T he M other in Marriage
“Despoiled of her noblest prerogatives and deprived of all rights over the fruits of her womb, who legally belong to the father. . . the lowest and most pitiable of slaves.”19 The words in which the socialist activist Nelly Roussel described the legal status of the French wife and mother could have been applied to her counterparts in all Western European societies at the turn of the twentieth century. The Napoleonic Code, a model for the legal codes of France, Italy, the Netherlands, Belgium, Spain, Portugal, and some Swiss cantons nominally recognized the rights of the mother by providing that “until majority, the child remains under the power of father and mother.” However, the Code immediately stipulated that “during the duration of the marriage, the father exercises parental power.”20 The limited authority that the mother was able to exercise was “masculine power deferred.”21 As a widow she exercised guardianship only with his permission, for he could appoint another guardian in his will whom she was obliged to accept. If the widow remarried, the Napoleonic Code required that a family council, composed of relatives from both sides of the family and a justice of the peace, should determine whether she would remain her children’s guardian. Needless to say, no such restrictions were imposed on a widowed father. A divorced or legally separated woman might be allowed the physical care of young children, but the father retained legal custody. “I do not exaggerate,” concluded a speaker at the 1908 National Congress for Women’s Civil Rights and Suffrage in Paris, “when I say that the mother of a normal family who is not a widow, nor separated, nor divorced, nor married to an insane or criminal husband has no legal rights over her children.”22
This legal definition of parental roles was increasingly out of step with the realities of family life. Throughout the nineteenth century urbanization and industrialization had removed men’s work from the home and enlarged the mother’s de facto authority over children and household. Historians of culture conclude that by the turn of the twentieth century the influence of middle – and upper-class mothers on their children, and especially on adult sons’ choice of careers, was on the increase.23 Lower-class mothers were often both the caretakers and the employers of their own children, who worked for them in home industries, and thus exercised considerable power.24 Most feminists fully shared the culture’s high estimation of the importance of the mother-child bond.
The demand for equality of parental rights dated back at least to the 1830s—when a campaign initiated by Caroline Norton gained for British mothers who were legally separated from their husbands the right to care for (though not to have legal custody of ) their young children—and was included in the programs of the earliest feminist organizations.25 The 1890s saw an upsurge of feminist organizing, including the formation of many new national associations. Among the groups that campaigned for the rights of mothers were the Swedish Fredrika Bremer Association (Fredrika-Bremer – Forbundet), founded in 1884, the French League for the Rights of Women (Ligue Franfaise du Droit desFemmes), founded in 1892, the Belgian League for the Rights of Women (Ligue Belge du Droit des Femmes), founded in 1893, the Dutch Free Women’s Association (Vrije Vrouwenvereeniging), founded in 1889, the Committee for the Improvement of the Social and Legal Status of Women in the Netherlands (Comite tot Verbetering van den Maatsc – happelijken en den Rechtstoestand der Vrouw in Nederland), founded in 1894, the German League of German Women’s Associations (Bund Deutscher Frauenvereine), founded in 1896, and the Swiss League of Swiss Women’s Associations (Bund Schweizerischer Frauenvereine), founded in 1900.26 The first generation of female lawyers—such as the Belgian Marie Popelin, the French Maria Verone, the Swiss Emilie Kempin, and the German Marie Raschke27—played an active role in educating the public on the legal issues. The prominence given to the rights of wives and mothers reflected an important change in the demographic composition of women’s movements, which in the nineteenth century had represented chiefly the minority of single career women but now sought to recruit the majority who were married. Not only the predominantly middle-class national women’s organizations, but also the working-class women who were active in socialist women’s groups, supported the reform of marriage and the family. The issue of mothers’ rights was high on the agenda of international feminist congresses such as the one held in Paris in 1896, which resolved that “the rights of mothers should be equal to those of fathers.”28
Among the most conspicuous advocates of the rights of mothers was the British Elizabeth Wolstenholme Elmy, who in 1886 prevailed upon James Byrne, a Member of Parliament who was her political ally, to introduce a bill on child custody into Parliament. In its original form, Elmy’s draft bill provided for “the equality of right and duty of both parents, of father with mother, of mother with father—in all aspects of child-rearing.”29 But Parliament, though willing to grant mothers the right of guardianship after the father’s death, insisted that families must have a head and refused to give mothers equal authority during the father’s lifetime.30 Thus the rights of mothers continued to be a feminist issue. In a leaflet of 1913, the British National Union of Woman Suffrage Societies recruited wives and mothers to the suffrage cause by pointing out that in California, where women had the vote, mothers and fathers now had equal rights over their minor children. “Many of the hardships under which wives and mothers suffer in Great Britain may well be removed when our legislators are no longer negligent of or oblivious to the interests of women,” the author of this leaflet concluded.31
