Chapter I: Adam and Eve

“After all these years I see that I was mistaken about Eve in the
beginning; it is better to live outside the Garden with her than
inside it without her.”

_Extracts from Adam’s Diary_, MARK TWAIN.

The late Sir William Bailey thought that no public banquet was complete unless Ox Tail Soup headed the menu. For this gave him the opportunity of opening his after-dinner speech with an ancient and familiar jest. “Gentlemen,” he would say with a merry twinkle in his eye, “when I saw Ox Tail Soup on the menu I could not help thinking that we were going a long way back to begin.”

I think he enjoyed that mild joke even more than his friendly hearers who dutifully laughed at it, but to him it was a kind of oratorical gambit from which he proceeded by skilful moves to discourse of the earliest beginnings of the matter in hand.

Happy the man who has been able to learn the causes of things. There is only one hopeful road towards this happiness--the study of the past. You must trace back the streams of life to the ancient sources of experience, and have enough of the child in you to search contentedly and in faith among the myths and fairy tales wherein lie hid the secrets of the world’s childhood.

And that is why I choose Adam and Eve as a fitting title for our first consideration of the Law and the Woman. If I could have found any earlier fable of the relationships of Man and Woman I would have begun with that, but the story of Adam and Eve since it first passed the Press Censor has been held to contain a message to the world alike official, well-authenticated and popular, so that we may regard it, like Sir William Bailey’s Ox Tail, as a very convenient terminus from which to start.

John Milton set down in his story of Adam and Eve the basic truth about the Law and the Woman, as it was in his time and ever has been until the days of the present generation. The verses are the better worth remembering because they are almost exactly in the form in which mediæval man was wont to explain to mediæval woman the kind of thing she really was.

My author and disposer, what thou bidd’st
Unargued I obey. So God ordains:
God is thy law, thou mine: to know no more
Is woman’s happiest knowledge, and her praise.

That is how Eve is said to have summed up the situation in the early days of Creation before _lingerie_ was invented, and cunning generations of Adams have sought to enforce the precedent against her since she emerged from the Garden of Eden clothed and in her right mind.

All the old systems of Law known to the world possess this chattel view of Woman’s status. Confucius tells his Chinese disciples that “man is the representative of heaven and controls all things; woman must obey the orders of man and aid him in carrying out his principles,” and even at a much later date we find St. Paul sending the Corinthians a message to the same effect.

As long as Woman herself was satisfied with the divine origin of a Law which gave her many duties but no rights all was well. Of late years, however, even the deafest and most ancient of our publicists must have heard rumours that Woman was not at peace with the Early Adamic theory of her legal and social position, and it is worth while to-day to understand not only what the Law in relation to Woman really is, but to consider whether everything necessary has been done to make it fit latter-day social conditions. We may, indeed, discover, though this should not be hurriedly concluded, that in their views of Woman, Confucius, St. Paul and even Milton are back numbers.

I doubt if any one ever made a really new law all at once and all on his own, as it were. I dare say if there were records to tell us about it that we should find that even the Ten Commandments did not come slap into the world as an entirely fresh proposition, but proved to be sound, satisfactory laws because they found an echo in the hearts of the people to whom they were given. Men probably had an instinct against stealing long before it was made a statutory crime.

And there is another truth to remember in studying these matters. Although the Law of the past may turn out to have been harsh and cruel, yet the legal disabilities of Woman have not been meanly exploited by Man. Man, to do him justice, is generally better than his Laws. I confess I read with a light heart the diatribes of those social historians who groan over Woman’s slavery in the world’s history. They mistake the shadow of the Law for the substance of Life.

It is perfectly true, for instance, that in Roman Law man alone could be the “father of the household.” The legal position of the Roman head of the family--_Paterfamilias_--was one of much dignity and power, but I doubt whether the old gentleman had a much better time of it than he has to-day. Still, as far as the Law went, _Paterfamilias_ bossed the show. The rest of the household--the wife, the child, the bullock, and the slave--were all equally destitute of legal rights.

