see her again.
Benjamin R. Davenport.
The divorce suit showed the married pair to have been separated once before, Mrs. Davenport, unable to bear her husband’s tyranny, returning to her mother’s house. At that time her husband required her to eat only what he directed, and to wear only those clothes he bade her wear, selecting even the color of her ribbons. The only fault he had to find with her was that she “talked back,” which has always been deemed an unpardonable crime in woman; one for which the Ducking Stool and Scold’s Bridle were invented. After she left him, Mr. Davenport wrote affectionate letters to his wife, calling her the sweetest and best of women, imploring her to return. She relented and lived with him once more, but her husband again put his rules in force. She then sued for a divorce, which the court granted. Mr. Davenport’s treatment of his wife is by no means exceptional. The following excerpt is from a letter in the Terra Haute, Ind., Mail, 1884.
An individual who considers himself a representative man in the city, and perhaps he is, said in the presence of several persons. “I went home at three o’clock this morning and found my wife sitting up. She burst into tears and asked me where I had been and why I treated her in that manner? I just told her if she said another word I would leave the house; that as long as she had a comfortable home where she could spend her evenings it was none of her business where I spent mine. Now, if I did not provide for my family, it would be a different thing but so long as my wife is well provided for, she has no right to complain and I don’t propose to allow it.” These are the man’s own words, and there are a great many men who hold the same opinions. If their wives protest because they drink, gamble and spend their nights away, they say, “You have a good home and enough to eat and wear; what more do you want?”
A lady of Richmond, Va., anxious to know from a legal source just what her rights as a wife were, consulted a lawyer of that city.
“Well, Madam,” he replied, head thrown back, thumbs in armholes: “Well, Madam, you have a right to comfortable food; a fire to keep you warm, and two calico dresses a year. These are your legal rights; all beyond these are the gifts of your husband. Luxuries of food and clothing, journies and books, these are not yours by law; it remains with your husband to decide whether he will furnish them to you or not.”
And this is Christian civilization for woman at the close of the nineteenth century of this era.
Although married women of the State of New York have enjoyed certain property rights since 1848, subsequent legislation in various ways increasing that power, it was not until 1882, that the Court of Appeals decided them to be the rightful owners of articles of personal adornment and convenience coming from their husbands, possessing power to bequeath them at death to their heirs. The same year the Supreme Court of that state decided that a wife may sue her husband for damages for assault and battery. The influence of these decisions in recognizing woman’s rights of person, especially that of the Supreme Court in deciding the right of the wife to punish the husband through the courts for brutal treatment, can scarcely be overestimated. It opened a new era for woman:
First: A recognition of the wife’s personality.
Second: Holding the husband responsible for his treatment of the wife.
Third: An acknowledgement of the wife’s right to protection as against the husband. It destroyed, in this state the old femme covert teaching of Christianity, and recognized a wife as possessing the common rights of a human being.
The United States, making pretense of the greatest governmental freedom in the world, and in reality according it to men of every color and degree of intelligence or property, still denies such liberty to woman. In many of the states, the old restrictions of modern common law still prevail. There are states where the property of the wife upon marriage falls into the control of the husband, to do with as he alone pleases, the wife not retaining the right to its use or its management in any way whatsoever. There are other states where the separate property of the husband and the wife is made communal, but in those states the control of this communal property is in the husband’s hands. In most states the old restrictions still exist, and a woman cannot make a will; cannot act as executrix or administratrix; can neither sue nor be sued. In the largest proportion of the states in which the separate property of the wife is recognized, the husband still has the advantage in heirship. In less than one-fifth of the states has the wife the same control over the children of the marriage as the husband. In the remaining four-fifths and over, the father is assumed to be sole owner of the children, who can be bound out, willed or given away without the consent or even knowledge of the mother. Can barbarism go farther than this?
So that even in this year 1892, within eight years of the Twentieth Christian century, we find the largest proportion of the United States still giving to the husband custody of the wife’s person; the exclusive control of the children of the marriage; of the wife’s personal and real estate; the absolute right to her labor and all products of her industry. In no state does the law recognize the legal existence of the wife, unless she relinquishes her own name, upon marriage, taking that of her husband, thus sinking her identity in his; the old femme covert,—or covered woman,—idea of the law books under state and church. That woman is an individual with the right to her own separate existence, has not yet permeated the thought of church, state or society. A letter to the American press from Rev. Robert Laird Collyer, while re-visiting his native country a few years since, gives the unbiased views of a native-born English clergyman, as to woman’s position in that land of christian civilization, the husband being represented as king of the household, the wife as his dutiful subject. The letter was headed:
MARRIAGE CUSTOMS IN ENGLAND
The Man King of the House, the Woman His Dutiful Subject.
The man is the king of the English household, and the wife is only the prime minister. There is no confusion or overlapping of authority. The will of the husband is law. He has not only the place of honor but of ease. The arrangements of the house, the company entertained, and the service employed, all have respect to his wishes and to his convenience. The wife conducts the affairs of state for the king. She has her household and, more than likely, her personal allowance, and she renders a strict account of stewardship either weekly or monthly.
