MIA: Library: Mary Beard, Woman as a Force in History, 1946
Woman as a Force in History. Mary Beard 1946
Equality as the Escape from Subjection
WHILE JUDGES presiding in courts of equity were administering justice, guarding the interests of family cohesion or protecting the property of women as of men from seizure by undue process, zealous efforts were being made outside the courts, in the nineteenth century, to introduce spacious principles of justice into law by legislation by the enactment of statutes. Women reformers thus directed their attacks against those features of the common law which they called tyrannical to women – their judgment being derived from Blackstone’s over-simplification respecting the common law conception of marriage.
Given this acceptance of the, Blackstone emphasis on the common law, it was natural that women reformers, who concentrated on the task of substituting liberty for tyranny in law, should pay little heed to the methods provided by equity. Taking equality between men and women, not equity, as their slogan, they forged ahead, hewing to a straight line of agitation based on a narrow interpretation of history. Their line gave an intensity to their declarations and a single track to their program for action that made their revolt against the “status” of women “at law” take on the fury of a storm. It provided the satisfaction of a “fight” for women possessing great physical energy and oratorical power. It also offered the more or less dubious satisfaction of bringing “sleeping dogs” to the bark arid the bite.
Women Proclaim Subjection and Demand Equality – in 1848
An organized movement for wholesale reform in the interest of “sex equality” started at Seneca Falls in the state of New York, in 1848, when a convention of women and men accepted woman’s historic subjection to man as a fact and declared her equality with man to be the goal of their ambitions. The Declaration of Sentiments adopted at that convention asserted without qualification: “The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.”
Having made the broad charge against man, the convention then presented a list of grievances to support it, patterning them on the American men’s Declaration of Independence submitted to a “candid” world as well as to the British government in 1776. Though the women found it somewhat difficult to match the exact number of grievances which had been assembled in the men’s Declaration of 1776, as Elizabeth Cady Stanton later confessed, they finally accomplished the feat and specified the “abuses and usurpations” of which man was guilty in gaining his object – “the establishment of an absolute tyranny over her [woman].”
What principle or idea or assumption or dogma was to guide women in escaping from man’s “design to reduce them under absolute despotism"? The convention set it forth in a solemn declaration: “Resolved, That woman is man’s equal – was intended to be so by the Creator, and the highest good of the race demands that she should be recognized as such.”
In the principle of Equality the rebellious women of 1848 thus established their warrant for waging war on mares tyranny and in the same principle they fixed the object of their revolt. They affirmed their faith that “equality of human rights results necessarily from the fact of the identity of the race in capabilities and responsibilities.” Here they set forth for themselves and for generations of women to come the ideal that freedom from tyranny required complete and unconditional equality with man – with the male creature who had, throughout history, pursued as a “direct object the establishment of an absolute tyranny over” woman. It is true that in coupling responsibilities with capacities and rights, especially in many of their ensuing public speeches, the “new women” struck a social note which was absent from most of men’s great documents on their own struggle for equal rights among men. Yet in the prolonged contest for equal rights with men, leaders of the woman movement steadily fixed their attention on legal and political equality rather than on women’s force, potentialities, and obligations.
Unquestionably there was dynamism in the slogan: Equality! Here was a formula of perfection, hoary with age and ringing with revolutionary associations. The women Of ‘48 did not invent the word or the idea behind it. They adopted a conception older than Christianity, an ideal pagan in origin. The utter simplification of historic processes, the propagandistic convenience, and the flavor of utopian grandeur represented by equality furnished fuel for a fiery crusade.
The Idea of Equality – History and Nature
The English word equality was derived, in the fifteenth century, from the old French word, égalité, which then had merely a mathematical meaning – equality of time, equality of space, equality of distance. But during the revolutionary upheaval of the seventeenth century in England the meaning of equality was given a social significance. From its old French usage as signifying uniformity or “exactly the same in measure, amount, degree, value, or quality,” it came to signify what is right, proper, just, and reasonable.
In this broader usage the idea of equality corresponded to a matured Roman concept of social justice – to the Latin verbal form, aequalitas. As Roman governors and jurists were compelled to deal with the inhabitants of conquered provinces adeptly, if they were to retain control, and with all sorts and conditions of people who were not Roman citizens, they learned that all peoples have certain things in common and out of this knowledge they established the famous jus gentium, or the common law of peoples in the Roman Empire. Finally the Romans reached the conclusion that nature had originally decreed human equality and that disobedience to this mandate of nature had marred the “natural law” of equality. It was this ancient Roman theory, legal and philosophical, which Rousseau was to reaffirm in the eighteenth century with his declaration that men were born free but were everywhere in chains – the chains to be severed by a return to “natural” rights.
