This book has been prepared for the purpose of presenting to the women of Iowa, in a brief and concise form, those laws which pertain to subjects in which they are most deeply interested, and about which there is a strong and growing demand for certain and accurate information.
In this age of general intelligence, when learning in some degree is so readily attainable, the maxim, that "Ignorance of the law excuses no one," has a measure of justice in it, which could not be claimed for it in former times, and it is most certainly true that, "As the subjects of law, if not as its makers, all ought to know enough to avoid its penalties and reap its benefits."
Every woman should understand the law of her own state concerning marriage, divorce, the care and custody of children, and the mutual rights and duties of husband and wife incident to the marriage relation. She should know something of the law of minors and guardianship, of administration, and descent of property, and her knowledge should certainly embrace that class of crimes which necessarily includes her own sex, either as the injured party, or as particeps criminis.
In the arrangement of this work, a very brief synopsis of the common law upon these subjects is given, as the principles of the common law underlie our entire statute law, and a knowledge of the former is absolutely essential to render much of the latter intelligible. The statute law of the state has been given in the exact words of the statutes, with but few exceptions, and the explanations or notes following these have been gathered from decisions of our supreme court. The references are to sections of McClain's Annotated Code and Supplement.
The design of the work is not broad enough to give to the most careful reader that knowledge of the minutiae of the law necessary in the application of its principles to particular cases and under a special state of facts. It is in nowise adequate, even though its contents should be thoroughly mastered, to make every woman her own lawyer, in matters where she would otherwise require legal advice, but it is hoped that its statements are sufficiently plain and free from technical phraseology and legal terms, that even the casual reader may readily comprehend them, and be able to gain a general understanding of the law of our state upon these subjects.
J.L.W.
Des Moines, Iowa, May 1894.
Until a comparatively recent period the laws of England in force at the time of the independence of the American colonies, relating to married women, the mutual duties of husband and wife, their property rights and the care and custody of children, were everywhere in force in this country except in those states which were originally settled by other nations than the English.
The agitation of the last fifty years, caused by the demand for equality in educational opportunities and in professional, business and trade relations, as well as for the legal and political recognition of women, has brought about great changes in these laws, until they are in many instances almost entirely superseded by statutory enactments more in accordance with the spirit of justice and in greater harmony with the requirements of a higher form of civilization. In many states they have reached a condition in which the legal status of husband and wife is nearly, if not wholly, one of equality.
It must always be borne in mind, however, that the common law is the foundation upon which almost the entire structure of our American system of jurisprudence is based, although it is claimed that it has only been recognized by our courts so far as it has been "applicable to the habits and conditions of our society and in harmony with the genius, spirit and objects of our institutions." As it became apparent from time to time that it was not thus applicable, or where it failed to meet the requirements of the changed conditions of society the strictness of its rules was relaxed by giving to them a broader construction, or, when this could not be done, they were modified or entirely changed by statute.
Marriage was regarded by the common law as a civil contract and might be entered into legally by a boy of fourteen or a girl of twelve years of age, provided they were under no legal disability to contract marriage. This was called the age of consent, or discretion, and a marriage contracted prior to this time was inchoate only, and might be repudiated by either party upon arriving at the legal age. If one of the parties was above and the other under the required age, the marriage might still be disaffirmed by either. If after reaching the age of consent the parties continued to live together as husband and wife, this would be regarded as an affirmance of the marriage.
The mutual consent of the parties themselves, followed by cohabitation, was sufficient to constitute a legal marriage, without the observance of any formalities. The formal ceremonies provided by statute for the celebration of marriages, and the penalties imposed upon clergymen and others who married those who had not complied with these formalities, were solely for the purpose of providing a convenient and certain proof of marriage, should it be afterwards necessary to establish that fact by evidence, rather than to invalidate marriages which would otherwise be legal.
Having established the marriage relation, it could only be dissolved by death or divorce granted by act of parliament, or, in this country after the declaration of independence, by act of legislature. No absolute divorce could be granted for any cause arising after the marriage, but a separation might be decreed in case of adultery by either party.
By the rules of the common law, the person and property of women were under the absolute control of their husbands. The maxim, Uxor non est juris, sed sub potestate viri, "a wife is not her own mistress, but is under the power of her husband," is but an expression of the actual legal status of a woman from the instant she entered the matrimonial state, until released therefrom by death or divorce.
