A Short History of Women"s Rights.
by Eugene A. Hecker.
PREFACE TO THE SECOND EDITION
In this edition a chapter has been added, bringing down to date the record of the contest for equal suffrage. The summary on pages 175-235 is now largely obsolete; but it has been retained as instructive evidence of the rapid progress made during the last four years.
E.A.H.
CAMBRIDGE, Ma.s.s. _August, 1914_.
PREFACE
While making some researches in the evolution of women"s rights, I was impressed by the fact that no one had ever, as far as I could discover, attempted to give a succinct account of the matter for English-speaking nations. Indeed, I do not believe that any writer in any country has essayed such a task except Laboulaye; and his _Recherches sur la Condition Civile et Politique des Femmes_, published in 1843, leaves much to be desired to one who is interested in the subject to-day.
I have, therefore, made an effort to fill a lack. This purpose has been strengthened as I have reflected on the great amount of confused information which is absorbed by those who have no time to make investigations for themselves. Accordingly, in order to present an accurate historical review, I have cited my authorities for all statements regarding which any question could be raised. This is particularly so in the chapters which deal with the condition of women under Roman Law, under the early Christian Church, and under Canon Law.
In all these instances I have gone directly to primary sources, have investigated them myself, and have admitted no secondhand evidence. In connection with Women"s rights in England and in the United States I have either consulted the statutes or studied the commentaries of jurists, like Messrs. Pollock and Maitland, whose authority cannot be doubted. To such I have given the exact references whenever they have been used. In preparing the chapter on the progress of women"s lights in the United States I derived great a.s.sistance from the very exhaustive _History of Woman Suffrage_, edited by Miss Susan B. Anthony, Mrs. Ida H. Harper, and others to whose unselfish labours we are for ever indebted. From their volumes I have drawn freely; but I have not given each specific reference.
The tabulation of the laws of the several States which I have given naturally cannot be entirely adequate, because the laws are being changed constantly. It is often difficult to procure the latest revised statutes. However, these laws are recent enough to ill.u.s.trate the evolution of women"s rights.
Finally, this volume was written in no hope that all readers would agree with the author, who is zealous in his cause. His purpose will be gained if he induces the reader to reflect for himself on the problem in the light of its historical development.
E.A.H.
CAMBRIDGE, Ma.s.s., 1910.
CHAPTER I
WOMEN"S RIGHTS UNDER ROMAN LAW, FROM AUGUSTUS TO JUSTINIAN--27 B.C. TO 527 A.D.
[Sidenote: Guardianship.]
The age of legal capability for the Roman woman was after the twelfth year, at which period she was permitted to make a will.[1] However, she was by no means allowed to do so entirely on her own account, but only under supervision.[2] This superintendence was vested in the father or, if he was dead, in a guardian[3]; if the woman was married, the power belonged to the husband. The consent of such supervision, whether of father, husband, or guardian, was essential, as Ulpian informs us,[4]
under these circ.u.mstances: if the woman entered into any legal action, obligation, or civil contract; if she wished her freedwoman to cohabit with another"s slave; if she desired to free a slave; if she sold any things _mancipi_, that is, such as estates on Italian soil, houses, rights of road or aqueduct, slaves, and beasts of burden. Throughout her life a woman was supposed to remain absolutely under the power[5] of father, husband, or guardian, and to do nothing without their consent.
