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WOMAN’S SUFFRAGE TRACTS. NO. 8. 
 
 THE 
 
 LEGAL CONDITION OF WOMEN 
 
 IN MASSACHUSETTS. 
 
 BY 
 
 SAMUEL E. SEWALL. 
 
 BOSTON: 
 
 FOR SALE' BY C. K. WHIPPLE, 43 BOWDOIN STREET. 
 
 1869. 
 

 334,a. 
 
 Se 
 
 THE LEGAL CONDITION OF WOMEN 
 . IN MASSACHUSETTS. 
 
 My object, in the following pages, is to present an outline of the 
 law of Massachusetts affecting women, as distinguished from men, 
 with occasional comments. The law of this commonwealth, how¬ 
 ever, is so like that of most of the States, that the greater part of 
 what I write will apply to many of the others. 
 
 Nothing more than a mere sketch, and that an imperfect one, is 
 possible within the limits that I propose. I shall aim to present the 
 most important features of the system ; though even of these many 
 of the qualifications, distinctions, and exceptions will be necessarily 
 passed without notice. A large and instructive volume in regard to 
 the subject might be written. 
 
 Most people have a general idea of the legal disabilities of the 
 female sex. But very few, except lawyers, understand, in their full 
 extent, the oppression and annoyance to which our system subjects 
 women, until some hard case directs their attention to a particular 
 form of this injustice. 
 
 The Declaration of Independence proclaims that “ all men are 
 created equal” and have unalienable rights. We all admit this. 
 And it is conceded that the word “ men ” here includes persons of 
 ^both sexes, and the word “ equal ” means equality of rights, not of 
 capacity. 
 
 When Jefferson wrote these words, which have been cited many 
 ^ thousands of times, and can never be too deeply impressed upon us, 
 ^he was, no doubt, far from thinking of all the applications of the 
 truth he was publishing. 
 
 The Constitution of Massachusetts, following the Declaration, 
 'Isays, “ All men are born free and equal,” and have unalienable 
 Tights. 
 
 The Constitution of Massachusetts denies suffrage to woman, and 
 
 3 
 
 372968 
 
4 
 
 THE LEGAL CONDITION 
 
 thus is inconsistent with itself, and also violates the great principle 
 of the Declaration of Independence, the organic law of the nation, 
 by giving man a great right and privilege, and refusing it to her 
 who is entitled to it as his equal. 
 
 The denial of this franchise is the most serious wrong done to 
 women, since granting them the ballot would, no doubt, lead eventu¬ 
 ally to the redress of their other wrongs. 
 
 This refusal of the ballot perpetuates the stigma and badge of 
 inferiority on more than one half of the whole population of the 
 State. The effect of this disability is obvious. We look upon the 
 ballot as one of the great educators of male citizens, because it inte¬ 
 rests them in public affairs, and leads them to consider and discuss 
 important questions of legislation. Our constitution not only shuts 
 out this great avenue of education from our female citizens, but the 
 legal inferiority tends in every direction to produce the mental infe¬ 
 riority which it presupposes. It cramps thought, and paralyzes 
 effort. 
 
 The secondary effects of this disability are equally if not more 
 disastrous. Men fall short of the high character which would be 
 infused into them through the superior moral and intellectual power 
 which women would acqu’re in consequence of gaining the great 
 franchise. Our legislation is degraded, and our society debased, 
 because the two sexes do not associate as equals in the most impor¬ 
 tant business of the nation. 
 
 It is hardly necessary to add, that to deprive any class of persons 
 who pay taxes of the right of voting violates the principle for 
 which our fathers contended during the revolution, that Taxation 
 without Representation is Tyranny. Thousands of women pay 
 taxes in Massachusetts, some of them very large ones (in Boston 
 alone they are taxed on twenty-eight millions of real, and thirteen 
 millions of personal property) ; yet they have no voice in direct¬ 
 ing the appropriation of their money, are compelled to submit 
 to enactments from which their moral instinct revolts, and have no 
 power to urge effectually reforms which they believe to be all-im- 
 portant. Since women are not allowed to vote, they are generally 
 considered ineligible to any public office, and incapable of holding 
 any by appointment of the governor. I am far from assenting to 
 this view of the law ; for, in my opinion, any person, even an alien 
 or a woman, is legally capable of holding any office, unless express¬ 
 ly prohibited by the constitution or statutes. 
 
 Practically, women are disabled from holding many offices which 
 even those who think them unfit for others often readi.y admit them 
 to be admirably qualified for. Far the greater part of the pubic 
 
OF WOMEN IN MASSACHUSETTS . 
 
