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WOMAN’S RIGHTS 
 
 UNDER THE L A AY 
 
 Ett STfjtee lectures, 
 
 DELIVERED IN BOSTON, JANUARY, 1861, 
 
 BY 
 
 CAROLINE H. DALL, 
 
 AUTHOR OF “WOMAN’S RIGHT TO LABOR,” “HISTORICAL PICTURES 
 RETOUCHED,” &C., &C. 
 
 “ Every leaf, we have seen, connects its work with the entire and 
 accumulated result of the work of its predecessors. Dying, it leaves 
 its own small but well-labored thread ; adding — if imperceptibly, yet 
 essentially — to the strength, from root to crest, of the trunk on 
 which it has lived, and fitting that trunk for better service to the 
 next year’s foliage.” — John Ruskin. 
 
 BOSTON: 
 
 WALKER, WISE, AND COMPANY, 
 
 245, Washington Street. 
 
 1862. 
 
33 
 
 bi 
 
 Entered, according to Act of Congress, in the year 1861, 
 
 BY WALKER, WISE, AND CO. 
 
 In the Clerk’s Office of the District Court of the District of 
 Massachusetts. 
 
 BOSTON: 
 
 PRINTED BY JOHN WILSON AND SON, 
 22, School Street. 
 
 
Co tfje ifriEntss 
 
 OF 
 
 forsaken women throughout the world 
 
 I ©create tijis ISooft, 
 
 because the lives of such women are the 
 legitimate result of the spirit 
 OF THE LAW. 
 
 211284 
 
“ Kind gentlemen, your pains 
 Are registered where every day I turn 
 The leaf to read them.” 
 
 Macbeth. 
 
 Some reasons of this double coronation 
 I have possessed you with, and think them strong.” 
 
 “ Why do you bend such solemn brows on me 7 
 Have I commandment on the pulse of life ? ” 
 
 King John. 
 
 “ According to the fair play of the world, 
 
 Let me have audience. I am sent to speak ” 
 
 King John. 
 
 . . . . “ Let this be copied out, 
 
 And keep it safe for our remembrance. 
 
 Return the precedent to these lords again.” 
 
 King John. 
 
PREFACE. 
 
 There seems, at first sight, a certain presumption 
 in offering to an American public, at this moment, 
 any book which does not treat of the great interests 
 which convulse and perplex the United States. But 
 experience has shown, that neither the individual 
 nor the national mind can remain continually upon 
 the rack ; and both author and publisher have 
 thought that a book upon a serious subject, popu- 
 lar in form and low in price, would find, perhaps, 
 a more hearty welcome, under present circum- 
 stances, than in those prosperous days, when ro- 
 mances and poems, travels and biographies, are 
 scattered over every table by the score. 
 
 “Woman’s Right to Labor” owed its warm wel- 
 come, not to the power or skill of its author, but to 
 the impatient interest of philanthropists in every 
 thing relating to that subject. It remains to be 
 seen, whether as large a portion of the public and 
 the press are prepared to treat with candid consi- 
 deration the subject of the present essays. 
 
VI 
 
 PREFACE. 
 
 Both these volumes have been given to the world 
 in their present detached form, that they may re- 
 ceive the benefit of general criticism ; that errors, 
 inaccuracies, or misapprehensions, maybe perceived 
 and rectified before they take a permanent position 
 as part of a larger work. All criticism, therefore, 
 which is honestly intended , will be received with 
 patience and gratitude ; but a great deal falls to the 
 lot of every author, which cannot come under this 
 head. 
 
 If we are told that a “ wider acquaintance with 
 the history” of a certain era will modify our views, 
 it is natural to expect that an honest critic will 
 show where the acquaintance fails, and how the 
 views should be modified. When we are told that 
 certain scientific illustrations, “ though true in the 
 main, are not accurate in detail,” we may reasona- 
 bly hope to see at least one error pointed out. 
 When neither of these things is done, we sweep 
 such remarks aside, as alike unprofitable to us and 
 our readers. 
 
 A wide and generous sympathy in my aims has 
 given me, thus far, all that I could desire of encou- 
 ragement and appreciation ; and this appreciation 
 has come, in several instances, from a u household 
 of faith ” far removed from my own, and has been 
 mingled in such cases with an outspoken regret, 
 that one who u wrote so well, and felt so warmly,” 
 
PREFACE. 
 
 Vll 
 
 should not acknowledge on her pages the debt wo- 
 man owes to Christianity, and unfurl an evangelical 
 banner above a Clirist-like work. Because such 
 friends have spoken tenderly, I answer them re- 
 spectfully ; because I never saw any church-door so 
 narrow that I could not pass through it, nor so wide 
 that it would open to all God’s glory, I answer 
 them without fear. 
 
 And, first, I believe in God, as the tender Father 
 of all ; as one who cares for the least of his children, 
 and does not turn from the greatest ; as one whose 
 eye marks the smallest inequalities of happiness or 
 condition, and holds them in a memory which does 
 not fail. I believe in Christ, as his authorized and 
 anointed Teacher, come especially to reveal the 
 fulness of God’s love through his own life of 
 practical good-will. I do not expect him to be 
 superseded or set aside ; and I do expect, that in 
 proportion as men grow wiser, humbler, and sweeter, 
 their eyes will open only the more widely to the 
 great miracle of his spotless life, to the heavenly 
 nature of his so simple teachings. And, next, I 
 believe in my own work, — tha ^ elevati on oL wo- 
 man throu gh education, which is development ; 
 through labor, which is salvation ; through legal 
 rights, which are only freedom to develop and save, 
 — as part of the mission of Jesus on the earth, 
 authorized by him, inspired of God, and sure of 
 
Vlll 
 
 PREFACE. 
 
 fulfilment as any portion of his law. If at any 
 time I have lost sight of this in expression, it is 
 because I have thought it impossible that the pur- 
 pose and character of my work should be mistaken. 
 I am a slow and patient worker, — patient, be- 
 cause one may well be patient, if God can ; and 
 therefore no disappointment, no lack of apprecia- 
 tion, could sour or disturb me. 
 
 If I have justified the publication of this essay 
 at the present moment, it may be thought that I 
 shall not be able to justify the principal presump- 
 tion ; namely, that of a woman who undertakes to 
 write upon law. 
 
 Such a treatise as this would be valueless, in my 
 eyes, if it were written by a man. It is a woman’s 
 judgment in matters that concern women that the 
 world demands, before any radical change can be 
 made. To understand the laws under which I 
 must live, no recondite learning, no broad scholar- 
 ship, no professional study, can be fitly required. 
 Common intelligence and common sense are all 
 that society has any right to claim of me. Be- 
 cause most women shrink from criticizing this law, 
 I have criticized it. 
 
 Very recently, the u London Quarterly” said, in 
 speaking of the republication of John Austin’s 
 work, that “ English jurisprudence would be indebt- 
 ed for one of its highest aids to the reverential affec- 
 
PREFACE. 
 
 IX 
 
 tion of a wife, and the patient industry of a refined 
 and intelligent woman ; ” and Mrs. Austin defends 
 her undertaking on this very ground, — that, if she 
 had not superintended the work, no one else would . 
 If John Austin’s firm and penetrating intellect 
 could not hold a score of persons about his lec- 
 turer’s desk, and found its fit appreciation only in 
 the grave, a conscientious woman need not shrink 
 from any branch of his great subject, only because 
 her audience will be small. 
 
 The words of John Ruskin, printed on my title- 
 page, will show, as I hope, the modesty of my aim, 
 and the conscientious steadfastness of my purpose. 
 As the leaf is to the tree, so is the individual to 
 society. Tear away a single leaf from the tower- 
 ing crest, and the trunk does not seem to suffer : 
 nevertheless, one small thread withers, one channel 
 dries up, one source of beauty and use fails ; and, 
 from that moment, a certain sidewise tendency 
 marks the growth. 
 
 To compact carefully one u well-labored thread ” 
 is all that I have sought to do, — to write a little 
 book, that women might be won to read, as con- 
 scientiously as if it were a heavy tome, to be end- 
 lessly consulted by the bench. 
 
 In writing these three lectures, I feel quite sure 
 that I must have made use of many significant ex- 
 pressions borrowed from those who have broken 
 
X 
 
 PREFACE. 
 
 the way for me. For many years an extempora- 
 neous lecturer on this and' kindred topics, certain 
 modes of expression have been so wrought into the 
 fabric of my thought, that I do not know where to 
 put my quotation-marks. To Mrs. Hugo Reed, for 
 instance, I know I must be under great obligations ; 
 and I can only hope, that she will trust me with 
 her thoughts and words as generously as I desire 
 to trust all my readers with mine. It is little mat- 
 ter who does the work, so that it be done ; but I 
 owe to one author, in particular, something like an 
 explanation. 
 
 A few days before the third of these lectures was 
 delivered in Boston (that is, before Jan. 23, 1861), 
 a gentleman from Paris brought me from Madame 
 d’Hericourt a book called “ La Femme Affranchie,” 
 an answer to Michelet, Proudhon, Girardin, and 
 Comte, which its author kindly desired I should 
 translate for the American market. Unable to 
 comply with her request, some weeks elapsed be- 
 fore I opened the book. I was struck with the 
 energy, self-possession, and rapidity with which 
 she seized the various points of the subject, with 
 the thoroughness of her assault, and the temper of 
 her argument. I did not sympathize in all her 
 methods or conclusions ; but I was interested to ob- 
 serve, that, in what I had then written and publicly 
 spoken of the relations between suffrage and hu- 
 
PREFACE. 
 
 XI 
 
 manity, I had in several instances used her very 
 words, or she had used mine. I did not alter my 
 manuscript ; but, with better times, we may hope 
 for a translation of her spirited volumes, and the 
 public will then do justice to her precedence. 
 
 I have been anxious to have positive proof of 
 my conjecture in regard to the authorship of the 
 u Lawe’s Resolution of the Rights of Women;” 
 but persevering endeavors in England, in several 
 directions, have only left the matter as it stands in 
 the text. It would be very interesting to know 
 something of the private history of the man who 
 wrote that book. 
 
 In the first of the following lectures, I have ven- 
 tured a rhetorical allusion to the blue -laws of 
 Connecticut. Since it went to press, I have seen it 
 stated on high authority, that any American writer 
 who should u profess to believe in the existence of 
 the blue-laws of New Haven would simply proclaim 
 himself a dunce,” and the “ Saturday Review” 
 handled without gloves for taking this existence for 
 granted. 
 
 I never supposed that the term u blue ” applied 
 to the color of the paper on which such laws were 
 printed, any more than I supposed “ blue Presby- 
 terianism ” referred to the color of the presbyters’ 
 gowns. I supposed it was the outgrowth of a 
 popular sarcasm, descriptive not of a “ veritable 
 
Xll 
 
 PREFACE. 
 
 code,” nor of a u practical code unpublished,” but 
 of such portions of the general code as were repug- 
 nant to common sense and the genial nature of 
 man. This I still think will be found to be the 
 case ; and it is certainly to Connecticut divines and 
 Connecticut newspapers that we owe the popular 
 impression. 
 
 It was in the forty-sixth year of the independ- 
 ence of the United States that S. Andrus and Co. 
 of Hartford published a volume purporting to be 
 a compendium of early judicial proceedings in Con- 
 necticut, and especially of that portion of the pro- 
 ceedings of the Colony of New Haven commonly 
 called the “ blue -laws.” Charles A. Ingersoll, 
 Esq., testified to the correctness of these copies of 
 the ancient record. 
 
 As I quote this title wholly from memory, I am 
 unable to say whether the colony ever fined a bishop 
 for kissing his own wife on Sunday ; but I have 
 read more than once of such fines ; and, if no laws 
 remain unrepealed on the Connecticut statute-book 
 quite as absurd in their spirit and general tendency, 
 there are many on those of Massachusetts and New 
 Hampshire : so I shall let my rhetorical flourish 
 stand. 
 
 To my English friends, to Mr. Herndon of Illi- 
 nois, Mr. Higginson, and Samuel F. Haven, Esq., 
 of Worcester, I owe my usual acknowledgments for 
 
PREFACE. 
 
 Xlll 
 
 books lent, and service proffered, with a generosity 
 and graceful readiness cheering to remember. 
 
 Nor will I omit, in what may be a last opportu- 
 nity, to bear faithful testimony to the assistance 
 rendered, in all my studies of this sort, by my 
 friend Mr. John Patton of Montreal. No single 
 person has helped me so much, so wisely, or so 
 well. 
 
 In order to secure technical accuracy, my manu- 
 script and proofs have been subjected to the revision 
 of my friend, the Hon. Samuel E. Sewall. The 
 principal alteration which Mr. Sewall has made 
 has been the substitution of the word u suffrage ” 
 for that of u franchise ; ” which latter I used in the 
 Continental fashion. I prefer it to “ suffrage,” be- 
 cause it seems to have a broader signification ; but 
 I yield it to his suggestion. 
 
 I would gladly have dedicated this volume to the 
 memory of the late John W. Browne, whose pure 
 purpose and eminent gifts made me rejoice, while 
 he was living, to call him friend. As, however, he 
 never read the whole of the manuscript, I have 
 given it a dedication, which no one, who knew him 
 well, will fail to perceive includes him. 
 
 Caroline H. Dall. 
 
 No. 5, Ashland Place, 
 
 Sept. 1, 1861. 
 
TABLE OP CONTENTS. 
 
 I. 
 
 THE ORIENTAL ESTIMATE AND THE FRENCH 
 LAW. 
 
 The Seat of the Law the Bosom of God? Of what Law? Legal 
 Restrictions constantly outgrown. The Laws which relate 
 to Woman. Vishnu Sarma: the Hindoo Wife must use the 
 Dialect of the Slave. Ancient Chinese Writer. Kohl on 
 Turkish Husbands. The Island of Coelebes. The Garrows 
 in the North-east of India. The Muhar. Military Tribe of 
 Nairs in Malabar. Later Proverbs; used by the Satirists. 
 The Four Points to consider. Discussion of Marriage and 
 Divorce to be deferred. The Public Opinion which has 
 educated Woman, and her Approximation to it. Woman 
 under Roman Law. Absence of well-tested Cotempora- 
 neous Evidence. Theodora. French Law. Bonaparte’s 
 Opinion. The Estimate of a Double Character. Condition 
 of the Peasant-woman. Need of Love in the Upper Classes. 
 Business-freedom. George Sand. Rosa Bonheur, and the 
 Claimants for Civil Rights. The Dotal founded on Roman 
 Law; the Communal founded on German. Dotal Law 
 rejected throughout Europe. Protection means Subordina- 
 tion. As a “ Public Merchant,” Woman becomes a French 
 
XVI 
 
 CONTEXTS. 
 
 Citizen. Position contradictory: not allowed to rule the 
 Household, which is called her Sphere. Civil Position. No 
 Right of Promotion. Laws of Louisiana. Estimate of 
 Woman under the “Code Napoldon:” tends to lower her 
 Wages. List of Employments. The Needle -women of 
 Paris pp. 1-33 
 
 II. 
 
 THE ENGLISH COMMON LAW. 
 
 It contains all to which we have any Need to object. Literature. 
 “ The L awe’s Resolution of Woman’s Rights.” Inquiries as 
 to its Author. Probability points to Sir John Doderidge. 
 The Law, for Single Women, of Inheritance. Offices open. 
 Right to vote, and Lady Packington. Sheriff of Westmore- 
 land. ; Lady Rous. Henry VIII. and Lady Anne Berkeley. 
 As Constable, and Overseer of the Poor. Female Voter in 
 Nova Scotia. Law relating to Seduction: its Profanity. 
 The French Law, as summed up by Legouv£. Woman’s 
 Opinion of this Law. Objections. Laws concerning Married 
 Women. Impossibility of Divorce, from Hopeless Insanity. 
 Instances where Men have taken the Law into their own 
 Hands. Impossibility of Woman’s ever doing this. Marriage 
 of a Minor. A Wife loses all her Rights. Satire in a London 
 Court. Truth of this. Consequent Unwillingness of the 
 honest Poor to marry, and of Single Women of Rank to relin- 
 quish Power. The Descendant of Morgan the Buccaneer. 
 Need of Equity. May make a Will by Permission. Nutri- 
 ment of Infants. The Law resists Material Influence, and 
 denies Natural Authority. Word not binding. Gifts Illegal. 
 
CONTENTS. 
 
 XVII 
 
 Indictments in the Husband’s Name. Divorces: only Three 
 ever granted to women. The Widow recovers her Clothes 
 and Jewels, but need not bury her Husband. Christian on 
 Suffrage. Moderate Correction. Property-laws. The Hon. 
 Mrs. Norton. Hungarian Freedom. Right to vote. Experi- 
 ence in America. Parisian Milliner. “ Union is Robbery.” 
 The Heiress. Longevity of the Wife. Woman discouraged 
 from Labor by the Influence of the Laws of Property. Sexual 
 Legislation thoroughly Immoral. Man’s Adultery even a 
 more serious Evil than Woman’s, so far as State Morals and 
 Interests are concerned. Canton Glarus. “ Courts have never 
 gone that Length.” Debate on the New Divorce Bill. Man’s 
 Fidelity considered an Imbecility. The Compliments of the 
 Law. The Husband’s Vigilance. Duplicity the Natural Re- 
 sult of Slavery. The Right of Suffrage. Objections answered. 
 The abstract Right and the practical Question. Suffrage 
 to be limited by Education, not Money nor Sex. The u Sad 
 Sisterhood.” Woman has never had a Representative. Her 
 Suffrage would put an End to Three Classes of Laws. Harris 
 vs. Butler. Delicate Matters to be discussed. The Duke of 
 York’s Trial. John Stuart Mill’s Opinion. Dedication of his 
 Essay on Liberty. Women of Upsal. On Juries. Miss 
 Shedden. Russell on Female Evidence. Fate of the “ Bul- 
 warks of the English Constitution.” Power of Women not dis- 
 puted while it was dependent on Property. It should depend 
 on Humanity. Louis XIV. and the Fish-women. Pauline 
 Roland and Madame Moniot. Men borrow the Suffrages 
 of Women. Saxon Witas. Abbess Hilda. Council at 
 Benconceld. King Edgar’s Charter. Abbesses in Parliament. 
 Peeresses in Parliament. East-India Stockholders. Stock- 
 b 
 
XV111 
 
 CONTENTS. 
 
 holders in Banks. Association for the Promotion of Social 
 Science. Mrs. Mill’s Article. Florence Nightingale’s Evi- 
 dence. Petition to Parliament, and its Signer. The New 
 Divorce Bill. Buckle’s Lecture. Canadian Changes. In- 
 consistencies. Canadian Women as Voters. Pitcairn’s 
 Island pp. 34-115 
 
 III. 
 
 THE UNITED -STATES LAW, AND SOME THOUGHTS 
 ON HUMAN RIGHTS. 
 
 Condition of Women in Republics. Helvetia. Kent on the 
 Law’s Estimate. “ The Man’s Notion.” Property-laws, and 
 natural Obligations of Husband and Wife. The Law’s Indul- 
 gence. Marriage and Divorce in the different States. Variety 
 of the Laws. “Cruelty.” What have the Woman’s-Rights 
 Party done? — changed the Law in nineteen States. The 
 Law of Illinois. Rhode Island on Property. Vermont. 
 Connecticut. New Hampshire. Massachusetts, and what 
 remains to be done. Maine. Ohio. Judge Graham’s Deci- 
 sion. Mrs. Dorr’s Claim. New-York Property-bill of 1860, 
 and its Supplement. Relief to 5,000 Women. Mrs. Stanton 
 before the Legislature. The Right of Suffrage in New Jersey. 
 Wisconsin. Michigan. Ohio. Kansas. Connecticut. Ken- 
 tucky in Reference to Suffrage. A Woman’s Right to Life, 
 Liberty, and the Pursuit of Happiness. Mrs. John Adams and 
 Hannah Corbin understood its Worthlessness. Richard Henry 
 Lee on a Woman’s Security. “ Woman’s Rights,” — a Phrase 
 we all hate : identical with “ Human Rights,” — a Phrase we 
 
CONTENTS. 
 
 XIX 
 
 all honor. Reception of Woman in the Lyceum. Labor to 
 be honored through Woman. Trade to become a Fine Art. 
 Property-holders must have political Power. Mr. Phillips 
 on Suffrage. The Lowell Mill. Dr. Hunt’s Protests. Mean 
 Men. Woman’s Duty to the State a moral Duty. Woman’s 
 Right to Man as Counsellor and Friend. The Constitution 
 of the Family. The Historical Development of the Ques- 
 tion. Mary Astell in the Seventeenth Century. Mary Woll- 
 stonecraft in the Eighteenth, and the Customs of Australia. 
 Responses to her Appeal. Margaret Fuller in the Nineteenth. 
 The great Lawsuit in 1844. Convention at Seneca Falls in 
 1848. National Association in 1850. Profane Inanity. Chi- 
 nese Women. Does Power belong to Humanity or, to Pro- 
 perty? Mahomet, and the Right to rule. Wendell Phillips 
 and the Venetian Catechism. ..... pp. 116-164 
 

 
I. 
 
 THE ORIENTAL ESTIMATE AND THE 
 FRENCH LAW. 
 
 u We seldom doubt that something in the large 
 Smooth order of creation, though no more 
 Than haply a man's footstep, has gone wrong.” 
 
 E B. Browning. 
 
 “ The law of God, positive law and positive morality, sometimes 
 coincide , sometimes do not coincide, and sometimes conflict 
 
 John Austin: Province of Jurisprudence Defined. 
 
 F Law, no less can be said than that 
 
 her seat is the bosom of God ; her 
 voice, the harmony of the spheres. All things 
 in heaven and earth do her reverence ; the 
 greatest as needing her protection, the mean- 
 est as not afraid of her power.” 
 
 In reading this magnificent and well-known 
 sentence from Hooker, the imagination is easi- 
 ly kindled to a divine prescience. We accept 
 the definition. Fair before ns rise the grace- 
 ful proportions of eternal order in society, 
 
 l 
 
2 
 
 THE ORIENTAL ESTIMATE 
 
 upon which wait present peace and future 
 progress ; towards which those bow most 
 reverently who live most purely and see 
 most clearly. But alas ! if the reader be a 
 woman, her heart may well sink when the en- 
 thusiasm of the moment has passed ; and she 
 must ask, with a feeling somewhat akin to 
 displeasure, “ Of what law realized on earth, 
 administered in courts, dealt out from legisla- 
 tures or parliaments, from republics or auto- 
 crats, were these sublime words written ? 77 
 
 Where in the soft shadows of Oriental 
 hareems, in the gloom of Hindoo caves, Egyp- 
 tian pyramids, or Attic porches, sculptured 
 by divinest art, and luminous with marbles of 
 every hue ; where in the porticos echoing 
 to Roman stoicism, or the baths floating on 
 Roman license ; where in fife saloons of 
 French society, or by the hearths of good old 
 England ; relieve , alas ! in the free States of 
 America, whether North or South, — -has a 
 system of law prevailed that women could 
 think of, without blasphemy as sitting in the 
 
AND THE FRENCH LAW. 
 
 3 
 
 bosom of God, and so entitled to the reve- 
 rence of man ? 
 
 We outgrow all things. Always the new 
 patch breaks the fabric of the old garment ; 
 always the new wine shatters as it ferments 
 the well-dried leathern pouch which held the 
 vintage of our ancestors. But most of all 
 do we outgrow, have we outgrown, our laws. 
 They fall back, dead letters, into the abyss of 
 that past from which we have emerged. We 
 put new laws upon the statute-book, and do 
 not pause to wipe out the old ; finding our 
 protection in the public feeling and the pub- 
 lic progress, if not in the traditions of the 
 elders. 
 
 This, and this only, saves old systems from 
 violent demolition. Were the State of Con- 
 necticut at this moment to attempt to put in 
 force such of the blue-laws as are technically 
 unrepealed, she would be met by the open 
 rebellion of her highest officer ; and the chief- 
 justice who should attempt to fine a bishop 
 for kissing his wife on Sunday might shake 
 
4 
 
 THE ORIENTAL ESTIMATE 
 
 hands cordially with the chief-justice who 
 once ruled that a man might beat his wife 
 with a stick no bigger than his thumb ! 
 
