Woman, Church & State

For a long period after the reformation, English women were not permitted to read the Bible, a statute of the Eighth Henry prohibiting “women and others of low degree,” from its use.480 Apparently for the purpose of preventing conversation among women regarding the tyranny under which they were kept, a law was passed forbidding the residence of more than one woman in a cottage, and this after the Protestant religion had been confirmed as that of the realm. As late as Elizabeth, 31-2, it was held a “heinous offence” for a cottager to give a home to his own widowed mother or homeless sister. The especial criminality of thus “harboring” one’s female relatives lay in the fact of their being “masterless.” As late as the XVI century the law still entered houses, and magistrates bound out to servile labor all women between eleven and forty years of age.481 The degradation of women under the reformation was still more gross than under catholicism. The worship of the Virgin Mary, and the canonization of many women as saints in the Romish Calendar, threw a certain halo about womankind that is impossible to discover in the Protestant Church, or since the reformation.

The church of whatever name taught woman’s innate depravity was so great that forcible restraint alone prevented her from plunging into vice. While Christian women outside the Levant were not confined in a harem under watch and ward, yet various methods of restraint have been used in christian lands within the past few centuries. Among the most noted of these, the “Chastity Belt,” three are yet known to be in existence. One is preserved in the museum at Cluny, France, another is in keeping of the Castle of Rosenburg, Copenhagen; the third was exhibited in the United States, 1884, by Dr. Heidmann’s traveling museum. According to tradition the one persevered at Cluny was in use during the XVI Century, in reign of Francis I, who ascended the throne January 1, 1515; the remaining two in Denmark under Christian IV in the seventeenth century. At this period Denmark was greatly agitated by a religious war, which however, did not include woman’s freedom in its demands. These belts are hideous proofs of the low estimate in which woman’s moral character was held, and equally striking evidence of man’s freedom and immorality.

The disrespect shown by the clergy towards marriage as compared with the celibate condition, has influenced thought in many singular directions. England’s married women under the combined influence of church and state deprecate the claim of suffrage for themselves, although asking it for single women and widows.482

The bill referred to in the Memorial, 49 Vic., extended Parliamentary franchise to single women alone.

Second Sec. For all purposes of and incidental to the voting for members to serve in Parliament, women shall have the same rights as men, and all enactments relating to, or concerned in such election shall be construed accordingly. Provided that nothing in this Act contained shall enable women under coverture to be registered or to vote at such elections.

The word “coverture” expresses a married woman’s subordinate condition, both civilly and religiously.483 It means, under the power of the husband; controlled by the husband; possessing neither personal nor individual rights; a being not allowed to use her own judgment unless such judgment is ratified by the husband. Under coverture, the wife can make no contract without the husband’s consent, the law holding her incompetent. A woman under coverture is an irresponsible being except in case of crime. When married women refuse to seek the same freedom for themselves they ask for single women, they practically endorse the judgment of church and state in favor of celibacy. When married women thus ignore their equality with single women, they practically condemn that relation, practically affirm the superior purity of a celibate condition.484 The low estimate of women in England as late as the seventeenth and eighteenth centuries is shown in its literature, especially that emanating from its great universities. The betrayal of women formed the basis of story and song; not content with portraying their own vices, these men did not hesitate to put a plea against chastity in the mouths of mere children. Of such character is “A Ballad” emanating from this source, but professing to have been “composed by Miss Nelly Pentwenzle, a young lady of 15,” to be sung to the tune of “Scraps of Pudding.”

A periodical entitled The Old Woman’s Magazine printed in London, without date, but from internal evidence shown to belong to the latter part of the eighteenth century, forcibly protests against the destruction of innocence, which was the chief amusement of the men of this period. It asks:

Why should it be less a crime to deceive an inexperienced girl whose youth renders it impossible that she should know the world, than it would be to lead a blind man to the brink of a precipice?

