MIA: Library: Mary Beard, Woman as a Force in History, 1946
Woman as a Force in History. Mary Beard 1946
Theory of Subjection Tested by Long Legal History
ALTHOUGH the movement to bring doctrines of equity respecting the rights of women into statutory law made sweeping advances and the principle of equal suffrage was gaining in acceptance, the theory of woman’s historic universal subjection to man continued to exercise a curious fascination. Even the appearance of the word “matriarchy” about 188o to characterize presumptively the earliest form of human government and a widespread adoption of that idea as correct did not entirely dispose of the subjection dogma; for those who conceded priority to the matriarchy often insisted that it was only a passing system and that very early in history it was completely supplanted by the patriarchal system. Hence, it was “reasoned,” while woman ruled man in the most primitive times, man dominated woman through all the following ages, up to the beginning of feminist reforms. Even the alleged sciences of anthropology and sociology were captured, more or less, by such simplifications in the closing years of the nineteenth century. What the women of 1848 asserted, science now seemed to confirm.
A Word on the Law of Classical Antiquity
For example, in a few pages of his The Evolution of Marriage, written near the end of the nineteenth century, Charles Letourneau portrayed women as members of a subject sex during all the known ages of Greek and Roman antiquity: “Throughout the historic period, the Greco-Roman world is patriarchal. In Greece and at Rome woman is despised, subjected, and possessed like a thing; while the power of the father of the family is enormous... . At the commencement of Roman history ... the family is possessed by the. pater familias; he is the king and priest of it, and becomes one of its gods when his shade goes to dwell among the manes. In this last case, the family simply changes masters. Something very similar existed in Greece... . The long duration of Greco-Roman society enables us to follow the whole evolution of the family in it. It would be going beyond the facts to affirm the existence of a still confused consanguinity in the ancient gens; but it seems very probable that this gens first adopted the maternal and then the paternal family, which last became somewhat modified, in the extension of feminine rights. This extension was slow, and it was not until the time of Justinian 1483-565 A.D.] that equal shares were given to sons and daughters in succession, or even that widows were entrusted with the care of their children.”
So much for the theory of woman’s historic subjection as derived by M. Letourneau from his study of Roman law. Is it supported by an adequate documentation and by modern scholarship? No documents, no history, no scholarship, no critical evaluation and interpretation of the evidence; just inferences, speculations, and “convenient” theories. Here we may take as a guide Professor H. F. Jolowicz, specialist in Roman law, for ten years at the University of Oxford and then at the University of London, author of the article on Roman Law in the Encyclopaedia Britannica (1941). From the mythological beginnings of Roman history, about 750 B.C. to the Twelve Tables (451-450 B.C.), remarks Professor Jolowicz [Italics supplied], “we have really no evidence but unreliable tradition and inference from later institutions.” For the next “period,” that is about 450 B.C. to about 150 B.C., “apart from fragments of the Tables and from historians, who are of course chiefly of use for constitutional law, our evidence is not a great deal better than for the previous period when it comes to detail.... However, we know of some laws passed, of the existence of certain legal institutions, and the names of some professional lawyers, though no professedly legal work has survived, and indeed few were written.”
And what sources of law do we have for the last hundred and fifty years of the Republic – to the birth of Christ? We have “a few quotations from legal writers of the time [which] survive in Justinian’s digest; we have Cicero, in all of whose works there are numerous references to legal matters, and we have other non-legal literature from which information on law can be deduced. We have too the text of a few laws in inscriptions.”
Such are the scant documentary evidences for the wholesale generalization of Letourneau, the anthropologist, that woman was “despised, subjected, and possessed like a thing” throughout the historic period of the Roman world. Now what does modern critical scholarship have to say about the status of women in the law of the Roman world after a minute examination has been made of the available documents relevant to the subject?
There are marked traces of mother-right in the earliest records of Roman law, even if they do not wholly warrant Bachofen’s broad conclusion that they indicate a definite stage of mother-right in primitive Roman history. There is no doubt about the existence of the patria potestas – the power of the father over his children – in certain circumstances and subject to specific conditions. There is also no doubt that this autocratic power of the father over his sons and daughters was also wielded over the wife in the case of marriage with manus, that is, with subjection; but such marriage occurred only in certain cases among patricians and others, for reasons at best obscure. How common was this type of marriage?
Professor Jolowicz answers: It “was rare already in the late republic ... had disappeared long before Justinian... . It may be that at one time marriage with manus was the only form of union recognized at all, but by the time of the XII Tables 1451-450 B.C.] this was apparently no longer the case, for it is clear ... that it was possible to be married without manus. In any case marriage without manus was by far the more common in all periods of which we have any real knowledge... . Divorce was always possible at the instance of the husband in cases of marriage with manus, and in marriage without manus it was free to either party to put an end to the relationship at will; ... any manifestation of intention to end the relationship made clear to the other party and accompanied by actual parting was all that was legally necessary.” Certainly in the later development of Roman law marriage was treated as a species of partnership, with community of property interests; and divorce continued to be easily acquired.
Thus Letourneau’s generalization respecting the despised and subject status of women, in a relatively brief period of universal history restricted to the Roman world, crumbles into dust, becomes under the scrutiny of modern scholarship in Roman law a gross misrepresentation.
Even more destructive has been the effect of recent scholarship in anthropology and sociology upon nineteenth-century generalizations about the “successive stages” in all human history and the subjection of women at one or all stages up to the “enlightenment” of the modern age. Anthropologists and sociologists of competence and standing no longer believe it possible to reduce the development of all the human societies that have existed on the earth to a common pattern, marked by “stages,” each characterized by given institutions respecting the status of women. They arc certainly not agreed that the primitive societies now surviving and directly studied actually represent any primordial form or forms of human society everywhere. Likewise generally abandoned by such scholars is the once popular theory that each of the so-called “periods” of history, or “stages” of social evolution, represented a total “break” with the preceding period, or stage, a complete revolution. So in this contemporary movement of thought the idea of woman’s personal subjection to man during definite stages or periods in human history falls to pieces and is rejected by scholarship as untenable in the light of the available evidence.
Before we move from such conjectures as Letourneau’s respecting the subjection of women through Greek and Roman antiquity to a study of that English law from which the Blackstone doctrine was supposed to stem, a warning must be given about methods of historical research and generalization. It has long been a favorite practice of incautious historians, sociologists, and propagandists to select from the documents of the past a few or numerous citations to “prove” this or that about men and/or women. Often such pieces of alleged “evidence” are chosen from records of peoples scattered through fifty or more centuries and of peoples distributed over the vast surface of the globe.
It is possible to assemble thousands, no doubt tens of thousands, of extracts from whole or fragmentary documents illustrating profusely (a) the inhumanity of men to men and/or women, and (b) the inhumanity of women to women and/or men. It is also possible to assemble thousands, no doubt tens of thousands, of extracts illustrating (a) the humanity of men to men and/or women, and (b) the humanity of women to men and/or women.
