SYNOPSIS OF COMMON LAW.
Until a comparatively recent period
the laws of England in force at the time of the independence
of the American colonies, relating to married women,
the mutual duties of husband and wife, their property
rights and the care and custody of children, were
everywhere in force in this country except in those
states which were originally settled by other nations
than the English.
The agitation of the last fifty years,
caused by the demand for equality in educational opportunities
and in professional, business and trade relations,
as well as for the legal and political recognition
of women, has brought about great changes in these
laws, until they are in many instances almost entirely
superseded by statutory enactments more in accordance
with the spirit of justice and in greater harmony with
the requirements of a higher form of civilization.
In many states they have reached a condition in which
the legal status of husband and wife is nearly, if
not wholly, one of equality.
It must always be borne in mind, however,
that the common law is the foundation upon which almost
the entire structure of our American system of jurisprudence
is based, although it is claimed that it has only
been recognized by our courts so far as it has been
“applicable to the habits and conditions of
our society and in harmony with the genius, spirit
and objects of our institutions.” As it
became apparent from time to time that it was not
thus applicable, or where it failed to meet the requirements
of the changed conditions of society the strictness
of its rules was relaxed by giving to them a broader
construction, or, when this could not be done, they
were modified or entirely changed by statute.
Marriage was regarded by the common
law as a civil contract and might be entered into
legally by a boy of fourteen or a girl of twelve years
of age, provided they were under no legal disability
to contract marriage. This was called the age
of consent, or discretion, and a marriage contracted
prior to this time was inchoate only, and might be
repudiated by either party upon arriving at the legal
age. If one of the parties was above and the
other under the required age, the marriage might still
be disaffirmed by either. If after reaching the
age of consent the parties continued to live together
as husband and wife, this would be regarded as an
affirmance of the marriage.
The mutual consent of the parties
themselves, followed by cohabitation, was sufficient
to constitute a legal marriage, without the observance
of any formalities. The formal ceremonies provided
by statute for the celebration of marriages, and the
penalties imposed upon clergymen and others who married
those who had not complied with these formalities,
were solely for the purpose of providing a convenient
and certain proof of marriage, should it be afterwards
necessary to establish that fact by evidence, rather
than to invalidate marriages which would otherwise
be legal.
Having established the marriage relation,
it could only be dissolved by death or divorce granted
by act of parliament, or, in this country after the
declaration of independence, by act of legislature.
No absolute divorce could be granted for any cause
arising after the marriage, but a separation might
be decreed in case of adultery by either party.
By the rules of the common law, the
person and property of women were under the absolute
control of their husbands. The maxim, Uxor
non est juris, sed sub potestate viri, “a
wife is not her own mistress, but is under the power
of her husband,” is but an expression of the
actual legal status of a woman from the instant she
entered the matrimonial state, until released therefrom
by death or divorce.
Marriage was the act by which she
ceased to have a legal existence, by which, we are
told, her very being became incorporated or consolidated
into that of her husband. From the time her identity
became thus merged, she was presumed by the law to
be under the protection and influence of her husband,
to be so absolutely and entirely one person with him,
that she had henceforth no life in law apart from
his.
The legal fiction of the unity of
the persons of husband and wife dates back to feudal
times, and may, perhaps, have been a necessity of the
age and of the peculiar social and political systems
of that period. Like many another law having
its inception in a sincere desire to secure the greatest
good to the greatest number, and apparently necessary
for that purpose at the period of social development
which gave it birth, it existed for centuries after
it had ceased to result in any benefit or afford any
protection, and after the reason for its being had
passed away and been forgotten.
We are told that at marriage the husband
“adopted his wife and her circumstances together.”
He might exercise his power over her person by restraining
her of her liberty in case of gross misbehavior, or
by giving her moderate chastisement in the same degree
that he might administer correction to his children.
An early decision of one of our state courts interpreted
this to mean that a man might whip his wife with a
switch as large as his finger, but not larger than
his thumb, without being guilty of an assault.
Husband and wife being one person
could not contract nor enter into a business partnership
with each other; neither could one convey property
to the other without the intervention of a third party.
The wife was incapable of receiving a legacy unless
it was willed to another person as trustee, for her
use and benefit, and if a legacy were paid directly
to her, the husband could compel the executor to pay
it again to him.
The wife had no power to contract
a legal debt nor to bind herself by any kind of an
agreement, neither could she make her husband liable
for any debt or contract, except for necessaries.
