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Legal rights of women in history

The Legal rights of women refers to the social and human rights of women. One of the first women's rights declarations was the Declaration of Sentiments. From women's involvement within the abolition movements, women of the early 1800s became aware of the male dominance in society (patriarchy). From then on women struggled for equality, and were largely rewarded.

The dependent position of women in early law is proved by the evidence of most ancient systems.

Mosaic law

In the Mosaic law, women's rights were minimized in favor of male authority. Divorce was a privilege of the husband only, except for extreme cases; the vow of a woman might be disallowed by her father or husband. The guilt or innocence of a wife accused of adultery might be tried by the ordeal of the bitter water. Daughters could inherit only in the absence of sons, and then they must marry in their tribe (endogamy).

Besides these instances, which illustrate the 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. Second marriages were not restrained. Rather, it was the duty of a childless widow to marry her deceased husband's brother (see levirate marriage and widow inheritance).

Egyptian law

However, in Ancient Egypt, the status of women was much better. A few women became pharaohs, and women held important positions in government and trade. Legally, a woman shared the same rights and status as a man - at least, theoretically. An Egyptian woman was entitled to her own private property, which could include land, livestock, slaves and servants, etc. She had the right to inherit whatever anyone bequeathed to her, as well as bequeathing her belongings to others. She could divorce her husband (upon which all possessions belonging to her - including the dowry - were reverted to her sole ownership), and sue in court. Most notably, a woman could do these legal matters without a male to represent her. However, on the whole, men vastly outnumbered women in most trades, including government administrators; the average woman still centered her time around the home and family.

Roman law

In Roman law, a woman was completely dependent on her male relatives. 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, control passed to her nearest blood relations. If there were no close blood relations, the extended family would be responsible for her upkeep.

The wife was the purchased property of her husband, and was, like a slave, acquired only for his benefit. A woman could not exercise any civil or public office. 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 had to be disinheirted by name. Furthermore, women could not obtain Roman citizenship, which provided exemption from scourging and crucifixion, gave the right to appeal before Caesar, and provided legal immunity from jurisdictions outside Rome.

Women did have some legal privileges. However, these were justified on the grounds of bodily weakness and presumed mental incapacity. Thus a woman could plead ignorance of law as a ground for dissolving an obligation, which a man could not, as a rule, do. However, a woman could accuse others only in cases of treason and witchcraft, and in certain cases she was exempt from torture. In succession ab intestate to immovable property, Roman law, unlike English law, did not recognize any privilege of males over females.

Legal disabilities were gradually mitigated by the influence of praetorian equity and legislation. Some women managed to gain their independence by submitting themselves to the authority of a tutor or husband, with the understanding that he was to emancipate her at once. The action of equity is illustrated by the recognition by the praetor of a widow's 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 the owner of a fortune of 100,000 asses. A constitution of Valentinian I forbade bequests by women to ecclesiastics.

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, or of a widow to marry within a year of her husband's death—the position of women had become one of great personal and proprietary independence. Roman women were treated unfairly.

Christian laws and influences on women's rights

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 friendly toward the clergy. 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 widow's 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 also changed its perspectives on women. Though still possessed of little legal power, women were increasingly held accountable for violations of the law. Adultery was punished with death by Constantine, but the penalty was reduced by Justinian to banishment 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. Women 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.

Women's rights in the East

In the East, up until 1500s, women were generally treated almost as untouchable and had very few rights. They were subjected to highly degrading practises like purdah (living separately from men or in seclusion, see also sexy segregation); sati, the killing of the wife on the dead husband's funeral pyre; child marriage, when girls of between 5 and 10 years old were married off, without their consent or knowledge; dowry, the giving of expensive gifts by the bride's family to the groom's family in agreement to the wedding; etc.