No practice has been more common among writers who stoutly maintain the doctrine of women’s historic subjection to men than that of collecting numerous quotations from the works of travelers, missionaries, historians, and sociologists and treating the quotations as proof that the subjection of the wife to the husband was the custom at least in all the ages prior to our own.
More is involved in the ascertainment of truth, however, than the number of procurable quotations from printed pages. The knowledge of the writers, their preconceptions, their interests, their education, and their discriminative judgment as independent observers and thinkers all enter into the question of their competence. In any case a collection of illustrations is only good as far as it goes. This fact Herbert Spencer, for instance, failed to recognize, when he decided, on the basis of many disjointed and widely distributed references assembled by his assistants, that the historic subjection of woman to man was the general rule and dismissed contrary evidence from similar sources as incidental or episodal.
Edward Westermarck in this affair was more wary in his day and generation. In his chapter on “The Subjection of Wives,” included in his work on The Origin and Development of the Moral Ideas (1906), he said: “Among the lower races, as a rule, a woman is always more or less in a state of dependence.” As if to verify this statement, he gave a number of illustrations. But on the very next page he began to qualify the statement and he ended with limitations and contrary evidence which destroyed its validity, declaring: “We must distinctly reject as erroneous the broad statement that the lower races in general hold their women in a state of almost complete subjection... . In several cases she [woman] is stated to be his [man’s] equal, and in a few his superior.” Thereupon Westermarck added about eight pages of fine print consisting of extracts from more than a hundred different sources as demonstrating the case for the equality or superiority of women among the lower races.
Suppose we had all the thousands or tens of thousands or more extracts that could be gathered on the points of subjection, equality, and/or superiority and could put them into three parallel columns classifying them under those heads. What case would be proved? The negative case that the historic subjection of woman has been no general rule. What then has been the general rule? Any doctor who feels qualified to handle such symptoms of behavior may make his own prescription, but searchers for the truth of universal history in this matter will at least be careful.
Realities in Mediaeval English Law
Inasmuch as a theory of woman’s historic subjection under universal law includes English law, it must therefore apply to this part of such universal law. Indeed, it was from Blackstone’s treatise on English laws that the systematic formulation of the subjection theory was derived by the American women of 1848. It would appear, accordingly, that, as far as England is concerned, the validity of the subjection theory can be and should be adequately tested on appeal to the historical records of English law. These records from the sixth century A.D. onward are voluminous and varied. In fact, it is highly probable that no other country in Europe or Asia has such a rich store of legal records covering its legal development from early time to the modern age.
Fortunately, for the study of these records until the reign of Edward I (1239-1307), we have the help of one of the most learned and exacting scholars of the late nineteenth century, Frederick William Maitland, who wrote the major portion of The History of English Law with Sir Frederick Pollock as his collaborator. Maitland’s knowledge of English legal records was immense and precise. In addition, he made himself well acquainted with the history of Roman and Continental law, for he knew that English law did not originate and develop in insulation from the history of Europe, especially Western Europe. Besides commanding all this erudition, Maitland was familiar with the great legal and political theories, ancient and modem, and constantly on his guard against reading modern ideas of any kind into the law of England before and after the Norman Conquest in 1066. In Maitland, therefore, we have a guide to early and mediaeval English law so authoritative as to challenge all comparison from any quarter.
When Maitland, in 1884, began his career as student and teacher of law in Cambridge University, there were in general circulation two theories respecting the first form of social relations among men and women, expressed in customs – the sources of the earliest law. According to one, that form was marked by the dominance of the husband and father, to which the name “patriarchy” was beginning to be generally applied. For proof of its correctness advocates of this theory usually pointed to the Biblical account of human origins, to the customs of the ancient Jews, and to the patria potestas of Roman law. The second theory, later in origins, had been definitely formulated by Johann Bachofen, specialist in Greek and Roman antiquities, and published in 1861 in a path-breaking book, Das Mutterrecht. After long and patient research Bachofen came to the conclusion that, amid the promiscuous relationships Of primitive societies, descent had been traced through the female line, that the mother was the original center of the family, and that as such she had assumed a dominant role in primitive associations or communities. To this form of family connections the name “matriarchy” was soon loosely applied, and Bachofen’s word Mutterrecht was often translated as matriarchy rather than mother-right or mother-law.
Familiar with the theory of patriarchy, Maitland was at pains to inquire whether the earliest English laws set down in the documents at his command conformed to the dogma of father-law; and he soon discovered that the man and the male line were not the supreme considerations in those laws. For example, if in early English society a man was killed, the murderer and his family group had to pay a given sum of money to the family group to which the dead man belonged – not to his male heir or heirs. Part of the money went to persons related to the dead man through his father, and part of it to persons related to him through his mother. Again, if a man committed murder, his maternal as well as his paternal relatives had to join in paying the price or sum of money due to the paternal and maternal relatives of the dead man. The complicated nature of the family group mentioned in the laws, taken for granted by the writer of the laws, could not be clearly discerned in the language of the laws.
But in those far-off times it was true that, whatever the nature of the family group, the woman did not pass entirely into her husband’s family or under his personal control. At an early period land was being inherited directly through women; and some women were leaving their husbands and “taking” their land and children with them. After a woman’s marriage her kinsfolk continued to be responsible for her misdeeds. If she was murdered, her price or wergeld did not go to her husband but to her kinsfolk. Apparently the husband could not remove his wife from the region inhabited by her kinsfolk without binding himself to treat her well and in specific matters to recognize the rights and claims of her kinsfolk.
In other words, Maitland found in the earliest legal documents of England evidences of mother-right, as well as father-right, and he warned his readers that the evidences of mother-right presented grave obstacles to any thesis that “would start with the patriarchal family as a primitive datum.” While he evinced discontent with the vagueness of the word, matriarchy, and did not jump to the conclusion that it was the primitive datum, he was firm in his insistence that the practice described in the first English legal records did not square with the idea of patriarchy as the controlling rule of law.
What lay beyond the times in which the provisions of those old legal documents were in effect, Maitland left to speculative anthropologists and sociologists who deal with human arrangements unrecorded in history. Whatever they might say, it was indubitably certain that the oldest recorded laws of England did not show that, in her personal and property rights, woman was subject to the regime of a patriarch or was regarded in law as a mere member of a subject sex – a nobody.
When Maitland came down in his history of English law to the period of his special emphasis – the thirteenth century – he had to deal with an order of society and government in fundamental respects different from that of the early Anglo-Saxon age. England had long been ruled by a line of strong kings. The State was then powerful. Feudal civil wars had practically disappeared. Peace reigned generally through the realm. Territorial bonds – realm, counties, hundreds, manors, and towns – had for many purposes supplanted blood bonds. Royal judges were traveling up and down the land, trying lawsuits and developing in positive form that body of selected and ordered customs which became known as the common law. Commerce was increasing. The volume of money was expanding and its circulation was more rapid. The amount of movable or personal property had been increased.
