The Congress of Women: Legal Condition of Woman in 1492-1892
Legal Condition of Woman in 1492-1892
Miss Mary Anne Greene was born at Warwick, R. I., in 1857. Her parents were John Waterman Aben Greene and Mary Frances (Low) Greene. She was educated for the legal profession at the Boston University Law School, receiving in 1888 the degree of Bachelor of Laws magna cum laude, and was admitted to the Suffolk Bar in Boston in September, 1888 where she practiced several years. Her principal literary works are articles upon legal subjects, for magazines and papers such as "The Chautauquan," "The American Law Review," etc. She is the regular lecturer on Business Law for Women, at Lasell Seminary, Auburndale, Mass., and was invited to address the Congress of Jurisprudence and Law Reform, of the World's Congress Auxiliary in August, 1893. She spoke upon "Married Woman's Property Acts in the United States and Needed Reforms Therein." An extremely fragile constitution obliged her to refrain from the active practice of her chosen profession, since her return to her native state, and hence she has never applied for admission to the Rhode Island bar. Miss Greene is a member of the Baptist Church. Her postoffice address is Providence, R. I.
The condition of the woman of a nation is an index of that nation's civilization. From the days of Hatasu, who, as queen, ruled over Egypt, sixteen centuries before Christ, down the ages to Isabella, of Spain, the first monarch of a new world, until this year of grace, 1893, when Victoria holds sway over lands which encircle the globe, has it ever been true that that nation which most elevates and honors its women most elevates and honors itself ? The legal condition of woman is but a mirror reflecting her social condition. Laws are framed to meet the necessities of the social environment. It is only when the body of the law has failed to keep step with the social development, that the legal condition of a sex or a class works an injustice.
In order, then, to understand the legal condition of woman in any country, or at any era, we must study the social condition that existed at the time the laws were framed. At the date of the discovery of our continent, the dawn of a new civilization was breaking upon Europe. This intellectual awakening of the world awakens women as well as men. Women of gentle birth apply themselves with enthusiasm to the study of Greek and Latin, in order to obtain for themselves the learning of the ancients. So it happens that we know much about the women of the higher classes in 1492. But of the women of the lower classes very little is recorded. They were truly and absolutely "the submerged tenth," not worth the notice of historians. Here and there a glimpse is caught, which suggests to us their social bondage. A wedding custom among the German peasants was that the bride's father should remove her shoes and deliver them to the groom, who tapped the bride's forehead with them, in token of his matrimonial authority over her. The woman who married a slave could, by law, be put to death by her relatives, or be sold by them at their will.
The civilization of ancient Rome favored the domestic seclusion of woman. The European states, which arose out of the fall of the Roman empire, favored the same idea. Restriction and submission to a higher power was the policy of the middle ages. The laity were to be submissive to the clergy, vassals submissive to their lords, wives submissive to their husbands. In the rude and warlike society of those times, when shut up within his closely fortified castle, the feudal knight poured boiling oil or shot arrows from his towers upon his neighbors, or sallied forth to encounter like assaults at their hands, the safe seclusion of the castle and the quiet occupations of cooking and spinning were, no doubt, the best for the women of the family. As refinement increased, women were able to come out of their seclusion a little, and to participate to some extent in the social life of the men. The growth of chivalry also helped to elevate the women of the higher classes in feudal days. Religion and gallantry were blended together. The love of God and the ladies was enjoined as a single duty. At the institution of the Order of the Golden Shield, Louis II., Duke of Bourbon, enjoined his knights to honor above all the ladies, "because from them, after God, comes all the honor that men can acquire." The laws also recognized this chivalrous homage and extended their protection. James II., of Aragon, enacted a law "that every man, whether knight or no, who shall be in company with a lady, pass safe and unmolested, unless he be guilty of murder."
With the incoming of the Renaissance and the Reformation, with the new spirit of personal dignity and independence, begotten of a wider knowledge and broader culture, the crudities of chivalry and the restrictions of feudalism began to fade away. Expansion and independence took the place of restriction and submission Since the condition of the higher classes of women had been tending toward a higher position of esteem and honor under the later feudal system, their advancement could not fail to be rapid under the new order of the new age. This is shown by their educational elevation at the close of the fifteenth century.
