Legal rights of women

The dependent position of women in early law is proved by the evidence of most ancient systems of early law which have in whole or in part descended to us. In the Mosaic law divorce was a privilege of the husband only, the vow of a woman might be disallowed by her father or husband, and daughters could inherit only in the absence of sons, and then they must marry in their tribe. The guilt or innocence of a wife accused of adultery might be tried by the ordeal of the bitter water. Besides these instances, which illustrate the [2 Deut. xxiv. 1. Numb. xxx. 3-Numb. xxvii., xxxvi. Numb. v. II.] subordination of women, there was much legislation dealing with, inter alia, offences against chastity, and marriage of a man with a captive heathen woman or with a purchased slave. So far from second marriages being restrained, as they were by Christian legislation, it was the duty of a childless widow to marry her deceased husbands brother.

In India subjection was a cardinal principle. Day and night must women be held by their protectors in a state of dependence, says Manu. The rule of inheritance was agnatic, that is, descent traced through males to the exclusion of females. The gradual growth of strtd/iana, or property of a woman given by the husband before or after marriage, or by the wife's family, may have led to the suttee, for both the family of the widow and the Brahmans had an interest in getting the estate of a woman out of the way. Women in ancient Hindu law had only limited rights of inheritance, and were disqualified as witnesses.

In Roman law a woman was even in historic times completely dependent. If married she and her property passed into the power of her husband; if unmarried she was (unless a vestal virgin) under the perpetual tutelage of her father during his life, and after his death of her agnates, that is, those of her kinsmen by blood or adoption who would have been under the power of the commoh ancestor had he lived. Failing agnates, the tutelage probably passed to the gens. The wife was the purchased property of her husband, and, like a slave, acquired only for his benefit. A woman could not exercise any civil or public office. In the words of Ulpian:

"feminae ab omnibus officiis civilibus vel publicis remotae sunt."

A woman could not continue a family, for she was caput et finis familiae suae, she could not be a witness, surety, tutor, or curator; she could not adopt or be adopted, or make a will or contract. She could not succeed ab intestato as an agnate, if further removed than a sister. A daughter might be disinherited by a general clause, a son only by name. On the other hand, a woman was privileged in some matters, but rather from a feeling of pity for her bodily weakness and presumed mental incapacity than for any more worthy reason. Thus she could plead ignorance of law as a ground for dissolving an obligation, which a man could not as a rule do; she could be accused only in cases of treason and witchcraft; and she was in certain cases exempt from torture. In succession ab intestate to immovable property Roman law did not, as does English, recognize any privilege of males over females.

Legal disabilities were gradually mitigated by the influence of fictions, the praetorian equity and legislation. An example of the first was the mode by which a woman freed herself from the authority of her tutor by fictitious cession into the authority of a tutor nominated by herself, or by sale of herself into the power of a nominal husband on the understanding that he was at once to emancipate her to another person, who then manumitted her. The action of equity is illustrated by the recognition by the praetor of cognatic or natural as distinguished from agnatic or artificial relationship, and of a widows claim to succeed on the death of her husband and without relations. Legislation, beginning as early as the Twelve Tables, which forbade excessive mourning for the dead by female mourners, did not progress uniformly towards enfranchisement of women. For instance, the Lex Voconia (about 169 BC), called by St Augustine the most unjust of all laws, provided that a woman could not be instituted heir to a man who was registered as owner of a fortune of 100,000 asses. A constitution of Valentinian I. forbade bequests by women to ecclesiastics. But the tendency of legislation was undoubtedly in the direction indicated.

Adoption of women was allowed by Diocletian and Maximian in 291. The tutelage of women of full age was removed by Claudius, and, though afterwards in part revived, has disappeared by the time of Justinian. This implied full testamentary and contractual liberty. In regard to the separate property of the married woman, the period of dos had by the time of Justinian long superseded the period of manus. The result was that, in spite of a few remaining disabilities, such as the general incapacity to be surety or witness to a will or contract, of a wife to make a gift to her husband, of a widow to marry within a year of her husbands death, the position of women had become, in the words of Sir H. Maine, one of great personal and proprietary independence. For this improvement in their position they were largely indebted to the legislation of the Christian emperors, especially of Justinian, who prided himself on being a protector of women.

The following are a few of the matters in which Christianity appears to have made alterations, generally but perhaps not always improvements, in the law. As a rule the influence of the church was exercised in favor of the abolition of the disabilities imposed by the older law upon celibacy and childlessness, of increased facilities for entering a professed religious life, and of due provision for the wife. The church also supported the political power of those who were her best friends.

