Woman under the law

Preface

This volume is dedicated to the aggressively progressive women of this world, in the hope that it may prove useful as ammunition for their combat with defiant conventionality and obstinate conservatism. Knowledge is often the best persuader. The barriers which restrain human liberties are only vulnerable to the vigor born of knowledge. Each thought or word, that prompts the activity which assails, may own its share in the final victory, and none should hold back contribution for fear of its proportionate insignificance.

The most important result of the better civilization of our time is the increased knowledge and power of women. We know that in limited spheres their influence was always incalculably great; but now, without losing their ascendancy at home, they find a career in many of the trades, most of the professions, and all the arts. In those of the arts which give the most lively pleasure and reach the greatest number of persons, namely fiction, and the drama, women, in our day, have attained the first rank, and have made the first rank higher.

I set no limit to their future achievements except that which nature herself has established. So long as the chief business of every state w^as to defend ftself against armed encroachment, all gifts and all character were of necessity subordinate to masculine force. Women were "the subject sex." The peace and safety resulting from the union of many states, and to become universal through federation and arbitration, will still further reduce

iii the importance of muscle and brawn. The time is not far distant when the ballot will have rendered the bullet not monstrous merely, but ridiculous.

Women have risen to the better chance afforded them by the amelioration of manners. The most fortunate of them have been cruelly obstructed by the large remainder of barbarism which exists in every community, and they have done their w^ork in the teeth of every conceivable disadvantage. They have had to snatch it from a cross-fire of hostile circumstances. That they should have been able to exercise their rare talents at all, and so triumphantly, is a kind of miracle, at which we can but stand amazed.

To avoid the risk of any possible misconstruction I shall offer here a short explanation of my locus standi as regards the whole subject in question.

I have been for some years deeply interested in what has been called the "Woman's Movement" and have taken part in pleading for the higher education of women, for the admission of women to university degrees, for the protection of the property of married women, for the employment of w^omen generally.

I have seen every year more reason to regard the part hereafter to be played by women in public affairs as offering the best hope for the moral and, still more emphatically, for the spiritual interests of humanity. I think more highly of woman since I have watched and noted her keenness from the public platform; and 1 have more confidence than I had at first, both in her ability and in her stability. But it would be idle to veil the fact that the path of progress on w^hich w^omen have now entered leads up a steep hill of difficulty. Dangers must be faced whenever any time-honored evil is to be swept away or any new good achieved. The rapid progress of woman in public life and affairs could not

iv now^ be stopped, if we desired it; nor should we desire to stop it, if it were our option to do so.

I have yet to learn that knowledge and freedom, which are the springs of all the nobler virtues in men, will be less the ground of loftier and purer virtues in women.

Women do not ask favor of men, but justice.

That a woman should really possess public spirit, and that its exercise should be as ennobling to her as it is to man, is a lesson which it takes most men half a lifetime to learn.

It is not then to men that women must look primarily for aid to climb the ascent before them. The work of elevation must be w^rought by themselves or not at all. At this hour there are in America thousands of women of the highest social and intellectual rank who desire to see better days for their sex, but who are sitting, sighing and waiting patiently for some tall, grand, masculine Jupiter to descend and lift their chariot out of the ruts of custom, it is in vain; they may so wait forever. Nothing but their own steady and simultaneous labor and a knowledge of the laws relating to their sex can really elevate them.

This book is offered to the public, not as a legal treatise, but as simply an attempt to state intelligently, the rights, privileges, and disabilities of women under the law. especially so far as they are different from those enjoyed by or imposed upon men. Repetitions are intentionally frequent. Take this offering therefore for what it may be worth, for its good wishes if nothing more.

ALVAH L. STINSON.

Boston, Massachusetts, July 1, 1914.

Chapter I Common Law

The condition of woman at common law was little better than that of a slave. A wife has a right to share the bed and board of her husband, and can call upon him to provide her with necessary food and clothing, but she is bound to follow him wherever, in the country, he may choose to go and establish himself, provided it is not, for other causes, unreasonable. She is under obligation to be faithful in chastity to her marriage vow.

A married woman can acquire rights of a political character, which stand on the general principles of the law of nations. When she commits a crime in the presence of her husband, unless it is of a very aggravated character, she is presumed to act by his coercion, and, unless the contrary is proved, she is irresponsible.

