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Volume 9, 1876
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Art. XXI.—Savage and Barbaric “Survivals” in Marriage.

[Read before the Auckland Institute, October 2nd, 1876.]

1. The present is the outgrowth of the past. Modern civilization is the result of causes and influences which have been in operation from the very beginning of human history. The modern civilized man, with his customs and ideas and institutions, is the outcome or product of the whole past course of the world's history. Hence all we are—all the things of our civilization may be viewed as “survivals.” It is, however, in a stricter and more scientific sense that I will employ the word survivals here. In the long progress of mankind, from the lowest savagery, through barbarism and up to our present civilization, there have been many stages or grades, the lower grade usually passing to the higher. Certain customs, beliefs, etc., proper to an old and lower grade, find their way into a newer and higher grade—the growths of one age. These customs and beliefs often continue, more or less changed, throughout succeeding ages; but they are inconsistent or incongruous with the more advanced state of things in those ages. Such relics of the past living on into the present are survivals. E. B. Tylor defines survivals to be “processes, customs, opinions, and so forth, which have been carried on by force of habit into a new state of society different from that in which they had their original home, and they thus remain as proofs and examples of an older condition of culture, out of which a newer has been evolved.” Speaking only of one class or department at present, I will show you some curious survivals in marriage—some customs and opinions and laws, obviously originating in savagery or barbarism, which still prevail among ourselves.

2. Marriage is the foundation of civilized life. Marriage of the monogamus kind, or the union of one man and one woman for life, is the most important of all our social institutions. The monogamy now existing among the most civilized nations seems to have been preceded everywhere by polygamy, and polygamy by what has been termed communal marriage. It is almost certain that in the very remotest times, all over the world, the sexes lived together promiscuously. From this degraded state the first upward step was towards polygamy, or the exclusive appropriation by one man of several women. The first step from communal, in the direction of individual marriage, appears to have been brought about mainly by war and slavery. In war between primeval savage tribes the conquerors were likely to kill most of the males of the conquered tribe, but to capture such of the females as pleased them. The warrior savage according to his pleasure might either kill a female captive or save her alive. If her life was spared,

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she naturally became his slave primarily and his wife secondarily. However many he chose to save, they became his slaves, his wives. They belonged to him and him only, and his brother braves had no right to them. The women of the conquering tribe were the tribal sisters of the men, and belonged to them all; but the captured women of other tribes were the property of their captors. At first and for long ages slave wives captured in war and specially appropriated would have occupied a lower position in the tribe than the tribal or communal women. The Hetairism of the ancient Greeks and Hindoos was a relic or survival from this state of things. Nice people are shocked when they read of Socrates visiting Aspasia, or of the divine Buddha accepting the hospitality of the mistress of the Courtezans; but among the Greeks and Hindoos women like Aspasia and the hostess of Buddha were higher and more honourable in the social scale than the slave-wives. In the course of time the communal system, though traces of it long remained as survival, was superseded by the superior system of polygamy, brought in by war and slavery. Polygamy being generally established, the obtaining of wives by capture would have continued long; and in truth it has continued, either as a fact or as a symbol, over a considerable portion of the world till the present day. In the progress of society the buying of women to be slaves and wives makes its appearance. The purchase system comes in, and in a considerable degree mitigates and supersedes the capture system. From the time when authentic or documentary history begins, and long after, purchase was customary among the Chinese, Hindoos, and Greeks. It was customary among the Jews, for Moses allowed Jewish fathers to sell their daughters for slaves or concubines. (Ex. xxi. 7.) It was customary among the Romans, who had two kinds of marriage—one by “co-emptio,” and the other by “confarreatio.” In co-emption marriage the forms were the same as those which were gone through in the purchase of a slave. Confarreation marriage was a survival of the capture system, and in it a show of force was always employed by the husband in taking his bride away from the arms of her mother. From the beginnings of history we can trace the capture and the purchase systems, either as stern realities or as important ceremonies, all over the world and down the ages.