Of this mediaeval English order, status under the crown was a prime characteristic. Practically every person – man or woman – had a status in the hierarchy extended downward from the king, through the major and minor barons, the knights of the county, and the freeholders, such as there were, to the serfs at the bottom of the scale. In rural regions only outlaws and stray persons were without standing in this order. Residents of towns, it is true, had no regular position in the feudal hierarchy; they had rights, privileges, and liberties; they had more freedom of movement and association; but every town had an overlord – the king or a powerful landlord – from whom its legal privileges were derived, under whom its customs were allowed to prevail, subject to his rights.
The overwhelming majority of the people lived on the land and, in terms of fact and economic support, belonged to some level in the hierarchy of positions headed by the king. The legal rights of person and property were related to status – a class status, not a sex status. The rights and obligations or “disabilities” of all before the lawmen and women alike – conformed to the requirements of their class status. All were “subjects” of the king. All members of the lower ranks from the serfs upward were immediately subject to some over lord, and the highest overlords were immediately subject to the king. In this hierarchy neither men nor women as such had a status. Such “discriminations” as were imposed on women in respect of rights and obligations pertaining to property, like those imposed on men, rested on the fact that land was held by military tenure; that is, estates in land, roughly according to their size, were bound, no matter who held them, to render certain degrees and kinds of military service in war at home or abroad. To this general rule there were many exceptions in customs and practices but they were incidents rather than compelling features of the feudal regime.
In this society, the primary datum as to landholding and the personal property of landholders was the military service due to the State represented by the king. This service governed the holding, descent, transfer, inheritance, and use of the land. Since each estate had to furnish its fighting man or quota of fighting men, the law of property was bent to that fact. Here discriminations appeared. But they did not apply to women alone. Although women, as a rule, were not expected to put on armor and fight in wars, they were not, as women, assigned a subject status. The law of descent in respect of property in this hierarchy was not through males alone. The eldest male, on whom military service fell, excluded the younger brothers and all the sisters; saving the rights of the widow. But if the eldest son had no son, his property at his death did not pass to his brothers if there were any alive or to any other male members of his patrilinear line; it passed to his daughter or to his daughters as co-heiresses, if he had a daughter or daughters. If the eldest son of the eldest son was dead when the father died and there was a granddaughter by the eldest son living, she inherited to the exclusion of the father’s younger sons and all other male relatives. Thus the so-called patriarchal preference for descent through males only, if it ever did exist among Anglo-Saxons, was unknown to the law of England in the middle ages.
Although it may be inferred from many written histories dealing with the middle ages that practically all the great estates of England were kept unified and intact in the hands of the eldest sons or daughters, as the case might be, this was by no means an absolute rule. In the case of descent to daughters, many estates were split into parts. As Maitland relates, the estate of the great Earl of Chester “fell among the spindles” twice within a few years. The inheritance of the mighty William Marshall, Earl of Pembroke, regent of England during the youth of Henry 111, passed through many vicissitudes. He succeeded to his title through his marriage with Isabel, daughter of Richard, Earl of Pembroke. On the death of William, his estate “fell among the spindles,” and was divided into thirty-five parts, “for one of his daughters was represented by five daughters.” How common such divisions actually were, in the absence of full records, must be one of the imponderables. Nor can we discover how many daughters remained unmarried during their entire lives. May not one suspect that few eligible women endowed with large property stayed long in the state or status of single blessedness?
While many women acquired estates through failures in direct male fines, others held property through gifts or devises. Under an application of Norman law adopted in England, a daughter could demand from her father a share of his land as a marriage portion, and the father, either by direct gift or will, could turn it over to her without asking the consent of his sons. In Normandy, the father could thus transfer to his daughter or daughters at least one-third of his estate; whether this limitation as to the amount transferable prevailed in England seems uncertain; but the practice of endowing daughters was common in England. In case the father made provisions for his daughter or daughters, such estates generally returned to the male line only in case of an end to the female line or lines.
Another usage must be noted. This was the discrimination of wardship. If on the receipt of his inheritance a young man was a minor, his overlord had the wardship of the estate until he became of age, and enjoyed the rents and profits during the period of minority, subject to the necessity of making provision for the maintenance of the youth. When the heir was a woman, the overlord had a similar right of wardship until she became of age or married with the consent of the overlord. And on her marriage, as explained above, her husband, who assumed all the military obligations attached to her land, enjoyed the rents and profits subject to the obligation to maintain her in the style of her class. What was done with the surplus of income, if any, that remained after provision for his military services and her maintenance was a matter of adjustment between a man and his wife.
If on the marriage the husband thus in some respects became her “lord,” it is to be remembered that by the same transaction be himself became the subject of her former overlord. When he assumed control over the income of the marriage “portion” which she brought with her, he likewise undertook to discharge the obligations of military service attached to her holding or holdings. Nor was the male minor in wardship to an overlord any freer to marry without his lord’s consent than was the young woman. How many marriages were “forced” upon young men and young women in the middle ages can only be a riddle of history. What basis is there for any solution?
So far we have spoken of men and women in what we may call for convenience the noble classes of England. Similar rules were often applied to the property relationships of men and women among the servile classes and non-noble freeholders. Yet here variations were numerous and bewildering, owing to the varieties and tenacity of the local customs which existed and were accepted by courts as law locally valid. But nowhere in the law or laws applicable to these classes does Maitland find women as such treated as mere members of a sex subject to men. To illustrate the point, Maitland gives a citation from a verdict of jurors as to the custom of two ancient manors in the year 1224: “If any tenant has three or four daughters, and all of them are married outside their father’s tenement, save one, who remains at the hearth, she who remains at the hearth shall have the whole land of her father, and her sisters shall recover no part thereof ; but if there are two or three or more daughters and all of them are married outside their father’s tenement with his chattels ... the eldest daughter shall have the whole tenement and her sisters no part.” As long as one daughter was unmarried, she retained the whole tenement transmitted by the father.
Nor did women in the middle ages always leave the management of their affairs in the hands of men. When we turn from Maitland to the actual records of, let us say, the thirteenth century, which cover petitions and actions before the king’s curia and administrative officers, we find women active in the protection of their rights and interests in respect of their property and personal obligations. This is especially true of unmarried women and widows with regard to wardship and marriage. Since every estate in land and chattels owed military obligations to the king or to some overlord between the holder and the king, it was a matter of vital interest to the State and overlords that some man capable of rendering military service and providing military supplies be made responsible for the discharge of that war duty. At all times the king had to be on guard against allowing any maid or widow to marry a powerful feudal lord who was his personal enemy or likely to take up arms against him. Women as well as men struggled against being victimized by it, and in the exercise of control over marriage cruelty and exploitation were possible but, whatever the control was, female wards as well as male wards were subject to it.
On this point the records of the thirteenth century, especially under the tyranny of King John, are illuminating. Take the following entries, for instance:
Richard de Lee offers the king one hundred marks for license to have the widow of Stephen de Falconbridge, with her inheritance and dowry; but the petition is canceled because the said widow of Stephen offers more money to escape the said Richard, that is £100.