 The laws which relate to woman are based, 
 for the most part, on a very old and a very 
 Oriental estimate of her nature, her powers, 
 and her divinely ordained position. We shall 
 see this, if we follow the course of legal en- 
 actments or religious prohibitions from the 
 beginning. When the subject of Woman’s 
 Civil Rights first came to be considered, it 
 was customary to quote from the scholars one 
 of the sayings of Vishnu Sarma : u Every 
 book of knowledge which is known to Oosana 
 or to Vreehaspatee is by nature implanted in 
 the understandings of women .’ 7 
 
 Nobody asked what sort of knowledge was 
 known to these two deities ; but most readers 
 took it for granted that it w r as divine: and 
 ordinary people asked why, if society began 
 with this reverent faith, we had nothing 
 better now than the practical scepticism of 
 priest and lawyer. When the names of these 
 
AND THE FRENCH LAW. 
 
 5 
 
 two deities were translated into Venus and 
 Mercury (that is, into love and cunning ), the 
 announcement seemed more in keeping with 
 the subsequent revelations of Vishnu Sar- 
 ma : — - 
 
 “ Women, at all times,” he says, “ have been 
 inconstant, even among the Celestials.” 
 
 “ Woman’s virtue is founded upon a modest coun- 
 tenance, precise behavior, rectitude, and a deficiency 
 of suitors .” 
 
 u In infancy, the father should guard her ; in 
 youth, her husband ; in old age, her children : for 
 at no time is a woman fit to be trusted with lib- 
 erty.” 
 
 u Infidelity, violence, deceit, envy, extreme ava- 
 rice, a total want of good qualities, with impurity, 
 are the innate faults of womankind.” 
 
 These extracts will throw some light, per- 
 haps, upon the knowledge of Oosana and 
 Vreeliaspatee, and will save modern women 
 from any very strong desire to restore the 
 “ good old rule.” After such a commentary 
 on this seeming compliment, we shall not 
 think it strange, that, in a country where clia- 
 
G 
 
 THE ORIENTAL ESTIMATE 
 
 leet is the exponent of condition, the most 
 ancient drama represents the Hindoo wife as 
 addressing her lord and master in the dialect 
 of a slave. 
 
 “ It is proper / 7 says an ancient Hindoo scrip- 
 ture, “for every woman, after her husband’s 
 death, to burn herself in the fire with his 
 corpse . 77 I quote this saying here only to 
 advert to the power of public opinion, which 
 has been strong enough for ages to compel 
 this sacrifice. But for it, many a woman, who 
 had been burnt during her whole conjugal 
 life in the fires of tyranny, self-will, and arro- 
 gant dominion, might have hailed with 'joy the 
 hour of her release. Under it, such a woman 
 went calmly to the new martyrdom. 
 
 An ancient Chinese writer tells us, that the 
 newly married woman should be but an echo 
 in the house. Her husband may strike her, 
 starve her, nay, even let her out ! Such was 
 the spirit of most Oriental custom and law. 
 It has crossed the Ural : so that Kohl, the Ger- 
 man traveller, tells us that a Turk blushes and 
 
AND THE FRENCH LAW. 
 
 7 
 
 apologizes when he mentions his wife, as if 
 he had been guilty of a needless imperti- 
 nence. The same thing is reported of one 
 of the Sclavic tribes, among whom it may 
 have been borrowed from their Ottoman con- 
 querors. 
 
 There were, however, singular exceptions 
 to the prevailing estimate. In the Island of 
 Coelebes, where the government is republican 
 in form, the president, and four out of six 
 councillors, are not unfrequently women. In 
 the diary of the Marquess of Hastings, we 
 are told, that among the Garrows, a populous 
 and independent clan in the hill country in the 
 north-east of India, all property and authority, 
 descend in the female line. On the death of 
 the mother, the bulk of the possessions goes 
 to the favorite daughter, so designated, with- 
 out regard to primogeniture in her lifetime. 
 The widower has a stipend settled on him at 
 the time of marriage, and a moderate portion 
 is given to each daughter. The sons are 
 expected to support themselves. A woman, 
 
THE ORIENTAL ESTIMATE 
 
 called Muhar, is the chief of each clan. Her 
 husband is called Muharree, and has a repre- 
 sentative authority, but no right to her pro- 
 perty. Should he incline to squander it, the 
 clan will interfere in her behalf. When 
 the Duke of Wellington fought the battle of 
 Assay e, in 1803, against the Mahrattas, a wo- 
 man, the Begum of Lumroom, belonging to the 
 military tribe of Nairs, fought against him at 
 the head of her cavalry. In this tribe the suc- 
 cession follows, according to the duke’s report, 
 the female line. This was on the coast of 
 Malabar, south of Bombay, and in what we 
 should call the south-western part of the Dec- 
 can. In spite of the difference in orthography, 
 and the statement about the north-east, I think 
 these stories may refer to the same clan. An 
 orthography so variously rendered as the East 
 Indian is a blind guide. 
 
 Quite evident is it that the proverbs* of 
 more western and later-born nations grew out 
 of the estimate of Vishnu Sarma and his com- 
 peers. Look at them : — 
 
AND THE FRENCH LAW. 
 
 9 
 
 “ A rich man is never ugly in the eyes of a girl.” 
 
 “ A beautiful woman, smiling, tells of a purse 
 japing.” 
 
 u Every woman would rather be handsome than 
 /good.” 
 
 u A house full of daughters is a cellar full of 
 Sour beer.” 
 
 u Three daughters and the mother are four devils 
 for the father.” 
 
 “ A man of straw is worth a woman of gold.” 
 
 u A rich wife is a source of quarrel.” 
 
 u ’Tis a poor roost where the hen crows. ” 
 
 “ A happy couple is a husband deaf and a wife 
 blind.”) 
 
 It is quite evident, I think, that men made 
 these proverbs ; and somewhat mortifying, not 
 to women only , but to our common humanity, 
 that they should have the run of society and 
 the newspapers, in an age which has given 
 birth to Florence Nightingale, Mary Patton, 
 and Dorothea Dix, — women who have' been 
 born only to remind us that their counterparts 
 appeared a thousand years ago. 
 
 Aristophanes and Juvenal, Boileau and 
 Churchill, turn these slanderous proverbs into 
 
10 
 
 THE ORIENTAL ESTIMATE 
 
 verse, if not into poetry ; and, in examining 
 the laws of more modern times, we shall con- 
 stantly trace the effect of the old Oriental 
 estimate. In all such examinations, we have 
 four points to consider : — 
 
 1st, That estimate of woman on which her 
 civil position is founded, and those rights of 
 property which are granted or refused to her 
 accordingly. 
 
 2d, Such laws as relate to marriage and 
 divorce. 
 
 3d, Such laws or customs as keep woman 
 out of office, off the jury, and refuse her all 
 authorized legitimate interference in public 
 affairs. 
 
 4th, Her right of suffrage. 
 
 Of these points, the discussion of such laws 
 as relate to marriage and divorce is alone to 
 be restricted by any considerations of pru- 
 dence. It has never seemed to me a wise 
 thing to open needlessly this discussion ; and 
 the opening of it by women is needless, while 
 they are in no position to discuss it equally 
 
AND THE FRENCH LAW. 
 
 11 
 
 with men. In the marriage relation, whatever 
 is the certain loss and misery of one sex is 
 also the certain loss and misery of the other. 
 Whatever inequality and injustice appertains 
 to it will be best removed when the two sexes 
 can consider it together, like two equal and 
 competent powers.* I shall advert to the 
 laws of marriage and divorce, only to point 
 out mistakes or bad results not generally per- 
 ceived, and make no attempt to treat them at 
 length. 
 
 When we consider what sort of public 
 opinion has educated woman, what estimate 
 has lain at the bottom of all the laws passed 
 concerning her, it does not seem strange, 
 that, after ages passed in a false position, 
 she should somewhat approximate to this es- 
 timate ; so that we say with pain of the mass 
 of women, that they themselves need a change 
 quite as much as their circumstances. It is 
 
 * Of course, I do not mean to be understood here as object- 
 ing to any temperate and earnest attempt by men or women to 
 amend law. 
 
12 
 
 THE ORIENTAL ESTIMATE 
 
 common, in treating of this subject, to divell 
 on the position of woman under the Roman 
 law; but very little is gained by it. We can 
 see by the literature of the nation what esti- 
 mate was put upon woman, and what share 
 she took in the degradation of society ; but 
 how far this was the consequence of bad law, 
 what changes were wrought from the time of 
 Justinian, not merely in law, but in moral 
 soundness under the law, it is not easy to tell 
 in a country which had neither printing-press- 
 es nor newspapers. We have only the judg- 
 ment of a few men, themselves law-makers, to 
 rely upon ; and their opinions had a very lim- 
 ited circulation in their lifetime, and could not 
 be tested by any cotemporaneous verdict. It 
 is in vain that we listen to testimony when 
 no competent witnesses appear on the u other 
 side.” Women, however, ought always to 
 remember to whom they owe the changes 
 made in Justinian’s time. The life of Theo- 
 dora is yet to be written. The scandalous 
 anecdotes of a secret history must some day 
 
AND THE FRENCH LAW. 
 
 13 
 
 be balanced by tlie public testimony of Pro- 
 copius, and some good be told of the woman 
 whose first thought, when raised to empire, 
 was for the companions of her previous in- 
 famy, and whose influence over her husband 
 never faltered, and is visible in every modifi- 
 cation of the laws relating to her sex. If we 
 could realize the corruptness of the higher 
 classes of society, we should not wonder at 
 the emperor who chose his wife from the 
 streets ; and the fact itself tells a story which 
 he who heeds need not misunderstand.* 
 
 * It will easily be conjectured that I do not feel competent to 
 treat the great subject of Roman legislation for women, in the 
 noble and extended manner which is at once, as it seems to me, 
 necessary and possible. Perhaps I shall never become so. 
 
 It seems to me proper, however, that I should indicate my 
 dissatisfaction with existing methods in the clearest manner, and 
 drop a few hints, as I do in the text, as to the difficulties in the 
 way. 
 
 Roman sepulchral inscriptions, of the era generally considered 
 the most licentious, bear witness in the fullest manner to the 
 existence of chastity and domestic virtue. A sepulchral inscrip- 
 tion, it may be argued, is a poor witness to facts. I would 
 suggest in reply, that a nation ceases to commemorate the virtue 
 which has ceased to exist, or which it has, through a general 
 depravity of manners, ceased to respect. 
 
14 
 
 THE ORIENTAL ESTIMATE 
 
 The laws which most directly affect us here 
 in America are the laws of France and Eng- 
 land : the laws of France, because they mo- 
 dify the code of Canada, Florida, and Louisi- 
 ana ; the laws of England, because in her 
 common law, recognized all over the country 
 by all the States, we find the basis of all that 
 is objectionable in our legislation. 
 
 First, then, let us consider the estimate on 
 which the French law is based, and then its 
 property-laws. Civil position and the right 
 of franchise can be disposed of in a few words 
 the world over. “ There is one thing which 
 is not French / 7 said Bonaparte, as he closed a 
 cabinet council, while preparing his famous 
 Code ; u and that is, a woman who can do as 
 she pleases . 77 
 
 The estimate of woman in France is of a 
 double character. 
 
 It is low, because marriage among the up- 
 per classes is, at the best, only a well-made 
 bargain. 
 
 It is high , because women have been en- 
 
AND THE FRENCH LAW. 
 
 15 
 
 couraged to enter trade, both by law, which 
 protects them in their capacity as merchants, 
 and by the military character of the nation, 
 which prevents men from entering busi- 
 ness. 
 
 It is low , because throughout the provinces 
 there are remnants of old feudal custom, 
 which keep her in the position of a slave. 
 The peasant’s wife rarely sits at table : she 
 crouches in the chimney-corner, eating from 
 the stew-pan; while her husband sits at the 
 table in state before his porringer. Yet, in 
 another respect, this very woman helps to 
 raise the estimate of her sex ; for she works 
 with her husband in the field, while a wealth- 
 ier wife is often only a burden. Like him, 
 she is exposed to all the changes of the 
 weather. Pregnancy does not save her from 
 the plough or the vintage. While her hus- 
 band rests at noon, she must nurse her babe 
 or prepare his meal. 
 
 In most countries, it is desirable to turn 
 the thoughts of women away from love, and 
 
16 
 
 THE ORIENTAL ESTIMATE 
 
 give them some healthier occupation. In 
 France, it would be well to stimulate the 
 affections, because covetousness, a desire of 
 worldly position, or splendid wealth, is the 
 main motive to a marriage. With us, love 
 constitutes the whole life of many a woman ; 
 while it may be only an episode in that of 
 her husband. 
 
 In France, even woman seldom loves, but 
 marries to establish herself in life. It is against 
 this greed that she needs to be cautioned, not 
 against that emotion and sentiment which God 
 meant should be both a safeguard and a bless- 
 ing. Love must rescue woman from vanity, 
 self-indulgence, and empty show. Only 
 through its divine power will she come to 
 perceive the true nature of that shameful 
 bargain, by which she surrenders what is 
 most precious to appease the thirst of soci- 
 ety. If we would save and serve humanity 
 here , we must let natural susceptibilities have 
 their full play. 
 
 At the same time, the business freedom 
 
AND THE FRENCH LAW. 
 
 17 
 
 which women enjoy in France has led many 
 women to reflect thoroughly and act vigor- 
 ously. The reading world is deluged with 
 books relating to woman, — her education, her 
 labor, and her civil rights. Out of this con- 
 dition of things spring a class who long to 
 share the sorrow and responsibility as well 
 as the joy of liberty. They will not accept 
 the tenderness and pity of such men as Mi- 
 chelet, who veil a profound sensualism with 
 the graces of an affected sentimentality. 
 Sometimes, like George Sand, these women 
 break loose from social ties, test the world 
 for themselves, and, when they have squeezed 
 the orange which looked so tempting, show to 
 others the empty, bitter rind, and return glad- 
 ly to the daily bread of Divine Ordinance. 
 Once, in Rosa Bonheur, fresh and wise, ener- 
 getic and vigorous, the French woman has 
 challenged the attention of the civilized world. 
 With no womanish weaknesses, frank, loyal, 
 and endowed with a serious and reflective 
 nature, this artist has asked no leave to be of 
 2 
 
18 
 
 THE ORIENTAL ESTIMATE 
 
 church or society. u I have no patience / 7 she 
 once said, “ with women who ask permission 
 to think. Let women establish their claims 
 by great and good works, and not by conven- 
 tions . 77 She took the whole world in her two 
 brave woman’s hands, found her inheritance, 
 and resolved to enjoy it. 
 
 It is in France, too, that Clara Demars 
 thinks out all the psychological relations of 
 love and marriage, and reminds us of Mrs. 
 John Stuart Mill, by saying that u truth will 
 never reign over the world, nor between the 
 sexes, until, by being set free, woman loses 
 all temptation to dissimulate . 77 
 
 There, too, Flora Tristan provokes a smile 
 by echoing in prose the rhythmic platitudes 
 of Mr. Coventry Patmore, and claiming, not 
 equality , but sovereignty and autocracy, for 
 woman. 
 
 There Pauline Poland boldly claims that 
 marriage shall never be tolerated, till man as 
 well as woman is compelled to keep the law 
 of chastity. 
 
AND THE FRENCH LAW. 
 
 19 
 
 There Madame Moniot claims her civil 
 rights from the lecturers desk; and Desiree 
 Gay, interesting herself practically in the 
 question of woman’s labor, rules the women 
 of the national workshops. 
 
 When both sides of this picture are stu- 
 died ; when we look back, on the one hand, to 
 Marie Antoinette and Madame Recamier, and, 
 on the other, to Madame Roland, Madame de 
 Stael, and Marie de Lamourous, — it is not 
 strange that the fanciful protectorship of 
 such men as Michelet should be balanced by 
 a claim, made not only by Talleyrand, but 
 Condorcet, for woman’s full equality as a la- 
 borer and a citizen. And this varying and 
 inconsistent estimate of woman, made evident 
 in the social, industrial, and literary spheres 
 of France, is strangely sustained by her legal 
 enactments. The “ Code Napoleon ” is found- 
 ed on the Roman, and is very similar to the 
 English common law, so far as it concerns wo- 
 man : but beside this law, which is called, in 
 reference to married women, the dotal, there 
 
20 
 
 THE ORIENTAL ESTIMATE 
 
 is another, called the communal ; and, before 
 marriage, parties may choose between these 
 two. That contract once signed, they must 
 abide by their choice ever after. If the dotal 
 law is founded on Roman law and usage, and 
 so came naturally enough to prevail in South- 
 ern France until the time of the Revolution; 
 so the communal law prevailed at the North, 
 and is founded on the German habits and laws, 
 beneath which always lay the idea, that, if not 
 technically a laborer, the wife, by care and 
 industry, — the thrift of the housewife, — con- 
 tributed to the acquisition of property. 
 
 It is very singular that all the nations of Con- 
 tinental Europe, with the exception of Spain, 
 have rejected the dotal or Roman law. The 
 objection to it seems to have arisen out of 
 the fact, that it permits the wife’s property 
 to be settled solely on herself, and to be so 
 secured against her husband’s debts. In the 
 community of estates, the property of each is 
 liable for the debts of either. It was on this 
 account, probably, that, while the “ Code Napo- 
 
AND THE FRENCH LAW. 
 
 21 
 
 leon ” elucidated and defined the dotal sys- 
 tem, it expressly provided for the right of 
 choice in the parties, and declared, that, if 
 no choice were made, they should be sup- 
 posed to be living under the German or 
 communal law. 
 
 The Dutch law is essentially the same. 
 When the u Code Napoleon ” came into force, 
 there were not wanting French legislators to 
 say, that woman was now better protected 
 than ever before. But this legal protection is 
 of a kind due only to minors and lunatics. 
 This law, like our own, suspects, not only the 
 intelligence of woman, but her integrity ; and 
 aims not to protect her , but man , against her 
 weakness or fraud. In marriage, the husband 
 administers for both, not only the common 
 property, but her personal possessions. That 
 is to say, by pretending to protect it , the law 
 takes away from woman her personal property. 
 It often happens, that a woman who has 
 brought her husband a large property is com- 
 pelled to shift in narrow ways, like a beggar 
 
22 
 
 THE ORIENTAL ESTIMATE 
 
 or a miser, on account of his parsimony or 
 personal ill-will. 
 
 The wife cannot give away the smallest ar- 
 ticle, not even such as have been gifts to her : 
 and the 934th article of the “ Code Napoleon 77 
 declares, “ that the wife may not accept a 
 gift without the consent of her husband ; or, 
 if he should refuse, without the approbation 
 of a magistrate. 77 She cannot pledge their 
 common property, even though it were to set 
 her husband free when imprisoned for debt ; 
 nor, in the event of his absence, to secure 
 necessaries for his children, without the same 
 magisterial authority. Commonly, this autho- 
 rity would be readily obtained ; but it is easy 
 to see that many cases might arise, when, 
 from defeated purposes, personal enmity, or 
 the influence of the husband against her, it 
 would be all but impossible. 
 
 Even in case of bankruptcy, French legisla- 
 tors tell us, the rights of the wife are protect- 
 ed. But this very protection is insulting; for 
 it treats the wife as if she must of necessity 
 
AND THE FRENCH LAW. 
 
 23 
 
 be either an inert instrument in the hands of 
 her husband, or a dupe, whose weakness he 
 might readily abuse. Through such protec- 
 tion, the dishonest merchant finds it easy to 
 defraud his creditors. 
 
 Now, this “ Code Napoleon 77 says that u the 
 husband owes protection to his wife ; and the 
 wife, on her side, owes obedience to her hus- 
 band : 77 but it goes on to secure the obedience 
 by giving the husband an unlimited right to 
 the person of the wife, without in any way 
 providing the promised protection. 
 
 44 The wife must live with her husband, and fol- 
 low him wherever he sees fit to go. As for him, 
 he must receive her, and furnish her with necessa- 
 ries according to her wealth and rank.” 
 
 Now, this clause actually constrains no one 
 bait the wife ; for what would be the condi- 
 tion of a woman who followed her husband 
 against his will, and remained under his roof 
 when he was determined that she should 
 quit it? Under such circumstances, his re- 
 cognition of her wealth and rank would be 
 
24 
 
 THE ORIENTAL ESTIMATE 
 
 very apt to fall to the level of his own 
 irritation. 
 
 The French code will interfere to protect a 
 wife against the total loss of her property, if 
 she can prove some loss already experienced, 
 either from the improvidence or the bad con- 
 duct of her husband ; but it keeps her power- 
 less to protect herself against that first loss. 
 Having thus, and for such reasons, obtained a 
 separate jurisdiction over her property, she 
 cannot alienate, mortgage, or acquire a title 
 to new property, without her unworthy hus- 
 band’s consent in person or on paper. The 
 guardianship of the children is left to the sur- 
 vivor of the marriage ; but the mother’s right 
 in such case may be restrained by the father’s 
 and husband’s will. He can appoint a trustee 
 to be associated with her. As a business wo- 
 man, even if separated in estate, the wife 
 cannot make or dissolve a contract without 
 the consent of her husband. 
 
 As a “ public merchant ” under the com- 
 munal system, — that is, pledged in her own 
 
AND THE FRENCH LAW. 
 
 25 
 
 name, — she is free from this restraint. As 
 a citizen of the French republic, she in that 
 case supports, conjointly with her husband, 
 all State charges. She is taxed as much as 
 he ; for their common income is diminished 
 as much for one as for the other. She has no 
 suffrage ; but, on the other hand, she is not 
 liable for military service. She has no rights : 
 a state of things, which, if it be excusable 
 when she is absorbed into her husband’s per- 
 sonality, is only absurd when she fulfils all 
 the functions of a citizen. Well may Legouve 
 exclaim, u that, if the household be woman’s 
 own sphere, she ought to be queen in it ; and 
 her own faculties should secure her this su- 
 premacy. Her opponents should be forced, 
 on their own principles, to emancipate her as 
 daughter, wife, and mother.” The woman 
 who owns an estate, is, under this law, sole 
 mistress of it. She signs the leases and 
 makes the bargains. She pays the State tax, 
 an additional rate to her own department, a 
 town tax, and a tax on roads. It is with her 
 
26 
 
 THE ORIENTAL ESTIMATE 
 
 that the local or general government treat, if 
 they cut through her estate for public ends. 
 Against them, if wronged, she herself carries 
 suit. By her influence as a proprietor, she 
 controls many votes ; yet she is not permitted 
 to cast one. She cannot directly control the 
 position of the very representative who im- 
 poses her taxes. She is in the same position 
 with regard to all the higher officers, who 
 decide such questions as affect the value of 
 her estate. As citizen, therefore, under the 
 communal law, her position is uncertain and 
 contradictory. 
 
 So much for the estimate of woman in 
 France ; and so much for the rights of pro- 
 perty, of marriage, and of suffrage, founded 
 upon that estimate. What is her civil posi- 
 tion? what office or employment is open to 
 her? Women are better off in France, it is 
 again said, than ever before. As merchants, 
 fair chances, barred by some contradictions 
 and anomalies, await them ; but whoever pon- 
 ders their condition cannot fail to see, that 
 
AND THE FRENCH LAW. 
 
 27 
 
 here, as elsewhere, the protection afforded by 
 the law is merely the vigilance of a police of- 
 ficer, which protects the criminal, not for her 
 own sake, but for that of society, which her 
 very existence is supposed to endanger. 
 
 The most desirable amelioration of her lot 
 will be secured by the admission of her free 
 personality. When society strikes out from 
 the statute-book all distinctions of sex, and 
 admits that she is a person capable of think- 
 ing and acting for herself, she will lay the 
 foundation of a new civilization. 
 