In the broadening of Roman thought beyond the confines of the tribal state, a continuous and treasured belief was held in the essential oneness of humanity, despite glaring discrepancies in human customs. Epictetus, an enslaved Greek, insisted that human beings are all children of God and are duty-bound to cherish love for, and practice forbearance toward, one another. Weakness has its claims and strength its moral limitations, he maintained. While in Roman history no assembly proclaimed the rights of man, as did the Continental Congress of the American colonies in 1776 and the French Revolutionary Assembly of 17 89, all the elements of such a declaration could be gathered by students of classical literature from the writings of Roman philosophers and moralists. Though neither the American declaration of rights nor the French bill of rights proclaimed the rights of women, specifically, the women of 1848 could feel that they were operating in a great tradition when they proclaimed equality as a right of women and as offering an escape from “tyranny.”
In Roman writings had been foreshadowed the teachings of Jesus Christ respecting the oneness of humanity. Seneca had said: “We are all akin by nature which has formed us of the same elements and placed us here together for the same end.” To a similar conclusion the meditative emperor, Marcus Aurelius, had arrived: “If our reason is common, there is a common law... . And if there is a common law, we are fellow citizens; if this is so, we are members of some political community – the world is in a manner a State.” And in this evolving philosophy the moral worth of the human personality and the principle of human equality were clearly and categorically asserted in the teachings of Christianity: “Of one blood are all nations of men... . There is neither Jew nor Greek, neither bond nor free, neither male nor female; for ye are all one in Jesus Christ.”
From the flowering of Christianity in the later ages the idea of human equality was never absent. It is true that many Christian writers and teachers, recognizing the force of woman in society, inveighed against woman, declared her a source, if not the source, of evil in the world, and proclaimed in bitter language that she ought to be in all things subject to man. But such teaching was utterly different from the contention that as a matter of fact woman had been throughout the past subject to man and still was. Moreover it is possible to assemble from other Christian teachings quotations giving entirely different views of woman; and in any case the doctrine of human equality continued to be asserted amid the storms and strains of the centuries. Among the early Christians there were many writers who maintained that this equality should extend to community of goods. Even after the triumph of feudalism in the middle ages of Christendom, the idea of equality retained a strong grip on the thought of the plain people and its power was demonstrated in the peasants’ revolts which menaced the dominance of lay and clerical landlords.
The idea of equality was revived with renewed zest after the unity of the Catholic Church had been broken by the Protestant Reformers and the unity of succeeding Protestant State Churches had been shattered by the assaults of dissenting sects. The idea of equality was upheld and preached with vehemence by the Levellers who supported the Cromwellian revolution against Charles I of England and overthrew the British monarchy in 1649. Among the Levellers, Baptists were outstanding leaders but other dissenting sects in England also promoted the egalitarian doctrine.
In one of the Levellers’ tracts it was declared: “By naturall birth all men are equally and alike born to like propriety [property] liberty, and freedom ... every man by nature being a King, Priest and Prophet in his owne naturall circuite and compasse.” In another tract it was asserted that originally men and women were “by nature all equall and alike in power, digny [dignity], authority, and majesty, no one possessing any right of dominance except by mutual consent.”
Though the monarchy was restored in England in 1660, the doctrine of equality was not extinguished. It is true that in the pronouncements of men, equality among men was emphasized and the larger equality of men and women was commonly ignored. Nevertheless the idea of equality was kept in circulation for the benefit of men at least and women could recover its significance for themselves and put it into circulation whenever their purposes were to be served.
For the men’s purposes primarily, Thomas Hobbes set forth this formulation in 165 1. He was personally attached to the monarchy but in his Leviathan he offered a wider view of mankind: “Nature hath made men so equal in the faculties of body and mind, as that ... when all is reckoned together the difference between man and man is not so considerable, as that one man can thereupon claim to himself any benefit to which another may not pretend as well.”
This broad statement of equality John Locke, however, did not support. Nevertheless his influence in America penetrated to the firesides of nearly all literate men and women in the new world directly or through the work of Jefferson. This was the way in which Locke put the case for equality: “Man being born ... with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property ... but to judge of and punish the breaches of that law in others.” While accepting the thesis of the equality of men “by nature,” Locke did not say that men are equal in fact or are born in it. He merely maintained that they are born to equality. If this means anything, it means that in the imaginary original society – imaginary because it cannot be known as it actually was – called “natural,” men were entitled to equality by some moral concept.
Nor did Jefferson adhere to Hobbes’ doctrine that men are substantially equal in mind and body. He was more akin spiritually to Locke. In the famous Declaration of Independence with which his name is linked as framer, he asserted only that “all men are created equal.” When he added that all men “are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness,” he did not say that these rights are equal in form and substance. No less cautious had been the Virginia Declaration of Rights proclaimed a short time before by the Virginia assembly. It announced merely that “all men are by nature equally free and independent.” To conservative defenders of chattel slavery and the class orders so obvious in American society in 1776, when those two bold declarations were given out to the public, the doctrine that all me n are created or are by nature equal was a meaningless and glittering, if not a positively dangerous, generality which did not correspond to known facts in the case and was impossible of realization. Yet the doctrine persisted. Inspired by it as ideal, American men moved toward equality among themselves in several respects, notably in voting rights and in the abolition of chattel slavery.