Her property rights were put by the marriage very much under the control of the husband. He could manage his own affairs in his own way, buy and sell all kinds of personal property, without consulting her and without her control, and he might buy any real estate he might deem proper; but, as the wife acquired a right in the latter, he could not sell it, discharged of her dower, except by her consent, expressed in the manner prescribed by the laws of the State where such lands lay. Her personal property in possession was vested in him, and he could dispose of it as if he had acquired it; this arose from the principle that they were considered one person in law. It has been wittily remarked that a husband and wife are one and the husband is the one; I think, however, that in our common experience many husbands regard the husband and the wife as two and the husband the two. At common law the husband was entitled to all the wife's property in action, provided he reduced it to possession during her life. If the wife died before the claims were collected, the husband received them as her administrator, in which case, after payment of her debts, the surplus belonged to him absolutely. He w^as also entitled to her chattels real, but these vested in him not absolutely, but sub modo: as, in the case of a lease for years, the husband was entitled to receive the rents and profits of it, and could, if he pleased, sell, surrender, or dispose of it during the coverture, and it was liable to be taken in execution for his debts; and, if he survived her, it was to all intents and purposes his ow^n. In case his wife survived him, it was considered as if it had never been transferred from her, and it belonged to her alone. In his wife's freehold estate he had a life estate during the joint lives of himself and wife; and w^hen he had a child by her, who could inherit, he had what is known as an estate by the curtesy. When necessary the great institution known as the common law w^ould, in deference and fear of an occasional outbreak of humane public opinion, afford some sort of equitable protection to the wife. When, however, it w^as only possible for the common law to protect but one, it sedulously spread its protecting wing over the husband, and the wife was left to trail as best she could.

At common law a married woman could not bind herself by contract, express or implied, by parol, or under seal, even for necessaries, nor though living apart from her husband, could she make a binding contract-except for necessaries for the benefit of her separate estate; and a contract made by her being invalid would be no consideration for a subsequent promise during widowhood. If her husband neglected or refused to furnish sustenance" for her and their children, therefore she was deprived of the right to procure it by pledging her credit which might be good; the most she could do was to pledge, if possible, her husband's credit, which might be bad, and thereby preclude her from procuring necessaries of w^hich she might be in dire need. Her husband might be bound by her acts as his agent, duly authorized; but where payment to her was completed, her authority must be stated. By her own act her authority could not be enlarged; and she could not execute a conveyance, even in release of dower, otherwise than by joining with her husband in a deed to a third person. No promise of a wife could at common law be enforced against her unless she had a separate estate, and then not by a personal decree but only by treating it as an appurtenant out of said estate; and then only for her or its benefit.

The common law disabilities of a married woman could not be avoided by any false representations with respect to her capacity, and no estoppel would be raised thereby ; but in the management of her separate property she w^ould be answerable for the fraud of her agent, within the scope of his agency, though she were ignorant of it. The disabilities of a married woman are her personal privilege, and in an action this must be specially pleaded; and no one but the husband can object to a suit against him by the wife, so that a judgment against a firm of which he is a member is good if he does not himself raise the defence. That is to say, the common lawjn its gr?.cious goodness and gallantry toward woman, permits her to sue even her husband, provided, how^ever, he does not object. The wife must continually bear in mind that she and her husband are regarded as one person, and that her legal existence is suspended during marriage, or in other words, is merged in that of the husband.

In equity, however, this common law principle has been somewhat modified; and for some purposes courts of equity recognize husband and wife as distinct persons. She may, therefore, bring an action at law against her husband, and upon presenting her case find that she has no standing in court, for she and her husband are one and one cannot maintain legal action against one's self; she may, simultaneously, however, bring an action against her husband in equity, file her papers in the same court, present her case to the same judge, and she will be heard ; for in the latter case she and her husband are separate and distinct individuals, as viewed by courts of equity. Thus, the numerical condition of woman is, and ever w^as, anomalous at common law. If husband and wife are one and they are separated by a decree of nullity or divorce, which is then the one? and, as one from one leaves nothing, which is entitled to the characterization of zero?