Legally, it would appear that family life in Rome ought for the head of the household to have been a very happy affair indeed, if happiness can, as some think, be attained by having all your own way. Socially and morally, however, Roman wives and families gave the old man at home quite a lot of trouble on occasion, and many merry things happened not unworthy of modern Christian civilization.

Juvenal has a lot to say about Roman Woman that does not seem to prove that she was altogether a down-trodden victim of Law.

’Tis night; yet hope no slumbers with your wife,
The nuptial bed is still the scene of strife;
There lives the keen debate, the clamorous brawl,
And quiet “never comes that comes to all.”

That has quite a modern homely ring about it, and we may rest assured, I think, that no Law ever could or ever will restrain the right of Mrs. Caudle to deliver her curtain lecture.

But whatever really went on in Roman households there is no doubt about the Law, which is interesting to us inasmuch as it is one of the forbears of our own Law. Roman Law ignored the existence of Woman except as an appanage of her Lord and Master. He had rights in her, but she had none in herself.

“Truth will leak out even in an affidavit,” and one must not in an historical survey of this kind shut one’s eyes to the fact that some of our Law is of Germanic origin. It came across to us in Saxon times, and though no doubt we gave it the “Anglo” touch and turned it out a more highly-manufactured article than we could have hoped for from the very raw material we imported, still the tainted origin of it continues to haunt us, and perhaps accounts for some of the harsh, unsatisfactory nature of much of our Law.

The Saxons certainly treated Woman with greater respect than the Romans had done. They considered Woman to have a special insight into the mystery of things, and credited her with the gift of prophecy, and treated her accordingly.

Although there was an attitude of tolerance in the Saxon treatment of Woman, the law still regarded her as a chattel, as may be read in the “Dooms” of Alfred and Ethelbert and other Saxon kings. For these early legislators called their Statutes “Dooms,” and their Judges were Doomsters or Deemsters, as they still are in our ancient Island of Man.

And throughout the Dooms you will find the patriarchal spirit strongly asserting itself. The father was absolute master of his daughters and sold them into wedlock. A maid or wife was regarded absolutely as an article of property, in the one case of her father, in the other of her husband. The ancient practice seems to have been to steal a wife first and pay the price afterwards, but the Dooms regularized this and the more legal and reasonable system of purchase took its place.

In early times the price of the maiden was fixed at so many head of cattle and we read in a Saxon chronicle “A King shall with cattle buy a Queen.” The form of the ceremony was outwardly much like our own, so lovingly do we cling to the old forms long after their meaning has departed. The father was there to give the bride away, the contracting parties took each other by the hand and proclaimed themselves man and wife. The lady’s friends were present and the father received the price and handed over the bride. The lady was in fact what pleaders call “goods sold and delivered”; so much so that if the husband discovered any deceit or guile in the transaction then he could bring her home again and have his money back.

Another interesting item in the ceremony was that the father delivered the bride’s shoe to the bridegroom and he touched her on the head with it to show that he assumed marital authority, and when the married pair retired to rest the shoe was placed at the head of the bed on the husband’s side. The shoe still plays a low comedy part in some modern weddings but its symbolism is departed. The next morning if the husband was satisfied with his wife he made her a _morgen-gifu_ or morning gift, and from that moment he had no longer the right to return his bride.

But what shocks and surprises one more than all the rest in these early Saxon Laws is their complacency towards crime against Woman which seems to have been the natural corollary of their assertion of her chattel status. Strange things might be done for cash down in Saxon times, and there was a tariff of crime by which, for forty shillings and costs, you could have a feast of sin and wickedness such as you could not purchase to-day under many years of penal servitude.

In nearly every place where woman is mentioned in the Dooms she is mentioned as a thing rather than a person. In a Doom of Ethelbert it was enacted, for instance, that “if a man carry off a maiden by force let him pay fifty shillings to the owner, and afterwards buy the object of his will from the owner.” It is further enacted that if the young lady was already betrothed then the man who had carried her off had to pay further compensation to the extent of another twenty shillings to her original young man.

