Anna Garlin Spencer

“ Our first point (the social law controlling the varying position of married women) brings us at once to the fact that physical unions of men and women must have preceded all legal definitions of their relation to each other, or to their offspring. We begin to call these unions marriage, when the first headland of rude ceremonial selection appears above the sea of promiscuous passions. For a long while yet, no legal enactments fix the status of the wife ”

“ Judging from facts of existing law, and analogies of other social movements, we may arrive at the conclusion that, just as in political control the overmastering impulse of growth is in the direction of the greatest possible freedom of the individual, consistent with social cohesion, so in domestic control the irresistible movement is in the direction of the most perfect legal equality of the married partners, consistent with family unity. ”

“ On exactly the same principle, the building up of the family, which precedes the establishment of political order, must begin in the strong foundation-wall of family unity, even although to that unity must be sacrificed the individual rights of every member of the family except its acknowledged head. Hence we discover the law which underlies the varieties and changes in the condition of married women to be a law which concerns itself first, not with the rights of any individual inside the family, but with the development and defense of the family itself. ”

“ Hence the average woman, physically weaker than man, is his prey. Polygyny places her person in the custody of her husband, and thus enlists for its defense, against lawless raids of masculine lust, the selfish instinct of preservation of one's own property. And this protection of woman is absolutely indispensable, under barbarous conditions, not only for the growth of chastity on her part, but for the nourishment of offspring. We have this great gain in the family order in this type, that the father is brought into the household, and placed beside the mother and children. ”

“ Some women claim the right to retain their own single names, and demand a legal recognition of that right. Should that be yielded in any case, which parent would then claim superiority of child-ownership in giving a name to the children? These and other delicate questions of adjustment must be determined, not by a priori reasoning, but by an appeal to past and present experience, with these two principles in view, viz., the primary need of family unity as a condition of social order, and the secondary need of increasing measure of personal independence for women within that unity. ”

“ This type of marriage affords sometimes to women, "as in Thibetan polyandry, freedom and equality of companionship with men." It everywhere gives her such measure of power as her physical strength can command; and by interesting many men, although ever so slightly, in the welfare of some one household, it offers the beginning of protection to offspring, in supplies of food and defense in war.
The next step up in marriage types is to what we call polygyny, or the union of several wives with one husband. ”

“ Thus was the monogamic unity of the family secured by the strong domestic control of a father-head, just as the organic unity of society was secured by the strong political control of an unlimited monarchy. ”

“ The unity of the family, therefore, being the fundamental condition of the unity of society, it is secured beyond peradventure by successive changes which tend more and more to establish certainty of descent, of preservation, and of care of offspring. Probably every form of relation between man and woman, from promiscuity to pure monogamy, has been in existence at every stage of human development. But the prevailing type of sexual union has differed at each of these differing stages. ”

“ Not only this, but it became apparent that the domestic order also contained within itself necessities for like definition and defense of personal rights. The tendency thus inaugurated naturally took shape first, in its relation to married women, in an increase of secured independence of personal action, and of parental control, to women cruelly abused or divorced or deserted by their husbands. It began to be seen that the wives of bad or incompetent men should not be the domestic slaves of those men. ”

“ In six States her separate property is liable for family debts, although in most instances she is so liable only in the second degree, all the husband's property being jeopardized first.
In seven States the division of property on the death of either husband or wife, whether there be any issue or not, is very nearly or quite equal; in most of the other States the widower has nearly all the rights in the wife's estate he had under the common law, and she has a life interest in his real, and absolutely only a fraction of his personal, property. ”

“ It began to be seen that the children of bad or incompetent fathers should have the protection and support he failed to give them provided by the other parent, who to that end should be endowed with certain powers of ownership of property and person. And, as legislators had their attention drawn to these truths by concrete illustrations of abuses, by husbands and fathers, of the law which gave them absolute power over wife and children, they tried to alter the law in one and another particular. ”

“ There should be some uniformity of law, as to marriage contract and its dissolution by divorce, in the different States. Another practical consideration is this: women must be prepared to assume personal responsibilities as they attain personal rights. No State Legislature has said "Go to, let us make the married woman the legal equal of her husband," but legislation has pointed in that direction more and more during these last years, so pregnant of changes in her position. ”

“ In twenty-one States a married woman is solely liable for her antenuptial debts; in five States her husband is liable for them to the extent of the property she brought to the common stock at marriage.
In sixteen States a married woman can make a will devising her separate property according to her wish; in twelve States she can so will her estate, provided she gives her husband as much as the law of that State would give him if she died intestate; and in one State she can make a will only by her husband's written consent. ”

