The Congress of Women: Property Rights of Women
Property Rights of Women
The subject of the present property rights of women is lastly to be considered.
In England and America the unmarried woman is now, as she was four hundred years ago, possessed of all the property rights of a man. She can buy and sell her property, carry on business, bind herself by her contracts of every kind, make a will, and adopt a child if she chooses, just as her brother may do. She can sue and be sued in court, is a competent witness in all cases, and can be executrix of a will, administratrix of an estate, and guardian of children. On the Continent of Europe the unmarried woman is still hampered in some degree by the former legal conception of the essential frailty and incapacity of woman. She is bound by her contracts and may do business as a public merchant. She can make a will and adopt a child. But she cannot, except in Italy and Russia, sign her name as a witness to any legal document; neither can she, with a few exceptions, be a guardian of children, or act as a legal member of family councils. As to the property rights of the married woman, a most radical change has taken place within the last fifty years. Every state in the Union has passed statutes widening to some extent the legal powers of the married woman; and in England, by the Married Woman's Property Act of 1882, all legal restrictions are removed from the wife, who is capable of holding and transferring property, and can sue and be sued as if unmarried.
Rhode Island appears to have led in this reform in 1841, which gave to a wife coming into the state as a resident, being already separated from her husband, the sole ownership and control of her property. This was followed, in 1844, by an act securing to the wife her own property, including her earnings, so that it could not be taken for the husband's debts, and providing that in case she survived him it was to be her sole and separate property. Massachusetts followed, in 1845, with a similar statute, and New York, in 1848, passed a much more liberal one.
It is impossible to trace the history of or give in detail the law of each state. Only the general features can be presented. In every state of the Union, except Tennessee, the wife's property is so far secured to her that it cannot be taken for her husband's debts, and if she survives him it becomes her sole and separate property. But many, indeed a majority, of the states go much further than this, and give to the wife the sole ownership and control of her property as if she were unmarried. In nearly all the states, however, the real estate of the wife cannot be sold without the joinder of her husband in the deed, both signing it. In California, Colorado, Illinois, Iowa, Kansas, Maine, Michigan, New York and Wisconsin the wife's deed is good without the husband's signature. All the rest of her property she is free to dispose of as if she were single. In all the states a wife may make a will. In some of these she cannot by any means by her will deprive her husband of the legal share in her property which he would take if she made no will; but in a few, as in Massachusetts, she may cut off her husband's legal claim by securing his written consent thereto. The earnings of the wife belong to her in all but nine states and territories. In these the wife's earnings are either absolutely the husband's, or "subject to his control." The wife's power to do business and make contracts varies greatly in the different states. In most of the states she may be a trader and bind herself by any contract made in her business. In fact, there seems to be but four states which absolutely prohibit the married woman from doing business on her own account. These are Wisconsin, Vermont, Rhode Island and Texas, and in the two last named the wife has scarcely any more power to make any kind of a binding contract than she had at common law. The power to sue and be sued in court is a necessary consequence of legal permission to make a contract; so in every state where a wife can independently of her husband make a valid contract, the law furnishes a remedy upon such contracts by a right of suit by or against the wife for a breach thereof. An interesting question is, How far can husbands and wives have direct business dealings with each other, so that they may sue each other for breach of an ordinary business contract?
Under the old English equity system, still in force in our country, also, if a wife loaned money to her husband upon his promise to repay, a court of equity would upon her petition compel him to refund the money. This was the only instance where a wife could sue her husband. A court of law would never allow husbands and wives to sue each other, or even to testify for or against each other. But our modern statutes are in many states sufficiently broad to allow husbands and wives to contract as freely with each other, and to sue and be sued, as if they were not married. This is especially true of the states west of the Mississippi, but a number of the older states, as New York, Pennsylvania, Mississippi and South Carolina, grant a like freedom.
Although the legal separate existence of the wife is now a fact in our country, the husband is still viewed as the head of the family, the natural guardian of the children, and he alone is liable for the support of the family. In some of our newer western states, all property acquired by either husband or wife during the marriage is the joint property of both, and in such a case the parents are jointly liable for the support of the family. The same is true in a few other states, which hold the parents jointly liable (while not recognizing any joint ownership of property) out of their own separate estates. In but six states of the Union is the mother's right to the guardianship of her children recognized by statute as equal to that of the father. These states are Oregon, Washington, Nebraska, Kansas, Iowa and New York.
In England the wife has full property rights and contract powers. Turning to the condition of the married woman under the codes of Continental Europe, we see that very much progress has been made. The doctrine of all those countries which have for a fundamental law the code Napoleon, is that of the marital supremacy of the husband and the complete subjection of the wife. It is the old idea of the frailty of the sex. It is true that the code recognizes a common ownership of property, but the complete management and control of the same is in the husband. If the dowry of the wife is imperiled, or the husband's affairs are in a serious condition, the wife may have her property set apart for her out of the common purse. The earnings of the wife belong to the husband, and he can pledge her personal effects for his debts. She may be a merchant, but she must first be authorized by her husband to do so, and even then her contracts are not as absolutely binding upon her as upon a man. She cannot be the guardian of her children. In Italy and Russia these features are somewhat modified, and the wife's property is, as with us, her sole and separate property. In Russia she maintains a completely separate legal existence, and can do business, sue and be sued, independently of her husband. The husband is obliged to support the family however, and the wife is not bound to do so. In Italy she needs merely a general power of attorney from her husband to enable her to act as a single woman in respect to her property, and not even this is necessary for her to be a merchant, nor in case of the minority, imprisonment or absence of the husband.
