The History of Woman Suffrage, Volume IV

by Unknown

As it would be wholly impossible in the small space which can be allowed to include an account of all the legislative work done by women, mention is made principally of that for the franchise. While the successes have been few compared to the number of bills presented, the record is valuable as indicating that determined and persistent effort will not be relaxed until it is granted in every State.

Under the head of Legislation is related also the attempts to get from Constitutional Conventions an amendment striking out the word "male" as a qualification for suffrage. It includes, besides, graphic accounts of the campaigns made in behalf of such amendments when submitted to the voters by the Legislatures. Those who have not closely followed these events doubtless will be surprised to learn the amount of effort which has been expended by women to obtain the franchise. It is infinitely greater than has been put forth for this purpose by all other classes combined, since the Revolutionary War was fought to secure to every citizen the right of individual representation.

The Laws regarding women as here given are in no sense of the word a "brief," but merely present the facts in the language of a layman and in the simplest and most concise form. Those relating to property are in the nature of a curiosity. An attorney in San Francisco who was asked for information as to the laws in general for women in California, answered that to give in full those of property alone would require as much space as could be granted in the History for the entire chapter. It is not possible to make in these introductory paragraphs an adequate digest of these laws in various States. They are not precisely the same in any two of the forty-nine States and Territories, and they offer a striking illustration of the attempts of law-makers, during the last few decades, to rectify in a measure the legal outrages of the past, and of their inability in the present state of their development to grant absolute justice. That must await the lawmakers of the future, and probably the time when women shall have a part in selecting them.

All that can be claimed for the statutes quoted herein is that they are as nearly correct as it has been possible to make them. With but one or two exceptions, the Attorney-Generals in every State have been most courteous and obliging when appealed to for assistance. The laws for women, however, have been so taken from and added to, so torn to pieces and patched up, that the best lawyers in many States say frankly that they do not know just what they are at the present time. Legislatures and code revision committees are continually tinkering at them and every year witnesses some changes in most of the States.[153] A very thorough abstract of the laws, made in 1886 by Miss Lelia J. Robinson, LL. B., a member of the bar in Massachusetts, was of almost no use in the compilation for this volume because of the endless alterations since that time. The Legal Status of Women, a condensed résumé issued in 1897 by the National Suffrage Association, has been covered thickly with pencil marks during the preparation of this summary, as the reports received from different States have shown the changes effected in the few years which have since elapsed. A new book, Woman and the Law, prepared by a lecturer on political science in one of our largest universities and published in 1901, was hailed with joy, but was found to include a number of laws which had been repealed within the past four or five years and to omit some very important ones which had been enacted during this time, as well as to contain frequent mistakes in regard to others.

These instances show the impossibility of an absolutely authentic presentation of the laws for women in their constantly changing condition. Although it was the intention to close this History with 1900, in several States, notably Massachusetts, Connecticut, New York, Illinois and Wisconsin, laws have been passed since that date of sufficient importance to demand a place. During the two years of its preparation the entire codes of property laws for women in Massachusetts and Virginia have been revolutionized.

An amusing part of a difficult task has been the reluctance of men to admit the existence of laws which are conspicuously unjust to women, the admission being frequently accompanied by the statement that it is the intention to change them at an early date, or that it would only be necessary to call the attention of the Legislature to them in order to secure their repeal. Even women themselves in States where the statutes especially discriminate against them, have written that these must not be published unless those from all the others are given. Whether this is due to State pride or personal humiliation is not clearly evident.

