Woman, Church & State

“A Law to Punish Babbling Women” enacted by the General Assembly, of Virginia, 1662.

Whereas, many babbling women slander and scandalize their neighbors, for which their poor husbands are often involved in chargable and vexatious suits and cost in great damages. Be it therefore enacted by the authority aforesaid, that in actions of slander caused by the wife, after judgment passed for damages, the wife shall be punished by ducking; and if the slander be so enormous as to be judged at greater damages than 500 lbs. of tobacco, then the wife to suffer ducking for each 500 pounds of tobacco adjudged against the husband, if he refuses to pay the tobacco.

As this was the state in which wives were bought in exchange for tobacco, it is not surprising to find the penalty of her free speech to be paid in tobacco, the wife to suffer ducking for each 500 pounds penalty in excess of the first. Massachusetts was not long in following the example of Virginia, and in 1672 ten years later, passed A Law for the Punishment of Scolds in Massachusetts.

Whereas, there is no express punishment (by law hitherto established) affixed to the evil practice of sundry persons by exhorbitancy of tongue in reviling and scolding; it is therefore ordered that all such persons convicted before any court or magistrate that hath proper cognizance of the case, shall be gagged, set in a ducking stool and dipped over head and ears three times, in some convenient place of fresh or salt water, as the court or magistrate shall judge meet.460

Nor must we believe that the punishment of women for use of the tongue, is of past ages. Even in the United States, women are to this day sometimes arraigned for free speaking. Laws to punish “babbling women” enacted in colonial days are still in force. It is but a few years since a woman of St. Louis was arrested and brought before a magistrate as a common scold.461 In the State of New Jersey, 1884, a woman was brought before the courts, convicted, on the old grounds of being a “common scold” and fined $25, and costs. Death not infrequently accompanied the use of the ducking stool, the poor gagged victim, her hands securely fastened, being utterly unable to help herself. But we do not learn that either the magistrate or the husband was held responsible to the law for such death. The sufferers, like those under the catholic inquisition of the fourteenth century, were deemed outside of the pale of sympathy or human rights, and the devils depicted upon the back of ducking stools as laying hold of their victims, were conceded to have but taken their rightful prey.

Such has been part of Christian legislation for women in America, and yet she is told to see how much Christianity has done for her. To such extent has this church doctrine of man’s superiority to woman, and the right of the husband to control of the wife proceeded, that many husbands believe they possess the right to sell their wives. Since the reformation her sale in the market-place as an animal, held by a halter about her waist, has been recognized by English law even as late as the present century. Although now forbidden, the practice of wife-sale is still occasionally found both in England and in America. But when the law takes cognizance of such a sale its penalty is visited upon the innocent wife and not upon the guilty husband. The English Women’s Suffrage Journal of December 1st, 1883, reported such a case.

November 13th, 1883, Betsy Wardle, was indicted for having on the 4th of September, 1882, married George Chusmall, her former husband being alive. The prisoner pleaded guilty, but said her former husband gave her no peace and sold her for a quart of beer. She imagined this was a legal transaction, and that she could marry again. The second husband was asked how he came to marry the prisoner. He answered “Well, I bout her.” The judge said, “You are not fool enough to suppose you can buy another man’s wife?” on which he replied, “I was.”

Mr. Swift asked his lordship not to pass a severe sentence. The prisoner imagined that because she had been sold for sixpence there was nothing criminal in marrying again. His lordship said it was absolutely necessary to pass some punishment on her to teach her that a man had no more right to sell his own wife than his neighbor’s wife, or cow, or ox, or ass, or anything that was his.

The reason given by the judge for punishing the woman, is extremely suggestive of woman’s condition under the law. The wife who had been sold, the innocent victim of this masculine transaction, was sentenced to a week’s imprisonment with hard labor, while the man who sold her and the man who bought her escaped without punishment or censure. The judge in quoting the tenth commandment, graded the wife with the ox and the ass in the belongings of a man; the decision thus ranking her with the cattle of the stable.462 To add to the infamy of the trial, it was the occasion of much unseemly jesting and laughter. It took place at the Liverpool Assizes before Justice Denham. His judgement paralleled the decision of the “Seney Trial” in Ohio, 1879. The selling a wife as a cow463 in the market place was by no means uncommon during the early part of the century in England. Ashton464 give numerous instances of such sales.