In Germany, a committee of experts who were charged with developing a uniform legal code for the newly unified nation submitted a draft for parliamentary approval in 1888. In 1896, as the final passage of this new legal code drew near, the League of German Women’s Associations (Bund Deutscher Frauenvereine) created a Legal Committee to evaluate its section on family law.32 This committee’s report set off the group’s first mass protest campaign. The laws of Germany, proclaimed a leaflet addressed to “German women and German men,” still condemned the married woman to “powerlessness over her fortune, powerlessness over her children.”33 Though its language allotted the responsibility to child-rearing on both father and mother, the German Code of Civil Law (like the Napoleonic Code) provided that in case of disagreement, the father’s will must prevail. Married women still languished in what the Swiss lawyer Emilie Kempin (who by this time had moved to Berlin) called “the rusty fetters of a thousand-year old tradition.”34 Even more than their single sisters, emphasized Marie Stritt, a member of the Legal Commission, wives and mothers deserved “full independence and civil equality” for the sake of family, state, and “all the new social obligations. . . that the woman of the present is called upon to fulfill, and which she can only fulfill as a free human being.”35
In other European countries, some new codes of law likewise theoretically recognized parental equality but in fact upheld paternal authority. In 1912, under pressure from women’s organizations, a new legal code that created a uniform set of laws for the Swiss confederation substituted parental for paternal power. But the Swiss code added what the legal expert Gertrud Woker called a “fossilized rat’s tail”—that in case of parental disagreement, the will of the father must prevail.36 Women’s groups in Austria and Italy were not able to gain even these limited concessions.
Though in agreement on their goal—parental equality—feminists disagreed on its ideological rationale. Some argued that the mother’s relationship to the children was closer and more important than that of the father. “This mother, who has played the principal role in the birth, this mother who can at no time and under no circumstances doubt her maternity—for paternity is only an act of faith, based on confidence in a woman’s fidelity—this mother who has carried this little creature for nine months in her womb. . . who has formed it of her own flesh and blood. . . who has merged her life with its life. . . who has fed it with her own milk. . . this mother must passively stand by and submit to the acts and the deeds of the father,” exclaimed Maria Deraismes.37 Such reformers asserted that child-rearing was a uniquely female vocation. By allowing the father’s will to override that of the mother, argued the German Olga von Beschwitz among many others, the Civil Code negated “the experience and the understanding of the mother, which in this area is greater than that of the father, whose work often removes him from the home and the children.”38 The Swedish Maria Cederschiold, who headed the Legal Committee of the Swedish National Council of Women, noted that “in our day, the opinion gains ground that woman is more suitable than man for the task of raising the new generation. The more the raising and education of children is entrusted to women, the more unnatural must it appear that the mother does not have equal power with the father over all decisions concerning her children.”39
But others advanced a more gender-neutral definition of parental rights and duties that emphasized democracy and equality of rights in the home as well as the state. “Contemporary society, which is evolving toward the form of an egalitarian democracy, must be based on a family constituted according to the laws of equality, not the laws of despotism,” declared Louis Frank, a co-founder of the Belgian League for the Rights of Women.40 “The authority of parents over children is much more of an obligation than a right. . . and the organization of that power by the law must have as its sole end the interest and the happiness of the child,” stated Marie Popelin.41 In a pamphlet written for the Italian National Council of Women (Consiglio nazionale delle donne italiane), Valeria Benetti-Brunella expressed her organization’s hope that “the arguments from justice and civility which have brought down political absolutism will also overcome legal despotism in the family.”42 In Spain, Adolfo Posada, the scholar whose book entitled Feminism (published in 1899) lent academic prestige to the cause of women’s rights, suggested that “power in the family should be in law as it is in fact in well-regulated families: a power of both spouses.”43
The feminists and their allies were among the agents of a transformation in family structure which, though still incipient, was of great importance in the development of Western civilization. In law and in public consciousness, the old model of the family, in which the father alone possessed both rights and authority, gradually gave way to a new model of a community of separate individuals whose rights were guaranteed by the state. Of course, this model still met with much opposition. Paternal power was sometimes defended by women. At the French National Congress on the Rights of Women of 1908, a delegate objected that although mothers actually made most child-rearing decisions, they relied on the authority of fathers to back them up.44