Thus the laws and customs of family and social life, the literature of different periods, the habits of thought, the entire civilization of christian centuries, has tended to the debasement of woman and the consequent destruction of moral life. The world stands where it does today upon all these great questions, biased by a non-recognition through the ages of the sanctity of womanhood, and a disbelief in her rights of person within the marriage relation, or without; taught, as this lesson has been, by the church, and emphasized by the laws of the state.

There have ever been many severities connected with dower in England. By old law if a widow married within a year from the death of her husband she forfeited her dower.485 This law accounts for the superstitious sentiment as to ill-luck following the woman who re-marries within a year and a day. Like the freedom of the Roman “Usus” kept up by a three days’ absence in each year, this extra day of the widow’s mourning seems to have been added as security for the dower; while under the most ancient law of christian Europe, the widow lost her dower if she married again, the Turks recognizing the greater freedom of a widow, pay her who re-marries, a sum for parting with her liberty.

The general rule of dower486 held that when arranged at time of marriage, although the husband then possessed but a small portion of freehold and afterwards made great acquisitions, if no mention of new purchases was made at time of such arrangement, the widow could not claim more than the third part of the land possessed by the husband at time of marriage. In like manner if a husband had no land and endowed his wife with chattels, money, or other things, afterwards making great acquisitions in land, she could not claim dower in such acquisition. Neither could a woman dispose of her dower during her husband’s life. This was quite unlike the freedom enjoyed by a wife in ancient Wales where the dower became absolutely her own, to dispose of as she pleased. Under English law the husband during the lifetime of his wife could give or sell or alien her dower in any way that it pleased him to do, and the wife in this, as in all other things, was obliged to conform to the husband’s will. The wife’s dower right in personal property can be aliened by the husband in the United States. During the wife’s lifetime he may give, sell, or in any way dispose of the whole of his personal property absolutely, and the wife has no redress; she is not held as having any right, title or interest in it as long as her husband lives.487 The husband can also alien his real estate, subject only to his wife’s dower right in case she survive him; should she decease before him she has no power over it. The law in England as laid down by Glanville was that in case the wife withheld her consent to the sale of property she might claim her dower after her husband’s death, but this could only have had reference to real property, and is the same in the United States. If the wife withholds her consent to the sale of real estate, it still can be sold away from her and she thus be deprived of a home. It is merely subject to her dower right in the value of the property at time of sale, and in case she survives her husband; should she die first, she has no redress. Sales of this character are constantly made, at a small discount, upon chance of the wife’s nonsurvival. As dower right in real estate does not invest the wife with its ownership in fee, but merely the use of one-third during her natural life, it will readily be seen how very small is the wife’s protection in dower-right even in this last half of the nineteenth century. Bracton gives two reasons why the English husband could sell the dower assigned to the wife without her consent:

First, because a wife has no freehold in a dower previous to its being assigned to her. Second, because she cannot gainsay her husband.

As late as the last quarter of the present century, the learned Professor of Jurisprudence of Cambridge University, attempted to prove that it was no reproach against woman’s intellect that she was prohibited from making a contract during marriage; although failing in this attempt, he clearly succeeded in proving woman’s condition of pecuniary and personal slavery in the marriage relation. He said:

It is not an imputation on the wife’s experience or strength of mind, but is solely grounded on her not being assumed by common law to have sufficient command of her purse or of her future actions wherewith to procure materials for making a contract. The legal presumption then is, that she did not intend to make one, and therefore the allegation that she did make a contract would imply on the face of it a fraud.488

The legal presumption that the wife has neither sufficient command of her purse or of her future actions to guarantee an intent of making a contract, needs no further assertion to prove her enslavement. The person neither possessing control of property or of their own actions is a slave, regardless of or under what verbiage of law or custom that condition is represented. Attempts are constantly made both in the United States and England to take from woman the dower right now accruing to them. During 1883, an Act was passed taking from English wives all dower right, giving the husband power to bar the wife in all cases; and scarcely a legislature convenes in the United States that has not a similar bill introduced before it. As dower rights increase the complication of land transfer, just as soon as the law which gave the husband the power to bar this right became operative in England, conveyancers began to insert a debaring clause in every deed of conveyance, thus systematically despoiling the wife even when the husband might not otherwise have been so disposed.