 5 
 
 school-teachers in Massachusetts are female. Male teachers are hut 
 a small fraction of the whole number. Yet we find no woman on 
 the Board of Education or School Committees, with scarcely an 
 exception. # or on the Board of Trustees of the State Industrial 
 School for Girls at Lancaster. Can any one fail to see that expe¬ 
 rienced matrons, who have themselves been teachers, would be 
 excellent official visitors, to aounsel and encourage their younger 
 sisters, who are laboring in the same arduous vocation, and to cheer 
 and animate the pupils by their words and smiles? 
 
 No woman is to be found on the Board of State Charities, or as 
 an Overseer of the Poor, or as a Trustee of a Lunatic Hospital. 
 Yet the warm sympathy which women feel for the sick and poor, to 
 say nothing of their other qualifications, would make them very 
 useful in these positions. 
 
 Women pay no poll-tax, and are not required to serve in the 
 militia. These are proper exemptions at the present time. When 
 legal equality is given to the sexes, women ought to pay a poll-tax. 
 They can never perform military duty. 
 
 The statute exempts from taxation property to the amount of 
 $500.00, of a widow or unmarried female, and of any female minor 
 whose father is deceased ; if her whole estate not otherwise ex¬ 
 empted from taxation does not exceed $1,000.00. 
 
 Women are not allowed to serve on juries. This may be regarded, 
 either as an exemption or a disability. Yet it is very clear that 
 there are cases in which women ought to be compelled to serve as 
 jurors. 
 
 No woman can be arrested on any civil process, except for tort. 
 
 I do not propose here to discuss the great questions, whether the 
 two sexes should pursue all branches of study together, or what is 
 the best liberal education for females. But the inequality of the 
 position of the two sexes in respect to educational advantages is very 
 striking. 
 
 There are no colleges in Massachusetts open to women. They 
 are also denied admission into medical and theological schools. 
 Though they have the greatest zeal and aptitude for the study of 
 medicine and theology, and become useful physicians and ministers 
 of the gospel, yet they are obliged to qualify themselves for these 
 professions under the greatest difficulties. 
 
 * * happy to say that Monroe, the smallest town in the State, has enjoyed the 
 privilege of having a lady on its School Committee for several years; and that, in 
 1868, Reading chose three ladies members of its School Committee. Since this tract 
 was finished, the city of Worcester, which for population, wealth, intelligence, and 
 ™m ir e, i s one of the most important places in Massachusetts, has, in December, 
 1868, chosen two ladies on its School Committee. 
 
 1 * 
 
6 
 
 THE LEGAL CONDITION 
 
 So far I have considered the law as it relates equally to both 
 classes of females, the married and unmarried. I now come to the 
 law relating to married women. 
 
 To show the present state of the law on this subject, I am com¬ 
 pelled to exhibit some of the provisions of the English common 
 law. This is the fountain from which the law in almost all our 
 States has sprung. This is what it was, with very little change, 
 thirty years ago. The greater part of the States have by legislation 
 made astonishing improvements on it since that period. The com¬ 
 mon law T held the man and wife to be one person; not, to be sure, 
 in any high spiritual sense, as the harmonious union of two souls; 
 but as signifying, that after marriage the husband was the one per¬ 
 son for both, and the wife nothing. So entire was the annihilation 
 of the wife, that an old law-writer, referring to Hoop’s fable, calls 
 marriage leonina societas , a leonine partnership, of which the hus¬ 
 band has all the profits, and the wife none. 
 
 By marriage, all the wife’s personal property, of every .descrip¬ 
 tion, became absolutely vested in the husband, even her clothes and 
 jewels. 
 
 It is true that the wife’s choses in action, that is, rights of action, 
 such as debts due to her, if they were not reduced to possession by 
 him, would, if she survived him,' still be hers. 
 
 He became also the owner of ail her real estate, and received the 
 rents and profits, of it, certainly during their joint lives; and, if he 
 survived her, he retained the real estate during his Lfe, in case 
 they had had any child bom alive. 
 
 All the earnings of the wife, as long as the union lasted, be¬ 
 longed to the husband. 
 
 Not being a person recognized by the law T , she was absolutely 
 incapable of making any contract. Every contract she made was 
 null and void. 
 
 For the same reason, she could make no will, not even of the 
 legal interest she still retained in her real estate. She could bring 
 no action in any court for any injury to her person, her character, 
 or her property, without her husband’s consent, and joining in the 
 suit. 
 
