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absolutely her husband's, to the exclusion even of children that she might have left by a former husband. Upon this point, too, no light was shed by the action of the legislature. Thus a new field for litigation was opened, from which ingenious counsel have reaped abundant harvests.

The recent legislation of Pennsylvania, though it has gone very far in the same direction, has been much more circumspect and statesmanlike. It has not enacted the ridiculous inequality, which now prevails in New York, of enabling a man's wife to sell and convey her real estate without his consent, while he is still subjected to the disability of the old law, which makes it impossible for him to convey a good title to his real estate without her consent. Furthermore, the Married Woman's Act of Pennsylvania, passed in 1848, contains a clause by way of preventing misunderstanding, expressly saving the estate by curtesy of the husband, in case of his wife dying intestate, and also provides in regard to her personal property, that it shall be divided amongst her husband and children, share and share alike. By another act, passed in 1855, husband and wife are placed upon the same footing, as to the power of either to bequeath or devise property, in derogation of the rights secured by law to the other, each being entitled to elect between the testamentary provision and those rights.

But we recur to the statute of New York, and the questions raised under it. It was decided by Judge Mason, in 1850, that future estates by the curtesy were not altogether abolished-that the husband was entitled to his curtesy in case of the intestacy of his wife, the same as before the act took effect. He took the ground that the statute was never intended to interfere with the laws of descent. This view was adopted by Judges Allen and Marvin, and also by Surrogate Bradford. The opposite view, however, was supported with great zeal and pertinacity by Judge Potter, in two elaborate and lengthy opinions.* The character of his argument, in some parts of it

* The opinion of Judge Mason is to be found in the case of Hurd v. Cass, Vol. 9 Barbour's Supreme Court Reports: the opinion of Allen, 1858, in the case of Shumway v. Cooper, Vol. 16, ibid: of Marvin, 1857, in the case of Clark v. Clark,

at least, is rather political than strictly legal. His conclusions are drawn, in great measure, from general considerations in regard to "our republican institutions," and "the genius and spirit of the age," rather than from a careful subjection of the statute under review to the familiar rule of interpretation, that it is only by express words, or by necessary implication, that a legislative enactment can operate as a repeal or alteration of an established rule of the common law. The subject was afterwards thoroughly discussed by Judge Sutherland,* in favor of the husband's succession to his wife's personalty, and he argued with great clearness and force, among other things, that the new statute having given a married woman the separate and independent use as well as the free and absolute disposition of her property, no further rights relating to it were left to be conferred upon her, and that the rights already bestowed were not at all touched by questions in relation to descent and succession, which, therefore, must be determined according to the law as it existed before the statute.

The question, so far as regards the succession to personal property, has already been decided by the Court of Appeals† in favor of the husband, and in all probability the same disposition will be made of that branch of the question which relates to the estate by curtesy.

We now pass to the subject of earnings, and here we touch the real source of those evils and hardships, of which, much more than of most others to which married women are subjected, we feel that they have had good ground to complain. If a wife, in addition to her ordinary domestic duties, sees fit to employ her industry in such a way as to secure a pecuniary return for it, there is no adequate reason why the avails of her labor should not be exclusively her own. Especially so in

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Vol. 24, ibid: of Potter, 1858 and 1859, in Baker v. Billings, Vol. Bradford, 1849, in McCosker v. Golden, 1st Vol. Bradford's Reports. ion of Marvin, and also of Potter, like that of Mason, related to the curtesy. The decisions of Allen and Bradford involved the question of succession to personal property.

*See case of Vallance v. Bausch, 1859, 28th Vol. Barbour's Reports.

In 1860, in case of Ransom v. Nichols, 22d Vol. New York Reports.

