IV
The Haunting Idea: Its Nature and Origin

THERE is no need for a Sherlock Holmes to serve as a detective in a search for the controlling or influential ideas employed in modem books, articles, reviews, and published addresses dealing with men and women. Even a novice can discover one obtruding conception that haunts thousands of printed pages. It is the image of woman throughout long ages of the past as a being always and everywhere subject to male man or as a ghostly creature too shadowy to be even that real.

As for centuries the Ptolemaic conception of the astrophysical universe dominated discussions and “reasonings” in astronomy, so the theory of woman’s subjection to man, the obliteration of her personality from consideration, governs innumerable discussions and reasonings in relation to human affairs. Here, there, and almost everywhere, it gives animus, tendency, and opinionative assurance to the man-woman controversies of our day.

There came a time, however, when the Ptolemaic idea of the starry universe was tested by patient observation and study – with the aid of scientific instruments – and declared to be a myth – a false theory. When that decision was made on the basis of more knowledge then Ptolemy possessed, rapid progress in astrophysics occurred and the art of navigating uncharted seas was brought nearer to perfection.

Out of such experiences in the natural sciences has been developed the idea that advancement in other branches of learning can be best effected by the application of what John Morley calls “engines of criticism, skepticism, and verification” to popular theories, even those held by everybody, always, and everywhere. This has become a maxim of modem science and scholarship. So it seems fair to conclude that, if learning about man and woman is to be advanced, these engines of intellectual progress must be applied to the ideas of their relations which have come from times past and are still widely current.

The value of learning lies not in sheer erudition, if there at all. Learning can provide creative guidance for civilization.

In the very nature of things historical, at the beginning of an inquiry into the idea of woman’s historic subjection, four questions arise: When did this idea originate? By whom was it originated? In what circumstances was it formulated? Why did it obtain such an empire over human minds? In short, what is its real nature and origin ?

Blackstone Extinguished the Married Women’s Personality

It is difficult, admittedly, to trace all the mental processes which converged into the idea that women were a subject sex or nothing at all – in any past or the total past – until they began to win “emancipation” in our age of enlightenment. But, if one works backward in history hunting for the origin of this idea, one encounters, near the middle of the nineteenth century, two illuminating facts: (1) the idea was first given its most complete and categorical form by American women who were in rebellion against what they regarded as restraints on their liberty; (2) the authority whom they most commonly cited in support of systematic presentations of the idea was Sir William Blackstone, author of Commentaries on the Laws of England – the laws of the mother country adopted in part by her offspring in the new world (see below, Chapter V). The first volume of this work appeared in 1765 and the passage from that volume which was used with unfailing reiteration by insurgent women in America was taken from Blackstone’s chapter entitled “Of Husband and Wife.”

That passage (7th edition, 1775) ran as follows: “By marriage, 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 least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; ... Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage... . A man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; ... A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself: and if she contracts debts for them, he is obliged to pay them; but for any thing besides necessaries, he is not chargeable... . If the wife be indebted before marriage, the husband is bound afterward to pay the debt; for he has adopted her and her circumstances together... .

“The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement... . But, with us, in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife... .

“These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.”

It is also a matter of historical record that for nearly a century or more Blackstone’s Commentaries was a standard textbook for the training of lawyers, particularly in the United States. The work was written with such rhetorical persuasiveness and such display or semblance of learning, that it captivated innumerable students of law. Thomas Jefferson was scarcely exaggerating when he wrote long after the Commentaries appeared: “The opinion seems to be that Blackstone is to us what the Alcoran is to the Mahometans, that everything which is necessary is in him, and what is not in him is not necessary.”

Whenever an American writer after 1783 was moved to instruct women on what he regarded as their rights and duties, he was almost certain to employ the authority of Blackstone, and likely to associate with the Commentaries expositions of divine law. For example, in 1845, eighty years after Blackstone’s first volume was published, three years before the first “woman’s rights” convention assembled at Seneca Falls in the state of New York, Edward D. Mansfield, A.M., “Late Professor of History in Cincinnati College, Author of the Political Grammar, and Corresponding Member of the National Institute,” issued in Ohio a treatise bearing the following arresting title and descriptive subtitle: “The Legal Rights, Liabilities and Duties of Women; With an Introductory History of their Legal Condition in the Hebrew, Roman and Feudal Civil Systems. Including the law of marriage and divorce, the social relations of husband and wife, parent and child, of guardian and ward, and of employer and employed.” In this work Professor Mansfield summarized his subject so concisely that none could miss his main points: namely, that women were subject to divine law and civil law: “The first great principle of Scripture, the unity of husband and wife, is repeated by the law. They are in law, one person... . Upon it, as observed by Blackstone, depend nearly all the legal rights, duties and disabilities acquired by marriage.”

The Animus in Blackstone’s Theorizing

Such was the nature of Blackstone’s dictum to the effect that woman was civilly dead after she married, that her personality was merged into that of her husband and lord. To what extent and with what meaning was it true, if true at all? This question leads to Blackstone himself and the circumstances in which he formulated his dictum.

On his father’s side Blackstone sprang from a mercantile family. His father kept a small silk shop in London. His mother was the daughter of a landed gentleman. By the assistance of his mother’s brother, young Blackstone escaped from the silk shop, acquired an education at a gentlemen’s university, Oxford, and entered the practice of law, at which he was a failure. Early in his course, he married the daughter of a landed gentleman and, like many a good bourgeois, settled down at a country seat where he assumed the role of a village “squire.”

In politics Blackstone was an old Whig or a new Tory – a foe of reforming radicals, but not a sworn enemy of the English Revolution of 1688. Like many a commoner, Blackstone outdid the gentleman in his effusive praises of the ruling class in State and Church, with which, by fortune and ambition, he had become affiliated; his thinking and writing about law were visibly influenced by his acquired sentiment of class.