The condition of the widow is much changed in England and America. The ancient law of dower, that is, the life interest in one-third the husband's real estate, has been very generally abolished, and instead thereof the widow or the widower is entitled to an equal share in the estate of the deceased spouse, with full power to alter the same by will. This is the case in many American states, but still in many others the old common law estates of the widow's dower and the widower's courtesy are even now recognized and cannot be cut off by will. In a few states, too, the old rule of law survives which gives to the widower all his deceased wife's personal property, unless she has otherwise disposed of it by will. In every state the widow and children are entitled to support out of the husband's estate for a length of time varying from forty days in Massachusetts to a year in many western states, and during this time of support the widow may remain in the mansion house without paying rent, and even longer than this in some states. If the laws of the state recognize a homestead estate in the dwelling house of the family, this secures a home to the widow until she marries again, and to the family until the youngest child is twenty-one.
In Europe, exclusive of England and Italy, the widow has a very limited interest in the property of the husband. Under the French and Belgian codes she only receives the husband's property when all heirs to the twelfth degree have failed. In Germany she has a certain portion of his property set apart for her. In Italy the laws resemble those of the most advanced of our United States in giving to either spouse a child's share in the property of the other, and if no children or heirs survive the widow or widower has the whole estate. In England and America a widow, like a single woman, has the legal freedom of a man, and can be executrix of his will, administratrix of his estate, and guardian of her children. In Europe the widow has not full power to be guardian of her children; she must act under the advice of a special council appointed by the father in his will, if he has seen fit to do so, and the widow cannot discipline the children without the concurrence of the two nearest relatives on the father's side.
In most of our states a father may appoint, by will, a guardian for his minor children, but this guardian cannot act as such if considered by the probate court to be an unfit person.
In England a father may appoint by his will a guardian to act conjointly with the mother. The Asiatic and African colonies of European and English nations are slowly receiving the benefit of their laws, as civilization and Christianity advance.
There are still dark spots upon the earth's surface where the condition of woman is no better than it was four hundred years ago; where she is the slave, machine and plaything of the tyrant man, with no hope for the future, either in this life or a life to come, unless she holds the Mohammedan faith of future salvation by a union with man.
In summing up the results of our survey of woman's present legal condition, let us first observe that while theoretically the legal condition of woman is determined by her social condition, yet now, in fact, because of the survival of ancient laws, which are out of joint with woman's present social and intellectual emancipation, the reverse seems to be the case, and woman's social development is hampered by useless legal al restrictions. Take for example the law, still existing in some places, that a married woman shall not do business as a trader. This law is powerless to prevent a married woman from going into any kind of business if she chooses. Its only effect is to encourage her in dishonesty, by absolving her from any legal obligation to pay her just debts incurred in the business. Her employes and creditors are absolutely dependent upon her sense of honor, and cannot compel her in any way to pay them, if she refuses to do so.
This law may have been well enough in the days when no woman could attempt with social propriety to carry on business. It is now demoralizing to the woman it protects, and unjust to those who deal with her. The same is true of the laws excluding woman from public office, those rendering her incompetent to be a witness, to make a valid promissory note, and those denying to her the guardianship of her children. Women are nearly, if not quite, upon a recognized social equality with men in respect to freedom to labor and earn money, and in justice to men and women alike they should be made equally responsible before the law. It is as true as it was four hundred years ago that the condition of the women of a nation is the measure of its culture and civilization. Whether we look at our own land where women may vote, hold office, do business, enter upon any profession as the social equal of man, enjoying respectful consideration and chivalrous treatment; or whether we turn our eyes to our sisters in Eastern lands, shut up in the harems and zenanas of the rich, or toiling like slaves in the hovels of the poor, where woman's social condition is so low that to mention a man's wife in his presence is an insult to him, we shall still find it true that the condition of woman is a true gauge of a people's advancement in civilization. And, lastly, another great truth comes before us, that while intellectual culture and other systems of religion have tended to elevate the women of the higher classes, it is Christianity alone that elevates the women of the lower classes.
Investigate as you will the legal freedom of woman under the civilization of ancient Egypt, her intellectual culture in the palmiest days of Hinduism in India, the courtesy and respect shown to her in Japan, and whatever privileges are accorded to her in China; or turn to the honor paid her in the days of chivalry, and the half heathen civilization of the middle ages-you will find that the light shines only upon the woman of higher birth and gentle breeding, and that a heavy, dark cloud of ignorance, superstition, helplessness and hopelessness weighs down the women of the lower classes. But under our modern Christian civilization the working-woman is recognized as the peer before the law of her wealthier sister, with a legal right to equal advantages of education, to equal protection of person and property, and equal freedom to use her powers for the good of herself and mankind. And where, in fact, woman's equality with man is not yet fully recognized, it is because of the survival of ancient ideas, which are to disappear very speedily. Thus we are more and more closely approaching the time when woman shall be recognized as the full legal and social equal of man, and the ideal of human as of Divine law shall be attained when "there can be neither Jew nor Greek, there can be neither bond nor free, there can be no male or female-for ye are all one man in Christ Jesus."