Popular Science Monthly/Volume 18/March 1881/The Legal Position of Married Women


IT is my intention to indicate the historical scope and present bearings of my topic by a brief analysis of the following four conditions of social order involved in its consideration, viz.:

1. The law of social development underlying the various legal positions of married women, historically traced.
2. Classification of the principal types of marriage.
3. Summary of existing laws of married women in the United States.
4. Practical suggestions prompted by the study of these past and present facts.

Our first point (the social law controlling the varying position of married women) brings us at once to the fact that physical unions of men and women must have preceded all legal definitions of their relation to each other, or to their offspring. We begin to call these unions marriage, when the first headland of rude ceremonial selection appears above the sea of promiscuous passions. For a long while yet, no legal enactments fix the status of the wife; but from the time of the most rudimentary marriage, on to the highest types of sexual nuion, those social laws which are the seed of governmental codes, and without knowledge of which we can not understand those codes, deal with woman in her wedded state. We find the position of the married woman, as defined by these social laws, written and unwritten—and, if unwritten, quite as likely to be stringently enforced—to furnish examples of every grade of condition, from the captured or purchased slave to the comparatively equal partner. Moreover, we find the woman sometimes in possession of the most personal freedom in the lowest general social development. What law governs these widely diverging conditions?

The student of sociology must be convinced that the evolution of the family determines, in its different stages, the differing position of the married woman.

For proof of this statement we have only to consider the following facts: Progress from barbarism to civilization is marked by ever-increasing political control, as opposed to accidental, shifting despotisms of powerful individuals on the one side, and to purposeless anarchy of the masses on the other. "Political control rests primarily on distinct relationships of blood." For the structural cohesion of the family, established by this definite blood-relationship, alone makes possible the structural cohesion of many families in the organism we call society. The unity of the family, therefore, being the fundamental condition of the unity of society, it is secured beyond peradventure by successive changes which tend more and more to establish certainty of descent, of preservation, and of care of offspring. Probably every form of relation between man and woman, from promiscuity to pure monogamy, has been in existence at every stage of human development. But the prevailing type of sexual union has differed at each of these differing stages. How do we know which are the higher and which are the lower of these types? By the application of the simple test-question, which the more perfectly secures that organization of the family which is the primary necessity of the organization of the state?

In the building up of the state, the primitive need is sufficient power and permanency of control to make law supreme over the individual will. And where the personal wishes or rights, even of men, come in conflict with this initial step toward social order, those personal wishes and rights are ruthlessly sacrificed; not because individual liberty is ignored in the process of development, but rather because individual liberty can only be permanently secured by making it second to social order in sequence of evolution. On exactly the same principle, the building up of the family, which precedes the establishment of political order, must begin in the strong foundation-wall of family unity, even although to that unity must be sacrificed the individual rights of every member of the family except its acknowledged head. Hence we discover the law which underlies the varieties and changes in the condition of married women to be a law which concerns itself first, not with the rights of any individual inside the family, but with the development and defense of the family itself. For this development and defense of the family the following conditions must necessarily be secured:

a. Certainty of parentage of offspring on both male and female side, that inheritance may be secured.
b. Protection of the family from external encroachments of war, conquest, etc.
c. Nourishment of offspring, and such protection of the mother as will secure that end.
d. Repression of sexual passion to certain recognized limits.
e. Preservation of the family against the disruptive tendencies of internal strife.

Bearing these general principles in mind, we turn to the next division of our subject, viz.:

The Classification of the Principal Types of Marriage.—If our previous positions are correct, we must rank marriage types, from lowest to highest, by their growing ability to fulfill these conditions, tabulated above, of the development and defense of the family order:

We find the first primitive marriage to be a simple announcement of intention to live together by a man and woman, ratified by some such rude ceremony as that of the "Navajos, who sit down on opposite sides of a basket made to hold water and filled with some kind of food, and partake of it. . . . This proceeding makes them husband and wife." This type of union offers perfect freedom of choice to both parties to the contract, and, being broken at pleasure, is repeated as many times and dissolved as often as caprice indicates. Hence it offers but slight protection to the offspring, and the society in which it is found the prevailing type of sexual union is among the lowest in grade of development.

