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Story of the passage of the Married Woman's Property Rights Act (Scroll down to the section named Married Woman's Property Act.)

Remarks on the Bill to Restore to Married Women "The Right Of Property," as Guaranteed by the Constitution of the United States
(1837)

Judge Thomas Herttell

R E M A R K S

COMPROMISING IN SUBSTANCE

JUDGE HERTTELL'S ARGUMENT

IN THE

HOUSE OF ASSEMBLY OF THE STATE OF NEW YORK

IN THE SESSION OF 1837

IN SUPPORT OF THE BILL

TO RESTORE TO MARRIED WOMEN

"THE RIGHT OF PROPERTY,"

AS GUARANTEED BY

THE CONSTITUTION OF THE UNITED STATES

NEW YORK
PUBLISHED BY HENRY DURELL

1839

ADVERTISEMENT

THE subjoined remarks, comprising the legislative speech of their author, on the bill proposing to restore to married women their right of property, were committed to writing at the request of the editor of a daily journal in this city, for publication in h is paper. The manuscript being found too long to be published entire in a single sheet of daily print, and dividing it into numbers and publishing it in detached parts, being deemed unpropitious to the effect of the argument, its appearance in print has been delayed until the present time.

Convinced as the undersigned and all others are who have read the arguments, that the unconstitutionality of the existing practice, by which married women are deprived of their right of property without due process of law, is irrefutably demonstrated in the subjoined pages; that the great injuries of such privation is clearly illustrated; its numerous train of mischievous consequences and their oppressive and immoral results are therein duly portrayed; that the utter absurdity of the legal pretenses for the adoption of the existing law is simply proved; the futility of the objection to its repeal fully exposed; and believing as we do, that to restore to married women the right of property, as guaranteed by the provisions of the Constitution, would be productive of a greater improvement in the political and moral conditions and happiness of the community, than any other single act of legislative justice, the undersigned have been induced to publish the whole argument in the present form for gratuitous distribution and public consideration.

Though a few gentlemen, advocates of the proposed reform, have borne the entire expense of stereotyping and publishing the present edition of the work, contemplating to derive themselves no pecuniary remuneration, they think they have good reason to hope that many others, alike impressed with the importance of the subject, and are willing to aid the cause of political and moral improvement by the means indicated in the argument, will purchase copies for gratuitous distribution; the more especially as such persons are hereby assured that the pamphlet will be furnished to them at cost, and the money which shall be derived from such source, will be exclusively applied to the publishing and gratuitous distribution of future editions of the work.

Henry Durell, No. 478 Pearl Street
        E. Meriam, No. 178 West Broadway or Chapel Street

The

RIGHT OF PROPERTY

of

MARRIED WOMEN

Having brought in the Bill now under consideration it is doubtless expected that I will not only state my motive for so doing, but assign also some of the reasons why it ought to become a law of this state. This I shall endeavor to do; and with full confidence that the facts and arguments by which I shall advocate the bill, ought to recommend it to the favorable consideration of the House.

I presume it will be deemed neither out of time or place, nor totally irrelevant nor uninteresting, to state briefly the origin and history of the bill now before this committee¹.

At the last session of the Legislature, I made an attempt to bring the subject up for legislative action. But it was too late in the session to render it certain that the House would reach the order of business under which it could be regularly and of right offered for consideration. [5] I therefore asked the unanimous content of the House to introduce a resolution for the appointment of a select committee, to inquire into, and report on, the subject. So kind was the feeling in favor of the request, and so favorable the opinions to the object of inquiry, that but one member of the House was known to be averse to this resolution. But one was enough to prevent its introduction out of the regular order of business, and thus to avert legislative action on it at that time. With a view to avoid a like occurrence, 1 brought in the bill now under consideration, at an early day of the present session, with a hope to insure a full discussion of its merits, and to obtain the deliberate action of this House upon it. But unfortunately it was referred to the committee on the judiciary. I say unfortunately, because that committee were pressed and 'oppressed with many important matters, and hence delayed a report on this bill so long as to preclude any probability that it would be reached on the general orders of this session. The House therefore by unanimous consent permitted it to be taken from the general orders and referred it to a select committee to report complete. That committee reported the bill with amendments: The report was agreed to, the bill read and ordered to be engrossed for a third reading; and now the question is "Shall the bill pass?"

It is doubtless obvious to those who have paid due attention to the provisions of this bill that its primary principle is to preserve to married women the title, possession, and control of their estate, both real and personal after as before marriage ;—and that no part of it shall inure to their husbands, solely by virtue of their marriage. Thus to protect it from injury and waste by means of the unprovident, prodigal, .intemperate, and dissolute habits and practices of their husbands;—to save it from loss through the husband's misfortunes and crimes, and in short to make each, and the properly of each exclusively, answerable for his or her own misconduct.

The law by which the property of females when [6] married, is taken from them, and transferred to their husbands respectively, without any will, deed, or other written or express conveyance, is, what, in forensic parlance is usually called COMMON LAW; which in our own country, is understood to mean, the common law of England.

It is no sufficient recommendation of that law, that it originated in the dark ages; — in times of comparative intellectual ignorance, debasement and human vassalage, under an absolute and despotic feudal government and the auspices of mercenary men who were interested in its injustice. But, however entrenched by political power, sustained by privileged orders and sanctified by time; however congenial with the spirit and principle of a government constituted of a heterogeneous mixture of political and ecclesiastical usurpation; such precedent is no sufficient reason why the government of this State should follow their lead;—sanction their principles,— adopt their measures;—repeat their errors—and shall continue to sanctify and perpetuate their wrongs.

Though the law in question was in being, in the colony of New York ;—and doubtless owing to the influence of example, habit, custom, and the absence of any question or inquiry into its origin, its history, its character, its principle, or its unjust and mischievous operation, it was permitted to remain undisturbed during the troubles of the revolutionary conflict subsequently sanctioned by legislative enactments predicated on its supposed tacitly-admitted existence ; and was thus suffered subsilentio to be fastened on the body politic of our free republican government of rational liberty, equal rights and just laws; still I have no difficulty in believing, that when public attention shall be duly directed to the subject, the true character of the law in question will be fully exposed —its incompatibility with the principles, spirit and object of the political government of this state, will be made manifest-its inconsistency with the express provisions of the Constitution, will be clearly developed; and if mischievous influence on the rights, morals, happiness, [7] and well being of the community will be found so great and obvious as to incur public censure and insure merited condemnation. In truth,, I doubt not that the death knell of that iniquitous law has already been struck, and that its funeral dirge will, e'er long, be heard from our legislative halls to the remotest confines of the stale, and the "vile thing" consigned to an oblivious grave.

I will not slop here lo inquire into the reasons, the policy or pretences, on which the law in question was founded in the country, the sample of which we followed in adopting it. These will receive due consideration in their proper place, and, I trust their fallacy and falsehood will be clearly and fully exposed. It will be more accordant to the purpose of the proposed discussion, and possibly more interesting to the people, and useful to the cause of political rights and moral justice to show—

1st That the common law of England, by which the property of a married woman is taken from her and given to her husband, is not and never was the law of this State; and therefore —

2d That such parts of our Revised Statutes, of which such common law constitutes the predicate, are unauthorized by any power contained in the Constitution ; and hence are acts of legislative usurpation.

It needs hardly to be mentioned that the common law in question, besides divesting married women of the right to private property and giving it to their husbands, also vest the latter with such absolute and irresponsible power over the person of the wife, as render her the abject and servile slave and "servant" of her "legal lord and master!"

With a view to a clear understanding of these truths, and of the arguments by which to maintain the ground we shall occupy in the proposed discussion, it may be well to advert to some of the existing laws connected with the subject under consideration.

By virtue of existing laws, unmarried females can acquire, manage, and dispose of their estate both real and personal, and can exercise all the rights and powers reactive thereto, as are possessed and exercised by men. [8]

This, is as it ought to be. The doctrine, or just and moral principle of "equal rights" cannot consistently, and does not righteously justify laws, giving to one sex powers and privileges relative to property which are denied to the other. The "natural and inalienable right of life, liberty, and the pursuit of happiness," is common to both sexes; and the law relative to the acquisition, possession and the management of property by unmarried females is in perfect harmony therewith.

Not so with married women. Existing law divest them of rights which are retained and exercised not only by the male, but by the unmarried portion of the female sex. By marriage, the wife's personal property, whether acquired by will, deed, inheritance, or her own industry, becomes vested in her husband, and she is as fully deprived other title to it, and her right to use or dispose of it, or to control the use and management of it, as if she instead of being married, had been sold a slave to a master.

Nor is she divested of her personal property only; she is also deprived of the use of her real estate; the rents, issues and profits of which, go to the husband during coverture; and while they both live, the wife's right to receive the income of her own real estate, or to control its expenditure, is wrested from her. Nor do the legal wrongs consequent on her marriage end here. If during coverture, issue be born alive, and inspire but single breath, and the mother survive her infant but moment; the income of the wife's real estate goes to the husband during his life, to be appropriated as may be, to the use and benefit of any subsequent wife or wives and children he may have, or be spent and waited as it frequently is, in riot and dissipation.

Again—a married woman may inherit property; her parents or others to whom she may be heir at law, dying in testate. In this case also, being totally unprotected, she becomes a victim to law and matrimony: and her rights, liberty, and property, are all involved in the sacrifice. Immediately after marriage, the husband may sell [9] all the personal property of his wife, absolutely; and his life estate in her real property, and thus divest her of the benefit of the whole. After thus stopping her of her property; he may both covertly and openly abuse her with impunity; or may abandon her to her fate, to fare and suffer as may happen, with little means and less hope of redress. In truth all she can legally claim from him, is a bare subsistence; the means of obtaining which are such as most women with the usual delicate feelings of those above the lowest grade, would revolt from pursuing against a husband, as bad as he may happen to be; and if injury, poverty, and suffering, should dispose her to appeal to the law for redress, she is in most cases unable to do so. It is the law that has produced her injuries and occasioned her sufferings. It is the law that has divested her of her rights and deprived her of her properly, and placed it in the hands of her antagonist; to whose commands it compels her to implicit obedience, and enjoins patient submission to the almost absolute power with which the law also vests the husband over the wife. He therefore, more than any other man, has it in his power to oppose, annoy, and oppress her with impunity. Thus deprived of her rights, her liberty, and her property, and left destitute of the means of seeking redress in a judiciary court, with any rational chance or hope of success; then to tell her, that she is entitled to a subsistence, and can obtain it, if she will alone, empty-handed, and powerless, engage in a legal conflict against an antagonist to whom the law has given all her property and nearly unlimited authority over her person, is to tantalize the helpless, to add insult to injury, and a cruel mockery of justice.