Insofar as the doctrine of equality, whether for men only or for men and women together, represented simply an opposition of Nature to the established institutions, ranks, classes, and special privileges of society as it existed in times and places when the doctrine was preached, it was essentially negative in its practical applications. Insofar as the theory of equality was derived from a theory of a golden age in the dim and distant and unknown past, it was altogether romantic, especially when used to urge the restoration of a golden age never to be recovered as an experience identical with that of original men and women.
In its negative aspect, the idea of equality was directed primarily to the destruction of all special privileges enjoyed by specific persons and classes in society – in Europe particularly the privileges of King, Aristocracy, and Clergy. As against such privileges, the French Revolutionists proclaimed Liberty, Equality, and Fraternity!
But the doctrine of equality also represented from time to time positive aspirations. As upheld by the Levellers it maintained that every human being was a peer of a king and a priest, and a master of property in his own bailiwick or province. For women it often meant, simply, taking the stature of man as the measure of excellence and endowing woman with his qualities, aims, and chances in the world for personal advantages.
Efforts to give constructive concreteness to the idea of equality as the years of the nineteenth century passed led far and wide into sociology and economics, and thus into a maze of perplexities. Jeremy Bentham had sought to work out the implications of equality by devising some standard of measurement. If “everybody is to count for one, nobody for more than one,” for what is everybody to count? What is the substance of equality desired for all? Bentham decided that the substance is happiness and that the aim of legislation should be to assure the greatest happiness to the greatest number of people in some proportion of equality. As John Stuart Mill, famous author of The Subjection of Women and proponent of their emancipation through equalizing legislation, interpreted the principle of measurement, Bentham had simply assumed that “equal amounts of happiness are equally desirable, whether felt by the same or different persons,”
Although the doctrine which Bentham taught was ridiculed as “the greatest happiness principle and ‘the calculus of pleasures and pains,” especially by adherents of old systems of thought and social arrangements, in fact Bentham did more to humanize and rationalize the criminal and civil laws of England than any other single individual in the nineteenth century. He also aided in kindling a similar reforming spirit on this side of the Atlantic in his time.
Yet, when everything had been said that could be said about the idea of equality in happiness, at least for the greatest number of human beings, the idea was still a shadowy guide to practical applications. It was comparatively easy to provide that each man, or every man who met certain broad tests, should have one vote, and thus become a political equal at the election polls. It demanded no great acumen to write into constitutions or statutes the principle that all men or all persons including women shall be equal before or under the law. But the idea of equality in property rights, as between men and women, which the American women of 1848 were disseminating, if actually reduced to legislation, would involve the definition and acceptance of some fundamental system of ownership and economic practice about which their notions were exceedingly hazy, judging by their speeches and printed works in 1848 and afterward, if discernible at all.
This question of property ownership and economic practice had been recognized from ancient times by reflective thinkers who pondered on the nature and applications of equality. Plato a pagan and many early Christians had considered this matter and had decided that only by communism – the community of goods – could the philosophy of equality be actually applied. After the French revolutionists of the eighteenth century had adopted the idea of equality, Francois Babeuf and his followers declared that equality called for a still greater revolution than the one in process in France: “something more sublime, more equitable ... common property.” Conservative American critics of Jefferson’s theory of equalitarianism prophesied that it would lead to similar demands for the leveling of property rights in the United States. In 1848, the year of the woman’s rights convention at Seneca Falls, the phantom of communism had raised its head in Europe and seemed to be raising its whole body in a general European revolution. Nor were wide-awake Americans indifferent to that fact.
But the communist theory of equality as practice attained no great vogue in the United States, notwithstanding the large number of communistic colonies founded in various parts of this country in the first half of the nineteenth century. To Americans at large it made little appeal. Their continent was not yet occupied and exploited in 1848 when women assembled at Seneca Falls to denounce special privileges for men and “civil death” for women in marriage, in an answer to the Blackstone thesis of privilege and perfection. Equal opportunity for the exploitation of natural resources and for business and professional careers seemed the easiest thing in the world to have and enjoy.
Communism ran counter to the insurgent theory of individual liberty and individual rights, associated with the rise of capitalism in the modern age and marking the advance of democracy in the United States during the Jacksonian upheaval. It was widely realized that, if property were held and effectively operated in common, the other rule of communism would have to come into force if real equality were to be established: “from each according to his abilities and to each according to his needs.” In other words, the strong individual would be subjected to the necessities of the weak and obligations would be superior to rights or, at all events, materially limit them. Thus a paradox appeared: the idea of equality leads to communism and the inequalities of the strong and the weak under communism are to be obviated by the subjection of the strong to the weak.
The paradox troubled most Americans not at all. If writers and speakers in general knew of its existence, they betrayed slight, if any, consciousness of it, deeming it academic or worse. They were committed to other views of equality defined principally in political, libertarian, or social terms.