 The husband had the sole right to the custody of the minor chil¬ 
 dren. 
 
 He had also the control and custody of her person, though bound 
 to exercise this power in a reasonable manner. This was fully rec¬ 
 ognized, even at a very recent period in England, in a case where, 
 the wife had been confined by her husband at his lodgings. By a 
 habeas corpus she was brought before the Court of Queen s Bench, 
 
OF WOMEN IN MASSACHUSETTS. 
 
 7 
 
 which remanded her to her husband’s custody, on the ground that 
 this was a reasonable exercise of his authority if he thought she 
 would make an improper use of her liberty. Thus the husband is 
 made the judge, jury, and jailer of his wife. He settles the law, 
 tries the facts, and executes the sentence himself. 
 
 Neither husband nor wife could be witnesses for or against each 
 other in any court. 
 
 The common law, however, did not absolutely forget the wife ; 
 for it made the husband liable for her debts contracted before mar¬ 
 riage, and compelled him to maintain her in a manner suitable to 
 his station and ability. 
 
 Among the wealthy, the severity of the common law in England, 
 and to some extent in this country, has long been mitigated by mar¬ 
 riage-settlements, which enable wives independently of their hus¬ 
 bands, through the intervention of trustees, r to have the absolute 
 control of the income, and sometimes even of the capital of their 
 property. We all know, too, that the great majority of English 
 and American wives have long been placed incomparably higher in 
 the social scale than their legal condition would indicate. But 
 when a selfish and brutal husband, either in the higher or lower 
 ranks, chose to exercise the tyrannical power vested in him by the 
 law, the condition of the wife was worse, if possible, than that of a 
 slave on a Southern plantation. He could steal her children, rob 
 her of her earnings, and neglect to give her that maintenance which 
 the law requires of him. Practically she often had no sufficient 
 redress for this neglect. 
 
 The improvement in the law regulating the matrimonial relation 
 has been so marked and rapid in almost all of the Northern and 
 some of the Southern States, that it affords a glorious augury for 
 the future in all that relates to woman’s legal condition. In Mas¬ 
 sachusetts, the progress made is very gratifying, as is apparent from 
 the following summary of the present law affecting married women 
 when it is compared with the older law. Such property of women 
 married before 1855, when the great improvement in our law was 
 made, as had already vested in their husbands, could not be taken 
 from the husbands; but even this class was greatly benefited by the 
 changes in the law. 
 
 In order to present our law with greater accuracy, I shall, to 
 a great extent, adopt the words of the General Statutes. 
 
 The property, real and personal, which any married woman now 
 owns as her separate property ; that which comes to her by descent, 
 devise, bequest, gift, or grant; that which she acquires by her trade, 
 business, labor, or services, carried on or performed on her separate 
 
8 
 
 TIIE LEGAL CONDITION 
 
 account* or received by her for releasing her dower by a deed exe¬ 
 cuted subsequently to a conveyance of the estate of her husband; 
 that which a woman married in this State owns at the time of her 
 marriage, and the rents, issues, profits, and proceeds of all such 
 property, — are, notwithstanding her marriage, her separate property, 
 and may be used, collected, and invested by her in her own name, 
 and arc not subject to the control of her husband, or liable for his 
 deb f s. 
 
 A married woman may sell and convey her separate property, 
 enter into any contracts in reference to the same, cany on any trade 
 or business, and perform any labor or services on her separate ac¬ 
 count, and sue and be sued in all matters having relation to her 
 separate property, business, trade, services, labor, and earnings, as if 
 she were sole. But no conveyance by her of shares in a corpora¬ 
 tion, or of any real property, except a lease for a term not exceeding 
 one year, and a release of dower executed subsequently to a con¬ 
 veyance of the estate of her husband, is valid without his assent in 
 writing, or his joining with her in the conveyance, or the consent of 
 one of the judges of the Supreme, Superior, or Probate Court, granted 
 on account of the sickness, insanity, or absence from the State, of 
 her husband, or other gGod cause. 
 
 A married woman, however, who comes into this State without 
 her husband, he never having lived with her here, has the same 
 power of making contracts, conveying property, and bringing suits, 
 as if she were unmarried, and the same capacity for being sued. 
 
 The provisions of the following two sections affect principally 
 women married before June 3, 1855. 
 
 A wife abandoned by her husband, who has left the State, and 
 does not sufficiently maintain her, or whose husband is confined in 
 the State Prison, may be authorized by the Supreme Court to sell 
 and receipt for her real and personal property, and any personal 
 estate which may have come to her husband, and any which he is 
 entitled to by reason of the marriage, and to use the property and 
 its proceeds as if unmarried. She may also get full power to sue 
 and be sued, as if unmarried. 
 