Spain and Italy had at that time begun to admit women to the higher education of the universities. The Spanish Arabs were devoted to letters, and many of their high-born women publicly contended for prizes in science and arts at Cordova and Seville. The reign of Isabella counts among its many glories a galaxy of women whose scholarship would have been rare in any age. Isabella herself was learned in the classics, and her Latin instructor was a woman, Dona Beatriz de Galindo, who was called La Latina, on account of her rare acquirements. At the same time the University of Salamanca had as lecturer in the Latin classics another learned woman, Dona Lucie de Medrano, while at Alcala, Dona Francisca de Lebrija filled the chair of rhetoric
In Italy, a century earlier, Dotta, daughter of the celebrated Accursius, gave instruction in law at the University of Bologna, and nearly contemporary with her was Novella, the beautiful daughter of Andrea, who delivered her lectures upon the canon law from behind a curtain, as tradition has it, lest her beauty should distract the young men who were her pupils. These were the earliest of a long line of distinguished Italian women professors, reaching down to our own day, when Dr. Josephine Catani fills the chair of histology in the medical school of the ancient University of Bologna. The political status of woman in 1492 in Continental Europe was a survival of ancient ideas, of Roman jurisprudence. Even under the repression of the feudal system the capacity of woman to be a sovereign, a judge, an advocate and an arbitrator, was not denied. But the Roman law excluded her from all public offices, not, however, on the ground of incapacity, but simply on the ground of etiquette and expediency, as the Roman code puts it, "because it is not fitting that women and slaves should hold public offices." The system of civil law, which was built up in the fifteenth century from the ruins of the Roman code, incorporated this idea, so that we find it declared in the laws of Continental Europe that a woman may not be an advocate or a judge.
In England, where the influence of the Roman law was slight, the capacity and fitness of women for public office was to some extent recognized, and when Queen Mary came to the throne she placed women in judicial office. Lady Berkeley was made a justice of the peace for Gloucestershire, and Lady Rous, as justice of the quorum for Suffolk, "did usually sit on the bench at assizes among the other justices, cincta gladio, girt with the sword." The hereditary office of high sheriff of Westmoreland was held at one time by a woman, and women were held to be eligible to election as burgesses, overseers of the poor, constables, sheriffs and marshals, and they occasionally occupied these positions. There is no doubt that women landowners were allowed to vote as well as to hold public office, but the privilege was so very seldom exercised that instances are very rare. Still, in theory, the single woman or widow had a lawful right to cast a vote, while her married sister was represented by the vote of her husband. The capacity of woman to be a sovereign was everywhere recognized, and even where the Salic law excluded woman from the throne her right and ability to rule as regent during the king's minority was fully admitted. Thus, in France, from 1483 to 1491, Anne of Beaujen held the office of regent during the minority of her brother, Charles VIII.
The royal Isabella, ruling in her own right as queen of Castile and Leon, and as co-equal with her husband, Ferdinand, of Aragon, in the government of the united countries, is a sufficient instance of the legal recognition of woman's right to the highest and most responsible of all public offices.
As our American orator has recently said: "It was a happy omen of the position which woman was to hold in America that the only person who comprehended the majestic scope of his (Columbus') plans and the invincible qualities of his genius was the able and gracious Queen of Castile. Isabella alone, of all the dignitaries of that age, shares with Columbus the honors of his great achievement. She arrayed her kingdom and her private fortunes behind the enthusiasm of this mystic mariner, and posterity pays homage to her wisdom and faith." And in less than a century after Isabella, another woman, Elizabeth, of England, the virgin queen whose flag swept the seas, was the mistress and patroness of the first permanent settlement of her race upon our shores, a race which was destined to possess and dominate this northern continent of the New World:
Turning to the personal and property rights of the woman of 1492, we look at a darker side of the picture. This branch of the law affects rich and poor, high and low alike. Only the high-born woman would be likely to hold public office, but every woman has a right to protection of her person and property. The laws of England differed from those of the continent of Europe in form and theory, but scarcely in their practical effect upon the woman. The theory of the common law of England derived from our Germanic forefathers, was that of a division of duties. As the wife had the care of the household, and the responsibility of rearing her family, it was thought unreasonable to subject her to the annoyances of a suit at law to protect or defend her rights and to preserve her property. This was laid upon the husband's shoulders. He was to protect her and perform these duties for her. The wife in English law was considered as under the protecting wing of her husband, which covered her from legal annoyance; hence, the old law-French term for a married woman, a femme covert, and her legal condition is her coverture. That this is the true theory of the law is evident from the laws governing the queen's consort of England. Such women, upon marriage, retained all their property and legal capacity to transact business. For as Sir Edward Coke puts it, "The wisdom of the common law would not have the king (whose continual care and study is for the public and circa ardua regni ) to be troubled and disquieted on account of his wife's domestic affairs; and, therefore, it vests in the queen a power of transacting her own concerns without the intervention of the king, as if she were an unmarried woman."
The theory of the civil law of Continental Europe, coming down from the Roman code, was very different. These laws are based upon the weakness, frailty and incapacity of the sex. The husband is made the curator of his wife much as the father is made guardian of his minor child. Upon this theory, also, a woman could not in early times be a witness in court, and long after she was made legally competent to testify, her testimony was held to be of slight worth. Whether the English or the Continental laws be considered, the effect upon the married woman was practically the same in respect to her ownership and control of her property. The husband had complete control of the wife's property, and was able to dispose of it at his own pleasure, without her knowledge or consent. She was not capable of making any binding contract whatever. The legal custody of the children was in the father, and by feudal law after the father's death, unless he had by his will appointed a guardian, the lord of the manor became the custodian of the person and property of the orphaned child. The consent of the lord was necessary to the marriage of a female ward, and in England the lord could dispose of her in marriage, exacting a heavy fine if she refused to marry according to his commands. Where, as in England, the possession of landed property qualified its owner to vote and hold public office, the husband of a woman who owned land, voted and sat in parliament by right of his joint ownership in his wife's land. This right of the husband has disappeared from American law, except in Rhode Island, where it still lingers only slightly modified by recent legislation. The condition of the widow under this regime was truly pitiable. She had no claim whatever upon the personal property of her late husband, not even though she had brought that property to him at her marriage.