During the nineteenth century the system of economic thought which triumphed over other systems in the United States was that known as laissez faire, or individualism. English in origin, the theory took root in the new world and won strategic positions in seats of the higher learning, in the press, and on the platform. Under this system of economic thought the functions or obligations of the state and the community were reduced mainly to the maintenance of order and the protection of private property. This was the political concept of the state as a police state. Under this state, each possessor of property was to do whatsoever he wished “with his own” and individuals were to enjoy full liberty and equality to compete with one another for the possession of property and prestige.
As far as it was logically applied, the creed was atomistic in its social effects. It split families, communities, and society at large into units, into individuals, having equal rights to engage in the pursuit of happiness and property. The family, the community, the larger society embracing families and communities were played down. The individual was exalted and the competitive urge among individuals was regarded as a natural and socially wholesome human attribute.
It was admitted that equal right or liberty to compete did and would result in great inequalities of wealth and of opportunities for acquisition and enjoyment. But it was assumed that, as Adam Smith, regarded as the father of the competitive principle, said, the process would redound to the general good under “the invisible hand” of Providence. The fiercer the competition, the larger would be the production of wealth. In the struggle of individuals for a foothold and survival, the family and even society in the large would in some mysterious way take care of themselves, while individuals, lifted to the privilege of free competition with one another for the possession of all things they held dear, enjoyed their liberty.
Vicissitudes in the Idea of Equality
As the discussion of equality went forward, efforts were made to explore it anew in its historical and sociological concreteness; and in this exploration women were made the center of new inquiries respecting their nature and talents and social role or function. Old questions were reformulated in the light of findings or sheer assumptions in anthropology, psychology, and sociology. Were all men exactly identical with all men in physical nature, mental interests, and aspirations? How far could proclamations of rights and prescriptions of law introduce exact equality of men with men, of women with women, of women with men, where, as alleged, equality did not exist? Is it possible to make all men and women equal in rights or in goods? If so, by what laws and institutional arrangements?
Some answers became as controversial as the theory of equality itself. Some were documented by knowledge and experience. Others were merely logical deductions from asserted premises having feeble or no roots in knowledge or experience.
On the issue of physical, mental, and moral equality among men, the general verdict was negative. In self-evident respects men varied widely as to physical strength, intellectual powers, manners, and moral character.
On the issue of women’s equality or identity with men the verdict could not be reached as easily. Like discussions of witchcraft in the seventeenth century, so in this discussion in the nineteenth and on into the twentieth century, ludicrous contradictions carried the matter far out of the bounds of reason. Confusion was scarcely less confounded among women who talked on the theme of sex equality than among men who discoursed on the subject.
For example, leaders of the woman movement at some times and in some places stood fast by the contention in the Seneca Falls Declaration of Sentiments that the overweening object of man had been to hold woman in servitude to him and that the “history of mankind” is a history of “man’s repeated injuries and usurpations,” at least as far as women are concerned. At such times and places they represented women as rightless, in long history and passive in that condition. Yet at other times and places, confronted with the question as to how a creature who had been nothing or nearly nothing in all history could suddenly, if ever, become something – something like man, his equal – a few leaders in the woman movement used history to show what force women had displayed in history.
This contradiction is manifest in the volumes of the huge History of Woman Suffrage put together from the archives of the campaign for woman’s enfranchisement from 1848 to the 1880s by Susan B. Anthony, Elizabeth Cady Stanton, Ida Husted Harper, and other workers in that movement. In the first volume the dilemma is disclosed. The first chapters of that volume deal almost entirely with the great “achievements” of women in times past, from the Abbess of Whitby in the ninth century to George Sand, Florence Nightingale, and Clara Barton in the nineteenth century. The second chapter is devoted entirely to women in journalism and it presents historical facts about important women editors, publishers, and writers from colonial times in America to the very moment when the very doctrine of subjection was being stoutly asserted in the best Blackstonian style. In Chapter IV, so closely following the accounts of women, single and married, who were not mere victims of men’s “tyranny,” occurs the Seneca Falls Declaration against man the tyrant and the attendant Resolutions of resistance to his mastery. Yet throughout the mammoth volumes of this History of Woman Suffrage, a record setting forth women’s labors in this cause, are scattered extensive references to women as writers, speakers, agitators, business enterprisers, doctors, teachers, and other types of non-domestic activists, most of whom were wives and mothers living on good terms with their husbands and sons.
With this logical dilemma a few outstanding leaders of women wrestled. They had some familiarity with the attempts of philosophers in preceding centuries to reduce the issue of human equality to such precise formulas as equality before the law, equality in respect, equality in freedom of expression. With meager or no reference to those ancient mental struggles, however, women reiterated their formulas during the nineteenth century in the United States: formulas which rang round the world. These included such phrases as equal protection of the laws; equal opportunity in all “fields of endeavor”; equal suffrage; and equal privileges and immunities, including the right to hold public offices. But the favorite line of assertion was simplified to the absolute and unconditional demand for “equal rights” and “no discrimination on account of sex” anywhere in any relation.
