Woman’s Position and Influence
in the Civil Law
May 1894 — The World’s Congress of Representative Women, Chicago IL
A consideration of woman’s position in the civil law — that is, in our present system of jurisprudence, more properly called “municipal law” — necessarily involves a consideration of our earliest English ancestors, of their mental and physical qualities, the climate and material environment in which they lived, their origin and growth as a people, and their development into a nation — all, in short, which goes to make up the character of a government.
M. Taine, in his “History of English Literature,” says: “At the basis of the present, as of the past, ever reappears an inner and persistent cause, the character of a race.” This is as true of the jurisprudence as of the religion and literature of a people. The law under which we live to-day in this country is made up of common law and statute law, the unwritten and the written law, and much the greater part of our rights and duties is found in that body of legal principles which became established through the usage of the English people to the time of the American Revolution. This is the source, primarily, of all the rights and disabilities, the privileges and duties of the American woman of the present. To find our status in the law we necessarily turn to this vast body of precedents, and we find that the English common law bears the stamp of the early Anglo-Saxon character. The Saxons were a warlike and a brawny race; they loved freedom, but it was the freedom of a semi-savage state; they maintained rights, but such rights as military minds conceive; they fought for equality, and the fighters were the ones who obtained it; they established institutions bearing the stamp of their own character, and that these institutions were in the likeness of sturdy and material natures may be traced in the Constitution of England and in the principles of the common law. Notwithstanding the occupation of the British Island by the Romans, their mental development and esthetical culture found no congenial home in the rude time and among the rude inhabitants of the northern island, by whom it could not be assimilated; when, therefore, the Southern conquerors withdrew, the British nature reasserted itself.
The Normans carried to England the pride of conquest and feudal learning. They fettered the people with the most rigorous of feudal governments and held the bold and fearless Saxon spirit in subjection; still the hardy northern stock made its influence felt, and stamped with its character the institutions which became established in England. Vital through the oppressions and suppressions of the conquest, the Anglo-Saxon rights became the rights of Norman England. For centuries in the south of Europe there had existed a civilization — the Roman — in which the idea of freedom included the freedom of wife and mother to a considerable degree; but to the northward was developed a semi-civilization where freedom, equally cherished, pertained to the only recognized force in society — the man. In a wilderness, and among warlike tribes, it takes masculine force and masculine courage to maintain life for self and family; and to these qualities would naturally attach the rights and duties of social government. Hence, while Southern Europe, in the Roman civilization, presents to the historian a society made up of individuals where the war-like and the peaceful, the muscular and the nervous, the masculine and the feminine natures have almost equal freedom — a society where the individual is the unit of government — Northern Europe, and especially the British Islands, presents to the same observer a society whose fundamental principle is that the family is the unit of government. The sunny skies of Italy smiled upon the queenly mother, the inspirer of youths, but the foggy air of Britain enveloped a servant ministering to the physical wants of her house-hold. Held close in the protection of the master the Saxon mother reared her family and labored for the future, as she could not have done in a sphere forbidden to her alike by natural and human law; the muscular, the material representatives of the human race ruled the civilization which founded the British Government, and, as already said, their rights, their legal privileges are the ones embodied in the common law. To the time of the American Revolution this common law is our law. Since then it has been modified in two ways — by a subtle, almost imperceptible and gradual change, caused by the development of the minds of our jurists to a broader perception of the rights and needs of humanity; and by statutory enactments which directly and positively change the law from time to time in certain particulars. It is the province of the courts not to make law but to expound it, and were it not for the inevitable change in the perceptions of mankind as to the principles of right and justice there would be no modification of the common law; but it is impossible for many judges of varied experiences always to expound the same principles in the same way, and it therefore follows that a minimum amount of change does take place in the unwritten ten law of a people. To this fact woman owes in a slight degree an improved position in the law; that which is held in one period by one court to be justifiable, in accord with the rights of a husband and father, is held in a later period by another court to be extreme cruelty and violative of the right and privilege of the wife and mother; and thus in respect to physical coercion, to domicile, and to the nurture and control of children, the law of husband and wife, and therefore the status of woman, has been modified.