The government of Pulcheria or Irene would hardly have been endured in the days of the pagan empire. Other cases in which Christianity probably exercised influence may be briefly stated. All differences in the law of succession ati intestato of males and females were abolished by Justinian. The appointment of mothers and grandmothers as tutors was sanctioned by the same emperor. He extended to all cases the principle established by the Senatus Consultum Tertullianum , enabling the mother of three (if a freed woman four) children to succeed to the property of her children who died intestate, and gave increased rights of succession to a widow. The restrictions on the marriage of senators and other men of high rank with women of low rank were extended by Constantine, but it almost entirely removed by Justinian. Second marriages were discouraged (especially by making it legal to impose a condition that a widows right to property should cease on re-marriage), and the Leonine Constitutions at the end of the 9th century made third marriages punishable. The same constitutions made the benediction of a priest a necessary part of the ceremony of marriage. The criminal law in its relation to women presents some points of interest. Adultery was punished with death by Constantine, but the penalty was reduced by Justinian to relegation to a convent. A woman condemned for adultery could not re-marry. A marriage between a Christian and a Jew rendered the parties guilty of adultery. Severe laws were enacted against offences of unchastity, especially procurement and incest. It was a capital crime to carry off or offer violence to a nun. A wife could not commit furtum of her husbands goods, but he had a special action rerum amotarum against her. By several sumptuary constituticns, contai1ied in the Code, women as well as men were subject to penalties for wearing dress or ornaments (except rings) imitating those reserved for the emperor and his family. Actresses and women of bad fame were not to wear the dress of virgins dedicated to Heaven. If a consul had a wife or mother living with him, he was allowed to incur greater expense than if he lived alone. The interests of working women were protected by enactments for the regulation of the gynoecia , or workshops for spinning, dyeing, etc.

The canon law; looking with disfavour on the female independence prevailing in the later Roman law, tended rather in the opposite direction. The Decretum specially inculcated subjection of the wife to the husband, and obedience to his will in all things. The chief differences between canon and Roman law were in the law of marriage, especially in the introduction of publicity and of the formalities of the ring and the kiss. The benediction of a priest was made a necessary part of the ceremony, as indeed it had been made by the civil power, as has been already stated, in the post-Justinian period of Roman law. But in practice this rule appears to have fallen into disuse until it was again revived by the council of Trent. A remarkable example of this tendency was the provision that an actress might leave the stage and break her contract of service with impunity in order to become a nun. Even under the pagan emperors a constitution of Diocletian and Maximian in 285 had enacted that no one was to be compelled to marry (Cod. v. 4, 14).

That birth of a child gave the mother certain legal rights in a primitive stage of society is the view of many writers. See especially Das Mutterrecht of J. J. Bachofen (Stuttgart, 1861).

The early law of the northern parts of Europe is interesting from the different ways in which it treated women. In the words of Sir H. Maine The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or as classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably took a great share in producing by their household labor; for example, in the real Salic law (not in the imaginary code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in. the inheritance of movable property, but confine land exclusively to males and the descendants of males. . . . The idea is that the proper mode of providing for a woman is by giving her a marriage portion; but, when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group. Among the Scandinavian races women were under perpetual tutelage, whether married or unmarried. The first to obtain freedom were the widows.7 As late as the code of Christian V, at the end of the 17th century, it was enacted that if a woman married without the consent of her tutor he might have, if he wished, administration and usufruct of her goods during her life.8 The provision made by the Scandinavian laws under the name of morning-gift was perhaps the parent of the modern settled property.9 The Brehon law of Ireland excepted women from the ordinary course of the law. They could distrain or contract only in certain named cases, and distress upon their property was regulated by special rules. In the pre-Conquest codes in England severe laws were denounced against unchastity, and by a law of Canute a woman was to lose nose and ears for adultery. The laws of Athelstan contained the peculiarly brutal provision for the punishment of a female slave convicted of theft by her being burned alive by eighty other female slaves. Other laws were directed against the practice of witchcraft (q.v.) by women. Monogamy was enforced both by the civil and ecclesiastical law; and second and third marriages involved penance. A glimpse of cruelty in the household is afforded by the provision, occurring no less than three times in the ecclesiastical legislation, that if a woman scourged her female slave to death she must do penance. Traces of wife-purchase are seen in the law of Ethelbert, enacting that if a man carry off a freemans wife he must at his own expense procure the husband another wife. The codes contain few provisions as to the property of married women, but those few appear to prove that she was in a better position than at a later On this branch of the subject see Manssens Het Christendom en de Vrouw (Leiden, 1,877).

The development of the bride-price no doubt was in the same direction. Its original meaning was, however, different. It was the sum paid by the husband to the wifes family for the purchase of part of the family property, while the morning-gift was paid to the bride herself. In its English form morning-gift occurs in the laws of Canute; in its Latinized form of morgangiva it occurs in the Leges Henrici Primi.

