THE ENGLISH COMMON LAW.
"And we, perusing o'er these notes,
May know wherefore we took the sacrament,
And keep our faiths firm and inviolable."
King John.
IN approaching the subject of English common law, we come nearer to our own special interests. Twenty years ago, I am safe, I think, in presuming that this law was the basis of all our legislation in regard to woman, if we except that in French or Spanish territory; and, in criticising its provisions, I shall criticise all that is objectionable, whether in the laws that have been changed, or in the laws that remain to be changed, in our own States.
If we were to examine the literature of England with reference to this subject, we should probably find from the beginning many protests against the present position of woman. It is never safe, for instance, to assume what poets may or may not have said. If Dryden could get so far as to say that there is "no sex in souls," one would think the gentle Chaucer and heavenly-minded Daniel doubtless discerned still deeper things; but of lawyers we may say with some truth, that their early protests were so quietly made as scarcely to be recognized, or were made for the most part by unread and anonymous writers.
In the "Lawe's Resolution of Woman's Rights," published in the year 1632, there seems to be a distinct recognition of the true nature of the law:—
"The next thing that I will show you," says the author, "is this particularity of law. In this consolidation which we call wedlock is a locking together. It is true, that man and wife are one person; but understand in what manner. When a small brooke or little river incorporateth with Rhodanus, Humber, or the Thames, the poore rivulet looseth her name; it is carried and recarried with the new associate; it beareth no sway; it possesseth nothing during coverture. A woman, as soon as she is married, is called covert; in Latine, nupta,—that is, 'veiled;' as it were, clouded and overshadowed: she hath lost her streame. I may more truly, farre away, say to a married woman, Her new self is her superior; her companion, her master."
Still farther: "Eve, because she had helped to seduce her husband, had inflicted upon her a special bane. See here the reason of that which I touched before,—that women have no voice in Parliament. They make no laws, they consent to none, they abrogate none. All of them are understood either married or to be married, and their desires are to their husbands. I know no remedy, though some women can shift it well enough. The common lawe here shaketh hand with divinitye."
In this plain statement of the old black-letter book lies the root of the evil with which we contend: "All of them are married or to bee married, and their desires are to their husbands." Woman, single, widowed, or pursuing an independent vocation, never seems to have entered the head of the law, as a possible monster worth providing for. The world of that day believed in the sea-serpent, but not in her. This book, "The Lawe's Resolution of the Rights of Woman," was, so far as I know, first brought under our notice by Mrs. Bodichon's quotation, in her "Brief Summary of the English Law." Then a few copies found their way to this country, and into the hands of curious persons. People began to wonder who wrote the quaint old book. In pleading before our own Legislature in the spring of 1858, I was myself asked by the committee who was its author; and I think it but right to rescue from oblivion the probable name of this early friend to woman and justice. It is always difficult to trace an anonymous book, and, this time, more difficult than usual, as it was probably published after its author's death.
Sir John Doderidge, to whom my attention was directed by an eminent antiquarian, was an able lawyer, and an industrious compiler of law-books of a special kind. He was from Devonshire, and admitted as a barrister in 1603. He was successively appointed Solicitor-General, Judge of the Common Pleas and of the King's Bench. Among the works known to be his, yet not commonly included in the list of his works, are the "Lawyer's Light," published in 1629; and "The Complete Parson," with the laws relating to advowsons and livings, in 1670,—books of the same class, character, and appearance as the "Lawe's Resolution."
As he died in 1628, I was at first inclined to suspect the fairness of this inference: but a further examination showed that all his publications were posthumous; which accounts, perhaps, for the candor of their covert satire. A few particulars of his life and standing may be gained from the new Life of Lord Bacon, where Hepworth Dixon says that "the Solicitor-Generalship, vacant once more, is given, over Francis Bacon's head, to Sir John Doderidge, Serjeant of the Coif." In 1606, when Sir Francis Gawdy dies, "Coke goes up to the bench; and Doderidge, the Solicitor-General, ought, by the custom of the law, to follow Coke, leaving the post of Solicitor void: but Cecil raises Sir Henry Hobart, his obscure Attorney of the Court of Wards, over both Doderidge and Bacon's head, to the high place of Attorney-General." Since that day, Bentham and Catharine Macauley, Mary Wollstonecraft, and John Stuart Mill, have made the same complaint; sustaining it, however, by vigorous argument for woman's full emancipation, and a demand for the right of suffrage.