m.'^ 
 
 mM 

 
 I E) RARY 
 OF THE 
 U N 1VER5ITY 
 or ILLl NOIS
 
 /i 
 
 ON THE 
 
 LAWS RELATING 
 
 PROPERTY OF MARRIED WOMEN. 
 
 ARTHUR HOBHOITSE Q.C. 
 
 (A Paper read at the. SocM Science Congress, Birmingham, October, 1868, 
 
 MANCHESTER: ALEXANDER IRELAND & CO, 
 1870.
 
 THE PROPERTY OF MARRIED WOMEN. 
 
 THE thesis on which I have been requested to read a paper Nature of the 
 to this assembly is, "Whether it is desirable to amend ^^"^^^^^.^^^^^ 
 the present law, which gives the personal propei-ty and earnings altering the 
 of a wife to her husband :" and I need hardly say that I am " 
 
 about to maintain the affirmative of the question. To my mind 
 it is abundantly clear that there should be an alteration of the 
 law under discussion. But it must not be forgotten that we 
 are speaking of a law probably coeval with the very beginnings 
 of English society ; part of the common law, whose origin is 
 lost in the darkness of antiquity, and which has been handed 
 down to us as part and parcel of the institutions that have 
 helped to preserve our liberties and to form our national 
 character ; a law, moreover, that relates to the most necessary 
 and sacred of all connexions, the union of man and wife, the 
 root of the family, the origin and rudiment of all social stability 
 and progress. No wonder if by all who are timid, by all who 
 are superstitious, by the majoiity of those who obey sentiment 
 rather than reason, and by many who possess a large share of 
 reason and judgment, any alteration of such a law is regarded, 
 accDrding to the character of the mind, with fear, with horror, 
 with disgust, or with calm disapproval. It is of no use to dis- 
 guise or to extenuate the difficulties which meet a reformer on 
 the very threshold of such a subject as this. 
 
 Again, I freely admit that upon those who ask for the 
 alteration of any law lies the burthen of showing that it pro- 
 duces mischief, and that the proposed novelty is likely to be 
 more beneficial. The more venerable and ancient the law, the 
 more widely ramified it is, the more closely it is connected 
 with the deep foundations of society, the clearer and stronger 
 should be the case shown for a change.
 
 Such is the burthen I now propose to discharge. And it 
 will, I think, be found not only that there is a clear mischief 
 to be remedied, not only is the remedy free from all reasonable 
 apprehensions of evil, but that the importance of the law itself 
 vanishes under closer examination ; that the law which is 
 complained of, and which it is proposed to alter, is no essential 
 part of the conjugal relation ; that it is an accident, an out- 
 growth which changes of outward circumstances have swollen 
 into unhealthy proportions ; that its removal will leave the 
 substantial fabric of the marriage tie not merely unshaken, 
 but strengthened. 
 Definition of The first step is to place clearly before our eyes the nature 
 
 the lawwhich ^^^ extent of the law which we desire to alter. Alarm and 
 lion. prejudice are created by the idea that the general relations 
 
 between husband and wife are struck at. That is not so. 
 The thing struck at is the law which gives the property of the 
 wife to the husband ; that is the common law, or the ancient 
 customary traditional law of England. You must not suppose 
 that this is the entire English law on the subject. The law 
 is made up of ancient unwritten traditions, called the Common 
 Law ; of other unwritten traditions introduced in more recent 
 times by the Chancellors and called Equity, and of written 
 statutes. It is only with the first of these departments, i.e., 
 the common law, that we are dealing. For you will find, and 
 I shall rely upon it very strongly in argument, that the 
 Chancellors have made large encroachments on the domain 
 of common law in this direction. 
 
 What then says the common law ? First hear one of its 
 greatest oracles. Lord Coke. 
 
 " Marriage is an absolute gift by the wife of all chattels 
 personals in possession in her own right, whether the husband 
 survive the wife or no." (Go. Lit., 351 h.) And "if a man 
 taketh to wife a woman seised in fee he gaineth by the inter- 
 marriage an estate of freehold in her right." (Co. Lit., 351 a.) 
 
