CHAPTER XV.
The Legal Status of Women.

1.—The Struggle for Equality Before the Law.

The social dependence of a race, class, or sex, always finds expression in the laws and political conditions of the country in question. The laws of a country are the formulated expression of its ruling interests. Women, being the dependent and oppressed sex, find their legal status mapped out to them accordingly. Laws are both negative and positive. They are negative by failing to take notice of the oppressed in the distribution of rights. They are positive inasmuch as they point out his dependent position and denote whatever exceptions there may be.

Our common law is founded on the Roman law, which considers the human being solely in his quality as a propertied being. The old German law, that dealt more favorably with women, has maintained its influence only to a slight extent. In the French language, as in the English language, human being and the male are denoted by the same word, “l’homme”—man. In the same way, the French law only recognizes the man as a human being, and, until a few decades ago, this was true also of England, where women were maintained in abject dependence. It was the same in ancient Rome. There were Roman citizens and wives of Roman citizens, but no Roman citizenesses.

In Germany the legal status of women has been somewhat improved, inasmuch as the great variety of existing laws have been replaced by a uniform law, whereby rights enjoyed by women here and there have been made general. Thereby, unmarried women were admitted to guardianship; women were permitted to act as witnesses, to sign contracts, and to carry on a business independently. Both husband and wife are entitled to the common ownership of each other’s property, unless the demands made by either party may be regarded as an abuse of his or her rights. If there are conflicting opinions between them on this subject, the decision rests with the husband, who also is entitled to determine the place of residence. If the husband should abuse this right, the wife is exempt from obedience. The sole management of the household rests with the wife. She has the so-called power of the keys, which empowers her, within her domestic sphere, to attend to her husband’s affairs and to represent him. The husband is liable for his wife’s debts. But the wife’s power of the keys may be restricted, or entirely abolished, by her husband. Should he abuse his power, this limitation may be annulled by the courts. The wife is obliged to do the housework and to perform tasks in her husband’s business, but only where such occupations are customary, in accordance with the husband’s standard of living. A demand to establish, as the rule, separate rights of ownership by husband and wife, was declined by the Diet. This can only be obtained by means of the marriage contract, which is usually neglected, and may lead to disagreements later on. Instead, community of management was established. The husband is thereby entitled to dispose of his wife’s property, while she is limited to her dowry. On the other hand, the wife has unrestricted control over whatever she may earn during marriage, by personal labor or in business. The husband has no right to deprive the wife of her earnings or her dowry. The wife may also demand security, in case she has good reason to fear that her property is endangered, which she may sometimes learn too late. She may also enter a complaint to have the common ownership abolished, if her husband should fail to provide for her and her children. The husband is liable for damage resulting from mismanagement.

The wife may be grievously wronged by the existing divorce laws. For, in case of divorce, the joint earnings of husband and wife belong to the husband, even if he is the guilty party, and if most of their common property has been earned by the wife. But the woman is entitled to alimony, according to her station, only if it can be shown that she is not able to maintain her standard of living by means of her own property or earnings.

Paternal control has been replaced by the joint control of both parents, but in case of disagreement between the parents, the decision rests with the father. In case of the father’s death, parental control, including the management and use of the child’s property, devolves on the mother. A divorced woman has no right to represent her children legally, or to control their property, even if the children have been awarded to her, while the father continues to enjoy full parental rights.

In England, until 1870, according to the common law, a husband was entitled to all the personal property of his wife. Only real estate remained her property by law, but even this the husband was entitled to manage and to use. The English woman was a mere cipher before the law. She could not sign any legal document, not even a will. She was her husband’s chattel. If she committed any crime in her husband’s presence, he was held responsible for it, since she was regarded as a minor. In case she damaged any one’s property, the damage was viewed as if done by a domestic animal; her husband was answerable for it. In 1888 Bishop J. N. Wood delivered a lecture in the chapel at Westminster, in which he said, among other things, that as late as a century ago English women had not been permitted to eat at their husbands’ table, nor to speak until they were spoken to. As a symbol of his marital power, a whip hung above the bed, that the husband was permitted to wield when the wife was not as docile as her lord desired her to be. Only her daughters were obliged to obey her. By her sons she was regarded as a servant.