3. It may be said that the state of things I speak of has passed away; that the slavery of former times has ceased; that neither law nor custom amongst us tolerates the carrying off of women by violence, or the making merchandize of them. True, so far. Among the most civilized peoples, monogamy has supplanted polygamy, and this has vastly improved the whole marriage relationship. Our modern customs, opinions, and laws are unquestionably better than those of the past. But the past has its consequences,

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its inevitable effects, in the present. Our customs, opinions, and laws relative to marriage are found, when examined, to be the very things of the past, more or less modified or improved. Like pebbles, originally rough and angular, many of them have become rounded and smoothed in the stream of ages which has rolled them down to us. But there are still, here and there, some pebbles which retain much of their original roughness and angularity. There are some customs, opinions, and laws which have floated like drift-wood from the remote past, and which may now be picked up by us on the shores of the nineteenth century. Though women are no longer captured and purchased to be made slaves and wives of, there are still some curious relics and vestiges of this which have found their way into our advanced civilization. In connection with marriage, and the position of women in the marriage relation, there are some survivals from the savagery and barbarism of old. These survivals may be arranged into two classes: the first, comprehending certain customs and ceremonies; and the second, comprehending certain opinions, or beliefs, and laws, still associated with marriage amongst ourselves.

I.—Ceremonial Survivals.

1. Our savage ancestors obtained their slave-wives by capturing them in war. As civilization advanced, wiving came to be done in a more peaceable and mercantile way. But even after this better way was generally adopted, capture continued, not as a reality, but as a symbol. It still survives as a symbol among almost all peoples, but in many cases the symbol has dwindled into a ceremony nearly meaningless. Among the ancient Greeks and Romans the bridegroom carrying away the bride by seeming force was an indispensable part of their marriage ceremonial. Our learned Bibliopole, in his “Old Identities,” told us lately that this style of wooing still exists among our Maori neighbours. Sir John Lubbock, in his “Origin of Civilization,” gives us numerous examples of this survival, taken from every variety of the human race. Among many others, he mentions the following marriage ceremony, as customary, among the Welsh, last century:— “On the morning of the wedding-day, the bridegroom, accompanied by his friends on horseback, demands the bride. Her friends, who are likewise on horseback, give a positive refusal; on which, a mock scuffle ensues; the bride, mounted behind her nearest kinsman, is carried off, and is pursued by the bridegroom and his friends, with loud shouts. It is not uncommon on such an occasion to see 200 or 300 sturdy Welsh riding at full speed, crossing and jostling, to the no small amusement of the spectators. When they have fatigued themselves and their horses, the bridegroom is

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suffered to overtake the bride; he leads her away in triumph, and the scene is concluded with feasting and festivity.”

Similar survivals are to be found in different branches of the Teutonic race. Language, scientifically studied, is beginning to yield a rich harvest of pre-historic knowledge: I am told that the word for marriage is, in old German, brût-laufti, and in old Norse, quan fang; and that the meaning of these words is bride-lifting, bride-catc hing, bride-racing. The Scotch still speak of cattle-lifting, and cattle-lifter; and in some dialects of northern Europe the bridegroom is styled the bride-lifter; and the meaning in the two cases is, no doubt, the same—carrying off by violence. Even in the Britain of our day this mock imitation of marriage by capture still exists, but smoothed and attenuated into a piece of fun and frolic all but unintelligible. Amongst ourselves, the marriage ceremony and luncheon being over, the newly-married pair prepare to leave; and, as they are moving towards the door, a cannonade of slippers, old shoes, etc., opens upon them. There can be no doubt there is a survival of marriage by capture in the ceremony of the slippers thrown in mock anger after the bride and bridegroom.

2. The ring which is put on a woman's finger in the marriage ceremony has given rise to many poetic fancies. It has become associated with a multitude of fine thoughts and sentiments. It is put on the third finger of the left hand, because, it is said, from that finger, and that alone, there runs a nerve direct to the heart. The ring being round, and having no end, is regarded as an emblem of the love then pledged, a love fondly fancied at the time to be everlasting. Passing from the realm of Fancy to that of Fact, I must state that the marriage-ring, like the ear-ring, is a relic of the remote past, a survival from the times of capture and slavery. Among the ancient Jews, and other nations, the ears were bored of those who had become slaves, and rings were hung in them. This custom, belonging to the days of slavery, is perpetuated in the ear-rings of our times. And, painful as it is to disillusionize poetic minds, I must state the truth, that the wedding-ring is traceable to the same servile origin. “What,” asks Max Müller, Vol. II., p. 285, “What is the meaning of the wedding-ring which the wife has to wear? There is no authority for it either in the Old or New Testament. It is simply a heathen custom, whether Roman or Teutonic we shall not attempt to decide, but originally expressive of the fetter by which the wife was tied to her husband.”