These, the husband was under obligation to provide,
and in contracting for them, the law assumed that
the wife was acting as his agent.
She might release her right of dower
in lands of her husband, but only when examined separately
she acknowledged that the conveyance or release was
not secured by his influence or coercion.
Her earnings though acquired by her
individual labor and in a business separate and apart
from her husband belonged to him, and he could collect
them by action. This was the law though husband
and wife were living apart. They could be subjected
to the payment of his debts, by his creditors, and
if he died without a will they descended to his heirs
as other personal property. They were not considered
the property of the wife, even in equity, without
a clear, express, irrevocable gift, or some distinct
affirmative act of the husband, divesting himself of
them and setting them apart for her separate use.
A wife had no power to convey her
real property, nor could she devise her personal property
by will, without the consent of her husband.
The husband had the legal right to
establish his home or domicile in any part of the
world where “his interests, his tastes, his convenience,
or possibly, his caprice might suggest,” and
it was the wife’s duty to follow him. If
she refused to accompany him, no matter upon what ground
she based her refusal, she was guilty of desertion.
A promise by the husband before marriage as to the
establishment of the place of residence of the family,
created a moral obligation only and was a mere nullity
in law. Whenever there was a difference of opinion
between husband and wife in regard to the location
of the common home, the will of the wife had to yield
to that of the husband. This law of domicile
was based upon the grounds of the “identity of
the husband and wife, the subjection of the wife to
the husband, and the duty of the wife to make her
home with her husband.”
Neither husband nor wife was competent
as a witness to testify either for or against the
other in civil or criminal cases.
The husband was entitled to the society
and services of his wife and he might bring an action
for damages against anyone who harbored her, or persuaded
or enticed her to leave him or live separate from him.
If injuries were wrongfully inflicted upon her, two
actions might be brought against the party responsible
for the wrong, one by husband and wife for the personal
injury to the wife, and one by the husband for loss
of the wife’s services. In either case,
the amount recovered belonged to the husband.
The wife could neither sue or be sued
unless her husband was joined with her in the suit.
A judgment recovered against her alone was void, because
she was unknown to the law apart from her husband.
One entered in her favor became the property of her
husband.
The consent of the husband was necessary
to enable a married woman to act as executor, administrator,
guardian or trustee.
The husband became responsible for
the maintenance of the wife according to her rank
and station, and if he failed to make suitable provision
for her, tradesmen might furnish her with necessaries
at her request and could collect payment from the
husband. He was liable for all of her debts contracted
before marriage, and this was the case, though he may
have received no property with her. He was responsible
for certain wrongs committed by her after marriage,
such as libel and slander, and judgment could be recovered
against him. If a wrong were committed jointly
by both, action might be brought against the husband
alone. When a judgment was recovered upon contract,
or because of the wrongful act of the wife, if the
husband failed to pay it, he might be imprisoned.
After the death of the husband the
law gave the widow a right to remain forty days in
his house, during which time her dower might be assigned.
This right was known as the “widow’s quarantine.”
The father was legally entitled to
the custody of his children, the right
of the mother was never recognized, it being expressly
stated by Blackstone that “a mother, as such,
is entitled to no power, but only to reverence and
respect.” He might by will appoint a guardian
for them after his death, though yet unborn, and might
apprentice them or give them into the custody of others
without the consent of the mother.
All personal property belonging to
the wife vested absolutely in the husband at marriage.
He could will it to whom he pleased or, if he died
without a will, it descended to his heirs. Even
her wearing apparel and ornaments known by the term
“paraphernalia,” belonged to the husband.
During his life he had the power to sell or give them
away, but he could not devise them by will. If
they remained in the possession of the wife while
the husband lived, she was entitled to them over and
above her dower, but even then creditors of the husband
might claim them, if there chanced to be a deficiency
of other assets with which to pay the debts of the
estate.
The wife’s choses in action,
or evidences of money or property due to her, such
as notes, bonds, contracts or the like, belonged to
the husband if he reduced them to possession during
her life, and they could be taken for his debts.
He might bequeath them by will, but if he died without
a will they descended to his heirs. If he failed
to reduce them to possession while the wife lived,
after his death they would revert to her heirs.
If she outlived her husband they belonged to her.
After the husband’s death the wife took one-third
of his personal estate if there were children, and
one-half if there were no children.
