THE INEQUALITIES OF THE LAW REGARDING MEN AND WOMEN.

Evening Star, Issue 10611, 30 April 1898, Page 3 (Supplement)

THE INEQUALITIES OF THE LAW REGARDING MEN AND WOMEN.

[By Ethel R. Benjamin, LL.B, Babbister

\ v - at Law.] [This ib the address rejeoted by the National Counoil of the Women of iNew Zealand, as being opposed to the spirit Of the Oounoil's work.] When first approaohed by the Council I was requested to write a paper on the law as it affected Women and children; but I pointed out that all law directly or indireotly aflfeots women and ohildren- that is to say, women and ohildrenfoira part of a wondrous organism, and all that Arfects men effects women, and all that affects the grown men and women of to-day will make its influence felt on their ohildren, the men and women of tomorrow. The wellbeing of the one is the well-being of the other, and

.. . A DI6E MISTAKE is made when the champions of-women's rights look upon men as the natural foes of women. In my opinion this view has no foundation on fact—on the .contrary, my small experience teaches mo that women have less to- ft ar from men than from those of their own sex. The majority of enlightened, broad-minded men perceive that by raising the womenthey are raising the race, and if women wili but prove themselves worthy.. of equal. rights there is no right or privilege that wil'l long bo denied them. Let women educate themselves and their daughters to become deserving of equal rights and capable of fulfilling equal duties, ,and these rights will be their own—the battle will be over, the victory won ! SCOPE OF PRESENT PAPER. It would, I know, prove instructive and interesting to the Cou-.cil if I were to review from earliest times tho differences in the positions of the two sexes in the various systems of law with which we are acquainted, seeking out the causeß, both historical and psychological, which had led to such inequalities, and tracing the raising of women's sooial and legal status from the beginning to the present day, The Bpace at my command, however, is but limited, and probably it will bo employed with tho best practical results if I confine my remaiks, for the most part, to those inequalities which Btill prevail in the law of our own colony; . EXISTING INEQUALITIES IN THE LAW. I propose to make two main divisions in tho subject of my paper, and shall speak (1) of those inequalities in the law which attach to all women, both man ied and unmarried—in law the feme sole and feme covert; and (2) of those whioh affect only married women—and incidentally in this connection of the relation of parent to child. In New Zealand at the present time a woman not under coverture labors under few disadvantages imposed by law on account of her sex. One by one the barriers have been removed, and now there is no profession or occupation that is closed against her. But there are still a few inequalities in existence, of whioh the following are the most important: WOMEN INELIGIBLE AS LEGISLATORS. In the first place a woman cannot become a member of either Hou?o of Parliament. The franchise gives ; her the right to select her representatives from among the male sex, but she is still denied the right of returning one of her own sex as a member of the House of Representative. It has been asserted that, as a logical consequence of the franchise, this disability must bo removed ; but, apart from that, the constitutents are deemed by law the beat judges of who amongst men shall represent them, and it ought surely be left to tho electors to decide whether a woman candidate should or should not be returned to Parliament.