But more than this is involved in the identification of Blackstone, namely, the circumstances in which he composed his Commentaries. Before he became so warmly attached to the common law of England, he had tried to get a professorship at Oxford University to teach Roman civil law. When he failed in this effort he was mortified. Had he been able to get that appointment, he might have taught from his chair the domestic law of old Rome which made marriage a kind of partnership between husband and wife, each having definite property rights but using their rights for certain mutual purposes. His biographer, D. A. Lockmiller, says of Blackstone, in connection with his inability to get the chair at Oxford, that he was thus “saved ... from the civil law of Rome and directed ... to the growing system of common law [of England].”

The question of Blackstone’s intentions in his interpretations of the common law cannot be answered beyond cavil, of course. Motives are seldom unsealed to the most careful student of personalities. But it was widely known in England that Blackstone disliked the equity jurisprudence, which invaded common-law doctrines and introduced into the laws of England principles akin to those of the Roman law in respect of married women’s property rights. His love of the strict injunctions of the common law became intense. This was a matter of general knowledge in England.

Blackstone’s Rhetoric and Jurisprudence Tested by Facts

With these identifications of Blackstone the man, what can be ascertained about the truth of his statement of the common law respecting husband and wife? Was he technically correct? Did his philosophy of social values, of government, and his own social position and aspirations in the England of his time color his treatment of the common law and have a direct bearing on his judgment of that law?

First of all, in attempting to get at the correctness of his statement, one must consider the language in which it was expressed. Blackstone was not a scholar exceedingly cautious about his choice of words. On the contrary he was a rhetorician and indulged at times in “elegant” language which lent itself to the verdict of “brilliance.” Thus he was “easy reading” and “convincing” to persons who were in a hurry to learn what was known about the laws of England, including the common law. When he declared, for instance, that by marriage “the husband and wife are one” and that “she performs everything” under his wing and cover, he was using metaphors; he was not speaking in any exact terms but in the sparkling fashion that intrigues readers who detest “dry facts.”

Is Blackstone’s statement true or what is its real nature? For the moment it may be said that there are some truths in it, that it contains a great deal of misleading verbalism, and that in upshot it is false. We must remember, moreover, very distinctly, that he was, at this point in his Commentaries, dealing solely with the rights or rightlessness of the married woman only, with her position, as he said, “in law.” Now the words “in law” actually meant in common law. Blackstone so understood it and understood it as a qualification on all the passage. So did his readers who were trained in law.

The common law was, however, only one branch of English law, one of the laws of England, or bodies of law. Other bodies of law were acts of Parliament often drastically modifying the common law and old customs left undisturbed by the common and statutory laws; and, as Blackstone remarked casually, “over and above” these laws was Equity, “frequently called in to assist, to moderate, and to explain the other laws.”

It was Equity administered by a special court, having no jury, that provided, in the name of justice, remedies for wrongs for which the Common Law afforded no remedies. Equity enforced trusts and other understandings that assured to married women rights of property denied to them by the Common Law. (For the revolutionary nature of Equity in the United States and England see Chapters VI and VIII.)

Besides, there were the private practices and agreements of men and women in the ordinary affairs of daily living, which as a rule prevailed undisturbed unless perchance they became involved in actions before the courts and were declared illegal, contrary to law or good morals. Only when such practices and agreements were notoriously contrary to law or good morals or the men or women who were parties to such practices and agreements were entangled in litigation was any kind of “law” applied to them. In fact the number of human actions and understandings which ever come before courts of law is small in comparison with the vast number that make up the complex of family and social life.

Yet when Blackstone spoke of the husband’s rights over the real and personal property of his wife and of her disabilities “in law,” he was technically correct, within fixed limits. On its face the statement meant that, in case of litigation, the husband asserts certain rights over the real and personal property of his wife and, if the wife contests them or the said rights are otherwise drawn in question at common law, the common-law courts will enforce the husband’s common-law rights unless the husband and wife have made agreements to the contrary before and after marriage or the father or other friend or relative of the wife has safeguarded the wife’s rights by the creation of a trust or otherwise, which agreements and trusts made in due form are valid in equity and will be enforced by courts of equity. In other words, in the absence of valid agreements and actions to the contrary, the husband may, if he so desires, or his creditors or other litigants may, assert a husband’s rights over the wife’s property within the limits set by specific rules of the common law, and common-law courts will enforce them in case of litigation.

In this highly restricted and technical sense, and subject to reservations he did not set forth and explain in detail, Blackstone’s statement on husband and wife contained several correct sentences. But of all the men and women who for generations cited his statement as evidence of women’s subjection, few were well trained in the technicalities of law. Most of them were unable, therefore, to comprehend the severe limitations imposed on it in fact and the exact sense in which the statement could be regarded as true, particularly in view of the metaphorical style which Blackstone used.

Did Blackstone willfully intend to mislead his readers into believing that the legal status of married women in England in 1765 was correctly and fully described in his statement on husband and wife?

Whatever his intentions Blackstone could have avoided the charge of distortion by including in his chapter on husband and wife another statement correctly presenting the rules of equity jurisprudence under which the wife could be fully protected in the enjoyment of her separate property rights. Had he done this he would have carried the qualifications of the common law along with his assertions and informed his readers immediately that common-law doctrines were only common-law doctrines; that under principles of equity jurisprudence a married woman’s separate status in respect of her property rights could be, in the event of litigation and in innumerable cases was being, protected by a branch of law “over and above” the common law, namely, Equity.