Here it may be proper to remark, that it appears by the caption affixed to that part of our revised laws which treats on Trusts and Powers, that the Revisers started with the intention of prescribing and defining the trusts and powers relative to personal as well asreal estate². Yet there is not to be found in our Statute book a solitary [10] provision by virtue of which a trust can be legally created for personal property³. No trusts but for lands and the rents, issues, and profits, thereof, are legal.

If therefore an unmarried female, shall have property, either real or personal, conveyed to her by deed, will, or other instrument containing a power to control and dispose of it independent of any husband she may subsequently have; and in pursuance of such power shall have made her will in favour of whom she shall have deemed proper; yet if she subsequently marry, the power and her will becomes void, the property becomes an absolute estate, subject to the (unjust) legal marital rights and powers of her husband; and the wife becomes divested of it as herein before mentioned⁴. Perhaps I ought rather to say, that the right of a female after marriage, to execute a trust and power created before marriage, is so very questionable, that it is seldom hazarded and never attempted by any well informed and discreet parent, to secure property by such means, to a daughter and her children, with a view to protect it from loss or waste through the misfortunes of a good, or the misconduct of bad husband.

Further; -If a parent given a daughter personal property either before or after her marriage, and the husband die without issue and without having disposed of such property; the existing law gives one half of it to the husband's father or other heir-at-law; who takes from the widow one half of her own property; even her household furniture, given her by her parents as an outfit on her marriage!!!

Comment or animadversion on such a law seems entirely [11] superfluous. But I fed constrained to remark, that if it is unjust and immoral for one person to take the property of another without or against the consent of its owner, and without remuneration; .the taking of property and especially from a widow, as abovementioned, is as palpably unjust and grossly immoral as highway robbery. Both actions, if estimated by their demerits and called by their right name, are equally felonious. The most essential difference between them, is, that the law makes the latter an indictable offence and the former not. It proscribe" the one, and prescribes the oilier. And a law which tolerates, justifies, and prescribes an unjust and immoral act, is as unjust and immoral as the action it upholds.

Under our revised laws a married woman may acquire properly (real estate) by deed, will, or other instrument, containing a power to control, manage, and dispose of it without the interference of her husband. Yet she is left even in this case, virtually and almost entirely unprotected in the enjoyment of her rights in reference to such power and such properly. The existing law gives so much and such absolute power and advantage to the husband over the wife, that in the hands of a bad and mercenary man, lie can by persuasion, management, intrigue, threats and deception, wheedle her into a compliance with his views; or by a thousand other secret means by which to plague, oppress, and render her unhappy and miserable, constrain her to convey her properly to a third person for her husband's benefit. If reconveyed to her husband, or if sold and converted into personal estate, it will, if not expended nor wasted, descend to his heirs, and not to the heirs of its just and equitable owner!

I have said, that by a provision of our revised laws relative to trusts and powers, a married woman can acquire property (real estate) by deed, will, or other instrument containing power to control, manage, and dispose of it, by wilt or otherwise, without the interference of her husband. I ought to have added, that if the husband dies, [12] and the widow marry again, the trust and power, and the will, if she had made one, by virtue thereof, become null and void, the estate becomes absolute and subject to the latter husband's marital rights, though not to those of his predecessor. This discrepancy in the rights and powers of the two husbands, is doubtless the, effect of some logical error. I have never heard satisfactory reason to justify it. The absurdity of such discrimination in favour of one husband, giving him marital and legal rights and powers not possessed by his predecessor, is as obvious as its injustice, and for which the bill I am advocating provides a remedy.

By the revised statutes as at first enacted, a trustee of property intended by parents for the benefit of their children could apply it only to their support and education. This was subsequently altered, so as to enable the trustee to apply it to the use of the beneficiary. If the trust be for the use of a married woman, she can have neither pins, needles, hose, linen, nor any other article but such as the trustee shall be satisfied are requisite and necessary, and which he must buy and furnish for the wife of another man! No father could wish a daughter to lie placed in such an unpleasant predicament; nor would any husband, good or bad, nor any wife, be satisfied with such an arrangement. Yet such is the only trust which can be created, by which effectually to place the wife's property out of the reach of her husband; and the only way by which it can be executed, in order to get round and evade the iniquitous operation of the law under animadversion, and to rescue a married woman from becoming a victim of its injustice. And even then it must be borne in mind that such trust must be for the income of real estate, because no trust for personal estate can be created under existing laws. Money, bonds, notes, or any other personal property, as before remarked, must all go to the husband, be he worthy or unworthy; and there is no way to prevent it, short of totally depriving a daughter of her patrimony. Barely to say, "this is not right," is too lame and insensitive [13] an expression of disapprobation of the law just quoted. Anxious as parents naturally are, for the welfare and happiness of their offspring, and desirous as they usually are and ought to be, to secure to their children a sure and sufficient subsistence, their affectionate and benevolent feelings must involuntarily revolt against a law, which, both in its principle and its operation, gracelessly deprives parents of the means by which to protect -their children, particularly daughters, in the use and enjoyment of their patrimony, and thus to secure them and their children against poverty and want, arising from the misfortunes of a good, or the misconduct of a bad husband.

The provisions of the revised statutes just noted, being based on, or having resulted from the continued existence in this state, of the common law of England, by which married women are divested of the right of holding private property, as before stated, it seems almost unnecessary to say, that if that common law was repealed or abrogated, all those revised laws made in conformity thereto, and all the evils produced by them, would necessarily cease. I presume it will be admitted that the same consequences would follow, were I to show, as I now shall proceed to do, that the common law of England, by which the property of married women is taken from them, and given to their respective husbands, is not and never was constitutional law in this state.

It will doubtless be urged in opposition to the position just slated, that by the thirteenth section of the seventh article of the constitution of this state, "all such parts of the common law, and acts of the Legislature of the colony of New York, as together did form the law of the said colony, on the 19th day of April, 1775, and the resolutions of "the Congress of the said colony, and of the convention of the state of New York, in force on the 20th day of April, 1777 which have not since expired or been repealed or altered, shall be and continue the law of this state," &c, and that the law relative to [14] the property of married woman, as before mentioned, being a part of the common law of England, was, in virtue of this provision of the constitution, adopted law of this state.

To all which I answer, taking the concluding provision of the above, in part, quoted section of the constitution as my authority, that "all such parts of the common law, and such of the said acts and parts thereof, as are repugnant to the Constitution, are hereby abrogated."

It now devolves on me to show that the common law of England, relative to the rights and property of married women, is "repugnant to the Constitution," and therefore " abrogated" by the very section of that instrument relied on to sustain it. This I shall proceed to prove.

I take it for granted, because the fact will doubtless be conceded, that the government of this state was instituted by the people; and that the people, therefore, are the sovereign source of political power in the state. It is equally clear, that the government being instituted by the people, it must necessarily have been intended for the common benefit of all its constituents; and hence all within the sphere of its power, are alike entitled to the protection and security contemplated to be derived from it. The preservation and enjoyment of the rights possessed by each and all its constituents; is the primary principle and legitimate purpose of political government.

That "all men are born free and with equal right⁵", is an admitted maxim in the moral and political creed of all advocates and friends of free government. That this truth is meant to apply exclusively to the male sex, will not be urged by any who have a due regard for their reputation for common sense. "All" women "are" also "born free and with equal right;" "among which are" not only the right of "life, liberty, and the pursuit of happiness,"1 but also the right of private property. [15]

Those rights are possessed by all, each and every citizen; and of course by females equally with male citizens. The right of private property is not exclusive with the male sex, The existing law itself, admits the right of property of unmarried females to be the same as that of male citizens; and the right to be protected by the government in the exercise and enjoyment of all the rights above mentioned,. is common both to male and female citizens. It follows as a necessary consequence, and the conclusion cannot be illuded, that the right of private property, is not only possessed by females equally with males, but by married equally with unmarried women. If therefore a law violating the rights of private property possessed by men or unmarried women, would be wrong, a law violating the rights of private properly possessed by married women cannot be a right. If a law by which the private properly of men or unmarried women be taken from them and given to another without their free and voluntary consent would be a violation of their rights of private properly; no law can be just or justifiable by which the properly of married women is taken from them without their consent and given to another. Such it is true is the "common law of England," but being incompatible with the exercise and enjoyment of equal rights, repugnant to the spirit and principles of our free political institutions, and to the provisions of the Constitution, and totally irreconcilable with them, is not, and never was adopted as common law in this state.

In further illustration of the foregoing conclusion, while on this branch of my argument, I will offer a few additional observations.

Every person of adequate capacity, whether in savage or civilized society, are bound by natural obligations to sustain themselves and their helpless offspring, and hence are naturally and justly entitled to the avails of their own labour or industry, and all other property honestly acquired. Consequently to lake their property from them without their free and voluntary content, is [16] naturally and radically wrong; a violation of the principles of morality and justice. To take property clandestinely without the consent of the owner, constitutes the crime of theft, which none will justify. To take property coercively, and against the consent, and in presence of the owner, is robbery, which all will promptly condemn. The exercise of such power, by an individual possessing a majority of physical strength, against another possessing a minority of resisting force, would be alike criminal. And though two or more unite their force against a minor number, the wrong and injury is the same; it cannot change the character of the act nor lessen its moral turpitude. The plurality of wrong doers only augments the number of criminals, and increases crimes; but does not justify or palliate an immoral act. A majority therefore can possess no moral right to commit against a minority, any act which would be naturally and morally wrong, if committed by one individual, possessing a majority of physical or bodily power, against another individual possessing a minority of repelling force. It follows, that human power, whether exercised by one or a plurality of persons, against another, or by a majority against a minority cannot change the character of an immoral act, nor justify it, nor even palliate the wrong and injury inflicted on its victim. If the tacit union of a plurality or a majority of numbers, cannot sanctify a wrong against an individual or a minority, an express verbal agreement by, or among the majority, for a like purpose, or producing a like effect, cannot be right. Nor can a written contract made by the majority, and based on the same principle, or producing the same result, in the least mend the matter. It would be a contract contra bonos mores, based on an immoral consideration, and would not authorize an act violating the natural or inalienable right of any one, or any number of persons. So neither can the contract or compact, tacit, oral, or written, called political government, though sanctioned by a majority, furnish any righteous or sufficient authority to do an immoral act, or to violate a [17] natural or an inalienable right of a minority, or of any individual member of the human family. That which, in the nature of things, is wrong, the assent of the whole human race cannot make right; nor can the concurring "force of arms " or "force of law," justify the violation of the principles of morality, justice, or natural right. The taking, therefore, without the consent, of the owner of private property, be it the avails of the labor of the possessor, or otherwise honestly acquired, and giving it to another; or the obliging one person to transfer his or her property to another individual, for any real or supposed consideration fixed by law, and to which the owner of the property has no power to exercise his or her right to object, is so radically wrong, that the constituents of government have not legitimate power to do it; and hence government cannot possess a power, which its constituents not possessing, cannot delegate. So far therefore is government from possessing the power in question, that, to protect equally each and every person within this state, in the right of "life, liberty, and the pursuit of happiness," including also the right of private property, are the primary or principal objects or purpose of the government. How then can it be said with any colour of truth or logical consistency, that the common law of England, which, while it leaves men and unmarried women in the full and unimpaired exercise of the right of private properly, divests married women of the equal right to theirs, has been adopted in this state, in direct and palpable opposition to natural right, the spirit and principles of the government, and the primary and paramount objects for which it was instituted.