The Electoral Aot of 1893 expressly provides that "no woman shall be capable of being nominated as a candidate or of being elected a member of the House of Keprejentatives, or of being appointed to the Legislative Council." Women are by tho Aot placed in a position analogous to that assigned to aliens, lunatics, public offenders, and defaulters—and I think it only just that tlrs disqualification of women should be at once removed from our St iluto Books, OANNOT SERVE AS JURORS. The second inequality to which I would caU your attention is that no woman may be cmpannelled as a juror. The law makes every man between the ages of twenty-one years and sixty > ear 3 (with certain exceptions), " who shall be of good fame and character, and who shall reside within the colony, liable end qualified to serve as a juror upon all juries which may be empannellcd for any trial or inquiry within the jury district in which such person shall reside." Tho liability to be cilled upon to serve as a juror attaches with certa'n exceptions to every male citizen, and when women claim equal rights thev must be prepared to accept equal duties, and logically it is unjmt that they bhould because of sex be quite freed from a duty which the mero fact of citizenship imposes on men. Whether the system would or would not be improved by placing on the jury list all women between the prescribed ages, I do not now propose to discus3-but as the names of all malo residents are included iu the li t, irrespective of fitnes3 or unfitness, it would seem that the question of fitness ia quite an irrelevant factor; and I repeat that if women insist on the rights of citizenship they must be prepared to accept the corresponding duties. WOMAN'S DUTY IN WAB TIMS. Then, women are at all times exempted from military service. If an enemy were to endeavor to envade our fair colony, the burden of defenoe would fall entirely on.our fathers aud brothers. Our womtn, Amazons though they bo, would be kept in safety for from the field of battle, from the dis'ance anxiously regarding the danger ami horrors of warfare. "Where then, one wou'd ask, would bo thoir boasted equality ? But do not women do their thare at suoh a time? Their role is different, but not lees difficult to play. Is not the agonised waiting ia itself more diffioult to bear than, the oxoiting tumult of battle ? " For men rau3t work and women must weep" sings the poet, and those who know the Buffering of a woman's heart when hor loved ones are in danger will agree that hers is not the easier task. And there are women who in such times of warfare will do more than just watch and pray. There have been, and will be again, women mitristering angels on the battlefield, tending the siok and wounded, raising the drooping spirits, and spurring on the men to victory. And perhaps in the wars of the future (I know this will raise a laugh), perhaps,'l say, in the wars to come, women may take a more active part than heretofore. Certainly, our girl 3 aro more fitted for such a task than were their mothers and grandmothers; and what Joan of Arc could do in the days of Agiucourt surely can be done by our girls of to-day, with their superior physique, the result cf physical training and ?tr?ngth-giving outdoor exercise. WOMEN AS JCSIICFS OR JUDGES. At the last meeting of the Council it was carried unanimously that women should be eligible, for the office of justice of the peace. This v. ould seem to imply that women were then not eligible for that office, but the law permits of their appointment equally wiih men. The Juatioes of the Peace Act, 1882, enables the Governor of tho colony to i?sue a commission of the peace to any number of "persons." Kote that the common gender ia used. I would mention that where (as was the case in Onehunga) a lady is mayor of a town or city that lady is ex officio a justice of the peace. I have also heard it suggested that women are not eligible to become magistrates and judges, but when the law permitted them to appear at the Bar it also pari passu made it possible for them to sit on the bench. When a woman haa been in practice in New Zealand for seven years, or more, there is nothing in law to prevent her being appointed a judge of the Supreme Court, and if in time any of our women lawyers prove themselves worthy of the distinction it may be that New Zealand will once more take the lead, and appoint some proud woman a magistrate or judge. POSITION OF MARRIED WOMEN. And now let me turn to the married woman, and consider how she is treated by the law. Firstly, I shall direct your attention to her rights over property. At common law a wife could not enjoy property apart from her husband, her very existence b°ing deemed merged by the marriage in that of her lord and master; but the harshness of this doctrine haß slowly but surely been mitigated until the Married Women's Property Acts enacted that a married woman may acquire, hold, and dispose of her separate property as a feme sole. In this connection, however, the law has still some inequalities, although chiefly in favor of the married woman. In spite of her boasted equality, equity considers that the married woman requires much care, and, in order to protect her separate estate from the tender mercies of her husband and others, it allows . her to be restrained from anticipating or alienating it. The property of a meek married man cannot be so guarded; equity leaves the poor hen-pecked husband to look after himself, and does nothing to help him withstand the extravagances of his better half. Some day I expect there will be advocates of " Men's Rights" who will raise their voice against equity's partiality to the ladies ! Then, again, a married woman ia specially favored in that a judgment against her imposes no general personal liability to pay the i debt in respect to which the judgment is given. No woman under coverture can be impdsoned for debt; no action lies against her, and the judgment creditor's only remedy is against her aoparate property—where he ia fortunate enough to lay hands upon it. It ia certainly the duty of a wife to support- a destitute husband as of a husband to support Ms wife, but there is this difference. between- the two cases: if a husband can provide for his wife by work or otherwise and does not, he may still be compelled to contribute to her support whether he 1b actually possessed of property or not. His obligation iB a purely personal one. But in the esse of a wife her obligation is dependent on her having property of our own, and unless Bhe

have thai she cannot be compelled to contribute to the support of her husoand. And now I would refer to the

