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Essays Upon Human Rights and Their Political Guarantees is one of Gage's references. Hurlbut is referred to by Elizabeth Cady Stanton in her memoirs, Eighty Years and More. I reproduce here all of Chapter VIII, The Rights of Woman. The end of a page is marked in parentheses, ie., end of page 144 is indicated by (144). I did not include footnotes.

      The present chapter is devoted to a general survey of the rights of woman -- the rights of one half of the human race -- and which I do not propose to treat as the "better half," but rather as the equal of half of mankind. I shall not mock woman with fulsome adulation, lest I should offend her pride -- nor yet withhold from her appropriate praise, lest I should offend her sense of justice. Man surely makes no very humiliating concession when he admits her to be his equal -- and her proper ambition may well be satisfied without aspirating to be his superior. Woman is deprived of her natural dignity when the laws depress her below the condition of man -- and she may be treated as an usurper when she aspires to exercise dominion over him.

      Man was not "born to command," nor woman "to obey." They are not wedded to each other by human laws, nor by the church, but by the law of their natures, whose ministers are the common sentiments and affections of their minds -- and which consecrate their union, demand its sacred inviolability, and admonish them perpetually to love, honor, and cherish each other so long as they both shall live. By these neither is commanded to obey the other, but only the Creator's laws.

      But woman is to be regarded not only as the companion and equal of man, but as the same intellectual being as himself, possessed of the same sentiments and affections -- the same (144) emotions and wants, and consequently of the same natural rights.

      One need but to hint to "ears polite" that woman is powerful in intellect, noble in sentiment, and that she aspires to the perfection of her being, by all the means allotted by the Creator for the attainment of true excellence and happiness -- and all this and much more will be conceded before it is half expressed. I shall take this concession from the cultivated and polite, and treat it as though it were made in good faith. It ought not to be regarded as "small talk," not construed tenderly, as though made "to please the ladies;" since, if we set about it earnestly, we can prove that this concession, although made in the spirit of gallantry, might well have been dictated by a sense of justice.

      Inquire of the physiologist whether woman hath the same cerebral organization as man; and he will answer that her brain and nervous system are the same in structure, and execute the same functions.

      Inquire of the phrenologist, and you will be informed that as in man, so in woman, by means of the brain, all mental powers are manifested; that these powers have their respective seats in distinct parts of the brain: and that now one of them which is found in man is wanting in woman: that these powers, whether of sentiment, intellect or passion, vary indefinitely in the different individuals of the human race, whether male or female -- but that they are common to man and woman, who therefore have one common nature.

      Consult the writers upon natural law as the derivation of human rights, and the most approved of these will state that they emanate from the natural wants and emotions of mankind, as I have attempted to show in the preceding chapters.

      What, then, let me inquire, necessarily follows from these premises? Nothing less than this, That the rights of man and the rights of woman are precisely one and the same: the "lord of creation" is just as well off as the lady of creation, and not one whit better.

      You have now the concession of gallantry, the testimony (145) of the physiologist, the demonstrations of the phrenologist, and the authority of writers upon the natural law, all establishing the rights of woman upon the same foundation as the rights of man. You present these to the British or American magistrate, and demand that the same legal protection shall be afforded to one as the other -- nay, that the laws shall not be make for man or woman -- but for mankind; that all rights are human rights, and pertain to human beings, without distinction of sex; and he will be filled with surprise, if not with horror. What then is the difficulty? Nothing less than this, That the laws of England and America, touching the Rights of Woman, are at variance with the laws of the Creator; and the question is, Which shall stand?

      It would be going too far to say that the laws of these countries not recognize the rights of woman at all; for they do acknowledge and protect the rights of a single woman or "spinster," as these laws politely term her. But marriage forms an astonishing legal era with this same "spinster;" she becomes most emphatically a new creature after this event -- a being of the law's own creation -- a monster, (pardon the word,) whom nature disowns -- a fictitious being, breathing a legal, not a moral atmosphere. She is courted and wedded as 'an angle," and yet is denied the dignity of a rational, moral being ever after. I am aware that this is bold language; but I propose to demonstrate its truth and justice.

      We have before seen that marriage is a natural institution, proceeding necessarily from the organization and condition of the sexes; and that the law of their natures demands an union for life. This union is necessary to their happiness, and as it is dictated by the desires and sentiments of their common nature, to live in the married state is a sacred right. -- In a former chapter, I showed that man was ordained by his mental constitution to live in human society -- and this being so, he must enter the social state without surrendering any of his rights, since the designs of nature all harmonize with each other. The foundation was thus laid for asserting that woman by entering the married state, doth not properly surrender any right whatever. (146)

      My argument is this, That woman's mental forces and wants are designed to have a free and harmonious exercise and gratification -- and while single her rights to this extent are conceded to her -- that marriage results from her mental constitution, and is necessary to her happiness, so that she has a right to live in the married state; having such right she has a right to live in the married state; having such right she can demand its enjoyment, without the surrender of any other right incident to her nature -- since no one proper natural want is to be answered at the expense of another's denial; and as woman no more requires the married state for her happiness than she demands that full scope and exercise be given to the various power of her nature, it cannot be claimed that she must surrender any of her natural rights upon entering into the married state.