As “masterless women,” widows in England have received similar contemptuous treatment as accorded single women, to whom that country long showed such barbarity. It is curiously noted by Alexander489 that Moses placed widows in the same rank as harlots and profane women.490 The law of tenancy by courtesy, which gives a husband rights in the separate property of a wife, is very unjust when compared with the dower rights of a wife. In such case, provided she has borne a living child, even should such child breathe but once, the husband in case of the death of his wife, holds the entire real estate during his life, as “tenant by courtesy.” He also takes the whole of her personal property absolutely, to dispose of as he chooses. In a few of the United States, the wife can defeat this by will, but in the large majority of christian lands, the full rights “of tenancy by the courtesy,” still prevail. Where right of dower still prevails, the wife if there are children, takes but one-third of the personal property absolutely, one-half if there are no children, the rest passing to collateral heirs, who may be the husband’s most distant relatives. In case no such relative can be found, the balance escheats to the state, although in the State of New York the widow, under such circumstances, receives $2,000 over one half. Of the real property she has the use of but one-third, in contradistinction to the use of the whole of her real property, which goes to the husband by “tenancy of courtesy.” In tenancy by courtesy the children are robbed of the mother’s real estate during the life of the father, and of her personal property, forever. In enacting property laws, man, under tenancy by courtesy robs his own children. The law of inheritance in Spain, that country distinguished among European nations as “Most Christian land,” compels a man to leave four-fifths of his property to his children, but does not make it obligatory upon him to endow his wife with the remaining fifth. Neither has the wife a dower right in property owned by her husband at time of the marriage. The suite of a Spanish widow for dower right, in an estate of several millions left by her deceased husband, was fully reported by the New York daily papers within the past five years. Suddenly reduced from affluence as the wife of this man, to the most abject poverty as his widow, this wife and mother brought suit against the estate and her children, who receiving all the property by the husband’s will, left her absolutely beggared.

In ancient Ireland, the condition of woman was far superior to that of the christian women of England or Scotland. Two forms of marriage existed. Under that of “Equal Dignity,” the rights of the contracting parties were the same, and took place when the man and woman possessed the same amount of land, cattle, or household goods. No force or sale accompanied it, the woman giving free consent equally with the man. This marriage was looked upon as a contract between equals. The property of the wife did not revert to the husband. She retained its control, loaning it and receiving interest entirely free from the interference of her husband.491 Ancient Irish law, also secured to the mother equal authority with the father over the children of the marriage. There is no trace of that arbitrary control over both wife and children with which Christianity endowed the father.492 The daughter was held to be more closely related to the father; a son to the mother, this belief contributing an equality of right between the sexes. These laws were authoritative over the whole of Ireland until the invasion of the Danes, in the eight century (A.D. 792).

It is remarkable what effect the ownership of property by woman has ever had in ameliorating her legal condition. Even in ancient Ireland the wife without possessions became the slave of her husband. Although the son was held as more nearly related to his mother, this ancient code provided that in case his parents were poor and he had not wealth enough to support both father and mother, he was to leave the latter to die in the ditch, but was to carry his father back to his own home.493 Tradition ascribes this code to St. Patrick in the fifth century. Under modern christian law, the legal obligation of a son to support his father is greater than it is to support his mother, quite in opposition to the old Scandinavian (pagan) law, which provided for the support of the mother if but one parent could be cared for. Not the least among the wrongs inflicted upon Ireland by English usurpation, has been the destruction of the wife’s rights of property. The right of the Irish wife to deal with her own property as she chose, irrespective of her husband’s consent, was expressly declared illegal by English judges at the beginning of the seventeenth century.