those cases of frequent occurrence, where, through the incompetency or depravity of her husband, she is reduced to the necessity of earning a livelihood for herself and her children. Indeed, when the reformers, in recounting the wrongs of woman, come to this point, they wax strong with an eloquence well fortified by facts of almost daily observation, and quite irresistable. It is a calamity to be yoked for life to a shiftless or profligate husband. Sometimes it is unforeseen and unavoidable. Sometimes it is the penalty which fortune imposes upon a woman for the indiscretion of following the impulse of her affections in preference to the advice of friends, or even the dictates of her own judgment. In either case, it is hard enough, indeed, to find too late for remedy, that he to whom she has confided her life, in the fond hope that he would do so much to make it bright and happy, is no better, after all, than a millstone about her neck, dragging her down perpetually with the weight of a sluggard or a sensualist. But the old law, so far from doing anything to alleviate the evil, only aggravated it. So far from protecting her in the enjoyment of the earnings of her industry, it made them absolutely the property of her husband. The scanty savings, eked out by driblets, from the wages of her labor, or the profits of her trade, and treasured up against the hour of need, became by operation of law the ministers to the gratification of his passions. The system. which led to such results, no matter by what name it might have been dignified, was little else, in this particular at least, than a system of legalized robbery.

We have dwelt with considerable emphasis upon this defect in the common law, for the reason that our legislators of the school of Woman's Rights seem to have been so slow in duly appreciating and correcting it. Precisely here there was most need of reform, because the greatest sufferers from this source were the poorer and therefore the more numerous classes. Indeed, we are inclined to the opinion, that a careful analysis of this entire subject, such as we have not seen instituted in this country, would develop the result, that nine-tenths of the evils of which the reformers complained, so far as they were justly chargeable to the laws of property, and were capable of rem

edy by legislation, originated from the single rule of law, which took from the wife her personal property, especially her earnings, and gave it to her husband.

It required no great degree of legal acuteness to see that the New York legislation of 1848–9 had no application to the case of earnings, as they could not be said to come under either of the specified heads of property acquired "by inheritance, or by gift, grant, devise, or bequest." To Massachusetts is due the credit of having first struck an effective blow at the root of the evil. In a statute, passed in that state in 1855, it is enacted, in addition to other very extensive provisions, that a married woman may carry on any trade or business, and perform any labor or services, on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor, and earnings, in the same manner as if she were sole. Furthermore, that the property, both real and personal, which she acquires by her trade, business, labor, or services, carried on or performed on her sole and separate account, and the rents, issues, profits, and proceeds of such property shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected, and invested, by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts.* These provisions were adopted without material modification, by the legislature of New York, in 1860.

In the State of Connecticut a law was passed in 1850, to the effect that real estate purchased by the wife out of the proceeds of her personal services, during coverture, should be held by her to her sole and separate use, and in 1860 this act was extended so as to apply to the proceeds themselves, and to all reinvestments of the same. Aside from the item of earnings, the legislation of this state, upon the subject before us, has been quite peculiar. By a series of statutes, beginning, we believe, in 1849, and ending in 1857, it has effectually broken down the common law rule, which makes the husband exclu

* General Statutes of Massachusetts, page 537: Edition of 1860.

sively and absolutely the owner of his wife's personal property. But it has not gone to the extreme of allowing her to manage and control it, free from his interference, the same as if she were single. It occupies in this respect a middle ground, and seemingly at least very wisely chosen. The husband is constituted simply the trustee for his wife of her property. As such, he is entitled to the management and use of it, and the rents and income from it belong to him, though not liable for his debts, unless contracted for the support of her and her children. But the principal cannot be sold or transferred by him, without her written consent. He is placed upon much the same footing as executors and administrators, and, like them, he may be called to acount summarily before a Court of Probate, and required to give bonds for the faithful performance of his trust, or be removed altogether from his trusteeship.

In some respects the Woman's Rights reformers of our country seem to have been exceedingly unfortunate. They have succeeded by the earnestness and eloquence of their appeals from the rostrum, in stirring up the enthusiasm of the people in behalf of a cause that has very much to commend it. But the trouble has been, as is apt to be the case in reformatory movements, that they have failed to secure the services of men of legal erudition or practical wisdom or statesmanship, for the hard, dry, tedious work of legislation. This is sufficently apparent, we think, to those who have had the patience to accompany us in our remarks upon the operation of the New York statute of 1848, as amended in 1849. We have seen that one of its sections has been swept away by the courts as a violation of the constitution, that the remaining sections were framed so loosely and ambiguously as to render it almost impossible for the best judges to determine whether they were meant to have any effect upon the settled rules of inheritance and distribution; finally, that with all its crushing innovations upon the general system of the common law, as regulating the property relations of husband and wife, still, in omitting the subject of earnings, it left that system unharmed and untouched, in just the point where its burdens weighed most heavily and unjustly. In addition to all this, and besides the

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