distinction is due to its character as an instrument of authority committed by the State to the hands of the courts to be wielded by them as final arbiters in all cases not governed by positive statutes. In this country the courts are guided, but not bound, by past decisions on the same or similar issues. As pointed out earlier in this report, they can, and often do, prick out new lines of decision. These decisions become "case law"-actually, common law in process of development.

An equally important function of the judiciary is the interpretation of statutes. The court that hears conflicting claims of parties to an issue as to the effect of a statute on which they rely must say what the intent of the legislative mind was. This interpretation of the statute, if unchallenged or if upheld by an appellate court, becomes law as effective as the statute itself.

This influence of the judicial mind on the effect of statutes is demonstrated by the two schools of thought interpreting the married women's acts in the United States. Under one of these, statutes conferring property rights on married women, insofar as they are in derogation of the common law, are to be strictly construed and such. rights limited to those expressly mentioned in the statute. According to this view, the statutes cannot be enlarged by construction beyond the plain meaning of the language used, or what is required to give them a reasonable and proper effect. The other view is that statutes removing the disabilities of married women as to their separate estates are remedial or enabling, and therefore should be liberally construed in order to secure and enforce the rights actually given, and to carry out the intent and purpose of the law.16

Professor Peck, formerly of Yale University, emphasizes the power of the courts with particular reference to interpretation of married. women's acts:

It is evident that the extent to which married women are emancipated by modern legislation must depend largely upon the rule of interpretation adopted by the courts. The statutes can hardly mention and specifically repeal every rule of the common law on this subject; and if the rule of strict interpretation is followed married women, while generally emancipated by the broad provisions of the statute, may still lie under many particular disabilities."

The large degree of responsibility vested in American judges received the following comment from Mr. Justice Stone:

*

* We are coming to realize more completely

that within

the limits lying between the command of statutes on the one hand and the restraints of precedents and doctrines, by common consent regarded as binding, on the other, the judge has liberty of choice of the rule which he applies, and that his choice will rightly depend upon the relative weights of the social and economic advantages which will finally turn the scales of judgment in favor of one rule rather than another. Within this area he performs essentially the function of the legislator, and in a real sense makes law.

** * It is the judicial process which distinguished the work of Mansfield, Marshall, Kent, and Holmes, and which has placed them among the outstanding judicial figures of the past 200 years.18

16 30 Corpus Juris, Husband and Wife, sec. 437, p. 803.

17 Peck, Epaphroditus. The Law of Persons and of Domestic Relations, 3d ed. (1930). p. 338. 18 Stone, Harlan Fiske. The Common Law in the United States, from Report of the Harvard Law School Conference on The Future of the Common Law. 1937. pp. 140, 141.

STEPS TO "SOFTEN THE RIGOR OF THE COMMON LAW" The Common Law and Woman.19

The bulk of discriminations between men and women in American jurisprudence grew out of the feudal common-law theory that marriage destroyed a woman's separate identity. Discriminations against the unmarried woman were comparatively few in number, even under the English common law. For these reasons, the major part of the present study centers in the married woman.

The far-reaching scope of laws that regulate the rights of persons in the marital relation was noted by Chancellor Kent more than a century ago in these words:

*

*

* The law concerning husband and wife has always made a very prominent and extensive article in the codes of civilized nations. * There are no regulations on any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honor, and happiness of private life."

Equitable Separate Estates.

To relieve numerous injustices and abuses that arose in England under the provisions of feudal common law, ecclesiastical or equity courts were created to act for the sovereign on complaints of aggrieved persons. These courts employed principles borrowed from the civil law to temper the harshness of the common-law system. An invention of equity to protect property of an otherwise remediless wife from a greedy or spendthrift husband was the equitable separate estate, in which a trustee acted for the wife in management and disposition of such property, preventing its control and benefit from passing to the husband.

Statutory Separate Estates.

