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. From then on women struggled for equality, and were largely rewarded.

Ancient Religious Law

The dependent position of women in early law is proved by the evidence of most ancient systems. In the Mosaic law divorce was a privilege of the husband only, 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.

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, as they were by Christian legislation. Rather, it was the duty of a childless widow to marry her deceased husband's brother.

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, for both the family of the widow and the Brahmans had an interest in getting the estate of a woman out of the way.

Ancient 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, 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.

Women did have some legal privalages. However, these were justified on the grounds of bodily weakness and presumed mental incapacity. hus she could plead ignorance of law as a ground for dissolving an obligation, which a man could not as a rule do. She could be accused 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 did not, as does English, recognize any privilege of males over females.

Legal disabilities were gradually mitigated by the influence praetorian equity and legislation. Some women managed to gain their independence by submitting herself to the authority of a tutor or husband, with the understanding that he was at once to emancipate her. 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 owner of a fortune of 100,000 asses. A constitution of Valentinian I. forbade bequests by women to ecclesiastics. But legislation continued to move toward a more equal treament of women.

Adoption of women was allowed by Diocletian and Maximian in 291. The tutelage of women of full age was removed by Claudius, and, though afterwards in part revived, has disappeared by the time of Justinian. This implied full testamentary and contractualliberty.

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, 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. For this improvement in their position they were largely indebted to the legislation of the Christian emperors, especially of Justinian, who prided himself on being a protector of women.

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 as well as men 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.

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 in varied greatly. Sometime 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

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 the pre-Conquest codes in England severe laws were denounced against unchastity, and by a law of Canute a woman was to lose nose and ears for adultery. The laws of Athelstan contained the peculiarly brutal provision for the punishment of a female slave convicted of theft by her being burned alive by eighty other female slaves. Other laws were directed against the practice of witchcraft (q.v.) by women.

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, enacting that if a man carry off a freemans' wife he must at his own expense procure the husband another wife. The codes contain few provisions as to the property of married women, but those few appear to prove that she was 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 deputy. She could not hold a proper feud, ie. 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 defence 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 constable, either of a castle or a vill, but not sheriff, except in the one case of Westmorland, an. hereditary office, exercised in the 17th century by the Anne, countess of Dorset, Pembroke and Montgomery.

In certain cases a woman could transmit rights which 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 by 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.

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.

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 sex in their members.

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 child under age.

Modern Laws

In 1911, under English law, a girl could contract a valid marriage was twelve; boys had to be fourteen. Under the lnfants Settlement Act 1855, a valid settlement could be made by a woman at seventeen with the approval of the court, the age for a man being twenty; by the Married Women's Property Act 1907 any settlement by a husband of his wife's property is not valid unless executed by her if she is of full age, or confirmed by her after she attains full age.

An unmarried woman was liable for the support of illegitimate children till they attain the age of sixteen. 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.

At common law the father was entitled as against the mother to the custody of a legitimate child up to the age of sixteen, and could only forfeit such right by misconduct. But the Court of Chancery, wherever there was trust property and the infant cotild 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 at common law.

Legislation has tended in the same direction. By the Infants Custody 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, unless 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 only obtain it for her husband's adultery if coupled with some other cause, such as cruelty or desertion.

See also

• Women's suffrage
• Reproductive rights - issues regarding "reproductive freedom"
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• International Women's Rights Action Watch (IWRAW)
• Vindication of the Rights of Women
• Women's right to know
• Committee on Women's Rights and Gender Equality
• Subjection of women
• League of Women Voters
• In Defense of Women

Historical readings

• Alice Zimmern's 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 Womans Suffrage, in the United States (4 vols., 1881-1902);
• C. C. Stopes, British Free Women (1894);
• W. Lyon Blease, The Emancipation of Women (1910).

External articles

• IWRAW - International Women's Rights Action Watch
• American Civil Liberties Union: Women's Rights
• Amnesty International Women's Rights
• Ansar Burney Trust - working for women's rights