 The real estate and shares in any corporation standing in the 
 name of a married woman, which were her property at the time of 
 her marriage, or which became her property by devise, bequest, or 
 gift of any person except her husband, are not liable to be taken 
 on execution against her husband for any debt contracted or cause 
 of action arising after June 3, 1855. 
 
 A married woman having separate property may be sued for any 
 cause of action which originated against her before marriage ; and 
 
OF WOMEN IN MASSACHUSETTS . 
 
 9 
 
 her property may be attached and taken on execution as if she were 
 sole. The husband of a woman married in this State, after June 
 3, 1855, is not liable to be sued for any cause of action which ori¬ 
 ginated against her before marriage ; but she is Lable to be sued for 
 the same. 
 
 A married woman may make a will of her real and separate 
 personal estate, in the same manner as if she were sole , but such 
 will does not operate to deprive her husband of more than one half 
 of her personal property without his consent in writing; nor can it 
 take away his life interest in her real estate, if they have had a liv¬ 
 ing child. 
 
 Where the parents of children live separate, whether divorced or 
 not, the court can regulate the custody and maintenance of the 
 children, and determine with which of the parents the children or 
 any of them shall remain ; “ and the rights of the parents, in the 
 absence of misconduct, shall be held to be equal.’ 
 
 I say nothing here of the law of divorce, so far as it appears to 
 be equal for both parties (though the wife has the deeper interest 
 in it) ; for the discussion of such a topic opens too wide a field. 
 One provision of the law of divorce, however, is especially for the 
 wife’s benefit. She can get a divorce from bed and board, when 
 her husband, being cf sufficient ability, grossly or wantonly and 
 cruelly refuses or neglects to provide suitable maintenance for 
 her.* 
 
 The following provisions regarding divorce show with what an 
 unequal eye the statute regards the two sexes in case of equal 
 criminality : — 
 
 When a divorce is decreed on account of the wife’s adultery, 
 the husband holds her “ personal estate forever,” and her real 
 estate to the same extent as if she were dead ; “ but the court may 
 decree to the wife, for her subsistence, as much of her personal or 
 real estate, or of the income thereof, as it deems necessary.” 
 
 When a divorce is decreed on account of the husband’s adultery, 
 the wife becomes entitled to her dower as if he were dead, and to the 
 immediate possession of her real estate; and the court may award 
 her the whole or any part of the personal property that came to the 
 husband by reason of the marriage ; and in addition, if what she 
 
 * I hope I shall he pardoned for denouncing in a note all divorces from bed and 
 board, as apt devices for encouraging licentiousness. Every divorce should be from 
 the bonds of matrimony; and every cause for a legal separation should be enough 
 to secure such a divorce. Neither men nor women should be legally separated from 
 their spouses, and at the same time refused the power of forming new legal mar¬ 
 riages. Where they cannot do it, they too frequently enter into marriages which the 
 law pronounces illegal, or form still more degrading connections. 
 
10 
 
 THE LEGAL CONDITION 
 
 thus receives is insufficient for the suitable maintenance and support 
 of herself and such children of the marriage as are committed to 
 her custody, the court may further decree her such part of the 
 husband’s personal estate, and such alimony out of his estate, as it 
 deems just and reasonable. 
 
 I shall say nothing as to the proper treatment of the guilty party 
 in cases of this kind. But mark how severely the statute deals 
 with the woman, how leniently with the man. She, when he is 
 guilty, gets a life-estate in one-third of his real estate ; he, when 
 she is guilty, gets possession of all her real estate, subject, it is 
 true, to such part as the court may decree her. She, if guilty, for¬ 
 feits to him all her personal property, though the court may decree 
 her an allowance out of it; he, if guilty, forfeits nothing to her, 
 though the court may make a decree giving her a part of his 
 estate. In short, she, if guilty, can, under the most favorable cir¬ 
 cumstances, retain only a naked subsistence out of her property; 
 while he, if guilty, may still retain the bulk of his wealth, and 
 live in affluence. 
 
 Many persons imagine that our laws have already done every 
 thing necessary to remove the legal incapacity of married women. 
 But a little examination will show, that, much as has been done, 
 much still remains to do, and that the feudal system still blights 
 the marriage relation. 
 