 In France, we are told, women sometimes 
 fill public functions. They may be postmis- 
 tresses, and inspectors of schools ; or they may 
 take charge of the bureaus of wood or tobac- 
 co. They may also be inspectors of public 
 asylums, — a right and a duty of very great 
 importance. As a public functionary, woman 
 fills few and inferior posts ; but in these she 
 exercises and possesses all the rights of a 
 man, with one exception, — that exception, 
 alas ! the very keystone on which all human 
 
28 
 
 THE ORIENTAL ESTIMATE 
 
 success must rest: I mean, the right of 'pro- 
 motion ■. Do not smile, prompted by an un- 
 worthy apprehension of my meaning. It is 
 not because women are more greedy or more 
 ambitious than men that I call the right to 
 promotion the keystone of their success. 
 Only small and narrow natures can be content 
 in a treadmill. If constant motion will not 
 carry her over the top of the wheel, instinct 
 prompts the reasoning creature to abate her 
 efforts. No man of his own free will turns 
 into a road which abuts upon a stone wall. 
 The State turnpike is better, where the way- 
 farer may die by a sunstroke, or perish of a 
 frost ; where endless miles stretch over uncul- 
 tivated wastes: better; for here, at least, the 
 way is open, the sky overhead. — Before pro- 
 ceeding to speak of the English common law, 
 it will perhaps be well to turn from the “ Code 
 Napoleon ” to the law of Louisiana, in which 
 the influence of the two forms of French law 
 still shows itself. I do not consider the laws 
 of Canada, because they are complicated, not 
 
AND THE FRENCH LAW. 
 
 29 
 
 only by the English common law, but by Ca- 
 nadian statutes, somewhat in the spirit of our 
 own recent enactments, and by curious ar- 
 chaeological remains of feudal law, — - laws 
 which would sound like the decrees of II a- 
 roun al Raschid, were I to tax your soberness 
 by setting them before you. They are, let us 
 be thankful, of small practical importance, 
 as is the great body of all law.* 
 
 In Louisiana, according to the civil code of 
 1824, the partnership of gains arising during 
 coverture exists by law in every marriage, 
 without express stipulation to the contrary. 
 But the parties may regulate their married 
 obligations as they please, provided they do 
 nothing immoral. The wife’s property is 
 “ dotal.” What she brings , her paraphernalia, 
 
 * The great body of all law is of small practical importance, 
 because, in spite of the five points of Calvinism and the long 
 faces of many bearded philosophers, the majority of mankind 
 not only obey the law, but transcend it, — do better than it 
 requires. It is only the few who transgress; and thus many 
 absurdities are never or very rarely dragged into the light of a 
 “ decision.” 
 
30 
 
 THE ORIENTAL ESTIMATE 
 
 is “ extra-dotal.” The dowry belongs to the 
 husband during marriage ; and he has the ad- 
 ministration of the partnership, and may 
 alienate his revenue, without his wife’s con- 
 sent : but he cannot convey the common es- 
 tate. If, before marriage, he should stipulate 
 that there should be no partnership, his wife 
 preserves the entire control of her own pro- 
 perty. Her heirs take her separate estate ; 
 even money received by her husband on her 
 account. If there be no agreement as to the 
 expenses, the wife contributes one-half of her 
 income. Her landed estate, whether dotal or 
 not, is not affected by his debts. She is a 
 privileged creditor, and has the first mortgage 
 on his property. 
 
 If the parties have agreed to the “ partner- 
 ship of gains,” the common property is liable 
 for the debts of either. On the death of 
 either party, one-half of the property goes to 
 the survivor; the other, to the heirs of the 
 dead partner. 
 
 You will perceive that this law seems a 
 
AND THE FRENCH LAW. 
 
 31 
 
 loose mixture of the Roman or dotal sytem 
 with the German communal law, based on the 
 partnership of gains ; but the common law 
 takes it for granted that the partnership ex- 
 ists, where there is no express stipulation to 
 the contrary. As a public trader, the wife 
 may bind herself in whatever relates to her 
 business, without her husband’s consent, — 
 may even make a will ; and reference is made 
 to the u Code Napoleon,” in the same way, to 
 all appearance, that we refer to the common 
 law of England. 
 
 The estimate of woman upon which the 
 u Code Napoleon ” is founded has the same 
 effect upon her earnings as the English com- 
 mon law. As, in marriage, the policy has been 
 to keep her subordinate and inferior ; to give 
 her no privileges which should lead to inde- 
 pendence : so, in business, the effect of the 
 law is to keep the price of her work down, 
 and give her as few escapes from household 
 drudgery as may be ; to offer her, in fact, no 
 temptation to escape. 
 
32 
 
 THE ORIENTAL ESTIMATE 
 
 As polishers, burnishers, and copper-work- 
 ers ; as glove-makers, enamellers, and wire- 
 drawers ; as flax -beaters and soakers; as 
 spinners, gauze-workers, and winders ; as bas- 
 ket-makers, and temperers of steel ; as knife- 
 handlers, embroiderers, and wheel-turners ; 
 as velvet-makers, cockle-gatherers, and ivory- 
 workers ; as packers, knitters, satin-makers, 
 and folders ; as picture-colorers, and workers 
 in wood ; as casters, weighers, and varnishers ; 
 as shoe-makers, strap-makers, lace-makers, and 
 cocoon-winders, — the French employ many 
 women ; and the estimate of the law is prac- 
 tically indicated, there as well as here, in the 
 price of the labor done. 
 
 The highest wages marked upon my list are 
 those paid to the workers in a porcelain fac- 
 tory, who received one franc and fifty cen- 
 times a day, or thirty cents. The lowest are 
 those paid to cockle - gatherers and lace- 
 makers ; that is, from twenty to twenty-five 
 centimes, or from four to five cents a day. 
 
 The fact that the poor lace-makers, who lose 
 
AND THE FRENCH LAW. 
 
 33 
 
 their eyesight and their lives bending over 
 their bobbins, are paid the same wages as the 
 loitering girls who pick up gay cockles on 
 the beach, shows how little the price of the 
 labor depends on the value of the work done, 
 and tells the whole story in a breath. The 
 wages of the needlewomen of Paris have 
 been diminishing ever since 1847, and, ac- 
 cording to the “ Revue des Deux Mondes,” 
 now average only from twenty to twenty-five 
 cents a day. 
 
 3 
 
II. 
 
 THE ENGLISH COMMON LAW. 
 
 “ And we, perusing o’er these notes, 
 
 May know wherefore we took the sacrament, 
 
 And keep our faiths firm and inviolable.” 
 
 King John. 
 
 JN approaching the subject of English com- 
 mon law, we come nearer to our own 
 special interests. Twenty years ago, I am 
 safe, I think, in presuming that this law was 
 the basis of all our legislation in regard to 
 woman, if we except that in French or Spanish 
 territory ; and, in criticizing its provisions, I 
 shall criticize all that is objectionable, whether 
 in the laws that have been changed, or in the 
 laws that remain to be changed, in our own 
 States. 
 
 If we were to examine the literature of 
 England with reference to this subject, we 
 should probably find from the beginning many 
 
THE ENGLISH COMMON LAW. 
 
 35 
 
 protests against the present position of wo- 
 man. It is never safe, for instance, to assume 
 what poets may or may not have said. If 
 Dry den could get so far as to say that there 
 is u no sex in souls,” one would think the 
 gentle Chaucer and heavenly-minded Daniel 
 doubtless discerned still deeper things ; but 
 of lawyers we may say with some truth, that 
 their early protests were so quietly made as 
 scarcely to be recognized, or were made for 
 the most part by unread and anonymous wri- 
 ters. 
 
 In the “ Lawe’s Resolution of Woman’s 
 Rights,” published in the year 1632, there 
 seems to be a distinct recognition of the true 
 nature of the law : — 
 
 “ The next thing that I will show you,” says 
 the author, u is this particularity of law. In this 
 consolidation which we call wedlock is a locking 
 together. It is true, that man and wife are one 
 person ; but understand in what manner. When a 
 small brooke or little river incorporateth with Rlio- 
 danus, Humber, or the Thames, the poore rivulet 
 looseth her name ; it is carried and recarried with 
 
36 
 
 THE ENGLISH COMMON LAW. 
 
 the new associate ; it beareth no sway ; it possesseth 
 nothing during coverture. A woman, as soon as 
 she is married, is called covert ; in Latine, nupta ,— 
 that is, 6 veiled ; ’ as it were, clouded and oversha- 
 dowed : she hath lost her streame. I may more 
 truly, farre away, say to a married woman, Her 
 new self is her superior ; her companion, her mas- 
 ter.” 
 
 Still farther : “ Eve, because she had helped to 
 seduce her husband, had inflicted upon her a spe- 
 cial bane. See here the reason of that which I 
 touched before, — ■ that women have no voice in 
 Parliament. They make no laws, they consent to 
 none, they abrogate none. All of them are un- 
 derstood either married or to bee married, and 
 their desires are to their husbands. I know no 
 remedy, though some women can shift it well 
 enough. The common lawe here shake th hand 
 with divinitye.” 
 
 In this plain statement of the old black-let- 
 ter book lies the root of the evil with which 
 we contend : u All of them are married or to 
 bee married, and their desires are to their hus- 
 bands .’ 7 Woman, single, widowed, or pursuing 
 an independent vocation, never seems to have 
 entered the head of the law, as a possible 
 
THE ENGLISH COMMON LAW. 
 
 37 
 
 monster worth providing for. The world of 
 that day believed in the sea-serpent , but not in 
 her ! This book, “ The Lawe’s Resolution of 
 the Rights of Woman/ 7 was, so far as I know, 
 first brought under our notice by Mrs. Bo- 
 dichon’s quotation, m her “ Brief Summary of 
 the English Law. 77 Then a few copies found 
 their way to this country, and into the hands 
 of curious persons. People began to wonder 
 who wrote the quaint old book. In pleading 
 before our own Legislature in the spring of 
 1858, I was myself asked by the committee 
 who was its author ; and I think it but right 
 to rescue from oblivion the probable name of 
 this early friend to woman and justice. It is 
 always difficult to trace an anonymous book, 
 and, this time, more difficult than usual, as 
 it was probably published after its author’s 
 death. 
 
 Sir John Doderidge, to whom my attention 
 was directed by an eminent antiquarian, was 
 an able lawyer, and an industrious compiler 
 of law-books of a special kind. He was from 
 

 THE ENGLISH COMMON LAW. 
 
 Devonshire, and admitted as a barrister in 
 1603. He was successively appointed Solici- 
 tor-General, Judge of the Common Pleas and 
 of the King’s Bench. Among the works 
 known to be his, yet not commonly included 
 in the list of his works, are the u Lawyer’s 
 Light,” published in 1629 ; and u The Complete 
 Parson,” with the laws relating to advowsons 
 and livings, in 1670, — books of the same class, 
 character, and appearance as the “Lawe’s Re- 
 solution.” 
 
 As he died in 1628, I was at first inclined 
 to suspect the fairness of this inference : but 
 a further examination showed that all his pub- 
 lications were posthumous; which accounts, 
 perhaps, for the candor of their covert satire. 
 A few particulars of his life and standing may 
 be gained from the new Life of Lord Bacon, 
 where Hepworth Dixon says that “ the Soli- 
 citor-Generalship, vacant once more, is given, 
 over Francis Bacon’s head, to Sir John Dode- 
 ridge, Serjeant of the Coif.” In 1606, when 
 Sir Francis Gawdy dies, “ Coke goes up to the 
 
THE ENGLISH COMMON LAW. 
 
 39 
 
 bench ; and Doderidge, the Solicitor-General, 
 ought, by the custom of the law, to follow 
 Coke, leaving the post of Solicitor void : but 
 Cecil raises Sir Henry Hobart, his obscure 
 Attorney of the Court of Wards, over both 
 Doderidge and Bacon’s head, to the high place 
 of Attorney-General.” Since that day, Ben- 
 tham and Catharine Macauley, Mary Woll- 
 stonecraft, and John Stuart Mill, have made the 
 same complaint ; sustaining it, however, by 
 vigorous argument for woman’s full emancipa- 
 tion, and a demand for the right of suffrage. 
 
 Let us look at this English law. So far as 
 it affects single women, it is very simple. 
 
 A single woman has the same rights of 
 property as a man ; that is, she may get and 
 keep, or dispose of, whatever she can. She 
 has a right, like man, to the protection of 
 the law, and has to pay the same taxes to the 
 State. 
 
 u Duly qualified,” she may vote on parish 
 questions and for parish officers ; and “ duly 
 qualified,” in England, means that she shall 
 
40 
 
 THE ENGLISH COMMON LAW. 
 
 have a certain amount of property, and so a 
 vested interest in the prosperity of her pa- 
 rish. If her parents die without a will, she 
 shares equally with her brothers in the divi- 
 sion of the personal property ; but her eldest 
 brother and his issue, even if female, will take 
 the real estate as heir-at-law. If she be an 
 only child, she inherits both personal and real, 
 and becomes immediately that most pitiable of 
 creatures, an heiress. 
 
 The church and all state offices are closed 
 to women. They find some employment in 
 rural post-offices ; but there is no important 
 office they can hold, if we except that of so- 
 vereign. This is sometimes spoken of as an 
 inconsistency; but if we reflect upon the po- 
 sition of a constitutional sovereign, whose 
 speeches are the work of her minister, and 
 whose actions indicate the average conscience 
 of a cabinet council, we shall find her legally 
 but very little more independent than other 
 women technically classed with minors and 
 idiots. 
 
THE ENGLISH COMMON LAW. 
 
 41 
 
 There have been a few women governors 
 of prisons, overseers of the poor, and parish 
 clerks ; but public opinion still effectually 
 bars most women from seeking or accepting 
 office. 
 
 The office of Grand Chamberlain was filled 
 by two women in 1822. That of Clerk of the 
 Crown, in the Court of Queen’s Bench, has 
 been granted to a female ; and, in a certain 
 parish of Norfolk, a woman was recently ap- 
 pointed parish clerk, because, in a population 
 of six hundred souls, no man could be found 
 able to read and write ! 
 
 In an action at law, it has been determined 
 that an unmarried woman, having a freehold, 
 might vote for members of Parliament. Mr. 
 Higginson tells us that a certain Lady Pack- 
 ington returned two. 
 
 In all periods, there have been women who 
 have held exceptional positions, under pecu- 
 liar influence of wealth or rank or circum- 
 stances ; and though this has not affected the 
 position of other women, or given them any 
 
42 
 
 THE ENGLISH COMMON LAW. 
 
 more freedom, yet it is valuable in itself, 
 because it has kept the possibility of their 
 employment always open, and acted like a 
 practical protest against the law. 
 
 The Countess of Pembroke was hereditary 
 Sheriff of Westmoreland, and exercised her 
 office. In the reign of Queen Anne, Lady 
 Rous did the same, u girt with a sword.” 
 Henry VIII. once granted a commission of 
 inquiry, under the great seal, to Lady Anne 
 Berkeley, who opened it at Gloucester, and 
 passed sentence under it. 
 
 Some of the old legal writers averred, that 
 a woman might serve in almost any of the 
 great offices of the kingdom. Lately we find 
 it stated that a woman may be elected as 
 constable, since she can hire a man to serve 
 for her ; but she may not be elected “ overseer 
 of the poor, because, in this case, substitution, 
 if not impossible, would be difficult ! 
 
 What were the peculiar political excite- 
 ments which enabled Lady Packington to 
 return two members of Parliament, we are 
 
THE ENGLISH COMMON LAW. 
 
 43 
 
 not told ; but it is quite certain that women 
 of twenty-one, duly qualified, cannot and do 
 not vote for members of Parliament by vir- 
 tue of that decision. In rural districts, where 
 personal influence weighed a good deal, such 
 a vote might be courteously winked at. A 
 woman of property and standing, in Nova 
 Scotia, has in this manner, for more than for- 
 ty years, cast her annual vote, without rebuke 
 or interruption ; but, should any number of 
 women act on this precedent, a legal restraint 
 would doubtless be laid. 
 
 No single woman, having been seduced, has 
 any remedy at common law ; neither has her 
 mother nor next friend. If her father can 
 prove service rendered, he may sue for loss of 
 service. 
 
 In what u bosom of divinitye ” does this law 
 rest? Here is a remedy provided for the loss 
 of a few hours, but no penalty held up in 
 terror em, to warn man that he may not trifle 
 with honor, womanly purity, and childish ig- 
 norance or innocence. 
 
44 
 
 THE ENGLISH COMMON LAW. 
 
 In the eye of this law, female chastity is 
 only valuable for the work it can do. It must 
 not be thought, however, that the English 
 common law stands alone in this moral de- 
 formity. Under the French law, female chas- 
 tity does not seem of any worth, even in 
 consideration of the work it can do. In hon- 
 est indignation, Legouvd exclaims, — 
 
 u Let a man, who has seduced a child of fifteen 
 years by a promise of marriage, be brought before 
 a magistrate. He has under the law a right to say, 
 c There is my signature, it is true ; but I deny it. 
 A debt of the heart is void before the law.’ ” 
 
 Thus everywhere, in practice and theory, 
 in society and in law, for rich and poor, is 
 public purity abandoned, — the bridle thrown 
 upon the neck of all restive and depraved na- 
 tures. 
 
 Manufacturers seduce their work-people ; 
 the heads of workshops refuse to employ girls 
 who will not sell themselves, soul and body, 
 to them ; masters corrupt their servants. Out 
 of 5,083 lost women counted by Duchatelet 
 
THE ENGLISH COMMON LAW. 
 
 45 
 
 at Paris in 1830, there were 285 domestic ser- 
 vants seduced, and afterwards dismissed by 
 their employers. Commission-merchants, offi- 
 cers, students, deceive the poor girls from the 
 province or the country, drag them to Paris, 
 and leave them to perish. At all the great 
 centres of industry, as at Rheims and at Lille, 
 are societies organized to recruit the houses 
 of sin in Paris. 
 
 This is well known to be true of all the 
 large English towns ; yet the law is power- 
 less, and philanthropy interferes with no other 
 result than that of driving these societies 
 from one post to another. 
 
 Can women be expected to believe that the 
 law would be powerless, if there were a sound 
 public opinion behind it to sustain the law ; 
 if there were any desire on the part of the 
 majority of men that it should be sustained ? 
 u Punish the young girl, if you will/ 7 conti- 
 nues Legouve ; u but punish also the man who 
 has ruined her. She is already punished ; 
 punished by desertion; punished by disho- 
 
46 
 
 THE ENGLISH COMMON LAW. 
 
 nor ; punished by remorse ; punished by nine 
 months of suffering; punished by the charge 
 of a child to be reared. Let him, then, be 
 struck in his turn. If not, it is no longer 
 public modesty that you defend, as you pre- 
 tend : it is the ‘ lord paramount/ the vilest of 
 the rights of the 1 seigneur/ ” 
 
 In the laws which regard single women, we 
 object, then, — 
 
 1. To the withholding of the elective fran- 
 chise. 
 
 2. To the law’s preference of males, and the 
 issue of males, in the division of estates. 
 
 3. We object to the estimate of woman 
 which the law sustains, which shuts her out 
 from all public employment, for many branch- 
 es of which she is better fitted than man. 
 
 4. We object to that estimate of woman’s 
 chastity, which makes its existence or non- 
 existence of importance only as it affects the 
 comfort or income of man. 
 
 We do not mean that the present interpreta- 
 tion of the common law does not sometimes 
 show a more liberal estimate than the law it- 
 
THE ENGLISH COMMON LAW. 
 
 47 
 
 self ; but rather that the existence of this law ? 
 unrepealed; unchristianized , is a forcible re- 
 straint upon the progress of society. 
 
 “A legal fiction/’ says Maine in his “Ancient 
 Law/’ “ signifies any assumption which con- 
 ceals; or affects to conceal, the fact, that a rule 
 of law has undergone alteration, its letter re- 
 maining unchanged, while its operation is 
 modified.” Such fictions may be useful in 
 the infancy of society ; but, like absurd for- 
 mulas and embarrassing technicalities, they 
 should give way before advancing common 
 sense, before the diffusion of general intelli- 
 gence and a common-school system, which is 
 destined to qualify the humblest man for a 
 full understanding of the law under which he 
 lives. 
 
 We have now to consider the laws concern- 
 ing married women . “ On whatsoever branch 
 
 of jurisprudence may lie the charge,” says a 
 late reviewer, “ of working the heaviest sum 
 of suffering, perhaps we shall not err in 
 saying that the sharpest and cruellest pangs 
 
48 
 
 THE ENGLISH COMMON LAW. 
 
 are those which have been inflicted by our 
 marriage-laws.” In making our abstracts, we 
 have need to avoid the absurd complications 
 which confuse, not only simple-minded people, 
 but lawyers themselves ; and, to avoid any 
 charge of ignorance or mistake, we will, as 
 far as possible, adopt the language of Mrs. 
 Bodichon’s “ Summary,” which has stood for 
 six years before the English public without 
 impeachment. 
 
 We shall not discuss the question, as to what 
 constitutes fitness for marriage in the eye of 
 the law. In Scotland and in England, the con- 
 sent of the parties is said to be the “ essence 
 of marriage ; ” but, alas ! in how many cases 
 is this “ consent ” taken for granted only, 
 it being, in fact, the most baseless of legal 
 fictions ! 
 
 In commenting on the English law as com- 
 pared with the Scotch, the reviewer adds, “A 
 code so unsatisfactory, so unsettled, and by 
 every alteration coming so palpably near to 
 their own system, is one which Scotchmen 
 
THE ENGLISH COMMON LAW. 
 
 49 
 
 may be pardoned for declining further to con- 
 sider, and which certainly they cannot be 
 expected to recognize as the model to which 
 their own should be conformed.” 
 
 The rule of the English law was, at the in- 
 stitution of the Divorce Court, that the wife 
 should have the same domicile as her husband, 
 and that within English territory. A disho- 
 nest domicile barred her claim to divorce; and 
 the husband who abandoned his wife, and fixed 
 his residence abroad, effectually bound her to 
 him. Justice has of late been done, because 
 it was justice, heedless of the question of 
 domicile. 
 
 There are in relation to this subject many 
 provisions which wrong men and women 
 alike ; and, if there are any which especially 
 wrong woman, they wrong man in a still high- 
 er degree through her. As an example of the 
 former class, we may take the impossibility 
 of release from a hopelessly insane partner, 
 which makes the point of the wonderful story of 
 “ Jane Eyre.” 
 
 4 
 
50 
 
 THE ENGLISH COMMON LAW. 
 
 Now, several things are quite evident to the 
 eye of common sense: — 
 
 First, That the insane partner should be 
 properly provided for during life, in the upper 
 classes, by the sane partner; in the lower, by 
 the parish or state. 
 
 Second , That as it is a sin against God and 
 society to bring children into the world, born 
 of a hopelessly insane parent ; so, on the other 
 hand, it is a sin against God and society to 
 compel any man or woman to a life of hope- 
 less celibacy. 
 
 Third , That, if the law does use this compul- 
 sion, it is responsible for the vicious connec- 
 tions that inevitably grow out of it ; u car 
 les mauvaises lots produisent les mauvaises 
 mceursT * I should not turn aside from my 
 
 * A curious instance of the immoral result of holding mar- 
 riage sacramental, and indissoluble under all circumstances, 
 comes within my personal experience while I am correcting these 
 pages for the press, Oct. 11, 1861. 
 
 A young Catholic girl was divorced some years ago, imme- 
 diately after marriage, on account of the bad conduct of her 
 husband. She was received into the family of a brother-in-law, 
 
THE ENGLISH COMMON LAW. 
 
 51 
 
 main point to consider this, even for a moment, 
 if it were not a striking instance of the want of 
 common sense which afflicts the common law , 
 and if I had not in my own experience been 
 made aware of its frightful results. Within 
 the limits of one small parish in the city of To- 
 ronto, Canada West, I found four instances in 
 which men of the middle class had taken the 
 right of divorce into their own hands, and 
 w r ere illegally married a second time. These 
 persons, if not markedly religious, were re- 
 spectable, orderly members of society, living 
 properly in their families, supporting the wives 
 
 in every way highly respectable. For the last two years, she 
 has been courted by an officer in the navy of the United States ; 
 but nowhere in New England could a Catholic priest be found 
 willing to marry them. The church still holds her responsible 
 to her first vows. The officer honestly desired to marry her; 
 but the natural result of her ignorance and perplexity followed. 
 Expecting to become a mother, and rejected by her family, she 
 came to me for advice. As the officer is a Protestant, I recom- 
 mended that they should be married by a minister of that faith. 
 She again consulted her priest, and was told that it was less 
 sinful for her to remain in her present relation to her lover than 
 to receive a sacrament from unholy hands; the priest ignoring 
 utterly the legal protection and maintenance which she might 
 thus receive. 
 