With the extension of educational privileges, the impact of the industrial revolution, economic advancement through new opportunities in commercial development, and other liberalizing factors, women about a century ago began to make concerted protests against unjust restrictions laid upon them by the common law. Instead of the equitable separate estate administered by a trustee under supervision of an equity court, the concept of the separate estate of a married woman under her own name and control began to appear in positive statutes of the United States of America, and has now progressed through the various forms of the so-called married women's acts adopted in each of the common-law States. Though the several States have not been uniform in the extent of their modifications of common-law rules, in none of them today does a married woman remain entirely under the legal "black-out" created for her by the ancient feudal system. These acts

19 Summary of woman's situation under the common law of the Blackstone period appears on pp. 10 to 14.

20 Kent, James. Commentaries on American Law, vol. II, p. 182.

21 Many individual women had protested previously. For example, witness the long struggle of the brilliant and wealthy Lady Elizabeth Hatton against her noted jurist husband, Sir Edward Coke, the attorney general of Queen Elizabeth, when she pleaded her own case against him in the English courts of the seventeenth century, or the protests of Margaret Brent of the colony of Maryland against taxation of her considerable property without representation.

* aim to secure to the wife the independent control of her own property, and the right to contract, sue, and be sued, without her husband, under reasonable limitations.22

It has been said by some authorities that the married women's property acts are "designed to effect, not so much the creation of a power which the wife never possessed, as a partial or complete restoration of the power she lost by marriage." 23

The general view of these reform measures is that they

* do not, except to the extent specified therein, remove the common-law disabilities of coverture, nor change the general status or relation of husband and wife, but leave the duties and responsibilities of each to the other, in matters not relating to the wife's separate property, as they were at common law."4

24

So, when jurists and text writers say broadly for some jurisdictions that "the last vestige of a wife's oppression has been swept away" or that "there no longer remains any difference in the treatment of men and women under the law," it must be recognized that they speak in general of the law governing ownership and control by a modern wife of her separate property, that is, the property she had at marriage and that acquired afterward by gift, inheritance, or other means recognized by State law.

RELATED COMMON LAW OF THE PREREVOLUTIONARY

PERIOD

In the summary of each separate topic considered in this survey (Part III, beginning on p. 32) will be found statements as to the common law now current in the jurisprudence of the United States. A general summary of mid-eighteenth-century English common-law rules on the same topics is given in the paragraphs following, which the reader may use for comparison with the married women's acts in the United States today. Key numbers are the same throughout.

A. CIVIL RIGHTS

I.-Contracts and Property

1. The age of majority was fixed at 21 years for both sexes.

2. Contracts with a minor, for other than necessaries under certain conditions, were voidable by such minor at his or her majority.

3. [The exemption of property from seizure for general debt was unknown to the common law.]

4. On marriage, a woman's personal property then owned, and that afterward acquired, usually became her husband's absolutely, and he might dispose of it as he chose.

5. On marriage, the very being or legal existence of the woman merged into that of the husband. This state of the wife created a disability at law called her coverture. The effect of this legal_assumption restricted both her personal and her property rights. For

22 Schouler, James. Marriage, Divorce, Separation, and Domestic Relations. 6th ed. (1921), vol. I, pp. 11-12. 2330 Corpus Juris, Husband and Wife, sec. 435, p. 801.

24 Idem, pp. 801-802.

example, the husband could not grant property to, nor contract with, his wife, for that would imply her separate existence. All deeds executed and acts done by the wife during marriage were void, as she was for such matters considered the inferior of her husband and acting under his compulsion. She might execute conveyances to cure defects in land titles, or like matters of record, but was then "solely and secretly examined, to learn if her act be voluntary." Nor could she be sued, ordinarily, unless the husband were sued together with her. The only exception was in the event the husband had "abjured the realm" or been banished, thus becoming "dead in law."