In ancient times, indeed, this authority was so great that the father and husband could, after calling a family council, put the woman to death without public trial.[6] The reason that women were so subjected to guardianship was "on account of their unsteadiness of character,"[7]
"the weakness of the s.e.x," and their "ignorance of legal matters."[8]
Under certain circ.u.mstances, however, women became _sui iuris_ or entirely independent: I. By the birth of three children (a freedwoman by four)[9]; II. By becoming a Vestal Virgin, of whom there were but six[10]; III. By a formal emanc.i.p.ation, which took place rarely, and then often only with a view of transferring the power from one guardian to another.[11] Even when _sui iuris_ a woman could not acquire power over any one, not even over her own children[12]; for these an agnate--a male relative on the father"s side--was appointed guardian, and the mother was obliged to render him and her children an account of any property which she had managed for them.[13] On the other hand, her children were bound to support her.[14]
[Sidenote: Digression on the growth of respect for women]
So much for the laws on the subject. They seem rigorous enough, and in early times were doubtless executed with strictness. A marked feature, however, of the Roman character, a peculiarity which at once strikes the student of their history as compared with that of the Greeks, was their great respect for the home and the _materfamilias_. The stories of Lucretia, Cloelia, Virginia, Cornelia, Arria, and the like, familiar to every Roman schoolboy, must have raised greatly the esteem in which women were held. As Rome became a world power, the Romans likewise grew in breadth of view, in equity, and in tolerance. The political influence wielded by women[15] was as great during the first three centuries after Christ as it has ever been at any period of the world"s history; and the powers of a Livia, an Agrippina, a Plotina, did not fail to show pointedly what a woman could do. In the early days of the Republic women who touched wine were severely punished and male relatives were accustomed solemnly to kiss them, if haply they might discover the odour of drink on their breath.[16] Valerius Maximus tells us that Egnatius Mecenas, a Roman knight, beat his wife to death for drinking wine.[17] Cato the Censor (234-149 B.C.) dilated with joy on the fact that a woman could be condemned to death by her husband for adultery without a public trial, whereas men were allowed any number of infidelities without censure.[18] The senator Metellus (131 B.C.) lamented that Nature had made it necessary to have women.[19]
The boorish cynicism of a Cato and a Metellus--though it never expressed the real feelings of the majority of Romans--gave way, however, under the Empire to a generous expression of the equality of the s.e.xes in the realms of morality and of intellect. "I know what you may say," writes Seneca to Marcia,[20] ""You have forgotten that you are consoling a woman; you cite examples of fort.i.tude on the part of men." But who said that Nature had acted scurvily with the characters of women and had contracted their virtues into a narrow sphere? Equal force, believe me, is possessed by them; equal capability for what is honorable, if they so wish." The Emperor Marcus Aurelius gratefully recalls that from his mother he learned piety and generosity, and to refrain not only from doing ill, but even from thinking it, and simplicity of life, far removed from the ostentatious display of wealth.[21] The pa.s.sionate attachment of men like Quintilian and Pliny to their wives exhibits an equality based on love that would do honour to the most Christian households.[22] All Roman historians speak with great admiration of the many heroic deeds performed by women and are fond of citing conspicuous examples of conjugal affection.[23] The masterly and sympathetic delineation of Dido in the _Aeneid_ shows how deeply a Roman could appreciate the character of a n.o.ble woman. In the numerous provisions for the public education at the state"s expense girls were given the same opportunities and privileges as boys; there were five thousand boys and girls educated by Trajan alone.[24]
[Sidenote: Decay of the power or the guardian.]
Such are a few examples of the growth of respect for women; and we should naturally conclude that, as time progressed, the unjust laws of guardianship would no longer be executed to the letter, even though the hard statutes were not formally expunged. This was the case during the first three centuries after Christ, as is patent from many sources. It is to be borne in mind that because a law is on the books, does not mean necessarily that it is enforced. A law is no stronger than public opinion. Of this anomaly there are plenty of instances even to-day--the Blue Laws of Ma.s.sachusetts, for example. "That women of mature age should be under guardianship," writes the great jurist Gaius[25] in the second century, "seems to have no valid reason as foundation. For what is commonly believed, to the effect that on account of unsteadiness of character they are generally hoodwinked, and that, therefore, it is right for them to be governed by the authority of a guardian, seems rather specious than true. As a matter of fact, women of mature age do manage their own affairs, and in certain cases the guardian interposes his authority as a mere formality; frequently, indeed, he is forced by the supreme judge to lend his authority against his will." Ulpian, too, hints at the really slight power of the guardian in his day, that is, the first three decades of the third century. "In the case of male and female wards under age, the guardians both manage their affairs and interpose their authority; but in the case of mature women they merely interpose their authority."[26] The woman had, in practice, become free to manage her property as she wished; the function of the legal guardian was simply to see to it that no one should attempt a fraud against her.