The laws of England are those of Christianity based upon the theological teaching of man’s superiority over woman; she is his servant, subordinate to him in all things, a condition except where removed by special statute, existing today.465 Returned missionaries who refer to the wife as waiting upon the husband at table in heathen countries not eating until he is satisfied, as proof of the different customs brought about by christianity, should inform themselves of the condition of the christian wife for nearly a thousand years in what is regarded as the foremost christian country in the world. He will then have learned that circumstances quite contradictory to ecclesiasticism finally permitted the English wife to assume a seat at the table with her husband, a place she was not allowed to take for many hundred years after the introduction of christianity into that island. In every country where christianity exists, women now are, and during all the years of its civil power have been, legislated for as slaves. They have been imprisoned for crimes which if committed by a man were punished by simply branding on the hand; they have been condemned to be buried alive for other crimes which if committed by a man, were atoned for by the payment of a fine. Having first robbed woman of her property and denied her the control of her own earnings, the christian religion allowed her to suffer the most agonizing form of death, a living burial, for lack of that very money of which she had been civilly and ecclesiastically robbed. The law so far controlled family life that for many hundred years it bound to servile labor, all unmarried women between the ages of eleven and forty. The father possessed absolute control over the marital destiny of his daughter.

Instances of wife sale are not uncommon in the United States, and although the price is usually higher than that given for English wives, reaching from three hundred to four thousand dollars, still, as low a sum as five cents has been recorded. A prosperous resident of Black Hills, Dakota, is said to have begun his business start in life through sale of his wife. If a wife is a husband’s property the same as a cow, it is manifestly unjust that legal punishment of any kind should fall upon her because of her master’s action. She is irresponsible. The right of sale logically goes with the right of beating, of taking the wife’s property and holding her earnings, of owning her children and she should be exempt from punishment for her own sale. In a much larger measure we find the same rule of punishing wives for the crimes of husbands, enforced in the United States, in the penalty of disfranchisement of the women of Utah for the polygamy of the men of Utah. And this penalty was extended not alone to the wives of polygamous husbands – themselves possessing but one husband – victims alike of church and state, but the non-Mormon or “Gentile Women” of that territory, were also disfranchised by the XLIX Congress of the United States because of the polygamy of a portion of the Mormon men; all women of that territory were deprived of their vested rights, rights that had been in existence for seventeen years, because of the crimes of men.466 Against this injustice, the Woman Suffragists of the country protested through means of a committee in a

MEMORIAL

To the President of the United States:

The National Woman Suffrage Association, through this committee, respectfully present to you a protest against that clause of the anti-polygamy measure passed by congress, which, whether in the Edmunds bill of the senate or the Tucker substitute of the house, disfranchises the non-polygamous women of Utah.

The clause relating to the disfranchisement of women has no bearing on the general merits of the end sought to be attained by the measure, since Mormon men are the majority of the voters of the territory.

The non-polygamous women of Utah have committed no crime. Disfranchisement is reserved by the United States government for arch traitors. Justice forbids that such a penalty should be inflicted on innocent women.

Non-polygamous Mormon women and the Christian women of Utah being thus disfranchised – the former for their opinions and the latter for the opinions of the former – a precedent is established subversive of the fundamental principles of our government, and threatening the security of all citizens.

If congress deems it necessary to disfranchise citizens because of injurious beliefs, discrimination between sexes is manifestly unjust.

It has been held by the foremost statesmen of the nation that the right of suffrage once exercised, becomes a vested right which cannot be taken away. Gratz Brown once said, in the senate of the United States, that if the idea that suffrage could be taken away at pleasure once crystallized in the minds of the people, it would “ring the death knell of American liberty.” Mr. Vest, of Missouri, on the 25th day of this month, said, on the floor of the senate: “Suffrage once given can never be taken away. Legislatures and conventions may do everything else; they never can do that. When any particular class or fraction of the community is once invested with this privilege it is fixed, accomplished and eternal.”

Thus every argument for justice, equal legislation and the safety of our republican form of government calls for the defeat of this clause.