Informed English lawyers knew that Equity afforded protection to arrangements which safeguarded married women’s separate property rights. So did informed American lawyers. The great American commentator, James Kent, as if alert to the peril of misunderstanding in regard to the married woman’s status, immediately followed his own exposition of the common-law doctrines by an exposition of the equity doctrines under which the application of the former could be avoided, as far as the married woman’s property rights were concerned. But Blackstone did not see fit to provide this safeguard against a misunderstanding by dealing fully with Equity either in the section on husband and wife or anywhere else in the Commentaries. As a result, generations of men and women, untrained in law and equity, accepted Blackstone’s statement on husband and wife as the whole truth of the married woman’s status. In these circumstances it is not surprising that the statement became a main support, indeed the very basis, of a great fiction – the fiction that women were, historically, members of a subject sex – “civilly dead,” their very being suspended during marriage and their property, along with their bodies, placed under the dominion of their respective “lords” or “barons.”

In some measure the most demoralizing effects of Blackstone’s tyranny over lawyers and law were due to his laudation of the Common Law, his dislike if not contempt for Legislation, and the slight consideration he gave to Equity. To Blackstone the common law was a magnificent system of human justice, deserving all praise. There might be some blemishes in it but they were to be deemed slight. The Civil Law of Rome, with its provisions for the equality of husband and wife in the marriage partnership, was, in comparison with the English law, “a mild and rational system of laws,” scarcely deserving mention, in his opinion.

Attempts to introduce the Roman law into England he ascribed largely to the efforts of “the monkish clergy (devoted to the will of a foreign primate),” the Pope at Rome. Although Blackstone confessed that it was far from his desire to derogate the study of the Roman law considered as “a collection of written reason,” he proposed to uphold English veneration of Alfred the Great and Edward as against Theodosius and Justinian – “the free constitution of Britain, as against the despotic monarchy of Rome and Byzantium.”

To the modification of the common law by legislation, Blackstone was openly hostile. He referred with scorn to the “rash and unexperienced workmen” who “have ventured to new-dress and refine, with all the rage of modem improvement.” Reformers who tried to improve the common law, he alleged, had frequently destroyed its symmetry, distorted its proportions and exchanged its “ majestic simplicity ... for specious embellishments and fantastic novelties.” Few of the legal problems of England could be laid at the door of the common law: “To say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament . ‘ penned or corrected by men of none or very little judgment in law.”

The confusion introduced by unlearned and ill-judging legislators decried by Coke was lamented with equal passion by Blackstone. Indeed one of his avowed purposes in writing his Commentaries was to instruct English gentlemen in the arts of governing the country (under a constitution which excluded most of the English people from any share in the government), so that gentlemen so trained would uphold the magnificent system of the Common Law and avoid any fundamental alterations in it. This was, of course, heady wine for American lawyers who looked with fear and disgust at the uprising of democracy in 1800 and during the triumph of the populace in the Jacksonian era.

Blackstone’s Misrepresentation of England’s Laws”

Convinced that the Common Law was so perfect in its symmetry and in the quality of its justice as to bar tinkering by legislators, Blackstone was opposed to the inroads made upon that law by Equity jurisprudence. In one of the greatest understatements ever made in historical writing, the cautious scholar, Frederick W. Maitland, long afterward declared that “Blackstone, like other common-law lawyers, was not very fond of the chancery [equity]. The view of the thinking English lawyer of his time seems to have been that the chancery was a necessary evil.” Indeed Blackstone was hardly willing to concede that the “evil” was even “necessary.”

At all events, considering the role of Equity in the development of justice in England, and the immense volume of equity law in his own time, Blackstone treated it in such a brief, cursory, and inadequate manner as to give his readers the impression and induce the conviction that they need pay little serious attention to equity, save in some particulars. The great subject of equity which dealt with trusts, so important in correcting, even obliterating, the property “disabilities” of the married woman, he dismissed in pages so relatively few as to give no adequate key to the revolution wrought by equity in this domain of marital relations.

In effect, therefore, Blackstone deceived generations of lawyers and laymen of both sexes by the manner in which he treated the disabilities of married women and pronounced their “civil death” at law. He did not immediately follow up his disquisition on husband and wife with a section showing how the disabilities of married women, in respect of their property, could be and were frequently nullified by uses, trusts, and other arrangements which were valid and enforced in equity. He did, it is true, in scattered parts of the Commentaries, show how the common-law disabilities in such respects were avoidable by private agreements among men and women, among men, and among women. For example, in Book II, Chapter 20, he dealt extensively with uses and trusts – instruments employed to nullify in effect the restrictions at common law on married women’s property rights. In this section he told of the battle between Common Law, Statutory Law, and Equity. He remarked that at one time the courts of law “greatly curtailed and diminished” the power of the court of chancery over landed property and then by “one or two technical scruples” restored that power “with tenfold increase.”

In that chapter Blackstone, with some asperity, also spoke of a “species of conveyance, called a covenant to stand seised to uses.” This, he explained, is an instrument “by which a man seised of lands, covenants in consideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate when made upon such weighty and interesting considerations as those of blood and marriage.”

These were, of course, the very considerations to which men and women could and did resort in those numerous arrangements with which to create and protect the property rights of married women. In other words, if the qualifications of Chapter 20 in Book II and similar relevant passages had been inserted in Blackstone’s chapter on husband and wife, the false notion of the married woman’s civil death could scarcely have been started on its brain-storming course through English and American agitation relative to “women’s rights.”

Through the long legal struggle between the common law on the one side and statutory and equity law on the other ran the eternal struggle of life – not of individuals, but of men and women united by their inexorable relationships – to survive and provide safeguards for each other and for their children, under the law or in spite of it. Here the strength and permanence of the family was an objective. In legal essence this struggle, amid every variety of being and experience, involved conflicts with the precision, rigidity, and certainty of common-law rules, which were ceasing to fit the ever-changing conditions of life and economy, and with the strivings for more freedom to make adjustments to the new necessities and aspirations. And in England, Equity was the jurisprudence, or branch of law, in general to which men and women could look for relief from the “wrongs” inflicted by the common law. Blackstone was aware of this and did not wholly neglect equity.

