Page images


incapacity, already mentioned, of a husband to dispose of his real property without the consent of his wife, the following anomaly sprung out of the new legislation, that while a woman upon marriage retained all her property as her own, free from the interference of her husband, he continued to be legally liable to pay her debts contracted before marriage, no matter how large they might be in amount, or how limited liis re

This evil, however, was remedied by a statute passed in 1853. Still there is as yet no end to the vexatious questions arising under the new system. One of the most important of these-one which has led to adjudications flatly contradictory of each other, by different appellate tribunals, and which now awaits the final determination of the court of last resort, is as to whether a married woman, under the statutes of 1848–9, has the capacity to convey her landed property directly to her own husband.* Some of these embarrassments subsequent legislatures have attempted to overcome, by enactments so clumsy and obscure as only to aggravate them. The legislature of 1860 set up, in the place of the widow's dower and the husband's curtesy, a view estate in lands, so illslapen and impracticable, and fraught with results so manifestly unjust, though unforeseen by its framers, that it was repealed in 1862. In short, things have come to such a pass, that while the courts of justice are floundering through a chaos.of conflicting decisions and patchwork legislation, the ablest jurists make it their daily boast that, so far as regards the law of husband and wife, in its present state, they know nothing at all about it.

The defects in legislation, which we have pointed out, are due, no doubt, in great measure, to the same causes as the inaccuracy and slovenliness that have very generally pervaded our American legislation the last fifteen or twenty years. But aside from these causes, which we cannot now stop to enumerate, there are others which seem to be amply sufficient to account for the lack of men of learning and sound practical judgment, to coöperate in the furtherance of the cause of Woman's Rights, in the way of amendments to the laws. The truth is, that such men have felt indisposed to enlist in this particular reform, for the reason that it is made up of so much that is not only absurd and impracticable, but even subversive of domestic and social order, and positively hostile to the principles of Christianity—for the reason, in fine, that it has admitted to its ranks, and harbored among its leaders, individuals of the most chimerical notions and most dangerous tendencies, -scoffers at religion-nullifiers of all distinctions between the sexes-followers of Andrew Jackson Davis-worshipers at the shrine of free love. Thus much at least is beyond dispute, that if one-twentieth of the labor and talents that have been required to interpret and enforce the statutes under review, had been devoted to their enactment, they would lave approached much nearer their aim, and would have proved far more conducive to the amelioration of the condition of women than any as yet to be found in any American statute-book.

* In the case of Winans v. Peebles, 1860, 31st Vol. Barbjur's Reports, the conveyance of a lot of land by a married woman to her husband, was sustained as valid. A decision directly adverse to this was made in the case of White v. Wager, 1860, 32d Vol. Barbour's Reports.

We much regret the want of leisure to present a more como prehensive and attractive view of this subject. Any treatment of it is obviously one-sided and incomplete, which fails to embrace within its scope, besides the legal rights of married women, their correlative obligations and liabilities, and their capacity to enter into contracts, so as to bind their property.*

* Under this head, the New York case of Yale v. Dederer, ought not to pass annoticed The payee and holder of a promissory note, signed by Mrs. Dederer with her husband, and as his surety, sought to enforce the same out of her separate property, her husband being insolvent. The case has been twice decided by the Court of Appeals (in 1858 and 1860) adversely to the plaintiffs, upon different points, the judgment of the Supreme Court being each time reversed. See 18th and 22d volumes New York Reports. The conclusions arrived at were, that the statutes of 1848 and 1849 did not remove the general disability of married women, to bind themselves by their contracts, but conferred upon them the power to charge their separate property substantially in the manner and to the extent previously authorized by the rules of equity in respect to separate estates; accordingly, that in order to make the contract of a married woman binding as a charge upon her separate estate, her intention so to charge it must be stated in the contract itself, unless the consideration be one going to the direct benefit of the estate. The Massachusetts case of Willard v. Eastham, not yet reported at the moment of writing, rests upon the same distinction as to intention. The VOL. XXII


It is well worthy of inquiry, how much light has been shed upon this subject, and how much actual good has been done, by the labors of those philosophers, chiefly of the transcendental school, who, if we are not mistaken, initiated the movement in this country, and who have always seemed to have it under their special supervision. Again, it would be a delightful task--one which we are exceedingly reluctant to forego,to show, as we think might be done, the striking similarity between the separate property of married women, as held under the apparently novel and anomalous system inaugurated by the new enactments, and the bona parapherna of the Roman Civil Law.

