Meliora. ART. I.-THE LEGAL POSITION OF WOMEN AND DURI ITS MORAL EFFECTS. URING recent years there has been, as we all know, a growing tendency on the part of women to criticise the treatment which they receive at the hands of the male possessors of legislative and administrative power. With the advocates of women's rights' the ordinary topics have been the merits of their sex and the injustice shown them by the other. Women, it is said; are possessed of virtues, abilities, tastes, intuitive perceptions, and powers of endurance which make them fully the equals of the other sex; while the latter, in withholding their recognition of these facts, display an unappreciative stupidity, even if they are not actuated by a petty jealousy and love of domination. The conclusion usually aimed at by these premises is that women should be put on an equality with men as regards all public rights, such as the right of voting at parliamentary and municipal elections, and of offering themselves as candidates, and the right to exercise the learned professions, and to take their part in the civil if not in the military service of the country. The right to exercise almost every calling other than those above-mentioned is already granted by the law, and there is, therefore, no ground for complaining that women cannot be painters, sculptors, civil engineers, dissenting ministers, dentists, artizans, or labourers. In this discussion, however, we do not propose now to take a part, having no wish to add to the list of combatants on a question which can never be decided by the pen. But it is rather to the other side of the picture that we would invite attention in this article. It is not so much in the rights refused to them as in the obligations which are not imposed on them that consists the injury done to women by the law. At first sight, it is true, an obligation does not appear to be a thing to be eagerly sought after, while the denial of a right may very often be matter of complaint. But whatever is paradoxical about this proposition will be cleared away upon examination. Vol. 8.-No. 30. G It It will be presently seen that, although valuable rights are withheld from a large portion of the female sex, yet a far keener insult is offered to them, and they are placed in a far lower moral status, by being exempted from the civil or penal consequences of their wrongful acts on the ground that, like infants of tender years, they have not the will constituting that moral responsibility which alone could justify their liability. Disabilities and protection go hand in hand. Where the law disqualifies from the exercise of rights it also grants an exemption from the performance of duties. We are speaking, of course, of legal duties; and, by an exemption from them, we mean an immunity from any liability for the neglect or omission to discharge them. It is in this way that the law treats that part of the female sex which is most honoured in a social point of view by their own sex and by the other. It is the married woman who is selected, under pretence of protection, for this unflattering treatment. Perfect freedom before the law, whether in private or political matters, has its duties and dangers as well as its privileges, and the latter can only be enjoyed at the expense of the performance and incurrence of the former. History is but a repetition of this lesson as far as regards political matters; and biography, which is the history of individual greatness and littleness, inculcates the same truths from more contracted but more perceptible premises. And we would urge upon those who advocate the perfect freedom of women before the law, to devote their attention to the question of immunity from legal obligations, as showing a far weaker point in the conduct and principles of their opponents than the mere exclusion from rights however galling it may be. Do not let us shut out rights, however, from our view, for they are so inseparably bound up with duties that to exclude them would produce confusion and imperfection. For instance, the right to make a contract would not be of much value without the corresponding liability to its performance, inasmuch as no one would be found willing to make a bargain with one against whom it could not be enforced. Let us, then, confine ourselves to the case of married women, but so that we take into account both the rights and liabilities of which they are deprived. Marriage being the aim of nearly every woman, and one which is attained by so many, let us examine the position which those who have fulfilled this happy destiny occupy in the eye of the law-the law made and kept in force by the other sex, which professes even a higher respect for the married than for the unmarried woman-and then let us consider what are the teachings Incapacity as to Property. 95 teachings inculcated by the law upon the married woman, and what is the mental and moral attitude to which this teaching has a tendency to drive her. In the first place the wife can hold no personal property, whatever she has being vested absolutely in her husband, unless some other person, under the name of a trustee, holds it actually or constructively for her under such circumstances as that the Court of Chancery will allow her the use of it. Thus it is with her furniture, jewels, money in the funds, shares and leases, and all legacies of such property which are left her without the interposition of a trustee, or so that the Court will treat some one as a trustee. The trustee is the legal owner, and the courts of common law and the banks and joint stock companies will not hear of any other owner. the Court of Chancery alone, and not always without expense, will the right of the wife be recognized. As regards that kind of property which is called real, namely, estates for life or of inheritance, the husband may take the profits while his wife and he are alive, and sometimes longer. In Next, the law, which has thus denied to the married woman the possession of property, consistently prohibits her from pursuing any means of acquiring it. The married woman cannot contract, or, what comes to the same thing, if she goes