Adequately to observe the decay of the va.s.salage of women, we must investigate the story of their rights in all its forms; and the position of women in marriage will next occupy our attention.
[Sidenote: Women and marriage.]
As in all Southern countries where women mature early, the Roman girl usually married young; twelve years were required by custom for her to reach the marriageable age.[27] In the earlier period a woman was acquired as wife in three different ways: I. By _coemptio_--a mock sale to her husband[28]; II. By _confarreatio_--a solemn marriage with peculiar sacred rites to qualify men and women and their children for certain priesthoods[29]; III. By _usus_, or acquisition by prescription.
A woman became a man"s legal wife by _usus_ if he had lived with her one full year and if, during that time, she had not been absent from him for more than three successive nights.[30]
All these forms, however, had either been abolished by law or had fallen into desuetude during the second century of our era, as is evident from Gaius.[31] A man could marry even if not present personally; a woman could not.[32] The woman"s parents or guardians were accustomed to arrange a match for her,[33] as they still do in many parts of Europe.
Yet the power of the father to coerce his daughter was limited. Her consent was important. "A marriage cannot exist," remarks Paulus, "unless all parties consent."[34] Julia.n.u.s writes also that the daughter must give her permission[35]; yet the statement of Ulpian which immediately follows in the Digest shows that she had not complete free will in the matter: "It is understood that she who does not oppose the wishes of her father gives consent. But a daughter is allowed to object only in case her father chooses for her a man of unworthy or disgraceful character."[36] The son had an advantage here, because he could never be forced into a marriage against his will.[37] The consent of the father was always necessary for a valid marriage.[38] He could not by will compel his daughter to marry a certain person.[39] After she was married, he still retained power over her, unless she became independent by the birth of three children; but this was largely to protect her and represent her in court against her husband if necessity should arise.[40] A father was not permitted to break up a harmonious[41]
marriage; he could not get back his daughter"s dowry without her consent,[42] nor force her to return to her husband after a divorce[43]; and he was punished with loss of citizenship if he made a match for a widowed daughter before the legal time of mourning for her husband had expired.[44] A daughter pa.s.sed completely out of the power of her father only if she became _sui iuris_ by the birth of three children or if she became a Vestal, or again if she married a special priest of Jupiter (_Flamen Dialis_), in which case, however, she pa.s.sed completely into the power of her husband. Under all circ.u.mstances a daughter must not only show respect for her father, but also furnish him with the necessaries of life if he needed them.[45]
[Sidenote: "Breach of Promise."]
Under the Empire no such thing as a "breach of promise" suit was permitted, although in the days of the Republic the party who broke a promise to marry had been liable to a suit for damages.[46] But this had now disappeared, and either party could break off the betrothal at pleasure without prejudice.[47] Whatever gifts had been given might be demanded back.[48] The engagement had to be formally broken off before either party could enter into marriage or betrothal with another; otherwise he or she lost civil status.[49] While an engagement lasted, the man could bring an action for damages against any one who insulted or injured his fiancee.[50]
[Sidenote: Husband and Wife.]