We, therefore, respectfully urge you, as guardian of the rights of all American citizens, to veto any measure coming before you which disfranchises the women of Utah.

Lillie Devereux Blake,

Matilda Joslyn Gage,

Caroline Gilkey Rogers,

Mary Seymour Howell,

Clara B. Colby,

Sarah Miller,

Elizabeth Boynton Harbert,

Harriette R. Shattuck,

Louisa Southworth,

Committee

This memorial, supplemented by personal argument from the committee demonstrating the political dangers connected with such a denial of vested rights, together with the greater injustice of punishing women for the crimes of men, was met by reply of the President that as great changes were frequently made in bills before their final passage, he had as yet not given the subject much thought; promising, however to give it his fullest attention whenever brought before him. The method taken by the president to avoid responsibility of decision, is notable as he neither signed nor vetoed the bill, but allowed it to become law through such non-action. Crimes of omission being parallel with those of commission, the women of the United States can but hold Grover Cleveland equally guilty with the XLIX Congress in punishing women for the crimes of men.

The Code of England, from which that of the United States is largely borrowed, was the outgrowth of Christianity, based upon a belief in man’s superiority and woman’s subordination to him as entering every relation of life. All legislation was class; the line was sex. During the early and middle ages man exhibited an antagonism towards woman,467 which if not wholly created by religious belief was strenuously fostered by the church. Man’s basest passion, love of power, was appealed to and he was assured by what he had been trained to regard as indisputable authority, that God had ordained his rule over woman. A quick response met all such priestly teaching. Christianity has ever been a religion of the emotions rather than of the reason. The former was cultivated; the latter bitterly condemned. The church has ever found its most powerful enemy in reason, hence the exercise of reason has ever been a crime in her eyes.

During the Christian ages the different code of morals for man and woman has created infinite wrong. Open and notorious vice among both churchmen and laymen passed unreproved, but an heiress forfeited her possessions by unchastity, and wily plans were laid to thus gain possession of her property, the betrayer receiving payment from the guardian, whose tool he was, for his perfidy.468 To this moral code we trace the present legal condition of girls, daughters having no status in the courts in case of betrayal. The father alone, as master and owner, can sue for loss of her services, while the injury to herself is passed by, even upon so momentous a question as the paternity of a child born out of wedlock.

Many of the most flagrant wrongs perpetrated against woman can be traced to a denial of a right of ownership, beginning with the denial of her right to herself. Even the Salic law which in France was used to bar the succession of woman to the throne, was not specifically or primarily in favor of males; it was a property law growing out of the patriarchal idea of property in woman. Under Christian form of marriage, woman was transferred to another family whose name she took. She not only became the property of her husband but all real or personal estate which she possessed, also became his. Thus her property went to the enrichment of another family. Her home was no longer with her own people, but where her husband chose to make it. Salic law derived its name from Sala, a house. Salic land, said Montesquieu, was the land belonging to the house.469 At time of its adoption the line of descent was male. Under it during the middle ages when a daughter married, she received merely a chaplet of roses. Thenceforth, her interests were elsewhere, and her children became part of another family; she was entirely lost to the family of her birth. As she was no longer a part of it she did not receive inheritance. “It was not a subject of affection but gens.”

Guizot with a fine sense of irony, termed Salic law essentially a penal code. Its application to woman was incontestibly penal. In France its action has been most pronounced. Robertson speaks of the Salic law as the most venerable monument of French jurisprudence, although the real period of its birth has never yet been fully acknowledged. While during the struggle of Phillippa de Valours, and Edward III for the crown of France, this law was invoked to prevent the succession of Phillippa, yet we know that in Gaul during the time of Caesar, mothers had sole authority over their children, even boys remaining in entire charge of the mother until old enough for instruction in arms. Wives also possessed property rights, upon marriage the husband adding the same amount of property he had received with his wife. This was kept as a separate fund, the survivor taking the whole. Hallum designated the contest between Phillippa and Edward as in every way remarkable, but especially on account of its result in the exclusion of woman from the succession,470 then first suggested. It was the Latin races rather than the Scandinavian or Teutonic that first essentially degraded woman. The Riparian Franks, pre-eminent as lovers of liberty, were the first who broke away from the rule of this law. Both the Scandinavians and Teutons possessed prophetic women or priestesses to whom the highest deference was shown. The Teutonic races were early noted for the high respect in which they held women, a respect closely bordering upon veneration. The greatest deference was shown to their opinions even upon war, the chief business of men’s lives. Victoria received the title of “Mother of Camps,” and was an especially venerated person. Veleda by superior genius, directed the counsels of the nation and for nine years prevented the progress of the imperial armies of Rome. The most momentous questions of state and of religion were submitted to woman’s divine judgment.