      She follows not less than man the great law of her nature when she "pursues her own true and substantial happiness." By the laws of her organization she has the same faculties and wants as man, and they demand the same exercise and gratification. Her rights have therefore the same origin and extent as his own. Now I suppose I have established, in my introductory chapter, that man surrenders not a solitary natural right, when, by yielding to the harmonious demand to all his intellectual forces, he enters the social state, and acquiesces in the proper institutions of government. Why then should woman, by yielding to a like general demand of her nature, and entering the married state, be required to surrender any of her natural rights? let it be borne in mind that the state of marriage is not more demanded by woman's nature than my man's. It is as necessary to his happiness as to her own. He is in an unnatural condition out of wedlock. -- In both it is the voice of nature that pronounces them to be "husband and wife." He surrenders not a single right when summoned by this voice to the altar of Hymen -- but walks erect in all the dignity of his nature, the stern and immutable man; taketh the vow, and goeth forth undivested of any of the rights of humanity. While she, who went forth in pride, returns in humility. She who was wooded by the bended knee of suppliant man, hath promised to obey that man, (147) now proudly claiming to be her lord. She who went forth an intelligent moral being, obedient only to the will of Heaven, returns the creature of man's will -- having transferred her allegiance to him.

      She was before his equal -- she is now his inferior. She existed before as a distinct moral being, full of rights and bounded by duties; that existence is now merged in her husband -- and in the eye of the law she exists not at all. But from her legal tomb he gains an accession of power, dignity and rights. Her submission exalts the throne of his power: her legal insignificance elevates his dignity, and her lost rights are appropriated to himself. The law allows him to exact her obedience, and to compel it by appropriate chastisement and restraint. It confers upon him her estate -- every body knows that the dead cannot keep their property -- and the wife is legally dead. She therefore exchanges her freedom of will, her moral dignity and her worldly estate, for the most uncertain estate, a man -- upon whom she can lavish her affections, and, by looking upward to him with sufficient was and reverence, can call into complete exercise her veneration and her wonder! Well is it for the aggressor that the aggrieved was made for love rather than for war, or he would be put upon immediate self-defense. No man asks of his fellow, no nation demands of another, any like concession of rights, when the closest friendship springs up between them. The honor belongs to English and American lawgivers, of having discovered the class of human beings which will endure the greatest deprivation of rights, with the least effectual resistance. Doubtless it is a valorous thing to conquer woman, and "to the victor belong the spoils of the vanquished!"

      Go forth, valiant Saxon! not frowning like Mars -- but with a countenance clothed with smiles; not breathing destruction, but the soft whispers of gentle love; subdue the heart of fair, confiding woman, and the law shall load you with spoils! -- Gain her affections, and you shall not be annoyed with her moral dignity; obtain her hand, and you shall have her purse also. Let not the characteristic modesty of your nature (148) depress the energies of your mind, for the law favors you. Let not your sense of justice defeat the gratification of your acquisitiveness, for is not the law just? Princes acquire domain, power and wealth, by conquest -- why shouldst not thou, one of Creation's lords, have they plunder for thy pains?

"Our law," says Sir William Blackstone, "considers marriage in on other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law, the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience."

      In an old case it was contended that the man could not have an action for the breach of the marriage contract, for the reason that marriage was of no advantage to him, and therefore he could have no damages. But the Court overruled this argument, and gave the injured man his remedy also. (149)

      But I see not on what principle this decision can be sustained, if marriage is to be regarded as a mere civil contract, and you look to its breach as a ground for awarding pecuniary damages to the aggrieved -- unless it appears that the fair defaulter possessed a fortune. For, I would inquire, how much money can a man make of the marriage contract in cases where the wife brings no fortune. If he sustains no pecuniary loss he ought not to have any pecuniary satisfaction. But if the delinquent woman possesses a fortune, inasmuch as the law gives it to the husband upon the marriage, we can perceive, if she will not marry him, that he sustains damage to the amount of her fortune -- less her reasonable support out of it -- and our most righteous laws ought to award it to him! The default of an heiress the, would be a snug little profit to the broken hearted lover!

      "A civil contract!" A contract to do what? Has it ever been written out? Is it to love one human being above all others for ever? is it to consecrate that love by the purest devotion -- the holiest sentiment -- the most perfect seclusion? Is it to devote the faculties and affections of the mind to the attainment of another's happiness? Doth the wife so resolve? And is the husband to protect her life -- preserve her honor -- and to exalt her intellectual and moral dignity by the concentration of all his faculties, sentiments, and affections, in the work of devoted love? Shall he be willing to lay down his life for her happiness, and to part with all other beings, all other possessions, sooner than the wife of his bosom. If so, is this to be written on parchment like a common deed -- to be set forth in legal pleadings -- read aloud to vulgar crowds in open courts -- and to be made the subject of pecuniary estimation? "A civil contract!" Say rather, that marriage is the holiest ordinance of the Creator's laws -- that its obligations are felt in the highest impulses of the human sentiments, and are incapable of utterance by the human tongue.

