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 Alexander[82] that Moses placed widows in the same rank as harlots and profane women.[83] 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.[84] 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.[85] 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.[86] 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.[87] 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.[88] 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,[89] a species of justice not found under Christianity. The laws of “Howell the Good,” enacted at a later date under the supervision of the church[90] 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.[91] 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.[92] 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.[93] 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.”[94]
During the feudal period parents gave themselves up to merry-making and rejoicing upon the marriage of the last of their daughters.[95] 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.[96] 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.[97] 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.
Germany with sudden strides has coalesced from a number of independent principalities through the management of him of the iron hand, into a magnificent empire, based upon the destruction of human life. In this empire, where war underlies all, we find woman much more deeply degraded than during the old pagan days, when as chieftain and prophetess her voice was heeded even upon the battlefield. Now, while men are preparing to kill other men, the agriculture of the country and the lowest forms of mechanical labor fall into her hands. But it is not as responsible owner we thus find her; she cultivates the fields as a drudge, upon whom falls all the most severe portion of work. Equally in Germany as in other christian lands, is the wife looked upon as the servant of the husband, to whom she bears children that are his alone, and to whom greater deference is paid by the mother when a large number of little ones call him father.[98] It has been the custom to reward a husband in proportion to the number of children borne him by his wife, and it is but a year since a Parisian journalist suggested that for each additional child borne by his wife, the husband should be allowed half a vote. In Germany as under the common law of England, the wife is subject to chastisement by her husband, its severity being left to his discretion. But the height of barbaric absurdity and wickedness is found in that provision of the Prussian common law which decrees that a husband can determine the length of time his wife must nurse her child. As might be expected, at his death the wife is not regarded capable of caring for the children, and must accept a guardian for them; the law going so far as to declare her under age similarly to that French law which makes woman a perpetual minor. It matters not if the family property all came through the wife, or was accumulated by her labor, she is still held as not of sufficient judgment for its control. In Prussia, woman is still forbidden to take part in political or other public meetings.[99]