Women were eloquent and effective in exposing innumerable instances of horrifying abuses that had arisen under the common law to which so many American lawyers clung. They were incisive in portraying, often with wit and humor, the arrogance of those men who asserted and boasted of their superiority as members of the masculine sex, while paying tribute to the superior virtues of women in language more maudlin than authentic. But women were open to cutting thrusts from the other side, when they displayed indifference to or ignorance of the actual terms of law and equity in their own times and places, as well as in other ages and places.
Moreover, the laws, rules, and interpretations against which women protested were not all rigid Eke fossils in a museum. Practices under them had direct bearings on the sentiments and habits of living men and women pursuing their daily affairs. New kinds of controversies involving the property rights of husbands and wives, and claims of their creditors and children, were constantly taxing the ingenuity of judges. New decisions and opinions were pouring out in torrents from courtrooms. As soon as a new statute affecting, even in a slight degree, the rights of husband or wife was passed, unforeseen consequences and disputes appeared; judges, often having in the law no clear guidance for such special cases, rendered decisions which were regarded as violating the ideal of equality; and new reforms were instantly demanded. Thus law reform and law practice revolved together in an endless cycle through the years.
Efforts at Realizing Equality by Legislation
It was in such circumstances that leaders in the woman movement set out to criticize existing laws respecting married women’s property rights, to break what they called the yoke of subjection, and to consider the kinds of new Legislation which would realize the ideas of independence and equality they had formulated in general terms. To cover all the Legislation which grew out of the reforming zeal of these women and their aides among men would require many volumes of a comprehensive encyclopaedia of statutory law. AU that is possible here is to present some illustrations of a single type of Legislation, and the type chosen consists of laws loosely known as married women’s property acts – acts which in the main merely reduced to statutory law or applied universally certain rules of equity devised by men as chancellors or equity judges in the course of the preceding centuries.
About 1830, long after Equity had emancipated millions of women from the rigidities of the Common Law so admired by Blackstone and his disciples, a widespread demand arose for married women’s property acts. Such an act meant the abolition of numerous common-law rules respecting the right of the husband to control his wife’s real estate and take possession of her personal property, in case no pre-nuptial or post-nuptial settlements or arrangements intervened. Rights which prudent parents had long secured for daughters under Equity were now to be extended to all married women as a matter of written law. In upshot, the distinction between Common Law and Equity, which had led to so much misunderstanding in relation to married women’s rights, was eliminated by legislative acts; and special precautions in the form of elaborate legal documents, drawn by skilled lawyers, were no longer necessary to assure the possession of property to the married woman as against her husband and his creditors. Henceforward, as to future marriages at least, in states which passed this legislation, the husband had no common-law estate in his wife’s real property; and his rights to her personal property, including her chattels, money, and choses in action, went by the board. In this way the doctrine of the separate estate for married women, which had been a creation of Equity, was embodied in the express terms of statutory law and put beyond the reach of the Blackstone lawyers.
A married women’s property act was, therefore, simple in principle. But in applications the terms of such an act were difficult to draw. Despite the theory of independence and equality which was supposed to furnish guidance in drafting the act, law-reformers and law-makers actually confronted a paradox: “The wife is to be treated as if she were a single woman in respect of her property, but in marital relations she has obligations not assumed by single women and is no more of a single person than her husband is; for both are entangled in a network of duties not imposed on single persons.” Is the wife to be free to use her property as she pleases while the husband is in straits to support her and their children?
In what, if any, circumstances is the wife to be under obligations to support the family in part or whole? Is the owner of the home, whether husband or wife, to be allowed to sell it at will, without the consent of the other party to the marriage contract, and turn the family out of it? These and a hundred other questions taxed the adroitness of law-makers and were answered by women and by men in many different ways. No mere declaration of equality could dispose of them in a few words. At no time or place did it prove possible to write one married women’s property bill which could settle all these questions.
But long before the close of the nineteenth century disciples of Blackstone were in full flight before new legislation. In some states men took the lead in framing and driving reform bills through legislatures; in others, women took the initiative; in others men and women cooperated.
In the North, New York broke the path for a thorough reformation of the law relative to the property rights of married women. As early as 1836 a proposal to effect this change was introduced in the legislature but not until 1848 was the married women’s property bill enacted into law. With the passage of the bill in 1848 the agitations of women apparently had little to do. According to the records printed in the History of Woman Suffrage, the measure was drawn by a member of the legislature who was eager to safeguard the rights of his wife, and it was vigorously pressed by another member equally eager to protect the interests of his daughter. The bill was introduced in January; it passed in April and was quickly signed by the governor. In the Senate the vote on the bill was: ayes 23 and nays 1. In the lower house of the legislature the vote was: ayes 93 and nays 9. During the whole proceeding only one petition favoring the bill was presented to the legislature and that petition was instigated by one of the members especially desirous of having the bill passed. So little did the leaders of the woman movement know about the history of the bill that years afterward one of them wrote to a member of the legislature asking him for information as to the origin and passage of the measure.