 J 
 
 Though a married woman may enter into any contracts in refer¬ 
 ence to her separate property, carry on any trade, &e., and sue 
 and be sued in all matters having relation to her separate property, 
 &c., yet she still moves in fetters. She can make no contract, and 
 bring no suit, unless it has a relation to her separate property and 
 business. She cannoj borrow money, op make a note or a contract 
 for the purchase of any thing, unless for the purposes of her trade 
 or business. Her husband’s consent would not give her capacity. 
 He could bind himself for her. She cannot bind herself as surety 
 for any purpose. She cannot bring a suit for any injury to her 
 person or her character. When husband and wife jar, and live 
 separate, this is sometimes a serious evil, if he is not willing to 
 join with her in an action. 
 
 This incapacity of wives to contract is occasionally abused for 
 fraudulent purposes. Married women, having property, sometimes 
 refuse to pay for purchases they have made, and cannot be com¬ 
 pelled to pay, because the articles are not bought to be used about 
 their property, or in their trade or business. 
 
 The common law still appears to prevail, which makes the husband 
 liable for any actionable wrong done by the wife. 
 
 / 
 
 
 f 
 
 f 
 
OF WOMEN IN MASSACHUSETTS . 
 
 11 
 
 A wife, as we have seen, cannot convey real estate, or shares in a 
 corporation, without her husband’s assent in writing, or joining in the 
 conveyance. 
 
 I object entirely to this interfering with the free action of wives, 
 as if they were children. The provision probably was intended in 
 good faith for the protection of married women. But it is entirely 
 opposed to the principle of the statute, which is, that a person who 
 is competent before marriage to take charge of her property is not 
 less competent afterwards. A woman who is happily married can 
 always have her husband’s advice when she needs it if he is pre¬ 
 sent. But when a woman’s husband is absent, whether he has 
 deserted her or not, or when from any cause she does not wish to 
 ask his consent or advice, why should she be compelled to ask it 
 any more than if she were his mother, daughter, or sister ? Noth¬ 
 ing can be plainer than that this perpetual tutelage of married wo¬ 
 men tends to weaken all their powers of judgment and action, to 
 make them children by treating them as such. 
 
 Cases illustrative of the inconvenience and annoyance occasioned 
 by this provision of the law have sometimes fallen under my notice. 
 I mention one. A woman, who had left her husband on account of 
 his ill treatment of her, had a daughter, the fruit of a previous mar¬ 
 riage. She had a little money, which she wished to secure to her 
 daughter in case of her death. How could she, in that contin¬ 
 gency, prevent it from becoming her husband’s? If she invested 
 in personal property, she could not by will, if he survived her, pre¬ 
 vent his getting one-half. She determined to buy real estate, to 
 which he would have no claim, as they had had no children. But 
 here another difficulty occurred : she would have to mortgage the 
 estate for a part of the price, and she knew her husband would 
 never consent to sign the mortgage. 
 
 Another example of the serious inconvenience occasioned by the 
 present state of the law occurs to me. A married woman owns 
 shares in a bank or railroad company which she wishes to sell; but 
 her husband may have deserted her, or may be in a foreign country, 
 or may be incapacitated by disease, or may unreasonably refuse his 
 consent to her selling. Then the poor wife is driven to the delay, 
 vexation, and expense of legal proceedings to get authority to sell 
 from a judge. This is no rare or imaginary evil, but one of real 
 and common occurrence. 
 
 The unequal condition of the wife and the husband is apparent 
 in case of the death of either. If the wife die, leaving no will, 
 the husband, has the whole of her personal property, and, if they 
 have had a living child, her real estate during his life. If she die 
 
12 
 
 THE LEGAL CONDITION 
 
 intestate, leaving no kindred, he takes her real estate in fee. By 
 will, as before stated, she may deprive her husband of one-half of 
 her personal property. 
 
 If the husband die without a will, but leaving issue, the wife is 
 entitled to one-third of his personal property absolutely, and her 
 dower, which is a life interest in one-third of all the real estate of 
 which he had been seized during his life. Whether he leaves a will 
 or not, she is always entitled to such an allowance from his estate as 
 the Probate Court, having regard to all the circumstances of the 
 case, may allow as necessaries for herself and the family under her 
 care, besides the use of his house and furniture, and sufficient pro¬ 
 visions and other articles for the reasonable sustenance of his family 
 for forty days. This provision for widows, where the estate of the 
 deceased is small or insolvent, as is generally the case, is often very 
 important. If the husband leave a will, and his widow waive the 
 provisions of it, she has the same legal rights as if he died intestate, 
 provided, that if her third of the personal estate exceed $10,000, 
 she takes $10,000 and is only entitled to the income of the rest of 
 her third for life. 
 