 Now add to this that by a technicality peculiar to the 
 English law all leasehold interests in land are of the nature of 
 chattels personal, and it will be seen how unequally the law 
 operates. For the wife obtains no interest in the husband's 
 personal property. In his freehold property she has by common 
 law wl^at is called her dower, i.e., if she survives him, a life
 
 I 
 
 k 
 
 interest in one-third of that property ; and even of that interest 
 he can, under recent legislation, deprive her at his pleasure. 
 
 If I were writing a legal treatise it would be necessary to 
 introduce some modifications which are too trifling and tech- 
 nical to find place here. I may state the common law as varied 
 by the statute of dower with sufficient accuracy for the present 
 purpose, by saying that, with the exception that he cannot 
 make away with her freehold lands beyond the term of his 
 own life, the husband has absolute dominion over all that 
 property which, were the wife single, would be hers; and 
 that he retains absolute dominion over all that was previously 
 his own. That is the law which I desire to alter. 
 
 I am not going to consume much time in arguing about Question of 
 the abstract justice of such a bargain. Probably all of us have ^^^^.^^^^ 
 lately read with interest an argument by an eloquent lady 
 to prove the natural equality of the sexes of mankind. I 
 pass by that question entirely. I will assume, with that lady's 
 opponents, who, be it observed, are the same class of thinkers 
 that oppose any alteration of the law of property, that men in 
 general are superior to women in general in moral and intel- 
 lectual, as they are in muscular, force. Let us say that they 
 have stronger bodies, stronger understandings, and stronger 
 wills. Should the law then, on this account, throw all its 
 protection round the stronger party at the expense of the 
 weaker ] Those who insist most eagerly on the superior 
 strength of men ought to feel most keenly the inequality of the 
 law. It is idle to say that it ought to be left to the stronger 
 to act for the common interests of the two. As long as their 
 interests are really in common no question will arise, whatever 
 the state of the law may be. But it cannot be denied that, 
 in point of fact, the interests of many married couples do, in 
 many cases, diverge. I want to know why, in such cases, 
 the whole weight of the law should, so far as regards property, 
 be on the side of the one who already has enormous practical 
 advantages by reason of his superior strength. 
 
 If we are to discuss the question as an abstract one, I have 
 a right to press the argument at least thus far against all 
 opponents, that the law being plainly and on the face of it 
 unequal, they are bound to show why this inequality is not also 
 injustice. If the^ say that the parties to the bargain are
 
 6 
 
 Thia argument 
 rests on an 
 appeal to facts 
 
 First class 
 of facts. 
 Marriage 
 Settlements, 
 
 Second class 
 of facts. 
 Operation of 
 the Court of 
 Chancery, 
 
 unequal in personal characteristics, I reply that the personal 
 inequality does not remove the injustice, but aggravates it. 
 
 But, after all, the discussion of questions of abstract justice 
 is always unsatisfactory, because the canons by which people 
 decide such questions differ very widely. I prefer to appeal to 
 facts ; and 1 now ask not what is the abstract justice or abstract 
 expediency of the case, but what do people in this country 
 practically believe to be just and expedient in the particular 
 instances affecting themselves 1 
 
 Bearing on this question, we find two broad and significant 
 classes of phenomena. First, we find that persons on the eve 
 of marriage make special contracts about their property in 
 every case in which they have property enough to bear the 
 expense of the proceeding, and in which tlie marriage is a 
 deliberate open step taken with the assent and advice of their 
 friends j and, moreover, that these special contracts invariably 
 set aside the rules of the common law by giving to the wife 
 large powers over property which that law would vest entirely 
 in the husband. Why do they do this 1 If the law is good, 
 that the husband, being the stronger, should be complete master 
 over the whole property of both, why do the wife's friends 
 always force him, and his wife too, to forego the benefit of 
 that law 1 Of the thousands of marriage settlements which 
 are made every year, every one bears conclusive testimony 
 that the parties to it believe that the rule of the common law 
 is not just or expedient. Bemember, I am not saying that 
 this universal practice proves of itself that the lav/ is bad : what 
 it proves is that the large class who make marriage settlements 
 think the law bad. 
 
 This is the first class of phenomena ; now for the second. 
 