3. There is a wide-spread prejudice against being married in May. This prejudice or superstition has been noted in most of the countries included in the Roman empire, and wherever Europeans have colonized. Now why should marriages be held objectionable in May more than in any other

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month? The answer to this is to be found in the religious customs of the ancient Romans. From pre-historic times downwards the Romans celebrated in May the funeral rites of the Lemuralia. The Lemures were ghosts, spirits, hobgoblins; and the month of May was specially devoted to religious or superstitious services in connection with them and the dead. May, therefore, notwithstanding its beauty and its flowers, and its abounding life, became to the old Romans a month of gloom and terror. The poet Ovid, who lived 1900 years ago, says that in his time it was considered unlucky to marry in May, on account of the occurrence in that month of these funeral rites of the Lemuralia. This curious superstition seems to have spread as far as the Roman conquests extended, and even farther; and in this, I doubt not, we have the true origin of the idea so widely prevailing among ourselves and in the modern world that marriages made in May are unlucky.

4. The modern honeymoon, with its marriage jaunt or wedding tour, is another survival from ancient and barbarous times. Fighting for a girl to make a wife was naturally associated with stealing her. Capture by force and theft are closely allied. The relatives of the captured or stolen girl would endeavour to get her back, and would long be angry with the robber or thief. He would keep himself, and his fair charmer too, out of the way for a time till their wrath was somewhat abated. When, in the progress of civilization, the reality of capture passed into a symbol, this frequently concomitant part of the transaction was not likely to escape symbolization. It is still kept up in many semi-civilized communities. It is still kept up among ourselves, for some of our philosophers regard our honeymoon, with its going away from home and the keeping out of our friends' way, as the symbolized continuation of the primeval state of things. Against this barbarous survival the English press is beginning to lift up its protest. I mean against driving newly-married people away from their friends on a wedding tour of about a month's duration. Hiding themselves away from all the comforts of home, they cannot help making each other miserable. With great truth and feeling the “Saturday Review” the other day said:—“We condemn the unfortunate couple to a penance which, would try the deepest affection and irritate the sweetest temper. When Hodge and his sweetheart crown their pastoral loves in the quiet old country church, they enjoy a walk in their finery and white cotton gloves, and then take possession of the cot beside the wood, and settle down at once to connubial comfort. But they have chances of happiness denied to their richer neighbours. It is a matter almost of moral duty, certainly of superstitious strictness, that when the squire marries the rector's daughter, or my lord marries my lady, the first month of married life must be passed (away from

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friends) in the discomfort of foreign hotels, or the still less endurable desolation of English inns, as if to strain to the utmost the strength of their newly made bonds.” In this month of homeless misery we have the barbarism of the past surviving in a symbol almost as disagreeable as the reality.

5. The marriage customs we have spoken of are mainly survivals of the capture system, which in the progress of civilization passed into the purchase system. We do not doubt that now-a-days some marry on principle and from pure love and affection; but the purchase system largely characterizes the present grade of civilization. Of this system there are two kinds, the one antique and homely, and the other modern and refined. The antique and homely way was to pay hard money to parents or guardians for the lady. This is still the custom in many parts of the world, and it was the custom both in France and in England at no very distant date. Our modern method of purchase is much more refined. Let a man who is marriageable have plenty of money, and almost any one of a score of girls round about is ready to accept his hand. In cases of this sort the man purchases the girl—the girl literally selling herself for money. If men still purchase wives, it is equally common for women to purchase husbands. Let a girl inherit a fortune, and however overlooked she may have been hitherto she now becomes the belle of the place. Marriageable men in hundreds are thinking about her; letters full of her praises burden the local letter-carrier, and crowds of prudent youths take a fancy to the kind of gospel preached in the church she attends.