At common law the wife is incapable, except in a few special cases, of contracting a personal obligation, even w^ith her husband's consent; and any attempt to do so is not simply voidable, but is absolutely void. Her disabilities in this respect by reason of her coverture cannot be overcome by any form of acknowledgment or mode of execution, or by uniting with her husband in the contract; and where a special or limited power of making contracts is given to a married woman she is still considered as prima facie unable to contract at all, and the burden of proof is on the person relying on the validity of her contract to bring it within a statutoryrule. .

"^ At common law, as a general rule, a married woman cannot ratify hetppst-nuptial contracts during coverture, or after its termination, except on a new consideration. The moral obligation resting on a woman to make good her unenforceable promise given during coverture is not a sufficient consideration to uphold the affirmation of the promise made either subsequently, during coverture, after the removal of her disability by statute or otherwise, or after she becomes discovert.

At common law, as a general rule, a feme covert could not dispose of her personalty by w^ill, except under a marriage settlement or by her husband's consent, or make a valid devise of lands with dV without her husband's consent, to any person whatever.

As a general rule, at common law, a feme covert could neither sue nor be sued alone, but she must sue or be sued in connection with her husband.

There was never any impediment to the acquisition of property through purchase or otherwise, by a married woman, arising from disability imposed by coverture, the only difficulty in the way being of trifling consequence (?) namely, that at common law the ownership passed irhmediately to the husband; and while at common law a married woman is capable of purchasing, yet the husband may disagree and thereby void the purchase.

At common law a married woman is incapable of exercising the right of suffrage, her existence for such a purpose being merged in that of her husband.

At common law a married woman is incapable of entering into a contract and hence at common law for this reason alone she cannot be estopped by contract or anything in the nature of a contract.

At common law if the husband is an aHen, and has never been in the realm where the w^ife resides, she may enter into contracts to sue and be sued as a feme sole. Hence, a premium is placed upon the marriage of women to foreigners by the common law, for by so marrying there is no merger or fiction of two in one and her legal status is the same as before the marriage.

A w^ife whose husband has been banished or transported for life as a convict, may make a will, contract, and in everything act as a feme sole just as if her husband w^ere dead, he being regarded in such case as civilly dead. It is not difficult under this rule to conceive of many cases v^here the common law might serve as a tremendous incentive to wanton indifference on the part of property ow^ning and oppressed wives as to their husband's welfare with reference to banishment, transportation and ' civil death.

As we have seen, the mere fact that the husband has deserted the wife without leaving her the means of support, or that they are living apart, whether she is provided with a separate maintenance or not, will not be sufficient at common law 'y to enable the w^ife to contract, or to sue and be sued, or otherwise act as a feme sole.

It is a well established principle of the common law that, if the husband abandons his wife and abjures the realm, she may henceforth act as a feme sole. Under this rule, why worry if as the shades of evening fall, the husband fails to appear at the threshold of his domicile, at the accustomed hour?

It has been held that the facts that the husband is insane and is living apart from the wife in an almshouse, will not confer upon the wife any power to bind herself by contract. On the other hand, it has been held that a wife whose husband is insane and is confined in an asylum outside the State in which she resides, is thereby empowered to sue in her own name for a p>ersonal injury, as though her husband were civilly dead. Under this rule, w^omen should be careful to have their insane husbands confined without the jurisdiction of the State of their domiciles.

At common law the husband is said to be the head of the family, and as such the wife must love, honor and obey him. Yet it is difficult to understand how this would be possible, with the husband one of the so called "fathers" of the common law, excepting upon the principle of licking the hand which beats one.

At common law the husband has, as a general rule, a right to the custody of his wife, whose actions he may control and restrain, even by the use of a rod, provided it be no thicker than his thumb. Under this rule it would seem appropriate for prosp>ective brides to seriously consider the thumb dimensions as well as other sterling and manly qualities of their intended husbands.

Under the common law an unmarried female was under the restraint of her parents, a married one, under the restraint of her husband; in fact, it seems that woman at common law was ever and anon under the control and at the mercy of man. Her suckling babe might be torn from her breast by her husband, even though at the time he was living apart from her and in adultery with another woman, so great a favorite was woman under the common law of England.