Hugh de Haversham offers the king too marks to have the custody of the land and heir of William de Clinton; canceled because Isabel de Clinton offers 300 marks for the same.
Margaret de Lucy offers the king 40 marks to have her dowry and inheritance and to have the privileges of remaining a widow as long as she pleases.
Sebilia de Tingera offers the king 200 marks to have certain land and a “license to marry whomsoever she pleases.”
Nichola de Emingford, wife of William Rufus, offers the king L I 00 that she may not be constrained to marry; but if of her own accord she pleases to marry, she will take counsel of the king in so doing.
Gilbert and Alicia, his mother, offer the king 80 marks and two palfreys that Gilbert may have his father’s land and that he may marry according to his own pleasure, with the advice of his mother, and that the same Alicia may follow her own counsel in marrying him off.
When we leave the property rights of women under the rules of descent and come to the property rights of married women in general, we meet more warnings from Maitland. He tells us that we must at the very outset beware of the false generalization that history is the record of the progressive attainment of property rights by women from primitive ages forward; beware of the assumption that the position of women in the middle ages was higher than in preceding ages or lower than in what was called the “enlightened age” of Blackstone who treated the female sex as such a “favorite” of the law. He advises us to be on guard against any simplification of the mediaeval law which reduces a variety of customs and usages to the stark terms of the common-law rules as Blackstone stated them.
In the legal records of early English society is indubitable testimony to laws and customs which do not square with common-law doctrines of the middle ages or any later period in English history. In the oldest written laws of England, those of King Aethelbert, who was baptized by Augustine in 597, were passages which should have given Blackstone pause if he ever read them. For example, “If she [the wife] bear a live child, let her have half the property, if the husband die first. If she wish to go away with her children, let her have half the property. If the husband wish to have them, [let her portion be] as one child.” With reference to this provision Maitland comments: “On the extreme verge of our legal history we seem to see the wife of Aethelbert’s day leaving her husband of her own free will and carrying off her children and half the goods.” In the great Doomsday Book of 1086 stands an entry similar in spirit; the local jurors in one community declare of a certain married woman called Asa that she holds her land separately and free from the power of her husband and that after they in fact separate she goes away with all her land and possesses it as mistress of it (ipsa habuit terram suam separatam et liberam a dominatu et potestate Bernulfi mariti sui.... ... Post eorum vero separationem, ipsa cum omni terra sua recessit, et eam ut domina possedit). In the light of such earlier documents it would appear that under the feudal law, which formed the basis of the common law, married women possessed less freedom than was accorded to them in times deemed more primitive and unenlightened.
It was with the rise of the powerful military State under the Norman conqueror and his successors to supremacy in England that older customs, ‘Widely diverse in nature, were subordinated to the special rules of “common” law – that is, the law common to the realm. It was then that landed estates were subjected in a systematic manner to the necessity of furnishing military services to the king and that the strength and will of men and women, single or married, were bent to the requirements of those services. It was in relation to those services that the obligations of married women in respect of property were made more or less rigid. It was then that the landed estates of the wife passed under control of her husband and that her personal property went into his possession, subject to numerous restraints and limitations; including the obligation to protect his wife and their children against economic misfortunes and to hold her dower rights in his own property intact. This was not a situation which all men of the several landed classes created by acts of their own will for their own benefit. Most of them were subdued to the requirements of the military State above them as were their wives to the restraints imposed upon their lands and chattels.
When a woman who held property, through descent or otherwise, married, her husband, of necessity and often as a real burden, assumed responsibility for the military services owed by her land to the king. In so doing, he took over the management of her landed estate and, in the absence of agreements to the contrary, entered into possession of her personal property. In the feudal age this personal property or chattels (derived from the word “cattel”) consisted largely of beasts of burden, tools, and implements used for the production of wealth on her land – not of money, stocks, bonds, jewels, and other movables.
Since, in the discharge of his military obligations, the husband had to supply the king or his overlord with war horses and to raise money for paying taxes and dues owed to the king, or overlord, he often had to dispose of or sell live stock or other property from his wife’s estate, as well as his own if he had any. If his wife had enjoyed and exercised the unrestricted right to dispose of her personal property at her own pleasure for her own uses, she could have stripped her estate of the property absolutely necessary to meet the military services and charges ultimately due to the king as chief overlord. Thus a rule, which long afterward often worked a grave injustice to married women and had to be endured or circumvented, was in its origins an essential part of the law which compelled the husband to discharge efficiently all the obligations owed to the State from his own and his wife’s property in land.
But with swift and shattering strokes Maitland destroys, as far as mediaeval law is concerned, the fiction that “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of her husband.” He shows that the theory of “unity of person” was little more than rhetorical glitter and that in fact the law treated the wife as a person, in various relations, if in certain relations under the guardianship of the husband who carried the obligation of the military services for her land as well as his own. Blackstone’s reference to the husband as the wife’s “baron” or “lord,” Maitland disposes of with precision and humor. The wife of a feudal magnate would naturally speak of her husband in public as “mon baron,” just as naturally as he would speak of her as “ma dame.” When Blackstone lawyers in America deemed it fitting, if not necessary, for the wife of a free farmer who tilled fifty acres of her land to speak of her spouse as her “baron” or “lord,” they approached the climax of absurdity.
A formula of the common law in the middle ages decreed that the wife should not oppose her husband’s will. But Maitland shows the falsity of the scheme as fact. He brushes the dictum aside as invalid, in a generalization derived from his long and close examination of mediaeval law documents, and then adds numerous unimpeachable pieces of evidence from the records of law. “We cannot,” he says, “even within the sphere of property law explain the marital relationship as being simply the subjection of the wife to her husband’s will. He constantly needs her concurrence, and the law takes care that she shall have an opportunity of freely refusing her assent to his acts. To this we must add that ... there is a latent idea of a community between husband and wife which cannot easily be suppressed.” Then follow nearly thirty pages crowded with illustrations revealing legal expressions of the wife’s independent personality at law alone, irrespective of domestic customs and usages. A few of his illustrations are given here:
The husband is not wholly seized of her land as long as the marriage endures. If the seisin is not vested in a third person, then “husband and wife are seised in the right of the wife.”
In certain litigations, the husband can vouch his wife as his warrantor; she can appear in court for him; and the law treats her “as an independent person whose voice should be heard.”
If the wife does not appear in person, she may appoint her husband or a third person to speak for her. And upon occasion the husband appoints his wife as his attorney.
If the husband made default in the administration of his wife’s land, she could go into court and defend her title in person.
The husband had no right to exclude the wife from the enjoyment of the advantages of her land to which she was entitled. If he tried to do this, she could go into an ecclesiastical court and by establishing her case could secure a decree against him ordering him to allow to her the benefit of her tenement. If he did not comply with the decree, the king’s court would send him to jail until he was ready to discharge the obligations respecting her property and person imposed upon him by the civil and church law.
