THE ORIENTAL ESTIMATE AND THE FRENCH LAW.

"The law of God, positive law and positive morality, sometimes coincide, sometimes do not coincide, and sometimes conflict."—John Austin: Province of Jurisprudence Defined.

"OF 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 meanest as not afraid of her power."

In reading this magnificent and well-known sentence from Hooker, the imagination is easily kindled to a divine prescience. We accept the definition. Fair before us rise the graceful proportions of eternal order in society, 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 enthusiasm 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 legislatures or parliaments, from republics or autocrats, were these sublime words written?"

Where in the soft shadows of Oriental hareems, in the gloom of Hindoo caves, Egyptian 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 the saloons of French society, or by the hearths of good old England; where, 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 bosom of God, and so entitled to the reverence of man?

We outgrow all things. Always the new patch breaks the fabric of the old garment; always the new wine shatters 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 public progress, if not in the traditions of the elders.

This, and this only, saves old systems from violent demolition. Were the State of Connecticut 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 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 enactments 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: "Every book of knowledge which is known to Oosana or to Vreehaspatee is by nature implanted in the understandings of women."

Nobody asked what sort of knowledge was known to these two deities; but most readers took it for granted that it was 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 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 Sarma:—

"Women, at all times," he says, "have been inconstant, even among the Celestials."

"Woman's virtue is founded upon a modest countenance, precise behavior, rectitude, and a deficiency of suitors."

"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 liberty."

"Infidelity, violence, deceit, envy, extreme avarice, a total want of good qualities, with impurity, are the innate faults of womankind."

These extracts will throw some light, perhaps, upon the knowledge of Oosana and Vreehaspatee, 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 dialect 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," says an ancient Hindoo scripture, "for every woman, after her husband's death, to burn herself in the fire with his corpse." 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 arrogant 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 KÖhl, the German traveller, tells us that a Turk blushes and apologizes when he mentions his wife, as if he had been guilty of a needless impertinence. The same thing is reported of one of the Sclavic tribes, among whom it may have been borrowed from their Ottoman conquerors.

In the "London Quarterly" for October, 1860, we are told that the convent of Nuestra Senhora da Ajuda in Rio was long employed for the purpose of locking up ladies whose husbands were on their travels. This has been forbidden by the present emperor.

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, without 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, called Muhar, is the chief of each clan. Her husband is called Muharree, and has a representative authority, but no right to her property. Should he incline to squander it, the clan will interfere in her behalf. When the Duke of Wellington fought the battle of Assaye, in 1803, against the Mahrattas, a woman, the Begum of Lumroom, belonging to the military tribe of Nairs, fought against him at the head of her cavalry. In this tribe the succession 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 Deccan. 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 compeers. Look at them:—

"A rich man is never ugly in the eyes of a girl."

"A beautiful woman, smiling, tells of a purse gaping."

"Every woman would rather be handsome than good."

"A house full of daughters is a cellar full of sour beer."

"Three daughters and the mother are four devils for the father."

"A man of straw is worth a woman of gold."

"A rich wife is a source of quarrel."

"'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 verse, if not into poetry; and, in examining the laws of more modern times, we shall constantly 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 prudence. 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 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.[32] I shall advert to the laws of marriage and divorce, only to point out mistakes or bad results not generally perceived, 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 living for ages in a false position, she should somewhat approximate to this estimate; 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 common, in treating of this subject, to dwell 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 estimate 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-presses nor newspapers. We have only the judgment of a few men, themselves law-makers, to rely upon; and their opinions had a very limited 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 "other side." Women, however, ought always to remember to whom they owe the changes made in Justinian's time. The life of Theodora is yet to be written. The scandalous anecdotes of a secret history must some day be balanced by the public testimony of Procopius, and some good be told of the woman whose first thought, when raised to empire, was for the companions of her previous infamy, and whose influence over her husband never faltered, and is visible in every modification 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.[33]

The laws which most directly affect us here in America are the laws of France and England: the laws of France, because they modify the code of Canada, Florida, and Louisiana; 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," said Bonaparte, as he closed a cabinet council, while preparing his famous Code; "and that is, a woman who can do as she pleases."

The estimate of woman in France is of a double character.

It is low, because marriage among the upper classes is, at the best, only a well-made bargain.

It is high, because women have been encouraged 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 business.

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 wealthier 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 husband 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 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 blessing. 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 society. If we would save and serve humanity here, we must let natural susceptibilities have their full play.