There are traces of separate property rights for woman, early among Aryan peoples. By the old laws of Wales, a wife became legal owner of part of her husband’s effects immediately upon marrying him, and had the sole disposal of this portion even during her husband’s life. Debt owed by a husband to a wife was as binding on him and his heirs and executors as a debt to any other person. After the English laws were introduced into Wales, innumerable disputes arose upon this ground. The Welsh woman being persistent in her determination to cling to her old rights, and for nearly two hundred years her will upon this subject was stronger than the will of English legislators, as proven by legal records.494 In other respects the ancient law of Wales favored woman. A husband’s fetid breath was held as good cause for divorce on part of the wife, who in such case took with her the whole of her property. While still living with her husband, the Welsh wife possessed the right to three kinds of property, cowyll, gowyn, and sarand, known as her three peculiars.495 Old Welsh law was unique in that it forbade both satisfaction and vengeance for the same wrong. Even if detecting his wife in adultery, for which he should chastise her, the husband was forbidden any satisfaction besides that. In case of an illegitimate birth the law provided that the man should wholly maintain the child,496 a species of justice not found under Christianity. The laws of “Howell the Good,” enacted at a later date under the supervision of the church497 favored the man at the woman’s expense. Under these laws if a husband and wife separated, the father took two-thirds of the children, the oldest and the youngest falling to his share, while the middle one fell to the mother. A woman was not admitted as surety, or as a witness in matters concerning a man.498 In the division of property the daughters received only one half the amount given to the sons.

Under the christian laws of England, by which the property of a married woman passed entirely into the control of her husband, the abduction of heiresses in that country was very common for many hundred years, no punishment following such a theft, although the most compulsory measures were used, even to forcibly bending the bride’s head in affirmative response during the marriage ceremony. She was a woman; the law furnished her no redress. It regarded her as the legal wife of her abductor, to whom she thereafter under this christian law, owed service and obedience. The sole right to her person, her property, her children then becoming legally invested in the robber husband. As noted in the opening chapter, the abduction of a woman, or even an immodest proposal to her, was punished in older un-christianized Scandinavia, by greater or lesser outlawry; rape being a capital crime, placing the culprit’s life in the hands of any man. He was outside the pale of law.

France under frequent changing names and forms of government, and with a broader general recognition each year of human rights, is yet very closely allied to the barbarism of the middle ages in its treatment of woman, and its conception of her natural rights. This was shown even during the revolution of 1787, of which Madame Roland and Charlotte Corday were such central heroic figures. Although this revolution established an equal succession between sons and daughters, yet it did not tolerate the proposition of Sieyes and Condorcet that woman should be endowed with the suffrage. One hundred years later, in 1887, a bill was introduced during the legislative session, to secure to woman the same political rights accorded man. This bill was lost; “Le Gaulois,” commenting upon it, declared that in whatever manner the question was discussed, it appeared grotesque and ridiculous. In the Legislative Assembly of 1851, M. Chapot, proposed the prohibition of the right of petition to women upon all subjects of a political nature. During the same session, Athenase Coquerel, the most distinguished member of a Protestant family of clergymen, presented a bill to the Chambers excluding women from political clubs. Woman’s testimony is not accepted in regard to civil acts. They cannot attest to a birth or a death, nor is their testimony admitted in the identification of persons. Neither can they become members of the family council, nor are they accepted as guardians of their own children. It is only since 1886 that their condition has been in any way ameliorated. The re-marriage of widows is forbidden under ten months after the husband’s death, and until within the last decade, divorces were of great rarity. The oppressed condition of woman in the marriage relation, was notably shown by the vast number of applications for release from the hated bond upon the passage of the new law; a number so great, – eleven thousand, – that two years scarcely sufficed to reach them all. No stronger argument against the evils of an indissoluble marriage is required, and as the greater number of applicants were women, it is farther evidence of woman’s degradation under christian marriage laws.