      It is this idea of marriage being a civil contract which enables the husband to prosecute for the highest infringement of the marital right, and to recover money as damages (150) against the offender -- a mode of redress which I hope I sufficiently condemned in a former chapter. And yet the law which regards this as a mutual contract between husband and wife, does not give the wife any damages against him for the violations of it by the husband, either as against him or the person with whom he commits the wrong. Another glory for that "perfection of human reason," the common law! If we discard the notion of marriage being a civil contract, the action for a breach of the marriage promise would not be retained; but such breach would be regarded as a moral offense, as it truly is in many cases -- and in such instances it would meet with criminal treatment -- and to the injured party there would be awarded some more appropriate redress than the payment of money. The procedure might be such that no one would pride himself upon a violation of plighted vows, and indulgence in falsehood and bad faith would no longer be called "trifling" with human affections. But while the laws place the violation of the lover's faith upon precisely the same footing as the non-payment of a promissary note, it may be expected that ordinary minds will regard the payment of damages in the former case a full atonement as in the latter. Thus the man of woman whose marriage vows are broken, will be as respectable in society as the merchant whose notes are under protest -- and bankruptcy of the affections will be regarded as no more distressing than bankruptcy in trade.

      Do not suppose that I contend for innovation from the love of novelty -- or that I would remove the landmarks of the law for the sake of appearing to be a reformer. -- I am only applying a general principle, which I endeavored to establish in a former chapter -- that injuries to the high and holy sentiments of humanity ought to be regarded as crimes, and not as the subject of pecuniary atonement and satisfaction -- and that, when the law shall not regard them as crimes, it shall not recognize them in any manner what ever.

      Let us get rid of the sordid estimate, the pecuniary valuation of human hopes and joys, sorrows and afflictions. Let (151) no man or woman say, "This is the price of my humanity, this is the value of my honor and happiness; give me so much and I am content. Go, perjured creature, and wed another, but pay me first before you go; this mockery of the heart is worth so many dollars; pay them, and my wounds will be healed." Precious humanity this! Is it far above our estimate of the animal tribes! The ox, the horse, the ass, are valued thus: and surely none but beasts can have a monied price. A man receives your money and contracts to deliver you a horse, but fails to do so. This is a "civil contract" -- and for its breach you sue him and recover the value of the animal. But instead of contracting to deliver a horse he contracts to deliver himself -- here is another "civil contract" -- and he fails to perform it. Our laws allow you to sue him again and to recover the value of the animal.

      Let us next consider what persons may enter into the state of matrimony. "The parties must be able to contract," saith our law; and it regards all persons as capable of marrying except those who labor under some defined disability or incapacity. Consanguinity, or relation by blood, is a disability derived from the natural laws -- it having been observed as a general result that the offspring of a marriage within a certain degree of consanguinity are imbecile either in mind or body. This disability ought probably to be extended so as to prohibit marriage between first cousins. Idiots and lunatics are incapable of contracting marriage -- except the latter during a lucid interval. The lunatic may bind himself by a civil contract during such intervals, and, therefore, our laws at such times allow him to marry. Here is another error arising from the doctrine of civil contract being applied to marriage. The lunatic ought to be prohibited from marrying at all times. The laws of nature forbid it, and the laws of man ought not to favor the transmission of his infirmity to his offspring.

      The age of legal consent to marriage is fixed by the common law at fourteen years in males and twelve in females.

      "The law," says Chancellor Kent, 'supposes that the parties at that (152) age have sufficient direction for such a contract, and they can bind themselves irrevocably, and cannot afterward be permitted to plead even their egregious indiscretion, however distressing the result of it may be."

      Here our law supposes a "sufficient discretion" to exist in a case where every body known it does not exist al all. Why should the law outrage the sense and judgment of mankind in this most important transaction of human life? No man or woman is supposed, even by the law, to have sufficient discretion before the age of twenty-one ears to enter into any contract except for the necessaries of life and profitable instruction. No man can irrevocably convey his land or sell a horse before he attains to the age of twenty-one years -- why, then, should he be deemed to possess sufficient discretion to choose a wife, and to assume the responsibilities of a husband? The age of legal consent to ca marriage as now recognized by law is wholly immature, and ought to be changed to that period of life when the intellectual faculties attain their full development, the character is formed, and the parties take their true position in society. The man ought to postpone marriage until he shall have entered seriously upon the business of life and fairly tested his chance of success. The Napoleon code is far more reasonable and in conformity with the laws of the human mind -- which provides that in case of marriage without the parent's consent, the son must be twenty-five and the daughter twenty-one years of age, in order to render them competent. But even this code, the parents of consenting, allows marriage at too early an age. It seems to me that marriage earlier than at the age of twenty-five in males and twenty-one in females, ought to be forbidden by law for natural reasons. (153)

      Our laws appear to be defective in not restraining from marriage the moral idiot -- as well as those who are afflicted with such bodily infirmities as observation has shown will be almost certain to be transmitted. The former seems to me to be as incapable of entering into the married state as if her were deficient in the ordinary powers of the intellectual perception; nay, as this state is mainly dependent upon the moral forces of the mind, he who is grossly depraved morally is not at all in a condition to embark in it, and is surely unfit to discharge its obligations. The social body is deeply concerned in all that relates to the fitness of marriage, and the moral training and intellectual culture of children.