Some critics also questioned the new and untried notion of equal parental rights. For what would happen if the parents disagreed? The German legal scholar and activist Marianne Weber, who was the author of an authoritative book on the legal status of women, proposed that in case of disagreement between the parents the mother should make decisions about daughters, and the fathers about sons.45 Other theorists invoked the authority of the state as guarantor of the rights of the child. In case of irreconcilable parental disagreements, they stipulated, both parents should submit to the authority of a guardians’ court.46 This was an unprecedented, and deeply controversial limitation of paternal authority. Elizabeth Wolstenholme Elmy remarked that conflict between parents was perhaps unavoidable: “nature herself established the Dual Control when she gave to every human child two parents.” She justified the intervention of the courts by arguing that the welfare of the child should go before the rights of the parents—a provision that was in the spirit of an age when “the dignity and worth of even the youngest child, as an independent human being, is becoming gradually recognized.”47
These efforts to improve the status of the married mother met with considerable resistance from politicians and prominent public figures in the great European powers. Most of them did not accept feminist claims that the empowerment of mothers would promote family stability and the welfare of children. On the contrary, they regarded feminism as a subversive force that undermined the family, and with it population growth, and national strength. For example Jacques Bertillon, influential leader of the French populationist movement, attributed declining birthrates partly to the erosion of paternal power, which he proposed to reinforce by the payment of a subsidy to fathers who produced large families.48
But on the periphery of the European great-power struggle there was more room for change. In Portugal, where a revolution temporarily conferred influence on women’s organizations, the revisions of family law were somewhat more substantive. In 1908 Ana de Castro Osorio and her colleagues founded a new feminist organization, the Republican League of Portuguese Women (Liga Republicans das Mulheres Portuguesas). In 1910, after the overthrow of the monarchy and the establishment of a republic, the League successfully lobbied for new laws on marriage, divorce, and the protection of children. These laws stipulated that “the marriage relationship is based on freedom and equality,” and provided that at least one important family matter, the decision to permit the marriage of underage children, should require the authorization of both parents, or a judicial decision in case they could not agree.49
The greatest progress toward equality of parental rights occurred in the Scandinavian countries. All except Finland were constitutional monarchies, where representative bodies were elected by a democratic franchise which in
Finland as of 1906, in Norway as of 1913, and in Denmark as of 1915 included women.50 The early success of woman suffrage movements gave public visibility and support to the reform of marriage and the family. In 1909, a Scandinavian Committee for Family Law, which included members from all the Nordic countries, was formed to set guidelines for a new legal code. In the ensuing discussions, women’s organizations played a conspicuous advisory role. A model code equalized parental responsibilities in all areas of child-rearing except the control of children’s property, which in all countries except Finland was reserved for fathers until the 1950s. Although the new laws were not passed in any Scandinavian country until the 1920s, they traced their origins to the turn of the twentieth century.51
Organizational programs emphasized that the goal of the woman’s movement was not (as was often charged) to discredit, but to redeem marriage. “The unity of marriage must rest on both spouses’ acknowledgment of each other as equal partners,” stated the program of the League of German Women’s Associations in 1907.52 “The ideal form of marriage,” wrote the immensely influential Swedish author, Ellen Key, “is a free union between a man and a woman, who wish through their love to benefit each other and the human race.”53
But in each country, minorities dissented from this dominant view. They insisted that the two-parent family, though the most common, was by no means the only possible family structure. Substantial numbers of feminists favored a return to what they considered the original and “natural” form of the family—the mother-child unit. This tendency was particularly strong in France, where important groups such as the French Group for Feminist Studies (Groupe frangais d’etudesfeministes), and highly visible activists such as the suffrage leader Hubertine Auclert and the socialist Nelly Roussel called for the recognition of the mother-right family. Auclert declared that the child should bear the name of the mother; why, she asked, should the woman “who has formed the child in her body be less entitled to give the child its social identity than the father?”54 “To center the family on uncertain paternity rather than certain maternity,” said Roussel, was “to exalt the easy contribution of the father above the painful and sacred work of the child’s true creator.”55 The British author Mona Caird, who claimed that the law based the father’s power over his children only on “the fact that their mother was his property,” likewise insisted that “the mother has a moral right to final authority over her children.”56 These arguments for the mother-right family arose in the context of the heated discussion, of the status of the unmarried mother and her child, and to this controversy we shall now turn.