Sikhism

Guru Nanak (1469-1539), the founder of Sikhism, is believed to be the first person in the world to highlight the equality of women and to speak against the practices mentioned above. To root out these century-old habits, the Guru spoke clearly and in simple terms to influence the masses. His writing appear in the Sikh Scriptures, which date from about 1499. He is quoted to have said:

Further to reinforce this message of equality among the genders, the Sikh founder Guru says in the Sikh holy book Sri Guru Granth Sahib that God's light shines in both men and women thus: "In the earth and in the sky, I do not see any second. Among all the women and the men, His Light is shining. (3)" (Guru Granth Sahib page 223). To further remove the long-ingrained prejudices of the masses, Guru Nanak also says that both men and women are created by the Lord thus: "He Himself created all women and men; the Lord Himself plays every play." (Guru Granth Sahib page 304) and again "Women and men, all the men and women, all came from the One Primal Lord God." (Guru Granth Sahib page 983). Furthermore, to make sure that people of both the Muslim and Hindu religions were listening, Bhagat Kabir say this: "You fashioned all these men and women, Lord. All these are Your Forms. Kabeer is the child of God, Allah, Raam. All the Gurus and prophets are mine. ||5||" (Guru Granth Sahib page 1349), mentioning that "God", Allah (the Muslim name for God) and Raam (the Hindu name for God) are all honoured.

Hindu law

Women in ancient Hindu law had only limited rights of inheritance, and were disqualified as witnesses. 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 contributed to the practice of sati, in which the widow immolates herself on her husband's funeral pyre. Sati is supposed to be a voluntary sacrifice, but some were forced by extremists, family pressures, or Brahmins.

Scandinavia

The early law of the northern parts of Europe is interesting from the different ways in which it treated women. The position of women varied greatly. Sometimes they could inherit when there were no males in their generation, and sometimes they could only inherit certain types of property. Sometimes women could not inherit, themselves, but passed the right of inheritance to their sons.

Salic law provided the basis for most of these customs and laws. The idea was that the proper way of providing for a woman was by giving her a marriage portion. But, once she is married into a separate community, 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. 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 of her goods during her life. The provision made by the Scandinavian laws under the name of morning-gift was perhaps the parent of the modern settled property.

The British Isles

Ireland

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 general, every woman had to have a male guardian. One exception occurred if an heiress married a landless man from another tribe: in that case the normal relationship was reversed and the wife was the guardian.

England

In the pre-Conquest codes in England, severe laws were denounced against unchastity, and by a law of Canute a woman was to lose her nose and ears for adultery. The laws of Athelstan contained a peculiarly brutal provision for the punishment of a female slave convicted of theft: She was to be burned alive by eighty other female slaves. Other laws were directed against the practice of witchcraft by women. Burning was the punishment specially appropriated to women convicted of treason or witchcraft. A case of sentence to execution by burning for treason occurred as late as 1784.

Monogamy was enforced both by the civil and ecclesiastical law. 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 were still seen in the law of Ethelbert, which stated that if a man carried off a freeman's wife, he must, at his own expense, procure another wife for the husband. (See also bride kidnapping.) The codes contain few provisions as to the property of married women, but those few appear to prove that they were in a better position than at later dates.

The development of the bride price no doubt was in the same direction. It was the sum paid by the husband to the wife's 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.

The old common and statute law of England placed women in a special position. A woman was exempt from legal duties more particularly attaching to men and not performable by a deputy. She could not hold a proper feud, i.e., one of which the tenure was by military service. The same principle appears in the rule that she could not be endowed of a castle maintained for the defense 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.

She could be the constable, either of a castle or a vill, but not the sheriff, except in the one case of Westmorland, where an hereditary office was exercised in the 17th century by Anne, countess of Dorset, Pembroke and Montgomery.

In certain cases a woman could transmit rights that she could not enjoy. Edward III's claim to the crown of France rested on such a power of transmission. However, the claim was a breach of the French constitutional law, which rejected the claim of a woman.

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 through a champion. She was not admitted as a witness. She could not appoint a testamentary guardian, and could only be a guardian 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.

In some old statutes, very curious sumptuary regulations as to women's 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. It is worthy of notice that at the times of passing these sumptuary laws, the trade interests of women were protected by the legislature.

In some cases, the wives and daughters of tradesmen were allowed to assist in the trades of their husbands and fathers. Some trading corporations, such as the East India Company, recognized no distinction of sexy in their members.

At common law a woman could own both real and personal property. However, in the case of a married woman the husband had a life interest in any real property: this continued even after the wife's death, and was known as tenancy "by the curtesy". Personal property passed into the ownership of the husband absolutely, with the exception of certain items of adornment or household use known as paraphernalia.