The one encouraging feature is that in almost every State decided progress is shown since 1848, when in New York and Pennsylvania the first change was made in the English Common Law which then everywhere prevailed, and which did not permit a married woman to hold property, to buy or sell, to sue or be sued, to make a contract or a will, to carry on business in her own name, to possess the wages she earned, or to have her children in case of divorce. An examination of the laws in the following chapters will show that the wife now may own and control her separate property in three-fourths of the States, and in the other fourth only one Northern State is included. In every State a married woman may make a will, but can dispose only of her separate property. In about two-thirds of the States she possesses her earnings. In the great majority she may make contracts and bring suit. The property rights of unmarried women always have been nearly the same as those of unmarried men, but the Common Law declared that "by marriage husband and wife are one person in law and the legal existence of the wife is merged in that of the husband. He is her baron or lord, bound to supply her with shelter, food, clothing and medicine, and is entitled to her earnings and the use and custody of her person, which he may seize wherever he may find it." (Blackstone, I, 442.)[154]

In his Commentaries, after enumerating some of the disabilities of woman under these laws, Blackstone calmly argues that the most of them were really intended for her benefit, "so great a favorite is the female sex with the law of England." He strikes here the keynote of even the special statutes which have superseded the Common Law in the various States, all have been "intended for her benefit," man alone being the judge of what she needed and careful while providing it to retain within himself the exclusive power of law-making. It has been gradually dawning upon him, however, that, as a human being like himself, her needs are very similar to his own, and where he has failed to see it she has reminded him of it as she has slowly learned this fact herself. The laws show an awakening conscience on the part of men and a tardy but continuous advance toward justice to women, although there is yet very much to be desired. For instance, in reading the laws regarding the inheritance of separate property, which in a number of States is now made the same for widow and widower, the first thought will be, "These are absolutely just." But a little investigation will show that the separate property of either is what he or she possesses at marriage or receives afterwards by gift or inheritance, while all that is acquired during marriage by the joint earnings of the two belongs to the husband. In many States the law now provides that if the wife engages in business as a sole trader or goes outside the home to work, her earnings belong to her, but all the proceeds of her labor within the household are still the sole and separate property of the husband. The Common Law on this point, which never has been changed in a single State,[155] makes the services of the wife belong to the husband, and in return she is legally entitled only to food, shelter and clothes, and these of such quality and quantity as the husband dictates. She can not dispose by will of any of the property acquired during marriage, nor has she any control of it during the husband's lifetime.

These facts should be borne in mind when reading the laws which declare that husband and wife have the same power to dispose of separate property. Comparatively few women in this country have property when married, especially if young at the time, and the same is true of the majority of men, but afterwards the woman may never hope to accumulate any, as the joint earnings of the marriage partnership belong exclusively to the husband, and the duties of the average household prevent the wife from engaging in outside work. However, in order that she might not be left absolutely penniless after years of labor, the Common Law provided that she should be entitled to "dower," i. e., the possession, for her lifetime, of one-third of all the real estate of which her husband was possessed in fee simple during the marriage. That is, she should receive the life-use of one-third of any realty she might have brought into the marriage and one-third of all they had earned together. But if the husband had converted these into cash, bonds, stocks or other personal property, she could legally claim nothing. He had "curtesy," i. e., the life-use of all her real estate, (sometimes dependent on the birth of children, sometimes not), and usually the whole of her personal estate absolutely.

Curtesy has now been abolished in over one-half the States. The law of dower still exists in more than one-half, but special statutes in regard to personal property and the wife's separate estate have been made so liberal that in comparatively few States is she left in the helpless condition of olden times. In about one-half of them she takes from one-third to the whole (if there are no children) of both real and personal estate absolutely; but in all of them it is only at the death of the husband that she has any share or control of the joint accumulations except such as he chooses to allow. At the death of the wife all of these belong legally to the husband and she can not secure to her children or her parents any part of the property which she has helped to earn. Space forbids going into a discussion of the general upheaval which follows the death of the husband, the inventories which must be taken, the divisions which must be made, generally resulting in the breaking up of the home; while at the death of the wife all passes peacefully into the possession of the husband and there is no scattering of the family unless he wishes it. A general but necessarily superficial statement of the property laws will be found in connection with each State in the following chapters, and they represent a complete legal revolution during the past half century.