 I mentioned before that the law is made up partly of the 
 unwritten traditions of the Courts of Chancery, which we call 
 Equity. As property increased, and its arrangements became 
 more complicated, the old simple rules and maxims of the 
 common law were found insufficient for the questions which 
 pressed for solution, and large provinces of human transactions 
 were in effect' outlawed. Hence arose, by steps not easy to 
 trace, the jurisdiction of the Chancellors, who were men of 
 much greater range of knowledge than the Common Law 
 Judges. The knowledge of the latter was confined to the old
 
 English and Norman rules, which sufficed for the simj^ler state 
 of society that had passed away ; while the Chancellors, who, 
 before the Reformation, were usually Ecclesiastics, had a know- 
 ledge of the later Roman law — a law framed for, and suited to, 
 a complex ^nd civilized society. Gradually a very large portion 
 of transactions relating to property fell under the jurisdiction 
 of Chancery, which, as to many important matters, reversed 
 the rules of the common law. And it may be stated with 
 truth that whenever such conflict of jurisprudence took place, 
 the Court of Chancery was abrogating an antiquated and 
 barbarous law, and substituting for it a civilized one adapted 
 to the wants of a wealthy and active community. Now, there 
 are few departments of common law more encroached on by 
 the Court of Chancery than that which regulates the property 
 of husband and wife. 
 
 In the first place, the ordinary marriage settlement could 
 not operate but for the Court of Chancery ; for the wife takes 
 property through the medium of trustees, and trusts are invisible 
 to, and unknown by, courts of law, but are enforced in 
 Chancery. 
 
 In the second place, the Court of Chancery recognised the 
 validity of contracts between husband and wife ; and made 
 him a trustee of property for his wife if he was bound by express 
 contract or by circumstances to be such. 
 
 In the thii-d place, the Court refused to give the husband 
 any assistance towards recovering the wife's property in the 
 hands of a third person, without giving her the opportunity 
 of claiming to have it settled for the benefit of herself and 
 her children. And it allowed wives to institute suits for the 
 purpose of asserting this claim with respect to all property 
 accrued to them and outstanding in the hands of third persons. 
 This is called the wife's equity to a settlement. 
 
 We have, then, the testimony of the most enlightened 
 English lawyers, of those who adapted the law to the progress 
 of events, and made it tolerable by a civilised community, 
 that the common law rale of giving all the wife's property 
 to the husband is a bad rule, to be violated whenever there is 
 property enough to admit of the intervention: of trustees, or of 
 the Court of Chancery itself.
 
 wives. 
 
 Changes of There is also this to be observed, that the rule against 
 
 stances have^' ^^^^^^^ *^^® richer classes and the Court of Chancery have 
 made the entered such practical protests, was not for centuries after its 
 common law , ■, -,• i , • i i -it 
 
 bear more establishment SO onerous as social and economical changes 
 
 ^i^l"^ °^ afterwards made it. In our early history, leaseholds for years 
 did not exist, and personal chattels were almost confined to 
 flocks and herds, household goods, and such like perishable 
 commodities. But it is with respect to personal chattels that 
 the common law bears so hardly on the wife ; with respect to 
 freehold property — in early times the great bulk of property — it 
 is better, though still admitting of improvement. 
 Question Having thus shown what is that common law whick should 
 
 whether the j^g altered, and how it is set aside by the wealthier classes and 
 
 nnmrnrvTi laW " 
 
 common 
 
 actually works the Court of Chancery, I pass to the most important question 
 of all. Have we evidence that the common law works ill ? 
 If not, we need not trouble ourselves to alter it. There is 
 plenty of work to be done in the world before we need occupy 
 our time and strength in clearing away mere eyesores and 
 anomalies. I intimated before that the existence of a private 
 practice contrary to the law demonstrates nothing positive 
 as to the nature of the law itself, but only that certain 
 persons think it ill-adapted to their case. The practice of the 
 Chancery lawyers is a more general expression of the same 
 opinion, for they apply their doctrines to all cases falling within 
 their power. But the question of questions is this, whether 
 there is evidence that rich people and Chancery lawyers are 
 right in thinking that the common law works ill. 
 