      We have treated marriage as an ordinance of nature, binding upon the parties for life. Its permanency can be greatly sustained by judicious precautions at the outset. Prohibit marriage by the young and indiscreet -- by those who are morally insane, and also by those whose constitutional diseases will cut off themselves and their offspring, and a great protection will be gained against the dissolution of the nuptial ties by moral causes and premature death.

      If we could penetrate the designs of Nature in reference to the matrimonial state, we should, perhaps, discover that one marriage was all that was ordained for either man or woman. There are strong indications of such a natural design. The uniform equality of the sexes as regards number (154), first suggests this idea. And next, it would appear to be the design of nature that human beings should not dies from disease or want, but that they should wear out by the lapse of years. Mr. Combe in his "Constitution of Man," appears to demonstrate that disease and premature death are the result of our ignorance of, and inattention to, the laws of our organization. If this be so, (and no other view appears to be reconcilable with the benevolence of the Creator,) an union between two persons of opposite sexes, would naturally be terminated by death in old age, when a second marriage would seem to be prohibited by Nature. The moral organization of mankind tends, moreover, to the same conclusion. The shock which conjugal bereavement gives, even to the least sensitive of our race -- the sadness with which it shrouds the survivor -- the fact that the husband or wife selected in early life, is ever regarded as a more perfect being, and is clothed with charms, graces and virtues unobserved in one adopted by a second marriage - the revolt of the children of the first marriage against their surviving parent's again embarking in matrimony -- the earnest last request of the dying wife that her husband not marry another -- the solemn last will and testament of the dying husband, so framed as to prevent, if possible, a second marriage by his wife -- the common sentiments of mankind, that second marriages are the creatures of interest, and are not hallowed by those pure sentiments which consecrated the first -- all conspire to show that the higher nature of mankind revolts at the second matrimonial union, and tend strongly to confirm the idea that it is the design of nature that there shall be but one marriage connexion for either man or woman.

      What instruction, then, ought the lawgivers of mankind to derive from these natural precepts? Their first care should be to ordain such laws on this subject as would prevent as far as possible all indiscreet unions between the sexes; they ought next to guard the marriage ties by severe and salutary legislation, and they should regard the dissolution of those ties in any other manner than by death as (155) contrary to the laws of nature -- except in cases where the marriage connexion ought never to have been formed, by reason of the moral unfitness of one or both of the parties.

      The law's first care should be to prevent improper marriages, and its next, to guard the married state from all molestation, and lastly, to regulate divorce by the standard of natural morality. There is a right of divorce as well as a right of marriage. Ignorance, indiscretion or misfortune cannot be visited by the law as a crime -- they cannot properly work a legal forfeiture of human rights or happiness. -- Where, then, shall we allow, and what limits shall we set to the right of divorce? I answer, divorce must be allowed in those cases and in no other, where it is fairly proved from the experience of both parties that the marriage connexion ought not to have been formed -- that is to say, whenever the party complained against shall be shown unfit to live in the married state. This test should be the moral fitness for marriage of the party complained against.

      "Christ himself tells," says Milton, "who should not be put asunder, namely, those whom God hath joined:" a plain solution of this great controversy, if men would but use their eyes; for when it is that God may be said to join? When the parties and their friends consent? No, surely -- for that may concur to lewdest ends. Or is it when church rites are finished? Neither -- for the efficacy of those depends upon the presupposed fitness of either party. It is left, that only then when the minds are fitly disposed and are enabled to maintain a cheerful conversation, to the solace and love of each other, according as God intended and promised in the very first foundation of matrimony. "I will make her a helpmeet for him;" for surely what God intended and promised, that only can be thought to be his joining, and not the contrary. So likewise the apostle witnesseth, that in marriage, "God hath called us to peace." It may be for domestic reasons Milton leaned to the side of divorce -- nevertheless, he reasons well on this subject; for all the sacredness of the (156) marriage state depends upon the fitness of the parties, and the harmony of their minds.

      Upon the principle in view, divorce would in all cases be total, and a second marriage prohibited to the party who was shown to be morally unfit for that condition. An absolute divorce is now allowed in only one case, and that case, it seems to me, is evidence of no greater moral turpitude than many others which are unnoticed by law. It seems to me that in all the cases in which it is provided by the statutes of this state, that a partial divorce or separation may be decreed, such as cases of brutal and inhuman treatment, threatening danger to life, or great bodily injury, and desertion and abandonment, ought to be made the grounds of absolute divorce; and that habitual drunkenness, gaming, gross prodigality, habitual insult, tyranny or neglect, as well as insanity, idiocy, and the conviction of an infamous offense, ought to be included in the causes for absolute divorce. The miseries produced by domestic wrongs, of which our laws take no notice, cry aloud for recognition and redress. How often do you witness the spectacle of a gentle, kind and sensitive women, abounding in every virtue of her sex, who is wedded to a brutal man, degraded by many vices, or sunk in habits of drunkenness, or perhaps convicted of an infamous crime -- and when you contemplate her condition, or hear the story of her wrongs and sufferings, your hearts sink within you, and all the kind and generous impulses of your nature demand that she be relieved from her wretched thralldom. But to all the generous pleadings of humanity the law coldly responds, that she must abide her cruel fate! Why should our sentiments and the law be at variance with each other? Ought not the law respond to the high demand of our moral nature? Whence its authority, unless it be derived from the sanction of our superior sentiments? The law ought to be no more nor less than enlightened justice and benevolence written out in the pages of human legislation. It has properly nothing to do with questions of expediency -- its concern is with the right. Is it right that any human being should be bound by an inexorable law to another human being (157) whose presence and whose character inspire nothing but dread and loathsome disgust? Is it right to arm one human being with the power of inflicting perpetual misery upon another? If not, then let justice be done, though it would divorce a world of wretched sufferers.