52 
 
 THE ENGLISH COMMON LAW. 
 
 they had left, and justifying the course they 
 had taken. Two of them had left England 
 on account of the hopeless insanity of their 
 wives, and two on account of their hopeless 
 immorality; the latter, cases in which the law 
 would have granted a divorce, but at an 
 expense which the husband could not pay. 
 When I first heard this account of one person, 
 I resented it as a slander, and went to console 
 the afflicted wife, who was overwhelmed by 
 the supposed rumor. 
 
 The husband met me at the door, with an 
 honest, unabashed, but distressed face. “ Don 7 t 
 deny it to her / 7 said he. “ I never committed 
 but one sin, and that was when I kept it from 
 her. She was a sweet, pious creature ; and I 
 feared she would not consent . 77 
 
 This man told me that he sent six hundred 
 dollars yearly to his insane wife ; that this 
 kept her better than he could afford to keep 
 himself and his family : u but , 77 said he, “ her 
 station was always higher than mine . 77 
 
 In the other cases, the men had told their 
 
THE ENGLISH COMMON LAW. 
 
 53 
 
 stories, and the wives had consented to the 
 arrangement. It is obvious, that, if a wife 
 wished to withdraw from a husband in this 
 manner, she could not do it, on account of 
 property restrictions, and the common unfit- 
 ness for self-support.* 
 
 In the marriage of a minor, the consent of 
 the father, or of a guardian appointed by him, 
 is necessary, but not that of the mother : an- 
 other indication of the estimate the law puts 
 upon woman, as compared with man ; and this 
 estimate, whenever and wherever it shows it- 
 self, has the effect to depress every woman’s 
 desire to fit herself to be a good citizen ; 
 and, when she fails in citizenship, man must 
 fail also, as is ably shown by De Tocqueville. 
 
 “ A hundred times in the course of my life,” 
 
 * The only excuse for considering this point, in an essay 
 pleading especially for women, is that the law bears unequally 
 on the two sexes; pressing hardest on woman, on account of her 
 pecuniary dependence, and general subordination to man. 
 
 A woman, every reader will understand, would find it impos- 
 sible to free herself from her obligations, like the men referred to 
 in the text; nor is it desirable that she should free herself but 
 that the law should free her. 
 
54 
 
 THE ENGLISH COMMON LAW. 
 
 he says, u I have seen weak men display pub- 
 lic virtue because they had beside them wives 
 who sustained them in this course, not by 
 counselling this or that action in particular, 
 but by exercising a fortifying influence on 
 their views of duty and ambition. Oftener 
 still , I have seen domestic influence operating 
 to transform a man, naturally generous, noble, 
 and unselfish, into a cowardly, vulgar, and am- 
 bitious self-seeker, who thought of his coun- 
 try’s affairs only to see how they could be 
 turned to his own private comfort or advance- 
 ment ; and this simply by daily contact with 
 an honest woman, a faithful wife, a devoted 
 mother, from whose mind the grand notion of 
 public duty was entirely absent.” * 
 
 A man and wife are one person in law : a 
 wife loses all her rights as a single woman. 
 Her husband is legally responsible for her 
 acts: so she is said to live under his cover. 
 A woman’s body belongs to her husband. 
 
 National Rev. Apr. 1861, pp. 291, 292. 
 
THE ENGLISH COMMON LAW. 
 
 55 
 
 She is in his custody, and he can enforce his 
 right by a writ of habeas corpus . 
 
 This last is one of the points in which the 
 public feeling is so far before the law, that 
 the latter could never be wholly enforced. 
 
 If a woman were unlawfully restrained of 
 her liberty, her husband might take advan- 
 tage of a habeas corpus to get possession of 
 her ; but it is not probable that any court, in 
 England or this country, would now grant one 
 to compel a wife to live with her husband 
 against her will. Still, the estimate of the 
 marriage relation which such laws sustain is 
 so low, that one never can tell what will hap- 
 pen. 
 
 In the year 1858, a curious but uninten- 
 tional satire on the judicial position of the hus- 
 band occurred in one of the London courts. 
 A delicate, much-abused woman, unmarried, 
 but who had been, in her own phrase, “ living 
 for some time 77 with a man, brought an action 
 against him for assault. Erysipelas had in- 
 flamed her wounds, and endangered her life. 
 
56 
 
 THE ENGLISH COMMON LAW. 
 
 u Had she died ; sirrah,” said the magistrate, 
 addressing the criminal, u yon must have 
 taken your trial for murder. What have you 
 to say in your defence?” 
 
 “ I was in liquor, sir,” pleaded the man. “ I 
 gave her some money to go to market. I told 
 her to look sharp; but she was gone more 
 than an hour, your worship: so, when she came 
 back, I — I was in liquor, your honor.” 
 
 The magistrate leaned over his desk, and, 
 speaking in the most impressive manner, thus 
 endeavored to cut short the defence : — 
 u This woman is not your slave, man. She 
 is not accountable to you for every moment 
 of her time. She is not,” he continued v 7 ith 
 increasing fervor, but a growing embarrass- 
 ment, — “ she is not — she is not ” — 
 
 He paused ; but the throng of wretched 
 women who crowded the court interpreted 
 the pause aright, and were not likely to for- 
 get the lesson. 
 
 A suppressed titter ran through the court : 
 for every married man knew that the words, 
 
THE ENGLISH COMMON LAW. 
 
 57 
 
 “ she is not your wife/’ were those which had 
 sprung naturally to the worthy magistrate’s 
 lips ; and must have passed them, had not ho- 
 nest shame prevented. 
 
 The man then attempted to defend himself 
 on the ground of jealousy : but this was in- 
 stantly set aside ; the unmistakable impression 
 left on the mind of the court-room being, that 
 the illegality of the relation was wholly in the 
 woman’s favor. 
 
 Women long ago understood this, and lite- 
 rary gossip gives us a late instance in a maid- 
 en aunt of Sir Charles Morgan. This woman, 
 descended from Morgan the buccaneer, has 
 more than once turned the scales of an Irish 
 election. When she once arrested a robber 
 on her own premises, and held him fast till 
 the arrival of an officer, the gentlemen of the 
 neighborhood advised her not to prosecute. 
 
 “ It is well known,” they argued, “that you 
 refuse to employ a single man on your pre- 
 mises, and you may be marked out for the 
 revenge of the gang.” 
 
58 
 
 THE ENGLISH COMMON LAW. 
 
 “Justice is justice / 7 she exclaimed in reply; 
 “ and the villain shall go hang ! 77 
 
 It was quite natural that we should find 
 this woman telling Lady Caroline Lamb that 
 no man should ever have legal rights over her, 
 or her property. A wife’s money, jewels, and 
 clothes become absolutely her husband’s ; and 
 he may dispose of them as he pleases, whether 
 he and his wife live together or not. Her 
 chattels real — that is, estates held for a term 
 of years — and presentations of church livings 
 become absolutely his ; but, if she survive 
 him, she may resume them. 
 
 Under such a common law as this, it is not 
 surprising to find something needed which is 
 called* equity. Therefore, if a wdfe, on her 
 marriage, gives all her property to her hus- 
 band, the said equity (Heaven save the mark !) 
 will, under certain circumstances, oblige him 
 to make a settlement upon her. That is, when 
 the wife has an interest in property which 
 can only be reached by the husband through 
 a court of equity, that court will aid him to 
 
THE ENGLISH COMMON LAW. 
 
 59 
 
 enjoy it, only on condition that such part as it 
 thinks proper shall be settled on the wife. 
 
 The civil courts in England cannot compel 
 a man to support his wife : that is left to the 
 action of the church, and her own parish. 
 
 A husband has a freehold estate in his wife’s 
 lands as long as they both live. 
 
 Money earned by a married woman belongs 
 absolutely to her husband. 
 
 By her husband’s particular permission, she 
 may make a will ; but he may revoke his per- 
 mission at any time before probate, — that is, 
 before the will is exhibited and proved, — 
 even if after the wife’s death. 
 
 The custody of a child belongs to the father. 
 The mother has no right of control. The fa- 
 ther may dispose of it as he sees fit. If there 
 be a legal separation, and no special order of 
 the court, the custody of the children (except 
 the nutriment of infants) belongs legally to the 
 father. 
 
 Except the nutriment of infants! Here is a 
 hint from the good God himself. Should we 
 
60 
 
 THE ENGLISH COMMON LAW. 
 
 not think, that the first time these words were 
 written down, and men were compelled to see 
 the natural dependence of the child upon the 
 mother, — to detect the obvious laws of nur- 
 ture, natural and spiritual, — the right of a 
 good mother to her child would have made 
 itself clear? 
 
 Yet, to this day, there are many States of 
 our own Union where a mother can better 
 authenticate her right to a negro slave than 
 to the young daughter who is bone of her 
 bone, and flesh of her flesh ! 
 
 If the direct influence of Christianity did 
 not, in some measure, modify the influence of 
 the law in social life, there would be no such 
 thing as a mother’s exercising maternal au- 
 thority over a son. No matter how wise, how 
 old, how experienced, she may be, she never 
 possesses, in the eye of the law, the dignity of 
 a boy who has just attained his majority. Suf- 
 ficiently instructed in legal maxims, he can 
 always resist her, under the influence of the 
 most besotted or unprincipled of fathers. 
 
THE ENGLISH COMMON LAW. 
 
 61 
 
 The word of a married woman is not bind- 
 ing in law, and persons who give her credit 
 have no remedy against her. 
 
 The moral results of such a law are suffi- 
 ciently obvious, not only in England, but in 
 our own country. The statute-book does not, 
 cannot, stand absolved, because public opinion 
 in the present day abhors and contemns the 
 woman who assists her husband to defraud his 
 creditors, or takes refuge from her own debts 
 behind this disgraceful cover. Yet, if the law 
 gives her husband her property, it ought 
 surely to hold Mm responsible for her debts. 
 And this is what society calls protection ! 
 
 As a wife is always presumed to be under 
 the control of her husband (numerous in- 
 stances to the contrary notwithstanding), she 
 is not considered guilty of any crime which 
 she commits in his presence. 
 
 When a woman has consented to a proposal 
 of marriage, she cannot give away the small- 
 est thing. If she do so without her betrothed 
 husband’s consent, the gift is illegal ; and, af- 
 
62 
 
 THE ENGLISH COMMON LAW. 
 
 ter marriage, he may avoid it as a fraud on 
 him : a strong temptation to any woman, one 
 would think, to give away her all. You see 
 here what estimate the law puts on property, 
 as an inducement to marriage. This provi- 
 sion evidently grew out of the exigencies of 
 the time, when marriage among the Anglo- 
 Saxons was a pure matter of bargain. 
 
 As a protection against the common law, it 
 is usual to have some settlement of property 
 made upon the wife ; and, in respect to this 
 property, the courts of equity regard her as 
 a single woman. Such settlements are very 
 intricate, and should be made by an experi- 
 enced lawyer. 
 
 The wife’s property belonging to the hus- 
 band, should her scissors, thimble, or petti- 
 coats, be stolen, the indictment must describe 
 either of these articles as his ! 
 
 Of divorce it is only necessary to say, that 
 a divorce from the bonds of matrimony in 
 England could be obtained only by act of Par- 
 liament ; the right of investigation resting 
 
THE ENGLISH COMMON LAW. 
 
 63 
 
 with the House of Lords alone. Until the 
 passage of the New Divorce Bill, only three 
 such divorces had ever been granted to a 
 woman’s petition. The expense of the most 
 ordinary bill was between three and four 
 thousand dollars. 
 
 Nor need we dwell long on such laws as 
 relate to widoivs. You may be interested to 
 hear, that, after her husband’s death, the wi- 
 dow recovers her right to her own clothes 
 and jewels ; also that the law does not com- 
 pel her to bury him, that being the duty of 
 his legal representative. 
 
 The indignation which we might naturally 
 feel at the suggestion, that a wife could forsake 
 her unburied dead, cools a little as the law 
 goes on to state, that a husband can , of course , 
 deprive a wife of all share in his personal es- 
 tate. Very graciously, also, the widow is 
 permitted to remain forty days in her hus- 
 band’s house, provided that she do not re- 
 marry within that time ! 
 
 The result of a great deal of reading of a 
 
04 
 
 THE ENGLISH COMMON LAW. 
 
 great many law-books is only this, — that we 
 are more firmly convinced than ever, that the 
 most necessary reform is a simple erasure 
 from the statute-book of whatever recognizes 
 distinctions of sex. You should make woman, 
 in the eye of the law, what she has always 
 been in the eye of God, — a responsible hu- 
 man being ; and make laws which such beings, 
 male or female, can obey. 
 
 Even Christian, in his edition of Blackstone, 
 said long ago, that there was no reason why 
 civil rights should be refused to single wo- 
 men. In every respect but this, the single 
 woman is independent; but let her take to 
 herself a husband, and the law steps in to 
 protect her, and she finds herself in a position 
 of what is called “ reasonable restraint.” He 
 may give her, says Blackstone, moderate cor- 
 rection; he may adopt any act of coercion 
 that does not endanger life ; he may beat her, 
 but not violently. She may, by her labor, 
 support him : but she cannot prevent him from 
 bestowing her earnings, should he happen to 
 die, upon those who have most wronged her 
 
THE ENGLISH COMMON LAW. 
 
 65 
 
 in life ; liis mistress, it may be, or his illegiti- 
 mate children. Do you tell me that men of 
 good feeling never act on such laws ? Why, 
 then, should men of good feeling be unwilling 
 to wipe them from the statute-book ? 
 
 For the most part, it is upon women of the 
 lower class that the property-laws most hardly 
 press. It was the suffering of this class, years 
 ago, when the common law of Massachusetts 
 was the same as that of England, that first 
 roused my interest, and excited my indigna- 
 tion ; but the story which the Hon. Mrs. Nor- 
 ton tell us shows that this class of women are 
 not the only sufferers. 
 
 u I have learned the law piecemeal,” she says, 
 u by suffering all it could inflict. I forgave my 
 husband’s wickedness again and again, and found 
 too late, that, in the eye of the law, practical Chris- 
 tianity, the forgiving unto seventy times seven, was 
 a condonation which deprived me of all protection. 
 My children were stolen from me, and put into the 
 vilest custody, where one of them afterwards died 
 for want of a mother’s commonest care. My hus- 
 band brought an action against his kindest friend, 
 of whom he borrowed money and received office. 
 
 5 
 
G6 
 
 THE ENGLISH COMMON LAW. 
 
 The jury listened with disgust, and gave their ver- 
 dict against him. Then I was told that I might 
 write for my bread, or my family might support 
 me. My children were kept away, as their resi- 
 dence with me would make him liable for my debts. 
 
 u When my mother died, and left me, through my 
 brother, a small income, he balanced the first pay- 
 ment by arbitrarily stopping his own allowance. 
 For the last three years, I have not received a 
 farthing from him. He retains all my personal 
 property which was left in his home, the gifts of 
 the royal family on my marriage, articles bought 
 with my own earnings, and presents from Lord 
 Melbourne. He receives from my trustees the in- 
 come which my father bequeathed to me, which the 
 c non-existent 5 wife must resign to the ‘ existent 9 
 husband. 
 
 u I have also the power of earning by literature ; 
 but even this power, the gift of God, not the legacy 
 of man, bears fruit only for him. Let him subpoena 
 my publishers, and enjoy his triumph : he has shown 
 me that I was not meant to write novels and tales, 
 but to rouse the nation against such men as he, and 
 such laws as they sustain. Let him eat the bread 
 I earn ; but it shall be bought with the price of his 
 own exposure. If law will not listen to me, to 
 literature I will devote my power, and secure for 
 others what I have not been able to secure for my- 
 self.” 
 
THE ENGLISH COMMON LAW. 
 
 67 
 
 No wonder that provident parents circum- 
 vent such a common law by a settlement 
 before marriage. There is no chance for a 
 partnership of gains or losses in England. 
 
 As we have already said, all sexual laws 
 ought to be wiped off the statute-book; but 
 the Hungarian law which was in force until 
 1849, when the German law was introduced 
 into Hungary, is a comment on the absurdity 
 of the English. 
 
 u No countrywoman of mine,” said a proud 
 sister of Kossuth, “ would ever submit to such 
 a marriage settlement as is common in Eng- 
 land.” In Hungary, inherited property could 
 not be devised by will, and all unmarried wo- 
 men were considered minors. As soon as she 
 married, a woman came of age, and into the 
 full control of her estates. She could make 
 a will, and sign deeds ; and was not respon- 
 sible for her husband’s debts or the family ex- 
 penses. As a widow, she was guardian of her 
 children, and administrator on her husband’s 
 property. So long as she bore his name, she 
 could exercise all his political rights. She could 
 
68 
 
 THE ENGLISH COMMON LAW. 
 
 vote in the county elections, and for deputies 
 to the Diet. Trained up under such a law, 
 what could the Hungarian woman think who 
 found herself for the first time in the power 
 of the English law? 
 
 Among the refugees whom the misfortunes 
 of a leading Hungarian family drove to these 
 shores was one woman of the highest natural 
 gifts, the best social station. She was mar- 
 ried to a man, handsome, accomplished, and 
 reckless, but hardly patriotic enough to have 
 need to fly with her. In the city of New 
 York she opened a boarding-house of the 
 highest class, by which she strove to support 
 herself and her children. A fascinating host- 
 ess, a skilful manager, she succeeded, as might 
 be expected. Soon her improvident husband 
 followed her. At first, he did not attempt to 
 annoy her ; but, in time, some one was found 
 cruel enough to expound to him the English 
 common law. He stared, refused to believe ; 
 but finally entered his wife’s house, seized her 
 earnings, compelled her boarders to pay their 
 
THE ENGLISH COMMON LAW. 
 
 69 
 
 money into his hands, stripped her of all 
 power to pay her rent and provide for her 
 family, and then took himself off, enraptured, 
 doubtless, with his brief experience of Eng- 
 lish and American liberty. Stripped of peace, 
 position, and property, the injured wife had 
 no longer courage to struggle. In underhand 
 ways, to evade the unjust law, her personal 
 friends settled her upon a little farm, where 
 her shattered hopes found a short repose. 
 
 A few years ago, an American woman of 
 captivating address gained great reputation 
 in Paris as a milliner. She had a profligate 
 husband, whom she invited to tea every Sun- 
 day, supplying him at that time with a sum 
 for his weekly expenses. In an evil day, se- 
 duced by promises of high patronage, she 
 went to London. She was very successful ; 
 but in a few months her husband surprised 
 her, seized all she possessed, and, turned adrift 
 on the streets, she went back to a country 
 where the law would protect her industry. 
 Marriage has been sought only to legalize a 
 
70 
 
 THE ENGLISH COMMON LAW. 
 
 theft, — to apply the words of Wendell Phil- 
 lips, when u union was robbery” A respectable 
 servant, who had laid by a considerable sum, 
 w r as sought in marriage by an apparently suit- 
 able person. On the day before the marriage, 
 she put her bank-book into his hands. After 
 the ceremony, he said to her, “ I am not well 
 in health, and do not feel equal to supporting 
 a family : you had better go back to service. 7 ’ 
 Naturally indignant, she responded, “ Give 
 me, then, my bank-book . 77 — “lam too feeble 
 to spare the money , 77 he replied. She went 
 back to service, and has never seen him since ; 
 but, of course, she has been often obliged to 
 change her name and residence to protect 
 herself from a long succession of extortions. 
 
 We see thus, that if a woman is able to 
 conquer her fate, and to gain a livelihood in 
 spite of a dissolute or incompetent husband, 
 her home is not her own. Her husband’s 
 folly may, at any moment, deprive her chil- 
 dren of bread. 
 
 I have said that there was no woman so 
 
THE ENGLISH COMMON LAW. 
 
 71 
 
 pitiable as an heiress. I said it advisedly. I 
 thought of the long persecution she must 
 bear from unwelcome suitors, — of all appre- 
 ciation of her personality, ever so lovely or 
 gifted or individual, sunk, as it must be, in the 
 mire of her money. 
 
 Mrs. Reid says, justly, that this money is 
 not so much her own as a perquisite attached 
 to her person for the benefit of her future 
 husband; the larger portion of which will 
 eventually pass to his heirs, whether of her 
 blood or not. If forced from ill treatment to 
 leave his roof, the law will return her but a 
 scanty pittance. 
 
 The nature of the law itself, and that esti- 
 mate of woman on which it is based, are so 
 identical, that we are compelled, as we turn 
 over its pages, to treat these two points as one. 
 
 “ For one-half the human race / 7 said Mrs. 
 Reid years ago, “the highest end of civiliza- 
 tion is to cling like a weed upon a wall : 77 a 
 curious instance of the power that the use of 
 language has over a fact. There is nothing 
 
72 
 
 THE ENGLISH COMMON LAW. 
 
 captivating in clinging like a “ weed to a wall; ” 
 but most women are satisfied to hang like the 
 “ vine about the oak.” 
 
 It is a great misfortune, that this estimate 
 of woman not only governs the courts in their 
 decisions, but enters into and moulds all the 
 movements of society. Such an estimate 
 leads to constant contradictions ; being, as it 
 is, directly the opposite of the fact in so many 
 cases, and of the Divine Will in all. In a book 
 on woman recently published by a lawyer in 
 England, I found a pithy paragraph to this 
 point, concluding some observations on the 
 comparative longevity of the sexes : “ The 
 wife,” he says, “fitly survives the husband , 
 both to take care of his premature infirmity, 
 and to consummate the rearing of their off- 
 spring ” ! - — a creative effort of the imagina- 
 tion which certainly entitles the writer to the 
 laurels of the century. 
 
 One reason that the wages of women are 
 kept down is, that, for the most part, women 
 do not begin to labor early; do not devote 
 
THE ENGLISH COMMON LAW. 
 
 73 
 
 themselves in youth to any trade or profession, 
 so as to compete with men who have. The 
 plodding and steady habits of the man of 
 business, he has acquired in his early years ; 
 and they are developed by the fact, that he is 
 sole master of what he can earn, and can dis- 
 pose of it as he thinks proper : but his wife 
 has been brought up in no such school, — has 
 no such motive to industry. Should she toil 
 on for ever, she cannot possess what she ac- 
 quires, nor lay out the smallest part of it, 
 without another’s leave. Even when man says 
 to her with the sanction of the church and in 
 the presence of God, u With all my worldly 
 goods I thee endow,” it means only that she 
 is invited to enjoy, not possess them. This 
 estimate of her rights, her position, and her 
 ability, made manifest in every law-book, in 
 the church itself, and obvious in every social 
 form, discourages her whenever she would 
 devote herself to any lucrative employment ; 
 so that it is only in desertion and despair, for 
 the most part, that she becomes a laborer. 
 
74 
 
 THE ENGLISH COMMON LAW. 
 
 She is not always conscious of this discou- 
 ragement. She quiets the Cerberus within 
 by a three-times repeated “ It is not proper/’ 
 without pausing to analyze the conventional 
 instinct. Here we find the real significance 
 of the proverb, “A man of straw is worth a 
 woman of gold ; ” for the “ man of straw ” is, 
 at least, worth such money as he may here- 
 after earn, which the “ woman of gold” is not. 
 
 We hear a great deal about laws for the 
 'protection of women ; but we cannot urge too 
 often the remark of James Davis in his Prize 
 Essay of 1854, “that all early legislation for 
 woman was founded, not on her own rights, 
 but on those of her husband and children, and 
 the State over her” 
 
 When one remembers that the “ seat of the 
 law is the bosom of God,” it strikes one 
 strangely, that moral consequences to charac- 
 ter have so little to do with what one may 
 call “ sexual legislation.” 
 
 In speaking of the frequenting of disrepu- 
 table houses, neither Montesquieu, nor Dr. 
 
THE ENGLISH COMMON LAW. 
 