In Section 2 of his Introduction, he referred to Equity in general as a “method of interpreting laws, by the reason of them,” and to the treatment of the subject by Hugo Grotius, the Dutch author of the great treatise on The Law of War and Peace. Of this equity, as universal reason used to correct the deficiency of the law, Blackstone then wrote: “Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law... . Law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law.” There was some good in equity, he admitted, but he thought that, if pushed too far, it would, like legislation, introduce confusion into the perfection of the common law.

When Blackstone came to a survey of the sources of the laws of England, Section 3 of his Introduction, he devoted about thirty pages to the subject. He was careful to treat fully the Common Law as the great fountain of law and justice. He did not, indeed could not, ignore the statutes of Parliament; but he boldly asserted that acts of Parliament, productive of “absurd consequences, manifestly contradictory to common reason,” were, as regards these consequences, null and void. In this fashion, with nothing more than a shadowy authority, if any authority at all, Blackstone proclaimed that common-law judges could, in these “absurd” cases, declare acts of Parliament that were contrary to common reason invalid and hold them of no effect.

At the very end of his discourse on the sources of English laws, Blackstone dedicated one of these thirty pages to Equity. He did not, indeed could not, in making commentaries on the laws of England, wholly ignore equity law, for it was certainly one of the sources of those laws. He remarked: “What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shewn in the preceding section.” But then he sought to reduce the role of Equity in English law to its simplest, severest, and most restricted terms, minimizing with a mere gesture the great part it had played and was then playing in the humanizing of the common law.

“I shall therefore only add,” he went on, “that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief ... than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property.” This was about the least that Blackstone could say of equity if he was to notice it at all.

Of his chapter on the courts of the realm, about thirty pages, Blackstone devoted ten to the high court of chancery. In the main he confined his record to a bare recital of certain outstanding facts in the history of Equity. On the final page of this section, he at last unbent to pay tribute to the work of the Earl of Nottingham who, toward the close of the seventeenth century, opened the period of modern Equity. He said: “The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, cooperated in establishing his [Nottingham’s] plan, and enabled him in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended and improved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degree.” In view of this clear, though brief, tribute to Equity, the scant consideration given to the substance of Equity in other parts of the Commentaries is the more amazing, to those familiar with the role of Equity in law as practice.

Well aware that in their practice many lawyers would have to take account of the equity remedies accessible to their clients, Blackstone assigned a chapter of Book III to proceedings in the courts of equity. Here he mentioned particularly equity law for infants, idiots, lunatics, charities, and bankrupts, and omitted any extended consideration of trusts in general or the privileges open to married women as against the rigors of the Common Law.

In dealing with equity proceedings, he was for the most part, and with justification, concerned with technicalities. But he went far out of his way in combating the idea that it had been and was the business of Equity to abate the harshness of the Common Law, and asserted that “no such power is contended for” by equity. He labored to break down distinctions between Equity and Common Law in favor of the Common Law. To accomplish this aim, he asserted that ‘, the judgments of the courts of law are guided by the most liberal equity.” If then, he asked, the parity of law and reason governs both equity courts and common law courts, what then is the essential difference? He gave the narrowest possible answer: “It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief.” The qualifying word “principally” saved him from the just charge of utterly disregarding the very nature and substance of equity, of which he certainly was “not very fond.” Even so, his treatment of equity in general was both superficial and misleading.

Most astounding of all to students of equity is Blackstone’s plea in defense of the scant treatment he accorded to Equity – the plea of ignorance. In a passage on the subject, he said: “Let us next take a brief, but comprehensive view of the general nature of equity, as now understood and practised in our several courts of judicature... . As nothing is hitherto extant, that can give a stranger a tolerable idea of the courts of equity subsisting in England, as distinguished from the courts of law, the compiler of these observations cannot but attempt it with diffidence; those who know them best, are too much employed to find time to write; and those who have attended but little in those courts, must be often at a loss for materials.” Thus the reader is left to infer that Blackstone had at his command no supply of treatises and documents on which to base an appropriate and comprehensive treatment of the equity under which the common-law restriction on women had been, could be, and was being eradicated in England.

This inference is wrong. Blackstone, through ignorance, indifference, abhorrence, or carelessness, in this passage of the Commentaries, misrepresented the facts in the case. As the distinguished modern historian of English law, Sir William Holdsworth, remarked in an article on “Blackstone’s Treatment of Equity,” in the Harvard Law Review for November, 1929, the author of the Commentaries had available, when he wrote the above passage, “several series of equity reports” (from 1557 to 1766), two volumes of abridged equity reports, at least two textbooks on equity, and several works dealing with the practice, procedure, and pleading of the court of Chancery. In short he had easy access to at least twenty-two collections of equity reports extending over about two centuries and at least twelve treatises and textbooks. Furthermore he had at his command Richard Francis’ Maxims of Equity: Collected from and Proved by cases, out of the Books of the Best Authority in the High Court of Chancery, published in 1728. In Francis’ Maxims alone Blackstone could have found all the first principles of equity juris

prudence, then and later applied in the interest of a kind of justice which common-law courts did not provide for guiding the adjustments of many vital relations between men and women, and between parents and children, in the interests of the Family.

With ample justification Holdsworth decided that Blackstone “when dealing with the equity administered by the court of Chancery ... presents a picture of equity and its relation to the law which was highly speculative when he wrote it, and is positively misleading in the light of the subsequent development of equitable and legal doctrine.” Thus through Blackstone’s selective jurisprudence and his treatment of equity, thousands, perhaps millions, of men and women in England and the United States were led to accept the idea of women’s historic “subjection” into “civil death,” as the whole truth. That is, they adopted a fiction about human behavior.