The relation between the wrongs of woman and her non-ownership of property, and of herself, are very complicated. The custom of Marquette originated from the theory of property in woman; the Suzerain or lord possessing not only a certain property right in his male vassals, but a double right to the woman who as a bride became the property of his vassal. Thus Marquette was the outgrowth of the husband’s property right in his wife, and a secondary result of man’s assumed right of property in woman. In France, where the Salic law possessed greatest strength we find the custom of marquette most prevalent. Next to marquette, the law known as “Mund” or “Mundium” offered the greatest indignity to woman, and in some respects may be called more vile. While the baseness of marquette took its victims from a class beneath the lord in social standing, Mundium entered the family, the father selling his daughter to such wooer as he chose, or from whom he received the greatest payment, entirely regardless of the wishes of the daughter herself. The Salic law seemed to have been founded on the principle of the Mund, as under it a sum was paid by the husband to the family of the bride in consideration of the transference of the authority they possessed over her, to the husband, and this payment was known as “Mundium” and the bride as a “Mund” bought woman. In Denmark, to which country the custom of mundium extended, her appellation was “mundikeypt-krom,” signifying a mund bought woman. At that period descent was reckoned from the father, to whom alone the children were held to be related, and his relinquishment of authority by sale of his daughter, transferred her relationship from her father to her husband, and she thus became a component part of another family. She no longer belonged to the family of her birth, but to that of her purchaser. The Franks were the first to break Salic customs and to permit a father to settle an estate upon his daughter and her children.471 Under the law of Gavelkind as it existed in Great Britain, daughters never inherited, although the rights of even an illegitimate son was recognized as equal to those of legitimate sons. By the laws of gavelkind, property could not descend to women, but the County of Kent possessed more freedom than in any other part of England. There was a custom of privilege annexed to all lands of this kind in Kent, among them, that the wife should be endowed with a moiety; gavelkind land was devisable by will. Ordinarily in gavelkind, property was kept in male hands, descending from father to son. The very name gavelkind is said to bear this signification, the word Kynd is dutch signifying a male child, thus gife eal cyn, means give all to the son. Its modern signification is the custom of partition of property among males alone, or the greatest share to the oldest son.

Lord Coke looked upon the practice of gavelkind among the Irish as a mark of their descent from the ancient Britons. At this period wives were not entitled to dower, thus in respect to property, all women of the family were equally disinherited. But it was the opinion of Lord Holt that by the Common Law, both before and after the conquest, all the children, both male and female inherited both the real and the personal estate, and in like proportion. But in the reign of Henry I daughters, in case there were sons, began to be excluded from the real estate. These laws, so essentially Salic, it can readily be seen, originated in the mundium. Passing as a mund woman, into another family, the succession of property to her under this slave472 condition, was contrary to sound domestic policy. To bestow property upon a daughter was to enrich another family at the expense of the one from whom the slave-wife was purchased, and her disinheritance was but a logical result of her legal condition. If we admit the premises we must admit the wisdom of her exclusion from succession.

