Now, this "Code Napoléon" says that "the husband owes protection to his wife; and the wife, on her side, owes obedience to her husband:" but it goes on to secure the obedience by giving an unlimited right to the person of the wife, without in any way providing the promised protection.
"The wife must live with her husband, and follow him wherever he sees fit to go. As for him, he must receive her, and furnish her with necessaries according to her wealth and rank."
Now, this clause actually constrains no one but the wife; for what would be the condition of a woman who followed her husband against his will, and remained under his roof when he was determined that she should quit it? Under such circumstances, his recognition of her wealth and rank would be very apt to fall to the level of his own irritation.
The French code will interfere to protect a wife against the total loss of her property, if she can prove some loss already experienced, either from the improvidence or the bad conduct of her husband; but it keeps her powerless to protect herself against that first loss. Having thus, and for such reasons, obtained a separate jurisdiction over her property, she cannot alienate, mortgage, or acquire a title to new property, without her unworthy husband's consent in person or on paper. The guardianship of the children is left to the survivor of the marriage; but the mother's right in such case may be restrained by the father's and husband's will. He can appoint a trustee to be associated with her. As a business woman, even if separated in estate, the wife cannot make or dissolve a contract without the consent of her husband.
As a "public merchant" under the communal system,—that is, pledged in her own name,—she is free from this restraint. As a citizen of the French republic, she in that case supports, conjointly with her husband, all State charges. She is taxed as much as he; for their common income is diminished as much for one as for the other. She has no suffrage; but, on the other hand, she is not liable for military service. She has no rights; a state of things, which, if it be excusable when she is absorbed into her husband's personality, is only absurd when she fulfils all the functions of a citizen. Well may Legouvé exclaim, "that, if the household be woman's own sphere, she ought to be queen in it; and her own faculties should secure her this supremacy. Her opponents should be forced, on their own principles, to emancipate her as daughter, wife, and mother." The woman who owns an estate is, under this law, sole mistress of it. She signs the leases and makes the bargains. She pays the State tax, an additional rate to her own department, a town tax, and a tax on roads. It is with her that the local or general government treat, if they cut through her estate for public ends. Against them, if wronged, she herself carries suit. By her influence as a proprietor, she controls many votes; yet she is not permitted to cast one. She cannot directly control the position of the very representative who imposes her taxes. She is in the same position with regard to all the higher officers, who decide such questions as affect the value of her estate. As citizen, therefore, under the communal law, her position is uncertain and contradictory.
So much for the estimate of woman in France; and so much for the rights of property, of marriage, and of suffrage, founded upon that estimate. What is her civil position? what office or employment is open to her? Women are better off in France, it is again said, than ever before. As merchants, fair chances, barred by some contradictions and anomalies, await them; but whoever ponders their condition cannot fail to see, that here, as elsewhere, the protection afforded by the law is merely the vigilance of a police officer, which protects the criminal, not for her own sake, but for that of society, which her very existence is supposed to endanger.
The most desirable amelioration of her lot will be secured by the admission of her free personality. When society strikes out from the statute-book all distinctions of sex, and admits that she is a person capable of thinking and acting for herself, she will lay the foundation of a new civilization.
In France, we are told, women sometimes fill public functions. They may be postmistresses, and inspectors of schools; or they may take charge of the bureaus of wood or tobacco. They may also be inspectors of public asylums,—a right and a duty of very great importance. As a public functionary, woman fills few and inferior posts; but in these she exercises and possesses all the rights of a man, with one exception,—that exception, alas! the very keystone on which all human success must rest: I mean, the right of promotion. Do not smile, prompted by an unworthy apprehension of my meaning. It is not because women are more greedy or more ambitious than men that I call the right to promotion the keystone of their success. Only small and narrow natures can be content in a treadmill. If constant motion will not carry her over the top of the wheel, instinct prompts the reasoning creature to abate her efforts. No man of his own free will turns into a road which abuts upon a stone wall. The State turnpike is better, where the wayfarer may die by a sunstroke, or perish of a frost; where endless miles stretch over uncultivated wastes: better; for here, at least, the way is open, the sky overhead.
Before proceeding to speak of the English common law, it will perhaps be well to turn from the "Code Napoléon" to the law of Louisiana, in which the influence of the two forms of French law still shows itself. I do not consider the laws of Canada, because they are complicated, not only by the English common law, but by Canadian statutes, somewhat in the spirit of our own recent enactments, and by curious archæological remains of feudal law,—laws which would sound like the decrees of Haroun al Raschid, were I to tax your soberness by setting them before you. They are, let us be thankful, of small practical importance, as is the great body of all law.[34]