CHAPTER III

EUROPEAN WOMEN AND THE SALIC LAW

Several years ago a woman of wealth and social prominence in Kentucky, after pondering some time on the inferior position of women in the United States, wrote a book. In this volume the United States was compared most unfavorably with the countries of Europe, where the dignity and importance of women received some measure of recognition.

Women, this author protested, enjoy a larger measure of political power in England than in America. In England and throughout Europe their social power is greater. If a man becomes lord mayor of an English city his wife becomes lady mayoress, and she shares all her husband's official honors. On the Continent women are often made honorary colonels of regiments, and take part with the men in military reviews. Women frequently hold high offices at court, acting as chamberlains, constables, and the like. The writer closed her last chapter with the announcement that she meant henceforth to make her home in England, where women had more than once occupied the throne as absolute monarch and const.i.tutional ruler.

It is true that in some particulars American women do seem to be at a disadvantage with European women. With what looks like a higher regard for women's intelligence, England has bestowed upon them every measure of suffrage except the Parliamentary franchise. In England, throughout the Middle Ages, and even down to the present century, women held the office of sheriff of the county, clerk of the crown, high constable, chamberlain, and even champion at a coronation,--the champion being a picturesque figure who rides into the hall and flings his glove to the n.o.bles, in defense of the king's crown.

In the royal pageants of European history behold the powerful figures of Maria Theresa, Catherine the Great, Mary Tudor, Elizabeth, Mary of Scotland, Christina of Sweden, rulers in fact as well as in name; to say nothing of the long line of women regents in whose hands the state intrusted its affairs, during the minority of its kings. In the United States a woman candidate for mayor of a small town would be considered a joke.

These and other inconsistencies have puzzled many ardent upholders of American chivalry. In order to understand the position of women in the United States it is necessary to make a brief survey of the laws under which European women are governed, and the social theory on which their apparent advantages are based.

In the first place, the statement that in European countries a woman may succeed to the throne must be qualified. In three countries only, England, Spain, and Portugal, are women counted in the line of succession on terms approaching equality with men. In these three countries when a monarch dies leaving no sons his eldest daughter becomes the sovereign. If the ruling monarch die, leaving no children at all, the oldest daughter--failing sons--of the man who was in his lifetime in direct line of succession is given preference to male heirs more remote. Thus Queen Victoria succeeded William IV, she being the only child of the late king's deceased brother and heir, the Duke of Kent.

Similar laws govern the succession in Portugal and Spain, although dispute on this point has more than once caused civil war in Spain.

In Holland, Greece, Russia, Austria, and a few German states a woman may succeed to the throne, provided every single male heir to the crown is dead. Queen Wilhelmina became sovereign in Holland only because the House of Orange was extinct in the male line, and Holland lost, on account of the accession of Wilhelmina, the rich and important Duchy of Luxemburg.

Luxemburg, in common with the rest of Europe, except the countries described, lives under what is known as the Salic Law, according to which a woman may not, in any circ.u.mstances, become sovereign.

A word about this Salic Law is necessary, because the tradition of it permeates the whole atmosphere in which the women of Europe live, move, and have their legal and social being.

The Salic Law was the code of a barbarous people, so far extinct and forgotten that it is uncertain just what territory in ancient Gaul they occupied at the time the code was formulated. Later the Salian Franks, as the tribe was designated, built on the left bank of the Seine rude fortresses and a collection of wattled huts which became the ancestor of the present-day city of Paris.

The Salic Law was a complete code. It governed all matters, civil and military. It prescribed rules of war; it fixed the salaries of officials; it designated the exact amount of blood money the family of a slain man might collect from the family of the slayer; it regu lated conditions under which individuals might travel from one village to another; it governed matters of property transfer and inheritance.

The Salian Franks are dust; their might has perished, their annals are forgotten, their cities are leveled, their mightiest kings sleep in unmarked graves, their code has pa.s.sed out of existence, almost indeed out of the memory of man,--all except one paragraph of one division of one law. The law related to inheritance of property; the special division distinguished between real and personal property, and the paragraph ruled that a woman might inherit movable property, but that she might not inherit land.

There was not a syllable in the law relating to the inheritance of a throne. Nevertheless, centuries after the last Salian king was laid in his barbarous grave a French prince successfully contested with an English prince the crown of France, his claim resting on that obscure paragraph in the Salic code. The Hundred Years' War was fought on this issue, and the final outcome of the war established the Salic Law permanently in France, and with more or less rigor in most of the European states.

At the time of the French Revolution, when the "Rights of Man" were being declared with so much fervor and enthusiasm, when the old laws were being revised in favor of greater freedom of the individual, the "Rights of Woman" were actually revised downward. Up to this time the application of the Salic Law was based on tradition and precedent. Now a special statute was enacted forever barring women from the sovereignty of France. "Founded on the pride of the French, who could not bear to be ruled by their own women folk," as the records are careful to state.