By the laws of 1870, 1882 and 1893, the woman is not only entitled to all the property brought into marriage by her, she is also entitled to everything she may obtain during marriage by her earnings, by inheritance, or by gift. This legal relation can be modified only by special agreement between husband and wife. In this respect English legislation has followed the example set by the United States. By the Custody of Infants’ Act, of 1886, in case of the father’s death, parental control devolves on the mother. The Intestate Estates Act, of 1890, still gives the man a privileged position. Both husband and wife are free to dispose of their property by their last will and testament. But if the wife dies intestate, all her personal property belongs to her husband; while, if the husband dies intestate, his widow is entitled to only one-third of his personal property and income on real estate; the remainder belongs to his children. Many remnants of the old mediaeval law remain in force that greatly impair the legal status of married women. As we have seen, the divorce laws are still highly unfavorable to women. If a man commits adultery, that alone is no ground for divorce for the woman, but only in connection with cruelty, bigamy, rape, etc.[173]

The civil law is especially unfavorable to women in France, and in all those countries—mostly Romanic countries—that are strongly influenced by the French “code civil,” or where it has been adopted in full, with some modifications. This is the case in Belgium, Spain, Portugal, Italy, Russian Poland, the Netherlands, and in most of the cantons of Switzerland. There is a saying by Napoleon I. that is characteristic of his conception of the position of women, and that still holds true; it is: “One thing is not French, a woman who may do as she pleases.”[174] As soon as a French woman marries she is placed under the guardianship of her husband. According to the Code Civil, she may not appear in court without the consent of her husband, not even if she is connected with a lawsuit. The husband shall protect his wife, and the wife shall obey her husband. He controls the property brought into marriage by his wife; he may sell, rent, or mortgage same, without being obliged to ask her consent. The result is, that women frequently live in a condition of absolute servitude. A man may spend his wife’s earnings on drink, or on frivolous women; he may gamble and run into debt, leaving his wife and children in want; he is even entitled to demand from an employer the wages his wife has earned. Under such circumstances it is not to be wondered at that many women prefer to desist from marriage, as was frequently seen in France.

In most Romanic countries women cannot act as witnesses to legal documents, contracts, wills, etc. In France this was the case until 1897. But they are permitted—by a strange inconsistency—to act as witnesses at court in all criminal cases, where their testimony may perhaps lead to the execution of a human being. In criminal law woman is everywhere regarded as man’s equal, and crimes and transgressions committed by her are measured by the same standard as those committed by man. Our law-makers seem blissfully unconscious of this glaring inconsistency. As a widow, a woman may make her will, but in a great many states she is not admitted as a witness to a will, yet she may be appointed as executrix. In Italy women are admitted as witnesses in civil law since 1877.

The privileged position of men is especially manifest in the divorce laws. According to the “Code Civil,” in France a man might obtain a divorce if his wife committed adultery; but a woman could not obtain it, unless her husband had brought his concubine into their home. This article has been changed by the divorce law of July 27, 1884, but in French criminal law the distinction has been maintained, which is very characteristic of the French law-makers. If a woman has been convicted of adultery she is punishable by imprisonment of from three months to two years. But the man is punishable only if he has maintained a concubine in his own household, as per the former article of the “Code Civil.” If found guilty, his only punishment is a fine of from 100 to 2000 francs. Such inequality before the law would be impossible if there were women in the parliament of France. Similar laws are in force in Belgium. The penalty for adultery when committed by a woman is the same as in France. The man goes unpunished, unless adultery has been committed by him in his and his wife’s domicile; in that event he may be punished by imprisonment of from one month to one year. In Belgium the injustice is not quite as glaring as in France, but in both countries we find one standard of law for the man and another one for the woman. Under the influence of French law similar provisions have been made in Spain and Portugal. According to the civil law of Italy, enacted in 1865, a woman cannot obtain a divorce on the ground of adultery, unless her husband maintains his concubine in his own home, or in a place where her presence appears as a particular insult to the wife. In 1907, together with the enactment of June 21, which has modified a number of articles of the Code Civil in regard to marriage, both chambers finally adopted the law of July 13, whereby the wife became the sole owner of property earned by her, or obtained by inheritance or gift. The husband has been deprived of his former control over the personal property of his wife. That is the first breach in French law, and thereby French women have obtained the same legal status that was obtained for English women by the law of 1870.