These rules were circumvented by the rules of equity, as enforced by the Court of Chancery. Property designed for the benefit of a married woman was vested in trustees, and her rights under that trust remained her own and did not vest in the husband.

Scotland

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 tenant's 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 husband's knowledge might be chastised like a under-age child.

Wales

The second part of the Welsh Law Codes begins with "the laws of women", such as the rules governing marriage and the division of property if a married couple should separate. The position of women under Welsh law differed significantly from that of their Norman-English contemporaries. A marriage could be established in two basic ways. The normal way was that the woman would be given to a man by her kindred; the abnormal way was that the woman could elope with a man without the consent of her kindred. In the latter case, her kindred could compel her to return if she was still a virgin, but if she was not, she could not be compelled to return. If the relationship lasted for seven years, she had the same entitlements as if she had been given by her kin.

A number of payments are connected with marriage. Amobr was a fee payable to the woman's lord on the loss of her virginity, whether on marriage or otherwise. Cowyll was a payment due to the woman from her husband on the morning after the marriage, marking her transition from virgin to married woman. Agweddi was the amount of the common pool of property owned by the couple that was due to the woman if the couple separated before the end of seven years. The total of the agweddi depended on the woman's status by birth, regardless of the actual size of the common pool of property. If the marriage broke up after the end of seven years, the woman was entitled to half the common pool.

If a woman found her husband with another woman, she was entitled to a payment of six score pence the first time and a pound the second time; on the third occasion she was entitled to divorce him. If the husband had a concubine, the wife was allowed to strike her without having to pay any compensation, even if it resulted in the concubine's death. A woman could only be beaten by her husband for three things: for giving away something that she was not entitled to give away, for being found with another man, or for wishing a blemish on her husband's beard. If he beat her for any other cause, she was entitled to the payment of sarhad. If the husband found her with another man and beat her, he was not entitled to any further compensation. Women were not allowed to inherit land, except under special circumstances, but the rule for the division of moveable property when one of a married couple died was the same for both sexes. The property was divided into two equal halves, with the surviving partner keeping one half and the dying partner being free to give bequests from the other half.

Edwardian Era Laws

In 1911, under English law, the earliest age at which a girl could contract a valid marriage was 12; boys had to be 14. Under the lnfants Settlement Act 1855, a valid settlement could be made by a woman at 17 with the approval of the court, while the age for a man was 20; by the Married Women's Property Act 1907, any settlement by a husband of his wife's property was not valid unless executed by her if she was of full age, or confirmed by her after she attained full age.

An unmarried woman was liable for the support of illegitimate children till they attain the age of 16. She was generally assisted, in the absence of agreement, by an affiliation order granted by magistrates. A married woman having separate property was, under the Married Women's Property Acts 1882 and 1908, liable for the support of her parents, husband, children and grandchildren becoming chargeable to any union or parish.

In common law, the father, rather than the mother, was entitled to the custody of a legitimate child up to the age of 16, and could only forfeit such right by misconduct. But the Court of Chancery, wherever there was trust property and the infant could 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 mother's rights in common law.

Legislation tended in the same direction. By the Custody of Infants 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 most remarkable disabilities under which women were still placed in 1910 were the exclusion of female heirs from succession to real estate, except 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 obtain it only for her husband's adultery if coupled with some other cause, such as cruelty or desertion.

Almost all existing disabilities were lifted by the Sex Disqualification (Removal) Act 1919.

Historical readings

Alice Zimmern, Renaissance of Girls Education in England (1898);
A. R. Cleveland, Women under English Law (1896);
J. L. de Lanessan, L'Education de la femme moderne (1908);
M. Ostrogorski, Femme au point de vue du droit public (1892);
Mrs C. P. Gilman, Women and Economics (1899);
Miss C. E. Collet, Report on Changes in the Employment of Women (1898; Parl. papers, C. 8794);
B. and M. Van Vorst, Woman — in industry (1908);
A. Loria, Le Feminisme au point de vue sociologique (1907);
Helen Blackburn, ''Record of Women's Suffrage, in the United Kingdom (1902);
Susan B. Anthony, History of Women's Suffrage, in the United States (4 vols., 1881–1902);
C. C. Stopes, British Free Women (1894);
W. Lyon Blease, The Emancipation of Women (1910).