“Be a lassie e'er sae black,
Gin she ha'e the name o'siller;
Set her up on Tintock tap,
The wind will blaw a man till her.”

In such cases the girl purchases the husband—he literally selling himself for her money.

II. Survivals in Opinions and Laws.

1. I come now to consider the second and more important class of survivals, consisting of ideas and opinions and laws, which, originating in the rudest states of society, have lasted on into our times. The primitive slavery to which women were subject is not quite extinct. No doubt their legal and social position in civilized countries now-a-days is an improvement upon what it was in the old times. Not a few married women, exceptionally fortunate in their husbands, feel they could not be freer or better situated than they are at present. Such, however, should be reminded that they are what they are, not by law but by grace—by the grace of their lords, by the favour of their legal masters. The old slavery, modified and mitigated in some respects, still continues, but disguised under the name of the subordination of the one sex

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to the other. In reference to married women, despotic slavery, it may be said, is dead, and constitutional subordination reigns in its place. The old state of things, it may be supposed, has quite passed away. We read that among the Romans the word familia, from which comes our family, meant a man's slaves, and that his wife and children, as part of his family, were literally slaves. Or, we are told that in China women have always been so ill-treated and oppressed that the poor creatures often spend their hours of leisure or rest in religious services and prayers that they may be born men and not women in the next state of being. Or, we learn that it is still the custom in Canada to place a strap, a kettle, and a faggot in an Indian bride's cabin. The strap to indicate that she must carry burdens; the kettle, that she must dress food; and the faggot, that she must procure wood for her husband. Or we learn that in some provinces of Russia the bride on her marriage presents her lord with a rod, which symbolizes the chastisement she expects for any misconduct. Or we learn that among our own chivalrous ancestors in the middle ages women in general were serfs or property. Shakspeare, the great delineator of life and manners in those ages, puts into Petruchio's mouth the popular opinion and the common law of the wife's relation to her husband. Alluding to his exquisite Catherine, Petruchio says:—

“I will be master of what is mine own;
She is my goods, my chattels; she is my house,
My household stuff, my field, my barn,
My horse, my ox, my ass, my anything.”

Learning thus the savage and barbarous treatment of wives—of women generally—in former times, we should inquire if this state of slavery or servitude which so shocks us, has passed away, or if it still lives on under the disguised name of lawful subordination, in the midst of our boasted civilization. Mr. Mill, referring to the legal and social position of wives now-a-days, says: “The law of servitude in marriage is a monstrous contradiction to all the principles of the modern world. It is the sole case, now that negro slavery has been abolished, in which a human being in the plenitude of every faculty is delivered up to the tender mercies of another human being, in the hope, forsooth, that this other will use the power solely for the good of the person subjected to it. Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house.” In confirmation of Mill's opinion, I will now give a few examples of the wrongs which wives and women suffered of old, still flourishing vigourously in our midst. In those old times there was one law for women and another for men in reference to chastity; and in those old times the children a woman bore belonged not to her but to her owner.

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And in those old times women were largely disinherited, and were legally incapable of holding property. These old wrongs continue to a considerable extent unredressed. Though somewhat modified and white-washed, they still survive. Women, married women, are still wronged in reference to the marriage contract, and conjugal infidelity; and in reference to the up bringing and guardianship of their children; and in reference to property.