It is curious to note the difference in woman’s position which possession of property has ever made. This difference especially noticeable during Feudalism in case of an heiress with fiefs, is no less so at the present day. It is a mark of an unripe civilization that the rights of property have ever been regarded before those of person. Walker473 over sixty years since, recognized the power of property in ameliorating woman’s condition, then declaring that the first step toward an acknowledgment of her equality, must be a recognition of her rights of property; his broad knowledge of ancient law having taught him the close connection of property rights and personal rights. During many ages battle was done for possessions and the protection of what a man owned. Even the war of the American Revolution was begun for property rights rather than for those of person. The Stamp Act and the tax on tea roused the Colonies to resistance. A woman first spoke the words “inherent rights,” and by the time nationality was proclaimed the colonists had learned far enough to say that “governments derive their just powers from the consent of the governed.” Consent is an important consideration in all questions affecting humanity, and is one in which woman is most deeply concerned. At close of the civil war Frederick Douglass advised colored men to get property. He had not failed to learn the connection between property and personal rights. Since Mississippi, in 1839,474 Pennsylvania and New York in 1848, and Rhode Island about the same period, secured property rights to married women, there has been a great and rapidly increasing change in woman’s position, and as she constantly enters new industries, earning and controlling money, we find her as constantly more free and respected. When the English “Married Women’s Property Bill,” based upon that of New York, became a law a few years since, the London Times, with the perspicuity of our great thinker, Walker, said:

It probably portends indirect social effects much greater than the disposition of property, and it may in the end pulverize some ideas which have been at the basis of English life. Measures which affect the family economy are apt to be “epoch making”; and probably when the most talked of bills of the session are clean forgotten this obscure measure may be bearing fruit.

The exception of married women in the demand for political rights by the women of England, owes its origin to the old monkish theory that marriage is debasement, and celibate life in either man or woman a much higher condition. After the passage of the Emancipation Proclamation, during the civil war, John Stuart Mill declared that married women were the only class of slaves remaining on earth. As long as a condition of religious or political subjection continues for her, a belief in the sanctity of womanhood cannot exist and crimes against her will be lightly punished. The most debased men of England and the United States, if arrested for cruelty to wives, agree in the indignant questioning protest: “Is she not my own that I should punish her as I please?”

Such has been the power of the priesthood over the consciences and lives of men, that we find whatever is bad in the laws either directly or indirectly traceable to their influence.475 Our Anglo Saxon forefathers were early amenable to religious authority and for a period of many hundred years clerical influence was exceedingly powerful over them.476 The church is responsible for the severity with which the simplest infraction of law was visited upon the most humble and helpless classes, and the greater penalty awarded to those least capable of resistance. It was for the free man of low estate, for the slave, and for woman that the greatest atrocities were reserved. If a free woman stole she was to be thrown down a precipice or drowned, which Pike regards as the origin of dragging witches through a pond. If the thief was a slave and stole from any but her own master, she was condemned to be burnt alive, and her fellow slaves were compelled to assist at the incineration.477 None dared to speak a good word for women in opposition to church teachings. All her instincts were held as evil. As the law and the father robbed the daughter, so the law and the church alike robbed the family. By ancient English law, as before noted, every person who made a will was bound to remember his lord with the best thing he possessed, and afterwards the church with the next best thing, but as the church gained power it took supreme place in the testament.478 The peasant was looked upon as but slightly above the cattle he cared for. A certain degree of sameness in material and intellectual conditions everywhere existed. The masses over christendom were alike under bondage of the thought and modes of action; social life showed no marked change for many hundred years. Freedom was an unknown word, or if by chance spoken, found itself under the ban of the church and the state. Justice was unthought of; the only question being, “has the church ordered it?” A complete system of espionage existed under both church and state. As late as the time of Alfred, in England, every nine men were under charge of a tenth. No man could work outside of his father’s employment to which he was bound; at nine o’clock curfew bell, all fires and lights were extinguished. A mechanic could not find work outside of his own village; monasteries and castles contained all there was of power and comfort. As late as the reformation we find the condition of English society lax and immoral. Henry the VIII was a fair type of the nation; the court, the camp, the church were all in line moulding the sentiment of community. Although Henry had declared the church to be an entire and perfect body within itself, possessing authority to regulate and decide all things without dependence upon any foreign power – meaning the pope, – he did not fail to generally define the supremacy of the church as united with and dependent upon the temporal government of the realm; the king, instead of the pope, becoming its spiritual head. Many new and restrictive canons were promulgated. Under Henry the prohibitory laws regarding nearness of relationship in marriage exceeded those of the Catholic Church. It is but a few decades since these prohibitions commencing with “a man shall not marry his grand-mother;” “a woman shall not marry her grand-father;” and extending down to remote cousinship, – were to be found printed upon the fly leaves of every New Testament.479