The husband was entitled to the control,
use and enjoyment, together with the rents and profits
of his wife’s real estate during the marriage,
and if a living child were born, he had, after the
wife’s death, a life estate in such property
and might retain possession of it while he lived.
This was known as the husband’s title by curtsy.
The wife took a dower, or life estate in one-third
of the husband’s lands after his death, whether
there were children or not. This estate of dower
was forfeited should the husband be found guilty of
treason, but his interest in her lands was not disturbed
by the treason of the wife. His life interest
in her real estate attached to trust estates, but she
could claim no interest in trust estates of her husband.
If the wife owned leases of land they could be sold
or assigned by the husband during marriage. If
he survived his wife they belonged to him, if she
survived him, they belonged to her, provided he had
not disposed of them while living.
Personal property descended to males
and females in equal shares, but the oldest son was
entitled to the whole of his father’s real property.
The unity of husband and wife was
not so strongly affirmed by the common law when it
dealt with their relation to criminal matters.
When a wife committed an offense against the state
she possessed a separate and distinct life and personalty,
for the purposes of punishment. It is true that
she was still inferior and this distinction was recognized
and emphasized by the difference in the penalties
imposed for the commission of the same crimes, these
penalties being in inverse ratio to the importance
of the criminal.
If a wife committed theft, burglary
or other offenses in the company or presence of her
husband, the law presumed that she acted under compulsion
and held her not guilty, but this presumption did not
extend to cases of murder or treason, and it might
always be overcome by proof that she acted independently.
The exception in cases of murder or treason, we are
informed, was not alone because of the magnitude of
the crimes, but rather on account of “the husband
having broken through the most sacred tie of social
community by rebellion against the state, had no right
to that obedience from a wife which he himself, as
a subject, had forgotten to pay.”
If a man murdered his wife it was
as if he had murdered a stranger, and he might avail
himself of the benefit of clergy, and secure immunity
from punishment, provided he could read, but women
were denied all benefit of clergy because of their
sex, and because they “were not called upon
to read.” If a wife killed her husband it
was a much more serious offense, he being her lord,
and she was guilty of treason and subject to the same
punishment as if she had killed the king.
In cases of petit treason the penalty
depended upon the sex of the criminal, men being sentenced
to be drawn and hanged, while women were drawn and
burnt alive.
In larceny, bigamy, manslaughter and
other crimes, men might claim the benefit of clergy
and by taking holy orders, escape all punishment,
except branding in the hand and a few months imprisonment,
while women might receive sentence of death and be
executed for the first offense. Later the law
was changed so that in cases of simple larceny under
the value of ten shillings, they might be burned in
the hand and whipped, stocked or imprisoned for any
time not exceeding one year. The disability of
sex and of ignorance were both finally removed and
all men and women admitted to benefit of clergy.
By the common law, adultery and seduction
were not classed with crimes, but were only civil
injuries for which compensation might be recovered
by husband, father or guardian, but the woman, who
might be wronged, had no right of action for the injury
to herself, and the State did not recognize any wrong
to society by an injury to the person of one who was
civilly dead. The crime of rape was punishable
by death, and consent, though proved, was no defense,
if the offense was committed upon a child under ten
years of age.
Magna Charta, granted by King John,
while redressing many hardships and grievances incident
to feudal times, and confirming and securing to the
people many rights and liberties, among which was the
right of the wife to dower in her husband’s
property, denied to women the right of appeal except
in case of the death of their husbands. The right
of appeal was the privilege of private prosecution
for crime. (Analogus to our present method of
commencing prosecutions by information.)
According to Blackstone, even the
disabilities of the wife were for the most part intended
for her protection and benefit, and he adds: “So
great a favorite is the female sex of the laws of England!”
The discrimination made by the common
law between men and women, was based alone upon the
assumption that women were, and must be always dependent
by reason of their sex. In the light of a broader
humanity, the distinctions seem cruel and barbarous,
but that they were the result of any spirit of injustice
or intentional tyranny, or of any desire on the part
of men to oppress women or impose upon them any hardship
or burden because of their physical weakness, is not
at all probable. They were merely the outgrowth
of the conditions incident to ruder stages of social
development, and were, perhaps, as favorable to women
at that period, as the laws of our own times will
be considered when judged in the light of the civilization
of the future, after successive centuries of intellectual
and moral growth have been added to the enlightenment
of to-day.
Law of Iowa.