2. Marriage, which ought to be a fair and equal partnership, is, amongst us, a contract which gives undue advantage and power to one of the contracting parties over the other. Its injustice in punishing a woman for marrying, by spoiling her of her property, I will speak of by-and-by. At present I speak of some other respects in which the contract is grossly onesided, or uni-lateral. Neither general opinion nor law requires a man to be as faithful to this contract as a woman. For unfaithfulness, both opinion and law inflict heavier penalties on the woman than on the man. All this seems to have resulted from the prevalent polygamy of former times. Amongst us polygamy has long ceased to be a lawful institution, except, perhaps, in the case of the males of royal houses. In Germany and in Britain, for instance, the law seems to tolerate, or to wink at, the disguised polygamy of left-handed marriages in high places. This polygamy has left its mark upon us;—upon our opinions, manners, and institutions: for, whereever it existed as a lawful institution, people could not help thinking that men were entitled to more liberty of a licentious kind than women. This idea still survives, contaminating public opinion. We observe it in the different degrees of reprobation with which we treat impurity in women and in men. To a woman, impurity brings disgrace, ruin, social damnation; but in a man it is only an excusable peccadillo, which scarcely affects his social position or fortunes. A parallel survival or out-come, of the polygamous epoch, we have in the fact that the female partner, in the marriage contract, is more severely punished for unfaithfulness than the male—not only by public opinion, but also by law. A husband can obtain a divorce from his wife by proving that she has been unfaithful to the marriage vow; but, in most civilized nations, a wife cannot obtain a divorce from her husband on the same ground. In France, a wife cannot obtain a divorce unless the adulterous husband keeps his concubine in the same house with her. In England, a wife can obtain a divorce only when her husband, besides being unfaithful, has treated her with cruelty, or beaten her, not in moderation. In the paper whence I gathered these curiosities it was stated that at present only in two European countries, Italy and Scotland, does an equal, or bi-lateral, law of divorce prevail. (Is the New Zealand law also bi-lateral?) We have now seen that legislation has stamped a uni-lateral character on conjugal infidelity, and inflicts severer

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penalties on the female infidel than on the male. We have seen also that law and public opinion allow greater liberty to the male than to the female of being licentious with impunity. From this it obviously follows that we recognise one moral code for women, and another, and laxer, code for men; or that men are not bound by the same rule of moral purity as women. The things I have just now spoken of,—the injustice of the marriage partnership; the uni-lateral character of conjugal unfaithfulness; and the different moral codes imposed on men and women—seem to me to be survivals and outgrowths of slavery and polygamy. If you do not adopt my views of their genealogical descent, I am sure you will acknowledge it would be hard to find worse principles and practices among barbarians and savages; and that in the midst of our modern civilization it would be premature as yet to thank Heaven for our being much wiser or better than the generations which preceded us.

We have another barbarous survival in connection with the legal relation in which married women now-a-days stand to the guardianship of their children. In the view of common sense, father and mother have an equal right and interest in their children. But British law proceeds on the assumption that they are the father's children exclusively. “He alone,” says Mill, “has any legal rights over them. No one act can she do towards or in relation to them, except by delegation from him. Even after he is dead she is not their legal guardian, unless he by will has made her so. He could even send them away from her, and deprive her of the means of seeing or corresponding with them, until this power was in some degree restricted by Sergeant Talfourd's Act.” In treating this part of the subject I feel I am getting out of my depth. Help, however, is at hand, for last year there was published a work on the “Rights of Women,” apparently by a very able lawyer. Amongst other matters this author details the laws bearing on the guardianship of children at present in force in England, Scotland, France, etc. The book is reviewed in the last April number of the “Westminster.” “By the English law of guardianship,” says the reviewer, “the father alone can dispose by will or deed of the custody and tuition of his children; that is, of the management of their property and the control of their persons. The mother, who until the year 1873 had no legal power whatever over her children after they were seven, can never appoint a guardian by deed or will, though in default of such appointment by her husband, and on condition of remaining unmarried, she becomes guardian herself. The Scotch law is very similar. The father has the custody of the children during his life, and may remove them where he likes. He can recover them from any one who detains them, and, after infancy, even from their mother. He alone can nominate tutors by his will; the mother

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cannot, even though a widow. She only has the custody of the child's person, if her husband has appointed no one else. But in no case does the tutorship, that is the direction of the child's education and property, devolve upon her, but on the next male agnate who is over twenty-five. In France the law is that the right of guardianship goes first and indefeasibly to either survivor of the marriage, and then, in default of his or her appointment, to their parents in turn. It is impossible for the father to defeat by his will his wife's right in this respect. The utmost he can do is to limit her power by nominating an adviser whom she must consult. As legal guardian a widow has full control over her children's education. She alone can oppose or consent to their marriage. She has the usufruct of their property, and can appoint a guardian by her will. Similarly the code published for the State of New York in 1866 has so far departed from the conditions of the common law that, though the father remains the legitimate guardian of his children, and entitled to their custody, service, and earnings, yet he cannot transfer the guardianship to any person other than the mother, without her written consent; and if he is dead, or unable or unwilling to act, the right devolves unconditionally upon her.” From these remarks it is evident that, in relation to mothers and the guardianship of children, the barbaric survivals are fewer, or less outrageously unjust in France and New York than in Great Britain; and it is to be hoped that the after discussion of this subject will show that the New Zealand law is as civilized as that of the State of New York.