At common law it was not a criminal offence

to leave a wife without the means of support, and,

if so left she obtained work and by sacrifice, denial

and suffering succeeded in saving a few dollars and

deposited them in a Savings Bank, they became the property of the husband. Even the ring, with which he adorned her dainty and helpless finger at the nuptials, became his property as soon as the marriage ceremony was fully performed, and might be taken for his debts by his creditors.

At common law the personal property which the wife has in her possession in her own right at the time of her marriage, or which comes into her possession during the coverture, whether by gift, bequest, or otherwise, vests absolutely and immediately in the husband without any act on his part asserting his marital rights, and he may dispose of it as he pleases; it becomes immediately liable for his debts, and on his death it goes to his personal representatives.

The husband has the right to dispose of the body of his deceased wife by sepulchre in a suitable place. He has control of the body and may select the proper place for the interment, regardless of the wishes of his wife's parents or their relatives. And this carries with it the right of placing over the spot of burial a monument or memorial of such style and form as he may desire.

At common law the husband upon marriage becomes possessed in the right of the wife to her chattels real, and he may forfeit, sell, assign, mortgage, or otherwise dispose of them as he pleases, without her consent by any act in his lifetime, and they are liable to be sold for his debts. Upon her death they vest absolutely in him if he survives, and his rights in these respects apply to equitable as well as to legal terms for years.

As a general rule, the wife's choses in action which belonged to her at the time of her marriage, or which she acquires during coverture, belong, at common law, to the husband.

At common law the husband is entitled not only to all the personal property which the wife owns at the time of 1ier marriage, but which is reduced to possession during coverture, but also to her services, and whatever she acquires by her skill or labor during coverture belongs to him, as we have seen. The husband's right in this respect is absolute. If the wife makes, in her own name, a purchase of her own, it enures to the husband s ben^t and is liable for his debts, and if her earnings are paid to her without the authority and against ttie direction of the husband, he may, nevertheless, recover them. Money due for the wife's services ira chose in action, which, as a general rule, does not require reduction into possession for the purpose of defeating the wife's right.

*"' Even in equity the wife's earnings do not become her property without a clear, express, irrevocable gift, or some distinct act of the husband divesting himself of them, or setting them apart to her separate use.

The wife has no interest in the husband's realty except dower.

""^nfnlurisdictions where, by the common law, the wife is entitled to a distinctive share in the husband s personalty, it is conceded that the husband has the power to dispose absolutely of his personalty during his lifetime by sale or gift, and if he reserves no right to himself, the transfer will prevail against the wife, though made to defeat her claim.

"Pin money" so called is an allowance made to the wife by the husband in his great mercy, aided by the Court, for personal dress, decoration, and ornament; this allowance being intended for the adornment of the wife and not for accumulation, the acceptance from the husband of clothes and other necessaries, will be a bar to any arrears of pin money during such time as she is so provided.

Sometimes the allowance is made out of the wife's profits and savings from her housekeeping. Sometimes the husband makes an arrangement for pin money by marriage settlement.

It is a well established doctrine of the common law that husband and wife cannot make a valid contract with each other during coverture. The reason for the doctrine generally assigned is that the wife having lost her legal entity, she and her husband are one person in legal contemplation and it would be absurd for a person to enter into a contract with himself.

At common law the wife had no power to appoint a third person to act in her stead, and hence it is said she could not authorize her husband to become her agent, but, even if she had been given the power to appoint a third person to act in her stead, it is difficult to understand how she could have authorized her husband to so act, because he would not be a third person, under the rule making husband and wife one person.

At common law the wife cannot maintain a civil action to recover damages against the husband for personal injuries, as, for instance, assault and battery, false representation or slander, committed upon her during coverture, or even after the dissolution of marriage by divorce; nor, it has been held, could she maintain such action against one who acts with her husband, and under his direction, in doing the injury.

At common law it is the duty of the husband to support the wife, and, if he refuses or neglects to supply his wife with what is necessary, she may procure it, as we have seen, for herself on his account and at his charge, provided he has any credit; otherwise she must go w^ithout.

Necessaries, under the above rule, consist of food, drink, clothing, washing, medical attendance, and a suitable place of residence, it has been held, however, that the services of a clairvoyant, or of persons in mesmeric dreams, were not necessaries. Those were regarded as "fancy articles."