A few of the more interesting matters in which the old common and statute law of England placed women in a special position may be noticed. A woman was exempt from legal duties more particularly attaching to men and not performable by deputy. She could apparently originally not hold a proper feud, ie. one of which the tenure was by military service.i The same principle appears in the rule that she could not be endowed of a castle maintained for the defence of the realm and not for the private use of the owner. She could receive homage, but not render it in the form used by men., and she was privileged from suit and service at the sheriffs tourn. She was not sworn to the law by the oath of allegiance in the leet or tourn, and so could not be outlawed, but was said to be waived. She could be constable, either of a castle or a vill, but not sheriff, unless in the one case of Westmorland, an. hereditary office, exercised in person. in the 17th century by the famous Anne, countess of Dorset, Pembroke and Montgomery. In certain cases a woman could transmit rights which she could not enjoy. On such a power of transmission, as Sir H. Maine shows,2 rested the claim of Edward III. to the crown of France. The claim through a woman was not a breach of the French constitutional law, which rejected the claim of a woman.. The jealousy of a womans political influence is strikingly shown by the case of Alice Perrers, the mistress of Edward III. She was accused of breaking an ordinance by which women had been forbidden to do business for hire and by way of maintenance in the kings court.3

By Magna Carta a woman could not accuse a man of murder except of that of her husband. This disability no doubt arose from the fact that in trial by battle she naturally did not appear in person but by a champion. She was not admitted as a witness to prove the Status of a man on the question arising whether he were free or a villein. She could not appoint a testamentary guardian, and could only be a guardian even of her own children to a limited extent. Her will was revoked by marriage, that of a man only by marriage and the subsequent birth of a child. By 31 Hen. VI. c. 9 the kings writ out of chancery was granted to a woman alleging that she had become bound by an obligation through force or fraud. By 39 Hen. VI. C. 2 a woman might have livery of land as heiress at fourteen. Benefit of clergy was first allowed to women partially by 21 Jac. I. c 6, fully by 3 Will. & M. c 9 and 4 and 5 Will. & M. c. 24. Public whipping was not abolished until 57 Geo. III. c. 75, whipping in all cases until I Geo. IV. c. 57. Burning was the punishment specially appropriated to women convicted of treason or witchcraft. A case of sentence to execution by burning for petit treason occurred as lately as 1784. In some old statutes very curious sumptuary regulations as to womens dress occur. By the sumptuary laws of Edward III. in 1363 (37 Edw. III, cc. 8-14) women were in general to be dressed according to the position of their fathers or husbands. Wives and daughters of servants were not to wear veils above twelvepencein value. Handicraftsmens and yeomens wives were not to wear silk veils. The use of fur was confined to the ladies of knights with a rental above 200 marks a year. Careful observance of difference of rank in the dress was also inculcated by 3 Edw IV. c. 5. The wife or daughter of a knight was not to wear cloth of gold or sable fur, of a knight-bachelor not velvet, of an esquire or gentleman not velvet, satin or ermine, of a laborer not clothes beyond a certain price or a girdle garnished with silver. By 22 Edw. IV. C, I, cloth of gold and purple silk were confined to women of the royal family. It is worthy of notice that at the times of passing these sumptuary laws the trade interests of women were protected by the legislature. By 37 Edw. III. c. 6, handicraftsmen were to use only one mystery, but women might work as they had been accustomed 3Edw.IV. c. 3

In some cases the wives and daughters of tradesmen were allowed to assist in the trades of their husbands and fathers; see, for instance, the act concerning tanners, I Jac. I. c. 22. Some trading corporations, such as the East India Company, recognized no distinction of sex in their members. The disabilities imposed on women by substantive law are sometimes traceable in the early law of procedure. For instance, by the Statute of Essoins (12 Edw. II. St. 2), essoin de servitio regis did not lie where the party was a woman; that is, a woman (with a few exceptions) could not excuse her absence from court by alleging that she was on public duty. The influence of the church is very clearly traceable in some of the earlier criminal legislation. Thus by 13 Edw. I. st. 1, c. 34, it was punishable with three years imprisonment to carry away a nun, even with her Consent. The Six Articles, 31 Hen. VIII. c. 14, forbade marriage and concubinage of priests and sanctioned vows of chastity by women.