In England the widow had from very early times a right to the income of one-third of the deceased husband's lands, during her life, and this life interest, known as "the widow's dower," was all that she could claim, unless, indeed, she had been so fortunate as to possess a marriage settlement. By a deed to trustees before her marriage, her property could be preserved to her and her heirs, free from any claim of her husband. This device of the English equity courts relieved in some degree the hardships of the common law, but obviously could only benefit the wealthy women of the kingdom. The widow under the civil law of Europe had no claim upon her deceased husband's property. It all went to his heirs. Under the feudal system, at least in England, a widow could remain for forty days in the mansion house of her husband without paying rent. At the end of this time her dower was assigned and she was then turned adrift upon the world at the mercy of her family and friends. If she married again, the lord of the manor could exact a fine from her for so doing, and it was no uncommon practice for these feudal masters to compel a widow to re-marry, in order to obtain the fine to replenish their exhausted treasuries.
The single woman under English law possessed all the legal rights of a man. On the Continent, the idea of woman's mental incapacity affected the legal condition of the single woman, as well as that of the wife. She had not the freedom of her English spinster sister. She had very limited contract powers, and could only make contracts to pay in money or in kind for purchases made by her. On the other hand, she had, by reason of this same conception of mental inferiority, less criminal responsibility, and where the English woman suffered the same penalties for her crimes that a man would do, the European woman had but half the penalty. As an old law quaintly says: "A woman shall suffer but half the punishment, where a man suffers the full penalty. * * * * Thus, a woman should not be put in irons, nor sent to the galleys, nor placed in a prison, which might enfeeble her body or wound her, or cause her to lose her memory, for women are frail by nature."
Offenses against the person of woman were not severely punished. One could scarcely expect that they would be when the social inferiority of woman was so clearly marked. A husband could chastise his wife by right of his position as head of the family. The degradation of marriage under the Roman law left its stain upon later generations. The monastic ideas of the middle ages sympathizing with the Roman theory, incorporated into the canon law the principle of the inferiority and subjection of woman.
At the time that the Renaissance began to elevate woman's social condition, the Reformation began to sweep away the errors that had collected around the original ecclesiastical conception of woman's sphere. The advancement of woman was assured when her intellectual and spiritual equality with man began to be perceived. Her social elevation thus secured, her legal enfranchisement must follow.
Let us pause and think how small a portion of this vast globe of ours shared in this great awakening of the fifteenth century. Not more than half of the European Continent saw this light. In Asia, in Africa, in the New World, lying unknown in an unknown ocean, in the undiscovered islands of the sea, what intellectual and moral darkness! Can we bear to think of, much less to relate in detail, the social degradation of woman in these dark places of the earth! Even where the heathen civilization had reached its highest mark, the condition of woman was scarcely one to be desired in point of personal respect and protection.
In the interval between 1492 and 1892 the social and legal development of woman was slow. The leaven of new ideas was working, but the mass of ignorance and prejudice, the accumulation of centuries, was not easily permeated. In England the condition of the widow was improved by granting to her a fraction of her husband's personal property, in addition to her dower in his real estate. The power of the lord over the widow and children of his vassal disappeared with the complete abolition of the feudal system in the seventeenth century. On the Continent the contract capacity of woman was enlarged, and greater personal protection accorded to her by law. A few persistent women secured for themselves the benefit of a liberal education. Italy continued to honor women as professors in her University of Bologna. Mary Somerville in England won recognition for her attainments, and here and there other women less known to fame gave proof of their ability and skill. But the gains of three hundred and sixty years were little compared with those of the last forty years. The long, slow process of seed sowing, the ages of germination, have been crowned in our time by wonderful fruitage. The inventions of science, which have brought together into closest relationship the nations of the earth, have also opened a highway for the advancement of women.
In order to get any adequate idea of the legal condition of woman in 1892 we must know of her present and past social condition and trace the history of the ancient laws affecting her. For these ancient laws, some of which are still in force, are responsible for the present anomalies of woman's legal condition. When enacted, they may have justly reflected woman's social condition, but now they should give place to new laws, framed to meet the existing social environment. To go into minute detail is impossible, and this address would become a mere catalogue were it to be attempted. We shall consider first the higher education of woman at the present day; secondly, the professions and occupations open to her; thirdly, her political status; fourthly, her personal rights; fifthly, her property rights, and lastly shall attempt to draw some lessons and conclusions from this historical survey of the legal condition of woman.