INEQUALITY OP THE DIVORCE LAW. I see that a member of the Counoil is to read a paper on • Marriage and Divorce.' It will not be necessary, therefore, for me to do more than mention the unequal manner in whioh the law treats men and women with regard to divoroe. A husband may petition for divoroe on the ground that his wife has since her marriage been guilty of adultery; but a wife cannot petition on the ground of adultery, unless it be coupled with some aggravating circumstance, suoh as oruelty or desertion without reasonable exouse for two years or more. . I shall now say a few words about THE RIGHTS AND DUTIES OF MARRIED WOMEN with regard to (1) the support and maintenance pf their children, and (2) the guardianship of their children.

(1) A married woman having. separat3 property is subject to all suoh liability for the maintenance of her children .and grandchildren as the husband is subject for the maintenance of her ohildren and grandohi'dreni- (2) Besides the obligation to support which both parents are under (though in different degrees}, the law imposes upon the father a further duty and clothes him with corresponding rights. The tather is by law the natural guardian of his infant children, and is entitled to the care and custody of them in preference to_ their mother, and a Btatute passed in the reign of Charles 11. gave a father the power to dispose of the custody of his children during their minority—that is, a father could take the children away from their mother and give them into the care and custody of another. The Law Amendment Act, 1882, however, gives the Supreme Court power to order that the mother havo access to her children on such conditions as the Court may deem proper, or it may order that the children be de'ivered to the mother and remain in her custody or under her control. Section 6 of tho Infants' Guardianship and Contraot Act, 1887, goes still further, and provides that " the Court may, upon the application of the mother of any infant, make suoh order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of? the infaut and to the conduct of the parents, and to the wishes as well of the mother as of the father."

I have now called your attention to the principal differences in the law regarding men and women. Ido not mean this to be looked upon as an exhaustive account of the incqualiti' s of the law affecting the two sexe", it being impossible to mention every point in a paper whose dimensions must needs be so limited. I also wish to explain that I do not regard this paper as a brief, as it were, for my own sex. On the contrary, I have endeavored throughout to treat my subject in a judicial and impartial way, pointing out wherein the law favois the stronger and whf rein the weaker sex. WELL MEANT ADVICE. Not that I am not a warm supporter of the women's movement—no one takes a keener interest than I in the true advancement of my sex. At the Bamc time, Ido not think that the world can be entirely changed ia a day. Fcstinz lente is a good old motto-follow it. It appears to me the height of absurdity for a few political tyros to settle in a moment questions of gigantic import, questions which would merit the earnest an! c ireful consideration of politicians of life-long experience. And I would especially warn the Council against seeking to meddl9 with the relations of husband and wife. For instance, tho Council glibly talk about the Economic Independence of Married Women, and after a short and totally inadequate discussion unanimously pass resolutions which, I venture to affirm, few, if any of them, thoroughly understand. I would aßk: Does any delegato present know how such resolutions could be carried into effect? Has any one of you a definite and workable scheme to propose ? And, assuming that she have, are you all thoroughly convinced that the possible good to result will outweigh the probable evil? In my opinion, until you are sure of these facts, and know that your motion could bo carried into effect, no one of you should vote in favor of it. To do so calls forth the ridicule and scorn of all sensible men and women, and works more harm than thousands of such motions could ever do good. It is really abmrd for a few women, as yet polit'cal infants, to meet and in a moment "carry unanimously" motions which few of them understand, which in all probability sre quite impracticable, or which, if given effect to, might revolutionise Eociety in a way that few of thtra-thoroughly appreciate. I have spoken strongly ; my remarks may not meet with the approval of the Council, but, to use a colloquialism, "Them's my sentiments," and it ia as well that you should know them.