Law and Women
September 1893 — Woman’s Building, World’s Columbian Exposition, Chicago IL
Law, said Burke, is beneficence acting by rule. As an abstract principle or theory human wisdom could hardly invent a more beautiful definition. In it is implied a system of ethics stripped of the barbarous element of might, purged of the discordant factors, cruelty, injustice, dishonesty and harshness, leaving only the harmonies so combined as to render it perfect. It is, possibly, what the law might be if men were angels and earth a paradise. But with the constantly increasing struggles of conflicting interests, in its application to the affairs and conduct of men, the beneficent quality of law is many times conspicuous only by its absence. So true is this that it has become an accepted rule, that in law there is nothing certain except expense.
How then to avoid becoming entangled in its treacherous meshes, how to invest securely and manage property, how to conduct the ordinary transactions pertaining to the concerns of every-day life without running the risk of disastrous loss, are some of the things worthy of the serious study of women in this age and generation, when fortunes large and small are rapidly falling into their hands either by inheritance or acquisition. It is the universal testimony of lawyers that ignorance is one of the most prolific sources of troubles that eventually find their way into the courts for adjustment.
At least it is a fact worthy of consideration that lawyers as a rule do not go to law, any more than doctors take their own medicine. However unsuccessful a lawyer may be in the practice of his profession, or whether he knows much or little of the great science, he has by the time he is admitted to the bar learned enough to avoid litigation in his own behalf. This want of knowledge on the part of laity is not at all surprising, when it is understood that the law in all its various and multifarious ramifications is now contained in upward of twenty thousand bulky volumes of the common or unwritten law, and in this number is not included the works on statute or written law. And in all this mass of material the language used is so overburdened with verbiage and technical phraseology, often obscuring the meaning to such an extent as to baffle the understanding of those trained in the profession.
The occurrences are by no means rare when the most eminent jurists disagree as to the construction and application of the law in important cases. But even if the language were clear, concise and so comprehensive that those that run may read, the requisite amount of accurate knowledge to guard against business blunders that may prove expensive and troublesome, or the rule that establishes the rights of one individual without infringing upon those of others, is not to be found in any one of these books, or in any few. So that, practically, the wisdom concerning the laws and their operations that are a constant menace to those controlling large business interests, is inaccessible to the multitude, except as it is gained in that great democratic free school, experience, which numbers many sorrowing graduates.
If a lawyer may be considered fully educated and equipped for his work when he has mastered enough legal lore to know where to find the information that he is in quest of at the right time and moment, what can be expected of those without any special training? And in none of the affairs of life, affecting our material interests is the maxim that half knowledge is worse than ignorance so applicable as in law.
With the importance which is now accorded to women in the financial as well as the social world, an importance which establishes a distinct and separate individuality in the body politic from a business and legal standpoint, a most perplexing problem with regard to her signature has arisen. It can not then be repeated too often that the signature of a woman, whether plain, simple, or complex, in all business and legal transactions, from the signing of a communication, a check, a deed or a mortgage to the signing of a will, should be written plainly and fully, and with nothing added to or taken from. The addition or omission of a single letter, the changing from full name to initials, or substituting the husband’s, causes confusion and, in cases of real estate transfers, may work harm.
Women in business affairs may be divided into three classes: the over-credulous and improvident, the over-suspicious and miserly, with a small surplus or remnant of conservatives, with clear business heads and quick insight that render their judgment almost unerring, that may be called the saving grace.
Col. Mullberry Sellers is a typical American character, and flourishes more or less fully developed in all our communities. The number of schemes that are continually being hatched by these fertile financial geniuses for splendid gains on a small amount of invested capital would be amusing if they did not in so many instances draw hard earned dollars into the vortex of destruction.
The members of the second class have no confidence in money-making schemes of any kind, and are never caught in any of he delusive snares. They are afraid of real estate investments; banks they are morally certain are not safe, and the traditional stocking becomes the place of deposit for many of these cautious souls until some friend or acquaintance, in whom they have perfect confidence, is found, who will undertake the management of their savings, thus relieving them of further anxiety. Who can estimate the tears that have been shed, the bitter anguish that has been caused to thousands of confiding women after finding that their little savings have been swallowed up in hazardous speculations, or swept away by dishonest practices, leaving them absolutely without redress.