Nor is the common law of England just mentioned, more consistent with the provisions of the Constitution, than with the principles and objects of the government of this state.

"No power," says the bill of rights [sic], "shall be exercised over the people of this state, but such as is derived from them." The object of a written Constitution [18] is to prescribe and define the powers delegated by the people to the government, and. also the manner and means by which those powers, shall be executed. The Constitution is the only legitimate evidence that the people have vested the government with any power; and is also the paramount proof of the nature and extent of its authority. Such as is therein expressly given, and such as is indispensably necessary to the exercise of the authority expressly given, they have. Such as are not so given, they have not, and the exercise by the government of powers not delegated by the people, are acts of political usurpation.

The Constitution authorizes but in one instance, the taking of private property without the consent of the owner; and that only when it shall be required for "public use;"⁶ that is, when taken, paid for, and used by the government or public. There is no power, either express or implied, given in the Constitution, to authorize the government to take, or to authorize the taking, of the private property of one person, and giving of it to another, (either with or without compensation,) without, or against, the free and voluntary consent of the owner; or coercively to deprive any person of their natural or political rights, and subject them to the arbitrary and absolute power of another. Nor have I ever heard any person so reckless of the principle, of justice and morality as to advocate the antithesis of the positions mentioned above mentioned. In truth, in all the numerous legislative discussions, wherein constitutional objections have been interposed against legislative authority, to invade the rights of private property, the power of the government to enact any statue law, by which to take the property of one citizen, and give it to another, has been often utterly and unanimously disclaimed, as being unjust, arbitrary, tyrannical, and unwarranted by any power delegated by the people to the government, or any provision of the Constitution to sanction it.⁷

The government and Constitution were intended to secure the equal rights of all their constituents; and hence to preserve the rights of private property equally to all, within the sphere of their influence—-female, equally with male citizens, and the married equally with the unmarried, of one sex equally will the other. The Constitution neither makes or authorizes the government or the Legislature to make any exception or discrimination. All have the same or equal rights to posses, manage, and dispose of their private properly; and all and each alike the right to be protected in the exercise and enjoyment of the rights of private properly. If the government has no Constitutional authority to enact a law, operating to impair the rights of private properly of one person, or one class of citizens, they have none, lo impair the rights of private properly of another person, nor of any other class of individuals.

As little constitutional authority, therefore, has the government to adopt the common law of England, or of any other country, by which lo divest married women of their properly, and give it to their husbands, as it has to enact a statute law by which to divest any other citizen of their property, and vest it in another individual. What the Legislature cannot do directly, it may not do indirectly, by adopting the common law of England.

Surely it will not be contended that the government have any constitutional authority to take, under any pretence, the private property of a male citizen, married or unmarried, and give it to another, however near a relative. No will it be insisted that they have any constitutional warrant coercively to divest an unmarried female of her property, and vest it in another, either relative or stranger. So neither is there any such constitutional legislative right coercively to dispossess a married woman of her property, and transfer it even to her nearest relative. It cannot be transferred to her children [20] during her life, without her express, free, and voluntary consent; and no better, constitutional, just, or legitimate right have the Legislature to transfer the wife's property to her husband, merely because she is a wife, than there is to authorize them coercively to transfer it to her children, because she happens to be a mother. The invasion of the rights of private property is no more obvious or flagrant in the latter, than in the former instance; nor is there any more or better constitutional authority coercively to divest a married woman of her property in the one case than in the other; and they are both equally as destitute of constitutional sanction, as it would be to enact a law transferring the property of a married man to the wife; or the property of an unmarried man to his concubine; or the property of an unmarried woman to her paramour; or the property of any of these to their natural offspring. Not possessing constitutional power, except in criminal cases, to "deprive any member of this state, of any of the rights and privileges secured" by the Constitution "to any citizen thereof;" nor vested with authority to take, or to authorize the coercive taking, the private property of one person, for the private use of another, the government has no more right to do so in one case than another; and hence, in the case of a married woman no more than in the case of an unmarried woman.

If the Constitution is the safeguard and guarantee of the rights of private property of unmarried women, it is equally so of the rights of private property of married women. If the government possess no constitutional authority, coercively to deprive a female of her property before her marriage, they are as destitute of just and legitimate authority to do so after her marriage; inasmuch as a civil contract between two private individuals, cannot give additional powers to the government, alter the provisions of the Constitution, nor extend the jurisdiction of the Legislature. These are all the same, at all times, and equally so in the case of female as of males, after as before marriage. [21]

Males and unmarried females, as before remarked, are not exclusively entitled to the right of private property, nor exclusively entitled to be protected in the exercise and enjoyment of that right. Married women, equally with males, and unmarried females, possess the right of "life, liberty, and PROPERTY," and are equally entitled to be protected in their right of property, as in their right of "life and liberty;" and to deprive them of either of those rights for any other cause, or by any other means, than such as would be equally applicable to men and unmarried women, is as obvious and gross a violation of the just and moral principle of equal rights, and equal protection, which constitutes the objects of free government, and the provisions of the Constitution of this state,⁸* as it would be to deprive male or female, married or unmarried, of life or liberty, without having done any wrong; without the constitutional " law of the land;" without "indictment or presentment of a grand jury;" without the "judgment of their peers," the "due process of law," without which, " no person" can be deprived of "life, liberty, or PROPERTY."

As a further illustration of these truths, let us see for a moment how the adverse doctrine would operate, and where it would lead.

If by virtue of the 13th section of the 7th article of the Constitution, the government have authority to adopt the common law of England, by which to divest the wife of her properly, and transfer it to her husband, they have equal constitutional warrant to repeal, alter, and amend that law; and hence have authority to enact a law transferring the husband's properly to the wife, with power to manage and dispose of it as she might please. And were they to attempt to enact such a law, on what ground could it be proved an unjust and unauthorized violation of the right of private properly, incompatible with the spirit and principles of our government, and inconsistent with the provisions of the Constitution [22] but by the very facts, principle, and arguments, by which I have demonstrated the existing law to be of the like character?

I am aware of the reasons, or rather pretences which form the predicate of the "common law of England," on which we are animadverting; and that they will probably be reiterated in favour of the adoption and existence of that law in this state; and shall give them in due time, a respectful consideration, and expose their absurdity, fallacy, and injustice. Previous to which, however, I shall proceed to show mere explicitly than I have already done, that the "common law of England," by which married women are deprived of the right of private property, is REPUGNANT to the express provisions of the 1st sec. of the 7th art. of the Constitution, to which I have before alluded, and is therefore abrogated by the 13th sec. of the 7th art. of the Constitution, by virtue of which it is attempted to justify and sustain it.

The 1st sec. of the article just mentioned, provides, that "no member of this state shall be disfranchised or deprived of any of the rights and privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers."

Is not a female a "member of this state," as well as a male? Is not a married woman as important a member of this state, as an unmarried woman? And is not the phrase "no member of this state'' as applicable to female as to male members of the state? and to married as well as unmarried women? And is it not equally applicable to all, each, and every, of the "members of this state?" and when the above mentioned word, are immediately followed by, and in connexion with, the words "shall be disfranchised or deprived of the rights and privileges" does it not refer as well to the rights of females, as of males, and to the rights of the married, as well as the unmarried members of the state? And are not the rights, and all the rights of all these members of the state, equally included in the words "no member of this state shall be disfranchised or deprived [23] of any of the rights and privileges?" &.C.—Can there be even the shadow of a doubt on this point, when those words are immediately succeeded by, and connected with, the words "secured to any citizen thereof?" Are not the rights of life, liberty, the pursuit of happiness, and the right of property among others, intended by the foregoing words of the Constitution, to be secured alike to the male and female members of the state? and to the married as well as the unmarried "members" or any other "citizen thereof?" Are not the rights of private property, as well as the rights of life, liberty, or any other right, intended by the 1st sec. of the 7lh art. of the Constitution, to be secured to the male citizen or members of the state? and is not the right of private property, as well as the right of life, liberty, &c. intended to be secured to the female, as well as male members or citizens of the state? and is not, there fore, the right of private property, intended by the above provision of the Constitution, to be secured equally to married female members of the state, and as inviolably so, as to "any (other) citizen thereof," either male or female?

Nor can "any citizen" or any "member of the state," whose rights are intended to be secured by virtue of the 1st. sec. of the 7th art. of the Constitution under consideration, "be deprived of any rights secured" thereby "to any citizen, USLESS BY THE LAW OF THE LAND, OR THE JUDGMENT OF HIS PEERS."

The Constitution is "the law of the land;" the paramount "law of the land;" and no act of the Legislature of this state, contravening its provisions, can justly be "the law of the land." Nor can the statute or common law of England, be justly or constitutionally adopted, as the "law of the land," by which to deprive any "member of the state, of any" of the rights secured to any citizen thereof," by virtue of the provisions of that instrument above quoted. It was for this very reason, that the common law of England deprives married women of their right of property, which is intended to [24] be secured to them by the 1st sec. of the 7th art. of the Constitution above quoted, in common with every other "member of this state, and any citizen thereof," it is, as I have before demonstrated, repugnant to the Constitution, and for that reason abrogated by the concluding provision of the 13lh sec. of the 7th art. thereof, and therefore is not "the law of the land," by virtue of which, "any citizen" or "member of this state", can be legally or justly "deprived of any of these right, and privileges.

And even in cases in which, by virtue of an existing constitutional "law of the land," a "member of this state" may be "deprived of any of the rights and privileges" secured by the Constitution to any citizen of this state, such privation cannot be carried into effect, but by the concurring verdict of a jury.