Perhaps the most remarkable thing about the New York Act was the ease with which it was carried through the legislature. The proposal was, from the point of view of Blackstone lawyers, radical and dangerous. As George Geddes, a sponsor of the bill in the Assembly, afterward wrote: “The measure was so radical, so extreme, that even its friends had doubts; but the moment any important amendment was offered, up rose the whole question of woman’s proper place in society, in the family, and everywhere. We all felt that the laws regulating women’s, as well as married men’s, rights demanded careful revision and adaptation to our times and to our civilization. No such regulation could be perfected, nor has it been since. We meant to strike a hard blow , and if possible shake the old system of laws to their foundations, and leave it to other times and wiser counsels to perfect a new system... . We had in the Senate a man of mature years, who had never had a wife. He was a lawyer well-read in the old books and versed in the adjudications which had determined that husband and wife were one person, and the husband was that person; and he expressed great fears in regard to meddling with this well-settled condition of domestic happiness. This champion of the past made long and very able arguments to show the ruin this law must work, but he voted for the bill in the final decision.”
The New York law of 1848, as its sponsors had foreseen, was soon found to need amendments, and in time many amendments were passed. For example, an act of 1860 provided that “any married woman may bring and maintain an action in her own name for damages against any person or body corporate for any injury to her person or character.” The same statute also declared that “every married woman is constituted and declared to be the joint guardian of her children, with equal powers, rights, and duties in regard to them, with her husband.”
Two years later, in 1862, the New York legislature was again moved to make modifications in the rights of married women and men. Over this act, however, a heated dispute arose. Leaders in the woman movement asserted that the act marked retrogression and not progress in the development of married women’s rights. judge Charles J. Folger, who had been chairman of the judiciary committee of the New York Senate, in which the bill originated, took great pains to explain that, in his opinion, the new act gave greater powers and freedom to married women in most respects, while in others it enlarged the property rights of the husband. Whatever the merits of this controversy, it effectively illustrated the difficulty of settling, by egalitarian legislation, all at once and for all time, every issue pertaining to the respective rights and obligations of husband, wife, children, relatives, and creditors with reference to the ownership, use, partition, and disposition of property.
The next Northern state to make a drastic revision of the old law and confer new property rights upon married women was Massachusetts. Here leadership in the opposition to Blackstone doctrines and in the movement to secure new legislation was taken by women, with Mrs. Mary Upton Ferrin in the forefront. She enlisted the support of other women and the assistance of many able men as early as 1848. For six successive years she presented petitions to the legislature. In 1850 Mrs. Ferrin made an address to the judiciary committee of the legislature in which she presented an informed and well-organized argument against the old laws and in favor of a comprehensive bill enlarging the property and personal rights of married women. Four years later, in 1854, still prodded by Mrs. Ferrin and her associates, the Massachusetts legislature passed an act securing to every woman, married after the act, control over her property, the power to make a will without her husband’s consent (except as to one-half her personal property), and certain fixed rights in the property of a husband dying intestate. In 1855 the divorce law of Massachusetts was amended in the interest of more equal rights for women.
It was with justice that the authors of the History of Woman Suffrage paid tribute to Mary Upton Ferrin, “who for six years, after her own quaint method, poured the hot shot of her earnest conviction of woman’s wrongs into the Legislature. In circulating petitions, she traveled six hundred miles, two-thirds of the distance on foot. Much money was expended, besides her time, and her name should be remembered as that of one of the brave pioneers in this work.”
While Mrs. Ferrin was making her drive on the Massachusetts legislature, Robert Dale Owen was pleading with the people and law-makers of Indiana for legislation which would, as he had phrased it in 183 2, abolish “the barbarous relics of a feudal, despotic system” and assure to women all the personal and property rights demanded by “the good sense and good feeling of this comparatively civilized age.”
For more than thirty years a citizen of Indiana, and often a member of the state legislature, Owen labored in this cause. As a member of the State Constitutional Convention in 1850 he sought to write the principles of a married women’s property act into the new state constitution then under discussion. He was defeated in this attempt by lovers of the common law who declared that heaven, home, and mother would be outraged by this innovation, but Owen persisted in his agitation. Within a few years, by various amendments to the statutes and novel provisions of law, Indiana adopted the principal features of an “ideal” married women’s property act.
After the civil war, when Connecticut finally came around to a serious consideration of the laws affecting the personal and property rights of women, it was largely, if not principally, under the influence of forceful women that the hearts and minds of legislators were turned to the enactment of a married women’s property bill. Most active, steadfast, and indomitable among them was Isabella Beecher Hooker, daughter of’ the Reverend Lyman Beecher and wife of Thomas Hooker sixth in descent from Thomas Hooker, memorable leader among the founders of the colony in the seventeenth century. While her husband was a young lawyer, she had learned the doctrines of Blackstone in his office and instinctively revolted against the creed that woman’s existence was suspended during marriage. Encouraged by her husband,. who shared her views, Mrs. Hooker adopted the principle of woman suffrage and began a campaign for a married women’s property bill.