      Be not filled with dread of an innovation proceeding from your enlightened justice and humanity. He who regards the marriage vows the most sacredly, and who has the most rational view of the true aim of the matrimonial relation, will be the first to demand the release of the aggrieved party from the miseries of a wretched marriage. You would not bind a noble being to a brute, degrade moral excellence by perpetual association with the vilest ruffianism -- make fast the bond that unites the innocent with the guilty, and condemn a spotless being to perpetual union with a felon! Humanity revolts at such awful sacrifice of a noble, an immortal being. How long will it bear such bold defiance by our law? If man will legislate no more wisely, let woman be heard upon this point; she hath suffered enough from the barbarous tyranny of the common law, which weds her to a brute, as it were, in her cradle, and binds her irrevocably to the moral monster, until the grave opens to receive her!

      I quote further from Milton:

"He, therefore, who lacketh of his due in the most native and humane end of marriage, thinks it better to part than to live sadly and injuriously to that cheerful covenant, for not to be loved, and yet retained, is the greatest injury to a gentle spirit; he, I say, who therefore seeks to part, is one who highly honors the married life and would not stain it and the reasons which now move him to divorce, are equal to the best of those that could first warrant him to marry." -- [Milton's Prose Works, vol. 2, page 101]
      "And it is a less breach of wedlock to part with wise and quiet consent betimes, than still to foil and profane the mystery of joy and union with a polluting sadness and perpetual distemper; for it is not the outward containing of marriage that keeps whole the covenant, but whatsoever does most according to peace and love, whether in marriage or in divorce, he it is that breaks marriage least; it being so often written that 'love only is the fulfilling of every commandment.' " -- [Ib. p. 105]
      "Again -- if law aim at the firm establishment and preservation of matrimonial faith, we know that cannot thrive under violent means, but is the more violated. It is not when two, unfortunately met, are by the canon forced to draw in that yoke an unmerciful day's work of sorrow, till death unharness them; that then the law keeps marriage most unviolated and unbroken; but when the law takes order that marriage be accountant and (158) responsible to perform that society, whether it be religious, civil or corporal, which may be conscionably required and claimed therein, or else to be dissolved if it cannot be undergone; this is to make marriage indissoluble, by making it a just and equal dealer, a performer of those new helps which instituted the covenant being otherwise a most unjust contract and no more to be maintained under tuition of law that the vilest fraud, or cheat, or theft that may be committed." -- [Ib., p. 146]

      Wherever, then, marriage can properly exist by the moral laws, the law of the land would hold to its sacred inviolability and permanent endurance; and where it could not, in contemplation of the former laws, have its proper existence, the law of the land would declare it to be void.

      In short, marriage would be regarded as an ordinance of nature, consecrated by the high and holy sentiments of humanity, and as dependent upon these for its moral and legal (159) existence -- and where these would be outraged by the connexion, it would be dissolved.

      Let us now consider more particularly the legal condition of woman in the character of wife.

      And first -- she surrenders her very existence, to a certain extent, as an intelligent moral being.

"By marriage," says Sir William Blackstone, "the husband and wife are one person in law -- that is, the very being or legal existence of the woman is suspended during the marriage, or at lest is incorporated or consolidated into that of the husband under whose wing, protection and cover, she performs everything, and is, therefore, called in our law -- French, a femme covert, is said to be covert baron, or under the protection and influence of her husband, baron or lord, and her condition during her marriage is called her coverture." -- [1 Bl. Com., 422]

"The legal effects of marriage are generally deducible from the principle of the common law by which the husband and wife are regarded as one person, and her legal existence and authority are in a degree lost or suspended during the continuance of the matrimonial union." -- [2 Kent's Com. 129]

      This is a remarkable example of the highest activity of the organ of veneration! But the benevolence of the learned judge was not altogether dormant when he continued and said: "That we often see acts of tyranny and cruelty exercised by the husband toward the person of his wife, of which the law takes no cognizance," "and yet," he adds, under the influence of self-esteem, doubtless, "no man of wisdom and reflection can doubt the propriety of the rule which gives to (160) the husband the control and custody of the wife." "It is the price," he says, "which female wants and weakness must pay for their supply and protection." Neither of the two former of these writers have attempted to justify this doctrine -- they merely state its existence and extent -- they declare the law as it exists, like faithful commentators. Sir William Blackstone seems rather to wish to apologize for the existence of the law; and quotes the civil law without disapproving it, by which he says, "the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries." It is consoling to know that all womankind are not under the tyranny of the common law of England, which sets nature at defiance. It is the law of the male sex gathering unto themselves dominion and power at the sacrifice of the female. It originate among a people who are full as much distinguished, in the highest state of civilization and refinement, for their self-esteem as their love of justice; and it took its origin in the days of their ignorance and barbarism; when the condition of woman was depressed, and when it was even doubted whether she had the same moral and intellectual existence as man. When the sword created the lord, and submission the vassal, the husband took the title of baron or lord, and the wife was regarded as his creature. Presumptuous pride repelled the idea of equality, and rude and savage man never would admit woman to be his equal. This act of sense and justice it was reserved for civilized man to do after a season of reflection. The time has arrived; justice and benevolence are abroad in our fair land, awakening the spirit of inquiry and innovation, and the Gothic fabric of the British law will f all before it, save where it is based upon the foundation of truth and nature.