The Roman marriage was a purely civil contract based on consent.[51] The definition given by the law was a n.o.ble one. "Marriage is the union of a man and a woman and a partnership of all life; a mutual sharing of laws human and divine."[52] The power of the husband over the wife was called _ma.n.u.s_; and the wife stood in the same position as a daughter.[53] No husband was allowed to have a concubine.[54] He was bound to support his wife adequately, look out for her interests,[55] and strictly to avenge any insult or injury offered her[56]; any abusive treatment of the wife by the husband was punished by an action for damages[57]. A wife was compelled by law to go into solemn mourning for a s.p.a.ce of ten months upon the death of a husband[58]. During the period of mourning she was to abstain from social banquets, jewels, and crimson and white garments[59]. If she did not do so, she lost civil status. The emperor Gordian, in the year 238, remitted these laws so far as solemn clothing and other external signs of mourning above enumerated were concerned.[60] But a husband was not compelled to do any legal mourning for the death of his wife.[61]
The wife was, as I have said, in the power of her husband. Originally, no doubt, this power was absolute; the husband could even put his wife to death without a public trial. But the world was progressing, and that during the first three centuries after Christ the power of the husband was reduced in practice to absolute nullity I shall make clear in the following pages. I shall, accordingly, first investigate the rights of the wife over her dowry, that is, the right of managing her own property.
Even from earliest times it is clear that the wife had complete control of her dowry. The henpecked husband who is afraid of offending his wealthy wife is a not uncommon figure in the comedies of Plautus and Terence; and Cato the Censor growled in his usual amiable manner at the fact that wives even in his day controlled completely their own property.[62] The att.i.tude of the Roman law on the subject is clearly expressed. "It is for the good of the state that women have their dowries inviolate."[63] "The dowry is always and everywhere a chief concern; for it is for the public good that dowries be retained for women, since it is highly necessary that they be dowered in order to bring forth offspring and replenish the state with children."[64] "It is just that the income of the dowry belong to the husband; for inasmuch as it is he who stands the burdens of the married state, it is fair that he also acquire the interest."[65] "Nevertheless, the dowry belongs to the woman, even though it is in the goods of the husband."[66] "A husband is not permitted to alienate his wife"s estate against her will."[67] A wife could use her dowry during marriage to support herself, if necessary, or her kindred, to buy a suitable estate, to help an exiled parent, or to a.s.sist a needy husband, brother, or sister. The numerous accounts in various authors of the first three centuries after Christ confirm the statement that the woman"s power over her dowry was absolute.[68] Then as now, a man might put his property in his wife"s name to escape his creditors,[69]--a useless proceeding, if she had not had complete control of her own property.
When the woman died, her dowry, if it had been given by the father (_dos profecticia_) returned to the latter; but if any one else had given it (_dos adventicia_), the dowry remained with the husband, unless the donor had expressly stipulated that it was to be returned to himself at the woman"s death (_dos recepticia_),[70] In the case of a dowry of the first kind, the husband might retain what he had expended for his wife"s funeral.[71] The dowry was confiscated to the state if the woman was convicted of lese majeste, violence against the state, or murder.[72] If she suffered punishment involving loss of civil status under any other law which did not a.s.sess the penalty of confiscation, the husband acquired the dowry just as if she were dead. Banishment operated as no impediment; if the woman wished to leave her husband under these circ.u.mstances, her father could recover the dowry.[73]
A further confirmation of the power of the wife over her property is the law that prohibited gifts between husband and wife; obviously, a woman could not be said to have the power of making a gift if she had no right of property of her own. The object of the law mentioned was to prevent the husband and wife from receiving any lasting damage to his or her property by giving of it under the impulse of conjugal affection.[74]
This statute acted powerfully to prevent a husband from wheedling a wife out of her goods; and in case the latter happened to be of a grasping disposition the law was a protection to the husband and hence to the children, his heirs, for whose interests the Roman law constantly provided.