The next step up in marriage conditions is that called polyandry, or the union of several husbands to one wife. It is not to be inferred from this definition that polyandry at first, or generally, restrains the sexual indulgence of men to the fractional marital rights indicated. Far from it. Polyandry simply lays the corner-stone of the family foundation-wall by making a local home—i. e., a place where children can be generally known to belong. Let us see how this is done. Nature makes certain the parentage of the child on the mother's side, as she does not on the father's. Hence the primitive necessity in building the family is to put the mother in a definite place, and cluster her children round her, whether you can know the paternity of those children or not. Descent of name and inheritance are possible, then, on one side the line. Fatherhood may pass through many stages, from a light flitting from one polyandric household to another, on to that form in which the several husbands of the female head of such households must be distinctly related to each other, but, through all the varieties of polyandry, the fixed stake of classification and localization of offspring defines the family outline. This type of marriage affords sometimes to women, "as in Thibetan polyandry, freedom and equality of companionship with men." It everywhere gives her such measure of power as her physical strength can command; and by interesting many men, although ever so slightly, in the welfare of some one household, it offers the beginning of protection to offspring, in supplies of food and defense in war.

The next step up in marriage types is to what we call polygyny, or the union of several wives with one husband. This establishes the descent of the child on both male and female sides of the marriage union; but it destroys every vestige of freedom and equality in the condition of the wife. With polygyny begins the legal, recognized slavery of woman to man in the domestic relation. Remember, however, that nature is securing first the family order, and only after that is attained can look out for personal rights; and let us note, without prejudice, the advance of this type of marriage, in family structure, above polyandry. Descent, reckoned on the father's side, not only secures double ancestry, but, on account of the greater brute strength of men, is more likely to keep the inheritance intact. Again, although women enjoy a nominal freedom before this point, it is only that gained by personal qualities—it has no bulwark of law. Hence the average woman, physically weaker than man, is his prey. Polygyny places her person in the custody of her husband, and thus enlists for its defense, against lawless raids of masculine lust, the selfish instinct of preservation of one's own property. And this protection of woman is absolutely indispensable, under barbarous conditions, not only for the growth of chastity on her part, but for the nourishment of offspring. We have this great gain in the family order in this type, that the father is brought into the household, and placed beside the mother and children. But, in order to get him there, we have to bring in with him facilities for the indulgence of his passions within the home, equal, or nearly so, to those he has before enjoyed outside the home. Repression of sexual passion to certain recognized limits was one of the conditions of family order we noted above. Polygyny marks the point at which the chastity of the mother was made the limit on one side, and the indulgence of the father, only inside the household, the limit on the other. This was a great gain in the line of repression, even although it gave man absolute power over as many wives as he could secure.

The next step up in marriage development we may call rudimentary monogamy. The last essential of family unity we noted was the preservation of the family against the disruptive tendencies of internal strife. Polygyny partially and externally secures this by placing the control of the family in the hands of a recognized head, and that head the member of the household indisputably the best able to hold his position against the other members. But the elements of discord and strife were left in the family, in the jealousies of the several wives, and in the conflicting claims of their children. When death removed the household despot, if not before, these elements of disintegration worked against the family structure. Rudimentary monogamy was the attempt to settle by law the relative positions of a man's several wives, placing one on a secure height above the others, to insure a certain descent of title, property, and power to her children. Roman law gives us the most perfect legal form of this transition stage toward pure monogamy. The Roman patrician was entitled by law to three wives, but he could only have one of the highest kind. This superior order of wife, whom the law protected against equal rivals, must be of the same high birth as the husband, could alone legitimatize his children to the extent of transmission of title and estate (save as he exercised his legal power of adoption); and the marriage ceremony, made binding by solemn religious rites, was annulled only by death. The second grade of wife could be of inferior birth, and was united to her noble husband merely by a civil service, which gave him full power over her, but which secured her legal protection and support, and could be annulled by divorce. The third grade of wifehood was one which gave perfect legal independence to the woman, and also removed from her all legal protection. Simple announcement of intention to assume such a relation was the only preliminary needed for this union; it could be dissolved by mutual consent. Rudimentary monogamy, you observe, raised the standard of a life-long union of one man with one woman, to beget, bear, and rear one set of offspring. And the Roman law, though recognizing other unions as legal, pushed them away as far as possible from this germinal seed of perfect family unity. Thus the seed grew, and we come rapidly on the to the last type of marriage, viz.:

Pure monogamy. This form of sexual union recognizes no other as legally admissible. Indulgence of passion there may be outside this narrow bond of one man to one woman, but it is unlawful, and its fruits have no legal place in the social order of the family. This is the type dominant in our civilization, and we have seen how slowly it has been built up, and for what high ends of government.

The Legal Position of Married Women To-day in the United States.—Our laws are all founded on and modifications of the "common law" of England, which was in turn, for the most part, a gift from old Roman jurists to our civilization. This common law exemplifies in every word the emphasis formerly placed on the authority of recognized rulers, in general government and in domestic order. The common law "merged the married woman's whole legal being in that of her husband." She might be heir to untold wealth; marriage made her husband legal owner of it all, with unchecked power over it, as well as over her expenses. She might be a Minerva of wisdom, but her every action must be obedient to her husband, though he were little above the idiot. She might be mother of a score of children, but her husband could will them all away from her control, even the unborn babe he should never behold. In short, she might be or do anything; her husband still had full power over her body, her actions, her property, her earnings, and her children. But, on the other hand, he was responsible for her crimes, her debts, her support, her protection from violence, and the support and protection of her children. If he could legally "correct her with a stick no bigger than his thumb," and that not with "cruelty," he must also answer by his own payment, or imprisonment, for her misdeeds, as for a minor child's. Thus was the monogamic unity of the family secured by the strong domestic control of a father-head, just as the organic unity of society was secured by the strong political control of an unlimited monarchy. And no doubt both forms of despotism have been necessary in the appropriate stages of human development. But, at the time our republic was born, it had become apparent to the dullest, as it had long been to prophetic minds, that the hour had arrived when political control must concern itself not only with its first great task, viz., the development of social order, but must set itself at work also on its second great effort, viz., the definition and defense of personal rights inside of this social order. Not only this, but it became apparent that the domestic order also contained within itself necessities for like definition and defense of personal rights. The tendency thus inaugurated naturally took shape first, in its relation to married women, in an increase of secured independence of personal action, and of parental control, to women cruelly abused or divorced or deserted by their husbands. It began to be seen that the wives of bad or incompetent men should not be the domestic slaves of those men. It began to be seen that the children of bad or incompetent fathers should have the protection and support he failed to give them provided by the other parent, who to that end should be endowed with certain powers of ownership of property and person. And, as legislators had their attention drawn to these truths by concrete illustrations of abuses, by husbands and fathers, of the law which gave them absolute power over wife and children, they tried to alter the law in one and another particular. Hence we find the old "common law," in the different States of our Union, with its darker spots torn out and patched over with new readings to such a degree that, in many cases, the original fabric is hardly distinguishable. A brief summary of these tearings out and patchings over will enable us to see the drift of legal changes respecting the matter in hand.

The common law recognized no legal right as inhering in the married woman, except the one supreme right of holding her husband true to the monogamic type of marriage. The legal position of married women to-day represents as many different views of woman's legal rights in marriage as there are States in our Union. But all those States recognize that she has some rights of independent action, not only when her husband is bad or imbecile, but when he is good or competent. The confusing varieties of legislation on this point make summarizing extremely difficult. No generally received principle respecting the just legal relation between husband and wife has controlled the sweeping changes which the legislation of the last thirty years records. These changes have been simply irregular, fitful, and detached attempts to make the domestic yoke of women easier, in places where it was found specially to hurt. We find, however, that there is some approach to uniformity in the changes of the statute laws of old States, and that the legal codes of the new States take counsel generally of the old constitutions which have departed most widely from the original common-law slavery of women in the domestic relation.