Various reasons may be given for Blackstone’s dislike of, or lack of fondness for, equity, but it is not necessary to ascribe it to any personal animosity toward women. Generosity may well plead his ignorance as a sufficient explanation. Devotees of the common law may seek to account for his operations by referring to his overweening fondness for the common law. Technologists in law may, with justice, point out his affection for the precision and certainty of common-law doctrines and his fear of the vagaries, variety, and uncertainty in the practices of men and women allowed and enforced by equity. Equity did indeed seem to be permitting men and women to do almost as they pleased in safeguarding their mutual responsibilities and their separate property interests under agreements and understandings of their own making.

Under such agreements and understandings, the titles to a vast amount of property were afloat. In an age when agreements, even if written, were not matters of public record open to lawyers and inquiries, it was often impossible, under equity practices, to find out who owned what, for innumerable apparent owners had only a nominal possession under a trust, while the income and other advantages of the property might go to wives, daughters, or other beneficiaries of trusts. In such circumstances, it was difficult for creditors to discover whom to sue in case of indebtedness and for lawyers to straighten out the titles to property entangled in trust arrangements, unrecorded, and perhaps nowhere written down.

That Blackstone may have objected to the rights conferred upon English women by family arrangements enforceable in equity is possible. Objections of the kind were often expressed in the eighteenth century. For example, “A friend to the Sex,” who wrote Sketches of ... the Sex, republished in Boston in 1807, complained: “It is no uncommon thing, in the present times, for the matrimonial bargain to be made so as that the wife shall retain the sole and absolute power of her own fortune, in the same manner as if she were not married. But what is more inequitable, the husband is liable to pay all the debts which his wife thinks proper to burden him with, even though she have abundance of her own to answer that purpose. He is also obliged to maintain her, though her circumstances be more opulent than his.”

Blackstone may have had some such ideas in mind when he said that the female sex was a favorite of English laws. But whatever excuses may now be found for Blackstone’s neglect of equity, it can in no way offset the fact that his great dogma respecting husbands and wives has played havoc with the minds and relations of countless men and women from his day to ours.

Blackstone not only gave scant consideration to equity jurisprudence, which led to drastic modifications in the binding character of the common-law doctrines formulated in his Commentaries; he was often inaccurate in handling details of English legal history. An example in respect of women’s status appears in Book II, Chapter 5. There he dealt with Clause 6 of Henry III’s reissue of the Great Charter – a clause that pertains to control over the marriage of heirs (haeredes). The words haeredes maritentur absque disparagatione he construed as “meaning certainly, by haeredes, heirs female, as there are no traces before this to be found of the lord’s claiming the marriage of heirs male; and as Glanvill expressly confines it to heirs female.” Thus as to the period in question he expressly denied that the lord had control over the marriage of the male ward, and confined the control to females.

Here we have an excellent illustration of Blackstone’s method and the kind of original sources on which he relied for evidence. If he had searched in the voluminous records in London, he would have found numerous documents showing that male heirs were treated in respect of the lord’s control over marriage substantially in the same way as female heirs. But he relied for authority upon Ranulf de Glanvill, an English legist of the twelfth century, who had held high office under the king and had written a treatise on English law, particularly with reference to procedure in the king’s court. In other words, without examining the sources themselves, Blackstone simply took as adequate a comment from a twelfth-century commentator to the effect that early law discriminated against females by providing a different rule for males.

There is no doubt that Glanvill did make the comment in question and it is strange, too, in view of the fact that he had no sons and that his own heirs were three daughters, to whom his estate passed by inheritance. As chief justiciar under Henry III Glanvill could easily have avoided his error by investigating the legal records on which his statements of law were presumably based, for in those records were many instances of male wards disposed of by their guardians.

To give an example: “Ralph of Normanville offers [to the king] one good destrier [war-horse] to have the custody of the land in his fee which belonged to Richard Labbe in Empingharn with [the right to control] the marriage of the son and heir of the same Richard ... until the heir be of age; and the sheriff [of Rutland] is commanded to allow him to have that custody.” Again, “Henry de Redeman offers forty marks to have the custody of the land and heir of Roger de Hedon, and to have the marriage of the same heir to the use of his daughter.”

Although the records of appeals to the king’s officers and of decisions respecting the overlord’s right to dispose of male heirs in marriage do not seem to be as numerous as those pertaining to female heirs, they are sufficiently numerous to invalidate Blackstone’s dictum that such right of disposition in early law was confined to ,,heirs female.” If the dictum had been true it would have meant that the early law did in fact discriminate against female wards,

subject to the proviso, constantly repeated, that the overlord could not force them into unworthy marriages – a proviso also applied to male wards. But the dictum was false to the records of English legal history, and Blackstone’s error in this instance permits a suggestion that additional research might invalidate other dicta confidently expressed in his Commentaries and later accepted as true and binding by generations of lawyers and judges in England and the United States.

Mary Wollstonecraft Reinforces Blackstone

To the vogue of the Blackstonian doctrine, respecting the nothingness of women, Mary Wollstonecraft contributed, perhaps unwittingly. In the midst of the French upheaval, she issued in 1790, a reply to Edmund Burke’s strictures – a volume which she entitled A Vindication of the Rights of Men. Two years later, in 1792, and twelve years after the death of Blackstone, while the strife over his legal conservatism was raging in England, when the “rights of man” was challenging all restrictions on human freedom, she published her Vindication of the Rights of Woman.