It is true, that the concluding words of the 1st sec. of the 7th article of the Constitution, which are immediately subjoined to the words "unless by the law of the land," are, "or by the judgment of his peers," which means the verdict of a jury. The words or and his as here used, are obviously the result of inadvertence. A few observations will illustrate this truth. We read the word "or" as it stands, and understand it as it reads, in the disjunctive, it would go to show, that any member or citizen of this state could be deprived of any of the rights secured by the Constitution, whether by virtue of an existing "law of the land" or not, a falsehood as well as an absurdity, so monstrous to be admitted by any person of sane mind and common sense. Whereas if we substitute, as should have been done, the conjunction "and," for the disjunctive "or", the sentence would then be read as it was doubtless meant, and be understood as every man of sufficient intelligence to know his rights, would understand it to mean, that no member of this state, "male or female, married or unmarried," shall be disfranchised or deprived of any of the rights or privileges secured "by any of the provisions of the Constitution" to any "other citizen thereof," [25] male or female, married or unmarried, "unless by the" constitutional "law of the land," and "the judgment of his" or her "peers;" (that is, the verdict of a jury).

Lest the word "his," being a substantive of the masculine gender and singular in number, might be caught at, as the ground of a pretence, that the rights intended to be secured by the 1st sec. of the 7th art. of the Constitution, were meant to be exclusively masculine, I will ask if the rights of life, liberty, and the pursuit of happiness, were not intended to be secured, to females, in common with male "members of this state?" and if the rights of property of male citizens was also included in the protective provisions of the Constitution just noted, on what grounds can the right of property of females, married or unmarried, be excluded from a like security? Such exclusion is not to be found in the provision of the Constitution under consideration; nor does any such exception exist. The word "his," was doubtless used to agree, in a grammatical sense, with the word "member," used as the second word in the section; and which is the grammatical antecedent of the word "his" and the ungrammatical and inadvertent omission to insert the words "or her" between "his" and "peers" furnishes no sufficient reason for perverting the meaning or true sense of the provision of the Constitution, which is intended to secure the rights of property, as well as the rights of life, liberty, and the pursuit of happiness, to all females, married and unmarried, without distinction or discrimination.

Such is the true exposition and meaning; of the 1st sec. of the 7th art. of the Constitution; and such is the only construction which can render it consistent with the spirit and principles of the free government of this state, the provisions of the Constitution, and the democratic, just, and moral doctrine of equal rights, or which can make it at all reconcilable to the plainest dictates of the common sense of mankind.

Though the foregoing remarks are sufficient to overcome all but the most inveterate prejudice in favour of [26] depriving married women of their property, in pursuance of the common law of England, reckless of their rights and the provisions of the Constitution by which they were intended to be protected, I will, with a view to sustain the preceding exposition of the intent and meaning of the 1ft sec. of the 7th art. of the Constitution, proceed to add another illustration of fact, that such "common law of England," was " abrogated," for that it was (and is) "repugnant" to other than the last quoted provision of the Constitution⁹.

The 7th sec. of the 7th art. of the Constitution, provides that "noperson shall be deprived of life, liberty, or PROPERTY, without due process of law." Here we again see that the right of life, liberty, and PROPERTY, are all alike and equally guarded; and that the right of PROPERTY cannot he taken away by any other means, than those by which LIFE and LIBERTY may also be destroyed. Can the life or liberty of females be taken from them, except by "due process of law," as in case of male citizens? and is not their right of property equally protected, and by the same means, that their rights of life and liberty are? Are not the rights of life and liberty of married females as dear to them, as to men or unmarried women? and is not their right of property recognized and protected at the same time, in the same manner, and by the same provision of the Constitution, by which their rights of life and liberty are secured? and is not the security of all these rights to every "person" within this state, male and female, married and unmarried, the common purpose or object, the true intent and meaning of the said 7th sec. of the 7th art. of the Constitution above quoted? Is not then the right of private property of married women, equal to that of men; or of unmarried women? Can married women be deprived of the right of property by any means, other than that by which the Constitution provides that "no person" (male nor female) "shall be [27] deprived of life, liberty, or property? and by what means other than

"DUE PROCESS OF LAW,"

can any citizen or member of this state be deprived of life, liberty, or property? Certainly no male nor [sic] female can be deprived of life, without "due" (constitutional) "process of law." And as certainly then a married woman cannot be deprived of her property, but by the "due process of law," by which she can justly be "deprived of her life and liberty."

But let us inquire what is meant by the words "due process of law," as mentioned in the section of the Constitution under immediate consideration.

Before I answer this question, I will state what those terms do not mean. They do not mean the "common law of England" by which females, on being married, are deprived of their property. Neither do they mean the statute law of England, nor any law, common or statute, by which any "member of this state," or any "person" within the same, male or female, married or unmarried, can be "deprived of life, liberty, or property," who have done no wrong, committed no offence, violated no law, or done no criminal act. There is no law of this state, nor can there be any constitutional law, by which to deprive " any citizen,'' or any "member of this state," or any "person" in it, either of "life, liberty, or property," but for some criminal offence interdicted by the existing constitutional "law of the land." No, nor even then, "without due process of law" in criminal cases: viz. "indictment or presentment of good and lawful men, where such deeds be done." So Lord Coke defines the meaning of those words of Magna Charta, from which they were transcribed into the Constitution of this state. And every lawyer who knows enough to merit that appellation, knows, that by virtue of the constitution, the paramount "law of the land," that "no member of this state," nor "any citizen thereof," nor any other "person" within its jurisdiction, can be coercively "deprived of life or liberty, without [28] presentment or indictment by a grand jury, trial, verdict, and conviction, by a petit jury; and every lawyer know, and indeed every other person of common understanding, who will duly examine the subject, can know, that the right of property is entrenched and secured by the same constitutional safeguard as are placed for the protection of the rights of life and liberty: and that according to the Constitution, "the law of the land," "no person can be deprived of it, but for some wrong doing; nor even for that cause, "except by due process of law," in criminal cases, as above mentioned.

It follows, as before, that the "common law of England," by which married women, without having committed any wrong, immoral, or criminal act, and "without due process of law," are coercively deprived of their property, is "repugnant to the Constitution," and for that reason was "abrogated" by the 13th section of the 7th article thereof, and hence never was, is not, and never can be, during the being of our present government, "the constitutional law of THIS land."

In confirmation of the lastmentioned truth, I will here remark, that the right to marry is a natural right, and the exercise of it is as imperative as the natural incitements which dictate it, are influential and dominant.

Though each person may voluntarily exercise it, or not, none have a right, coercively to prevent any, from the exercise of a natural right, of which each individual is equally possessed. No person can rationally be presumed voluntarily to delegate power to another, to prevent the former exercising the right in question, if he should think proper to exercise it. The subsequent marriage would be a virtual revocation of the supposed delegated power, and prove its nullity. The right to marry, therefore, is an inalienable, as well as a natural right; and being both natural and inalienable; the government cannot acquire from its constituents a power, which, none possessing, none can delegate. Government therefore neither have, nor can acquire, legitimate power to enjoin celibacy, or interdict the exercise of [29] the natural and inalienable right of its constituents to marry. Equally destitute are they of any righteous authority to interpose by law, common or statutory, adopted or, enacted, any obstacles to prevent, or burdens or privations operating to discourage, impede, or impair the exercise of a natural and inalienable right; and hence have no legitimate authority to attach to the marriage institution, stipulations, conditions, burdens, impediments, or privations foreign to its purpose, and unnecessary as well to the attainment of its object, as to the due performance of its obligations; and therefore have no just or legitimate power to impose on any citizen, male or female, the privation of the right of property, by reason of the exercise of the natural and inalienable right to marry; nor have they any more right or better authority to do so, than they would have, for the like pretence, to impose the privation of life or liberty, which are secured in the same manner, to the same extent, and by the same provision of the Constitution, by which the right of property is equally protected. Fines, forfeitures, penalties, and privations of life, liberty, property, or of any other rights secured to any citizen of the State, are the means employed for the punishment of criminals, for acts which they have no right to commit; and even they cannot be "deprived of any of the rights or privileges secured to any citizen," unless by the intervention of a jury as before stated.

But what have married women done that they should be made the victims of an unnaturalized, foreign law; and be deprived of the rights of property, which is held sacred and inviolate in the cases of unmarried women, and males, married and unmarried? Why, to be sure they got married! That they had a right to do. By what rule of law and justice, can any citizen be deprived of a right, who has done no wrong?' By what rule of law or justice, can any "member of this state," be deprived of one right, for having exercised another? and shall married women be deprived of their rights, and dispossessed [30] of their property, barely for having exercised a natural and inalienable right? merely for having entered into the honourable state of wedlock? an action meriting praise and favour, rather than privations of property, or of rights, which in the case of males and unmarried women are held sacred and inviolable, though secured by no provisions of the Constitution, which are not equally applicable to females as males, and to married as to unmarried "members" or citizens of this state?

Again: If it be true, as has been generally supposed, that the foreign common law in question, was, by virtue of the 13th sec. of the 7th art. of the Constitution, naturalized in this state, the Legislature, by virtue of another provision in the same section of the Constitution, would have a right to repeal, alter, or amend it, in any manner not inconsistent with any power legitimately possessed by the government, or vested in the Legislature by the provisions of the Constitution.

Now, let us follow the train of logical inductions indicated by the abovementioned premises, and we shall find that the inevitable conclusions to which they lead, will demonstrate the error of their predicate, and prove that no common law of England, by which private property could be coercively taken from the owner, and given to another person, could tie, consistently with the Constitution, legitimatized [sic] in this state.

Admitting then, hypothetically, and with a view to show that an unqualified admission would not be true, that the government did adopt the common law of England in question, and that the Legislature can repeal, alter, amend, and modify it as they please, consistently with the Constitution. Being thus vested with legitimate authority to enact, that "when any female shall be married, she shall be "deprived of her property," and that it shall be given to her husband, "they have equal authority to say, that it shall be given to any other person. The violation of the right of private property is as obvious in the former, as in the latter case. The wrong consists in coercively depriving a "citizen" or [31] "member of this state" of her "property," and not in the manner of the subsequent disposal of it. Come of the property what may, the married woman's title is extinguished, and her rights of private property as sheerly violated in the former, as in the latter instance; and but for a mere shade of palliation, would be as fully so in the one case, as in the other.

Whatever dislike husbands and fortune-hunters might have to a law, transferring the property of a female, on being married, to their nearest natural and blood relatives; however repugnant it might be to their habits and their prejudices, for the Legislature to repeal the (said to be) adopted common law in question, and enact, that the property of married men, should, by virtue of the marriage union, be transferred to their respective wives; objections to such measures would come with a very ill grace, from the advocates of that alleged adoption of the "common law of England" in this state. It would be a gross and barefaced absurdity in them, after having admitted the constitutionality of that law, and the legislative right to alter it; to complain of any of the above-mentioned legislative acts as trenching on the rights of private property, or as violating the provisions of the Constitution, intended to secure those rights to every "person" every "member," and every "citizen" of this state.