Let us see what rights of independent action are now insured, or partially so, to married women.

We have thirty-eight States in our Union. In twenty-eight of these a married woman has legal ownership and separate control of all property owned by her before, or descending to her after, marriage. In ten States her property owned before marriage is secured against any attempt of her husband to alienate it without her consent, but he has full control of incomes resulting from it; and in two of these States the husband receives property which, were she single, would descend to her. In twenty-one States a married woman's earnings are her separate property; in eight States her right to such earnings is legally restricted in various ways, as in Georgia, where a married woman can own absolutely as separate property her own and her children's earnings deposited in a savings-bank "if the same do not exceed two thousand dollars"; and in nine States a woman can hold absolutely in her own control all property coming to her from any source save by gift of her husband—as in Massachusetts, where a recent decision of the Court under this law was that a woman could not own her own wardrobe if her husband gave her the money to buy it! This decision, we may add, a legislative enactment has very recently attempted to overrule by ordaining that a woman may own her personal apparel in Massachusetts.

In twenty-one States a married woman is solely liable for her antenuptial debts; in five States her husband is liable for them to the extent of the property she brought to the common stock at marriage.

In sixteen States a married woman can make a will devising her separate property according to her wish; in twelve States she can so will her estate, provided she gives her husband as much as the law of that State would give him if she died intestate; and in one State she can make a will only by her husband's written consent.

In nine States special enactments qualify a married woman to be executrix or administratrix; in others the right is secured under other forms of law.

In twenty-four States a married woman may sue and be sued separately from her husband; in other States provision is made for their union in various specified suits.

In fourteen States married women can cause their husbands' lives to be insured for their benefit, and retain the policy against all outside claims, within certain limits of amount. In twenty-two States there are homestead acts which secure a certain amount of property, the home and its belongings, to the widow or wife, against all creditors of the husband. In fifteen States a married woman may carry on and control a separate business without limitations; in ten States she can do so with some restrictions, which vary from a simple requirement that she shall file her intention to do so in court to the necessity of proving that her husband does not support her properly.

In three States special enactments provide for trusteeships to guard the wife's interests against the husband's claims; in other States similar results may be attained by marriage contracts, and special provisions of various sorts. In seven States a woman is solely responsible for her personal debts. In three States a married woman is responsible for her husband's debts, and in two others is so responsible unless taking certain legal precautions at marriage. In six States her separate property is liable for family debts, although in most instances she is so liable only in the second degree, all the husband's property being jeopardized first.

In seven States the division of property on the death of either husband or wife, whether there be any issue or not, is very nearly or quite equal; in most of the other States the widower has nearly all the rights in the wife's estate he had under the common law, and she has a life interest in his real, and absolutely only a fraction of his personal, property.

In ten States, husbands and wives can make contracts with each other.

In regard to the rights of guardianship, the father is generally held first natural guardian of the children, and the mother second.

In Iowa, which, on the whole, seems to lead all the other States in giving equal marital and parental rights to husband and wife, the two parents are equal guardians of the children, neither having the power to remove them from the home without the consent of the other, and on the death of either parent the other is sole guardian. Moreover, in this State the wife can not be compelled by the husband to leave the home, against her wishes, to follow him in any wanderings. In Iowa, also, the family expenses are chargeable equally to both parents, and 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 they attain personal rights. No State Legislature has said "Go to, let us make the married woman the legal equal of her husband," but legislation has pointed in that direction more and more during these last years, so pregnant of changes in her position. If the married woman is to be the legal equal of her husband, she will find she must accept the penalties as well as gains of independence. The laws already indicate this. For instance, as soon as women were allowed to hold as separate property what they owned before marriage, they were made solely liable for their own antenuptial debts. As soon as women were allowed to hold as separate property what they gained in any way after marriage, they were made liable for their own separate debts incurred after marriage. And as soon as they were allowed to carry on separate trades and business, they were made partially or equally liable with the husband for the support of the family. Not that legislation in these two directions has been simultaneous or universally united; but these two tendencies are to be noted. And the one is the legitimate corollary of the other. As fast as the wife is removed from wardship to her husband, she should be required to assume her personal obligations and release him from them. The practical question now before us is, How far are these twin tendencies to proceed? Judging from facts of existing law, and analogies of other social movements, we may arrive at the conclusion that, just as in political control the overmastering impulse of growth is in the direction of the greatest possible freedom of the individual, consistent with social cohesion, so in domestic control the irresistible movement is in the direction of the most perfect legal equality of the married partners, consistent with family unity.