Possibly we might have contributed more to the entertainment of our readers, if we had selected out and placed upon exhibition a few of the most shocking specimens from the museum of woman's wrongs, that have been collected with wonderful industry by Mrs. Dall, from the beginning of the world, and from all the races of men (also of women) that have lived upon the earth. Perhaps, however, it ought most of all to be regretted by us, that we suffered ourselves, as we fear, to appear so exceedingly awkward and ungallant at the outset, in presuming to introduce such a topic, without first making, as is the fashion with everybody who speaks or writes upon it, a low obeisance to the ladies, and saying a great many nice things in their behalf. But any apology, offered now, would of course only make the matter worse, and we shall therefore take leave of the subject with a single remark further; and that will be, upon the contrast, unfavorable to our country, in the particulars already adverted to, between the movement here in favor of Woman's Rights, and the same movement in Great Britain. There is no dearth there of popular writings, in aid of the cause, as is attested by the works of Mrs. Jameson, Mrs. Norton, Miss Brewster and others. But, beyond these, it is necessary that the field should be subjected to a much severer and more laborious process of tillage, before it can be made ready for any such legislation, as will give promise of a very desirable harvest. Accordingly, in the speeches of such statesmen as Lord Brougham and his coadjutors, in the papers read before the Law Amendment Society, in the Articles in the Quarterly Re. views, and in the petitions presented to parliament, there are rich stores of valuable suggestions—the results of deep research and thorough, systematic study and reflection, and indispensa ble as aids to the practical legislator.* It must be confessed, we are sadly deficient in this kind of literature. We are not so much in need of agitation, for the purpose of stirring up the popular mind to a realizing sense of the ailings which affect our social system, as of a more skillful and scrutinizing diagnosis of them, and more discrimination in the choice of the medicines to be administered. When this work of preparation is earnestly taken in hand, and when the incompetency and lack of principle which are now too prevalent in our legislative bodies, give place to purer and more efficient elements, then we may hope for better things for the cause of true progress and genuine reform, not only in this direction, but also in many others.

soundness of this distinction, is disputed both upon authority and principle, by Judge Redfield, in an editorial note to the recent Wisconsin case of Todd v. Lee, as reported in the American Law Register of September last.

* In the Edinburgh Review of April, 1859, in the Article entitled Female Industry, we find the following interesting statement: “Out of six millions of women above twenty years of age, in Great Britain, exclusive of Ireland and of course of the Colonies, no less than balf are industrial in their mode of life. More than a third, more than two millions, are independent in their industry, are self-supporting like men." We believe it is no fault of the law reformers, and it is certainly no credit to the governing classes of Great Britain, that the rule of the common law in regard to earnings still prevails there full force, with the exception of the case of the husband's desertion of his wife. When she has proven this fact to the satisfaction of a magistrate, he may give her an order, protecting her earnings against her husband and his creditors, and allowing her to retain them as her own, the same as if she were single. A provision to this effect, was introduced into the Divorce Bill, passed by parliament in 1857, and amended in 1878.


Theophrasti Characteres. Edit. Casaubon. 1 vol., 8vo. 1592. The Moral Characters of Theophrastus. Translated from the

Greek by Henry Gally, M. A. Lond., 1725, 1 vol., 12mo. Characters of Virtues and Vices. In two books. By Bishop

Joseph Hall. Lond., 1608, 1 vol., 12mo. The Miscellaneous Works of Sir Thomas Overbury, Kn't., in

cluding his Poems, Characters, King James's Table-Talk,

News, &c. Lond., 1856, new edition, 1 vol., 12mo. Microcosmography; or a Piece of the World, Discovered in

Essays and Characters. By John EARLE, D. D. New ed.,

Lond., 1811, 1 vol., 12mo. Resolves, Divine, Moral, Political. By OWEN FELLTHAM;

10th [and best] edition, containing his Lusoria, 2 Sermons, Characters of the Low Countries, and Letters. 1 vol., folio,

Lond., 1677. The same-containing, however, only his Resolves, and a few

selections from his Poems. Edit. by James Cumming, Esq.,

F. S. A. 1 vol., 8vo. Lond., 1820. The Holy and Profane States. By THOMAS FULLER, D. D.

Thomas 1 vol., fol. Lond. 1658. New edition by James Nichols,

Lond., 1841. 1 vol., 8vo. The Genuine Remains of Samuel Butler in Verse and Prose.

From original manuscripts, with notes, by R. THAYER.

Lond. 1759. 2 vols., Svo.
Les Charactères de Théophraste, Traduits du Grec; avec Les

Charactères ou les meurs de ce Siècle, par LA BRUYERE,
Didot. Paris, 1845. 1 vol., 8vo.
The Biblio-maniac is to be pitied as much as any other.

. He loves old books simply because they are old and rare, the

[ocr errors]
« PreviousContinue »