According to the famous Code Napoleon, accepted by France as her modern system of jurisprudence and declared (by man) to be nearly perfect in its provisions, every child born outside of wedlock is deemed to be fatherless unless such father of his own free will formally acknowledges his offspring. While fifty per cent of all children born in Paris are illegitimate, statistics prove that such acknowledgement takes place but once in fifty births. Thus forty-nine per cent of Parisian children under the Code Napoleon, theoretically come into the world without fathers – they are born fatherless. A still more heinous provision of this Code, forbids all research into paternity.499 The father of an illegitimate child – rendered illegitimate by church canons – is held as both morally and legally irresponsible for his fatherhood. Under this Code, upon the mother falls all the contumely associated with such birth, together with the care and expense of rearing the child. We cannot be surprised at the prevalence of infanticide, a crime resulting from such unjust legislation, and for which the church is directly responsible. In the whole history of French jurisprudence, not a single case can be found where the father of an illegitimate child has been compelled to acknowledge his off-spring.500 Under French law, woman is a perpetual minor under the guardianship of her own, or that of her husband’s family. Only in case of the birth of an illegitimate child is she treated as a responsible being, and then only that discomfort and punishment may fall upon her. The same legal degradation of the unmarried mother, the same protection accorded the unmarried father, the same enticement of the law for man to assume a fatherhood freeing him from accountability, the same covert contempt of womanhood and of motherhood, also exists in Italy, its penal code forbidding all research into paternity. And this is not the legislation of the middle ages but of the nineteenth century.

But French disregard for the rights of woman, as already shown, far preceded the Code Napoleon; that system but legally emphasized the low estimate of the feminine we have traced through the Salic, Feudal, and Witchcraft periods. Louis VII referring to the number of girls born in his dominions, requested his subjects to pray unto God that he should accord them children of the better sex. Upon the birth of his first child, Margaret, who afterwards married Henry Courtmantel of England, his anger was so great that he would not look at her; he even refused to see his wife. He afterwards accorded an annual pension of three livres, the archaic French currency? – P1] to the woman who first announced to him the birth of a son. Although five hundred years have passed since the graphic portrayal of woman’s condition, in the ballad of the Baron of Jauioz, we find the Breton farmer whose wife has given birth to a daughter, still saying, “my wife has had a miscarriage.” Question an ordinary French peasant in regard to his family and the father of girls alone, he will reply, “I have no children, sir, I have only daughters.”501

During the feudal period parents gave themselves up to merry-making and rejoicing upon the marriage of the last of their daughters.502 Even yet, in some countries, the birth of a boy is announced by a servant wearing a white apron and carrying two bouquets in her hand; if a girl she carries but one; in some countries the father of a boy annually received the gift of two loads of wood from the state; but a single one if the child was a girl. Even in the United States we yet see this contempt of the feminine variously manifested, although the kindness and affection of girls to their parents, is usually more notable, than that of boys.503 Family regard is usually manifested in the descending, rather than the ascending line, yet Herbert Spencer declares that full civilization is dependent upon the respect and affection shown to parents. France is not the only christian land that invalidates a woman’s testimony, receiving the assertion of the woman with less authority than the denial of the man. In Scotland in case of an illegitimate birth, the accused man is allowed to clear himself upon oath, in opposition to that of the woman. Under Scottish law the child born outside of marriage was formerly compelled to do penance in church for the sins of his parents. Such has been the justice of christianity to women and children during the ages. These methods of christianity were in great contrast to those of heathendom. The early Anglo-Saxon (pagan) laws contained provisions for the punishment of assaults upon women. Crimes against her were punished by greater or less outlawry according to the attendant circumstances. Old Scandinavia possessed many laws for the protection of woman. It has sometimes been asserted that these laws were a dead letter, so many instances of loose connections are recorded in the Iceland Sagas. It is, however, a question of fact that these illegal relations, according to the same Sagas were much more frequent after the introduction of christianity than before.504 Roman law presumed that no woman went astray without the seduction and arts of the other sex, upon whom alone the punishment fell. Under old Saxon, Gothic and Scandinavian law, rape was punished by death. Under the Conqueror, its punishment was castration and loss of the eyes, which continued English law until after Bracton wrote in time of Henry III. A lighter punishment then superseded it, but the effects of this leniency was so evil the old penalty was restored. While forbidding woman control of her own property, common law, under one of those anomalous renderings which mark the constant injustice of Church and State towards woman, held twelve years as the age of female discretion or consent, rape after that age not being regarded as criminal.