 75 
 
 Wood in his “ History of Civil Law / 7 finds a 
 single word to say as to the moral degradation 
 of the race, or the special degradation of 
 woman involved in it, but both grow eloquent 
 concerning the ruin of the State. It requires 
 a sounder mode of thinking than most men 
 possess to see the relation between the ruin of 
 the State and their own bad habits, the loss 
 of one man’s purity. Thus the laws concern- 
 ing adultery, or divorce for that cause, bring 
 the heaviest penalties, social and legal, upon 
 the head of an offending woman. The legal 
 excuse for this positive injustice is the safety 
 of the family and the State, — the great crime 
 of imposing upon a family false representa- 
 tives of its name and honor ; but a woman’s 
 brain and conscience are too clear to rest in 
 this masculine decision. 
 
 If a man cannot bring a false representative 
 into his own family , he can carry it into his 
 neighbor’s, when his profligate life violates 
 the social compact ; and, as to his own family, 
 his vices may injure it far more than the infi- 
 
76 
 
 THE ENGLISH COMMON LAW. 
 
 delity of his wife. At the worst ? her miscon- 
 duct will only bring into the shelter of his 
 home a child who grows up protected socially 
 by her fraud; but, if lie choose to u spend his 
 substance in riotous living / 7 his wife and chil- 
 dren may, while the law gives him exclusive 
 right to their common property, be deserted, 
 or driven from their homes, to make room for 
 those who* are the companions of his guilt. 
 It is quite possible, it will be seen, therefore, to 
 show another side to this matter, in no better 
 light than that of expediency. One canton of 
 Switzerland (the Canton Glarus) possesses laws 
 in regard to such matters, in marked contrast 
 to those of the whole civilized world. The 
 consequence is, that the falsehood and crime 
 so common elsewhere are here unknown.* 
 
 * “ A man who is guilty of adultery is branded by public 
 opinion as a forger or bigamist is elsewhere, and is not eligible to 
 public office during the whole of his life ; which, under such a 
 government, is the greatest punishment that can be inflicted. A 
 man who breaks his promise of betrothal, or who in any way 
 betrays a woman to mortification and shame, is heaped with the 
 same scorn that women receive elsewhere. The woman who is 
 betrayed is censured; but the man is henceforth an outcast.” — 
 Coltayes of the Alps, p. 288. 
 
THE ENGLISH COMMON LAW. 
 
 77 
 
 “ Perhaps it would be just/ 7 says Poynter 
 on “ Marriage and Divorce/ 7 in 1824, — “per- 
 haps it would be just, that where the husband 
 violates the matrimonial compact, and the 
 property originally belonged to the wife, he 
 should give back the whole of it. Courts, 
 however, have never gone that length. 77 
 
 One would think, nevertheless, that hus- 
 bands themselves might go that length, and 
 that men who aspire to the credit of decency 
 would be ashamed to eat the bread of her 
 they have betrayed and wounded. How is 
 it that they have deceived themselves from 
 the beginning, and have fancied that God 
 requires of woman a fidelity and purity that 
 was not of the smallest consequence to them- 
 selves? 
 
 In the late debate in Parliament on the New 
 Divorce Bill, when a member objected to the 
 introduction of a clause equalizing the relief 
 of divorce to both sexes, he asked, “ If this 
 clause were adopted, I should like to know 
 how many married men there would be in this 
 
78 
 
 THE ENGLISH COMMON LAW. 
 
 house ? 77 He was answered by shouts of 
 laughter. 
 
 Would these men have laughed, think you, 
 if they had been asked how many pure wives 
 could be found in their family circles ? and, 
 if not , would it have been because they were 
 capable of estimating the value of womanly 
 virtue ? No : he canqot estimate that who has 
 never known the worth of manly^p-^ity. The 
 spectres of illegitimacy and civil ruin are what 
 would stare them in the face, and turn their 
 very lips so white. 
 
 In France, says the “ Westminster Review / 7 
 fidelity on the part of the husband is consi- 
 dered a sort of imbecility. What is thought 
 of it in England ? Does this scene in Parlia- 
 ment, printed for all our girls to read, suggest 
 any higher view? 
 
 “ The frequenting of disreputable places / 7 
 says Davis, “was once an indictable offence in 
 a man ; but that is now obsolete . 77 Obsolete ? 
 and why? A lawyer once told me, that the 
 most obscene publication he had ever read 
 
THE ENGLISH COMMON LAW. 
 
 79 
 
 was a book upon divorce. I can well believe 
 it. I thought I knew how corrupt modern 
 society could be ; but I did not know how un- 
 soundness had darted to its very core, till I 
 began to read law, and to understand the 
 estimate which that puts upon woman and 
 chastity. 
 
 When I think of these things, I wonder 
 that this platform is not thronged with the 
 ghosts of dead and ruined women, crowding 
 here to second my appeal to beseech you to 
 grant human justice, to require human vir- 
 tue ! And all this sin is sheltered under the 
 plea of protection ! “ How many delicious 
 
 morsels I should miss if it were not for thy 
 care, 0 most excellent jackal ! 77 
 
 u Lawyers, 77 says Johnson in 1777, — “ law- 
 yers often pay women the high compliment of 
 supposing them proof against all temptations 
 combined. 77 
 
 Certainly, whatever the laivyers may do, the 
 law itself confidently expects of them a super- 
 human strength. It gives them no defence 
 
80 
 
 THE ENGLISH COMMON LAW. 
 
 but immaculateness. It offers them no shel- 
 ter but God’s temple, no robe but spotless 
 ermine ; and then, turning the page, it says, 
 “ A husband is expected to be vigilant, and so 
 prevent his own dishonor : ” as if his vigilance 
 and quick-wittedness could save the woman 
 whom his love had not blessed. 
 
 Ah ! these lawyers are but blind guides, 
 after all. Centuries of discomfiture and de- 
 feat have not sufficed to teach them how little 
 security is to be found in suspicion and scep- 
 ticism. If I do not want my groceries stolen, 
 I must leave my storeroom open. The very 
 servant who would not scruple to pick my 
 locks will know better than to pick that of 
 her own heart. “A thorough-bred woman,” 
 says Mrs. Reid, “ is good only so far as her 
 husband suggests and allows ; ” and, so long 
 as this is the standard, woman’s duplicity may 
 well match man’s utmost expectation, and 
 there is not a privilege of his open vice that 
 she will not secure by stealth. 
 
 There was a time when all the women at 
 
THE ENGLISH COMMON LAW. 
 
 81 
 
 the court of France blushed for one of their 
 number who unluckily made use of a hard 
 word in a proper place. In like manner, the 
 woman who reads law blushes to find herself 
 even tolerably sincere and modest. It is not 
 expected of her. Why has she never done 
 any of the bad things the law so confidently 
 predicts ? 
 
 All thinking people must see how easily we 
 turn from the consolidated law of ages, with its 
 false views, its untrue estimate of woman and 
 duty, to the question of the right of suffrage. 
 
 In 1848 and 1850, we used to hear a great 
 deal of three objections to conferring this 
 right upon women : — 
 
 1st, Its incompatibility with household care and 
 the duties of maternity. 
 
 2d, Its hardening effect on the character ; poli- 
 tics not being fit for woman. 
 
 3d, The inexpediency of increasing competition 
 in the already crowded fields of labor and office. 
 
 To these three points we gave short and 
 summary answers : — 
 
 6 
 
82 
 
 THE ENGLISH COMMON LAW. 
 
 1st, There are a great many women who will 
 never be mothers and housekeepers ; and, if there 
 were not, suffrage is no more incompatible with 
 maternity and housekeeping than it is with mer- 
 cantile life and the club-room. 
 
 2d, If it hardens women, it will harden men; 
 and the politics which are not fit for her are not fit 
 for him, nor will they become so till her presence 
 gives men a motive to purify them.* 
 
 3d, At the worst, competition could only go so 
 far, that a man and a woman would earn as little 
 together as the man now does alone. This would 
 be better than the present condition of things ; for 
 they would then be equal partners, and no longer 
 master and slave. Both would work, and neither 
 need pine. 
 
 These answers, whether logical or not, have 
 practically silenced the objections. We hear 
 no more of this nonsense. But, on the other 
 hand, a respectable daily says, “ As to the ab- 
 stract right of a woman to vote because she 
 is a human being and pays taxes, there is no 
 such abstract right in any human being, male 
 or female : the extent of the elective franchise 
 is, and must ever be, limited by considerations 
 of expediency.” 
 
THE ENGLISH COMMON LAW. 
 
 83 
 
 Then a distinguished review goes on to 
 say, u that while the question of suffrage 
 stands where it now does, so unsettled that 
 every Congress and Parliament discuss it 
 anew, we are glad that any thing should pre- 
 vent the discussion as to conferring on woman 
 a duty, the grounds of which are very vague 
 and undetermined so far as regards men ; ” 
 and a critic of Rosa Bonheur’s magnificent 
 pictures advises the “ sad sisterhood of wo- 
 men’s-riglits advocates to visit the exhibition, 
 and sigh to think how much one silent woman’s 
 hand outvalues for their cause the pathos 
 and the jeers of their unlovely platform.” 
 
 Such remarks as these are easily met. To 
 the first objector, who declares, although the 
 professed advocate of a republican govern- 
 ment, that there is no such thing as any abstract 
 right to vote, we reply, that in this particular 
 discussion we don’t care about abstract rights : 
 what we want is our own share of the tangible 
 acknowledged right which human governments 
 confer. If in England this right depends on 
 
84 
 
 THE ENGLISH COMMON LAW. 
 
 a property qualification, then we claim that 
 there the property qualification shall endow 
 woman as well as man with the right of suf- 
 frage. If in America it depends upon an 
 inalienable right to life, liberty, and the pur- 
 suit of happiness, then we demand that our 
 government recognize woman as so endowed, 
 and receive her vote. 
 
 To the reviewer we say also, If the grounds 
 of suffrage are vague and undetermined in 
 theory , they may remain so, so far as our inter- 
 ference is concerned. What we ask to share 
 is the steady right to vote, which has been 
 actually granted, and never disputed, since 
 our government was founded ; and sufficiently 
 pressed, we might add, that, if there is ever 
 any chance of limiting the right of suffrage, 
 we shall do all we can to secure its depend- 
 ence on a certain amount of education, in 
 preference to a certain amount of wealth. 
 
 As to the art critic, we thank him for call- 
 ing us the “ sad sisterhood.” We should be 
 sorry to be otherwise, when pleading for wo- 
 
THE ENGLISH COMMON LAW. 
 
 85 
 
 men before men ; sorry to find matter for 
 jesting in those purlieus of St. Giles and 
 Five Points and the Black Sea, beating up 
 remorselessly against these very doors, which 
 lie at the very heart of our effort. As to the 
 matter of going to see the Horse Fair and 
 the Highland Cattle, it will probably be found 
 to be a fact, that, in every city where those 
 great pictures have been exhibited, u women's- 
 rights women ” have been their earliest visit- 
 ors ; and, standing before the canvas, have 
 thanked God, with an earnestness the art 
 critic never dreamt of, for that silent woman’s 
 hand, that glorious woman’s life. It was not 
 necessary for him to remind us of what Solo- 
 mon had said so much better three thousand 
 years ago ; namely, that “ speech is silvern, 
 and silence is golden.” Nathless, silver is 
 still current in all markets ; and, God willing, 
 we are not ashamed to use it. 
 
 We intend to claim, in words, the right of 
 suffrage ; and why ? 
 
 Turning from that wretched estimate of 
 
86 
 
 THE ENGLISH COMMON LAW. 
 
 woman, and of marfls duty toward woman, 
 which the law-books have just offered us, 
 we claim the right of suffrage, because only 
 through its possession can women protect 
 themselves ; only through its exercise can 
 both sexes have equality of right and power 
 before the law. Whenever this happened, 
 character would get its legitimate influence ; 
 and it is just possible that men might become 
 rational and virtuous in private, if association 
 with women compelled them to seem so in 
 public. 
 
 It is noticeable, that every man disclaims 
 at his own hearth, and in the presence of wo- 
 men, whatever there is of disgraceful apper- 
 taining to political or other public meetings. 
 Somebody must be responsible for these 
 things ; and yet, if we are to believe wit- 
 nesses, nobody ever does them. The bare 
 fact of association must take all the blame. 
 
 The laws already existing prove conclu- 
 sively to woman herself, that she has never 
 had a real representative. What she seeks 
 
THE ENGLISH COMMON LAW. 
 
 87 
 
 is to utter her own convictions, so that they 
 shall redeem and save, not merely her own 
 sex, but the race. 
 
 That the right of suffrage would be a pro- 
 tection to women, we see from this fact, that 
 it would at once put an end to three classes 
 of laws : — 
 
 I. Those that protect her from violence. 
 
 II. Those made to protect her from fraud. 
 
 III. Those that protect society from the 
 passions of both sexes. 
 
 The moment woman began to exercise this 
 right, I think we should see moral significance 
 streaming from every statute. We should no 
 longer hear that seduction was to be sued 
 as “ loss of service : ” it would become loss of 
 honor to more than one. We should no longer 
 hear that consent or temptation excused it : 
 we should find that God demanded chastity 
 of both sexes, and had made man the guard- 
 ian of his own virtue. We should find, that, if 
 its punishment admitted of degrees, it should 
 be heaviest where a man committed it in defi- 
 ance or abuse of a positive trust. 
 
THE ENGLISH COMMON LAW. 
 
 Let us look at a single decision in the light 
 of these principles. Let us take the case of 
 Harris versus Butler, reported in the notes 
 to Davis’s Prize Essay. 
 
 A man named Harris had apprenticed his 
 daughter to a milliner named Butler, paying 
 as an entrance-fee a sum equivalent to a hun- 
 dred and fifty dollars. After a short time, the 
 girl was seduced by her mistress’s husband. 
 She became seriously ill, and was returned 
 to her father, who lost not only his hundred 
 and fifty dollars, but all the benefits of her 
 apprenticeship, and was obliged to provide 
 her w r ith board, medicine, and nursing. 
 
 Why the father became liable for the care 
 of his child under such circumstances does 
 not appear. Common sense would suggest 
 that the court might have required this at the 
 hands of the Butlers ; but, unfortunately, law 
 has very little to do with common sense. 
 
 The father brought an action against But- 
 ler : but the defence urged, that he could only 
 sue for “ loss of service ; ” that her “ services ” 
 
THE ENGLISH COMMON LAW. 
 
 89 
 
 were not his after she was apprenticed to Mrs. 
 Butler ; that Mrs. Butler and her husband 
 were “ one person in law ; ” and that, if But- 
 ler chose to deprive himself of her services 
 for his own ends, the law had no remon- 
 strance to make, no redress to afford. 
 
 The prosecution urged, that the “ care of 
 morals ” was one of the duties involved in the 
 very system of apprenticeship ; but the court 
 denied the claim, unless it were distinctly set 
 forth on the articles signed. 
 
 This is but one case out of hundreds acces- 
 sible to you all. The moment woman becomes 
 a law-maker, such records will be wiped out 
 of your life. They may make a certain sort of 
 show in your law-books ; but what have the 
 unbending laws of God to do with this “ one 
 person in law,” this plea for “ loss of service ”? 
 At the eternal bar, no man will dare to echo 
 that plea, no judge rehearse that verdict. 
 Such law rests not in the “ bosom of God ; ” 
 its voice chimes not in keeping with the har- 
 mony of his countless spheres. 
 
90 
 
 THE ENGLISH COMMON LAW. 
 
 You object to seeing women in Parliament. 
 English lords tell us that delicate matters have 
 to be discussed there, with which women 
 would hardly care to meddle. The natural 
 growth of society opens the area of all proprie- 
 ties. Delicate matters come to be discussed 
 in most households ; and it is reasonable to 
 suppose that they would be more delicately 
 and rationally discussed if they were some- 
 times publicly met. It is my opinion, that no 
 subject is fit for discussion at all that cannot 
 be discussed between men and women. It is 
 separating the sexes in such cases, that opens 
 the way to indecency. All great themes of 
 human thought and human virtue, men and 
 women ought to be trained to consider seri- 
 ously together ; and where better than in the 
 Congress or the Parliament ? Think only of 
 the debate which I have quoted on the New 
 Divorce Bill ! Could such a scene have taken 
 place in the presence of women? Eecur to 
 the trial of Queen Caroline ; or to that of the 
 Duke of York, when accused of conniving at 
 
THE ENGLISH COMMON LAW. 
 
 91 
 
 the corrupt sale of military commissions by 
 his mistress, Mrs. Clarke. 
 
 Under date of Feb. 16, 1809, Freemantle 
 writes : u The scene which is going on in the 
 House of Commons is so disgusting, and at 
 the same time so alarming, that I hardly know 
 how to describe it to you. Of course, while 
 this ferment lasts (and God knows when it is 
 to end), no attention will be paid to the bush 
 ness of the country.” 
 
 In these instances, high-bred men showed a 
 taste for low scandal ; battening day after day 
 on the same loathsome details, which the pre- 
 sence of a single woman must have checked. 
 Here was a woman, too, this very Mrs. Clarke, 
 somewhat debased and hardened, who had 
 never a seat in Parliament, who had never 
 dreamed of exercising the right of suffrage, 
 yet was quite equal, as the evidence showed, 
 to any political venality, striving in her way to 
 outdo the very jobbers of Downing Street it- 
 self ! Why should elections be scenes of 
 tumult, or parliaments free fields for imbecile 
 
92 
 
 THE ENGLISH COMMON LAW. 
 
 improprieties ? Why should not a peeress feel 
 herself as properly placed among her peers as 
 the Queen seated at her Council ? 
 
 We are not likely to withdraw our claim 
 while it is sustained by such a man as John 
 Stuart Mill, who, in his late essay on “ Political 
 Representation / 7 advises this extension of the 
 suffrage: “All householders, without distinc- 
 tion of sex / 7 he says, “ might be adopted into 
 the constituency, on proving to the registrars 
 officer that they have fifty pounds a year, and 
 can read, write, and calculate . 77 
 
 “ The almost despotic power of husbands 
 over wives / 7 Mr. Mill adds in his “ Essay on 
 Liberty / 7 “ needs not to be enlarged upon 
 here, because nothing more is needed for the 
 complete removal of the evil than that wives 
 should have the same rights, and should re- 
 ceive the protection of the law in the same 
 manner, as all other persons ; and because, on 
 this subject, the defenders of established injus- 
 tice do not avail themselves of the plea of 
 liberty, but stand forth openly as the cham- 
 pions of power . 77 
 
THE ENGLISH COMMON LAW. 
 
 93 
 
 The dedication of this “ Essay on Liberty ” 
 ought to be preserved in these pages ; for it is 
 full of historic significance : — 
 
 u To the beloved and deplored memory of her 
 who was the inspirer, and in part the author, of all 
 that has been best in my writings ; the friend and 
 wife, whose exalted sense of truth and right was 
 my strongest incitement, and whose approbation 
 was my chief reward, — I dedicate this volume. 
 
 Like all that I have written for many years, it 
 belongs as much to her as to me ; but the work, as 
 it stands, has had, in a very insufficient degree, the 
 inestimable advantage of her revision ; some of 
 the most important portions having been reserved 
 for a more careful re-examination, which they are 
 now never destined to receive. Were I but capa- 
 ble of interpreting to the world one-half the great 
 thoughts and noble feelings which are buried in 
 her grave, I should be the medium of a greater 
 benefit to it than is ever likely to arise from any 
 thing that I can write, unprompted and unassisted 
 by her all but unrivalled wisdom.” 
 
 I said that this dedication ought, for many 
 reasons, to be preserved in these pages. What 
 is better fitted than such a tribute to check 
 the jeering scepticism of the crowd as to the 
 
94 
 
 THE ENGLISH COMMON LAW. 
 
 ability and purity of the sex? What could 
 lay a better foundation for a better estimate 
 on the part of the law ? Necker, in his report 
 to the French Government, publicly awarded 
 to his wife the credit of the recent retrench- 
 ment in the expenses of the Government ; 
 Bowditch dedicated his translation of the 
 “ Mecanique Celeste ” to the wife who aided 
 him to prepare, and by her self-denial opened 
 a way for him to publish it : but where in the 
 records of the past shall we find such a tri- 
 bute offered by such a man, as honorable in 
 itself to the first political economist of our 
 time as it is a gracious adornment to the 
 name of the woman he loved? Does it not 
 promise in itself the dawning of a brighter 
 future for woman, when no “ sad sisterhood ” 
 shall be needed either to proclaim woman’s 
 rights or redress her wrongs?* 
 
 * In reprinting for his collected works Mrs. Mill’s article on 
 “ The Enfranchisement of Women,” Mr. Mill more lately says, 
 “ All the more recent of these papers were the joint production 
 of myself, and one whose loss, even in a merely intellectual 
 point of view, can never be repaired or alleviated. But the 
 
THE ENGLISH COMMON LAW. 
 
 95 
 
 About two years since (1858), the Stock- 
 holm “ Aftonblad,” a Swedish newspaper, 
 stated that “the authorities of the old uni- 
 versity-town of Upsal had granted the right 
 
 following essay is hers in a peculiar sense ; my share in it being 
 little more than that of editor or amanuensis. Its authorship 
 having been known at the time, and publicly attributed to her, 
 it is proper to state, that she never regarded it as a complete 
 discussion of the subject which it treats of; and, highly as I esti- 
 mate it, I would rather it remained unacknowledged, than that 
 it should be read with the idea, that even the faintest image can 
 be found in it of a mind and heart, which, in their union of the 
 rarest, and what are deemed the most conflicting excellences, 
 were unparalleled in any human being that I have known or 
 read of. While she was the light, life, and grace of every soci- 
 ety in which she took part, the foundation of her character was 
 a deep seriousness, resulting from the combination of the strong- 
 est and most sensitive feelings with the highest principles. All 
 that excites admiration, when found separately, in others, seemed 
 brought together in her, — a conscience at once healthy and ten- 
 der; a generosity bounded only by a sense of justice, which 
 often forgot its own claims, but never those of others ; a heart so 
 large and loving, that whoever was capable of making the small- 
 est return of sympathy always received tenfold; and, in the 
 intellectual department, a vigor and truth of imagination, a de- 
 licacy of perception, an accuracy and nicety of observation, only 
 equalled by her profundity of speculative thought, and by a 
 practical judgment and discernment next to infallible. So ele- 
 vated was the general level of her faculties, that the highest 
 poetry, philosophy, oratory, or art, seemed trivial by the side of 
 her, and equal only to expressing some part of her mind; and 
 there is no one of these modes of manifestation in which she 
 could not easily have taken the highest rank, had not her incli- 
 
96 
 
 THE ENGLISH COMMON LAW. 
 
 of suffrage to fifty women owning real estate, 
 and to thirty-one doing business on their own 
 account. The representative that their votes 
 assisted in electing was to sit in the House of 
 Burgesses. 7 ’ 
 
 nation led her for the most part to content herself with being the 
 inspirer, prompter, and unavowed co-adjutor, of others. 
 
 “ The present paper was written to promote a cause which she 
 had deeply at heart; and, though appealing only to the severest 
 reason, was meant for the general reader. The question, in her 
 opinion, was in a stage in which no treatment but the mo«t 
 calmly argumentative could be useful ; while many of the strong- 
 est arguments were necessarily omitted, as being unsuited for 
 popular effect. Had she lived to write out all her thoughts on 
 this great question, she would have produced something as far 
 transcending in profundity the present essay, as, had she not 
 placed a rigid restraint on her feelings, she would have excelled 
 it in fervid eloquence. 
 
 “ Yet nothing that even she could have written on any single 
 subject would have given an adequate idea of the depth and 
 compass of her mind. As, during life, she detected, before any 
 one else had seemed to perceive them, those changes of time 
 and circumstances, which, ten or twelve years later, became sub- 
 jects of general remark ; so I venture to prophesy, that, if mankind 
 continue to improve, their spiritual history for ages to come will 
 be the progressive working out of her thoughts, and the realiza- 
 tion of her conceptions.” 
 