It is, however, in the statute law of America, and particularly in that of the more western States, that we find the real innovations which have removed the common law disabilities of woman, so far as yet they have been removed. The statute law, however, never applied to the whole body of the common law, but only to certain particular features of it, as the specific matters were brought from time to time to the attention of our legislators. It follows that the changes are fragmentary, and to a considerable extent inconsistent and inharmonious with the common law, so that the real status of woman to-day is based only upon the old common-law disability growing out of the theory of the unity of the family, while at the same time here and there she holds a position of considerable freedom and power. She still is, if married, only a part of an entity. She lives in a state of coverture; that is, a subject condition in which she is covered, or held, or protected by the stronger member of the family — her husband. Therefore, he represents her; therefore, her domicile follows his; therefore, his judgment as to the care, nurture, and control of her children is authoritative. As a matter of law, in nearly all of the States of the Union the man possesses by virtue of his fatherhood the right to the custody and control of the children; but by statutory changes in most of the States he does not now, as formerly, upon marriage, become possessed of such property as his wife may then own; still, he has the right to-day (in spite of the statutes giving to a married woman the right to own and hold property hers before marriage, and that acquired by gift or purchase afterward) to collect her wages in the most liberal and enlightened States of the Union.
No longer than one year ago the Supreme Court of the State of Michigan directly held this doctrine, thereby merely announcing a familiar principle of the common law which had never in that State been repealed. The case is an interesting one from the illustration it presents of the fact that the most enlightened judgment of to-day may be wholly in advance of the existing law. The circumstances were these:
An elderly gentleman of property becoming ill was taken into the home of a neighbor and by the woman of the house kindly nursed until his death. When his estate was being administered in the Probate Court the woman presented her claim for services; it was denied. There was no dispute of her having performed them, nor of their value, but the court held that the woman, being a wife, had no right of action; that her services belonged to her husband, and must be considered as rendered for him; that the claim being made in her name, and there being no evidence of an assignment to her of the claim from her husband, she had no right of action and could not recover. The case was carried through the circuit to the Supreme Court of the State, where the doctrine of the Probate Court was reaffirmed.
In another case passed upon by the same court at the same term a similar affirmation of a common-law disability was made, although, owing to the nature of the case, it operated to the immediate benefit of the wife. A married woman owning certain real estate neglected to pay her taxes, whereupon the marshal, with a tax-warrant for their collection, levied upon her personal property, consisting of clothing and other personal possessions. A part of the property levied upon had belonged to her before marriage, but most of it consisted of clothing purchased and made in the “ordinary course of married life,” as the court stated in rendering the decision. The husband thereupon brought replevin for the property from the marshal, setting up, as of course he must, his personal ownership of the property, being careful to replevin only that which had been purchased during marriage. This case also found its way to the Supreme Court, and the right of action in the husband was maintained and he recovered the property; thus, you see, by a curious anomaly, wresting the common-law disability of the wife to the purpose supposed by some to be inimical to the common-law unity of the family, that of a wife’s wearing her husband’s clothes.
Perhaps in no one feature of the law has there been greater change by statutory enactment than in that of dissolution of the marriage bond in case of ill-doing of one of the parties. The statutes of the States are too various for presentation here, but in a general way certain principles characterizing the innovations may be given. In spite of the popular belief to the contrary, fostered by the sensual and sometimes incomplete newspaper reports of the proceedings in divorce cases, it is a principle of universal application that dissolution can not be had where both parties are at fault. It is only for evil-doing on the part of one, with right-doing on the part of the other that divorce is legally granted. Again, contrary also to a some-what prevalent opinion, divorce is not granted for incompatibility, and never is it granted from the standpoint of the law when desired by both parties. The one must have done wrong, contrary to the wish of the other, and that other have sought redress against the desire of the one, if relief is to be obtained. Should the knowledge of an agreement between the parties for the obtaining of the divorce come to the court before decree the case is lost; should it come after decree the divorce is held invalid. This wrong-doing must be that specified by the statute of the particular State in which relief is sought, and that State must be the State in which the one seeking relief has bona fide residence. Over and over again divorces have been held invalid by the courts of the State in which the applicant really resided, though granted by a sister State in which residence had been falsely claimed. It may be said that, as a matter of fact, divorces are frequently granted where mutually desired. This is very true, but the mutual desire does not, and must not, appear in the proceedings. Should it do so it would be fatal to the case. What appears in these cases is that the defendant does not defend, obviously because he is guilty and therefore has no defense, so argues the law; but even then the complainant must make his or her case. Decree for divorce can not be taken upon the confession of judgment. True, it is not necessary to make so strong a case against one not defending, but it must be made by proof establishing clearly the commission of the wrong-doing prescribed by the statute as a cause for dissolution. The self-respecting lawyer takes infinitely more care in his preparation and presentation of a divorce case when it is defended than in any other, for his chances of success are at the minimum, the number of victories in contested divorce cases averaging less than in any other kind of litigation, with the possible exception of litigation between a person friendless and in poverty and a powerful corporation. The theory of the law of divorce is that it is granted to the innocent party as a relief from the statutory wrong-doing of the other, and as a punishment to the guilty one. The grounds of divorce provided by the laws of the more liberal States are, generally speaking, adultery, impotency, extreme and inhuman cruelty, gross and wanton non-support of wife with ability to support, and desertion. In the case of desertion especially there must be unwillingness on the part of the innocent party. It is not desertion if the one deserted is willing the other shall go. The statutes in this case provide the period for which the desertion shall have continued before constituting a ground for divorce.
