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Page:Popular Science Monthly Volume 18.djvu/669

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THE LEGAL POSITION OF MARRIED WOMEN.

on divorce the support of the children is still a mutual burden, and custody of the children is decreed to either parent—on discretion of the Court.

We come now to our last division, viz., practical considerations arising from the study of these facts of history, and of present condition.

I have tried to give the more important laws as they stand upon the statute-books. They mark an enormous increase of personal power in the married woman's condition during the last thirty years. But probably her actual legal position is more restricted still than these statutes would indicate. The average man wishes to do justice, as fast as he can see it. So the legislator responds to petitions to change laws deemed offensive. But the lawyer, accustomed to be guided by precedent, and fearful that decisions under the law of his State may be overruled by an appeal to a higher court, is shy of taking full advantage of a new statute. Thus it comes about that a woman must not place full reliance upon the "acts and resolves" of the General Assembly of her State. She must find out what is the actual practice among lawyers and judges. For instance, in Massachusetts, the law declares that woman owns her own property, and may manage it free from all interference; yet so many troublesome conditions are to be complied with, and in important cases there are so many possible risks from technical barriers, that many women still find it to their advantage to empower some man-friend with a trustee's external rights, that she may really control her own, through him in his capacity of agent. For instance, again, in California, where the "common property" of husband and wife is wholly under his control, and although her estate is called "separate," and she is declared to be legally protected in its control, the profits of both her and his separate estate are called "common property," and he has full disposal of them, unless by special arrangement otherwise. These, and many other instances, prove that the legal powers conferred on married women are often so executed and interpreted as to fall far short of their apparent scope. The first thing, therefore, for every married woman to do is to find out the statutes of her own State respecting her position, and then learn the actual practical bearing of the laws in any point that touches her. It may be that some movement for national legislation on the legal position of married women will be found necessary. Certainly, it ought not to be possible for men and women to assume the solemn obligation of marriage in one State, under one set of legal conditions, and one or the other party to the contract throw off those obligations in another State, under another set of legal conditions. There should be some uniformity of law, as to marriage contract and its dissolution by divorce, in the different States. Another practical consideration is this: women must be prepared to assume personal responsibilities as