The import to us of the incidents of this transaction lies in the fact that the only person who had no legal interest in the matter was the poor maiden herself. Her owner got her price and a bit more for the compulsory purchase, so to speak, on the same principle perhaps as a railway pays more than the market price on the compulsory purchase of land; the maiden’s young man got his bit to solace himself for his disappointment and enable him to set up in life with his second best girl; but, these payments being made, the world regarded the incident as legally closed.

It is an extraordinary thing that this Saxon notion of marriage by purchase got so firmly fixed into the heads of the populace by old tradition that up to quite recent times there were men and women in the country who believed that it was lawful for a man to sell his wife, and there are many authentic instances of such sales in the last hundred years.

The sale of the wife in Thomas Hardy’s _Mayor of Casterbridge_ was drawn from the life. The traditional view seems to have been that if a man brought his wife into the open market with a halter round her neck and sold her to another man, that amounted to a divorce and the husband was then entitled to marry again. Smithfield in London and New Cross in Manchester were the scenes of many such sales.

In the North and the West Riding of Yorkshire the common people in the early nineteenth century believed the law of selling a wife to be as follows:

1. The same wife must not be sold more than once by the same husband.

2. The price of a wife must not be less than one shilling.

3. The wife must be delivered to her purchaser with a halter, if possible a new halter, round her neck.

As late as the eighteenth century official sanction of a base sort was given to such sales. On August 31, 1773, there is stated to be the following entry in a Toll Book which seems to have been kept at the Bell Inn, in Edgbaston: “August 31, 1773, Samuel Whitehouse of the parish of Willenhall in the County of Stafford this day sold his wife Mary Whitehouse in open market to Thomas Griffiths of Birmingham value one shilling. To take with all faults.

Signed, Samuel Whitehouse,
Mary Whitehouse.

Voucher, Thomas Buckley of Birmingham.”

In 1816 a French visitor in a book entitled _Six Mois à Londres_, under the piquant heading, “À quinze shillings ma femme,” gives an entertaining account of what he saw with his own eyes at Smithfield Market. “A seller soon presented himself,” he writes, “leading his wife by a cord attached to her neck. Taking his stand he began to bawl: ‘À quinze shillings ma femme! Qui veut ma femme pour quinze shillings?’ But all seemed in vain. Beefs, veals and muttons disappeared about him but no one wanted a wife. The poor man became hoarse and was in despair; at last an ‘amateur’ presented himself who began to examine the wife, ‘comme il avait examinés quelques instans auparavant une jument que je l’avais vu marchander.’ The inspection was favourable and he offered the price demanded. The husband still repeated his cries, ‘Pour tâcher d’attirer des enchérisseurs,’ but none appearing he pocketed the money and the purchaser gave his arm to his new wife who ‘paraissait avoir de vingt à vingt deux ans et était assez jolie.’”

A ballad from a song book of 1818 confirms the Frenchman’s story. I like it for its dramatic qualities and its happy ending, but it has its social and historical value as showing that at the date of it wife-selling was a sufficiently common thing to make a jesting song about. To-day it would have little point.

THE BALLAD OF JOHN HOBBS.

A jolly shoemaker, John Hobbs, John Hobbs,
A jolly shoemaker, John Hobbs;
He married Jane Carter,
No damsel looked smarter,
But he caught a Tartar,
John Hobbs, John Hobbs,
Yes, he caught a Tartar, John Hobbs.

He tied a rope to her, John Hobbs, John Hobbs,
He tied a rope to her, John Hobbs;
To escape from hot water
To Smithfield he brought her,
But nobody bought her,
Jane Hobbs, Jane Hobbs,
They all were afraid of Jane Hobbs.

Oh! who’ll buy a wife? says Hobbs, John Hobbs,
A sweet pretty wife, says Hobbs;
But somehow they tell us
The wife-dealing fellows
Were all of them sellers,
John Hobbs, John Hobbs,
And none of them wanted Jane Hobbs.