 The evidence ^ wish, for the honour of human nature, that this question 
 
 proves that it could be answered in the neojative. I wish it could be shown 
 does. ° 
 
 that those who have departed from the common law have done 
 
 so in the mere pride of their hearts, or wantonness of their 
 
 fancies. But that cannot be. I will not dwell on my own 
 
 very limited knowledge beyond observing, that it is rare to 
 
 find a person who does not know at least one case of hardship 
 
 and wrong directly traceable to the rule of law. But full 
 
 evidence has now been taken before the late parliamentary 
 
 committee. Witnesses have been examined who have the 
 
 fullest opportunities of seeing from different points of view 
 
 and in different places the domestic life of the poorer classes, 
 
 and the working on a large scale of the rules which govern it.
 
 Two witnesses are clergymen in charge of populous London 
 parishes, one is a London police magistrate, one the clerk of 
 the Liverpool magistrates, one a lady acting as district visitor 
 in Belfast, one a manufacturer employing female labour largely 
 in Nottingham. They all unite in saying that the law works 
 visible mischief; they tell ils tales of wives plundered by 
 worthless and dissipated husbands, of their inability to obtain 
 payment of legacies due to them, because the executors are 
 afraid of the husbands' legal rights, of their savings being 
 drawn from the places of deposit, of their furniture, and even 
 their clothes, being taken to provide for their husbands' sensual 
 enjoyments. And the Jaw protects and encourages him in all 
 this ! The selfish, hardened man may console himself by 
 reflecting that he is only doing what he will with his own ; 
 the timid, cowed wife is still further disheartened by knowing 
 that her husband is within his legal right. 
 
 It may indeed be true that, to some very far advanced in The visible 
 brutality and lawlessness, the fact of the propei-ty belonging to ^^'^ ^J"? 
 the wife would make no difierence ; they might still take it the law. 
 by force though not their own. 
 
 But independently of the circumstances that the wife could, 
 and often would, protect her ])roperty, if really made hers, from 
 any husband, it cannot be and is not true that the majority of 
 men, though self-indulgent and cruel in their selfishness, would 
 
 I not be slower to take what is not legally their own than they 
 are to take what is. It must be that the wife would be inspi- 
 rited and the husband discouraged if the support of the law 
 were shifted from the stronger side to the weaker. 
 
 With every disposition to pay respect to the views of oppo- 
 nents, I confess to a difficulty in extending that toleration to 
 the suggestion that the evils complained of are the result, not 
 of the law, bat of the incurable vice of husbands. Doubtless 
 there are bad husbands, as there are bad wives ; and they all 
 wrong their consorts by wasting property and in other ways. 
 And it may be true that there is no social phenomenon for 
 which one single cause alone can be assigned. But if we have 
 a system from which certain effects may be expected, and we 
 ffind those effects in abundance, it is mere perversity to argue 
 fthat the effects are not the fruits of the system, but of some- 
 [thing else. We all know that arbitrary power is liable to be
 
 10 
 
 abused ; we give arbitrary and plenary power to liusbands over 
 their wives' property ; we find a substantial number of them 
 grossly misusing that property ; what sense is there then in 
 attributing the misuse to any cause but the possession of the 
 power 1 White men have a tendency to despise negroes, and 
 will probably to some extent misuse them when strong enough ; 
 but what would be thought of the man who should argue that 
 the cruelties and indignities commonly heaped upon negro 
 slaves by bad masters were not the result of the slave laws, 
 but of the inherent relations between white men and black 1 
 It is beyond controversy that evil not only exists under the 
 law, but flows directly and visibly from the law. 
 In fact, we What then are the facts that we have before us 'i On 
 
 one^forrich^'*^' *^® ^^® ^^^® ^® hsive a law working in one direction and giving 
 and one for the woman's property to the man. On the other side we have 
 another law and a right of private contract, unlimited in 
 principle, in practice limited by the amount of property, both 
 working in the contrary direction, and setting up the woman 
 as independent of the man. We have two laws warring with 
 one another. Moreover, the dividing line between them is the 
 dividing line between rich and poor. The poor cannot afford 
 the costly luxury of marriage settlements, and the operations 
 of the Court of Chancery are in the upper air, far above their 
 heads. But can this be right ? Can it be well to have two 
 contradictory laws, one for the rich and the other for the poor? 
 If the gifts of the wife's property to the husband be an 
 indispensable part of the marriage contract, the practice of 
 the wealthier classes and of the Court of Chancery is wrong, 
 and should be forbidden ; if that practice is right, then the 
 common law is wrong. 
 Conclusion in That there should be some change then appears to me to 
 