By 1869 the agitation for such a bill had advanced so far that Marshall Jewell, a wealthy manufacturer who had just been elected governor of the state, sent a message to the legislature calling for a revision of the laws affecting the rights of married women. He called attention to the fact that such laws had been amended from time to time in recent years with a view to securing for them “in a more ample manner their property held before or acquired after marriage,” but he reminded the legislators that “yet we are still considerably behind many of our sister states, and even conservative England.”
For a time the legislature delayed action. But Mrs. Hooker and her supporters redoubled their efforts. At last in 1877 they were successful. In that year Governor R. D. Hubbard, in a forthright message, informed the legislature that “the property relations of husband and wife do not to-day rest upon any just or harmonious system,” and urged the immediate enactment of new legislation on the subject. A bill prepared by Mrs. Hooker’s husband was introduced in the legislature and quickly enacted into law.
By the Connecticut act of 1877 provisions of previous legislation which had left untouched the right of the wife to property acquired before marriage were amended and new principles established in law. The new act, incorporating the views and sentiments of Mrs. Hooker and her husband, was broad in its range. The burden of supporting the family was placed upon the husband. In respect of all future marriages the wife’s property and her earnings were to be her sole property; she could convey her personal and real property to others without the consent of her husband; her property was to be liable for her debts but not for his; the husband was not liable for any of her debts except those incurred for the support of the family.
As to purchases made by either party, they were presumed to be on the account of the party in question but both were liable where purchases actually went to the support of the family. In order that the duty of the husband to support the family could be strictly enforced, his property was first to be applied to the satisfaction of this liability, and the wife was entitled to indemnity for the use of her money to satisfy any such claims against him. On the death of either the survivor was to be entitled to the use for life of at least one-third of the other’s estate. Special provision was made authorizing men and women already married before the passage of the act to surrender their rights under the old laws for the rights provided by the new law. This they could do by a mere registration of such a contract in the records of a probate court. Not without reason did the editor of a newspaper comment that under such legislation “in some respects the woman is now the more favored party.”
So far had the movement for property rights advanced by 1856 that Lucy Stone could report to the seventh National Woman’s Rights Convention: “Now almost every Northern state has more or less modified its laws.” Maine, Massachusetts, Vermont, New Hampshire, Rhode Island, and New York had gone far in the new direction. “Ohio, Illinois, and Indiana have also very materially modified their laws.” Michigan and Wisconsin had also satisfied most of the demands of women in this regard. From Nebraska in the distant West news of coming victories was proudly hailed. “In England, too,” Lucy Stone concluded, “the claims of women are making progress.” In time Blackstone’s formula on the “civil death” of married women was blasted throughout the Union by written law.
But in some of the states a different form of regulating the property relations of husband and wife, known as “the community system,” was adopted instead of the type represented by married women’s property acts. Under the influence of Spanish and French laws, bearing traces of the ancient Roman civil law, Louisiana remained from the outset a “community property” state; and for various reasons Texas, New Mexico, Arizona, and California chose that form of marital property relations. Furthermore, Nevada, Washington, and Idaho, where Spanish influences had been nonexistent or at least negligible, deliberately chose that type in preference to any of the statutes enacted in the Eastern sections of the country. And, as a matter of fact, even in the old common-law states, before and after the passage of married women’s property acts, the rules of community property, the property of husband and wife, reigned to a large extent in practice.
Neither at the close of the nineteenth century nor at any time afterward was it possible to summarize in a few statements, necessarily more or less abstract, the principles governing married women’s property under acts modifying the common law or establishing a system of community property. The general rules governing the rights of the husband or wife in separate property and their rights to separate actions relative to the use and disposition of such estate were fairly clear in both systems; but they were qualified on one side or the other, in the interest of the community obligations entered into by the man and woman by the voluntary act of marriage. In addition they were further qualified in the interest of children born to the couple, for the appearance of children raised questions as to their rights of support and inheritance in the property of the mother or the father or both.
In their efforts to clear away anachronisms and to bring the law abreast the advance in civilization, legislators did not, indeed could not, treat a man and a woman who had chosen to marry and bring children into the world as if they were perfectly free and entitled to be wholly whimsical with their respective properties and earnings, without regard for obligations due to each other. Nor could legislators overlook the rights of their children, their creditors, and their more or less distant relatives. All law-makers recognized the fact that husband and wife had to surrender some freedom by virtue of their very marriage contract. How much and what kinds of freedom?