The rope it was ready, John Hobbs, John Hobbs,
Come, give me the rope, says Hobbs,
I won’t stand to wrangle,
Myself I will strangle,
And hang dingle dangle,
John Hobbs, John Hobbs,
He hung dingle dangle, John Hobbs.

But down his wife cut him, John Hobbs, John Hobbs,
But down his wife cut him, John Hobbs;
With a few hubble bubbles,
They settled their troubles,
Like most married couples,
John Hobbs, John Hobbs,
Oh! happy shoemaker, John Hobbs.

Here is a case as late as 1872 in which the parties were in a better station in life. It is quoted from a newspaper of July 6:--

“At the Exeter police court a smartly dressed woman applied for a summons against her husband for refusing to maintain his children, he having that morning turned them out of doors. Complainant and her husband separated some time since, he selling her to another man for £50 and agreeing to take two of the children and she the rest. Since however he had sold her he had followed her about and annoyed her in various ways and now he had turned the children he promised to support out of doors and told her to keep the lot.

“In answer to the bench as to how she supported herself, she said she received money from the man to whom she was sold. The bench thought it was a most disgraceful case and that she did not deserve any protection. If her husband threatened her violently and assaulted her then they would grant her a summons.”

There is no serious suggestion that the wife was wronged in these cases, on the contrary in nearly all of them she seems to have been a consenting party and that was thought essential to the sale in modern times. The interesting thing in the survival of these cases is that the chattel theory of woman should be found existing in such a crude form right into the later years of the Victorian Era.

The last authenticated case of which I have read occurred in a County Court as late as 1881, where a woman gave evidence that she had been married to another man, but she added: “He sold me for twenty-five shillings, and I have it to show in black and white with a receipt stamp on it, as I did not want people to say I was living in adultery.”

I have very little doubt this strange traditional belief in the right of a man to sell his wife, is descended from the “Dooms,” wherein it is laid down that if a freeman seduced the wife of a freeman he had to pay, and in some cases “buy another wife for the injured husband and deliver her at his house.”

That such a custom of selling wives should have existed down to the present times, although only in holes and corners and among uneducated people, is a matter of some surprise even to one like myself who delights in tracing the forgotten folk-lore and fairy tale in the life of to-day.

Certainly it goes to show how tenaciously the traditional legal view of Woman as a chattel remains embedded in the English mind. “She is my goods, my chattels,” bawls out Petruchio, and the groundlings applaud this pithy statement of the English law. Nor can we justly add that the degraded wife-sellers of the slums are the only people who are still willing to throw the rope of tradition round the neck of womankind.

But alongside of “Dooms” and Statutes and legal ideals grew up social and domestic ideals that had even a greater influence on the position of Woman than could be expected from new and better laws. The Saxons--ruffians as they were and are--had a higher ideal of family life than the Romans, and in so far as our nation has been a success in the world it has owed its progress to an extension of the Saxon ideal of the family as the nucleus of the nation. The future of a race will always, I think, depend on its home life, and the centre and guide of the family is the wife and the mother.

Once this began to be recognized, although the legal position of Woman remained unaltered, the social position of Woman and her power in family affairs and society became practically assured. Ruskin has a quaint thought for us about Shakespeare’s plays when he points out that “the catastrophe of every play is brought about by the folly or fault of a man; the redemption, if there be any, is by the virtue and wisdom of a woman, and failing that there is none.” And that, I suppose, is what experience found in the real dramas of family life.

In many ways Law may still regard Woman as an emancipated chattel, but Man has long since ceased to hold that view, though there may be occasional survivals of misconduct which go to show that traditional laws and customs die hard.

The Law is always the latest of our public institutions to hear herald messages of new social ideals. But there is onward movement even in the Law. The present generation may hope to cut down the ancient, twisted, gnarled outposts that fence the old Law from the hands of the reformers, and to see a younger humanity laying a new foundation stone of freedom and equality.