These are in the main the principles underlying the present divorce laws. As before said, the statutes are not uniform, many of the States permitting divorce for the sole cause, adultery; others prescribing more than the one cause, but not all of those given above. There is, too, a great difference in the holdings of the court as to what constitutes gross and wanton non-support and extreme cruelty. I know of a case in which a learned judge writing a dissenting opinion, and holding that a decree of divorce should not be granted, intimated that the evidence showed the husband had choked his wife, and had given her physical blows, but notwithstanding, gathering from the testimony that she had married her husband with a view of support, held, to quote his language, that “she should be prepared to abide by the ordinary inconveniences of married life.” On the other hand, it is not uncommon for the judicial mind to see that certain phases of conduct wholly apart from physical abuse and indignity may constitute more extreme cruelty than any amount of physical violence. Thus there is great latitude for different administration of the same statute by the exercise of discretion by the various courts. Especially do we find this variance in the administration of the law relating to the custody and control of children in cases of separation of the parents. Where they do not separate, there is, as we have already seen, no question as to this, for the guardianship vests in the father by virtue of his fatherhood. In case of separation he formerly took the child. Now some of the most liberal statutes provide that the children below a specified age shall be put in the custody and control of the mother, and that those over that age shall remain under the control of the father; but these statutes are themselves subject to the discretion of the judge upon the point of the welfare of the child, and no judge is required to make other disposition upon this point than that which he deems desirable. It follows, therefore, that in some courts children are frequently confided to the mother, while in other courts, under the same statute, and upon the same state of facts, they are retained by the father.
As a consequence of the father’s legal guardianship of the child, he has the right to appoint the testementary guardian, and formerly he could do so without regard to the wishes of the mother. In certain States this right has been modified; in others it remains unchanged. In Michigan, although he may appoint the testementary guardian, the Probate Court, before confirming the appointment, on the probating of the will, is required to cite the mother to appear before it and give her view of the appointment. There is nothing, however, which binds the judge to regard the mother’s view, so that really the law is not greatly improved.
The legal unity of husband and wife has perhaps been more strenuously retained in the matter of their testifying for or against each other in the courts, and also in regard to an action by the wife for the tort of the husband, than in any other particular. In some States if the consent of the husband or wife is given the testimony of the other may be taken. In other States not even this is allowed. Until very recently the wife has been supposed to be incompetent to bring an action of tort against her husband. In so far as the statutes of the various States have removed common-law disabilities and secured positive rights to women, they have done so by departing from the common-law theory of the family as the unit of society and recognizing the distinctive individuality of the married woman. It must ever be that partial changes, not affecting the underlying principles of law, can give but incomplete relief.
So far the law has been considered with regard to the status or position of the married woman. The changes relating to woman irrespective of marriage are chiefly those granting the franchise and relating to her right to office. In many of the States woman has modified suffrage. This is granted generally upon matters relating to schools. In a few of the States she has municipal suffrage, and in one full suffrage.
Her right to office is more extended. She has a common-law right to the offices called ministerial as distinguished from judicial. To the former, the English decisions from James I. down establish her right. This right was first recognized as a consequence of her inheritance of property. In early times in England she could not inherit the estates of her ancestors; but later improper feuds came to be recognized in the law, and these, it was held, might descend to a woman. Finally her right to the offices attached to her estate was recognized, and from this beginning is to be traced her common-law right to office. The question frequently came before the courts in those early days, and the right was sustained upon the theory that the offices being ministerial their functions were susceptible of exercise through a deputy, and therefore woman, being able to appoint a deputy, might hold the title to the office. In such offices as require discretion deputies can not act, and these she could not hold. Curiously enough, this distinction has led to the anomaly that under it woman to-day is eligible to offices for which she is perhaps by nature least fitted; while many, regarding her fitness for which there can be no question, can not be occupied by her unless through statutory provisions. She may hold those in which a deputy may be appointed, though it be of so uncongenial a nature as that of constable or sheriff; she may not hold such as require the exercise of discretion, though it be one so congenial as that of legislator, governor, or judge.