6. The husband was entitled to the wife's services in return for the support that the law required of him. Hence, he was entitled also to any earnings that she might receive for her labor, and to property acquired during the marriage as a result of their joint efforts.

7. The husband was bound to provide his wife, as much as himself, with necessaries. If she contracted debts for them, he was obliged to pay them, but he was not chargeable for anything besides necessaries. He was relieved of this obligation if the wife deserted him.

8. "By the custom of London, where a feme covert of a husband useth any craft in such city on her sole account, whereof the husband meddleth nothing, such a woman shall be charged as a feme sole, concerning everything which toucheth the craft; and if the husband and wife be impleaded in such case, the wife shall plead as a feme sole, and if she be condemned, she shall be committed to prison till she hath made satisfaction, and the husband and his goods shall not in such case be charged or impeached." 25 But generally, a married woman could not engage in business for herself, due to her incapacity to make valid contracts.

9. At marriage the husband received a freehold estate in his wife's lands, that is, he had full control and use of them during the marriage. Over any property held by husband and wife as an estate by the entirety, the husband, during the marriage, had full control and was entitled to all income from the property. [See No. 4 above as to personal property.]

10. The proceeds of the joint labor of husband and wife belonged to the husband. [See No. 6 above.]

11. For any injury to her person or property, the wife could bring no action for redress without her husband's joinder and suing in his name as well as her own. Any damages recovered in the action became the husband's property, if he chose.

Neither married nor single women had any remedy at law in their own right against attacks on their character by malicious persons, but were "perfectly exposed to the slanders of malignity and falsehood." The husband might sue for and recover any damage to his wife's character.

12. Neither husband nor wife could sue the other to recover damages for injuries, either willful or negligent, wrought on the person

25 I. Blackstone Com., p. 443 (Chitty et al.), 1870, notes.

or property of one by the other, since at law the two were one

person.

13. In trials of any sort, husband and wife were not allowed to be witnesses for or against each other, "partly because it is impossible their testimony should be indifferent, but principally because of the union of person; and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, 'no one is allowed to be a witness in his own cause; and if against each other, they would contradict another maxim, 'no one is bound to accuse himself." However, the rule usually was suspended where the offence was directly against the person of the wife, as in the case of a forced marriage, where her testimony would be the only evidence in her behalf.

14. The wife could not devise her lands to her husband for she was presumed to be under his coercion at the time of making her will.

15. In inheritance of lands, male heirs had preference over females. Kindred derived from male ancestors, however remote, were to be preferred to kindred from the blood of female ancestors, however near, unless the land came from a female ancestor. Originally, under the feudal system, females were wholly excluded from inheritance of lands, not only from their inability to perform the feudal engagements, but because they might by marriage transfer the possession of the feud to strangers and enemies. A son, though younger than all his sisters, inherited the whole of real property in an estate.

When a living child was born of a marriage, if the husband outlived the wife he retained during his life the whole of her lands that were inheritable by her heirs. He had this right, called tenancy by curtesy, also in the property of his wife held for her by a trustee, known as her equitable separate estate.

For the wife's part, if she outlived her husband and was entitled to dower, she entered on the life-use of one-third of her husband's lands that were subject to inheritance by his heirs-unconditioned on birth of issue. But she had no dower right in any trust estate of her husband.

As to rights of succession in the personal estate of a deceased spouse dying without a will, a surviving husband administered his wife's estate and took any remainder after her debts were paid. A widow might have one-third of her husband's personalty after payment of debts, or one-half portion if there were no children.

16. A widow might remain in her husband's "capital mansionhouse" for 40 days after his death, during which time her dower should be assigned to her. These 40 days were called the widow's quarantine, to signify the number of days in the period. (See also Dower and Curtesy under No. 15.)

17. A husband could make his will as he chose, except that he could. not deprive his widow of her dower right in his lands.

II. Marriage and Divorce

18. Males at 14 years of age and females at 12 were deemed capable of contracting a legal marriage.