 Such tributes, borne by noble men to noble women, are so 
 frequently hidden away in the heavy volumes which lie out of 
 ordinary reach, that I take pleasure in bringing them to support 
 my own plea; and I only wish I could as easily add to that in 
 the text the charming acknowledgments of Alexis de Toeque- 
 ville to his wife.. 
 
THE ENGLISH COMMON LAW. 
 
 97 
 
 This is the way the matter is to begin. By 
 and by, the interests of labor and trade will 
 force the authorities of Bristol and Manches- 
 ter, Newcastle and Plymouth, to do the same 
 thing; and, after women have gone on for 
 some twenty years electing members of Par- 
 liament, nobody will be surprised to find some 
 women sitting in that body. u But,” objects 
 somebody, “ if that ever happens, we shall 
 have women on juries, women pleading at the 
 bar, women as attorneys, and so on.” And 
 this is exactly what we want. Women are 
 very much needed on juries, and female crimi- 
 nals will never be tried by their peers until 
 they are there. It is very seldom that a cri- 
 minal case in which women are implicated is 
 brought forward, when women could not be of 
 immense service in clearing up evidence, and 
 showing to the male jurors on the panel the 
 absurdity or impossibility of some of the state- 
 ments. The recent instance of Miss Shedden, 
 who took up, at a moment’s notice, a case which 
 five well-feed lawyers of distinction declared 
 7 
 
98 
 
 THE ENGLISH COMMON LAW. 
 
 themselves unprepared to defend, might be 
 quoted in confirmation of our view. Mr. Rus- 
 sell said at the Liverpool Assizes lately, in a 
 case which involved some peculiar evidence, 
 “ The evidence of women is, in some respects, 
 superior to that of men. Their power of 
 judging of minute details is better ; and when 
 there are more than two facts, and something 
 be wanting, their intuitions supply the defi- 
 ciency . 77 And precisely the qualities which 
 fit them to give evidence, fit them to sift and 
 test it. Women often have occasion to smile, 
 sometimes sadly, sometimes mischievously, at 
 the verdicts passed upon their own sex. If 
 women were to enter into the practice of law, 
 or become law-makers, an immense change 
 would take place in all that relates to it. Ab- 
 surd technicalities would be swept off its 
 papers. One hundred words would no longer 
 do duty for one. Simple, common-sense forms 
 of expression would take the place of obso- 
 lete Latin and Norman- French. Daylight 
 would be let into indictments, and flaws would 
 soon be hard to find. No woman ever existed, 
 
THE ENGLISH COMMON LAW. 
 
 99 
 
 whose patience would stand, in cases where 
 meaning and law are evident, the absurd de- 
 lays of chancery courts, or the still absurder 
 “ filing of objections / 7 or “ defining of terms / 7 
 with which lawyers amuse a jury, and which 
 Sir Leicester Dedlock, we are told, considered 
 as the bulwarks of the English Constitution. 
 This impatience of woman might not be very 
 valuable, if she were to legislate alone ; but, 
 controlled by man 7 s conservative caution, it 
 will be of the greatest service. 
 
 We are perpetually met by the opposition 
 extended to any thing that is new. It ought 
 to be our object, therefore, to show, that for 
 woman to claim and possess the right of suf- 
 frage is by no means a new thing. It is easy 
 to show from the records of most nations, that 
 women held and exercised political power so 
 long as power was supposed to inhere chiefly 
 in property, and so long as women, either sin- 
 gle or in association, possessed property not 
 represented by men. Thus the suppression 
 of religious houses in England put an end to 
 the representation of abbesses. “ Truly, we 
 
100 
 
 THE ENGLISH COMMON LAW. 
 
 think more of money than of love / 7 said one 
 of the St. Simoniens : u we have more conside- 
 ration for bags of dollars than human dignity. 
 We emancipate women in proportion as they 
 are property-holders ; but ; in proportion as 
 they are women, our laws declare them infe- 
 rior to us . 77 It was only when the republican 
 idea had crept to a certain extent into monar- 
 chical governments themselves, that women 
 gradually dropped a recognized public influ- 
 ence which had depended on rank and wealth. 
 What men have to do is, not to reconcile them- 
 selves to a woman’s right to vote, — a right 
 acknowledged hundreds of years ago, which 
 is still covertly acknowledged when woman 
 means property, — but to reconcile themselves 
 to the idea that woman is a human being, and 
 that humanity has a right to vote. Wherever 
 governments decide that every individual has 
 a right to life, liberty, and the pursuit of hap- 
 piness, they must admit the right of the indi- 
 vidual woman to vote, or deny the fact of her 
 humanity. There is the dilemma. In support 
 
THE ENGLISH COMMON LAW. 
 
 101 
 
 of this statement, I should have shown you, 
 that in France, as early as the reign of Louis 
 XIV., the political rights of property were 
 respected in the persons of women. At the 
 present day, the remains of the old feudal and 
 communal system still secure a kind of politi- 
 cal influence to certain women in the provinces, 
 and often confer upon their husbands a right 
 of franchise. In the reign of Louis XIV., the 
 women who hawked and vended fish took up 
 the business of the u insolvent fishmongers/ 7 
 and managed so well, that they acquired 
 wealth, married their children into the first 
 families, and finally became an estate of the 
 realm. 
 
 “ Les Dames de la Halle/ 7 or “ Dames of the 
 Market/ 7 as they are called, have a corporate 
 existence ; and, if corporations have no souls , 
 they ordinarily possess franchises ! They 
 have their queen, their laws, and a language 
 peculiar to themselves. They take part in 
 revolutions, and send deputations to the foot 
 of the throne. Nor am I alluding now to long- 
 
102 
 
 THE ENGLISH COMMON LAW. 
 
 past feudal or re-actionary crises. Louis Na- 
 poleon treats theyu as civilly as he does the 
 clergy. When he was married, and when 
 the young prince was born, they went to the 
 Tuileries in their court-dress. Their prin- 
 cesses — and we are told that their blood royal 
 claims the higher privilege of beauty also — 
 their princesses took the front rank in the 
 procession, and offered bouquets to their im- 
 perial majesties. In response, Louis Napoleon 
 gave to them what he gives to all corporations, 
 — a very diplomatic speech. 
 
 I have told you what was granted at Upsal 
 in 1858. It is a curious fact, that, just at the 
 moment when this question of suffrage was 
 first agitated by the women of the United 
 States assembled in convention at Seneca 
 Falls in 1848, Pauline Roland and Madame 
 Moniot publicly claimed their civil rights in 
 Paris. Pauline went herself to the ballot, and, 
 when her vote was refused, published a pro- 
 test after the fashion of our tax-payers. Very 
 absurd English society found woman’s first 
 
THE ENGLISH COMMON LAW. 
 
 103 
 
 demand for the suffrage ; yet what English- 
 men refuse contemptuously to give to woman, 
 certain men of the mean sort, yet calling 
 themselves respectable, have not been ashamed 
 in that very country to borrow of her. Even 
 “ Blackwood ” helps out our argument, when 
 it says, in November, 1854, “I believe, Euse- 
 bius, I speak of a notorious fact, when I say, 
 that it is less than a century since, for election 
 purposes, parties were unblushingly married 
 in cases where women conveyed a right of 
 freedom, a political franchise to their hus- 
 bands, and parted, after the election, by 
 shaking hands over a tombstone, as an act of 
 dissolution of the contract, under cover of the 
 words , 1 Until death do us part.’ The men 
 
 * In an article in the “Edinburgh Weekly Journal” for Jan. 
 10, 1827, written by Sir Walter Scott, the following allusion is 
 made to abuses which had crept into the army in the middle of 
 the eighteenth century : — 
 
 “To sum up this catalogue of abuses, commissions were in 
 some instances bestowed upon young ladies , when pensions could 
 not be had. We know ourselves one fair dame who drew the 
 pay of a captain in the — — dragoons, and was probably not 
 much less fit for the service than some who at that period actu- 
 ally did duty.” 
 
104 
 
 THE ENGLISH COMMON LAW. 
 
 who looked calmly on this profane and absurd 
 fraud may well dread the moral influence of 
 woman on elections. As to the historical argu- 
 ment for England, ladies of birth and quality, 
 we are told, sat in council with the Saxon Witas. 
 The Abbess Hilda presided in an ecclesiasti- 
 cal council. “ In Wightfred’s great council at 
 Benconceld in 694,” says Gurdon in his “Anti- 
 quities of Parliament,” “the abbesses sat and 
 deliberated ; and five of them signed decrees 
 of that council, with the king and bishops : ” 
 and that illuminated prebendary of Sarum, old 
 Thomas Fuller, thus further chronicles the 
 same event: — 
 
 u A great council (for so it is titled) was held at 
 Becanceld (supposed to be Beckingham in Kent) 
 by Withred, King of Kent, and Bertuald, Arch- 
 bishop of Britain, so called therein (understand, 
 him of Canterbury), wherein many things were 
 concluded in favor of the church. Five Kentish 
 abbesses — namely, Mildred, Ethelred, >ZEte, Wil- 
 nolde, Heresinde — were not only present, but sub- 
 scribed their names and crosses to the constitutions 
 concluded therein ; and we may observe, that 
 their subscriptions are not only placed before and 
 
THE ENGLISH COMMON LAW. 
 
 105 
 
 above all presbyters, but also above that of Botred, 
 a bishop present in this great council. It seems it 
 was the courtesy of England to allow the upper 
 hand to the weaker sex, as in their sitting, so in 
 their subscription.” 
 
 King Edgar’s charter to the Abbey of Crow- 
 land, in 961, was with consent of the nobles 
 and abbesses who signed that charter. In 
 Henry the Third’s and King Edward the 
 First’s time, four abbesses were summoned to 
 Parliament; namely, of Shaftesbury, of Win- 
 chester, of Berking, and of Wilton. In the 
 thirty-fifth year of Edward the Third, were 
 summoned — by writ of Parliament, to sit in 
 person or by their proxies — Mary, Countess 
 of Norfolk ; Alienor, Countess of Ormond ; 
 Anna Despenser ; Philippa, Countess of March ; 
 Johanna Fitz water ; Agneta, Countess of Pem- 
 broke ; Mary de 'St. Paul ; Mary de Roos ; 
 Matilda, Countess of Oxford; Catharine, Count- 
 ess of Athol. 
 
 As to the offices which women can hold in 
 Great Britain, we have already quoted some- 
 thing from Mr. Higginson, in speaking of the 
 
106 
 
 THE ENGLISH COMMON LAW. 
 
 prohibitions of the law. Lady Packington’s 
 estate has probably, by this time, passed into 
 male hands : so she elects no more members of 
 Parliament. Those who have read the plea 
 of Lady Alice Lille, when she was forbidden 
 to speak by attorney, will find no great diffi- 
 culty in imagining that a woman could manage 
 a government debate. 
 
 Such women as have purchased or inherited 
 East-India stock have always had the privi- 
 lege of voting at the meetings of the company, 
 and so have assisted to govern that unhappy 
 country. In the provincial English towns, if 
 I may judge from the indirect testimony of 
 novels and newspapers, women appear to at- 
 tend all stockholders 7 meetings ; certainly those 
 held by the banks. In the United States, they 
 are notified, hut not expected to attend : a cool 
 kind of insult, which I wish some women 
 might astonish them by retaliating. If any 
 bank were established by, or had a majority of, 
 female stockholders, it would be quite easy to 
 notify men, without expecting them to attend ; 
 
THE ENGLISH COMMON LAW. 
 
 107 
 
 and the alternative of trusting their own pro- 
 perty to the judgment of women might possi- 
 bly open the eyes of men to the absurdity of 
 the present custom. 
 
 As we withdraw our eyes from the past, it 
 is natural to inquire, What late changes have 
 taken place in Great Britain? and what is the 
 strength of the reform tendency? I have 
 often said, yet I must repeat it here, that no- 
 thing has ever promised such noble usefulness 
 for woman, nothing has ever occurred to 
 change the popular estimate of her character, 
 in the same degree as the formation of that 
 out-of-door Parliament , — the Association for 
 the Advancement of Social Science. It of- 
 fers a position of entire equality to woman. 
 It encourages her to express herself in the 
 presence and with the sympathy of the wisest 
 men, and gives her an opportunity to speak to 
 the actual Parliament through her own influ- 
 ence exerted on its best members. It has been 
 well said (I think, by Mrs. Mill), that the very 
 best opportunities of education will be opened 
 
108 
 
 THE ENGLISH COMMON LAW. 
 
 to woman in vain, until she is practically in- 
 vited to turn them to account. Here, in this 
 association, is her first practical invitation in 
 Great Britain. God grant that she may un- 
 derstand the responsibility it involves, and 
 bear it well ! But the formation of this asso- 
 ciation in 1857 was preceded by other steps. 
 It was on the 13th of February, 1851, that a 
 petition of women, agreed to by a public meet- 
 ing at Sheffield, and claiming the elective 
 franchise, was laid before the House of Lords 
 by the Earl of Carlisle ; and, in July of the 
 same year, Mrs. Mill’s admirable article on 
 the “Enfranchisement of Women,” now be- 
 come commonplace on account of the exten- 
 sive and thorough use that has been made of 
 it, appeared in the “Westminster.” 
 
 The examination of Florence Nightingale 
 before a commission of inquiry bore witness 
 no less to the surpassing ability of the woman 
 than to the increasing value of such ability to 
 all governments. In connection with it, one 
 could not but smile at the distress felt by cer- 
 
THE ENGLISH COMMON LAW. 
 
 109 
 
 tain journals over a single mistake on the part 
 of the lady as to the proper title of a subor- 
 dinate officer. 
 
 In the month of March, 1856, the “ London 
 Times 77 published a petition to both Houses 
 of Parliament in behalf of an amendment of 
 the English property-laws. This petition was 
 signed by many women whose names are well 
 known and dear to us, — by the late Anna 
 Jameson, so well known to the world as an 
 accomplished critic in literature and art ; by 
 the wife and sister of the poet Browning,— 
 Elizabeth Browning herself, the first poet 
 among women, so far; by Bessie Raynor Parkes 
 and Matilda Hayes, the editors of the “ English- 
 woman’s Journal, the establishment of which 
 of itself constitutes an era in the progress of 
 human thought ; by Barbara Bodichon, the 
 well-known artist ; by Harriet Martineau, dis- 
 tinguished in political economy ; by Mary 
 Howitt, the womanly story-teller and ballad- 
 maker ; and Mrs. Gaskell, the author of “Mary 
 Barton. 77 The petition was supported in the 
 
110 
 
 THE ENGLISH COMMON LAW. 
 
 House of Lords by Lord Brougham, and in the 
 House of Commons by Sir Erskine Perry. 
 
 After the close of the session in April, 1857, 
 a dinner was offered to Lord Brougham in ac- 
 knowledgment of the distinguished ardor with 
 which he had pressed this bill, — the Married 
 Woman’s Property Act of 1857. This bill 
 did not apply to Ireland or Scotland, nor to 
 pre-existing contracts ; that is, to marriages 
 solemnized before the first day of January, 
 1858. It was not passed ; but a clause for the 
 protection of the earnings and savings of 
 married women was introduced into the New 
 Divorce Bill, and has already proved a bless- 
 ing to hundreds. This clause, however, ope- 
 rates only in cases of desertion, — a charge 
 easily evaded.* 
 
 * “ In the little brown duodecimo which contains the jottings 
 of ‘that famous lawyer, William Tothill, Esquire,’ there is the 
 following entry, of the date of James I. : — 
 
 “ ‘ Fleshward contra Jackson. Money given to a feme covert 
 for her maintenance, because her husband is an unthrift. The 
 husband pretends the money to be his ; but the court ordered 
 the money to be at her own disposal.” — London Quarterly , July, 
 1861. A very ancient germ of “ A Married Woman’s Property 
 Law.” 
 
THE ENGLISH COMMON LAW. 
 
 Ill 
 
 The New Divorce Bill passed in July, 1858 : 
 and, since then, the Divorce and Matrimonial 
 Causes, Act Amendment Bill, passed in July, 
 1858; and the Divorce Court Bill in August, 
 1859; both of these last having been made 
 necessary by the change in the law. It was 
 in April, 1858, that Mr. Buckle delivered his 
 lecture on “ Civilization;” an important contri- 
 bution to that estimate of woman, which is 
 beginning to act powerfully on all legislation. 
 The Lavr-Amendment Society also published 
 a report, urging a thorough reform of the 
 law. 
 
 In connection with the reforms effected in 
 the mother-country, it may be well to state, 
 that similar reforms are being effected in 
 Canada. Legislators there turn for their pre- 
 cedents to England ; but there can be no 
 doubt that the agitation in the United States 
 largely contributes towards these changes. 
 
 A Married Woman’s Property Act passed 
 the Council in May, 1858 ; but as these changes 
 are still in progress, and a progress much in- 
 
112 
 
 THE ENGLISH COMMON LAW. 
 
 terrupted by political fluctuations, it seems 
 hardly worth while to enter into their details. 
 
 In one respect, the statutes of Canada are 
 marked by a singular inconsistency. They re- 
 cord the only instance, within my knowledge, 
 in which a government distinctly forbids wo- 
 men to vote ; and almost the only instance of 
 a government conferring that right, even to a 
 limited extent. In the twelfth year of Victo- 
 ria, the Canadian Government passed a statute 
 in these words : “ No woman is or shall be en- 
 titled to vote at any election for any electoral 
 division whatever.” What spasm of autocra- 
 tic terror, what momentary rebellion against 
 their liege lady, inspired this act, we are left 
 uninformed. For the most part, in all coun- 
 tries, women wait to be told that they may 
 vote ; and their ineligibility is decided by the 
 introduction of the word “male,” or the popular 
 construction of the word “ citizen,” which, it 
 is quite evident, does not mean a woman. But 
 it was in Canada also that a distinct electoral 
 privilege was conferred by intention in 1850; 
 
THE ENGLISH COMMON LAW. 
 
 113 
 
 an intention, however, which indicated no en- 
 largement of views, nor desire of reform, nor 
 recognition of woman at her human value : it 
 was simply an intention on the part of the 
 Protestants to secure a little more political 
 power. Not humane , then, but interested mo- 
 tives, dictated the omission of the word “male” 
 in that section of the statutes which provides 
 for the election of school trustees. It was 
 desired thus to bring the influence of female 
 property- holders and Protestants to check 
 the Roman - Catholic demand for separate 
 schools. Three things made it easy for Cana- 
 dian women to vote under this provision : — 
 
 1st, The great degree of individual inde- 
 pendence seen everywhere in English-born 
 women, as compared with American. 
 
 2d, The respect felt, in all countries where 
 distinctions of rank exist, for the mere pro- 
 perty-holder. 
 
 3d, The political excitement of the local 
 Protestant Church, which sustained them to 
 the uttermost. 
 
 8 
 
114 
 
 THE ENGLISH COMMON LAW. 
 
 They have voted for ten years ; and a four- 
 years 7 residence among them was sufficient to 
 convince me, that no greater derangement 
 to society would occur if the full right were 
 conferred. In connection with English go- 
 vernment and English colonies, I ought to 
 speak of the government of Pitcairn’s Island. 
 It was the mutinous crew of her majesty’s ship 
 “ Bounty 99 that settled Pitcairn’s Island. Ad- 
 ams, the boatswain, was the father of the little 
 community, and drew up the simple code of 
 laws by which the islanders are still governed. 
 On Christmas Day, a magistrate and councillor 
 are elected for the ensuing year; men and 
 women over sixteen being allowed to vote. 
 The women assist in the cultivation of the 
 aground, and take no inconsiderable share in 
 the municipal debates. The fate of this expe- 
 riment is not yet decided ; so I have thought 
 it worth while to preserve the statement. 
 You will have already seen, that in England, 
 as elsewhere, so long as the right of suffrage 
 depended upon possession of property, upon 
 
THE ENGLISH COMMON LAW. 
 
 115 
 
 hard pieces of eight, or broad acres of land, 
 there was no dispute of woman’s privilege. 
 It is no new thing for woman to vote in Eng- 
 land: it is a very old thing. It is only a 
 question, whether she shall vote upon the 
 ground of her humanity. 
 
III. 
 
 TIIE UNITED-STATES LAW, AND SOME 
 THOUGHTS ON HUMAN RIGHTS. 
 
 “ Men often think to bring about great results by violent and unpre- 
 pared effort ; but it is only in fair and forecast order, ‘ as the earth 
 bringetb forth her bud,’ that righteousness and praise may spring forth 
 before the nations.” — John Ruskin. 
 
 TN passing last to the United States of Ame- 
 rica, one is tempted to ask, with Anna 
 Brewster when rehearsing the hardships of 
 Helvetian women, “ Can it be true, as the 
 advocates of despotic government often say, 
 that under no government are women so 
 harshly treated, so stripped of all independ- 
 ent rights, as under a republic ? In republi- 
 can Helvetia, the Yaudois peasant woman 
 leaves all household care, to stand, spring, 
 summer, and autumn, in her vineyard ; but 
 not a bunch of grapes can she gather for the 
 market, without her husband’s leave. He may 
 
THE UNITED-STATES LAW. 
 
 117 
 
 have loitered and smoked through every 
 sunny day, while she has dug and dressed 
 and watered ; but she may not sell one grape 
 to buy bread for her children. 7 ’ 
 
 And this is a picturesque statement of the 
 English common law, on which the common 
 law of the United States still rests in the 
 main, and on which it has rested entirely 
 until within the last ten years. 
 
 A few passages from Chancellor Kent will 
 indicate, — - 
 
 I. The estimate of woman formed by this 
 law, and the property-laws, built upon this es- 
 timate. 
 
 II. The laws which regulate divorce. We 
 shall have to consider, — 
 
 III. Woman’s general civil position ; and, — 
 
 IV. The right of suffrage. 
 
 Fortunately for us, Chancellor Kent talks 
 
 plain English. He tells us exactly what the 
 law means, and sets it forth as if it were 
 written to be understood ; which is not ex- 
 actly the case with all his predecessors. 
 
118 
 
 THE UNITED-STATES LAW. 
 
 As to the estimate of woman on which the 
 laws are based, we have, in connection with 
 what we have already quoted from English 
 law-books, the following statement : — 
 
 u But as the husband is the guardian of the wife, 
 and bound to protect and maintain her, the law has 
 given him a reasonable superiority and control over 
 her person ; and he may even put gentle restraints 
 upon her liberty, if her conduct be such as to re- 
 quire it. The husband is the best judge of the 
 wants of the family, and the means of supplying 
 them ; and, if he shifts his domicile, the wife is 
 bound to follow him.” — Kent’s Commentaries , 
 vol. ii. p. 180. 
 
 The best comment on this is found, I think, 
 in a story told by Mrs. Stowe, who says that 
 she once saw a little hut perched on a barren 
 ledge of the Alps, out of reach of human help, 
 and without pasture ; but a little below it 
 were stretches of sweet Alpine* grass, inviting 
 to eye and foot, and capable of affording sus- 
 tenance to goats and sheep. “ How long have 
 you lived here ? ” asked Mrs. Stowe of the old 
 woman. “ Above forty years.” - — “ And what 
 
THE UNITED-STATES LAW. 
 
 119 
 
 made you come so far up ? Don’t you like the 
 meadow?” — “I don’t know,” was the reply: 
 “ it was the mart’s notion .” 
 
 It is somewhat questionable, whether this 
 man would be the best judge of the wants of 
 his family, Chancellor Kent to the contrary 
 notwithstanding ; as also what might be his 
 idea of u gentle restraint,” in case the wife 
 had refused to “ shift her domicile.” As to 
 property, Kent proceeds : — 
 
 The general rule is, that the husband be- 
 comes entitled, on the marriage, to all the 
 goods and chattels of the wife, and to the rents 
 and profits of her lands ; and he becomes liable 
 to pay her debts and perform her contracts. 
 
 1. If the wife have an inheritance in land, 
 he takes the rents and profits during their 
 joint lives. He may sue in his own name for 
 an injury to the profits of the land ; but, if the 
 husband himself chooses to commit waste, 
 the wife has no redress at common law. 
 
 2. If the wife, at the time of her marriage, 
 hath an estate for her life, the husband be- 
 
120 
 
 THE UNITED-STATES LAW. 
 
 comes seized of such an estate, and is entitled 
 to the profits during marriage. 
 