Leaving the subject of woman’s status in the law and approaching that of her influence, we come from a field rich with realities to one almost barren, unless it be in the promises of future possibilities. Woman’s direct influence in the law can scarcely be said to exist, except in the few localities, already mentioned, where she has the franchise. Neither in the making of the law nor in administering it has she any direct influence; the most she can be said to have is the right of petition, and this right she is every-where claiming. In many States this indirect influence has been felt in legislation relating to education, temperance, and sexual morality. There can be no question but that the sentiment of women in this direction has had a powerful indirect influence, and that our laws are from year to year becoming more and more (by fragments, of course) in harmony with their views.
It is in the administration of the law that her influence is least felt. So recently and so limitedly has she been received in the courts as an attorney, and so wholly is the entire personnel of the courts, with this single exception, made up of men, that her influence there can scarcely be claimed as available. This, in my judgment, is one of the most lamentable features of woman’s position and influence in the law. The differences between man’s nature and woman’s nature are a bar, eternal as are nature’s laws, to the equitable administration of justice by men alone. Men can not know all the subtle springs of feeling and action hidden within woman’s complex organization. They can not measure her needs by their own, nor mark for her the path which her own nature and her nature’s God traces through the wilderness of human thought and action. And yet from the paved market-place in ancient Rome, where sat the magistrates for the transaction of their business, to the wider forum of civilized America, woman’s legal rights have been brought to the bar of masculine knowledge and manly chivalry. The result is that women have suffered, and through women all humanity. For broad as is man’s outlook upon the world of knowledge, and deep as are the well-springs of his love and tenderness for woman, that complete appreciation of needs and innate sympathy with wants which members of one sex alone can have for one another, and which is the golden heart of justice, has been wanting to his adjudications. It is sometimes claimed that men are better friends to women than women are to one another. All womanly, worldly experience denies this. Men are, it is true, generous lovers; but when it comes to a matter of simple, true, appreciative friendship, that of women for women can not be surpassed, and is equaled only by that of men for men. There is an innate knowledge that comes from sameness of organization, which seizes upon the difficulties of life and solves the problem for weal or woe without delay or difficulty. This innate knowledge women have of women, and men of men; but the distinct individuality of the sexes forbids it to one sex of the other, and so we find that the administration of law involving women’s interests to-day wants the complete justice which the advanced thought of the time demands. Not only must women, for the establishment of their complete rights, be represented at the bar by those of legal knowledge who are capable of viewing their interests from the standpoint of perfect sympathy, but they should be able to take their rights and wrongs to courts capable of the same perfect understanding, and submit their causes to juries of their fellow-women — to juries of their unquestioned peers. Perhaps among all the innovations in Edward Bellamy’s wonderful book, “Looking Backward,” the most important is the one answering this need. He pictures to us a system in which causes where both parties are women are tried before women judges, while those where the litigants are a man and a woman are tried before judges of either sex. This is what we need now; and it is as well adapted to our own time as to the year 2000 — at least it is as well adapted as any scheme for the advancement of women can be under our present industrial system.
It may not be necessary that in every case where women are litigants only women should be upon the bench and jury. It probably would be better that both sexes be represented even then. There can not be as rounded, complete, harmonious action in any department of life by men or women alone as there can be by both.
