But it would be a great mistake if we were to judge of the condition of women in any country simply by viewing the positive rules of law as evidence of their condition. There are many things in the relation of husband and wife, parent and child, for which no positive law has ever attempted to provide : these matters are governed by the positive morality, that is, by the usages and habits of any given society. It would not follow that if posi tive law gave women more power, they would also receive more respect and tender consideration from the stronger sex. On the contrary, if the two sexes were placed on the same footing by posi tive law, so far as it could be done, this would contradict the constitution of na ture as indicated by the difference of sex, and would rather tend to deprive the female of the respect and consideration which she receives in most countries. There is some mean between the absolute subjection of the with to the husband and the perfect equality by law, which appears to be most in harmony with the physical differences of sex, and best adapted to maintain a system of positive morality that shall conduce to the happiness of both.
As to unmarried women, so long as they are under parental authority, there are reasons in the relation of parent and child for maintaining the power of the parent by positive law to a certain ex tent; and positive morality supplies what law leaves defective. As women who are unmarried expect to marry some time, or at least may marry, it follows that in all nations in which any value is set on the chastity of women, they are by that very opinion excluded from an active life, which would require them to mingle freely with the other sex. If a single woman were a soldier or a sailor, or fol lowed any other occupation which re quired her to mingle with men, she could not preserve a reputation for chastity; and if she did preserve her chastity, she would not have the credit of it. If there are any branches of industry in which the males and females freely inter mingle, and there are such, it is a neces sary consequence that the opinion of the chastity of the females must be unfavour able, and in many cases the opinion must be correct. Usage might establish an
indifference to the chastity of women, and they might still be able to get hue bands, though generally reputed to be unchaste, and often known to be un chaste; and such a condition of society, arising from other causes than those here mentioned, is described by Herodotus (i. 93). Viewed as a portion of the positive morality of any nation, such a usage is faulty because contradictory to the notion of marriage, which implies a regulated commerce of the sexes and a recognised paternity for every child that is born.
The sexual difference then is the ground for a separation of males and females in many of the labours which are essential to the existence and sustenance of both. The union of the male and female in marriage is a just ground for limiting the wife's legal capacity to do certain acts and relieving her from some legal duties, which acts as an unmarried woman she might do, and which duties as an unmarried woman she might owe. The Roman system went further, and placed unmarried women who were of full age and free from parental authority under a kind of tutelage, not with a view of limiting their legal capacity, but in order to save them from fraud. The ground of this is in some passages stated to be the general infirmity of the sex, which, however, resolves itself into the difference of sex, and the consequent danger which on that account there is of a woman being overreached. The Roman law was here wiser than the English.
The condition of a married woman in and in antient Rome, is ' under WIFE. The reader may collect some information on the con dition of women in various countries from the following work : Laboulaye, Recherches sur la Condition Civile et Po flagon des Femmes, &c., Paris, 1843; but this and other works of a like kind must be read with caution, if a man would avoid making false inferences from the positive law of any given country.