And if the Legislature should choose to enact, that the property of an unmarried woman shall be taken from her, and he given to her paramour, or other person, what constitutional objection could be interposed to prove the want of legislative authority to deprive "any citizen" of their property, and vest "it in another? If they possess the legitimate power, as is contended, to deprive a married woman of her property, for doing that which she has a natural and inalienable right to do; with what propriety can it be denied that they have an equal power, in like manner, to divest an unmarried woman of her property for an immoral or illicit act? However revolting to our feelings of humanity, adverse [32] to the principles of justice, and repugnant to the provisions of the Constitution it may be, to subject criminal to the privation of properly for crime, without the intervention and verdict of a jury, yet all this monstrous doctrine must follow, if we admit the constitutionality and existence of a law, subjecting married women to the like privation of the right of property, without the judgment or verdict of a jury, and even without having committed any wrong or criminal act.

If it be true, that the government has by virtue of the 13th sec. of the 7th article of the Constitution, adopted the common law of England, attaching to the marriage institution the privation of the right of private property, as is contended, and the Legislature, by virtue of the same section of the Constitution, as is admitted, has power to alter it, they, as a necessary consequence, would be authorized to attach by statute law, to the marriage institution or contract, the privation of the liberty or even the life of either or both the contracting parties. The conclusion, as monstrous as it would, be then would necessarily follow, and could not be avoided on any known principle or rule of logical reasoning; that "any citizen or member of this state," can be "deprived of life, liberty, or property," without "due process of law," viz. without presentment or indictment of a grand jury; without the judgment of his or her peers, or verdict of a petit jury, and without having done any wrong or criminal act, the 1st, 7th, and I3th secs. of the 7th art. of the Constitution to the contrary notwithstanding!

However improbable that such legislative power, were there any such, would be exercised, how disgusting soever to the feelings of humanity, the dictates of justice, and the moral sense of mankind, such exercise of such legislative powers would be, their constitutionality cannot he consistently denied, if we admit the existence and constitutionality of "the common law" of England. as the law of this state, by which the privation of the right of property is attached to, or incorporated with, [33] the marriage institution, and married women made exclusively the devoted victims of its unjust principle and unrighteous operation.

As "repugnant" to the Constitution as it unquestionably is, to deprive any "citizen" or "member of this state," or any other "person," of the right of life or liberty, without "due process of law," or without a wrong done or a crime committed, or to attach such privation to the exercise of a natural and inalienable right, it is no less repugnant to the 1st and 7th secs. of the 7th art. of the Constitution, to engraft the privation of property on the marriage contract, and thus to deprive a guiltless female of her right of property, without any charge of crime; without presentment or indictment of a grand jury; without trial, verdict, or conviction by a petit jury, or judgment of her peers, the "due process of law," required by the Constitution, as well for the protection of the right of property, as for the security of life and liberty. Yes, truth it is, that the rights of life, liberty, and property, are all guarded; and equally so, by the same provision of the Constitution; and neither of them can be rightfully infringed, burthened [sic], impaired, or destroyed, by any means hut such as are equally applicable to the others. To be protected, therefore, in the right of possession, use, management, and disposal of property, honestly acquired, is the common right of each and all the "citizens" or "members" of this state, male and female, married and unmarried; and to divest a married woman of that right, by means which would be disclaimed and scouted as unjust, unequal, and unconstitutional, in the case of any other "citizen" or " member" of this state, is as "repugnant" to the moral principle of equal rights, the dictates of common justice, and the provisions of the Constitution before quoted, as it would be by similar means, and without " due process of law," to deprive men and unmarried women of their right of property. These can claim no other or better constitutional guarantee of their [34] right of property, than that by which the same right secured to married women.

That part of the "common law of England," therefore, which is alleged to be adopted by this state, and under colour of which, married women are deprived of their property, being "repugnant to the 1st and 7th secs. of the 7th art. of the Constitution, was, by virtue of the 13th section of the same article, explicitly and totally "abrogated." And so it would doubtless be considered by the whole community, were it not, that by habit and the absence of any question or scrutiny of the unjust principle and mischievous operation of that law, we have become familiarized to the violation of the rights of married women, view it with indifference, treat it with compliance, and even resort to sophistry and subterfuge to justify and sustain it.

The following lines of Pope are very applicable to the abovermentioned truth:—

"Vice is a monster of so hideous mien

And, to be hated, needs but to be seen;

But seen to oft, familiar with its face,

We first endure, then pity, then embrace."

To repel the foregoing argument, to avoid its point and shun its conclusions, it will doubtless be said, that the law in question dues not authorize the taking of the property of a married woman from her, and giving it to the husband without her free and voluntary consent. That she voluntarily consents to the marriage, knowing the legal consequences of the contract, and hence as freely and voluntarily consents to the transfer of her property, as she does to the marriage, of which it is the legal consequence!!

In the first place, I will notice, that the above objection is based on the tacit admission, that the taking private property without the consent of the owner, and giving it to another individual, is not within the legitimate power of the government; or in other words, that "no person" can be coercively "deprived of his" or her [35] "property" or right of property, except for crime and the intervention of a jury, &c. So for then the arguments on that point have been, by the foregoing allegation admitted to be tenable.

But it is further insisted, that the woman's consent to marry, knowing that by the alleged existence of the common law in question, her property will be taken from her and given to her husband, IMPLIES HER CONSENT to be thus divested of it. On this point, to speak in legal parlance, I lake issue; and shall proceed to remark, that there is no affinity between the marriage covenant, properly so called, and a contract for title transfer of properly. The marriage contract does not necessarily, or of itself, produce the transfer of the wife's property to her husband. It is the law to which we are objecting, which attaches to the connubial association, consequences extraneous of marriage stipulations, and alien to the object or purpose of the marriage institution; and which, but for the law in question, as I shall show, would not follow. Her knowledge of the existing law, or more correctly speaking, knowing that an unconstitutional law would be enforced, and by which her property would be taken from her and given to her husband, constitutes no just or tenable ground on which, in the absence of an actual assent to assume, that she consented to be dispossessed of her property, on becoming a wife. The privation would be the same whether she assented to it or not. Then why require her assent; and why assume it? The law in question does not require it. Nor is her assent at all necessary, inasmuch as the law, and not the nuptial contract, constrains her to the sacrifice, willing or not willing. So true is this, that even her express dissent, announced at the very time of solemnizing the nuptial rights, would avail her nothing against the operation of the law in question. Her verbal contract of marriage would be held valid, while her express objection to the transfer of her property to her husband, would be disregarded by the law which coercively deprives her of her right to property, and to which she is as certainly [36] and fully obliged to submit, without and against her express consent, as with it. To deprive a married woman of her right of property on the ground of assumed or constructive assent, is therefore no more just, rational or constitutional than it would be to deprive her or any other citizen of "life, liberty, or property" for constructive crime; or "without presentment or indictment of the Grand Jury," the "due process of Law" prescribed by the Constitution, the supreme "law of the land," and without which " no person shall be deprived of life, liberty or property." How futile then to attempt to shield the illegitimate usurpation, from constitutional objections, and to sustain it on the ground of assumed consent is a case in which the same result would follow, without as with consent; and how baseless the argument and fallacious the reasoning of which such inferred consent is the only predicate!

Though the foregoing argument is a sufficient answer to the objection to which it is opposed, we will proceed to offer some additional "observations" in confirmation of its truth!!

I have before remarked, that the transfer of the wife's property to the husband constitutes no necessary inherent or incidental part or portion of the object or stipulations of the marriage contract; nor is it at all essential to the fulfillment of the duties or the performance of the obligations of the marriage institution. For confirmation of this truth just at France; -- look at the state of Louisiana, or any other country in which such a law as that on which we are animadverting, does not exist; look also at the society of Friend?, who disregard it in every country in which it has been adopted, and we shall find that all the essential objects, obligations and incidental duties of the marriage institution, have been attained, fulfilled and performed, at least as correctly and fully in the absence of the law in question, as in England land or any of the United States in which it is in operation.

But why should married women he exclusively subjected [37] to the evil operation of the iniquitous law under consideration? Am I told that they consented to be married; and with their own free and voluntary will, did get married? Their husbands did the same; and both possess the natural and inalienable right to do so. Is the wife's consent to be married any better ground for her implied consent to the transfer of her property to her husband, than his consent to be married is a good basis on which to raise his implied consent to the transfer of his property to his wife? Independent of the alleged existing "common law" certainly not. If it be said, in reply, that there is no law, directing such a disposition of the husband's property; but that there is a law transferring life wife's property to her husband. Then certainly, it is by virtue of the law and not the wife's consent, by which she is dispossessed of her property. Except for the law in question, the wife's property, would not by virtue of her marriage, pass to her husband, any more than his property would, by virtue of his marriage and in the absence of any law to that effect, pass to his wife. Repeal the existing or alleged "common law," and each would continue to hold, manage and dispose of their own property, after, as before marriage; and her assent to be married, could never be taken for her assent to be dispossessed of her estate, or be tortured by forensic jargon into her free and voluntary conveyance of her property, without any will, deed, or any express covenant or stipulation to that effect.

Let us again refer to our hypothetical premises. If the English common law in question, were, by virtue of the 13th sec. of the 7th art. of the Constitution engrafted on the body politic of the free institutions of our State, and the legislature possess, as they certainly would, in such case, the power to alter it; what constitutional objection could be interposed against their right, when prescribing the time, the manner, the occasion and under what circumstances, any female should he deprived of her property, to enact, that the property of an unmarried woman shall be taken from her and vested in her [38] suiter [sic] or nearest relative because she would not consent to be married? Could any constitutional objections be justly made to such a law, other than those by which we have proved the unconstitutionality of the law by which the property of a married woman is taken from her and given to her husband because she consented to be, and was married? If her knowledge of the existing law, in the one case, were a sufficient predicate for her implied consent to such transfer of her property to her husband; the knowledge of the unmarried woman of the existence of the supposed law, would be as good ground on which to raise her implied consent, to the supposed disposition of her property. In the one case, the sufferer is aware of the loss of her property, as the consequence of her getting married. In like manner, in the other case, the unmarried woman knew that her not consenting to be married, when her parents and friends were all anxious to have her consent, would work by law the transfer of her property to another person.

I presume no advocate of the common law in question, will be so hardy as to contend, that a law governing this last mentioned case, would be either rational, just or constitutional ;—or that the free and voluntary consent of the owner, to such transfer of her property, could justly or rationally be inferred, merely from her knowledge of the existence of the supposed law. And with no other or better reason or authority can the consent of a married woman, to the transfer of her property to her husband, be inferred from her knowledge of the operation and effect of the "common law" in question, or from her consent to be married; and much less can such consent to the transfer of her property be implied from her knowledge of the existence of a law "repugnant" as this is proved to be, to the provisions of the Constitution. To deny this conclusion, would be no more rational, logical or true, than it would be to assert that an assailant was knocked down, bruised, maimed or killed, with his own free will and voluntary consent, because be was aware of the existence of the law of self-defence [sic], which [39] authorized its antagonist to repel force by force; or that a murderer was hung, with his own approbation and voluntary consent, implied from his knowledge of the existence of the law imposing the penalty of death for murder.