Humanity is dual in its nature, and the masculine and feminine qualities gain additional strength and perfection through union with each other. Possibly, nay, I would say certainly, woman’s judgment upon woman might well be tempered by that mercy toward women which is the proverbial quality of man. But the knowledge each sex has of its own needs is, after all, the chief requisite in judge and jury; and if the qualities of both sexes are not to be brought into play, then by all means let women’s interests be the especial care of women, and men’s interests be the especial care of men. In the practice of the law the opinion has been forced upon me that not only is there need of women lawyers, but of women in all parts of our judicial system. Now it is a mother asking for the custody of her child, and that too in a State where the laws are so liberal that in case of separation of father and mother the mother is prima facie entitled to its custody, and the burden of proof is upon the father to show the mother’s unfitness; but the judge, admitting the mother’s perfect competency, gives the custody of deaf and dumb girl of nine years to the father, because, as stated by him, “the father appears to love the child, and I think would suffer very much in giving it up.” Again, when an unhappy wife and mother wins relief from bonds not longer to be endured because of the fault of the husband and father, and is given, as she should be, the custody of her children, it is of almost universal practice for the judge, in dividing the property acquired during the marriage, to give the wife often less, but never more, than one-third of the estate. From this third she must support and rear her children and maintain herself, handicapped as she is both by her sex and her guardianship of her little ones; while their father, with none but himself to support, and better equipped by nature and social economic conditions for a struggle with the world, is permitted to retain two-thirds of the whole. The judge is familiar with the wants of men in the business world; he knows the needs of the man for capital, and he reasons, “If I take from him more than a third of his property he will be crippled, and perhaps can not keep his business standing,” etc.; and so, without meaning to be heartless or unfair, he, because of his incompetency to view the situation of the woman from the standpoint of experience, fails in complete equity. A woman would know full well the difficulties to be met by a mother thus thrown upon her own resources, and would add the weight of her knowledge to the decision. There is, perhaps, in the whole range of our daily experience no more glaring inconsistency than the failure to give women their full property rights, while at the same time deprecating their entering various new fields for their own and their children’s support. “Women should remain in the home; they have higher and holier duties to perform than that of bread-winning,” is cried from every side; and then straightway, if their rightful protector fails in his duty, instead of giving his substance to the woman so that she may remain in the home and fill her “proper sphere,” the court gives her a paltry part, and she is left to perish in that home, or to go out into the world and compete with man for daily bread.
But space does not admit of relating the cases which have demonstrated to me the truth of my position. I must content myself with showing its antecedent probability from propositions admitted by all, and the assertion that my experience confirms it. In the relations of husband and wife, parent and child, guardian and ward — all the domestic relations, in short — a little thought will show that woman’s knowledge — woman’s instinct, if so you please to call it — should find play in their adjustment. What can the man and father know of the vital interests of the woman and mother? He can learn something from what he sees as, standing upon the eminence of fatherhood, he looks up to the summit of motherhood towering beyond him. But, ah! who shall say what verdant depths, what crystal springs of thought and feeling are hidden beyond his ken! Do not misunderstand me. I am not arraigning man’s wisdom, man’s love of justice, or that attribute which gives the charm of poesy to life’s prosaic details — man’s chivalry; I am merely saying that there are some things men do not know, that men can not learn, and that women do know. Neither do I arraign the past, nor fail to see how natural it is that we to-day are suffering the necessary results of having outgrown our environment. Our civilization had its birth in a crude and barbarous age; and especially, as we have seen, did our common law spring from a condition far different from the present. It had its origin and early development when the material interests of life were uppermost; when the muscular, the aggressive qualities of human nature were the ones required for the establishment of human rights and the maintenance of human government. And so man, by nature endowed with the ability to cope with the necessities of those times, was the active element in society and government, and naturally gave the coloring of his nature to the jurisprudence which developed. In this jurisprudence woman, the member of the human race representing by her weaker physical organization and her peculiar qualities of mind the more esthetic and ethical interests of the race, held the place of ward, so to speak, to the dominant sex. It was sought to protect her, that her high mission of motherhood might not be jeopardized by contact with the crude and incongruous influences of outer life in a material age. And it is well. Who shall say what development the race may not have reached from this very protection; from the seclusion incident to the condition of coverture and dependence! not know. The most that we can say is that whatever of greatness and glory womanhood has reached has been achieved under the conditions men have imposed. That other conditions would have produced better results is not known, and does not to me seem probable. Now, however, all is changed, or at least is changing. The material world is well-nigh subdued. Man’s dominion over the earth is accomplished. There is developing a desire for a more esthetic and ethical era among mankind. After a little, upon the world of human life there will burst the full day of woman’s emancipation. In that day will be recognized the distinct individuality of her nature, and the need for full and perfect justice, that her qualities of head and heart may be brought into play. Then in the forum she will take her place by the side of her brother man, endowed with full powers to administer justice. The two shall form a perfect whole, each part supplementing the other, and each giving to the other the benefit of a different organization and a different experience.
From this view of woman’s position and influence in the civil law let us gather hope for the future of humanity. Gradual as the change from her condition of dependence to her present anomalous position of semi-independence has been, we can see that it is in the logic of human progress for her to attain equality.
Source: The World’s Congress of Representative Women, vol. 2,ed. May Eliza Wright Sewall (Chicago: Rand and McNally), 1894, pp. 1-90.