      Need I to prove, and if so, have I not proved, that woman has the same moral and intellectual constitution as man; that her being and her rights are individual and distinct; that she thinks and acts for herself; is happy or miserable of herself; is a free, moral agent; an unaccountable being; full of rights and bounded by duties; having equals, but no superiors upon the earth? Hath she not the sense of pride, of justice (161) and of praise, the love of personal and moral freedom? Is it revealed by the natural laws or written by inspiration that man shall have dominion over her? This was given to him over the brute only. Is he answerable for her will? Let him then do her thinking. Is he responsible for her as a moral being? Let him be punished for her crimes. Does he absorb her pleasures? Let him then endure her pangs, even to her toothache! Neither her moral or intellectual existence can be merged in his, more than her physical. If she has any existence whatever after marriage, it must be as a woman, as one of mankind. But I will not insult a reader in the nineteenth century by stopping to prove that woman after marriage ought still to be regarded as the creature of God, and not as the creature of man.

      Those laws, then, which in the least detract from woman's intellectual freedom or moral responsibility, or restrain the harmonious activity of her faculties after marriage, outrage her rights. Her happiness still depends upon the free exercise of her natural powers. Her restraints must be those of her own enlightened nature. The woman and the wife must remain one and the same. She must be deemed capable of moral and legal consent; capable of judging and of acting; of willing and refusing. Her rights must be acknowledged and her wrongs redressed. She must remain a distinct person, as by the civil law; having "her separate estate, contracts, debts, and injuries." In no other way can her mental powers have their requisite scope and exercise; in no other way can her intellectual and moral powers enjoy that healthy and harmonious activity which nature has ordained as the means of perfecting all human beings in knowledge, excellence and happiness. How widely doth our law depart from these plain principles! "As the husband," says Chancellor Kent, "is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it."

      Sir William Blackstone also says, "the husband (by (162) the old law) might give his wife moderate correction -- for as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children." He adds "that in the polite reign of Charles the II, this power of correction began to be doubted, and yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege; and the courts of law will still permit a husband to restrain a wife of her liberty in case of any gross misbehavior."

      And this learned commentator has the grace to add, after this, that "even the disabilities which the wife lies under are for the most part intended for her protection and benefit;" and then exclaims in a rapture, "so great a favorite is the female sex of the law of England!" The truth is, how politely soever the commentator may express it, that the "good old common law" allowed the husband to whip and beat his wife, so that he performed this salutary infliction with a lawful weapon -- and a broomstick was solemnly adjudged to be such lawful weapon -- and a rod not larger than the thumb was not objected to unless it were of iron, but if so, and death ensued, it was murder. But commentators chose to say the law only allowed salutary correction and restraint of the wife in cases of gross misbehavior. Allow this to be so. He may still lock her up in a closet; he may bind her with cords; but he may not whip her. He can still inflict personal chastisement of some sort, and can correct her as an inferior and dependent, instead of treating her as his companion and equal, as a rational and moral being like himself. And so long as the act shall be legalized, there will always be a large among of brute power employed in its perpetration.

      All the writers upon the common law agree to this dominion of the husband over the wife, although they assign different reasons for its origin and present existence.

      In a note in Perersdorff's Abridgment it is said:

"A series of ages have demonstrated that the savages are the tyrants (163) of the female sex; and that the condition of woman is usually ameliorated by the refinements of civilized life. In the early stages of society females are generally subject to the uncontrolled power of the man, and he may approve or condemn, caress or chastise, and exercise the dominion of life or death. Even now, in countries of the most refined and polished habits, a considerable latitude is allowed to marital coercion. In England the husband has the right of imposing such corporeal restraints as he may deem necessary for securing to himself the fulfillment of the obligations imposed on the wife by virtue of the marriage contract. He may, in the plenitude of his power, adopt every act of physical coercion which does not endanger the life or health of the wife or render cohabitation unsafe."

      The last writer quoted says that,

"Mere austerity of temper, petulance of manners, rudeness of language, or want of civil attention and accommodation -- even occasional sallies of passion -- if they do not threaten bodily harm, do not amount to legal cruelty; they are high offenses in the marriage state, but not that cruelty against which the law can relieve."