4. Another relic (and this is our last,) of barbarism and savagery, is the relation in which women, especially married women, still stand to property. In those old times when a woman's social position, especially a wife's, was quite undistinguishable from that of a slave, her not being allowed to own or hold property was consistent with the then existing state of things. Her position, however, improved, in certain respects, during the world's progress; but in respect of property, it is scarcely as good as it was, in heathen Rome, fifteen or seventeen centuries ago; and much worse than it was in Hindustan according to the laws of Manu. According to those laws, all property given to a wife by her own parents or kindred, or given by her husband, remained inalienably the wife's even though it consisted of lands or houses, inalienably hers during the husband's life, and after his death. In strange contrast with this is English law. Hitherto the tendency both of English opinion and English law has leaned towards the disinheriting and stripping of women of whatever was righteously theirs. In the testamentary disposition, whether of property or money, they are seldom dealt with fairly or equitably. A late iron-master, of enormous wealth, and whose wealth was entirely at his own disposal, left all his

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landed property to the males of his family; and in bequeathing his money, he gave to the females only units, and to the males hundreds of thousands. The English law punishes a woman for marrying, by depriving her of her property; though rich people, who are able to employ lawyers, can to a certain small extent baffle the law by marriage settlements, pin-money, etc. The principle of English law seems to be that whatever is the wife's is the husband's, but whatever is the husband's is not the wife's. But I feel again that I am getting beyond my depth; and that, though stating what is substantially correct, I am likely, as a layman, to blunder in the language I employ. In my difficulty, I will fall back upon the great philosopher and the able lawyer whom I have already quoted from. Two or three very short extracts will suffice:—

“The wife's position under the common law of England is worse than that of slaves under the laws of many countries: by the Roman law, for example, a slave might have his peculium, which, to a certain extent, the law guaranteed to him for his exclusive use.” Again, “The English law deprives a married woman of any property in real estate, or of any power to dispose of it by deed or will, as against her husband, unless it has been expressly vested in trustees, or given to her for her separate use.” And, with the exception of what comes to her as the heiress of an intestate, “at law her husband is entitled to the rents and profits of any other realty she may have, nor can she convey it without his concurrence. As to personality: till 1870 England was the only country in which a wife had no rights to personal property; in which she could neither bequeath it by will nor dispose of it by gift, and in which it was at the mercy of her husband, and subject to his debts.” Again, “It is still possible, in England, for a man to leave all his property, and so much, also, of his wife's as does not fall within the scant provision of the Property Act of 1870, away from her and her children, so as to leave them absolute paupers.”

I ask your pardon for alluding to matters of this sort, which I know I do not fully understand. You should remember I do not undertake to set before you all the intricate relations of married women to property. The statements made, and the quotations adduced are only samples, intended to prove that, in reference to property and other things, women are still treated much as if they were slaves, or poor creatures to whom less of legal justice and kindness is due than to man, their free and lordly brother. Like his male progenitors in the wild days of yore, man still continues woman's legal and social tyrant. He is like Shakespeare's fox—

“Who—ne'er so tamed, so cherished, and locked-up—
Still has a wild trick of his ancestors.”

I doubt if you will find, amid all the injustices and anomalies of our

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complicated and unequal civilization, any vestiges, or survivals, more unquestionably unjust than those which I have been speaking of. The kitchen refuse-heaps of Denmark, and the stone hatchets of the Valley of the Somme, are no more indicative of barbarous times and men, than are many of the present opinions and laws which affect women in relation to property and other matters. In this respect, the said opinions and laws are as genuine relics of old savagery, and as veritable fossils of barbarism, as any flint implements, or pithecoid skulls, dug out of Kent's Hole, or the Enghis, or Neanderthal Caves.