Whatever cases there may be, in which the consent of a party may justly and rationally be assumed, to sanction or sustain an act or measure of justice, there is no rule of law or construction of law, by which the free and voluntary consent of a victim of injustice, can be justly or legally assumed as authority for wrong doing; or to legalize the operation of an unconstitutional law. Nor is there any rule of law, equity, justice, rationality, or logic, applying exclusively to married women, by which their consent to be dispossessed of their property, can be assumed or implied by their consent to be married; or from their knowledge of the (alleged) adoption, operation or existence of an unconstitutional law, by which they are divested of their property, without even requiring their consent. For such is the effect of that law, whether the woman consent or not. Their assent is no more necessary to give effect to that law, than their express dissent could be to prevent or evade its operation. To enact a law, therefore, by which to divest "any citizen or member of this State" of their property and give it to another, is as "repugnant to the Constitution" as any legislative act could be. No less unconstitutional is it, for the government to adopt the "common law" of England by virtue of which the property of a married woman is taken from her and given to her husband, merely because of her marriage. It is taking property from one citizen or member of this State, and giving to another without the consent of the owner; and the gratuitous assumption of her consent raised on her consent to be married, is too futile and flimsy a subterfuse to rescue the law in question from the imputation of being a palpable violation of the rights of private property;—unauthorized by any, and glaringly "repugnant" to several provisions of the Constitution—and obviously [40] discrepant with that great and primary principle of the free political government of this State, viz. equal protection to all its constituents in the exercise and enjoyment of the rights of "life, liberty and PROPERTY."

I am aware of other state and commonplace assumptions which are resorted to and bandied as necessary to justify the law under review. It is in this as in other instances, one falsehood or error requires several others to prop it up, and sustain it. Hence husband and wife are assumed in law to be "one person," "one flesh"!! and these absurd dicta, which are neither true nor possible to be so, are part and parcel of other, and no better pretences as will be shown, which constitute the predicate of the law in question, and are offered in its justification.

Were the above quoted legal doctrine consistently followed and carried out, it would justify the taking the wife's life or liberty for a crime committed by her husband; and her participation proved by her consent to become by marriage, identified in person, flesh and blood with the principal aggressor; and therefore particeps criminis with him. To divest the wife of her property, on the ground of her assumed identify or unity of person, flesh and blood with her husband, is no less a violation of truth, justice, morality and the provisions of the Constitution, than it would be to hang the husband for a murder committed by the wife; his participation in which crime, being implied or proved by his free and voluntary consent to become " one person and one flesh" with the principal perpetrator of the crime!!

However inconsistent with those sage assumptions, the law also regards the husband as the "lord and master" of his wife. Though this is in good keeping with the feudal origin and character of the law of which we are speaking; there is certainly no romance in it. The law under censure supersedes the necessity of assuming the husband to be the "lord and master" of his wife; inasmuch, as, besides despoiling her of her property, and giving it to the husband, (to be used or wasted as may happen) it places in his hands so much, and such uncontrolled, [41] indefinite, irresponsible and arbitrary power over her person, and subjects her to such an abject state of surveillance to the will, commands, caprices, ill humour, angry passions, and mercenary, avaricious and selfish disposition, conduct and views of her husband, that her condition, if not bearing every mark and trait of Negro slavery, approximates so near to it as to render the difference not worth noting.

It is a poor apology? or the law in question, and no palliation of its unjust principle, and evil operation, that the whole unhallowed power it places in the hands of the husband, is not always, or but seldom exercised. However complimentary to husbands this may be, it is anything but a justification of the law which vests such power in them. It is very possible and perhaps probable, that after divesting the wife of all her property and receiving all the favours she can bestow, or the husband be desirous to obtain, he may not be disposed to treat her unkindly. But if ill humour, bad temper, sheer wantonness, or other unjustifiable excitement should dispose him to abuse her even to the extent of cruelty, the existing law furnishes the opportunity and cannot prevent it. And if it does not positively justify, owing to the absence of proof, or the difficulty of obtaining it, the law can seldom reach to restrain or punish the aggressor; and hence he may riot in the exercise of his arbitrary and despotic power, even to the extent of gross abuse of his wife with perfect impunity. And such is so frequently the case as to destroy the happiness of many families, defeat the best purposes of the marriage institution, and mar the peace and harmony of society. In truth there is no contract, which, by the operation of law, and independent of the express covenants of the parties, places one person so fully under the absolute surveillance and control of another, as the marriage contract under the existing law, places the wife under the power of her husband. By contracting matrimony, the law in question subjects her to privations of the like character, and to a greater extent, than if she had committed a [42] criminal and indictable offence. In the latter case she would be fined a specified sum, or imprisoned a definite time, as the case might be. But by marriage and the existing law, she is deprived of all her property, and to a certain extent her liberty too, if her husband should be brute enough, as many are, to exercise his power to the extent of the law by which he is clothed with it; thereby destroying her happiness and making her life miserable.

I will here remark that there is a peculiarity in our law governing the civil contract of marriage, which is not applicable to any other civil contract, and which operates to oppress the injured and innocent, and to uphold and protect the guilty party. In all or most other contracts, the neglect or refusal of one party to fulfil [sic] his covenants, virtually and fully exempts the other from the performance of his; and exonerates him from any liability to damages for such non performance. Not so with the marriage contract. Neither party can he absolved from that connexion [sic]; but by the violation of one particular article of the marriage covenant. One party may therefore constantly neglect and utterly refuse to perform any of the stipulations of the nuptial compact, and may openly violate all its express and implied duties and obligations, except in the one case alluded to, and thus defeat all the beneficial intents and purposes of the married state; and yet the other party is still bound to continue to perform all her requirements of the marriage compact, notwithstanding the failure of the whole considerations (one excepted) on which the nuptial stipulations of the innocent and injured party were predicated. Although these remarks are applicable both to the husband and wife, I have no fear of being singular in the belief, that the woman, in a vast majority of cases, is the injured party.

These truths furnish a further illustration of the fallacy and falsehood of the legal assumptions, which constitute the predicate of the wife's implied consent to be dispossessed of her property, that "the husband and the [43] wife" are "one person"—"one flesh"; absurdly making this assumed legal "lord and master"—"one person" and "one flesh" with his legal servant and slave!! On the contrary, the law in question, by creating so great a difference in its treatment of the two parts of this legal "one person" and "one flesh," and giving to this legal "lord and muster," such and so much absolute and irresponsible power over his servant and slave, not only prove its iniquitous principle, but also that the very antithesis of the false and fallacious assumptions or pretences on which the law in question is professed to be founded, comes nearer to the truth. Indeed whenever a virtuous, sweet tempered, kind and tenderhearted female, happens, as it is too often the case, to become, by intendment of law "one person and one flesh" with a rough, unmannerly, avaricious, mercenary, ill-tempered and unprincipled husband, and is constrained by law to be the "servant" and slave of such a legal "lord and master," her condition is such as need not be envied by any decent Negro-wench slave in Virginia, or any other Christian country.

The evils against which we are remonstrating, do not necessarily spring from the essential stipulations of the marriage contract, nor from the duties nor obligations incident to the nuptial union; but from the law in question; which in its operation imposes on married women, duties and obligations so foreign to the true purposes and rational obligations of the marriage institution, and so obnoxious to just animadversion, that were they detailed and agreed to by an unmarried woman, in an express written contract containing no marriage covenant, they could not, owing to their palpable absurdity, great injustice and immoral influence, be legally enforced.

Were an unmarried woman to attempt, by such contract, to acknowledge her male contractee [sic], her legal "lord and master," and "engage to become, during all her natural life, his bounden humble servant;—that all her property now in possession or which she may in future acquire, shall pass immediately from her to him, to be [44] used or expended as he might please, for good or for evil purposes as might happen;—That whether well or ill treated by her said "lord and master" she would labour [sic] and drudge from day to day during life, in his service ; and obey without murmur, complaint or resistance all his commands, whether reasonable or unreasonable.—— Though he should contract intemperate habits, become a confirmed sot, sink to the lowest state of human depravity, expend all his and his said "servant's" property in riot and dissipation, and neglect to fulfil [sic] the stipulations of the contract on his part agreed to be performed; or openly and wilfully [sic] violate any or all of them; that she would still be bound and continue as before to fulfil [sic] her stipulated promises, and would neither appeal to law nor resort to other means to rid herself of the performance of any of them: In consideration of all which, they should be entitled to a bare subsistence; that is, such food and clothing as he may choose to furnish, and such place of habitation as he may think proper to place her in, and from which, if forbidden by him, she would neither depart nor complain of the loss of her liberty. &c. would not the terms of such a contract be disgusting to the best feelings of the human heart, and discrepant with the plainest principles of common justice? Still, though the "lord and master" violate his contract in most or all its parts, and the female fulfil hers in strict accordance with its stipulations; her condition would be no worse than that to which the "common law" in question subjects her, barely for having contracted matrimony! True, the supposed contract contains no power by which to authorize the "lord and master" to sell his said servant," as is done even now, sometimes in England;— and that is the only essential difference in her condition, from that of unqualified slavery.

If such a contract as abovementioned were offered in court, in justification of the exercise of all the powers therein mentioned to be vested in the "lord and matter" of such female indented "servant;"—or as authority for requiring or forcibly compelling her to fulfil all hers, [45] though he shall have neglected or refused to fulfil his covenants; would not the court allege in justification, of its judgment against the validity of such a contract, that the principles of justice declare, that the innocent ought not to suffer for the default of the delinquent party,— that the rules of law governing other civil contracts than that of marriage, justify the non-performance of the stipulations of the innocent party, when the considerations which constitute their predicate, shall have failed through the neglect or refusal of the defaulting party to comply with his? Would not the court farther allege "that all mankind are born free, and with certain NATURAL and inalienable rights; among which are life, liberty and the pursuit of happiness?"—that liberty being a natural and inalienable right, no member, or "citizen" of this State, and hence "no person," male nor female, within its jurisdiction, can sell or bargain away their liberty, or by contract become a slave?—that a contract like that now under immediate consideration, which contains stipulations lending to and resulting in, the like abject and absolute servitude, and moral and political debasement of condition and character; though the terms slave nor slavery are mentioned in it, is no less contra bonos mores,—adverse to the rules of law,—the principles of justice and the spirit and object of our free political institutions; is void for those reasons, were there no other to sustain such judgment? Yet as objectionable as such a contract is; only incorporate in it a marriage stipulation; and the whole, by the operation of the "common law" in question, becomes sanctified as the LEGAL consequences of the contract of matrimony!!