 change,^^ admit of demonstration. It only remains to decide in which 
 direction the change shall be. And here it is difficult to doubt 
 when the case is once understood. On the common law grave 
 and mischievous consequences are affiliated ; of the opposite law 
 there is no complaint, and the classes who enjoy it have now for 
 a very long series of years shown a steady disposition, not to 
 relax, but to extend its operation. Unless, therefore, there is 
 some objection not included in the scope of the foregoing 
 observations, the conclusion is irresistible, that the portion of
 
 11 
 
 the law wLich ought to be altered is that law which gives to 
 
 the husband the property of the wife. 
 
 And this leads me to the consideration of the various objec- Wives should 
 
 tions which are made to the alteration proposed : a consideration become abso- 
 
 . . lute owners of 
 
 which the time allotted to me will render much more cursory property. 
 
 than I could wish. But before dealing with them, I will make 
 one remark which may save some misapprehension. The pre- 
 cise nature of the change to be made is not the thesis before 
 the meeting, and it would be a misuse of your valuable time if 
 I were to go into it. But I have dwelt so much in argu- 
 ment on settlements made by contract and by the Court of 
 Chancery, that it might be suj^posed I aim at settling all pro- 
 perties in the same way. That is not so. I think that the system 
 of settlements has worked great good, as between husband and 
 wife, because it has more or less abrogated the bad rule of the 
 common law. But as between husband and wife on the one 
 side, and more remote interests on the other, I doubt the 
 wisdom of the ordinary settlements ; and at all events they 
 are wholly inapplicable to small properties and to earnings. 
 Without arguing the matter in any detail, I say that those 
 arrangements of property seem to me the best which leave each 
 adult generation freest to deal with it, and that the best change 
 in this case is the shortest and the simplest, viz., to make 
 married women, in the absence of contract, free and absolute 
 owners of their own property. 
 
 That objections should spring up to such a change as we are objections 
 discussing is a matter of course. As in this world we have considered, 
 nothing good without its defects, so we have no bad thing 
 without its good points. Partly from this cause, partly from 
 the pervading habit of confounding that to which we are 
 accustomed with the eternal principles of right, partly from 
 indolence and fear of the unknown, there is nothing esta- 
 blished for which reasons are not found. 
 
 I have not had the advantage of seeing any detailed or 
 mebhodical statement of the objections to altering the law. 
 Such as I state here I have picked up partly from newspaper 
 articles, partly from the line of examination adopted in com- 
 mittee by those hostile to the pending Bill. I must take what 
 I have found j and I will give a specific answer to each, 
 premising, however, that there is one general, and as I think 
 conclusive, answer to them all.
 
 12 
 
 1. That wives First, it is said that if married women liave property they 
 
 might go to must be responsible for debts, must be liable to lawsuits and 
 prison. -^ , ' 
 
 to imprisonment, and it is asked with some triumph whether 
 
 it w^ould be good for a family that the mother should go to 
 
 gaol. The answer is obvious. Imprisonment ^;<sr se is not 
 
 good for anybody, male or female, married or single, with or 
 
 without a family. What is good is that people should perform 
 
 their duties, and to that end they must suffer such penalties as 
 
 await the neglect of them. If we are right in supposing women 
 
 to be free and responsible moral agents, it is better for them 
 
 and all connected with them that as they sow so should they 
 
 reap. 
 
 2. That they Secondly, it is said that women must be made liable to 
 would be liable maintain their offspring as men now are. Be it so. Whatever 
 their children, legal liability now rests on men (and I believe it is of the very 
 
 slenderest amount) let the same rest on women. The moral 
 liability clearly would attach on the possession of property. It 
 does attach now when they have seimrate property, — and 
 when they are widowed, and it is discharged by women quite 
 as conscientiously as by men. 
 