      Lawyers do not find it difficult, in general, to assign some sort of reason in support of any proposition for which they may have occasion to contend. Accordingly, the last writer from whom I have quoted, hard pressed in the premises, attempts to justify the legal supremacy of the husband, upon the ground that he is the stronger party of the two -- that in him there is power to support his dominion; while it if were given to the woman who wants the power, she would at every moment be obliged to resort for help to conquer her refractory subject. This is the tyrant's old argument, that "power confers right" -- that physical force confers the right to do a moral wrong. This does not look well on paper, and he accordingly fortifies it by another statement -- that the man is best fitted by his education, experience and mental powers to bear sway. This is but substituting intellectual for physical force, and substantially asserts the right of intellectual to do a wrong; that because a man has the intellectual forces at command, he may use them to subdue the moral and intellectual powers of woman. This would do if the power were to be exerted against a brute -- but the assumed mental superiority of the man can have nothing to do with physical coercion; it can only be exerted to persuade and convince the reluctant and refractory woman. But man shuts out woman from the education and experience which he enjoys, and after doing this wrong, makes the deficiency of his own creation the foundation of his own supremacy, and the denial of her rights -- which is but setting up one wrong as the justification of another.(165)

      But this argument is most absurd in another point of view. The question is not which shall have the supremacy, but whether any legal supremacy shall be allowed in the case. -- The argument is against the woman's bearing sway. Now I am as much in fear of such a state of things as the greyest sage of common law. I am contending only for the legal equality of the sexes; I am striving to put out of view all pretensions to the right of coercion by either party.

      Lord Kaimes says "both should govern: the husband by law, and the wife by persuasion." He is only half right. -- both should govern: neither by law, but both by persuasion. All the forces that can be employed is the proper force of human beings, the moral and intellectual powers of their minds. If they were regarded as equals, and as intelligent moral beings, the one that reasoned best and loved most would have the supremacy, and the only supremacy consistent with the laws of their being.

      Our laws have created a little officer to look after all married women who may be signing deeds and papers "under the fear and compulsion of their husbands." He is the only legal remnant of the days of chivalry -- the only official representative of the spirit of La Mancha's far-famed Knight, who went about releasing captive and distressed women from their grievous oppressions. This little officer is known as a "Commissioner of Deeds." What dot he? Perhaps there are a few married ladies but have received a visit from this worthy little dignitary. He cometh with a deed in his hand -- he sendeth the husband sneakingly out of the room -- he goeth up to the wife -- he looketh in any direction but that of her face -- he seemeth ashamed of his errand -- he muttereth something about "fear and compulsion of her husband" -- attempts to laugh at the idea of her fearing her husband, but saith something about the law's requiring him to certify as to her bravery -- he getteth out of the house as quick as possible, and feels that he hath done a foolish thing. Did he ever extort the confession that a wife had signed a deed from fear? Her pride, her humanity revolt at the idea. We must abolish the necessity for this little officer, by denying to the (166) husband the legal right to inspire fear in the wife, or to coerce her to do any act whatever by physical resorts.

      But this idea of woman-merger, so stupidly adhered to by the law, is turned to a benevolent account in relieving the lost being from moral responsibility. Husband and wife cannot be guilty of a conspiracy, because in the eye of the law they are one person. Here both escape from punishment because one person cannot conspire to do any act.

      But the law has other benevolent features. It takes the sensible ground that none but a rational, moral being can commit either theft or burglary: and as the wife is not regarded as such a being in the presence of her husband, she cannot in that dread presence be deemed to have committed either of these crimes. The law construes his mere presence as equivalent to coercion, and it requires such strong proof to rebut its own presumption that it must appear that she was the principal instigator of the crime, or she will escape all punishment. How consistent is the law in its barbarism! This is a complete demonstration that it regards the moral being of the wife as sunk, and her will completely surrendered to her husband. "So great a favorite of the law is the female sex!" Hath not woman a right to be ever regarded as a free moral agent? The law takes away this right, and boasts that it has created an exemption! It sets so degraded an estimate of woman's moral nature as to consider her incapable of either committing or abstaining from crime, and then boasts its magnanimity in forbearing to punish her! -- Why not rather first assent to her enjoying the moral dignity pertaining to her nature, and then hold her accountable as a human being? If she commit a wrong under actual restraint or compulsion, treat her as the law treats other human beings -- as irresponsible; for no one can be deemed to have acted while forcibly restrained by another. What shame, that the law should degrade an intelligent moral being to such a degree, that it shrinks from holding her responsible for a criminal act! It is the highest demand of our natures, the most sacred right of humanity, to be held responsible at all times, and in all conditions, to the moral laws of the Creator. (167) No sane man or woman can ever forfeit this moral eminence, from which flow all human rights and dignity.

      But the legal sacrifice of the wife is yet incomplete; her person, her will, and her moral freedom are not enough for her lord's contentment. He must have all; and what remains but her worldly estate? He takes that also.

      By marriage the husband becomes seized of all the wife's money and personal effects, and is entitled to treat them absolutely as his own. In her lands he has an estate in general during his life, and in return he assumes her debts, and is bound to provide for her reasonable support and maintenance.

      "So great a favorite is the female sex of the laws of England" and America!

      Now we have seen in another place that both man and woman have an instinctive disposition to acquire and keep exclusive property, and that the gratification of this desire was ordained by the Creator as a means of happiness -- that, therefore, such gratification is the right of every human being. Here, then, is a surrender of a positive right on the part of women by the act of marriage. Is it necessary or proper that the law should thus defeat the natural desire of any human being? The laws cannot demand the surrender of rights -- their office is to protect them. Woman is naturally sufficiently tenacious of the right of property. If the reader is skeptical on this point, let him go and bargain with a femme sole who buys and sell habitually, and return with his answer. It is true, that this native disposition of the mind may be heightened in its manifestations by frequent exercise, as an hour's observation in Wall-Street will sufficiently establish. It is enough for my purpose that woman has the native desire of property: this confers the right, and I know not upon what ground her entire surrender of his right to her husband, by the mere act of marriage, can be justified or excused.