A woman whose mind is formed for such an humiliating condition;—who would regard such a degrading situation as suited to her views and capabilities;—or who would, except from dire necessity, submit to such debasement, with pleasure or patience; is just that kind of vulgar, groveling and spiritless animal, which no man of elevated mind, correct sentiments and humane and delicate feelings, and knowing how duly to estimate [46] female rights, and to appreciate the true female character, could admire for her intelligence,—esteem for her virtues,—regard as an equal,—trust as a friend,—select as a companion, or love as a wife.

We frequently hear much thoughtless boasting and vapouring about the improved condition of females; and it is often remarked that the melioration of their condition advances, pari pasu, with the progress of civilization.

That their condition is essentially better in civilized than in the savage life; and in the present than in the early ages of civilized society; are truths which few or none will be disposed to deny. But I will ask, to what is this to be attributed? Certainly not to any essential melioration of the laws relative to their rights and property. These are now substantially in principle the same by which they were governed and degraded in ages of comparative ignorance, darkness and despotism. The discovery of the art of printing stands distinguished among the causes which have contributed to the melioration of the condition of the human family. The consequent increased facilities to the acquirement of Education, the improvements in the arts and sciences and the acquisition and diffusion of useful knowledge, led to successive innovations on the power of despotic government, unequal laws and privileged orders; and civilization and political liberty have progressed. as the just and moral principles of equal rights have been developed, asserted, reclaimed and exercised. The repeated and successful opposition to despotic power, resulting in the melioration of partial laws and in the advancement of the equal rights of man; his mind improved by cultivation, his manners became more softened, his sympathies more lender, his sense of justice more strong, and his liberality, benevolence, and humanity, increased in proportion as the rough asperities of the temper, disposition, and conduct, of rude and barbarous man, have been lessened or destroyed. To these causes may be attributed whatever improvement has been made in the condition [47] of females since the "dark ages," in which barbarous despotism made the laws by which they are still governed, degraded and abused. "Those laws are now substantially the same in principle as they have been, time immemorial. They lag far behind the intelligence of the age; and those of England, and of most of the United States relating to the rights and property of married women, are particularly obnoxious to animadversion, on account of their unjust principle, inconsistent provisions, iniquitous operation, and demoralizing influence.

But it is contended in justification of the alleged existing " common law," that "the wife's property is given to the husband, because he alone is bound (by law) to maintain his wife and children."

It is true, that the husband alone may be sued at law and compelled to provide subsistence for his wife and family; and it is equally true that the wife cannot he so prosecuted; and this is all the favour the law allows her, after having divested her of her property, and subjected her to a numerous train of other consequent wrongs, hardships, and even cruelly, as will be developed in the progress of this discussion.

The husband's conjugal covenants, and the father's natural affections for his children, are obligations prior and paramount to any legal constraint to furnish subsistence for his family. The wife's natural and maternal affections impose on her similar obligations to sustain and protect her infant offspring;—and the moral obligations of husband and wife to sustain, subsist, aid, comfort and cherish each other, are reciprocal and probably, as will be seen, most imperative on the wife; and hence more certain to be fulfilled by the wife than the husband.

Will any one deny these truths, who has considered the subject sufficiently to know, that when the husband becomes, unable by reason of bodily infirmity, or incapable by means of "mental malady, or any other misfortune, "to maintain his wife and children, that the wife is bound by her natural and moral obligations, to exert her utmost endeavours, and to employ all her available means [48] to sustain, protect and comfort her disabled husband — as well as her infant children! Would not this be expected of her without legal coercion; and equally so as it would be of her husband under a change of circumstances? and even with the addition of his legal obligations? Would not her neglect or refusal in such case, to exert her personal efforts, and to employ all her pecuniary means to support tier husband and children, and administer to their comfort and happiness, be deemed unnatural in regard to her own offspring—a dereliction of moral principle, in reference to her husband, and cruel and inhuman treatment of both him and her children; —and would not she and her conduct incur much and merited animadversion?—Are not then her natural and moral obligations to maintain her husband and children; when he by sickness, poverty or other cause, becomes unable to do so, as great and imperative on her as his legal obligations are on him? Do not those obligations continue; and while they continue, is she not bound to continue her best exertions to fulfil them? Where then is the truth of the allegation that the wife's property is given to the husband because he alone is bound to maintain his wife and children and where the justice, humanity, and where even the morality of the law, by which she is divested of her property, and thereby restrained in her power, and despoiled of her means to maintain her children, and hence by law prevented from fulfilling her existing natural and moral obligations to her helpless infant offspring?

It is further said in justification of the existing law, that "the wife's property is taken out of her hands and given to the husband, because, owing to his superior prudence and discretion, it would be more safely preserved and more certainly applied to the purpose of family insistence, than if left in the possession, and under the control of the of the wife"!!

However small and delusive the semblance of truth which may attach to the previous allegation, and which has been fully exposed; there is neither the appearance [49] of truth, nor the shadow of plausibility in the pretence just noted as a reason or justification for depriving married women of their right of property.

That the wife's natural and moral obligation to protect, sustain and comfort her family, including her husband and children;—that her maternal and conjugal duties required her best endeavours to administer to the preservation and happiness of both husband and children, has already been proved; and that her disposition to fulfil those obligations and to perform those duties, is at least equal to that of the husband, seems to be conceded, even by the very law which imposes on him legal, in addition to his natural and moral obligations, to maintain his family, and from which legal constraint the wife is exempted. The existence of that law seems to admit, that, inasmuch as the disposition of the husband to fulfil his natural and paternal,—his moral and conjugal obligations, cannot always be relied on to hold him to the due discharge of his parental and conjugal duties in regard to family subsistence, he is subjected to the additional legal obligations to do so;—while the wife, whose maternal affections are so strong and indelible ;—and whose conjugal sympathies are so much more tender, sincere and constant than those of the husband; and on whose mind maternal, conjugal and moral obligations are so imposing and influential, as to require no additional legal coercion to compel her to administer to the subsistence and happiness of her family. Though this is not the legal reason why the husband and not the wife is subject to such legal obligation, it is more true, and hence better than the one offered as the reason of that portion of the law under immediate consideration. But were they both offered in justification of that measure, and both admitted to be true as far as respects the alleged exclusive legal responsibility of the husband to maintain his family, they would not be sufficient reasons for divesting the wife of her property during the existence of her natural and moral obligations, and giving it to her husband without any security for its due application to [50] the purpose of family maintenance, and without any responsibility for the wanton waste of it, in any way however foreign to the purpose for which it is alleged to be taken by law from its rightful owner.

If the ostensible, were the true reasons for which the "common law" in question was adopted, why was not provisions made to secure the application of the wife's property to the specific purpose for which it is alleged to be given to the husband? Were the object of that law to be indicated by its operation, and from the power vested with the wife's properly, in the husband; the appropriation of such property by the husband, to family subsistence, was not the intention any more than it is the effect of such transfer. The law neither binds nor requires the husband to use it for that, any more than for any other purpose¹⁰. The wife's personal property is given to the husband, and his, (not her) heir's and assigns, absolutely and unconditionally; and also the income of her real estate to be possessed by him as his own,—to be used as his own, and wasted if he pleases, without any responsibility to his wife, children or any one else; and though it be as in many, if not in most cases it has been, spent and wasted in every species of folly, extravagance, vice and dissipation;—though thereby the family be reduced to poverty and want, and the delinquent husband stretched on a bed of sickness, and incapacitated by bodily disease induced by his dissolute and profligate habits of life, to sustain his family;—still, as before remarked, her natural, maternal and moral obligations require and insure her utmost exertions to maintain her children; and female benevolence, if not her conjugal affections or covenants induce her, in a majority of cases, even to administer to the subsistence and [51] comfort of a worthless husband to whom the law gives her property, reckless of his worthless diameter;—and by which forced requisition upon his wife's purse, facilities are granted and supplies furnished which contribute to the irregularities of a dissipated husband. Thus do law, injustice, and profligacy, conspire to deprive married women of their rights and property,—to destroy all their pecuniary resources;—reduce them and their families to poverty and want; to leave them no practical and efficient means of protection from abuse or oppression by brutal husbands; and thus finally to spread demoralization, crime and misery throughout the community. If the law in question was intended to secure the application of the wife's property to the purpose of subsistence for herself and children, there probably never was a measure better calculated to produce in its operation, results the very reverse of those intended, than the law of which we are speaking.

Surely, if a female of full age and sane mind has, (and the law admits she has,) sufficient knowledge and discretion to possess and manage her property with ordinary prudence before marriage, she must be allowed to be as capable to do so after marriage; and more especially with the additional influence of maternal affection. However liable her senses may be to become a little bewildered, and her mental vision somewhat obscured before marriage, by the dazzling prospect of changing and improving her condition in life; both her sight and senses are sure to return very soon afterward; and often with an accession of strength derived from woeful experience, and perhaps other new and additional evidence. It is worse than idleness therefore to talk about the mental incapacity of females to manage their property after marriage, who have, both in fact and in law, sufficient knowledge and maturity of mind for such purpose before marriage. Though such alleged incapacity is the predicate of the existing legal inability of married women to possess personal, or to control, and manage their real estate; yet this is but another of those [52] false and foul legal assumptions which proceed from the original act of injustice; and which calls for this additional untruth to sustain and consummate the radical wrong.

But however grossly inconsistent are the law in the cases just noted, they are no less so in the instance we shall next proceed to exhibit.

By existing laws, no bargain for the purchase or sale of property, except for necessary subsistence under particular circumstances, can be enforced against any of the contracting parties who were under the age of twenty-one years at the time of making such contract. And the legal reason on which such law is predicated, is, the want of the requisite maturity of mind for the discreet use, management and disposal of their property. Although the law thus interposes to protect the rights and preserve the property of the infant, so termed in legal parlance, and declares to be null and void, every such contract involving infant rights and property, however small the amount; yet in direct and palpable discrepance therewith, persons under the age of twenty-one years, are allowed by law to make the contract of marriage, by which, many of the rights, and all the property of the female infant are taken from her and given to her husband; whether he be of full age or not; and the law, without even asking, assumes her assent to and deems it sufficient to make and justify the transfer; although her express consent to dispossess herself of the smallest part of her property or her rights, by any other contract, would be held invalid for the want of the requisite maturity of mind!!!