At the same time, the business freedom which women enjoy in France has led many women to reflect thoroughly and act vigorously. The reading world is deluged with books relating to woman,—her education, her labor, and her civil rights. Out of this condition 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 Michelet, 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 gladly to the daily bread of Divine Ordinance. Once, in Rosa Bonheur, fresh and wise, energetic 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 church or society. "I have no patience," she once said, "with women who ask permission to think. Let women establish their claims by great and good works, and not by conventions." 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 "truth will never reign over the world, nor between the sexes, until, by being set free, woman loses all temptation to dissimulate."

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 Roland boldly claims that marriage shall never be tolerated, till man as well as woman is compelled to keep the law of chastity.

There Madame Moniot claims her civil rights from the lecturer's desk; and DÉsirÉe 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 studied; when we look back, on the one hand, to Marie Antoinette and Madame RÉcamier, and, on the other, to Madame Roland, Madame de StaËl, 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 laborer 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 NapolÉon" is founded on the Roman, and is very similar to the English common law, so far as it concerns woman: but beside this law, which is called, in reference to married women, the dotal, there 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 Southern 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,—contributed to the acquisition of property.

It is very singular that all the nations of Continental 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 NapolÉon" elucidated and defined the dotal system, it expressly provided for the right of choice in the parties, and declared, that, if no choice were made, they should be supposed to be living under the German or communal law.

The Dutch law is essentially the same. When the "Code NapolÉon" 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 compelled to shift in narrow ways, like a beggar or a miser, on account of his parsimony or personal ill-will.

The wife cannot give away the smallest article, not even such as have been gifts to her: and the 934th article of the "Code NapolÉon" 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." 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 authority 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 legislators tell us, the rights of the wife are protected. But this very protection is insulting; for it treats the wife as if she must of necessity be either an inert instrument in the hands of her husband, or a dupe, whose weakness he might readily abuse. Through such protection, the dishonest merchant finds it easy to defraud his creditors.

Now, this "Code NapolÉon" says that "the husband owes protection to his wife; and the wife, on her side, owes obedience to her husband:" but it goes on to secure the obedience by giving an unlimited right to the person of the wife, without in any way providing the promised protection.

"The wife must live with her husband, and follow him wherever he sees fit to go. As for him, he must receive her, and furnish her with necessaries according to her wealth and rank."

Now, this clause actually constrains no one but the wife; for what would be the condition 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 recognition of her wealth and rank would be 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 conduct of her husband; but it keeps her powerless 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 husband's consent in person or on paper. The guardianship of the children is left to the survivor 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 woman, 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 communal system,—that is, pledged in her own 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 personality, is only absurd when she fulfils all the functions of a citizen. Well may LegouvÉ exclaim, "that, if the household be woman's own sphere, she ought to be queen in it; and her own faculties should secure her this supremacy. 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 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 imposes 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 property, of marriage, and of suffrage, founded upon that estimate. What is her civil position? 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 ponders their condition cannot fail to see, that here, as elsewhere, the protection afforded by the law is merely the vigilance of a police officer, 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 thinking 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 postmistresses, and inspectors of schools; or they may take charge of the bureaus of wood or tobacco. 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 success must rest: I mean, the right of promotion. Do not smile, prompted by an unworthy 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 wayfarer may die by a sunstroke, or perish of a frost; where endless miles stretch over uncultivated wastes: better; for here, at least, the way is open, the sky overhead.

Before proceeding to speak of the English common law, it will perhaps be well to turn from the "Code NapolÉon" 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 only by the English common law, but by Canadian statutes, somewhat in the spirit of our own recent enactments, and by curious archÆological remains of feudal law,—laws which would sound like the decrees of Haroun 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.[34]

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, is "extra-dotal." The dowry belongs to the husband during marriage; and he has the administration of the partnership, and may alienate his revenue, without his wife's consent: but he cannot convey the common estate. If, before marriage, he should stipulate that there should be no partnership, his wife preserves the entire control of her own property. 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 "partnership 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 loose mixture of the Roman or dotal system with the German communal law, based on the partnership of gains; but the common law takes it for granted that the partnership exists, 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 "Code NapolÉon," in the same way, to all appearance, that we refer to the common law of England.

The estimate of woman upon which the "Code NapolÉon" is founded has the same effect upon her earnings as the English common law. As, in marriage, the policy has been to keep her subordinate and inferior; to give her no privileges which should lead to independence: 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.

As polishers, burnishers, and copper-workers; as glove-makers, enamellers, and wire-drawers; as flax-beaters and soakers; as spinners, gauze-workers, and winders; as basket-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 practically 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 factory, who received one franc and fifty centimes 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 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, according to the "Revue des Deux Mondes," now average only from twenty to twenty-five cents a day.

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