These exact limits we can not yet master in superficial detail, either in political government or family life. But past experience shows us that the measure of personal independence which woman can gain inside the family structure will alone be hers permanently. All attempts to abrogate the legal marriage tie, or to make her sole owner of the children, in order to secure her independent sovereignty, have been abortive movements, leading to a reversion to less developed forms of sexual union, or even to that promiscuity which (like political anarchy of revolt) demands the despotic rule of the strongest to lay again the foundations of progress. The States of our Union which have carried their legislative changes farthest in the direction of legal independence of married women have not yet settled fully the questions involved. For instance, in States accepting the principle of equal ownership of personal estate and equal responsibility for personal debts, the question as to which parent should be solely or chiefly responsible for the support of the family is only half met. In Connecticut (by its recent sweeping revision, which places it among the most advanced in respect to our topic) the father is made responsible, alone, for family expenses. But, if a woman owns personal property, should she be allowed to shirk all family obligations, while presumably having a very considerable influence in determining the scale of living? Still more, should she be allowed to assist her husband in cheating his creditors, by contracting family debts in his name, which he can repudiate by passing his property into her hands, or by merely swearing he is bankrupt?

And, on the other hand, where, as in Iowa, the two heads of the married firm are made equally responsible by law for family expenses, should there not be an accompanying provision making the married partners equal owners of all current incomes?

And, again, where the principle of equality of rank of husband and wife, father and mother, in the home is fully conceded, how can it be applied in the detail of the unity of name and residence demanded? Man, as the senior partner, now gives the name and determines the legal residence. Some women claim the right to retain their own single names, and demand a legal recognition of that right. Should that be yielded in any case, which parent would then claim superiority of child-ownership in giving a name to the children? These and other delicate questions of adjustment must be determined, not by a priori reasoning, but by an appeal to past and present experience, with these two principles in view, viz., the primary need of family unity as a condition of social order, and the secondary need of increasing measure of personal independence for women within that unity. And since our legislative changes have been, for the most part, attempts to limit the power of abuse of the domestic control vested in the man, rather than efforts to secure the freedom of women from that control by the husband, the result is an inconsistent medley of laws, which at one time recognize the married woman as an independent unit, and at another time as the mere ward of her husband. The great practical need for the parties most interested—thoughtful, intelligent women—is a clear ideal of the just legal relations of men and women. With that ideal in mind, the laws, and especially the actual practice under those laws, should be examined, and, where they come short, they may in time be amended by slow, pacific, but persistent methods of educational appeal.

A great help to this end is the work which contributed so much toward the changes in Connecticut laws, the work recently so ably done for Massachusetts by Messrs. Almy and Fuller, viz., the compilation by reliable lawyers of the present laws, with an indication of all inequalities, and the injustice resulting from them.

Meanwhile, as the band of ancient law, which made woman the domestic slave of man, protected her from a worse fate, and made possible the primitive home, so the inconsistencies of our present laws make that band flexible in adjustment, even by ignorant or unconscious workers, to the present and future needs of woman and the home. Protected by these ever-changing codes, the higher uses of the family life will develop—the more internal unity of the married twain and the more perfect moral nourishment of their offspring will bring on a civilization which must write itself out in "sweeter manners, purer laws."

  1. A paper read before the Association for the Advancement of Women, at Boston, October 14, 1880.