 When a man dies intestate, leaving no issue, the widow is entitled 
 for life to one-half the real estate of which he was seized at the time 
 of his death; and to the whole of his personal property to the 
 amount of five thousand dollars, and to one-half the excess of it 
 over ten thousand dollars; and, if he leave no kindred what¬ 
 ever, then she inherits absolutely his whole property, real and 
 personal. 
 
 The provisions just stated are much in advance of the old law, 
 which allowed the husband to will all his personal property away, 
 without leaving any thing to his widow, even if it all had belonged 
 to her before marriage. The inequality between the husband and 
 wife, however, is still manifest. Why should they not be equal ? 
 The wife usually needs the husband’s property more than he needs 
 hers. And if the one who dies leave children, those children are 
 as much entitled to a share of the property left whether they have 
 lost a father or mother. 
 
 If a man or woman, at the time of marriage, has a large property 
 which it is desired to take out of the general law, it can be done by 
 a marriage-settlement. But, where there is no settlement, the hus¬ 
 band and wife, in case of the death of either, ought to have equal 
 claims on the property of the deceased. 
 
 One provision for widows deserves mention. If the husband 
 gains a homestead right, — that is, a right to have the estate on 
 which he resides, to the extent of eight hundred dollars, free from 
 
OF WOMEN IN MASSACHUSETTS. 
 
 13 
 
 t 
 
 ali liability for his debts,—his widow retains the estate, with the 
 same right, till she dies, or marries again. 
 
 If a son or daughter of full age die intestate, leaving no issue, 
 the father inherits all the property of the deceased, to the exclusion 
 of the mother, sisters, and brothers. In case, however, the father 
 be dead, the property is divided equally between the mother and 
 the surviving brothers and sisters. The theory of the law of inher¬ 
 itance is, to give the intestate’s property to those to whom in a 
 majority of cases he would be likely to leave it. Now, every one 
 knows, that nineteen persons out of twenty, dying without leaving 
 issue, would desire a part, at least, of their property to go to their 
 mothers. Yet the law violates this principle in favor of the obso¬ 
 lescent notion of the person of the wife being absorbed in the 
 husband. As long as the wife was incapable of owning personal 
 property, the law was consistent; for it would have been a mere 
 farce to give her property as a mother, which, as soon as it vested in 
 her, would become her husband’s. Now that she is capable, the 
 law should regard her as a person in all relations. 
 
 By the common law, if an unmarried woman who is an executrix, 
 administratrix, or guardian marry, her powers in that capacity 
 devolve on her husband. But by statute in Massachusetts, in such 
 ease not only do her functions cease, but they are not devolved on 
 her husband, and a new person has to be appointed in her place. 
 By the English law, too, a married woman could, with her husband’s 
 consent, accept the office of executrix or administratrix. He, 
 however, would act for her. The law, as administered in Massachu¬ 
 setts, is more unfavorable for married women. Here a wife who is 
 appointed executrix or trustee by will is not allowed to act as such, 
 nor can she be an administratrix or guardian under any circum¬ 
 stances. 
 
 The wishes of friends who have confidence in their married 
 female relations are often frustrated by the absurd provisions of 
 our law. A man seeks to make a married sister executrix of his 
 will, or, having lost his wife, desires his sister to be guardian of his 
 children. But he cannot do it, though a maid or a widow is 
 abundantly competent for such trusts. A woman who marries a 
 second time not only cannot be guardian of her own children by the 
 first marriage, but she cannot claim even the custody of their per¬ 
 sons or the care of their education. I copy the statute provision, 
 which seems to me nothing less than atrocious : — 
 
 The guardian of a minor shall have the custody and tuition of 
 his ward, and the care and management of all his estate., But the 
 father of the minor if living, and in case of his death the mother 
 
 2 
 
14 
 
 THE LEGAL CONDITION 
 
 \ 
 
 while she remains unmarried , they being respectively competent 
 to transact their own business, shall be entitled to the custody* of 
 the person of the minor, and the care of his education. ” 
 
 A husband is always entitled to administration on his wife’s es¬ 
 tate ; but the Probate Court may grant administration of the hus¬ 
 band’s to his widow, next of kin, or both. 
 
 A father may appoint a testamentary guardian to his minor chil¬ 
 dren : a widow cannot by will appoint a guardian to hers. 
 
 The Supreme Court decided that a husband, under the new law, 
 could not form a business partnership with his wife. The legisla¬ 
 ture has since ordered that no married woman should carry on 
 business in partnership with any one ; thus taking a backward step. 
 