In arguing for the rights of woman she made use of the writings of philosophers, moralists, educators, and agitators rather than the works by lawyers. She depended most on Rousseau for the doctrine of “natural” rights. The objects of her special aspersions were customs and opinions, not specific provisions of law affecting women, married and single. She attacked the “divine right of husbands,” and expressed the hope that it might be contested “without danger.” Here she was not speaking of the dominion exercised by Blackstone’s “lord” or “baron” over the feme covert. Rather she was dealing with mental and emotional attitudes. But in her portrayal of the alleged social tyranny exercised by man over woman, she helped to vitalize the doctrine that married women were civilly dead, members of a subject sex in effect, nothing in history save perhaps obsequious playthings or furtive intriguers trying to make their way out from under man’s domination.

In the manipulation of this theory of life one fact is outstanding and immediately germane to all thought about the subject. This fact is that Rousseau who set the Western world aflame with the doctrine of equality and democracy for men also formulated and put into circulation a, doctrine claiming that woman should be content to please man and get very little in return. “Woman,” he declared in Emile, “is expressly formed to please the man: if the obligation be reciprocal also, and the man ought to please in his turn, it is not so immediately necessary: his great merit is in his power, and he pleases merely because he is strong. This, I must confess, is not one of the refined maxims of love; it is, however, one of the laws of nature, prior to love itself. If woman be formed to please and to be subjected to man, it is her place, doubtless, to render herself agreeable to him, instead of challenging his passion. The violence of his desires depends on her charms; it is by means of these she should urge him to the exertion of those powers which nature hath given him.”

Yet Rousseau did not deny that woman had power and was a force in history. Nor did he reduce her qualities to those of mere futility. On the contrary, he ascribed to her extraordinary endowments for discernment and judgment. “A woman,” he asserted, “who is naturally weak and does not carry her ideas to any great extent, knows how to judge and make a proper estimate of those movements which she set to work, in order to aid her weakness; and those movements are the passions of men. The mechanism she employs is much more powerful than ours, for all her levers move the human heart. She must have the skill to incline us to do everything which her sex will not enable her to do herself, and which is necessary or agreeable to her; therefore she ought to study the mind of man thoroughly, not the mind of man in general, abstractedly, but the dispositions of those men to whom she is subject either by the laws of her country or by the force of opinion. She should learn to penetrate into their real sentiments from their conversation, their actions, their looks and gestures. She should also have the art, by her own conversation, actions, looks, and gestures, to communicate those sentiments which are agreeable to them, without seeming to intend it. Men will argue more philosophically about the human heart; but women will read the heart of men better than they... . Women have the most wit, men have most genius; women observe, men reason. From the concurrence of both we derive the clearest light and the most perfect knowledge which the human mind is of itself capable of attaining... . The world is the book of woman.”

Rousseau’s doctrine that woman’s duty is to please man fitted neatly, not only with Rousseau’s personal egotism but also into the genteel theory respecting woman which was then spreading among the middle classes in England. In short form, this theory maintained that if woman would exercise the faculty of gratifying and deluding men, God or providence would assure to her a good father, a protective husband, economic security, and freedom from the responsibility of fending for herself in the struggle for existence. To attain this “fortunate” position, woman needs only to practice the arts of apparent submission and actual cunning, and to refrain from challenging man by a resort to learning, the acquisition of worldly knowledge, and the use of reason. If she should willfully leave the sphere thus assigned to her, she would fail to achieve the idea of irresponsible comfort so highly cherished in a bourgeois society.

It was this vision of modesty, or gentility, fortified by the pronouncement of Rousseau, that Mary Wollstonecraft assailed in her Vindication of the Rights of Woman. In contending for the rights of woman she appealed to reason, justice, and virtue. She did not inquire how far and in what respects the genteel theory conformed to innumerable known facts about women in contemporary society or in deeper history. Perhaps it never occurred to her to do that. At any rate Mary Wollstonecraft conceded the central point of the genteel theory with these words: “That woman is naturally weak, or degraded by a concurrence of circumstances, is, I think, clear.” In effect she took over Rousseau’s thesis, and phrased it in her fashion: Woman is everywhere in chains but I propose to show her the road to freedom.

In Wollstonecraft’s view, the idea that woman was formed to please man and could govern him by the use of sex charms “is the philosophy of lasciviousness,” an offense against virtue, reason, and respectability – against everything that gives dignity and value to human life. The educational ideal of the doctrine, she held, is to deprive girls of the physical exercise necessary to bodily strength, to restrain them in the use of the reason with which they are endowed, to deny them access to the knowledge which belongs of right to human beings and is indispensable to women in the discharge of the responsibilities that fall upon them in actual life. Law, custom, education, and opinion, she contended, sustain this false ideal for woman, force her to regard her subjection as her proper lot in life, and mold her in the image of the tradition. Thus not only is woman subjected to tyranny and degraded, but man is encouraged to cultivate his worst passions and prejudices, to grow in arrogance, and to applaud ignorance.

The genteel business, Wollstonecraft declared, flouts all the virtues that give worth to human character and works against civilization itself. Is not truth the same for men and women? Is not the exercise of reason by women as desirable as the exercise of reason by men? By what just and intelligible principle arc women denied free access to knowledge? If freedom is a value, by what right are women deprived of it? “Women,” she granted, “... may have different duties to fulfill; but they are human duties, and the principles that should regulate the discharge of them, I sturdily maintain, must be the same. To become respectable, the exercise of their understanding is necessary; there is no other foundation for independence of character; I mean explicitly to say that they must only bow to the authority of reason, instead of being the modest slaves of opinion.”

That under the sway of the genteel impulse women could exercise great powers Wollstonecraft did not deny: “Women ... sometimes boast of their weakness, cunningly obtaining power by playing on the weakness of men; and they may well glory in their illicit sway, for, like Turkish bashaws, they have more real power than their masters.” But exercising power in this manner is an evidence of degradation: “Virtue is sacrificed to temporary gratifications, and the respectability of life to the triumph of an hour.” Thus, in Wollstonecraft’s theory, even the very power exercised by women in history – the force in history which she had readily conceded – symbolized their subjection, and it was only by breaking the tyranny of custom and opinion which degraded them that women could escape from the status so assigned to women in history.