Much more advanced than the “Code Civil” and more advanced also than German civil law, is the new civil law of Switzerland that was adopted on December 10, 1907, and will come into force on January 1, 1912. Until now the various cantons of Switzerland had their own laws. In Geneva, Waadt, and Italian Switzerland they were partly founded on the “Code Civil.” In Bern and Lucerne they were founded on Austrian law, and in Schwytz, Uri, Unterwalden, etc., the old common law prevailed. Now Switzerland is to have a uniform code of laws. The freedom of the wife and the children is assured. The new law provides that the wife is entitled to one-third of her husband’s income, even if she is only occupied as his assistant or housekeeper. In regard to inheritance, also, the laws are more favorable to women than the German laws. When a man dies, his wife is not only entitled to one-half of his property, but also, together with the man’s parents, to the lifelong use of the income from the other half. If people owe money to a man who fails to provide for his wife and children, the judge may instruct them to pay these debts, not to the man himself, but to his wife. The law no longer forbids a divorced person to marry the person with whom he has committed adultery. The property rights of married persons are mainly determined by the marriage contract that may be drawn up by both before and during marriage. Illegitimate children—in cases where the mother had been given a promise of marriage—are not only entitled to alimony from their father, as according to the new German law, but they are also entitled to their father’s name, and thereby obtain the full rights of legitimate children.

Swedish women are given full control over their own earnings by a law of Dec. 11, 1874. In Denmark a similar law was enacted in 1880. According to Danish law no claims may be made on a woman’s property for the payment of her husband’s debts. The Norwegian law of 1888 and the Finnish law of 1889 are quite similar. The married woman has the same control over her property as the unmarried woman; only some exceptions are provided for that are stated in the law. In the Norwegian law it is clearly stated, that the woman becomes a dependent by marriage.

“In the Scandinavian countries, as elsewhere, this universal movement to extend the property rights of women originated in the same way as it did in England: through the gainful employment of married women. The ruling classes were far more willing to abandon the patriarchal superiority of the common man over his working wife, than that of the man from their own ranks over his propertied wife.”[175]

In the law of May 27, 1908, Danish legislation advanced still another step. If a husband and father fails to provide for his family, the wife and children may have the sum, awarded to them by the authorities, advanced out of the public funds.

In most countries the father has the sole control over the children and the right to determine their education. Only in some countries the mother is given joint control with the father in a more or less subordinate way. The old Roman principle, whereby the father had complete power over his children, everywhere forms the key-note of legislation.

In Russia married women have some control over their property, but as bread-winners they remain utterly subservient to their husbands. No pass—which is absolutely essential for any change of residence—is ever issued to a married woman without her husband’s consent. In order to accept a position or to practice any trade or profession, she must also have her husband’s permission. Divorce is made so difficult, that it can be obtained only in very rare cases. The position of Russian women was much more independent formerly in the old peasant communities, which was due to the remaining communistic institutions or to the reminiscences of these institutions. The peasant woman was the manager of her own estate. Communism is the most favorable social condition for women. We have seen this from our exposition of the matriarchal period.[176]

In the United States the women have succeeded in winning almost complete equality before the law; they have also prevented the introduction of English and other laws regulating prostitution.