Page:The American Cyclopædia (1879) Volume IX.djvu/93

HUSBAND AND WIFE 85 a servant of her husband, as his property, and as his plaything; and man has always been held in absolute political subjection. In Greece there were republics and democracies, in name at least ; and certainly that political tyranny which had prevailed among eastern nations was greatly lessened, and the domestic tyran- ny of the husband over the wife was modified about equally. But the liberty of Greece was the liberty of comparatively few, who were masters of the many ; and the most conspicu- ous of the women of Greece were those who, like Sappho and Aspasia, had indeed escaped from the gynaceum, but had not found a home. In Rome there was a wider spread and bet- ter protection of personal right, for even un- der the most despotic emperors municipal rights and privileges were generally preserved throughout the Roman world ; and woman had also advanced so far, that the Roman matron has been since regarded as the type of female dignity and purity. But much was yet want- ed. The feudal system, built upon the ruins of western Rome by the Teutonic nations, a new race, acknowledging the new influence of Christianity, made an immense advance, be- cause it gave to every man, even the serf, a definite place and definite rights, and in theory at least knew nothing of unlimited power ; and to woman it gave the unspeakable advantage of Christian marriage. It introduced, proba- bly as a means of remedying or of mitigating social mischiefs which it could not otherwise restrain, the spirit of chivalry, whose control- ling principle was the sentiment of honor ; and while this newly developed sentiment exerted a very wide and beneficial influence upon all the relations and all the departments of socie- ty, in nothing was it more useful than in the profound respect and tender care which it sought at least to inspire toward woman. It was under this feudal system that the law grew up which forms the basis of the law under which we live. It was by the gradual eleva- tion of woman in social and domestic life, by the side of man as he rose toward the posses- sion of political rights, that so much good was attained as exists in that law. That the law of husband and wife in the United States is in advance of any that has existed or now exists elsewhere, we are confident. The tendency of the law, however incomplete it may yet be, is to respect and secure the rights of woman in such wise as to preserve her influence and her happiness; and to make the relation of husband and wife not a form of servitude or the means of oppression, but the central origin of blessings which could spring from no other source, and may pervade the whole life of both sexes. As much the greater part of the com- mon law is still in force with us, and whatever laws we have are but various modifications of that law, we purpose, first, to give a condensed view of the principles of the common law in its reference to the relation of husband and wife ; and then to present a brief statement of the principal variations from this law in all the states of this Union. Promises to marry, the contract of marriage, and settlements or contracts in view of marriage, will be consid- ered in the article MAREIAGE. Here we shall treat only of the effect of marriage on the property of a woman, and of the husband's liability for her debts contracted previous to marriage, and of her power to bind him by her contracts, and of his obligations for her, after marriage. 1. A woman's real estate remains her own after marriage ; hut her husband ac- quires a right to it (or, in law language, an es- tate in it) for her life, and an estate in it for his own life as soon as a living child is born to them, by what is called tenancy by cur- tesy. He has therefore a life estate in her land either for her life or for his own life ; but when this life estate ceases, her rights, or the rights of her heirs, revive absolute- ly. He cannot transfer her land by his deed, nor can she by her deed ; but in this coun- try it may be transferred by the joint deed of the two. In different states different pre- cautions are provided by law, to make it sure that she executes such a deed of her own free will. Thus, in many of the states, she must be examined apart from her husband, by some magistrate, as to her willingness and her mo- tives for thus disposing of her land. On the other hand, by her marriage, she acquires an indefeasible right of dower to the use of one third of his lands during her own life, of which she cannot be divested but by her own act. In this country she usually releases her right of dower, when she wishes to do so, by adding her release to her husband's deed of the premises ; but his creditors cannot generally get it in any way without her consent. (See DOWEK.) 2. A woman's personal property in possession becomes absolutely the husband's property by marriage. By this is meant all the money in her hands, and all her chattels, as furniture, plate, pictures, books, jewels, &c. Nor can he by common law give to her either of these or chattels of his own during marriage, because transfer of possession is essential to a valid transfer by gift, and her possession is his pos- session in law. He however may give to her by his will what he chooses to, and may doubt- less make a valid transfer of anything in pos- session as a gift cauta mortis. (See GIFT.) The reason why the personal property of the wife is thus absolutely transferred to the husband may have been, in part, the lingering influence of the falsity which regarded the wife herself as only the property of the husband ; but it was much more, probably, the comparative worth- lessness of personal possessions in the feudal ages, when the common law began. What- ever were the reasons, they have little force or application at present. A single woman may, in general, make whatever contracts a man can. If by such a contract she acquires and receives into her own hands any property, it is property in possession, of which we have spo-