Neither a trained psychologist nor a student of history, Mary Wollstonecraft speculated freely in thinking about the relation of men and women. One of the many loose generalizations which stand out conspicuously in her volume reads: “It is wandering from my present subject, perhaps, to make a political remark; but as it was produced naturally by the train of my reflections, I shall not pass it silently over. Standing armies can never consist of resolute robust men; they may be well-disciplined machines, but they will seldom contain men under the influence of strong passions, or with very vigorous faculties; and as for any depth of understanding, I will venture to affirm that it is as rarely to be found in the army as amongst women. And the cause, I maintain, is the same. It may be further observed that officers are also particularly attentive to their persons, fond of dancing, crowded rooms, adventures, and ridicule.”

Then in a footnote she asked these questions: “Why should women be censured with petulant acrimony because they seem to have a passion for a scarlet coat? Has not education placed them more on a level with soldiers than any other class of men?”

Going back to the main identification of women with soldiers as “well-disciplined machines,” Wollstonecraft averred that in the case of soldiers, “like the fair sex, the business of their lives is gallantry; they were taught to please, and they only live to please. Yet they do not lose their rank in the distinction of sexes, for they are still reckoned superior to women, though in what their superiority consists, beyond what I have just mentioned, it is difficult to discover.”

Scattered through Vindication of the Rights of Woman were innumerable opinions equally preposterous. Yet the boldness of the book, like the experiments in living which the author undertook, attracted attention, friendly and adverse, to this ardent advocate of human “rights.” Mary Wollstonecraft’s unrepressed thrust at conventions was issued in an American edition at Boston the same year of its publication in England. Her name entered the stream of consciousness in which other names of social rebels floated near the surface or deeper in memory. To this day she is a near-saint of countless feminists, most of whom have probably never read a line of her pamphlet on women critically at least.

Liberals and Socialists Carry the Idea through Universal History

Although Wollstonecraft’s Vindication appeared in the United States shortly after publication in England, it attained no very great sale in this country, either then or later. After all, she had left her argument unfinished and had given to women no program of legislation guaranteed to bring about their “emancipation.” However that may be, leaders of the woman movement in America formulated their own. statement on the subjection of women at Seneca Falls in 1848, in terms more economic and political than Wollstonecraft’s effusion and definitely in accord with Blackstone’s legal thesis. Subsequent formulations at other women’s conventions merely amplified and enlarged upon the Seneca Falls declaration of their historic servitude and their will to independence. And there is good reason for believing that American statements of this kind helped to crystallize insurgent opinion in England along similar lines and to bring the Blackstone creed forcibly to the attention of English feminists and their friends among men as the warrant for adopting the theory of total subjection on which to base a demand for freedom and equality.

At all events the following facts have a distinct bearing on the acceptance in England of the Blackstone formula of subjection as the starting point for the feminist argument. First, Blackstone never acquired in that country the tyranny over the legal mind which he exercised in America; from the very beginning powerful critics, led by Jeremy Bentham, assailed his underlying philosophy with devastating effect and English scholarship made inroads upon the soundness of his treatise in detail. Second, the first great textbook for the English feminist movement, written by John Stuart Mill, in cooperation with his wife, and published in 1869, was entitled The Subjection of Women and was based on the acceptance of the Blackstone formula as an irreducible datum applicable not only to married women but to all women. How did Mill happen to choose this title and take this line?

Some pertinent facts may provide the answer. Mill, the economist, political philosopher, and sometime Liberal member of the House of Commons, had long been associated with Harriet Taylor, whom he finally married in 1851. Under the influence of this friend, later his wife, his views on economics and social affairs in general were profoundly modified. As his autobiography discloses, it is also certain that Mrs. Mill was interested in the woman movement in the United States as well as in England; and it is said that the report of an American convention, held in Massachusetts in 1850 for the promotion of women’s rights, published by the New York Tribune in 1851, “aroused her to active thought on this question.” That very year Mrs. Mill published in the Westminster Review a comprehensive article on the convention and on the general subject of women’s social and political rights. It is also recorded that John Stuart Mill’s The Subjection of Women was “thought out and partly written in collaboration with his wife.”

In the call for the Massachusetts convention, reference was made to the theory of woman’s annihilation and enslavement as Blackstone had expounded it, and it was declared that women were in the “condition of a disabled caste.” In her article in the Westminster Review, Mrs. Mill declared that “there are indications that the example of America will be followed on this side of the Atlantic.” Mr. and Mrs. Mill, in The Subjection of Women, certainly followed the American example in taking Blackstone’s creed without qualifications and in making it a dogma of history to be accepted by everybody, everywhere, as if established by irrefutable knowledge.

In the first paragraph of the first chapter the premise stands stark: “The principle which regulates the existing social relations between the two sexes [is] the legal subjection of one sex to the other.” From that position the argument proceeds: Laws “always begin by recognizing the relations they find already existing between individuals.” And what are the real relations of men and women? “In early times the great majority of the male sex were slaves, as well as the whole of the female.’’ In this summary fashion Mill, or the Mills, disposed of the beginnings of civilization. The contemporary subjection of women (in 1869), the argument continued, “is the primitive state of slavery lasting on, through successive mitigations and modifications occasioned by the same causes which have softened the general manners, and brought all human relations more under the control of justice and the influence of humanity.” After these generalizations come detailed statements on the status of women in the very terms which Blackstone had employed in the eighteenth century.

Having historicized the Blackstone creed and stripped it of all its qualifications in law and equity, the Mills provided a moral antithesis in the form of women’s revolt against their status. Then to perfect the argument the Mills set up the synthesis: The emancipation of women from the tyranny of history can only come by abolishing all the legal signs of this subjection and putting women on a legal equality with men in competition for place, security, and advancement in society.