 Another remnant of the old law requires notice. A husband 
 could not make a deed of land to his wife, on account of her not 
 being a person. Now she has personal rights. But the courts in 
 Massachusetts still adhere to the old law. This leads, when the 
 husband wishes to give real estate to his wife, to the clumsy device 
 of his conveying the estate to a third person, who immediately con¬ 
 veys the same estate to the wife. 
 
 The present state of the law, as it bears on the marriage relation, 
 is chaotic and inconsistent. We have abandoned the old theory of 
 the common law, which regarded every married woman as incompe¬ 
 tent to take charge of her own person and property, and placed 
 her in perpetual tutelage to her husband, as if she were a non com¬ 
 pos or a child. But yet the statutes have only partially endowed 
 her with competency, leaving her free movement impeded at every 
 step. 
 
 The only remedy for this state of things is to create perfect 
 equality in every respect between husband and wife. Let her have 
 the same charge of her person that he has of his, the same indepen¬ 
 dent right to her property that he has of his. Let her have the 
 same legal right of making contracts, and doing all acts, that he has, 
 and that all maids and widows have. Let his independence be the 
 measure of hers. When either dies, let the claims of the survivor 
 on the estate of the deceased be the same. 
 
 So, in regard to suffrage and every other right and privilege of 
 men, let women be made equal. 
 
 The great difficulty to be overcome in effecting the complete 
 emancipation of women is, not that most men are unwilling to do 
 complete justice to the sex, or that the majority of women care 
 nothing for this object; but it is simply a superstitious dread lest a 
 change so radical should unsettle all the foundations of society, 
 and bring down the whole fabric in ruins. The history of the 
 
OF WOMEN IN MASSACHUSETTS . 
 
 15 
 
 great legal reforms which have been accomplished in our genera¬ 
 tion shows how idle is this fear. We need never doubt the prac¬ 
 tical operation of a great reform in a community like ours, where 
 it is based on a sound principle. Two great rules of evidence 
 pervaded the common law : the first, that no person could be a 
 witness in his own case; the second, that no person having a pecu¬ 
 niary interest *in the result of a suit, be it ever so small, could be a 
 witness for the party whose success would benefit him. The sound¬ 
 ness and importance of these rules were acknowledged by bench 
 and bar. They were, however, assailed with overwhelming logic by 
 Bentham and his followers. The result we see. Within a few 
 years, both rules have been very generally abrogated. Now, a per¬ 
 son can be a witness for himself, and any one interested in his 
 favor can also be a witness for him in any civil suit; and a person 
 charged with crime can testify in his own favor. Even a woman 
 can now testify for or against her husband, and he for or against 
 her. Though it was predicted that great evils would flow from 
 these changes, it is certain that truth and justice have been wonder¬ 
 fully promoted by them. 
 
 So the great and fundamental changes already stated, which 
 have recently been made in regard to the laws affecting married 
 women, violently as they were resisted, are now, as is admitted by 
 many of their former opponents, producing an amount of good which 
 it is difficult to over-estimate, and no evil. 
 
 The next step which is to relieve woman from all remains of 
 feudal oppression, and restore her to the equality with man with 
 which nature endowed her, is far less difficult than the one already 
 taken. 
 
 When men and women are made equals in the eye of the law, \ 
 and not before, shall we complete the foundations of a just common- l 
 wealth, which were laid by. the Puritans, and strengthened by the f 
 Declaration of Independence. Then we may hope, by the united 
 action of both sexes, to regenerate the republic, and make it an 
 example for the world and future ages. The experiment of a re¬ 
 public based on equal rights can never be fairly tried while one- 
 half of the adult population remains an inferior caste, with no voice 
 in the government. 
 
THE NEW ENGLAND 
 
 CONSTITUTION. 
 
 1. Believing in the natural equality of the two sexes, and 
 that women ought to enjoy ^the same legal rights and priv¬ 
 ileges as men ; that as long as women are denied the elec¬ 
 tive franchise they suffer a great wrong, and society a deep 
 and incalculable injury ; the undersigned agree to unite in 
 an Association to be called, — “The New England 
 Woman’s Suffrage Association.” 
 
 2. The object of this Association shall be to procure the 
 right of suffrage for women, and to effect such changes in 
 the law as shall place women in all respects on an equal 
 legal footing with men. 
 