The interpretation of the Salic Law did more, a great deal more, than exclude women from the throne. It established the principle of the inherent inferiority of women. The system of laws erected on that principle were necessarily deeply tinged with contempt for women, and with fear lest their influence in any way might affect the conduct of state affairs. That explains why, at the present time, although in most European countries women are allowed to practice medicine, they are not allowed to practice law. Medicine may be as learned a profession, but it affects only human beings. The law, on the other hand, affects the state. A woman advocate, you can readily imagine, might so influence a court of justice that the laws of the land might suffer feminization.

From the European point of view this would be most undesirable.

The apparently superior rights possessed by English women were also bestowed upon them by a vanished system of laws. They have descended from Feudalism, in which social order the _person_ did not exist. The social order consisted of _property_ alone, and the claims of property, that is to say, land, were paramount over the claims of the individual.

Those historic women sheriffs of counties, clerks of crown, chamberlains, and high constables held their high offices because the offices were hereditary property in certain t.i.tled families, and they had to belong to the entail, even when a woman was in possession. The offices were purely t.i.tular. No English woman ever acted as high constable. No English woman ever attended a coronation as king's champion. The rights and duties of these offices were delegated to a male relative. Every once in a while, during the Middle Ages, some strong-minded lady of t.i.tle demanded the right to administer her office in person, but she was always sternly put down by a rebuking House of Lords, sometimes even by the king's majesty himself.

In the same way the voting powers of the women of England are a result of hereditary privilege. Local affairs in England, until a very recent period, were administered through the parish, and the only persons qualified to vote were the property owners of the parish. It was really property interests and not people who voted. Those women who owned property, or who were administering property for their minor children, were ent.i.tled to vote, to serve on boards of guardians, and to dispense the Poor Laws. Out of their right of parish vote has grown their right of munic.i.p.al franchise. It carries with it a property qualification, and the proposed Parliamentary franchise, for which the women of England are making such a magnificent fight, will also have a property qualification.

The real position, legal and social, which women in England and continental Europe have for centuries occupied, may be gauged from an examination of the feminist movement in a very enlightened country, say Germany. The laws of Germany were founded on the Corpus Juris of the Romans, a stern code which relegates women to the position of chattels.

And chattels they have been in Germany, until very recent years, when through the intelligent persistence of strong women the chains have somewhat been loosened.

A generation ago, in 1865, to be exact, a group of women in Leipzig formed an a.s.sociation which they called the Allgemeinen Deutschen Frauenbund, which may be Anglicized into General a.s.sociation of German Women. The stated objects of the a.s.sociation give a pretty clear idea of the position of women at that time. The women demanded as their rights, Education, the Right to Work, Free Choice of Profession. Nothing more, but these three demands were so revolutionary that all masculine Germany, and most of feminine Germany, uttered horrified protests.

Needless to say nothing came of the women's demand.

After the Franco-Prussian War the center of the women's revolt naturally moved to the capital of the new empire, Berlin. From that city, during the years that followed, so much feminine unrest was radiated that in 1887 the German Woman Suffrage a.s.sociation was formed, with the demand for absolute equality with men. Two remarkable women, Minna Cauer and Anita Augsberg, the latter unmarried and a doctor of laws, were the moving spirits in the first woman suffrage agitation, which has since extended throughout the empire until there is hardly a small town without its suffrage club.

Now the woman suffragist in Germany differs from the American suffragist in that she is always a member of a political party. She is a silent member to be sure, but she adheres to her party, because, through tradition or conviction, she believes in its policies. Usually the suffragist is a member of the Social Democratic Party, allied to the International Socialist Party. She is a suffragist because she is a Socialist, because woman suffrage, and, indeed, the full equalization of the laws governing men and women are a part of the Socialist platform in every country in the world. The woman member of the Social Democratic party is not working primarily for woman suffrage. She is working for a complete overturning of the present economic system, and she advocates _universal adult suffrage_ as a means of bringing about the social and economic changes demanded by the Socialists.

These German Socialist women are often very advanced spirits, who hold university degrees, who have entered the professions, and are generally emanc.i.p.ated from strictly conventional lives. Others, in large numbers, belong to the intellectual proletarian cla.s.ses. Their American prototypes are to be found in the Women's Trade Union League, described in a later chapter.

The other German suffragists are members of the radical, the moderate (we should say conservative), and the clerical parties. These women are middle cla.s.s, average, intelligent wives and mothers. They correspond fairly well with the women of the General Federation of Clubs in the United States, and like the American club women they are affiliated with the International Council of Women. Locally they are working for the social reforms demanded by the first American suffrage convention, held in Seneca Falls, New York, in 1848. They are demanding the higher education, married women's property rights, free speech, and the right to choose a trade or profession. They are demanding other rights, from lack of which the American woman never suffered. The right to attend a political meeting was until recently denied to German women. Although they take a far keener and more intelligent interest in national and local politics than American women as a rule have ever taken, their presence at political meetings has but yesterday been sanctioned.

The civil responsibility of the father and mother in many European countries is barbarously unequal. If a marriage exists between the parents the father is the only parent recognized. He is sole guardian and authority. When divorce dissolves a marriage the rights of the father are generally paramount, even when he is the party accused.