“ If the married woman is to be the legal equal of her husband, she will find she must accept the penalties as well as gains of independence. The laws already indicate this. For instance, as soon as women were allowed to hold as separate property what they owned before marriage, they were made solely liable for their own antenuptial debts. As soon as women were allowed to hold as separate property what they gained in any way after marriage, they were made liable for their own separate debts incurred after marriage. ”

“ Fatherhood may pass through many stages, from a light flitting from one polyandric household to another, on to that form in which the several husbands of the female head of such households must be distinctly related to each other, but, through all the varieties of polyandry, the fixed stake of classification and localization of offspring defines the family outline. ”

“ The second grade of wife could be of inferior birth, and was united to her noble husband merely by a civil service, which gave him full power over her, but which secured her legal protection and support, and could be annulled by divorce. The third grade of wifehood was one which gave perfect legal independence to the woman, and also removed from her all legal protection. ”

“ We find the position of the married woman, as defined by these social laws, written and unwritten—and, if unwritten, quite as likely to be stringently enforced—to furnish examples of every grade of condition, from the captured or purchased slave to the comparatively equal partner. Moreover, we find the woman sometimes in possession of the most personal freedom in the lowest general social development. ”

“ For instance, in Massachusetts, the law declares that woman owns her own property, and may manage it free from all interference; yet so many troublesome conditions are to be complied with, and in important cases there are so many possible risks from technical barriers, that many women still find it to their advantage to empower some man-friend with a trustee's external rights, that she may really control her own, through him in his capacity of agent. ”

“ The first thing, therefore, for every married woman to do is to find out the statutes of her own State respecting her position, and then learn the actual practical bearing of the laws in any point that touches her. ”

“ Protected by these ever-changing codes, the higher uses of the family life will develop—the more internal unity of the married twain and the more perfect moral nourishment of their offspring will bring on a civilization which must write itself out in "sweeter manners, purer laws." ”

“ These exact limits we can not yet master in superficial detail, either in political government or family life. But past experience shows us that the measure of personal independence which woman can gain inside the family structure will alone be hers permanently. ”

“ The student of sociology must be convinced that the evolution of the family determines, in its different stages, the differing position of the married woman.
For proof of this statement we have only to consider the following facts: Progress from barbarism to civilization is marked by ever-increasing political control, as opposed to accidental, shifting despotisms of powerful individuals on the one side, and to purposeless anarchy of the masses on the other. "Political control rests primarily on distinct relationships of blood." ”

“ Descent, reckoned on the father's side, not only secures double ancestry, but, on account of the greater brute strength of men, is more likely to keep the inheritance intact. Again, although women enjoy a nominal freedom before this point, it is only that gained by personal qualities—it has no bulwark of law. ”

“ Certainly, it ought not to be possible for men and women to assume the solemn obligation of marriage in one State, under one set of legal conditions, and one or the other party to the contract throw off those obligations in another State, under another set of legal conditions. ”

“ Rudimentary monogamy was the attempt to settle by law the relative positions of a man's several wives, placing one on a secure height above the others, to insure a certain descent of title, property, and power to her children. ”

“ For instance, in States accepting the principle of equal ownership of personal estate and equal responsibility for personal debts, the question as to which parent should be solely or chiefly responsible for the support of the family is only half met. ”

“ Meanwhile, as the band of ancient law, which made woman the domestic slave of man, protected her from a worse fate, and made possible the primitive home, so the inconsistencies of our present laws make that band flexible in adjustment, even by ignorant or unconscious workers, to the present and future needs of woman and the home. ”

“ Polygyny marks the point at which the chastity of the mother was made the limit on one side, and the indulgence of the father, only inside the household, the limit on the other. This was a great gain in the line of repression, even although it gave man absolute power over as many wives as he could secure. ”

“ In Iowa, also, the family expenses are chargeable equally to both parents, and on divorce the support of the children is still a mutual burden, and custody of the children is decreed to either parent—on discretion of the Court. ”

“ As fast as the wife is removed from wardship to her husband, she should be required to assume her personal obligations and release him from them. The practical question now before us is, How far are these twin tendencies to proceed? ”

“ They mark an enormous increase of personal power in the married woman's condition during the last thirty years. But probably her actual legal position is more restricted still than these statutes would indicate. The average man wishes to do justice, as fast as he can see it. ”