The mediaeval husband was not free to alienate land by deed or gift as if he were an independent man in whose personality that of his wife was utterly merged – as if she did not exist. In deeds of the twelfth century it is often difficult to discover whether the land being conveyed belongs to the husband or the wife. Sometimes the husband gives with the consent of the wife; sometimes husband and wife join in making the gift. “Throughout the twelfth century and into the thirteenth we habitually find married women professing to do what according to the law of a later time they could not have done effectually... . Often the price [of land], if price there be, is said to be paid to the wife and husband jointly; sometimes a large payment is made to the husband, a small payment to the wife.”
Save in very extraordinary circumstances, the wife could not be deprived of her dower rights in her husband’s property unless she freely consented. The old law gave to the widow an aliquot share of the chattels left by her deceased husband.
As to the married woman’s chattels in general, mediaeval law was not as definite and harsh as the later law which transferred them outright to her husband. In English mediaeval law were traces of other practices akin to those under Continental law respecting “community of movables,” but under the pressure of common-law judges and lawyers indefinite powers of the husband over the wife’s movables became a definite power of possession at law – that is, in the absence of pre-nuptial settlements and trusts (see pp. 139, 201).
As to the rights of married women in towns, customs differed and records are fragmentary. But it is well known that in some towns married women carried on trades and could be sued for any debts they contracted as traders. This custom prevailed in some places although, under the common law of later times, the married woman could not make contracts on her own behalf during marriage; she could do this, however, as her husband’s agent.
In relation to all this, and more that could be said about the rights of the married woman as a separate personality, it must be borne in mind that the common law, though based on old customs varying widely from locality to locality, was law formulated by royal judges serving a highly centralized military State. The underlying local customs had grown up naturally in the cooperative life of families and communities; and in this cooperative life the needs, nature, and force of the woman, whether married or unmarried, entered into the making of the customary laws and rules which governed family and community living.
The formulation of the common law, which selected and emphasized some customs to the exclusion of others, was taken over by men alone – judges and lawyers. Simple and exigent as it later became, it was applied only in anticipation of, or in actual, litigation before the common-law courts. Innumerable family and community usages and customs which, as James Kent pointed out in his Commentaries, constitute about nine-tenths of the substance of life, continued undisturbed, side by side with the common law and equity (see p. 136), yielding only to legislation by Parliament. Hence the mediaeval common law must be regarded as covering only one phase of the rights and obligations belonging to husbands and wives.
Women in the Great Charter
Such conclusions resting mainly on Maitland’s study of mediaeval law furnish a fitting background for considering briefly the Great Charter, Magna Carta, wrung from King John in 1215. This famous document has long been treated by many historians as if it was in fact a men’s charter of liberty and in no way concerned with the rights, privileges, and obligations of women. Yet historians familiar with the Latin language of the document and the technicalities of mediaeval law have long known that many passages in the Charter, besides those relative to the rights of widows, concerned women without mentioning women as such.
For example, Chapter IV of the Great Charter declares: Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum ...” As a rule these Latin words are translated: “The guardian of the land of an heir who is thus under age shall take ‘from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods.” Here no woman is mentioned.
But the word heredis, the possessive form of heres, so translated as. heir, in fact applied to women as well as men in the same condition; and the protection against tyrannical actions by an overlord accorded to men was, by the very language precisely understood, also accorded to women in the same condition. Often mediaeval scriveners, to make sure that there would be no misunderstanding, added to the word, heres, the explanation “either male or female” (sive sit masculus sive foemina). But the authors of Magna Carta evidently regarded that explanation as superfluous; they understood the meaning of heres or heredes in its context as referring to males and females.
Nor indeed does the hominum in Chapter IV of the Charter refer to men alone. The guardian is not to waste men or goods belonging to the estate of an heir. Certainly the female serfs on the estate were by this provision as well protected as the men. At all events the guardian could not waste them any more than they could waste the men or things.
Two provisions of the Charter – Chapters VII and VIII – deal explicitly with the rights of a large and important class of women and their property rights. In English they run as follows:
“A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance (maritagium et hereditatem) ; nor shall she give any thing for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband... .”
“Let no widow be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our [royal] consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another.”
Merely to illustrate the technicalities and ramifications of these chapters we may refer to two words used in Chapter VII – dos and maritagium. Here we have the guidance of the great authority, W. S. McKechnie, expert on Magna Carta. Respecting the dos, or dowry, he says: “It was customary from an early date for a bridegroom to make adequate provision for his bride [against the hazards of widowhood] on the day he married her. Such a ceremony, indeed, formed a picturesque feature of the marriage rejoicings, taking place literally at the door of the church, as man and wife returned from the altar.”
As to the woman’s maritagium, McKechnie comments: “It was customary for a landowner to bestow some share of his property as a marriage portion (upon his daughters), that they might not come to their husbands as empty-handed brides. The land so granted was usually relieved of all burdens of service and homage. Hence it was known as liberum maritagium, which almost came to be recognized as a separate form of feudal tenure.” But the maritagium was by no means always granted in view of immediate marriage; it was often granted to the daughter for the express purpose of affording her protection against any contingencies that might adversely affect her power to maintain herself in the style to which she was accustomed.
When we pass from the various provisions of the Charter, which protected the rights of men and women in the upper ranges of the class hierarchy, and come to the famous Chapter XX which protects persons against unjust and unduly heavy fines, we find that women are not specified: “A freeman (liber homo) shall not be amerced for a small offense, except in accordance with the gravity of his offense, saving always his ‘contenement’ (ancestral lands)... .”
As far as this chapter of the Great Charter applied to fines for offenses against the criminal law, it applied to women in respect of offenses for which they were responsible. And in later interpretations of the term “contenement,” which was to be protected against royal exactions, crown lawyers considered how much a man could pay “saving his own sustenance and that of his wife and children.”
Volumes could be written on the private rights of person and property which the Charter was designed to secure to women of the various gradations in the feudal hierarchy. Indeed a full exposition of the Charter would call for an examination of all private rights of women of all classes which the Charter was expected to protect and uphold. And not until this examination is made should one speak with assurance respecting discriminations against women as such. That innumerable positive rights were guaranteed to them is beyond all question.
Women Recognised as Persons
If one tries to epitomize the testimony contained in thousands of mediaeval records respecting the rights and position of women in mediaeval society, one is bound to enter in the summary the following facts:
Women of all classes, from peasants at the bottom of the scale to the highest level of nobility, had some rights in property, by law and custom. Women of no class were absolutely rightless in this respect or in the case of serfs more rightless than the men, though it is true that all serfs, men and women alike, held their property by a precarious tenure which often approached a condition of rightlessness.
Women of the upper classes, townswomen of the merchant and craft classes, and many women of the peasant class had money in their own possession and disposed of it at their discretion. Patrician women often had command of large sums, as the records of the Crown show, for they were continually buying privileges or rights from the king. As members of craft gilds, religious gilds, and social gilds, women – married, single, and widowed – paid fees and dues in cash.
