The College, the Market, and the Court / or, Woman's relation to education, labor and law

by Caroline Wells Healey Dall

1. To the withholding of the elective franchise.

2. To the law's preference of males, and the issue of males, in the division of estates.

3. We object to the estimate of woman which the law sustains, which shuts her out from all public employment, for many branches of which she is better fitted than man.

4. We object to that estimate of woman's chastity which makes its existence or non-existence of importance only as it affects the comfort or income of man.

We do not mean that the present interpretation of the common law does not sometimes show a more liberal estimate than the law itself, but rather that the existence of this law, unrepealed, unchristianized, is a forcible restraint upon the progress of society.

"A legal fiction," says Maine in his "Ancient Law," "signifies any assumption which conceals, or affects to conceal, the fact, that a rule of law has undergone alteration, its letter remaining unchanged, while its operation is modified." Such fictions may be useful in the infancy of society; but, like absurd formulas and embarrassing technicalities, they should give way before advancing common sense, before the diffusion of general intelligence and a common-school system, which is destined to qualify the humblest man for a full understanding of the law under which he lives.

We have now to consider the laws concerning married women. "On whatsoever branch of jurisprudence may lie the charge," says a late reviewer, "of working the heaviest sum of suffering, perhaps we shall not err in saying that the sharpest and cruellest pangs are those which have been inflicted by our marriage-laws." In making our abstracts, we have need to avoid the absurd complications which confuse, not only simple-minded people, but lawyers themselves; and, to avoid any charge of ignorance or mistake, we will, as far as possible, adopt the language of Mrs. Bodichon's "Summary," which has stood for six years before the English public without impeachment.

We shall not discuss the question, as to what constitutes fitness for marriage in the eye of the law. In Scotland and in England, the consent of the parties is said to be the "essence of marriage;" but, alas! in how many cases is this "consent" taken for granted only, it being, in fact, the most baseless of legal fictions!

In commenting on the English law as compared with the Scotch, the reviewer adds, "A code so unsatisfactory, so unsettled, and by every alteration coming so palpably near to their own system, is one which Scotchmen may be pardoned for declining further to consider, and which certainly they cannot be expected to recognize as the model to which their own should be conformed."

The rule of the English law was, at the institution of the Divorce Court, that the wife should have the same domicile as her husband, and that within English territory. A dishonest domicile barred her claim to divorce; and the husband who abandoned his wife, and fixed his residence abroad, effectually bound her to him. Justice has of late been done, because it was justice, heedless of the question of domicile.

There are in relation to this subject many provisions which wrong men and women alike; and, if there are any which especially wrong woman, they wrong man in a still higher degree through her. As an example of the former class, we may take the impossibility of release from a hopelessly insane partner, which makes the point of the wonderful story of "Jane Eyre."

Now, several things are quite evident to the eye of common sense:—

First, That the insane partner should be properly provided for during life, in the upper classes, by the sane partner; in the lower, by the parish or state.

Second, That as it is a sin against God and society to bring children into the world, born of a hopelessly insane parent; so, on the other hand, it is a sin against God and society to compel any man or woman to a life of hopeless celibacy.

Third, That, if the law does use this compulsion, it is responsible for the vicious connections that inevitably grow out of it; "car les mauvaises lois produisent les mauvaises mœurs."[35] I should not turn aside from my main point to consider this, even for a moment, if it were not a striking instance of the want of common sense which afflicts the common law, and if I had not in my own experience been made aware of its frightful results. Within the limits of one small parish in the city of Toronto, Canada West, I found four instances in which men of the middle class had taken the right of divorce into their own hands, and were illegally married a second time. These persons, if not markedly religious, were respectable, orderly members of society, living properly in their families, supporting the wives they had left, and justifying the course they had taken. Two of them had left England on account of the hopeless insanity of their wives, and two on account of their hopeless immorality; the latter, cases in which the law would have granted a divorce, but at an expense which the husband could not pay. When I first heard this account of one person, I resented it as a slander, and went to console the afflicted wife, who was overwhelmed by the supposed rumor.