Marriage was the act by which she ceased to have a legal existence, by which, we are told, her very being became incorporated or consolidated into that of her husband. From the time her identity became thus merged, she was presumed by the law to be under the protection and influence of her husband, to be so absolutely and entirely one person with him, that she had henceforth no life in law apart from his.
The legal fiction of the unity of the persons of husband and wife dates back to feudal times, and may, perhaps, have been a necessity of the age and of the peculiar social and political systems of that period. Like many another law having its inception in a sincere desire to secure the greatest good to the greatest number, and apparently necessary for that purpose at the period of social development which gave it birth, it existed for centuries after it had ceased to result in any benefit or afford any protection, and after the reason for its being had passed away and been forgotten.
We are told that at marriage the husband "adopted his wife and her circumstances together." He might exercise his power over her person by restraining her of her liberty in case of gross misbehavior, or by giving her moderate chastisement in the same degree that he might administer correction to his children. An early decision of one of our state courts interpreted this to mean that a man might whip his wife with a switch as large as his finger, but not larger than his thumb, without being guilty of an assault.
Husband and wife being one person could not contract nor enter into a business partnership with each other; neither could one convey property to the other without the intervention of a third party. The wife was incapable of receiving a legacy unless it was willed to another person as trustee, for her use and benefit, and if a legacy were paid directly to her, the husband could compel the executor to pay it again to him.
The wife had no power to contract a legal debt nor to bind herself by any kind of an agreement, neither could she make her husband liable for any debt or contract, except for necessaries. These, the husband was under obligation to provide, and in contracting for them, the law assumed that the wife was acting as his agent.
She might release her right of dower in lands of her husband, but only when examined separately she acknowledged that the conveyance or release was not secured by his influence or coercion.
Her earnings though acquired by her individual labor and in a business separate and apart from her husband belonged to him, and he could collect them by action. This was the law though husband and wife were living apart. They could be subjected to the payment of his debts, by his creditors, and if he died without a will they descended to his heirs as other personal property. They were not considered the property of the wife, even in equity, without a clear, express, irrevocable gift, or some distinct affirmative act of the husband, divesting himself of them and setting them apart for her separate use.
A wife had no power to convey her real property, nor could she devise her personal property by will, without the consent of her husband.
The husband had the legal right to establish his home or domicile in any part of the world where "his interests, his tastes, his convenience, or possibly, his caprice might suggest," and it was the wife's duty to follow him. If she refused to accompany him, no matter upon what ground she based her refusal, she was guilty of desertion. A promise by the husband before marriage as to the establishment of the place of residence of the family, created a moral obligation only and was a mere nullity in law. Whenever there was a difference of opinion between husband and wife in regard to the location of the common home, the will of the wife had to yield to that of the husband. This law of domicile was based upon the grounds of the "identity of the husband and wife, the subjection of the wife to the husband, and the duty of the wife to make her home with her husband."
Neither husband nor wife was competent as a witness to testify either for or against the other in civil or criminal cases.
The husband was entitled to the society and services of his wife and he might bring an action for damages against anyone who harbored her, or persuaded or enticed her to leave him or live separate from him. If injuries were wrongfully inflicted upon her, two actions might be brought against the party responsible for the wrong, one by husband and wife for the personal injury to the wife, and one by the husband for loss of the wife's services. In either case, the amount recovered belonged to the husband.
The wife could neither sue or be sued unless her husband was joined with her in the suit. A judgment recovered against her alone was void, because she was unknown to the law apart from her husband. One entered in her favor became the property of her husband.
The consent of the husband was necessary to enable a married woman to act as executor, administrator, guardian or trustee.
The husband became responsible for the maintenance of the wife according to her rank and station, and if he failed to make suitable provision for her, tradesmen might furnish her with necessaries at her request and could collect payment from the husband. Liable for anti-nuptial contracts. He was liable for all of her debts contracted before marriage, and this was the case, though he may have received no property with her. He was responsible for certain wrongs committed by her after marriage, such as libel and slander, and judgment could be recovered against him. If a wrong were committed jointly by both, action might be brought against the husband alone. Torts of wife. When a judgment was recovered upon contract, or because of the wrongful act of the wife, if the husband failed to pay it, he might be imprisoned.
After the death of the husband the law gave the widow a right to remain forty days in his house, during which time her dower might be assigned. This right was known as the "widow's quarantine."