The Mills conceded that practice did not exactly coincide with the legal theory which they accepted as if true: “I have described the wife’s legal position, not her actual treatment. The laws of most countries are far worse than the people who execute them, and many of them are only able to remain laws by being seldom or never carried into effect. If married life were all that it might be expected to be, looking to the laws alone, society would be a hell on earth. Happily there are both feelings and interests which in many men exclude, and in most, greatly temper, the impulses and propensities which lead to tyranny; and of those feelings, the tie which connects a man with his wife affords, in a normal state of things, incomparably the strongest example. The only tie which at all approaches to it, that between him and his children, tends, in all save exceptional cases, to strengthen, instead of conflicting with, the first.”

But for feminists of the middle class the Mills’ treatise on subjection became the “authority” in respect of woman’s status in law, history, and society as the nineteenth century passed its meridian. In the contest to free women from a long list of common-law disabilities and attain enfranchisement, feminists used The Subjection of Women as a veritable bible.

The Mills’ references to the qualifications induced by practice were easily overlooked by those who read the book or readily forgotten in the urge for agitation and for simplified ideas to be used in popular propaganda. Had Mill not swept them aside himself when he declared that woman’s subjection to man had been a fact even if ninety-nine marriages out of a hundred had not been hellish for women? He took E. E. Schwabach’s position that the thesis of subjection was confirmed if the hundredth marriage “is a bell and is legalized as a hell.” The severe simplification of woman’s status into the dogma of her historic subjection was for innumerable feminists in England, the United States, Germany, and other countries a primary source of concepts about their sex in the past.

To the doctrines of Blackstone ‘ American feminists, and the Mills, pertaining to woman in law and history, Marxian Socialists added a revised version near the middle of the nineteenth century. What Blackstone had done for British patricians in respect of law and order, what Wollstonecraft and the Mills had done for the bourgeoisie in respect of manners, law, and history, the Marxists did for the proletariat in their interpretation of woman, law, and history.

In two fundamental respects the Socialist thesis of woman’s status differed from that of Wollstonecraft and the Mills. In primitive times, it asserted, women had not been subject to men: they had either governed the community or been equals of men in it. Once dominant or equal, women had been driven, however, into subjection by the appearance of private property and the beginning of capitalism. “The overthrow of mother-right,” wrote Friedrich Engels, “was the world-historical downfall of the female sex.” Since the subjection of woman has been due to the rise and tyranny of private property, not merely to man’s lust of power over woman, it follows, the Socialist thesis concluded, that woman’s emancipation lies not in the equal competition of women with men for wealth and employment but in the socialization of the instruments of production and in the provision of employment for all.

This version of woman’s historical subjection to man was presented to the German public and indeed, through translations, to the whole modem world by many writers, but first in systematic form by August Bebel, a leader of the German Social Democrats from about 1865 until his death in 1913. Among Bebel’s writings on this subject two became classics or bibles for socialists all over the world. The first, Die Frau und der Sozialismus, which appeared in 1879, was subsequently revised, republished in fifty-seven German editions by 1926, and translated into all leading languages. The second, Die Frau in Vergangenheit, Gegenwart und Zukunft, came out in 1883 and, although it did not have the popularity that marked the career of Woman and Socialism, also served to spread the doctrine of women’s subjection far and wide among working women who might never have heard of it otherwise.

When the first of Bebel’s works on women came out in 1879 bourgeois feminists were stirring in Germany. For their benefit The Subjection of Women by the Mills had been translated into German shortly after its publication in 1869 and had quickly gone into a second edition. The Communist Manifesto of 1848 on the contrary had declared “Differences of age and sex have no longer any distinctive social validity for the working class. All are instruments of labor.... The bourgeois sees in his wife a mere instrument of production.” The Manifesto had called upon the proletarians of the world to unite and win emancipation through a socialist revolution. It was Bebel’s task to formulate the doctrine of subjection and emancipation in the effort to counteract the bourgeois appeal to women made in the name of laissez faire economy.

Bebel’s socialistic creed for women employed without question the thesis of woman’s historic subjection to man in all the ages since primitive times, ascribed the subjection mainly to the tyrannical features of capitalism, and offered complete emancipation through the overthrow of the capitalist system and the ushering in of the socialist society.

Bebel supported, it is true, the struggle of German women to win the legal and political rights which feminists in general demanded, but in his view woman’s “spring into freedom” was to come only with the triumph of the working classes over capitalism. In anticipation of that triumph, he favored the march of women by the millions into industry. Thus, he maintained, women would be freed from the backwardness and submission of the historic, rural, patriarchal family, would become individualized and educated for the revolution, and would be prepared for the universal freedom to be achieved under socialism.

Under the stimulus of this doctrine, women’s socialist societies for equal rights were formed in Germany, women were drawn in large numbers into the socialist movement, and publications to advance their interests were launched. As socialist and communist propaganda spread around the world, the doctrine of woman’s subjection, her nothingness in history, also spread to the four comers of the earth, affecting the ideas and beliefs of the Orient and coming back in novel versions to the Occident. Thus this world-image of women throughout history became almost universal in its sweep.

Each construct or version of this doctrine fitted into the requirements of some political party or faction as a convenient instrument of agitation for the vindication of traditions or for the reform or overthrow of social and economic institutions. The doctrine in its totality or special phases of it were utilized in all media of literary expression – polite letters, historical treatises, sociological surveys, economic and political works, and educational philosophy, programs, and critiques. It haunted the dreams of Freudian disciples and incited women to brave police and prison in passionate struggles for equality with their historic “masters.”

In the whole intellectual history of human beings there is surely nothing more extraordinary – and fateful – than this dogmatic summarizing of all women’s history from antiquity to recent times under the head of “subjection.”