The harshness of wardship, to which women as minors or widows as well as men under age were subject, was mitigated by rules of law against disparagement; and women frequently secured the right to marry or not as they pleased and to hold their portions of their inheritances undisturbed, save as to feudal dues, such as there were, owing to the overlord or Crown directly or indirectly.
In the towns, women were active participants in all the affairs of the craft, religious, and social gilds to which they belonged, made gifts to gild endowments, and received the pecuniary benefits of the association, where such accrued from membership.
Women of the nobility took advantage of their general freedom to carry petitions and cases before the king’s judicial and administrative officers, to be heard, and to claim and receive recognition of rights, personal and property.
Women of the feudal hierarchy had a status, as did all men, but it was a class status, not a status of women as members of a subject sex.
The obligations of State laid upon women as minors, widows, unmarried adults, and wives in the upper feudal hierarchy bore a direct relation to the feudal services imposed upon their real and personal property and assumed by guardians or husbands. Their property so burdened was not in fact at the free disposal of their guardians or husbands. No such obligations were imposed on women as women. All were obligations attached to landed estates and their appurtenances.
“After the Norman conquest,” says Maitland, “the woman of full age who has no husband is in England a fully competent person for all the purposes of private law; she sues and is sued, makes feoffments, seals bonds, and all this without any guardian.”
It is, therefore, with the justification of evidence that Maitland writes of single women, spinsters, and widows during the twelfth and thirteenth centuries: “Women are now ‘in’ all private law, and are the equals of men. The law of inheritance, it is true, shows a preference for males over females; but not a very strong preference, for a daughter will exclude a brother of a dead man, and the law of wardship and marriage, though it makes some difference between the male and the female ward, is almost equally severe for both. But the woman can hold land, even by military tenure, can own chattels, make a will, make a contract, can sue and be sued. She sues and is sued in person without the interposition of a guardian; she can plead with her own voice if she pleases; indeed – and this is a strong case – a married woman will sometimes appear as her husband’s attorney... . As regards private rights women are on the same level as men, though postponed in the canons of inheritance.”
Turning to married women, Maitland shows that they “are in a different position.” But here he refers his readers to the large and complicated sections on family law. If she was married, the mediaeval woman of the landed classes usually had her maritagium and dowry; she had some command over money and the right of proper maintenance in her style; but as her husband assumed the obligation of discharging the military services and dues attached to her estate, he had the use of her land and command over her chattels. By marriage, in short, woman entered into a vast and complicated network of law bearing on the family, inheritance, and possession which yields to no simple generalization in terms of equality or inequality. In that domain the rights of men and women were deeply entangled in, if not balanced by, heavy obligations on both sides – the sword and the spindle sides.
All this pertained to private law. But what of public law – the law of government? On this point Maitland said: “In the camp, at the council board [of the king], on the bench, in the jury box there is no place for them.” Yet in high matters of government, diplomacy, and war, which were mainly outside the purview of public law, women exercised immense power in and through their family relations (see Chapter XII).
Economic and Legislative Changes (1239-1765)
During five hundred years, from the accession of Edward I in 1239 to the publication of Blackstone’s first volume in 1765, the whole raison d’etre of the English military State with its military tenures of property and corresponding family relations, the very basis of mediaeval property law, practically disappeared. An increase in the volume of money in circulation made it possible for serfs to transmute their payments to landlords, formerly made in personal services and kind, into cash payments of rents. Serfdom gradually dissolved. By the opening of the seventeenth century only remnants of it remained. In time serfs by the thousands were driven from the soil, as wool growing became more profitable than tillage. The common lands of the villages were enclosed and made the property of landlords. Meanwhile commerce expanded. Personal property in goods and notes, bonds, mortgages, and other paper claims to wealth approached and finally exceeded in value all the property in land. Old cities increased in population and new cities came into being, as domestic manufacturing assumed an ever-larger role in the production of commodities for commerce.
Economic transformations were accompanied by political and military changes. After the rise of Parliament in the thirteenth century, the landlords of the rural regions and the burgesses of the towns, represented in that body, strove to curtail the power of the king by the enactment of laws which drastically modified the ancient customs which lay at the base of the common law. At length, near the end of the seventeenth century, as an outcome of the Puritan Revolution, the supremacy of Parliament over the Crown was firmly established.
After the invention of gunpowder and firearms a standing army of regular troops, supplemented by the county militia, finally took the place of the old feudal array – barons, knights, esquires, and retainers – which had served as the king’s army in his Wars at home and abroad. Thus landlords were personally relieved of military servitudes which their ancient tenures of land had involved by which their tenures had been justified. Since they now had large cash incomes from rentals, it was easier for them to pay taxes for the support of the royal army and navy than to supply their own weapons and take to the battlefield themselves. At length in 166o, by one of the most drastic forms of class legislation in history, members of the English landlord class in Parliament forced through an act abolishing practically all the old military and other obligations. For the former tenure from the king, conditioned on the fulfillment of duties to the king, they substituted tenure in “free and common socage,” that is, in effect, outright ownership.
Having struck off their feudal burdens and deprived the Crown of a huge revenue, many of the landlords in Parliament declared that, as winners in the “great deal,” their class should substitute for the old dues a compensatory tax on lands held in chivalry; but by a small majority that proposal was defeated. Instead of a land tax, Parliament then imposed a hereditary excise on beer and certain liquors – a tax on consumption. So, when Blackstone began to write his Commentaries nearly a hundred years later, the very substance of the feudal tenures, by which the common law had once found its moral justification, had in truth been destroyed, though he did not like it or admit it.
In this economic and legal transformation, women certainly were participants, beneficiaries, or victims, according to their class and individual fortunes in English society. In town and country, they were producers in industries and agriculture and contributed to the growing volume and circulation of wealth that dissolved the rigid order of the middle ages. Women of the former servile class, freed from serfdom and often driven from the land of their ancestors, like the men of that class, if fortunate, found a place in urban industries; if unfortunate they joined the throngs of paupers who wandered in the highways and byways of England or huddled in the slums of the towns. Women of the mercantile and domestic-manufacturing class) steadily growing in numbers, shared the fortunes and opportunities of their class, took part in its activities, and derived benefits from its achievements. As to the women of the upper landed class, whose rights and obligations had been reflected in the common law of the middle ages, they, like the men of their class, gained advantages from the abolition of feudal burdens in 166o and held their old economic privileges intact.
Meanwhile, for the benefit of the propertied class in general, Parliament continued from year to year to grind out new statutes imposing savage punishments upon men and women convicted of even the most trivial offenses against property – until the criminal law of England in the eighteenth century, including common-law and s statutory crimes, put to shame the barbarities of the middle age , condemned as “benighted.” Between 166o and 1820, no less than 180 offenses were added to the Est of crimes for which men and women could be executed, making in all 250 capital crimes registered in the law books.