Gifts between husband and wife were nevertheless valid under certain conditions. It was permissible to make a present of clothing and to bestow various tokens of affection, such as ornaments. The husband could present his wife with enough money to rebuild a house of hers which had burned.[75] The Emperor Marcus Aurelius permitted a wife to give her husband the sum necessary to obtain public office or to become a senator or knight or to give public games.[76] A gift was also legal if made by the husband in apprehension that death might soon overtake him; if, for instance, he was very sick or was setting out to war, or to exile, or on a dangerous journey.[77] The point in all gifts was, that neither party should become richer by the donation.[78]
Some further considerations of the relation of husband and wife will aid in setting forth the high opinion which Roman law entertained of marriage and its constant effort to protect the wife as much as possible. A wife could not be held in a criminal action if she committed theft against her husband. The various statements of the jurists make the matter clear. Thus Paulus[79]: "A special action for the recovery of property removed [_rerum amotarum iudicium_] has been introduced against her who was a wife, because it has been decided that it is not possible to bring a criminal action for theft against her [_quid non placuit c.u.m ea furti agere posse_]. Some--as Nerva Ca.s.sius--think she cannot even commit theft, on the ground that the partnership in life made her mistress, as it were. Others--like Sabinus and Proculus--hold that the wife can commit theft, just as a daughter may against her father, but that there can be no criminal action by established law."
"As a mark of respect to the married state, an action involving disgrace for the wife is refused."[80] "Therefore she will be held for theft if she touches the same things after being divorced. So, too, if her slave commits theft, we can sue her on the charge. But it is possible to bring an action for theft even against a wife, if she has stolen from him whose heirs we are or before she married us; nevertheless, as a mark of respect we say that in each case a formal claim for rest.i.tution alone is admissible, but not an action for theft."[81] "If any one lends help or advice to a wife who is filching the property of her husband, he shall be held for theft. If he commits theft with her, he shall be held for theft, although the woman herself is not held."[82]
A husband who did not avenge the murder of his wife lost all claims to her dowry, which was then confiscated to the state; this by order of the Emperor Severus.[83]
The laws on adultery are rather more lenient to the woman than to the man. In the first place, the Roman law insisted that it was unfair for a husband to demand chast.i.ty on the part of his wife if he himself was guilty of infidelity or did not set her an example of good conduct,[84]--a maxim which present day lawyers may reflect upon with profit. A father was permitted to put to death his daughter and her paramour if she was still in his power and if he caught her in the act at his own house or that of his son-in-law; otherwise he could not.[85]
He must, however, put both man and woman to death at once, when caught in the act; to reserve punishment to a later date was unlawful. The husband was not permitted to kill his wife; he might kill her paramour if the latter was a man of low estate, such as an actor, slave, or freedman, or had been convicted on some criminal charge involving loss of citizenship.[86] The reason that the father was given the power which was denied the husband was that the latter"s resentment would be more likely to blind his power of judging dispa.s.sionately the merits of the case.[87] If now the husband forgot himself and slew his wife, he was banished for life if of n.o.ble birth, and condemned to perpetual hard labour if of more humble rank.[88] He must at once divorce a wife guilty of adultery; otherwise he was punished as a pander, and that meant loss of citizenship.[89] Women convicted of adultery were, when not put to death, punished by the loss of half their dowry, a third part of their other goods, and relegation to an island; guilty men suffered the loss of half of their possessions and similar relegation to an island; but the guilty parties were never confined in the same place.[90] We have mention also in several writers of some curious and vicious punishments that might be inflicted on men guilty of adultery.[91]
Now, all this seems rigorous enough; but, as I have already remarked, we must beware of imagining that a statute is enforced simply because it stands in the code. As a matter of fact, public sentiment had grown so humane in the first three centuries after Christ that it did not for a moment tolerate that a father should kill his daughter, no matter how guilty she was; and in all our records of that period no instance occurs. As to husbands, we have repeated complaints in the literature of the day that they had grown so complaisant towards erring wives that they could not be induced to prosecute them.[92] A typical instance is related by Pliny.[93] Pliny was summoned by the Emperor Trajan to attend a council where, among other cases, that of a certain Gallitta was discussed. She had married a military tribune and had committed adultery with a common captain (_centurio_). Trajan sent the captain into exile.
The husband took no measures against his wife, but went on living with her. Only by coercion was he finally induced to prosecute. Pliny informs us that the guilty woman had to be condemned, even against the will of her accuser.
A woman guilty of incest received no punishment, but the guilty man was deported to an island.[94] If the incest involved adultery, the woman was of course held on that charge.