The members of the third or remnant class, however, conduct their business on the same business principles that successful men do. They are not afraid of banks, because they know that their soundness or unsoundness depends upon the business capacity of the men who manage them. Before investing in stocks or making large deposits in any one of them, they will investigate its condition, its resources, its management, and then, when a panic is threatened, will not precipitate it by withdrawing their deposits. They know that there is no more safe or satisfactory way of making investments than upon farm mortgages, but they will, before making a loan upon such security, take the precaution to examine the title to the property under consideration to see that no cloud hangs over it, and they will inquire into the character and standing of the local agent with whom they are dealing. They will further, if the loan is made in a state remote from the one in which they live, ascertain all the law governing such transactions in the particular state, for in some they are specially favorable to the debtor. Then if the loan is made only up the the one-half or two-thirds standard of value, nothing worse can happen than to come into possession of the land, which does not burn and can not be spirited away.
These women know when to make a written contract and when a verbal one will be binding; they never sign a paper without understanding exactly its purport in all its bearings, and never give unlimited power of attorney to an agent. That so many women are disqualified for ordinary business transactions requiring exactness and judgment is not so much because of mental incompetence as lack of training.
Rastus S. Ransom, Surrogate of New York County, in an article in the North American Review, June, 1893, “How to Check Testamentary Litigation,” makes some unwelcome statements about women. He says: “Many women are named as executresses of wills, and it is my experience that they know little or nothing of business, rely largely upon their emotions and intuitions, and fall an easy prey to the ever-ready and always convenient sharper. My judgment is that women should never be compelled or permitted to undergo the labor and responsibility of these positions.”
It is only fair to assume that Mr. Ransom, in giving expression to an opinion of this sort, is not speaking from prejudice of the sex, but is giving his honest convictions founded upon association and experience. It is a matter of record that all the property of the United States passes through the probate courts once in thirty years. By the appointment of persons largely interested as administrators or executors the percentage allowed for such services is saved to the estate. Now if women are to be debarred from acting in such capacity because of incompetence much that would come to them from this source must go to strangers. This state of affairs is certainly deplorable and must result in loss to women, whether they do or do not act as executresses of the estates in which they are chiefly interested.
One more quotation from the same paper: “Many intelligent persons do not realize the absolute right both in morals and in law of a man to dispose of all his property in his lifetime, to take effect only at his death, and which is defined to be his last will and testament. His right so to dispose of his property is as certain and sacred as his right to dispose of it by sale or gift during his life.”
Embodied within this declaration of the law, as made by Mr. Ransom, there are many perplexing questions that are intimately connected with the rights and interests of women, especially wives. Believing that one instance drawn from actual observation is more valuable than a dozen hypothetical cases, I will take one under my notice at the present time to illustrate this absolute right of man, both in a legal and moral sense, that Mr. Ransom so emphatically proclaims and so fearlessly maintains to be just and even sacred.
Mr. S, living a short distance from my home in Davenport, Iowa, owns four acres of land on which he is now living with his wife. Every dollar that was paid for this property, which is valued at $1,500, was earned by the wife, who is now in the neighborhood of sixty-five years of age and partially crippled from an accident. At present she works in the fields, makes the garden, milks the cows and makes the butter; she harnesses her own horse, drives to town and sells her chickens, vegetables, butter and eggs, buttermilk and smearkase, and takes home, when she can get them, chairs to re-seat at odd moments, besides, in cases of illness in the neighborhood, acting as nurse. The husband, too fine a gentleman for this sort of work, leads a life of comparatively luxurious case, and never contributes a dime to the domestic treasury.
Now Mr. S has, unquestionably, the legal right, and according to Mr. Surrogate Ransom the moral, to make a will disposing of, in any way to suit himself, all but one-third of this property at his death. If he should not survive his wife, whether he makes a will or not the court would take possession of this property, and from what is left after the settlement of the estate the wife would receive one-third; the balance would go to the eight grown children all away from home.
That so many men are better than this infamous law is the only reason that it is permitted to disgrace the statute books in so many of our states today. In all our broad land there is only one state, and that is California, that has righteously considered the wife in the disposition of property.