The Simplifiers and Dogmatizers of the Common Law (1239-1765)
The five hundred years between 1239, the year of Edward I’s accession to the throne, and 1765, the year in which Blackstone’s first volume of Commentaries on the Laws of England was published, had brought many great changes relative to the legal position of women. The phrase, “common law,” had come into general use early in the fourteenth century, the word “common” in this connection meaning general throughout the realm.
Common law was marked off on the one side from royal ordinances and from statutes enacted by Parliament, and marked off on the other side from special and local customs or laws. Common law was the general law worked out by men “learned in the law,” the king’s justices, as they heard cases in various parts of the kingdom and were instructed by professional lawyers. It consisted, in short, of customs evolved into a coherent system of laws. It froze, so to speak, the feudal rights, obligations, and disabilities of men and women, in respect of the real estate and personal property of which they were seized. In its well-rounded form it treated men and women not as owners in fee simple, able to do what they wanted to do with their property, but as temporary possessors holding their estates from overlords as long as they discharged the military and other state services laid upon the land – roughly, according to the acreage of their holdings.
In the course of time the common law, as known to early royal justices and professional lawyers, was simplified and given rigid form in textbooks by great writers on the subject. Among the earliest of these texts on the common law was Thomas de Littleton’s Treatise on Tenures, written in law-French and published about 1482. To the various kinds of land tenures Littleton gave careful definitions and then he classified them according to the rights of landholders. He not only digested rulings of the courts on his subject. He sought to introduce more order by deducing great principles from the diverse cases scattered through the centuries and thus gave a fund of “logic” to the law. At bottom Littleton’s work was concerned with the English land law of the middle ages, although he was aware of the existence of a new kind of law known as Equity. His treatise was written with such exactitude and force that it became for centuries the standard text of English lawyers. Men who were to serve as royal justices were trained in it. Generations of lawyers were brought up to swear by it as the final word.
A little more than one hundred years after Littleton, another commentator on the common law, Edward Coke, lawyer and royal judge, took the Treatise on Tenures as the foundation for another great restatement of the common law, known as Coke’s Institutes. The first volume of this work is known as Coke upon Littleton. Widening his interest beyond tenures, Coke sought to give an ordered view of all common law, for him the summum bonum of English jurisprudence. A lawyer, prosecutor, judge, and writer, he fought bitterly to keep out everything that interfered with the traditional rules of his precious common law. With equal fervor, he did battle against royal encroachments in the name of high prerogative and also against equity which modified the common law in the interest of justice, common sense, and the changing conditions of English economic and cultural life. As a judge he was often forced to yield to the demands of equity, but as a writer and opponent of Stuart prerogative he was almost savage in his adherence to the common law – the feudal offspring of a feudal State built upon communities and families with customs which originated in far older times.
When the long and complicated processes of practice and rationalization, by which the common law reached its climax in the systems of Coke and Blackstone, are critically surveyed, certain conclusions seem inescapable. The old customs of English communities on which the common law was originally based varied materially from region to region. These customs had grown out of the practices of men and women in families and villages in adjusting their relations, including property relations. When royal judges, serving the interests of the centralized feudal State, began to build up their system of common law, these practices and usages by no means conformed to the rules of the common law as finally reduced to the simple dogmas which so delighted Coke and Blackstone. The documented pages of Maitland make this abundantly evident. For instance, to cite a single passage, he says, after dealing with property rights of husband and wife: “If we patiently examine the records of the thirteenth century, we may be persuaded that there was an age in which our law had not decisively made up its mind against a community of chattels between husband and wife. We see rules which, had our lawyers so pleased, might have been represented as an outcome of this community.”
In the course of this legal development, the common law, at the hands of the simplifiers and foes of “papistical” jurisprudence, took on its “finished” form. In so doing it became more severe and discriminative against women in respect of property rights than were the customs and usages of the early middle ages out of which it was supposed to have sprung. As to the partnership and community rights for husband and wife, to be found in the Corpus Juris Civilis of enlightened Rome and in primitive customs in regions of Western
Europe, scattered from Iceland to Portugal, the “finished” common law was even more hostile. It was, therefore, with good reasons, founded on critical scholarship, that Maitland warned his readers against the pleasing delusion that the growth of the common law inevitably meant improvement in the status of women – until, as Blackstone rhetoricized it, they became the “favorites” of the laws of England. If it had not been for the growth of Equity, the position of women before the law in the eighteenth century would have been lower in many respects than it had been in the thirteenth century; and the Blackstone lawyers in England and America were certainly no warm friends of Equity.
Common Law Riddled By Equity Law (1239-1765)
While common-law jurists, judges, and writers were systematizing, simplifying, and trying to save the common law from foes, a second line of changes respecting the legal position and relations of men and women was going forward. This was the development of Equity – a kind of law distinct from the common law and administered by a different set of judges.
One of the early rights of English subjects was that of petitioning the King for relief, favors, or extraordinary privileges – “for the love of God and in the way of charity,” as the old formula ran. Often petitions were made for relief from one or more burdens imposed by the common law and for the right to make property arrangements either forbidden by or not recognized by the common law.
In time it became the custom to refer all such petitions to the King’s Chancellor. The business of examining petitions and petitioners and granting or denying petitions grew enormously with the spread of commerce, the decline of the feudal order, and modifications of feudal manners and customs.
By the end of the fifteenth century the Chancellor’s office became a formal Court of Chancery. To that court went appeals for departures from the fixed rules and formal procedures of the regular common-law courts. In both hearing and deciding cases, the Chancellor dealt informally with petitioners and assumed considerable liberty of deciding causes according to his own notions of right and wrong.
At first the Chancellor was an ecclesiastic, not a secular lawyer, and he often knew little about common law and perhaps cared less. At any rate Chancery developed a body of precedents and law which was concerned with “justice” rather than prescriptions of the feudal State. In vain did common-law judges and lawyers fight against it or ignore it in their opinions and treatises. Even before the end of the fifteenth century, equity was authorizing many actions and procedures respecting the property rights of men and women which overrode and riddled the rules of the common law.
Thus equity jurisprudence grew up by the side of the common law, not as a part of it, and steadily gave to petitioners remedies contrary to the rules which the common law had early prescribed and continued to prescribe on the ancient theory of feudal tenures. When a man or woman found, or felt convinced, that the common law could afford no redress for grievances, he or she could appeal to the Chancellor of the realm for redress and was often granted it. The outcome of such appeals varied with the character, humanity, learning, and sympathy of the successive chancellors; but in any case the sources of law, learning, and humanity upon which the Chancellor drew to instruct his conscience and deepen his sense of justice were different from the technical, traditional, rigid opinions and treatises on the common law.
In the early days of equity, when chancellors were usually ecclesiastics, many rulings in equity were drawn from the Canon Law of the Church, particularly in respect of rights growing out of marriages and wills disposing of property. But most of the cases in equity, particularly as the middle ages drew to a close, were secular cases, involving little or no religious sanction. Then the chancellors drew heavily for instruction upon the Civil Law of ancient Rome, as developed at the high point of its civilization. In this Roman law, chancellors learned that marriage was a type of partnership between husband and wife, in which the two partners had property rights substantially equal in character. In the recorded statements of later chancellors were often entered “entire texts from the [Roman] Corpus Juris Civilis, with their terms unaltered, though their origin is never acknowledged.”