On the other hand, if no marriage exists between the parents, if the child is what is called illegitimate, the mother is alone responsible for its maintenance. Not only is the father free from all responsibility, his status as a father is denied by law. Inquiry into the paternity of the child is in some countries forbidden. The unhappy mother may have doc.u.mentary proof that she was betrayed under promise of marriage, but she is not allowed to produce her proof.

Under the French Code, the substance of which governs all Europe, it is distinctly a principle that the woman's honor is and ought to be of less value than a man's honor. Napoleon personally insisted on this principle, and more than once emphasized his belief that no importance should be attached to men's share in illegitimacy.

These and other degrading laws the European progressive women are trying to remove from the Codes. They have their origin in the belief in "The imprudence, the frailty, and the imbecility" of women, to quote from this Code Napoleon.

Whatever women's legal disabilities in the United States, their laws were never based on the principle that women were imprudent, frail, or imbecile. They placed women at a distinct disadvantage, it is true, but it was the disadvantage of the minor child and not of the inferior, the chattel, the property of man, as in Europe.

Laws in the United States were founded on the a.s.sumption that women stood in perpetual need of protection. The law makers carried this to the absurd extent of a.s.suming that protection was all the right a woman needed or all she ought to claim. They even pretended that when a woman entered the complete protection of the married state she no longer stood in need of an ident.i.ty apart from her husband. The working out of this theory in a democracy was far from ideal, as we shall see.

CHAPTER IV

AMERICAN WOMEN AND THE COMMON LAW

A little girl sat in a corner of her father's law library watching, with wide, serious eyes, a scene the like of which was common enough a generation or two ago. The weeping old woman told a halting story of a dissipated son, a shrewish daughter-in-law, and a state of servitude on her own part,--a story pitifully sordid in its details. The farm had come to her from her father's estate. For forty years she had toiled side by side with her husband, getting a simple, but comfortable, living from the soil. Then the husband died. Under the will the son inherited the farm, and everything on it,--house, furniture, barns, cattle, tools. Even the money in the bank was his. A clause in the will provided that the son should give his mother a home during her lifetime.

So here she was, after a life of hard work and loving service, shorn of everything; a pauper, an unpaid servant in the house of another woman,--her son's wife. Was it true that the law took her home away from her,--the farm that descended to her from her father, the house she had lived in since childhood? Could nothing, _nothing_ be done?

The aged judge shook his head, sadly. "You see, Mrs. Grant," he explained, "the farm has never really been yours since your marriage, for then it became by law your husband's property, precisely as if he had bought it. He had a right to leave it to whom he would. No doubt he did what he thought was for your good. I wish I could help you, but I cannot. The law is inexorable in these matters."

After the forlorn old woman had gone the lawyer's child went and stood by her father's chair. "Why couldn't you help her?" she asked. "Why do you let them take her home away from her?"

Judge Cady opened the sheep-bound book at his elbow and showed the little girl a paragraph. Turning the pages, he pointed out others for her to read. Spelling through the ponderous legal phraseology the little girl learned that a married woman had no existence, in the eyes of the law, apart from her husband. She could own no property; she could neither buy nor sell; she could not receive a gift, even from her own husband. She was, in fact, her husband's chattel. If he beat her she had no means of punishing, or even restraining him, unless, indeed, she could prove that her life was endangered. If she ran away from him the law forced her to return.

Paragraph after paragraph the child read through, and, unseen by her father, marked faintly with a pencil. So far as she was aware, father, and father's library of sheep-bound books, were the beginning and the end of the law, and to her mind the way to get rid of measures which took women's homes away from them was perfectly simple. That night when the house was quiet she stole downstairs, scissors in hand, determined _to cut every one of those laws out of the book_.

The young reformer was restrained, but only temporarily. As Elizabeth Cady Stanton she lived to do her part toward revising many of the laws under which women, in her day, suffered, and her successors, the organized women of the United States, are busy with their scissors, revising the rest.

Not alone in Russia, Germany, France, and England do the laws governing men and women need equalizing. In America, paradise of women, the generally accepted theory that women have "all the rights they want"

does not stand the test of impartial examination.

In America some women have all the rights they want. Your wife and the wives of the men you a.s.sociate with every day usually have all the rights they want, sometimes a few that they do not need at all. Is the house yours? The furniture yours? The motor yours? The income yours? Are the children yours? If you are the average fond American husband, you will return the proud answer: "No, indeed, they are _ours_."

This is quite as it should be, a.s.suming that all wives are as tenderly cherished, and as well protected as the women who live on your block.

For a whole big army of women there are often serious disadvantages connected with that word "ours."

In Boston there lived a family of McEwans,--a man, his wife, and several half-grown children. McEwan was not a very steady man. He drank sometimes, and his earning capacity was uncertain. Mrs. McEwan was an energetic, capable, intelligent woman, tolerant of her husband's failings, ambitious for her children. She took a large house, furnished it on the installment plan, and filled it with boarders. The boarders gave the family an income larger than they had ever possessed before, and McEwan's contributions fell off. He became an unpaying guest himself. All his earnings, he explained, were going into investments.