Respect for the law has so long been considered one of the cardinal virtues, that women meekly acquiesce in those that discriminate against their interests, when by open rebellion a change could be affected. It is plainly a woman’s duty not only to know what the law is respecting her rights, but also, what the law should not be.
Many women are unable to comprehend the principle that capital is labor, or that upon this principle rests its only equitable foundation; no physical labor alone, but mental labor also. It is only wealth that is accumulated without effort that is lightly esteemed by either sex.
This is so true that it has grown into a proverb that one generation by labor and frugality accumulates wealth, the second enjoys, spends or dissipates, and the third begins the struggle for existence in poverty again. We are living in a transitional period, and possibly it is not so much what our rights are, or what our duties to ourselves and to society with respect to property are today, as what they will be in the future, when justice, upon which all law is founded, invests women with greater authority and responsibility by conferring upon her the law-making power.
Does justice, though, which has been beautifully defined as the soul of the universe, peacefully confer its blessings? No, all the law in the world tending toward the amelioration of mankind has been born of agitation and contest; every principle is a victory gained over an inimical force. And so the pathway traversed by all great reforms has been paved with long-continued human effort, and in many instances cemented with blood. It is most fitting, then, that the symbols of justice should be the scales and the sword. The scales, so sensitively adjusted that the slightest variation causes vibration, are used to determine what is just; the sword the power to enforce its execution.
Law, with all its cumbrous machinery, is a plant of slow development but of continuous growth. The seeds were sown far back in the ages when the complex relations growing out of differing wants and conditions of men began to be considered. Customs arising from associations became crystallized into rules, rules established by usage, by legislative enactments, became laws. The Romans legalized their robberies of land and laid the foundation of all our law governing property. The Venetians traded on the Rialto, and upon their operations the basis of our commercial law rests. “The law,” says an eminent authority, “can renew its youth only by breaking with its past.”
What, with all the weight of a century or more of usage added to a law, does this breaking with its past mean? New conditions and new demands may have arisen that render it odious to a large majority, yet with its existence the rights and interests of individuals and classes have necessarily become identified and it can not be overthrown without a struggle; witness our tariff laws today in proof of this statement. Who of our statesmen living today that advocated the Fifteenth Amendment to our Constitution would do the same thing again?
If, then, when a law, either good or bad, is once enacted and becomes a part of the working machinery of the system, if it is so difficult and even dangerous to repeal it, it is not surprising that conservative, conscientious men are slow to accept new theories which, when incorporated into law, admit a new and untried element to the already too great body of law-makers.
Allegorically women may hold the scales in one hand and the sword in the other as the personification of Justice, but actually she is without power, except as a beneficiary of man, to defend her own rights of property. The ample, floating drapery may envelop her fair form emblematically, but no ermined robes of state or bench belong to her wardrobe. She is judged, but she can not judge.
This is true today; what will be tomorrow?
The history of all conflicts in which human rights are involved proves that when the wave of reform has once been set in motion it never recedes until it reaches the further shore. The demand for the ballot for woman has been made; it is founded upon a principle of right and justice that can not be denied, though it may be delayed. Indifferent, indolent women may oppose; Susan B. Anthony may never lift up her voice again in behalf of the cause; the Suffrage Association may cease to labor or to exist, and the principle upon which the demand is founded, enshrined in the hearts of millions not openly connected with the movement, will be carried on to a successful issue.
The time may not be near, nor is it very distant, when women, whether as a whole they desire it or not, will become as important factors in the law-making power of this country as men. What then is the duty of women today–not a few clever women, but all intelligent, thinking women? Is it not that they shall use this probationary period in preparation to meet the responsibilities that the new conditions will thrust upon them?
The progress of humanity in its march toward a state of ideal perfection has ever been slow, and the ballot placed in the hands of women may not inaugurate a millennium, but it certainly should not be retarded by it. Give women the ballot by all means; but first give her a rational understanding of the complex system of our laws and our government.
Source: The Congress of Women Held in the Woman’s Building, World’s Columbian Exposition, Chicago, U.S.A., 1893, ed. Mary Kavanaugh Oldham Eagle (Chicago: Monarch book Company) 1894, pp. 623-627.