On this question men were divided and women were divided. So were and have been legislators and it is likely that they will ever be. In consequence, statutes declaring the general principle of freedom varied widely as to the detailed expression of that freedom and as to the limitations imposed in the interest of the family as a community. It was the same with the general principle of equality. It too found expression in detailed provisions bewildering in variety. Were the husband and wife equal if each had to consent to the disposition of property by the other? Were they equal if the husband was bound to support the wife and she could dispose of her property as she pleased? On the point of how to realize the ideal of equality men differed and women differed and provisions of law running into hundreds of pages reflected their doubts, uncertainties, and aspirations.
Furthermore, after statutes were enacted, the application of the principles incorporated in them to human controversies which arose in law and equity led to a positive riot of variations. The more general the principles the more difficult it was for men and women as litigants and for courts as tribunals of adjudication to agree on the meaning of the principles as governing concrete cases. Especially was this true of novel cases not specifically contemplated or provided for in the Written law. And novel cases were and are perennial and striking features of life and law.
When Is Equality Attained?
How far married women’s property acts and kindred legislation fell short of covering in concrete anticipation the numerous problems that arose under them is indicated by the following types of questions raised and adjudicated in various jurisdictions of the United States after the process of abolishing common-law doctrines had been started. In order that readers may decide for themselves, if they can, how these questions should have been answered under the theory of separate property rights and equality, the answers given to these questions by the judges in affirmative opinions, negative opinions, and diversities of opinions are left to the readers’ imaginations.
May the wife require the husband to pay rent to her for the house she owns separately, in which the family lives?
Does the provision of law authorizing the wife to contract, to sue, and to be sued permit her to make contracts for family and personal necessities which the husband, under his obligation to support the family, must fulfill by payments?
If the wife leaves the husband without good reason and returns home voluntarily at a later date, is the husband bound to pay the bills which she had incurred for her support during her absence?
Is the wife’s separate property liable for the payment of domestic servants engaged in doing the household work of the family?
May the wife dissipate or give away her separate property during the marriage relation so that on her death nothing will be left to provide any share for the husband and the children?
May the husband avail himself of the wife’s separate estate to lighten his load of supporting the family?
If the wife has separate property, is the husband bound to support her in complete idleness out of his property and earnings?
Must the husband give outright to his wife the clothes, furniture, and other things necessary to her support or is the law satisfied if he merely lends them to her for her free use in such a form that she cannot sell them or give them away?
Does an ante-nuptial contract that the wife is to live with her husband’s relatives relieve him of the obligation to support her in a separate home if his relatives destroy her comfort and peace of mind by uncivil language and actions?
May the husband require the wife to earn all she can to help support the family?
If the wife has voluntarily contributed to the support of the family out of her property and earnings, may she, in the absence of any agreement to that effect, secure reimbursement from the husband?
Is the separate estate of the wife liable for any property or money received from the husband in case he and she are sued by his creditors in efforts to collect money from him?
If the husband incurs a debt or debts in improving his wife’s separate property or in building a house on her land, is her separate property liable for the said debt or debts?
Is the husband liable under modifications of the common law for debts incurred by his wife before their marriage?
Does the married women’s property act relieve a husband of obligations to support his wife, even if he has become bankrupt and she is earning money?
Is the failure of a husband to support his wife, save in case of his sickness or of extremely extenuating circumstances, to be regarded as a punishable crime after the enactment of the married women’s property law?
Can the wife lawfully waive the husband’s liability to support her with a view to helping him pay his debts to creditors?
If the husband employs his wife at wages otherwise payable to someone else, may she be deprived of the money or the property in which it is invested on the ground that it is actually her husband’s?
If a woman earns money by keeping roomers and boarders in a house owned by her husband, are her earnings all her own and beyond reach of his creditors?
Are the husband and wife each free to deed to a third party an estate separately owned, even the family home, without the consent of the other spouse?
If the husband leases his wife’s land for a term of years and she accepts a down payment on the rent, is she stopped from declaring the lease void as a violation of her rights in her separate estate?
Do ornaments and jewels given to the wife by her husband during marriage belong, after her death, to him or to her estate shared by her children?
Where the law permits the wife to enter a business partnership with third parties at will, may she enter into such partnership with her husband?
May the wife pledge her separate estate as surety for her husband in case of family need?
May the wife assign her separate property to discharge a note against her husband, which she has voluntarily signed in his interest?
Is the wife liable to provide from her property or earnings necessaries for herself and children or must creditors first sue the husband and exhaust all remedies in efforts to collect from him?
If the husband has supported the wife during her married life and pays her funeral expenses after her death, may he collect the amount of the said expenses from her separate estate?
If the wife carries on a business under an assumed name, may she bar a suit against her in that name by claiming that her real name is her husband’s name and that she is married?
May a wife take her separate property, enter business, and, without his consent, compete with her husband who is legally liable for her support?
Where under a new statute the husband is forbidden to use even gentle force to restrain his wife, may he lawfully restrain her from committing a crime?
If the husband carries on a gambling business in his wife’s house, may she be made liable for his crimes committed therein?