 3. That difR- Thirdly, it is alleged that difficulties would arise with 
 
 culties would tradesmen supplying the family, who would not know whom 
 arise with ii J o jj 
 
 tradesmen. they were trusting. But it would be their business to know, 
 and they would know. Difficulties do indeed arise now when 
 a wife is not on terms with her husband, but these are owing 
 to the peculiar state of the law, and would vanish with its 
 alteration. That difficulties would arise when husband and 
 wife are on the usual terms is inconceivable. None such 
 arise when daughter keeps house for father, sister for brother, 
 or servant for master. 
 
 4. That frauds Fourthly, some apprehend that frauds on creditors, by 
 
 would be means of family settlements, would be more frequent. It is 
 
 increased. , 
 
 difficult to see how or why. They can only be effected by 
 
 preconcerted arrangement, and that can be made now as 
 
 between husband and wife, through the medium of trustees. 
 
 But such frauds are not peculiar to the relation of husband and 
 
 wife ; they may be committed between a trader and any other 
 
 relative; they form part of a totally diff'erent branch of law, 
 
 and ought not to be imported into this question at all. If the 
 
 proposed alteration of the law had any bearing at all on them,
 
 13 
 
 it would rather tend to dimimsh them, for it would take away 
 from the reasons which a man has for giving property to Lis 
 wife. 
 
 I have answered the above four objections very briefly. 
 So far as the various considerations go, they all appear to 
 me to afford reasons for, instead of against, a change in the law. 
 And it is difficult to conceive that they are ought but chance 
 weapons snatched up in haste and fear, not real defences 
 selected on mature reflection. 
 
 The fifth objection I shall notice is, that the majority of 5. That we 
 people do very well with the present law, and that you ought ?^?¥ J^°J *° 
 not to legislate for the minority. It is a singular fallacy to the minority, 
 apply such a maxim to such a case. I quite agree that you 
 ought not to pass a law to benefit the minority at the expense 
 of the majority. Because one man drinks too much, there 
 is no good reason for saying that all his neighbours shall 
 have no beer. We have no right to subject hundreds to serious 
 inconvenience in order to keep one vicious person from injuring 
 himself But in every case in which the state of the law 
 does not affect the majority, you legislate for the minority. 
 Thus it is with all laws against crime. Xot for the righteous 
 man are such laws made, but for the lawless and disobedient. 
 You or I would not go about picking pockets if all the laws 
 against larceny were abolished to-morrow ; but the laws are 
 right for the sake of the minority, who are not beyond tempta- 
 tion, and of the interest which the majority have in the good 
 behaviour of the rest. Now, it is certain that in all cases in 
 which married people behave with ordinary good sense and 
 temper, and in which no untoward accident happens, that is to 
 say, in the immense majority of cases, their family affairs will 
 go well under any law, or under no law at all. They are as 
 independent of the law of j^roperty as we are of the law of 
 larceny. It is in the minority of cases that quarrels within 
 or calamities from without occur; and for the sake of these 
 cases, and of the interest which the majority have that their 
 neighbours' affairs shall run smoothly, the law should be 
 framed. If it is said that in order to benefit this minority, 
 we are introducing a prejudicial principle which will embar- 
 rass the bulk of mankind, that is simply begging the whole 
 question which I am here discussing.
 
 14 
 
 6. That men, I pass to au objection which I have placed last, because it 
 
 rSr^quaSs" ^^ *^^® ^^^ appearing to be of greatest weight with thoughtful 
 
 ought to take opponents of this change, and it goes far more to the root of 
 
 of their wive?, the matter than those I have been dealing with. I must 
 
 endeavour to state it briefly, and will try to do so honestly, 
 
 though it is always very difficult to state an opponent's case 
 
 in a way that he would approve. 
 
 The objection then, as I understand it, is founded on an 
 essential difference of character between men and women, 
 and the essential relations between husband and wife, and 
 it runs thus : Men are stronger and wiser than women, and 
 more competent to take the direction of affairs. The husband 
 is the head of the whole family. It is he who must control 
 the style of the establishment, fix the common residence? 
 choose their common occupations. On account of these powers 
 and duties, the law has given to the husband the property of 
 the wife, and you cannot do otherwise without seriously 
 weakening his legitimate authority and introducing subjects of 
 constant quarrel. 
 