 3. The officers of the Society shall be a President, Vice 
 Presidents, a Treasurer, a Corresponding and a Recording 
 Secretary, and an Executive Committee of not exceeding 
 fifteen persons, besides the President, Secretaries and 
 Treasurer, who shall be members ex officio . All the 
 officers shall be chosen at the annual meeting, to continue 
 
in office for one year, and until others are chosen in their 
 places. 
 
 4. Any person may be a member of the Association, by 
 the payment of an annual contribution to its funds, or a 
 life member by the payment of Twenty Dollars. 
 
 5. The President shall preside at all meetings of the 
 Society, or in his or her absence the senior Vice President 
 
 6. The Treasurer shall collect and take charge of the 
 funds, make all payments, and keep regular accounts, to 
 be audited by the Executive Committee. 
 
 7. The Recording Secretary shall keep the records; 
 and the Corresponding Secretary shall conduct the corres¬ 
 pondence of the Association. 
 
 8. The Executive Committee shall manage the business 
 of the Association, may elect honorary members, call 
 meetings of the Society, prepare petitions to the legisla¬ 
 ture, issue publications, and employ lecturers and agents, 
 and take any measures they think fit to forward the objects 
 of the Association, and may fill all vacancies that occur 
 prior to the annual meeting. 
 
 9. The annual meeting of the Association shall be held 
 on such day in the last week in May, in Boston, and at 
 such hour and place, and be called in such manner, as the 
 Executive Committee may appoint. 
 
OFFICERS 
 
 PRESIDENT. 
 
 JULIA WARD HOWE, Boston. 
 
 VICE PRESIDENTS. 
 
 William'Lloyd Garrison, Boston. 
 Paulina W. Davis, Providence, R.I. 
 James Freeman Clarke, Boston. 
 Sarah Shaw Russell, Boston. 
 
 John Neal, Portland, Me. 
 
 Lucy Goddard, Boston. 
 
 Samuel E. Sewall, Melrose. 
 
 Lidian Emerson, Concord. 
 
 John Hooker, Hartford, Ct. 
 
 Mrs. John Hooker, Hartford, Ct. 
 Harriot K. Hunt, Boston. 
 
 James Hutchinson, Jr., West Ran¬ 
 dolph, Vt. 
 
 Armenia S. White, Concord, N.H. 
 Louisa M. Alcott, Concord. 
 
 L. Maria Child, Wayland. 
 
 John Weiss, Watertown. 
 
 CORRESPONDING SECRETARY. 
 SARA CLARK, Boston. 
 
 RECORDING SECRETARY. 
 CHARLES K. WHIPPLE, Boston. 
 
 TREASURER. 
 
 E. D. DRAPER, Boston. 
 EXECUTIVE COMMITTEE. 
 
 Lucy Stone, Newark, N.J. 
 
 T. W. Higginson, Newport, R.I. 
 Caroline M. Severance, West New¬ 
 ton. 
 
 Francis W. Bird, East Walpole. 
 Mary E. Sargent, Boston. 
 Nathaniel White, Concord, N.H. 
 Richard P. Hallowell, Boston. 
 Stephen S. Foster, Worcester. 
 Sarah H. Southwick, Grantville. 
 Rowland Connor, Boston. 
 
 B. F. Bowles, Cambridge. 
 George H. Vibbert, Rockport. 
 Olympia Brown, Weymouth. 
 Samuel May, Jr., Leicester. 
 Nina Moore, Hyde Park. 
 
 Ex Officio: 
 
 Julia Ward Howe, Pres. 
 
 Sara Clark, Cor. Sec. 
 
 C. K. Whipple, Pec. Sec. 
 
 E. D. Draper, Treas . 
 
WOMAN’S SUFFRAGE TRACTS. 
 
 No. I. Henry Ward Beecher : Address at the Cooper Institute, New 
 York, Feb. 2, 1860. 
 
 No, 2. George William Curtis : Speech in the New York Constitu¬ 
 tional Convention, July 19, 1867. 
 
 No. 3. John Stuart Mill: Speech in the British Parliament, May 20, 
 1867. 
 
 No. 4. Thomas Wentworth IIigginson : “ Ought Women to Learn 
 the AlphabetFrom “The Atlantic Monthly/' February, 
 1859. 
 
 No. 5. Samuel E. SEWALL:-“The Legal Condition of Women in 
 
 Massachusetts. 
 
 For sale by C. K. WHIPPLE , 43 Bowdoin Street , Boston. 
 
 Price , 5 cents , singly ; $4 per hundred. 
 
 Single copies will be sent by mail on receipt of the price and 
 postage ; or three for 20 cents , free of postage . 
 
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