      The possession of property is ordained to be a great means of support to one's personal independence. A proper self-esteem oftentimes depends upon this possession. The dependence of one human being upon another is a moral (168) dependence. Domestic and general society results mainly from the moral wants of mankind.

      Now, pride, or a feeling of self-dependence, is one attribute of the human mind. It cannot be lost without a sense of degradation. Pride gives tone to human character. A dependent and servile human being hast lost a portion of his proper humanity -- and the laws ought to do nothing to create an artificial and unnecessary state of depression and dependence in any human being. Look at the wife in this point of view, and behold her after the surrender of her estate to her husband -- a mere pensioner upon his bounty -- entitled. it may be, to her reasonable support and maintenance, but having to ask for it, to make known her wants; ay, and to satisfy her lord of their reasonableness before he can be moved to her relief. "In the general course of human nature," says Mr. Hamilton, "a power over a man's subsistence is a power over his will." So a power over a woman's subsistence may enslave her will and degrade her pride. Moreover, the chances for the just exercise of this power are not as numerous as could be desired, since he who decides upon the wife's requests is interested against her wishes -- for so much as he withholds from her he retains to himself. Her sense of justice, therefore, receives the next wound and love vanishes. For no woman's affections, however strong, can remain long unimpaired after her pride has been mortified and her sense of justice outraged by her husband. (169)

      Moreover, if the husband really fears the wife is unfit to appreciate the value of property, he has but to allow her the same means he himself enjoys for the gratification of her innate love of it, by allowing her to acquire and possess it; and all analogy shows that she will be very soon well enough improved in the very point he would attain. She will come by degrees to appreciate property as well as himself, and the more she shall exercise the faculty of acquisitiveness, the stronger it will become. She now is sometimes inclined to regard the property of her husband as a stranger's -- it is not her own -- and all she spends of it is clear gain to herself. She is not allowed to indulge the desire of possession. Its activity would be a salutary check upon needless expenditure.

      She would soon look upon him with greater respect for his love of money. She would think him, n the whole, as rather a sensible man than otherwise, and she might be inclined to imitate her lord's example. Husbands had better try the experiment at any rate. They now keep their wives from the exercise of acquisitiveness, and still complain that they are deficient in that respect; and this with the same justice that a parent could complain of a child for being deficient in music, after having strictly prohibited it from all instruction and exercise. But I wish to treat of the justice, not the expediency, of this matter. Woman has the right of property, and the husband has no right to demand its surrender by the act of marriage, and the law ought not to sanction it. If a woman of proper age and discretion chooses voluntarily to surrender a part of her property to her husband by an ante-nuptial agreement, there seems not to be any objection to this, provided the law shall properly guard the mode of her doing it; but an implied surrender by force of (170) law is entirely destitute of foundation in reason and justice. It seems to me that the law should leave the woman's fortune in her own hands, and under her perfect and free control to the same extent after marriage as before. Then as regards the acquisitions of property after marriage, it seems to me that the parties ought to be treated as holding it jointly between them, and the whole to go to the survivor.

      A bill was lately pending before the Legislature of the State of Missouri, which if passed, would greatly improve the condition of married women in respect to their right of property. It provides that --

"All the property owned by the wife, at the time of the marriage, and all she may acquire during the marriage, by descent or gift, shall be called 'the wife's separate property.'
      "All the property which shall be acquired during the marriage, either by the husband or by the wife, except that which is acquired by descent or gift, shall be called 'common property.'
      "The husband's separate property shall be liable for his debts contracted before and after the marriage, but shall not be liable for the debts of the wife.
      "The wife's separate property shall be liable for her debts contracted before the marriage, but shall not be liable for the husband's debts, contracted before or after the marriage.
      "The husband shall have unrestricted power to alienate and dispose of his own separate property, and to alienate and dispose of the common property during the marriage; except that the common property which as real estate shall not be alienated or disposed of, unless the wife join the husband in the conveyance.
      "The husband may, during the marriage, alienate and dispose of the wife's separate property, if the wife gives her consent thereto in writing."

      Let us carry the principle of equality into the married state, and allow the wife to know and feel that she is truly the partner and equal of her husband. If she has not been a "silent partner" hitherto, she has at least been a very "dormant" one. My proposition is not new. The common law is altogether at variance with the laws of France, Spain, and (171) Holland, and with the laws on one of the States of the Union, (Louisiana,) in regard to the martial rights -- and especially as to the wife's right of property. Community of property between husband and wife exists to a certain extent in most civilized countries where the common law of England does not prevail. The civil law is the friend of woman, and as respects her moral freedom and her right of property tends to exalt her condition and to render her conscious of her equality with man. I leave this subject to the reader's consideration -- and I fear that the same objection may prevail against me, as against the laws of which I have complained -- that of having done injustice to the rights of woman. (172)

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