In Scotland, as early as Regiam Majestatem (12th century) women were the object of special legal regulation. In that work the mercheta mulieris (probably a tax paid to the lord on the marriage of his tenants daughter) was fixed at a sum differing according to the rank of the woman. Numerous ancient laws dealt with trade and sumptuary matters. By the Leges Quatuor Burgorum female brewsters making bad ale were to forfeit eightpence and be put on the cucking-stool, and were to set an ale-wand outside their houses under a penalty of fourpence. The same laws also provided that a married woman committing a trespass without her husbands knowledge might be chastised like a child under age. The St at uta Gilde of the I3th century enacted that a married woman might not buy wool in the streets or buy more than a limited amount of oats. The same code also ensured a provision for the daughter of one of the gild-brethren unable to provide for herself through poverty, either by marrying her or putting her in a convent. By the act 1429, c. 9, wives were to be arrayed after the estate of their husbands. By 1457, c. 13, no woman was to go to church with her face covered so that she could not be known. 158f, c. 18, was conceived in a more liberal spirit, and allowed women to wear any head-dress to which they had been accustomed. 162 I, c. 23, permitted servants to wear their mistresss cast-off clothes. 1681, c. 80, contained the remarkable provision that not more than two changes of raiment were to be made by a bride at her wedding. In its more modern aspect the law is in most respects similar to that of England. (J.W.)

In separate legal articles attention is drawn, on various subjects, to any special provisions or disabilities affecting Modern women.

The age at which a girl could contract a valid marriage, in English law, 1911, is, following the Rothan law, twelve; she is thus two years in advance of a boy, who must be fourteen. Under the lnfants Settlement Act 1855, a valid settlement could be made by a woman at seventeen with the approval of the court, the age for a man being twenty; by the Married Womens Property Act 1907 any settlement by a husband of his wifes property is not valid unless executed by her if she is of full age, or confirmed by her after she attains full age. An unmarried woman is liable for the support of illegitimate children till they attain the age of sixteen. She is generally assisted, in the absence of agreement, by an affiliation order granted by magistrates. A married woman having separate property was, under the Married Womens Property Acts 1882 and 1908, liable for the support of her parents, husband, children and grandchildren becoming chargeable to any union or parish. At common law the father was entitled as against the mother to the custody of a legitimate child up to the age of sixteen, and could only forfeit such right by misconduct. But the Court of Chancery, wherever there was trust property and the infant cotild be made a ward of court, took a less rigid view of the paternal rights and looked more to the interest of the child, and consequently in some cases to the extension of the mothers rights at common law. Legislation has tended in the same direction. By the Infants Custody Act 1873, the Court of Chancery was empowered to enforce a provision in a separation deed, giving up the custody or control of a child to the mother. The Judicature Act 1873, enacted that in questions relating to the custody and education of infants the rules of equity should prevail. The Guardianship of Infants Act 1886 largely extended the mothers powers of appointing and acting as a guardian, and gave the court a discretion to regard the mothers wishes as to the custody of the children. The Summary Jurisdiction (Married Women) Act 1895 enabled a court of summary jurisdiction, to whom a married woman has made application, to commit to the applicant the custody of any children of the marriage between the applicant and her husband, while under the age of sixteen years.

The most remarkable disabilities under which women were still placed in 1910 were the exclusion of female heirs from intestate succession to real estate, unless in the absence of a male heir; and the fact that a husband could obtain a divorce for the adultery of his wife, while a wife could only obtain it for her husbands adultery if coupled with some other cause, such as cruelty or desertion.

Suits in which either necessarily or practically only women are plaintiffs are: breach of promise, affiliation (g.e.) and (though not nominally) seduction (g.e.).

The action for breach of promise may indeed be brought by a man, but this is very rare, and its only real interest is as a protection for women. It may be brought by but not against an infant, and not against an adult if he or she has merely ratified a promise made during infancy; it may be brought against but not by a married man or woman (in spite of the inherent incapacity of such a person to have married the plaintiff), and neither by nor against the personal representatives of a deceased party to the promise (unless where special damage has accrued to the personal estate of the deceased). The promise need not be in writing. The parties to an action are by 32 and 33 Vict. c. 68 competent witnesses; the plaintiff cannot, however, recover a verdict without his or her testimony being corroborated by other material evidence. The measure of damages is to a greater extent than in most actions at the discretion of the jury; thay may take into consideration the injury to the plaintiffs feelings, especially if the breach of promise be aggravated by seduction. Either party has a right to trial by jury under the rules of the Supreme Court, 1883. The action cannot be tried in a county court, unless by consent, or unless remitted for trial there by the High Cotirt. Unchastity of the plaintiff unknown to the defendant when the promise was made and dissolution of the contract by mutual consent are the principal defences which are usually raised to the action. Bodily infirmity of the defendant is no defence to the action, though it may justify the other party in refusing to marry the person thus affected. Where the betrothed are within prohibited degrees of consanguinity or affinity, there can be no valid promise at all, and so no action for its breach.