through the form of contracting, she can derive no benefit from the bargain. If she goes out either as a menial or a governess, she can acquire nothing but her board and lodging from day to day. Her wages must be paid to her husband, and her receipt will be no discharge, unless, expressly or by implication, authorized by him. If she engages to sing at a theatre for £20 a night, she can maintain no action for the money, nor will the manager be safe in paying her without her husband's authority. So, on the other hand, the person who contracts with the wife has no means of making her perform her contract, and this naturally results in an abatement of the price, or in her incurring an obligation to a third person, whom she induces to guarantee her performance of her bargain; which obligation is equivalent to a reduction of the price. The manager, for example, might at any time find himself deserted by the lady on whom he had relied to perform his leading part. The husband, by selecting a residence at a distance from his wife's labours, may oblige her to relinquish them; for, if she leaves him without his permission, he may bring her back by a suit for restitution of conjugal rights. And, even if the woman is suffered to carry out her contract, the husband may forbear to enforce and may discharge it, or may accept any amount less than what is due in satisfaction of it. It is true that the wife may bargain that the remunera- It may be said that the disadvantages of these incapacities will seldom be severely felt as long as the husband is able to give a home to the wife. But two things must be borne in mind. First, the husband is the sole chooser of the situation where he shall live, and of the kind of home which he shall afford his partner; for, although the wife has power to pledge her husband's credit for things necessary according to their mode of living, the husband alone has the power of choosing what that mode of living shall be, and how much of his income shall be expended upon it. Next, that, even where the wife is liberally provided for, her happiness may not consist of 'bread alone,' but may require the exercise of the faculties and energies with which she is endowed. Let us suppose, however, that the husband is absent from the country. The wife, in this case, is unable to obtain a house; for of what use would be her covenant to pay rent or to repair? She can at any time leave the premises deserted and her landlord without a remedy. People will hesitate to undertake the schooling of her children, for there is no one who can be sued for the price. She finds a difficulty in engaging a tutor or governess, or in employing any one whose remuneration is not to be paid at short intervals. For all these things she must find a friend who will rely upon her honour, and will make the contract in his name or guarantee her performance of it. The above being a description of the wife's position where she never possessed property, or where what she had passed to her husband by her marriage, let us try to imagine how much she would be bettered if she or her friends were prudent enough to require a settlement, and so vest property in a trustee for her, or if she has been so fortunate as to be the recipient of a devise or bequest by which property is left to a trustee for her. In this case it is not impossible to contract with her, for the Court of Chancery recognizes her as the Impunity for Offences. 97 the sole disposer of the property which the trustee holds for her, and will order her obligations to be discharged out of such property. But then it is never possible to enforce the fulfilment of any of her obligations without a Chancery suit; for, as has already been said, the courts of common law will not hold the wife bound by her contracts, and will consider no one but the trustee as the owner of the property held in trust for the wife. Now, it is hardly necessary to point out that no one cares to enter into a contract which can only be enforced by such an inconvenient remedy, or that if, in spite of this inconvenience, the contract is entered into, there is a natural tendency towards an increased price. In short, there is not that simplicity and clearness in the transaction which ought always to be preserved if both parties are to meet on equal terms and derive all the fair benefits. Having thus seen how incapable the wife is to make a bargain, except on her husband's account, or as agent for a third person, with any of her fellow-creatures, let us now see what impunity the law gives her for doing injuries to the rest of mankind. When a person of the male sex makes a bargain the law holds him to it; and, when the same person commits a wrong, whether or not connected with any bargain, he is answerable in damages for it. The same with an unmarried woman. With the wife, however, it is quite otherwise. Whatever wrongs the wife does must be paid for by the husband. The wife is virtually irresponsible for those breaches of positive morality which the law punishes by damages. If she owes her husband a grudge, she has nothing to do but to slander, or libel, or assault, or drive over some one; if this is not convenient, the refuse of the house may be thrown over a neighbour's wall, or some other mode of trespass may be resorted to. Whether she is living with her husband or not makes no difference. An amicable separation from an unfriendly wife is no protection to a husband. The law supposes that a husband must always live with his wife, unless one or other of them commits some offence cognizable in the Divorce Court, in which case, at great expense, they may be judicially separated, or may have their marriage dissolved, as the case may be. The law tells the man that, if he wants even to be separated from his wife, so as to be exempt from paying damages for his misdeeds, he must beat her or commit adultery, and must persevere in this course with sufficient pertinacity to drive her to the Divorce Court. During all this time he must, moreover, save a little fund for costs and alimony, and must, therefore, persuade his wife to be thrifty. Now, on what grounds does the law make the hus band |