 3. The husband also becomes possessed of 
 the chattels real of the wife ; and the law gives 
 him power, without her consent , to sell, assign, 
 mortgage, or otherwise dispose of, 'the same as 
 he pleases. Such chattels real are liable to be 
 sold on execution for his debts (voh ii. p. 133). 
 If he survive his wife, the law gives him her 
 chattels real by survivorship. 
 
 4. If debts are due to the wife before mar- 
 riage, and are recovered by the husband 
 afterward, the money becomes, in most cases, 
 absolutely his own. 
 
 On the other hand, the husband is, — 
 
 1st, Obliged to provide for his wife out of 
 his fortune, or her own that he has taken into 
 his custody, of what the court calls “ necessa- 
 ries/ 7 — these again, of course, to be depend- 
 ent on the u marts notion 77 ! and, — 
 
 2d, Becomes liable for her frauds and torts 
 during coverture, — the law understanding, 
 as well as a merchant, that it is useless to 
 sue a “ broken bench. 77 
 
THE UNITED-STATES LAW. 
 
 121 
 
 The indulgence of the law toward the wife, 
 we are then told, is founded on the idea of 
 force exercised by the husband : a presump- 
 tion only, which may be repelled. What this 
 indulgence is, we may well be puzzled to 
 guess, unless the phrase indicate that she 
 is not to be prosecuted for theft, where both 
 are guilty ; and yet, if the presumption that 
 he compelled her to steal be repelled , she 
 may be prosecuted, and found guilty. 
 
 A wife cannot devise her lands by will ; nor 
 can she make a testament of chattels, except 
 it be of those which she holds en autre droit , 
 without the license of her husband. It is 
 not strictly a will, then, only an appointment, 
 which the husband is bound to allow (vol. ii. 
 p. 170). 
 
 The laws are essentially the same in Penn- 
 sylvania, Virginia, North Carolina, South 
 Carolina, Kentucky, and New York ; in the 
 latter State, of course, only as applicable to 
 marriages contracted before the passage of the 
 new bill. It is the same in all the States, with 
 
122 
 
 THE UNITED-STATES LAW. 
 
 one or two Western exceptions ; because the 
 passage of a new law never annuls pre-existing 
 contracts. In consequence, practice becomes 
 contradictory and intricate ; and most law- 
 yers not only feel, but show , a great dislike to 
 new laws on that account. 
 
 In regard to marriage and divorce, Kent 
 says that the English practice was, not to 
 grant divorce for unfaithfulness on the part 
 of the husband ; and the early settlers of Mas- 
 sachusetts made the same distinction, creating 
 a difference at the very outset in the moral 
 responsibility of the two, fatal alike to happi- 
 ness and civilization. 
 
 In 1840, the policy of South Carolina con- 
 tinued so strict, that there had been no in- 
 stance, since the Revolution, of a divorce 
 pronounced by a court of justice, or an act of 
 the legislature. 
 
 In Massachusetts, the law was, that divorce 
 could only be had for criminality. In Ver- 
 mont, New Jersey, Kentucky, Mississippi, 
 and Michigan, divorce from “ bed and board ” 
 
THE UNITED-STATES LAW. 
 
 123 
 
 may be had for extreme cruelty ; and, in 
 Michigan, for wilful desertion for three years. 
 
 In Indiana it is rendered for any cause, at 
 the judgment of the court. 
 
 In Illinois, divorce may be had for the usual 
 causes, and for drunkenness or cruelty, or 
 such other cause as the court shall think 
 right; and, in such cases, the wife does not 
 lose her dower. These differences in statute 
 law indicate, one would think, a variety suf- 
 ficient to test in time all the theories of 
 reformers and experimentalists. 
 
 As to the consistency of the law, Poynter 
 says, — 
 
 “It is singular to see a marriage annulled on 
 account of the misspelling or suppressing of a name, 
 which would be held valid against the lasting mi- 
 sery of the parties.” 
 
 By cruelty is meant “ reasonable appre- 
 hension of bodily hurt.” Mere austerity of 
 temper, petulance of manners, rudeness of lan- 
 guage, a want of civil attention, even occa- 
 sional sallies of passion, do not amount to that 
 
124 
 
 THE UNITED-STATES LAW. 
 
 cruelty which the law can relieve. The wife 
 must disarm her husband by the weapons of 
 'kindness ! 
 
 I have shown you upon what estimate the 
 general common law of the United States is 
 based, as regards both property and divorce. 
 It is needless to say that this estimate is very 
 little to be preferred to that of older countries ; 
 but, when the reformers of our cause are 
 tauntingly asked what good they have done, 
 they may reply proudly, though they should 
 point to the changes of legislation during the 
 last ten years alone. Since 1850, the laws 
 have been changed in at least nineteen States. 
 The credit of this change should certainly rest 
 with the men and women of this reform ; for, 
 in every State, its sympathizing friends helped 
 to frame the new laws. 
 
 Whether justly or not, Rhode Island claims 
 the honor of leading the way in such changes. 
 In 1844, the Hon. Wilkins Updike introduced 
 a bill into her legislature, securing to married 
 women their property under certain regula- 
 
THE UNITED-STATES LAW. 
 
 125 
 
 tions. The step was in the right direction. 
 In 1847, Vermont passed similar enactments. 
 In 1848-9, Connecticut, New York, and Texas 
 followed; in 1850, Alabama ; in 1853, New 
 Hampshire. In 1855, Massachusetts passed 
 an act of a still more comprehensive kind. It 
 was essentially the same as that introduced 
 into her senate, in 1852, by the Hon. S. E. 
 Sewall. It was not wholly satisfactory to 
 those who prepared it, but was the best it was 
 thought possible to pass.* In 1856 and 1857, 
 
 * A law, apparently favorable to all widows, passed the 
 Massachusetts Legislature at the last session. It seems to me, 
 however, to bear the marks of a law passed for a special case. I 
 have made several applications in the proper quarters for infor- 
 mation concerning it, but have received nothing in return. 
 
 Chap. 164 . — An Act concerning the Provisions for 
 Widows in certain Cases. 
 
 Be it enacted , cfc., as follows : — 
 
 Sect. 1 . — When a man dies, having lawfully disposed of his 
 estate by will, and leaving a widow, she may, at any time within 
 six months after the probate of the will, file in the probate-office, 
 in writing, her waiver of the provisions made for her in the will ; 
 and shall, in such case, be entitled to such portion of his real and 
 personal estate as she would have been entitled to if her husband 
 had died intestate : provided , however, that, if the share of the per- 
 sonal estate to which she would thus become entitled shall exceed 
 the sum of ten thousand dollars, she shall, in such case, be en- 
 titled to receive in her own right the said amount of ten thousand 
 
126 
 
 THE UNITED-STATES LAW. 
 
 the Legislatures of Kentucky, Missouri, Indi- 
 ana, Ohio, Rhode Island, and Maine, altered 
 their property-laws, — Rhode Island advan- 
 cing somewhat on her first step.* * Wisconsin 
 
 dollars, and to receive the income only of the excess of said share 
 above said sum of ten thousand dollars during her natural life. 
 If she makes no such waiver, she shall not be endowed of his 
 lands, unless it plainly appears by the will to have been the in- 
 tention of the testator that she should have such provisions in 
 addition to her dower. 
 
 Sect. 2. — Upon application, made by the widow or any one 
 interested in the estate, the judge of probate may appoint one 
 or more trustees, to receive, hold, and manage, during the life- 
 time of the widow, the portion of the personal estate of her 
 deceased husband, exceeding ten thousand dollars, of which she 
 is entitled to receive under this act. 
 
 Sect. 3. — The twenty-fourth section of the ninety-second 
 chapter of the General Statutes is hereby repealed. 
 
 Approved April 9, 1861. 
 
 In a case on trial in the Superior Court to-day (Oct. 3, 1861), 
 Chief-Justice Allen ruled that the law of 1855, allowing married 
 women to do business on their own account, separate and apart 
 from their husbands, did not exclude them from entering into 
 business-partnerships with men other than their husbands. 
 
 * On the 7th of Apfil, 1861, the Ohio Legislature passed a 
 bill concerning the Rights and Liabilities of Married Women. 
 
 Sect. 1 conveys the impression, that all married women may 
 control their rents and issues of real estate belonging to them 
 at marriage, or separately received after. 
 
 Sect. 5, however, says “that this law shall not affect any 
 rights which may have become vested in any person at the time 
 of its taking effect; ” which, of course, cuts off from its bene- 
 ficial results all persons previously married. 
 
THE UNITED-STATES LAW. 
 
 127 
 
 and Iowa have followed ; and it is not likely 
 that any new States, unless they should be 
 Slave States, will repeat the old barbarisms. 
 
 I have given Rhode Island the precedence 
 she claims; but there are certain statutes of 
 the State of Illinois, as early in date as Janu- 
 ary, 1829, which deserve to be alluded to, on 
 account of their unusual liberality. 
 
 If married, and over the age of eighteen 
 years, a woman in Illinois may, in spite of her 
 husband, devise her real estate, and bequeathe 
 her personal estate, to any one for ever. 
 
 The wife may administer on her deceased 
 husband’s estate, in preference to all others, 
 
 It seems a perfectly simple matter to a woman to obviate the 
 difficulties and disappointments which arise in this way. 
 
 Let parties married under the old law, but desiring to benefit 
 by the new, go before a magistrate, and state their wish ; and 
 then let the decision in their favor be published in the regular 
 way. 
 
 Such a method would not benefit parties at variance ; but it 
 would benefit a large class of women engaged, or desiring to en- 
 gage, in independent business. 
 
 The Ohio law repeals a former law of 1857, which secured 
 to all married women the control of the sale or the disposal of 
 personal property exempt from execution : so its benefits are of 
 a nature by no means unmixed. 
 
128 
 
 THE UNITED-STATES LAW. 
 
 if she apply within sixty days. On her hus- 
 band’s death, she inherits one-half of his real 
 estate in fee-simple, absolute ; and the whole 
 of his personal estate, with her rights of 
 dower in addition. 
 
 The wife has not legally the first title to the 
 guardianship of her child on the demise of her 
 husband ; but she has it by a kind of comity , 
 the consent of public opinion and the courts. 
 
 In reference to the wife’s inheriting from 
 the husband, my correspondent, the Hon. 
 William H. Herndon, says, — 
 
 “You will perceive a difference in the two sec- 
 tions relating to the wife and husband as inheriting 
 from one another, favorable to the wife apparently. 
 In the twenty-second section you will find, that, in 
 case of the wife’s death without children, the hus- 
 band inherits one-half of her real estate in fee- 
 simple, absolute ; but nothing is said about her 
 personal. This is because the common law has 
 already given him her personal estate on her mar- 
 riage.” 
 
 So we see that the State of Illinois did not 
 quite divest itself of the barbarisms of the 
 common law. 
 
THE UNITED-STATES LAW. 
 
 129 
 
 In a later letter, Mr. Herndon continues : — 
 
 “ Our Illinois Legislature has this winter (1860- 
 61) enacted a law, allowing women (married wo- 
 men) all their property, — real, personal, mixed, — 
 free from all debt, contract, obligation, and control 
 of their husbands. This law puts man and woman 
 in the same position, as far as property-rights and 
 their remedies are concerned. This is right, — just 
 as it should be. For my life, I cannot see why 
 there should be any distinction between men and 
 women, when we speak of rights under government. 
 A woman’s rights are identical with a man’s. 
 Where he is limited, she should be ; where she 
 is limited, he should be.” * 
 
 In Rhode Island, the civil existence of the 
 husband and wife is but one ; and, though 
 the letter of the law considers her property 
 acquired by trade or inheritance as techni- 
 cally her own, still it is no longer under her 
 single control. If, as a wife, she sells mer- 
 chandise, the buyer becomes a debtor to her 
 husband and herself. If she makes a purchase, 
 
 * This expression of Mr. Herndon’s opinion gains additional 
 interest from the fact that he has been for seventeen years the 
 legal partner of Abraham Lincoln, now President of the United 
 States. 
 
130 THE UNITED-STATES LAW. 
 
 her note is good for nothing, unless her hus- 
 band’s signature is affixed to it. He can 
 dispose of the whole of her personal estate, 
 unless the buyer has been previously notified 
 by her, in writing, that the property is exclu- 
 sively her own. Her real estate the husband 
 cannot sell : but even of this she cannot dis- 
 pose by will ; so, perhaps, it might as well be 
 sold. The absurdity becomes ludicrous, when 
 we remember that the law makes her compe- 
 tent to devise any number of millions, so long 
 as it is invested in bank-stock or merchan- 
 dise. 
 
 In the State of Vermont, there are three 
 peculiar provisions:- — 
 
 First , If the husband abscond without 
 making sufficient provision for his wife, she 
 is permitted (!) to use her own property and 
 earnings, or the earnings of her minor chil- 
 dren, to secure a support. This permission 
 indicates the tender mercies of the common 
 law, and reminds us of the Helvetian peasant- 
 
 woman. 
 
THE UNITED-STATES LAW. 
 
 131 
 
 Second , She is exempted from personal re- 
 straint during the pendency of a divorce suit. 
 
 Third , A mother and her illegitimate child 
 may inherit from each other. 
 
 A married woman may devise her real es- 
 tate, and it is exempt from attachment for the 
 sole debts of her husband. She may have 
 her husband’s life insured, the insurance to be 
 made payable to her or her children. If he 
 should be put into the penitentiary, she may 
 transact business as if she were a feme sole . 
 
 The laws of inheritance are liberal ; and the 
 common law prevails by statute, when not 
 repugnant to any recorded statute. 
 
 In Connecticut, in 1855, all the real estate 
 owned at the time of marriage, or subse : 
 quently inherited by the wife, rests absolutely 
 in her. All her personal estate passes to her 
 husband ; but all that she may afterward 
 receive remains in her right, her husband 
 being only her legal trustee. Her earnings 
 are subject to his trusteeship, and nothing 
 more. She is the guardian of her own chil- 
 
132 
 
 THE UNITED-STATES LAW. 
 
 dren ; and the court always confirms this 
 right, unless she is incapacitated. In case of 
 divorce, the father is entitled to the children, 
 unless objection is made. On the decease of 
 the husband childless, one-half of his personal 
 estate goes to the wife, and a life-interest in 
 one-third of the real ; or the whole, if it be 
 needed for her support. 
 
 In New Hampshire, the common law pre- 
 vails for the most part. What express enact- 
 ments she passed in 1853 seem to refer rather 
 to making the position of a deserted wife 
 equivalent to that of a feme sole than any 
 thing else. 
 
 As regards Massachusetts, it is common to 
 say that the legislation of 1855 leaves very 
 little to be desired, beside the right of suf- 
 frage ; but a keen eye still detects more than 
 one shortcoming. The custody of the wife’s 
 person still vests in the husband. 
 
 With reference to the guardianship of chil- 
 dren, the custom is in advance of the law; 
 while her power to make a will is so care- 
 
THE UNITED-STATES LAW. 
 
 133 
 
 fully guarded, that it might as well be surren- 
 dered. 
 
 A married woman in Massachusetts can 
 make no contract to bind her, except one 
 strictly relating to her trade, business, or pro- 
 perty. She cannot, for instance, indorse a 
 note, or be a surety for another person in 
 any way. 
 
 In Maine, since 1857, a wife may hold the 
 wages of her own labor. 
 
 In Ohio, at the same date, the law gave this 
 right only under conditions . Long before any 
 such changes took place, however, the current 
 of public opinion often forced courts to decide 
 against the common law, and in accordance 
 with equity, — equity not technically, but 
 divinely, considered. 
 
 Judge Graham, of the Court of Common 
 Pleas in Perry County, Penn., made such a 
 decision in a suit where a wife claimed return 
 of earnings loaned by her to her husband, 
 and accumulated after marriage. The legal 
 question brought before Judge Graham was, 
 
134 
 
 THE UNITED-STATES LAW. 
 
 “ Can a wife maintain a suit against her hus- 
 band ? ” He decided that she could legally 
 hold him to a contract of the kind under con- 
 sideration ; and a verdict w r as rendered for 
 the woman, in the sum of $2,508. 
 
 In August, 1859, Mrs. Dorr put in a claim 
 for $40,000 on her husband’s estate, in the 
 Court of Insolvency in Worcester County. 
 The court objected to entertaining the claim 
 until after the choice of an assignee. The 
 hearing was never completed ; some private 
 adjustment taking its place. The claim was 
 said to be the first of the kind in the Com- 
 monwealth. 
 
 We come now to the consideration of the 
 Property Bill, passed in the spring of 1860 by 
 the State of New York. Not only as the 
 latest act of specific legislation, but as the 
 most complete provision ever made by any 
 government to outwit the common law, it 
 demands our attention. After it was passed, 
 a deficiency relating to the rights of guardian- 
 ship was discovered, and a supplement was 
 
THE UNITED-STATES LAW. 
 
 135 
 
 added. By these two acts, the “ New-York 
 Tribune ” tells us that at least five thousand 
 women in that State are redeemed from pau- 
 perism, and established in peaceful homes. 
 
 But the supplement bears on one important 
 point, which should be alluded to. According 
 to the common law, as I showed in referring to 
 England, a daughter owes service only to her 
 father. The mother, who bore and nursed 
 her ; who has trained her up, it may be by 
 painful sacrifices, to habits of propriety and 
 thrift, — has no claim upon her service, even 
 in her minority. By conferring on the mo- 
 ther, in case of the father’s decease, all the 
 rights, remedies, privileges, and responsibili- 
 ties in law appertaining to the father, the new 
 act meets the difficulty. 
 
 Before quitting the subject, we cannot re- 
 frain from alluding to the fact, that, as early 
 as 1849, the State of New York had passed a 
 qualified measure in regard to property ; and 
 directing your attention to the manifest truth, 
 that every imperfect act of legislation consti- 
 
136 
 
 THE UNITED-STATES LAW. 
 
 tutes a new set of exceptions to general rules, 
 and very undesirably complicates legal prac- 
 tice. 
 
 If reforms are not to be unpopular, they 
 should be simple and complete.* 
 
 In commenting on the passage of these bills, 
 advocated by Mrs. Stanton before the com- 
 mittees of the Assembly and the Senate, the 
 “New-York Tribune ” says, — 
 
 u Mrs. Stanton talked forcibly. It is needless 
 for me to say that she talked earnestly of woman’s 
 sufferings, — sweetly of her endurance, eloquently 
 of her rights. When she talked of her right to be 
 protected in the enjoyment of her property, of her 
 right to be released from the bondage of an ill- 
 assorted marriage, she was listened to with marked 
 favor. She pleaded these demands with the feel- 
 ing of a true woman ; and she carried the convic- 
 tion, that she was not asking more than policy, as 
 well as justice, demanded should be conceded. 
 When she claimed that her voice should be heard 
 on the hustings, and her vote be received at the 
 ballot-box, she was earnest and eloquent and plau- 
 sible ; but she must have felt that she was not 
 convincing her audience, and she did not.” 
 
 * See note, pages 126, 127. 
 
THE UNITED-STATES LAW. 
 
 137 
 
 Here the single word plausible vitiates, as 
 cunning reporters well know how to do, the 
 whole effect of the sentence. Far more rea- 
 sonably, the u Tribune 77 might have said she 
 was earnest, eloquent, and sensible ; and so 
 have spurred its readers to thought instead 
 of ridicule. His criticism, however, launches 
 fairly our last subject of discussion. It is 
 needless to say, that nowhere in the United 
 States has woman the full power of suffrage. 
 
 In New Jersey, women formerly possessed, 
 and often exercised, this right. By the Con- 
 stitution, adopted July 2, 1776, the privilege 
 of voting was accorded to all inhabitants, of 
 full age and clear estate, who had resided for 
 a certain time in the country, and who had 
 fifty dollars in proclamation-money. 
 
 In 1790, a Quaker member of the Assembly 
 had the act so drawn as to read “ he or she. 77 
 Until 1807, women often voted, especially in 
 times of great political excitement : at such 
 times, for the most part, “ under influence, 77 
 we may presume. Many voted in the presi- 
 
138 
 
 THE UNITED-STATES LAW. 
 
 dential contest of 1800 ; and a newspaper of 
 that period thanks them for unanimously sup- 
 porting John Adams in opposition to Jefferson. 
 So they were supposed, at times, to act inde- 
 pendently. At an election in Hunterdon 
 County in 1802, the ballots of some colored 
 women elected a member of the legislature. 
 Probably this fact, by stimulating the local 
 prejudice against color, and the fading-out of 
 all aristocratic distinctions, which left no pro- 
 perty qualifications on the statute-book, led 
 to a change ; for, in 1807, an act was passed, 
 limiting the right of suffrage to u free white 
 male citizens of twenty-one years.” 
 
 In later times, committees of intelligent 
 men, in Wisconsin, Michigan, and Ohio, have 
 reported in favor of granting to women the 
 right of suffrage ; but the question was lost in 
 the ballot which followed. 
 
 If the constitution prepared for Kansas 
 should be accepted by the people, single wo- 
 men will be empowered to vote there. In 
 Nebraska, the lower house passed a vote, con- 
 
THE UNITED-STATES LAW. 
 
 139 
 
 ferring the privilege ; but it was too late in 
 the session for the question to come before the 
 upper branch. 
 
 In 1858, a proposition to amend the Consti- 
 tution of the State of Connecticut, so as to 
 extend the franchise to women, received 
 eighty-two votes in the House of Representa- 
 tives. It was defeated by a majority of forty- 
 five. In 1852, the Kentucky Legislature, in 
 providing for the election of school-trustees, 
 enacted that “ any widow, having a child be- 
 tween six and eighteen years, may vote in 
 person or by proxy.” 
 
 A provision thus limited by public opinion 
 and prejudice would probably have very little 
 force. I have understood that such a pro- 
 vision has taken effect in some parts of Michi- 
 gan, and it has also been recommended to 
 the State of Massachusetts. Very early in the 
 history of our Government, its inconsistencies 
 became a matter of comment among women 
 themselves. How could it be otherwise ? 
 How can she be said to have a right to life , 
 
140 
 
 THE UNITED-STATES LAW. 
 
 who has never consented to the laws which 
 may deprive her of it ; who is steadily refused 
 a trial by her peers ; who has no voice in the 
 election of her judges ? How can she be said 
 to have a right to liberty , whose person, if not 
 yet in custody, almost inevitably becomes so 
 on her maturity ; who does not own her own 
 earnings ; who can make no valid contract, 
 and is taxed without representation ? How 
 can that woman be said to possess either the 
 right or the reality of happiness , who is de- 
 prived of the custody of her own person, of 
 the guardianship of her children, of the right 
 to devise or share her property ? 
 
 The government is tyrannical which leaves 
 a single citizen in this predicament. What is 
 to be said of a government which enforces it 
 upon half its subjects? 
 
 It is not strange then, that, half in jest, half 
 in earnest, the wife of John Adams wrote to 
 him in 1776 to ask if it “were generous in 
 American men to claim absolute power over 
 wives at a moment when they were emanci- 
 
THE UNITED-STATES LAW. 
 
 141 
 
 pating the whole earth.” Nor was it strange, 
 that, in a more serious mood, Hannah Corbin 
 of Virginia should write to her brother, Rich- 
 ard Henry Lee, on the same subject. 
 
 The American Colonies were struggling 
 against the mother -country, on the ground 
 that taxation and representation should be 
 inseparable. 
 
 The “ National Intelligencer ” has to con- 
 fess, when it tells the story, that it was not 
 strange if “ strong-minded ” women of that 
 era, finding themselves taxed , should wonder 
 why they could not vote. 
 
 Mr. Lee wrote from Chantilly in reply, 
 March 17, 1778: — 
 
 “ I do not see,” he says, u that any thing pre- 
 vents widows, having large property, from voting, 
 notwithstanding it has never been the case either 
 here or in England. Perhaps it was thought unbe- 
 coming for women to press into tumultuous assem- 
 blies. . . . Perhaps it was thought, that, as all 
 those who vote for taxes must bear the tax, none 
 would be imposed, except for the public good. 
 