In England the wife has the same power of pledging her husband's credit for the costs due to her solicitor in a suit for a dissolution of a marriage as the costs in a suit for divorce. But legal services rendered to a wife are not by great weight of authority in the United States recognized at common law as coming within the list of articles known as necessaries, for the obvious reason that necessaries are to be provided by a husband for his wife to sustain her as his wife and not to provide for her future condition as a single woman, or, .perhaps, as the proud and happy wife of another.

At common law the person of a married woman during coverture could be taken in execution upon a joint judgment against her and her husband for her ante-nuptial debts whether tha husband was or was not arrested.

Her common law disability is not removed by the so-called married woman's acts which operate only to give her such capacity as is expressed in them.

The rigor of the common law disability of a married woman, and the merging of her individual and property rights in her husband, gave rise to certain equitable remedies against her husband, intended, to secure at least a portion of her property to the use of herself and her children; but to the ordinary equitable estate of a married woman, the marital rights of the husband attach.

The common law has been called a great institutkon, and, no doubt, it does embody the thought and wisdom of many great minds; but has it been fair to women? In this connection it may be interesting to learn something of what is meant by the term "common law. "

It is considered to be that system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the Roman or Civil law, — or, those principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express or positive declaration of the will of the legislature, — or, the body of rules and remedies administered by courts of law, technically so-called, in contradistinction to those of equity and to the canon law. Generally, the law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application.

Under the common law neither the stiff rule of a long antiquity, on the one hand, nor, on the other, the constant changes of a present arbitrary power are allowed ascendency, but, under the sanction of a constitutional government, each of these is set off against the other. So that the law of the people, as it is gathered both from long established custom and from the expression of the legislative power, gradually forms a system, supposed to be just, because it is the deliberate will of a free people, excepting those who are not permitted to express their wills ; supposed to be stable, because it is the growth of centuries; progressive because it is amen^^le to the Qonstant revision of such of the peopje^sjiavg^^ right to expression concerning it.

A full idea of the genius as well as the peculiarities of the common law cannot be gathered without a survey of the philosophy of English and American history. Perhaps the most important of the narrower senses in which the phrase "common law" is used, is that which it has when used in contradistinction to statute law, to designate unw^ritten as distinguished from written law. It has been called the law which derives its force and authority from the universal consent and immemorial practice of the people. Of course, it derives no power whatever from those who are not permitted to express their consent. It has never received the sanction of the legislature by an express act, which is the criterion by which it is distinguished from the statute law.

The statutes are the expression of a law in a w^ritten form, which form is essential to the statute. The decision of a court which establishes or declares a rule of law may be reduced to writing and published in the Reports; but this report is not the law; it is but evidence of the law; it is but a written account of one application of a legal principle, which principle, in the theory of the common law, is still unwritten. However artificial this distinction may appear, it is, nevertheless, of the utmost importance, and bears continually the most wholesome results. It is only by the legislative power that law can be bound by phraseology and by forms of expression. The common law eludes such bondage; its principles are not limited nor hampered by the mere forms in which they may have been expressed, and the reported adjudications declaring such principles are but the instances in which they have been applied. The principles themselves are still unwritten, and should be ready with all the adaptability of truth to meet every new and unexpected case.

It is said that the rules of the common law are flexible, but we frequently find Judges stating what the law is instead of what it ought to be, as if it were as inflexible as a rod of iron.

The statute or w^ritten law is naturally inflexible and has no self-contained power of adaptation to cases not foreseen by legislators; so that in course of time they became supplemented, expleuned, enlarged, or limited by a series of adjudications; until, at last, it may appear to be merely the foundation of a larger super-structure of unwritten law^. It naturally follows, too, from the less definite and precise forms in which the doctrine of the unwritten law stands, and from the proper hesitation of courts to modify recognized doctrines in new exigencies, that the legislative power frequently intervenes to declare, to qualify, or to abrogate the doctrines of the common law. Thus, the written and the unwritten law, the statutes of the present and the traditions of the unholy past interlace and react upon each other. Historical evidence supports the view which these facts suggest — that many of the doctrines of the common law are but the common law form of antique statutes, long since overgrown and imbedded in judicial decisions. While this process is doubtless continually going on and to a very considerable extent, particularly in the United States, the doctrines of the common law are being reduced to the statutory form, w^ith such modifications, of course, as the legislature may choose to make.