Still later in the development of equity, chancellors resorted, for the guidance of their consciences, to “the mixed systems of jurisprudence and morals constructed by the publicists of the Low Countries” and there they found other reasons for giving sanction to equity – in effect, legalizing the practices of men and women, single or married, which the common law did not recognize. By applying great principles derived from such sources, chancellors were thus able to keep equity jurisprudence somewhat in harmony with the advance of civilization in England, while the common law, always looking backward, clung to the law and conventions of old times.
In making his decisions, drawing his decrees, and formulating his opinions, the Chancellor, it is true, had to conform in various respects to the terms and technicalities of the common law; but, as Sir Henry Maine wrote, the Chancellor always had at his command “a body of comparatively novel legal principles claiming to override the older jurisprudence of the country [England] on the strength of an intrinsic ethical superiority.”
Drawing upon a vast range of civil and moral law outside the domain of the common law, equity was thus inspired to follow the trends of sensitive opinion as economic and political changes transformed English society from a feudal into a modern commercial and industrial society. From about 1650 forward the development of English judge-made law was mainly through equity, aided in many respects by parliamentary legislation, while the common law remained anchored in its old moorings and found increasing difficulty in making adjustments to meet the new conditions of English life and economy. At length in the nineteenth century it could be said that “Equity includes, perhaps, half the body of law relating to property.”
Nothing less than a law encyclopaedia could present all the manifold ways in which equity affected the rights of women, married and single. But in the revolutionary eighteenth century, and fifty years before Blackstone wrote, the following principal matters are strikingly treated by the Court of Chancery: “(i) Chancery enforced rights which were unrecognized at Common Law: trusts were peculiarly its care, and the subjects of administrations, charities, separate estate, and equities of redemption were closely connected with the preservation of trusts; (2) as a Court of Conscience it interfered where a legal advantage had been unjustly gained by fraud, accident, or mistake, and granted relief according to the true intent of the parties, as it understood it, in cases of joint indebtedness and suretyship, by its doctrine of contribution; (3) where a right was recognized at law, but was there imperfectly protected or secured, it stepped in to decree specific performance, to take accounts, to allow set-off, to enforce dower or partition and to quiet and end rival claims by interpleader and bill of peace, by its injunction to secure quiet possession and to afford protection from threatened wrongs, and by discovery to give assistance in aid of proceedings at law, and to perpetuate testimony in danger of being lost.”
The significance of equity for women may be vividly illustrated by reference to its treatment of the married woman’s property rights existing under Trusts. By the middle of the fifteenth century it had become a general custom for men and women who held property at their disposition to create “trusts” for the use of some person or persons. That is, A (man or woman) would convey an estate to B, whom A trusted, on the understanding between them that, although B was to be and remain the legal holder of it, all the advantages of the ownership were to go to A or some other person or persons designated by A.
This was a practice unsanctioned by the common law and hence there was no means at common law by which to compel the trustee to fulfill his obligations to the person or persons for whom he held the property in trust. Indeed at law the trustee was bound only in conscience and morals to discharge the trust vested in him by the donor, in the interests of the donor or the donor’s beneficiary or beneficiaries. But very early in the history of trusts the Chancellor, administering Equity, assumed jurisdiction over trusts and, if necessary, compelled Trustees to carry out to the letter the intentions of the donors and to transfer to the beneficiaries of trusts the money or other advantages of estates held in trust.
Fully protected by Equity, fathers and mothers could with confidence transfer property to their daughters, whether single or married, in trust for them and their heirs; and the bridegroom, before marriage and, at a later period, after marriage, could transfer property in trust to his bride or wife for the benefit of herself and her heirs. By innumerable forms of stipulation the particular advantages accruing from the property in trust could be assured to the married woman, and the property in trust was withdrawn from the controls of the common law which otherwise vested in the husband an ownership or dominion over the wife’s property not so placed to her use by a trust.
As the centuries passed in England the number of trusts increased. In the opening years of the nineteenth century it was estimated that about one-half of the property in England was held in the form of trusts. What proportion of this property was in trust for women there is no way of knowing, but it is known that the trust was commonly employed by men and women to safeguard the interests of single and married women. Indeed, it has been said that this system of protecting women’s interests was far more often used in England at that time than in the United States.
At all events, long before Blackstone wrote on the “disabilities” of the wife at Common Law, the practice of creating Trusts for the benefit of single and married women under the protection of Equity had taken millions of pounds’ worth of property out of the common-law domain as to disabilities. Informed men and women of property, either in ownership or in anticipation of it, knew that the disabilities of married women in respect of property under common law could be avoided by a resort to trusts, and that equity, liberally construing the rights of such women, would protect them and their heirs in the enjoyment of the rights so vested. In short, equity made it possible for men and women to put as much of the remaining property of England as they liked beyond the reach of the common law as to disabilities.
Naturally, lawyers devoted to the inelastic common law disliked, to put it mildly, the corroding attacks of equity upon their legal domain. The law which they championed had the advantage for practice of traditional certainty and reverence for precedents. Equity, on the other hand, though it acquired respect for its own precedents, could be flexible. It could place reliance on moral principles and be guided by an understanding concern for the rights of individuals and for family interests. It could give more consideration to the motives of the persons whose rights and actions came before it for settlement than to the mere legal forms in which such motives might be expressed. Equity could advance rapidly to meet the changing conditions of life and economy which made old laws unjust or discriminative.
In summary, what does modern critical scholarship find in the long review of English legal history prior to 1765? It finds men and women, in many fundamental respects, on a similar footing with regard to their property holdings under the requirements of a strong feudal State. It finds men and women making powerful efforts, individually and together, to protect their families against the encroachments of that State. It finds an early and persistent recognition, especially with the development of Equity, of justice as the ideal for adjusting and determining the relations of men and women as members of families and communities, and as individuals.
This is not to deny that there were discriminations between men and women in the feudal law – civil and criminal – which were in various cases carried forward through the centuries. There were many discriminations against women in both branches of the law; but many responsibilities, which may in some instances be called “unfair” discriminations, were imposed on men, independently and in connection with discriminations against women. To the enlightened conscience of modern times, several of the discriminations against women, such as the right of the husband to inflict punishment on his wife, are barbaric; but even as to that it must be remembered that the husband was at law responsible for his wife’s behavior and women were by no means all peaceable by nature. Other discriminations associated with the feudal state and manners – now deemed forms of tyranny – should more properly be regarded as anachronisms. Yet all of the discriminations combined do not add up to the utter subjection of women, single and married, under the sovereign power of men at law, to say nothing of practice, in feudal economy or as it was revolutionized and feudal impulses were checked by changes in economy and improvements in morals.