 I have never seen the argument stated otherwise than in 
 general terms and with some ambiguity. It rests maiidy on 
 the natural relations of husband and wife ; but it also intro- 
 duces the assertion that as a matter of fact the law has on 
 account of these relations given to the husband the wife's 
 property. 
 Question The historical part of the argument I believe to be untrue, 
 
 law really^^ It would be interesting to examine it closely, but it would not 
 rests on this be very important for the present object, and would carry me 
 Probably not. far beyond my due bounds. I will only say that it seems to me 
 much more probable that our law is a remnant of that which 
 was known to the Komans as the patria potestas, the patriarchal 
 power which prevailed among the Aryan nations, and still 
 prevails to a great extent in India; under which all females 
 (married or not) were subject to their male relatives, and 
 under which the head of the family had absolute dominion 
 over the whole family, and not over his wife alone. The 
 Romans, who had singular power of moulding their laws to fit 
 the growth of society, found the domestic tyranny intolerable, 
 and they got rid of it by one process after another; and the 
 position of a wife under the later Roman law was one of great
 
 15 
 
 freedom. The influx of the ruder Aryan nations brought back 
 many older and ruder customs, and, coupled with the influence 
 of Christianity, or at least of the Christian priesthoods, placed 
 women in a position far inferior to what they occupied under 
 the civilized imperial system. Since that era, where the 
 Eoman law has been adopted as the basis of jurisprudence, 
 women have generally attained a more independent position. In 
 our country where we have been jealous of admitting the Roman 
 law, and where it has only edged in, as it were sideways, 
 through the Court of Chancery, women have not attained so 
 much liberty. If this rough outline is substantially true, it 
 follows that so far from our law springing from an enligh- 
 tened and comprehensive \dew of the duties and responsibilities 
 of the husband, it is but a fragment of a barbarous system 
 rejected by all nations in proportion as they have civilized 
 and improved their laws. 
 
 Turning from the historical to the social side of the objec- Three fallacies 
 tion, I take exception to it on three grounds. I say that the ^he obie^ction 
 superiority of the male sex is very much overstated ; that the 
 necessity of having a single arbiter in family aflairs is very 
 much overstated; and that even mthout deducting for these 
 two exaggerations, it does not follow that because the husband 
 is the best, or the necessary arbiter, he should therefore take 
 all his wife's property. 
 
 It may be generally true that men are stronger and in i. The supe- 
 large aflairs wiser than women ; but it certainly is not uni- ^^overstaS!^ 
 versally true. Every one must know many cases in which the 
 wife is both stronger and wiser than the husband; and there 
 are departments of family aflairs in which women in general 
 are wiser and firmer than men in general. 
 
 Again, I admit that on some subjects aflecting the welfare 2. Theneces- 
 of the family and not admitting any but a single course of g^j^^^^f^^j^* 
 action, some one must, in the last resort, and in cases of is overstated, 
 irreconcileable difference, decide; and I should not be a man 
 if I did not think that that one must be the husband. But 3. And at all 
 how few such cases there are; and how unjust and unwise ^oUead to^the 
 not to let the wife have her natural weight, that weight which conclusion 
 her character should give her, in the family councils. The arbiter shall 
 proposition amounts to this, that it is right to starve into ^^J^^^^ ^^f 
 submission by the stoppage of supplies that wife whom all the the two.
 
 16 
 
 authority and superior wisdom of her husband fail to convince. 
 For all reasonable exercise of legitimate authority, the husband 
 has ample advantages without giving him the power of strip- 
 ping his wife bare of what, if she were single, would be hers ; 
 for ought beyond this, such a power can only minister to the 
 exercise of a capricious and irritating tyranny. 
 The one con- But I said that there was one general and conclusive answer 
 
 ti^air obj^c"^^"^ to all objections, and it is indeed the most satisfactory answer 
 tions is that ^jj^^ (.gj^ be given : the answer from experience, 
 derived from .,, . , ,i i- ^ ..i . • 
 