 “For both the widow and the single woman,” 
 he continues, “ 1 have the highest respect ; and 
 
142 
 
 THE UNITED-STATES LAW. 
 
 would, at any time, give my consent to secure to 
 them the franchise, though I do not think it would 
 increase their security. 
 
 u The Committee of Taxation,” he adds, “ are 
 regularly chosen by the freeholders and housekeep- 
 ers ; and, in the choice of them, you have as legal a 
 right to vote as any person.” 
 
 Mr. Lee thinks, that, in a few minutes’ con- 
 versation, he could “ content 77 his sister upon 
 the subject; but eighty years have passed 
 away, and the question is still unsettled. 
 
 What he calls a u woman’s security 77 is 
 proved to be no security, even in the small 
 matter of money ; for men are constantly im- 
 posing taxes, the burden of which they are 
 never to bear. As I have shown, in treating 
 of labor, what position women hold toward 
 the State in the matter of employment, I will 
 not repeat the statement here. Let these 
 pages bear no other burden than that of wo- 
 man’s civil rights, - — u woman’s rights , 77 - — a 
 phrase which we all hate ; which soils the lips 
 that use it ; which women speak with such 
 unction as a slave might clank his chains ! 
 
THE UNITED-STATES LAW. 
 
 143 
 
 Soils the lips ? Not because it is a phrase 
 which stirs the ridicule and the contempt of 
 the weak-minded ; not because you consider 
 it only the second term of the Bloomer equa- 
 tion : but because the necessity to use it shows 
 how little has yet been done ; shows that men 
 still dwell on distinctions of sex, in preference 
 to identities of duty ; that women are play- 
 things still in the popular estimate, — crea- 
 tures of the nursery and the drawing-room, 
 but not angels of God, joint-heirs of immor- 
 tality. 
 
 We have not laid a secure foundation for 
 any statement on this subject, unless we have 
 made it clear that “ woman’s rights ” are iden- 
 tical with “ human rights ; ” that what men 
 do for women, they do in far wider measure 
 for themselves ; that no father, brother, or 
 husband, can have all the privileges ordained 
 for him of God, till mother and sister and wife 
 are set free to secure them according to in- 
 stinctive individual bias. 
 
 The subject would have no interest for me, 
 
144 
 
 THE UNITED-STATES LAW. 
 
 if it were but a selfish clamor of one class for 
 advantages over another ; but it does interest 
 me, — interest beyond all earthly debate, — 
 because, in its evolution, there unfolds also the 
 highest interest of our common humanity. 
 
 That public opinion has been somewhat 
 conquered, the reception given to women in 
 the lyceum is alone sufficient to show. When 
 a woman of good social standing struggles 
 with convention on the one hand, and womanly 
 affection on the other, she still stands on the 
 platform somewhat as she did at the stake; 
 but, on the other hand, the awakening public 
 interest has nurtured a class of women, who 
 owe all that they have and are to the plat- 
 form itself. 
 
 With no oppressive restrictions in their 
 circumstances,— endowed with strong good 
 sense and a vigorous talent, — they have won 
 their way to the public esteem ; and are 
 stronger and healthier than most women, only 
 because they have had an object for life and 
 thought to grasp. 
 
THE UNITED-STATES LAW. 
 
 145 
 
 What will most help women in the matter 
 of labor, and, through labor, to their “ civil 
 rights / 7 is a new conception of the dignity of 
 labor on the part of the educated classes, men 
 as well as women. 
 
 Harriet Hosmer comes back from Rome to 
 queen it over our men ; Rosa Bonheur drives 
 a tandem of Flemish horses through a square 
 of canvas, and over the very necks of her 
 critics : but we want women who shall turn 
 the trades into fine arts. Do you smile at the 
 expression ? It is legitimate. France has 
 already answered my demand. A finer statue 
 than the “Moses” of Michael Angelo would be 
 one womanly model of patient thoroughness. 
 A finer picture than the glowing pencils of 
 Titian and Claude ever fused into a canvas 
 would be the prospective elevation of manual 
 labor. 
 
 The fine arts are already obedient to wo- 
 man’s will. To what woman is it reserved to 
 make the useful arts pay tribute ? Dependent 
 upon the “ right to labor / 7 as we have al- 
 io 
 
146 
 
 THE UNITED-STATES LAW. 
 
 ready seen, is “ woman’s civil equality.” If 
 all the fields of human labor are thrown abso- 
 lutely open (and you admit that they ought to 
 be) ; if women enter and grow wealthy there- 
 in ; if every second woman, for instance, were 
 an intelligent property-holder, — is it credible 
 that she, or her husband for her, would remain 
 contented in her present minority ? Would 
 she not want a seat in the legislature to pro- 
 tect her property, a vote to control appropria- 
 tions and taxes ? There are no revolutionists 
 like the industrial classes. 
 
 It was the discontent of merchants and 
 artisans which hunted Charles Stuart to the 
 block, and paved the way for English freedom. 
 It was the discontent of trade, a long-enter- 
 tained moral disgust, culminating in indignant 
 contempt at a Stamp Act, which secured 
 American independence , — I wish we could 
 say, American freedom as well. Create, then, 
 a class of wealthy working women, you who 
 are ambitious of a female franchise, and society 
 will be forced to give you your desire. 
 
THE UNITED-STATES LAW. 
 
 147 
 
 Wendell Phillips says, that, when woman is 
 once brought to the ballot-box, men will cry 
 out, “ Educate her ! 77 in self-preservation. If 
 this be true (and I am not sure that it is ; for 
 a great many popular elections are at this 
 moment carried in the Middle and Southern 
 States, to come no nearer home, by the ^edu- 
 cated class, partly by the dram-shops indeed), 
 — if this be true, however, it is a “ poor rule 
 which does not work both ways ; 77 and Tve 
 may go farther than Mr. Phillips, and say, he 
 will also cry out, u Give her something to do ! 77 
 that she may understand the interests of pro- 
 perty, and be qualified to plead for them. Mr. 
 Phillips plants himself upon the right of suf- 
 frage, and goes back to secure education and 
 free labor, for State reasons. He has every 
 right to do it ; but, on the other hand, we may 
 rest upon our undoubted right to education, 
 and go forward , with safe, strong steps, to 
 claim the right of suffrage. When a majority 
 of women find the means of thorough educa- 
 tion open, then a much greater number will 
 
148 
 
 THE UNITED-STATES LAW. 
 
 seek actual employment, and immediately the 
 interests of property will compel them to 
 clamor for suffrage. Do not misunderstand 
 me. It is not a nation of paid underlings, of 
 ever so intelligent clerks and apprentices, 
 men or women, that will control the springs 
 of government, and overthrow institutions as 
 well as prejudices, if they stand in their way: 
 it is the heads of firms, the movers in great 
 undertakings, the proprietors of mills, the 
 builders of ships, the contractors for supplies, 
 persons conversant with large interests, and 
 quick to see their jeopardy, which, as women 
 no less than men, must secure the elective 
 right. 
 
 How I should rejoice to see a large Lowell • 
 mill wholly owned and managed by women ! 
 What is to make it possible ? — only, that the 
 unoccupied women of wealth and rank, at this 
 moment in the Commonwealth, should combine 
 to build or buy such a mill. Suppose it well 
 managed, representing ultimately a million of 
 dollars : do you believe it would long remain 
 
THE UNITED-STATES LAW. 
 
 149 
 
 without political power? Just as the testy 
 trade of Upsal demanded the franchise for 
 its eighty-one women, so would the Lowell 
 mill. 
 
 Every year, these ten years, our sturdy 
 friend Dr. Hunt has sent up her protest to 
 the city assessors. She has not quite had the 
 heart, as I wish some woman had, to let them 
 sell her household gods over her head, for 
 non-payment of taxes ; but the City Govern- 
 ment sits as serene and patient under her 
 inflictions as if she had never spoken. Her 
 protests probably go back to the pulp of the 
 paper-mill ; and, but for the newspaper, we 
 should never know that they were written. 
 But five thousand female property -holders, 
 calling their own caucus, and storming the 
 City Hall with well-concerted words, would 
 compel any government to listen ; would com- 
 pel committees to sit, and departments to act. 
 Let it be your first duty, then, to add to the 
 number of intelligent female workers. 
 
 Last summer, I heard one of our friends 
 
150 
 
 THE UNITED-STATES LAW. 
 
 say, that the reason that men were not willing 
 that women should enter medical societies, 
 and receive medical diplomas, was, that they 
 were unwilling to be detected in their own 
 double-dealing and malpractice. I should not 
 be willing to indorse a statement so broadly 
 made. Mean men may justify it : but the men 
 I have known, the men who have been at 
 once my inspiration and my strength, — these 
 men were not mean ; yet among them even the 
 bravest doubted, at first, as to the expediency 
 of our discussion. 
 
 These men have felt a tender reverence for 
 moral purity in woman. They have seen la- 
 borers of the lower class fall as if smitten by 
 a pestilence. They had not faith to save the 
 world at such a cost. From the malpractice 
 and guilty dread of mean men, then, from the 
 sensitive horror of the noblest, let us learn, at 
 least, that the duty woman owes the State is 
 a moral duty. A full understanding of this 
 will give her courage to press her claims. It 
 is the power of conscience and love which 
 
THE UNITED-STATES LAW. 
 
 151 
 
 she is to bring to bear on the ballot-box, and 
 which is to mould, with her aid, questions 
 and interests hitherto untouched by any higher 
 impulse than the love of gain. 
 
 I cannot leave this statement of human 
 rights, without claiming for woman one right 
 of which men very commonly deprive her ; in 
 behalf of which society makes no clamor, and 
 about which the most radical reformers say 
 very little. I mean, woman’s right to find 
 man in his proper place, as counsellor and 
 friend. 
 
 As father , to find him interested, equally 
 with his wife, in the spiritual custody and 
 training of his daughters ; giving thus some 
 portion of each day to imbuing young wo- 
 manly souls with manly strength. 
 
 As brother, to find in him wise respect for 
 womanhood, and helpful free communion. 
 
 As husband, to find him, unless there is 
 manifest interposition of Providence, always 
 at the head of his family, always the support 
 and counsellor of his wife, as she in turn is 
 
152 
 
 THE UNITED-STATES LAW. 
 
 to be his ; making his love her shelter, his 
 strength her dependence, his experience her 
 guide, his manliness the complement of her 
 womanliness. 
 
 As a son , to find him always anxious and 
 ready to minister, provident to think, patient 
 to bear, and willing to act ; never shirking, 
 from idleness, the duty which an active mo- 
 ther does not shrink from bending, perhaps 
 breaking , beneath. 
 
 Society sets man free from every conceiva- 
 ble family duty, without a word. On the other 
 hand, it binds women down to them with cords 
 of iron, and is pitiless if a single one be snapped. 
 I do not ask society to require less of woman, 
 out more of man. There is an immense amount 
 of cant, intentional and unintentional, talked 
 upon this subject. Last January, I heard one 
 of our wisest and best public teachers speak 
 upon the constitution of the family; and, when 
 he had spoken whole pages of solid sense, 
 he said this foolish thing, — that the life of 
 the family rested in the mother ; that, when 
 
THE UNITED-STATES LAW. 
 
 153 * 
 
 she died, the children must scatter, the father 
 could not hold them alone, but that the fa- 
 ther might be faithless or dissipated, might 
 abide in foreign countries, might wander for 
 years a stranger, and still the family sacred- 
 ness be unbroken. I do not believe it. I 
 protest against such a view of the family, as 
 a great public evil, and one which no public 
 teacher should strengthen by any heedless or 
 sentimental words. 
 
 No man has a right to ask any woman to be 
 his wife, who means to sacrifice her life to his 
 own love of business or pleasure or vagrancy; 
 who does not mean to stand strong at her side 
 till death. I speak for the heart of all wo- 
 manhood when I say, that no good woman 
 would ever accept such an offer, if she sup- 
 posed she were to be idly left to fulfil its 
 duties alone. If God had intended to rear 
 women independent of manly influence, he 
 would never have constituted the family. It 
 is because every woman needs every man 
 that its laws are absolute. If the physical 
 
154 
 
 THE UNITED-STATES LAW. 
 
 legitimacy of the family depend upon the mo- 
 ther, the spiritual legitimacy depends upon 
 the holy faithfulness of the father. When 
 death or sickness or imperative duty takes her 
 beloved ones from her, God sends to woman 
 the Comforter, who helps her to bear and do 
 her double duty. Yet even this angel is born 
 of a voiceless sorrow. It was in recognition of 
 this human need, as much as of the divine 
 love, that Theodore Parker was accustomed 
 to pray to Him who is both Father and Mother. 
 
 Do you object, that, under the present con- 
 stitution of society, man cannot find time for 
 this fidelity? When woman becomes an ac- 
 tive worker, adding to the resources of the 
 household, man is set free from a portion of 
 his care. The future offers him ample time ; 
 the present, more than he uses. I wish I 
 could see him as anxious to make acquaint- 
 ance with his own young children as with 
 the gay society of his neighborhood. 
 
 The actual guardianship of society is now 
 thrown into woman’s hands. It does not 
 
THE UNITED-STATES LAW. 
 
 155 
 
 belong to her : it belongs to men and wo- 
 men* 
 
 Individual men shrink from the idea of 
 being “governed by their wives.” From tra- 
 
 * This passage was originally prompted by some reflections 
 on the changes which have occurred in domestic life in Boston. 
 
 Here the family, even among those of the highest social rank, 
 had once a sacred simplicity pleasant to remember. Men were 
 accustomed to take their three meals with their wives and chil- 
 dren. The latest dinner-hour was two, p.m.; and suppers were 
 unheard of. The evening party began at seven ; and young girls 
 went freely and uninvited from house to house, with their needle 
 or their book. 
 
 How greatly all this is changed, my readers, many of them, 
 feel still more deeply than I; and, with this change, the forma- 
 tion of “clubs” of various kinds has brought about others far 
 more important. 
 
 A young married lady of rank and fashion was lately lamenting 
 to me the isolation of husbands and wives, fathers and children, 
 consequent upon club-life. 
 
 “ But,” she concluded with a sigh, “if my husband had no 
 club, he would. expect a hot supper for a friend two or three 
 times a week; and how could I ever accomplish that?” 
 
 This indolence of women lies at the bottom of many serious 
 social evils. The woman who will not, health and fortune per- 
 mitting, make herself responsible in such a case for any number 
 of hot suppers, deserves to see her own happiness wither, her own 
 hearth made desolate. 
 
 It is needless to add, that if women would educate them- 
 selves to be true and noble companions to their husbands, and 
 resign on their own part all that is unsound, and therefore unbe- 
 coming in fashionable life, hot suppers would cease to be a desi- 
 deratum, and men would pass pleasant evenings without them. 
 
156 
 
 THE UNITED-STATES LAW. 
 
 ditional indolence, however, and that senti- 
 mental respect which does not permit a man 
 to sit in a woman’s presence, the “world ” has 
 certainly come to be governed by “ its wife.” 
 Worst of all, nobody punishes it even by a 
 sneer. 
 
 The historical development of woman’s so- 
 cial progress corresponds to the logical state- 
 ment upon which I have insisted. 
 
 Nearly two centuries ago, Mary Astell 
 would have established a college for women ; 
 but the bigotry of Bishop Burnet defeated 
 her plans. The niece of a beneficed clergy- 
 man, she had not the courage to press her 
 schemes against the open opposition of the 
 church. Many other efforts, like hers, to 
 secure and make use of education, led the 
 way to a recognition of a decided bias in the 
 individual : so when, a century later, Mary 
 Wollstonecraft was born, the way was open 
 for the assertion of the right to labor. This 
 assertion is hardly indicated in her most cele- 
 brated work ; but it gives pungency and effect 
 to the dreariest pages of her novels. 
 
THE UNITED-STATES LAW. 
 
 157 
 
 In Australia, when a female child is born, 
 the natives break her finger-joints : an arti- 
 ficial distinction, which they seem to think 
 more decisive and enduring than God’s own 
 limit of sex. 
 
 Mary Wollstonecraft saw that civilized 
 society, enslaved by tradition and custom, im- 
 posed conditions quite as arbitrary, and, to 
 all practical purposes, broke every joint in a 
 woman’s body ; leaving her helpless, to de- 
 pend on the strength and skill and affection 
 of man. 
 
 A passionate and thriftless father, who 
 spent more than three daughters could earn, 
 and whom she nevertheless protected to her 
 dying day, did not give her a very high idea 
 of the security of such dependence. The 
 response to her appeal was heard in a myriad 
 of distinguished voices, and seen in the con- 
 secutive, chosen, and persevering labors of 
 Harriet Martineau in political economy, of 
 Anna Jameson in artistic criticism, of Mary 
 Carpenter in the reformation of criminals, 
 
158 
 
 THE UNITED-STATES LAW. 
 
 of Florence Nightingale in sanitary reform, of 
 Caroline Chisholm in emigration, of Mrs. Grif- 
 fith in marine botany (a special study, which 
 she may almost be said to have created), of 
 Janet Taylor in practical philanthropy among 
 seamen, and nautical astronomy. 
 
 This selection of duty shows the advance 
 of the movement. Formerly a woman might 
 be literary in a general sense : now she had 
 the oversight of the field, and might choose the 
 place and kind of her work. 
 
 All this prepared the way for the advent of 
 Margaret Fuller, and brought about the con- 
 dition of which she was the exponent. She 
 caught the rumor which floated in subtle dis- 
 cord all around her. Her quick insight de- 
 tected every true and living germ of thought 
 in the confused social deposits and exhala- 
 tions. Out of the discord, she wrought a 
 quaint and scholarly music ; out of the refuse, 
 she enriched a fragrant garden : and this 
 song, this outgrowth, had an essential music 
 and beauty, and were caught at once to the 
 popular heart. 
 
THE UNITED-STATES LAW. 
 
 159 
 
 That the division of labor was already 
 taking place, was obvious enough to her : so 
 she claimed, in advance, the right of suffrage. 
 Society was already prepared to make this 
 claim, but only discovered its readiness as it 
 listened to her enthusiastic song. Like De- 
 borah, our friend struck her cymbals ; and, 
 when the heart of the people shouted consent, 
 they “ made her a judge over them/’ 
 
 Although it was doubtless owing to many 
 older causes, it seemed as if her statement of 
 the “ great lawsuit” in 1844 led to the first 
 Woman’s Convention at Seneca Falls in 1848 ; 
 and, in 1850, the National Woman’s-rights 
 Association began the yearly work in which 
 it has ever since persevered. 
 
 Man, as well as woman, has been forced to 
 respect this work, moved by the moral des- 
 titution in the lowest, and the profane inanity 
 in the highest, ranks of life, which is the 
 result of our social depravity. 
 
 Profane inanity , I repeat ; for every help- 
 less woman is a living, intolerable blasphemy 
 
ICO 
 
 THE UNITED-STATES LAW. 
 
 against the Most High. Not more a blasphe- 
 my than every helpless man ; but society 
 neither expects, defends, nor provides for, 
 helpless men . It is only the helpless woman 
 who is expected and approved. 
 
 Often do we hear it said, that no law forbids 
 American women to icork. 
 
 Neither, it has been responded, is there 
 any law which forbids Chinese women to walk ; 
 but the careful ligatures, so closely pressed 
 by unsuspecting mothers about those tender 
 feet, do not do their work more surely than 
 the inevitable restrictions of society. 
 
 In summing up this constantly accruing list 
 of influences and changes, I must again direct 
 your attention to the fact, that, from the earli- 
 est dawn of modern civilization, women have 
 been, in some nations at least, invested with 
 political power. 
 
 The mock-marriage, by which the woman’s 
 entailed suffrage served a fraudulent purpose ; 
 the abbesses called to Parliament in right of 
 abbey-lands, the permission accorded to the 
 
THE UNITED-STATES LAW. 
 
 161 
 
 eighty-one women of Upsal, the position of the 
 French “ Dames de la Halle,” the female stock- 
 holders in the East-India Company, that one 
 persistent female property- holder in Nova 
 Scotia, the fifty-dollar proclamation-money in 
 New Jersey, — all indicate that there never 
 lias been, and never will be, any serious dif- 
 ficulty about woman’s voting in any age or 
 any country where the right to vote depends 
 upon the possession of property, and where 
 she herself professes to desire it. 
 
 Understand, then, that the abstract right 
 to vote is not the question for you to con- 
 sider: that was settled some hundreds of 
 years ago. 
 
 The practical question for American men 
 to put to themselves is, whether their own 
 democratic experiment is a failure. Will you 
 go back to the property basis for your own 
 franchise ? or do you still profess to believe 
 that man — as man, as child of God — has a 
 right to reign, which does not depend upon 
 broad doubloons or broad acres ? And, if man 
 11 
 
162 
 
 THE UNITED-STATES LAW. 
 
 lias this right upon a simple human ground, 
 how can you deny it to woman? 
 
 Will you say that she is not human, — that 
 she has no soul ? 
 
 Even Mahomet did better than that. Some 
 one once asked him if the marriage-tie were 
 immortal, and if a husband might claim his 
 wife in the next world : — 
 
 u If the man be the superior being,” he replied, 
 u he can claim his wife or not, as he chooses ; but, 
 if the woman be the superior, the decision must 
 rest with her.” 
 
 And what Mahomet thus prophesied of the 
 world to come is clearly true of the world 
 that is. There is no such thing as cheating 
 either God or humanity. 
 
 Let him who aspires to rule make himself 
 superior in understanding and moral purpose, 
 and he will rule. 
 
 No possibilities, visible or invisible, need 
 daunt him ; but, let him be false by one hair's 
 breadth, and he carries his doom in his otvn 
 bosom as certainly as the flawed crystal at 
 the approach of frost. 
 
THE UNITED-STATES LAW. 
 
 163 
 
 You are, then, to base your demand for 
 woman’s civil rights upon her simple huma- 
 nity, — the value of the soul itself. 
 
 If you deny this foundation for her, you 
 deny it for yourselves, and the Declaration of 
 Independence is only an impertinent pre- 
 tence. 
 
 It may not be easy to push this truth home, 
 and force your friends and neighbors to con- 
 sider it ; but, once convinced in your own 
 minds, you cannot escape from the respon- 
 sibility. 
 
 Wendell Phillips once told us of an old 
 catechism, printed, I think, at Venice in 1563, 
 which contained the following question and 
 answer : — 
 
 Q. How shall I show my obedience to God ? 
 
 A. By never doing any thing which is disagree- 
 able to my neighbor. 
 
 Is it possible that this catechism is still in 
 general use ? 
 
 Fashionable morality is of so loose a sort, 
 that to do any thing disagreeable to one’s 
 
164 
 
 THE UNITED-STATES LAW. 
 
 neighbor is still, in the estimation of most 
 people, the unpardonable sin. People who 
 are capable of hesitating on that account need 
 not be greatly anxious about their responsi- 
 bility. 
 
 Oar cause does not need them ; resting, 
 not on timid self-deceivers, but on immutable 
 truth, and the hallowed recognition of woman 
 herself. 
 
 Society still cries, like King John in the 
 play,— 
 
 “ If not, fill up the measure of her will; 
 
 Yes, in some measure, satisfy her so, 
 
 That we shall stop her exclamation ! ” 
 
 And woman, serener than Constance, may 
 whisper back, — 
 
 “ Wherefore, since law is perfect wrong, 
 
 Why should the law forbid my tongue to cry? ” 
 
 THE END. 
 
I 
 
 L’ENYOI. 
 
 Now press the clarion on thy woman’s lip, 
 
 (Love’s holy kiss shall still keep consecrate,) 
 
 And breathe the fine, keen breath along the brass, 
 And blow all class-walls level as Jericho’s 
 Past Jordan. . . . The world’s old; 
 
 But the old world waits the hour to be renewed. 
 
 Aurora Leigh. 
 
 Two of far nobler shape, erect and tall, — 
 
 Godlike erect, with native honor clad 
 In naked majesty, — seemed lords of all: 
 
 And worthy seemed ; for in their looks divine 
 The image of their glorious Maker shone, — 
 Truth, wisdom, sanctitude severe and pure; 
 Whence true authority in men.” 
 
 Milton. 
 
 12 
 

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