 experience. I will not recur again to the practice ot settlement m our 
 
 own country beyond saying that if the apprehended evils had 
 any real existence, evidence would be adduced to show that 
 they existed already among the more opulent classes. But the 
 evidence on that subject is a blank. 
 Evidence from I pass to the evidence afforded by other countries; countries 
 America. which have been subject to our law, have found it work ill, 
 have changed it, and have rejoiced in the change. On the other 
 side of the Atlantic the law has been altered within the last 
 thirty years. The New England States, as their wont is, led 
 the way ; they set to work very cautiously, but as they went 
 on were convinced of the soundness of their principle, that now 
 in nearly, if not quite all of them, wives have, with exceptions 
 needless to mention here, the uncontrolled disposition of their 
 own property. In New York a married woman has been 
 made as free in this respect as a single one. The Western 
 States have followed the example, and have actually made 
 this law part of their constitution, so as to remove it from the 
 control of the State Legislatures. Upper Canada has taken 
 large strides in the same direction. And Mr. Dudley Field 
 tells us that the negro women lately set free desire to have 
 similar laws passed for their benefit ; but the male negroes, he 
 says, have a high notion of the dignity of their sex, and are apt 
 to enforce all their rights against their wives. 
 
 And what say those who come forward to tell us of the 
 state of things in America '? Do they say that there has been 
 an increase of legal difficulties and frauds upon creditors, a 
 diminution of the lawful authority of the husband, and a crop 
 of dissensions and disputes ? Such evils appear to have been 
 foreboded in America as here. But there is no evidence of 
 their having any basis in fact. T}ie witnesses who speak,
 
 17 
 
 speak the other way. Mr. Atkinson, an eminent cotton manu- 
 facturer at Lowell, says, "The objection of the opponents of a 
 '' separate estate for women, on the ground that it will pro- 
 " mote a division in families, simply suggests a smile here j 
 "no such result has followed from our legislation, except 
 " where the brutality or laziness of the man has rendered such 
 " separation proper and right." Mr. Dudley Field, one of the 
 foremost members of the New York bar, says, "As to the 
 " tendency of such legislation to break up or sow dissension 
 *' in families, I have not observed anywhere, or at any time, that 
 " this legislation has been attended with any such result. I 
 "doubt whether half-a-dozen instances of such a tendency could 
 "be ascertained by the inquiries of all my friends." And Mr. 
 Kose, Finance Minister of Canada, answers thus : " Q. Has it 
 "tended to cause division in families in consequence of the 
 " separation of property ] A. 1 have never heard any such 
 "complaint, Q. Or that the authority of the husband has been 
 " weakened in consequence of the separation of property 1 
 "J. Not in the least; if such had been the case, and had it 
 " altered in any degree the social relation between the two, I 
 " think it probable that public attention would have been 
 "drawn to it, and I am not aware of anything of the kind.'' 
 In a word, though the experience of these States has not been 
 of long duration, it is pretty clear that the prophesied evils 
 have not appeared, that the results as yet seen have been such 
 as the considerations I have been dwelling upon would lead us 
 to expect, and that the desire of those who have tried the 
 experiment is not to recall it, but only to complete it in those 
 instances in which it is still incomplete. 
 
 What then is the result 1 Why, that this change is one Safe character 
 of the very safest ever proposed to a nation. Most reformers proposed^^°^ 
 are forced, more or less, to leap in the dark ; they cannot 
 forecast the precise effect of their reforms. But here we have 
 our own experience among large classes, and the experience of 
 kindred communities among all classes ; and everything teaches 
 us that the existing evil is substantial, the expected good 
 certain, and the foreboded mischief delusive. 
 
 We must not, indeed, deceive ourselves as to the extent to its extent and 
 which a change will operate. Among the richer classes, who ^^ects. 
 govern their property by special contracts, hardly any direct
 
 18 
 
 effect would be produced. Among all classes hardly any direct 
 effect would be felt by those who act together with ordinary 
 good temper and sense. But there would still remain many 
 among the poorer classes to feel the effect directly and sensibly. 
 And the indirect effect would, we may fairly hope, be wide 
 and lasting; the effect of satisfaction produced by all laws 
 founded on justice and enlarging freedom; the effect produced 
 on all human beings by the possession and ownership of 
 property; the effect, namely, of enlarging the minds and 
 strengthening the characters of women, and, as a necessary 
 consequence, of further civilizing and elevating the community 
 to which they belong. 
 
 A. Irelauti & Co., Printers, Manchester.
 
 a- it. 
 
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