Thus while the law admits females as well before, —as at and after the age of twenty-one years, to possess maturity of mind sufficient to contract marriage—a contract of more importance than any other, and perhaps all others which can be made by females during life;—a contract by which not only a part, but all her property is taken from her;—a contract, which by the operation of the existing law, her natural, inalienable and constitutional [53] "right of personal liberty" is surrendered, or subjected to the arbitrary control of a legal "lord and master";—a contract on which, more than any or all others, the whole destinies of their lives are at stake, and in which their peace and happiness are involved and periled; yet on the other hand and in shameless dereliction of its own concessions, and in gross and disgusting inconsistency with its own dictates, the law comes in the moment a female becomes a wife, and virtually says to her, whatever right of property, and whatever menial and legal capacity to possess and manage it, you may have had before marriage, you have not now prudence and discretion, sufficiently trustworthy to justify your exercise of the light to possess and manage your own property—not now having common sense enough to lake care of yourself or your property as before you were married, it shall be taken from you and given to your husband; who shall be your absolute "lord and master," and you his "servant," and bound to do his bidding as implicitly as any slave is obliged to obey "his master,"—owing alas to the want of that prudence and discretion which the law conceded to you before marriage, you shall not, though of full age, now that you are married, be allowed to act for yourself, or do, in any case as you may deem right and proper, unless graciously permitted by him, on the peril of his displeasure, and such ill treatment as his ill temper or mad passion may prompt him, openly or in secret, to inflict as he may deem the best for himself, and most effectual for his own purpose. And then as if to "cap the climax" of legal incongruities, we are gravely told that Law is the perfection of reason!!

However superfluous it may be to heap "line upon line" in condemnation of a law which requires such a mass of absurdities and untruths to subserve and sustain it, I will exhibit another instance of its unjust and cruel operation.

It must not be forgotten, that married women are not only divested of the property possessed by them at the time [54] of their marriage, but also of all which, during coverture, they acquire by deed, will or inheritance; and even that which she may earn by the labour of her own hands, when her husband shall neglect, refuse or be unable, by whatever cause, to maintain his family;—all—all is given by law to her husband without regard to his merits, his conduct or character; and she, by law, becomes disqualified to possess it, or to control the use of it, or of any portion of it; and though it happen as it often does, when other resources fail, that the wife, of an idle, lazy and drunken husband, is obliged by dire necessity, to struggle against poverty, and to labour singlehanded, to sustain her family; and when at the close of a hard day's toil she returns home with a few shillings, earned perhaps at the washtub, to buy a crust for her helpless and suffering offspring, her wages belong not to her, nor can she use them even to provide subsistence for her children, or for any other purpose, unless permitted by her husband, to whom the law gives them, and who may wring the money from her bleeding hand, and spend it at the grogshop, or use it for any purpose which may best suit his folly or his pleasure; and the law which gives it to him, upholds him in such base conduct, and leaves his abused and destitute wife bereft of the means of pursuing the dictates of maternal affection, and unprotected in her virtuous efforts to fulfil her natural and moral obligations to provide subsistence for her helpless and dependant children. And all this injustice, cruelly and oppression is legalized for the reason (so argues forensic logic) that "the wife" is the mere "servant" of her husband;— he, and not she is entitled to her wages; —because forsooth he is bound by law to maintain his wife and children; and because her earnings, the fruits of her own toil and industry will, owing to the husband superior prudence and discretion, be more safe in his hands, and more certainly applied to its intended purpose, than if left with the mother to buy bread for her famishing offspring!!!

To say of a law predicated on such a gross violation [55] of truth, justice, and common sense, merely that it is not right, is too cold and feeble an expression of its true character. To call it savage, would be a libel on the native humanity of uncivilized nations, which have no laws or customs that bear with equal cruelly on the mothers of their children. To denounce it as superlatively unjust in its principle, oppressive in its operation, and demoralizing in its results, is as much as language can express of its extreme demerits; but were there a fourth degree of comparison I would place its iniquity there.

The alleged legal reasons offered in justification of the "common law" in question, so far from being true, are false pretences; a law made under false pretences is a fraudulent act; and as palpably so as a private contract is such, when based on deceit and misrepresentation. The most obvious difference is, that the error or moral turpitude of one is unjustly enforced as "common law," while the other is interdicted as a fraud, made an indictable offence, and those guilty of it, obnoxious to punishment.

I now proceed to exhibit additional evidence to prove that, were the property of married women preserved to them, as by constitutional and moral right it ought to be, it. would be more safe, and more certainly applied to domestic purposes or family subsistence, than if given as now, BY LAW, to the husband, to be possessed as his own, and used for any purpose he may choose to apply it.

It must be borne in mind, that by the existing law unmarried females have the like right to acquire, possess, and manage their own property, as is vested in, and exercised by men. Maturity of years, and sanity of mind, are the only prerequisites to the possession and exercise of the rights just mentioned. Hence the law tacitly admits, not only that the right of females to possess and dispose of their property is equal to that of men, but also that females have sufficient intelligence and discretion for the due exercise of that right; and [56] that too, without the additional inducement of maternal affection and solicitude for the well-being of existing off-spring. By what knowledge and discretion in the management of their property, are unmarried females enabled to preserve it, until they become the victims of mercenary marriage, and their property the property of legalized robbery. Were it alleged, that the consent of a female, possessing such property, to be married, and thereby to encounter all the injustice and evil consequences of the feudal "common law" in question—, is such conclusive proof of her indiscretion and incapacity to preserve her property, and to manage it with ordinary prudence, as to justify the taking it from her, with a view to save it, and apply it to the purpose of family subsistence, I should think such would be a more plausible plea or pretext for the alleged existing law than any or all others which arc usually made in its favour.

But have not women as much prudence and judgment to save and manage their property, after as before marriage? Has marriage deprived them of their senses and their wits, as well as of their rights of property which they possessed before marriage? With the additional incitement of maternal solicitude for the well-being of her children, has not a married woman even more inducement to the discreet appropriation of her property to their maintenance, than an unmarried woman, who has no such immediate motive for the prudent and due exercise of the right to possess and dispose of her property as she may please, and as by law she is authorized to do? And with such additional, natural, and maternal obligations, is not the discreet use of her property by a married woman, for the maintenance of her children, as much more to be relied on, than that of the husband, as maternal is more strong, constant, and unconquerable, than paternal affection. Are not the cases rare in which unmarried women waste their property? and are not the instances numerous in which men spend their fortunes in riot, intemperance, extravagance, and every species of irregularity and dissipation? [57] and when their pecuniary resources are exhausted or impaired, is it not a common practice for them to endeavour, by marriage, to obtain the properly of young, inexperienced, unsuspecting, and credulous females, with a view to the means by which to gratify their avarice, or to continue their dissolute habits of life ? Does not the existing law hold out inducements to mercenary marriages, by furnishing the means by which worthless fortune-hunters are enabled to effect their iniquitous purpose? Is not the alleged law, therefore, the source of the vicious and immoral practical to which it prompts; and the cause of all the injustice and misery to which married women become the devoted victim? And is not that law justly characterized by the vice, immorality, injustice, and misery consequent on its existence and operation?

That the affirmative are the true answers to the above questions, is as certain as that such answers prove conclusively, that married women's properly would be safer in their own hands, and more certainly applied to family maintenance, than it now is, when given indiscriminately to good and bad husbands, to be disposed of as they please, or as their good or bad habits may happen to direct.

But there is yet more evidence to confirm the truths for which I am contending.

Though instances may have happened, they are few, where the wife by her "indiscretion, extravagance, and dissipation, has empoverished her husband and reduced herself and children to want; yet the cases are many and common, where the husband has spent and wasted his own and his wife's estate, and involved himself and family in abject poverty. Is there then greater danger that the wife, if left in the possession and management of her own property, would not apply it to the purpose of sustaining her own offspring; than there is that the husband would not use it for the maintenance of his family? Is such the besetting sin of the female or maternal disposition and character? Do not innumerable facts establish [58] the truth, that the greater danger is that the husband will spend his wife's estate in wild and hazardous speculation. or waste it in dissolute practices, rather than that her will use it for family subsistence, for which it is pretended the existing law gives it to him?

True, the wife has little or no experience in business matters, and hence not the best qualified to manage her property in practical trading operations. She had as little experience before she was married, when the law conceded her right to possess property, and sufficient knowledge and prudence for the proper use and disposal of it; and yet it seldom happens that she wastes it by her indiscretions. Females are less disposed to spend their property than men are, and more averse to waste it in ????? practices than men; and less inclined to encounter risks in hazardous speculation; and in truth more cautious to avoid whatever may seem to betoken danger. Surely, but for the "common law" in question, she would be no less qualified for business after, than before her marriage. By the operation of that law, she is legally and practically disqualified for the pursuit of any business by which to maintain herself, her children, or even a worthy, unfortunate, and helpless husband; inasmuch as her contracts made during coverture are declared void or voidable. Few or none being willing to make such one-sided business contracts with her, she of course has very little opportunity to acquire a knowledge of business transactions by experience. Married women are thus virtually prevented by law from pursuing any business, calling, or profession, during coverture, except as the "servant" of her "lord and master." All, or nearly all the business occupations properly pertaining to the female portion of the community, have therefore been taken up and carried on by men, even to the retailing of tape, taste, pins and needles; and men-milliners and men-midwives, are by no means rare business characters in society. How unenviable then, the condition of a widowed mother, who when left to struggle alone to sustain and rear her helpless offspring, [59] find all or most all the occupations which constitute the proper sphere of female industry engrossed by men; leaving the women without experience in business, and with scarcely any other resource to avoid hunger and starvation, than the mean and contemptible wages awarded to female industry, and which are scarcely sufficient for the decent maintenance of the mother alone, and greatly inadequate to the subsistence of herself and children. And yet under all these disadvantages, the widow's children, in a great majority of cases, are better managed and reared, than those left to the care and protection of the father alone. This is true in many, very many instances, in which the existing law has deprived them of their property, and given it to their husbands, who have lost it in hazardous speculations, or wasted it in riot and dissipation.

How seldom it happens, that widows when they engage in second or in subsequent marriage, are unmindful of the interests of their children; and how common are the cases in which the happiness of motherless children are disregarded and sacrificed by the indiscreet second or subsequent marriage of their infatuated father!!! ¹¹

Though women, for the reasons already noted, are not so well qualified by experience and knowledge, for the practical business operations in trade and traffic as men usually are; yet their intellectual capabilities are equal to those of men ;—their industry at least as great and as probably greater than that of "the other sex", and their moral sensibilities stronger than those of men. They can encounter difficulties,—endure privations and suffering with more fortitude, courage and constancy, and are more fertile of expedients than men. Their tact for the prudent and economical expenditure of money [60] and their management of domestic concerns, are generally and decidedly greater and better than that of men; and hence, if they are not so capable of making money, they are better qualified to save it; and more especially when the happiness of their children and the interest of a worthy or even of a worthless husband may require it.

To preclude all doubt which vulgar prejudice may entertain, of the foregoing truths, I will here ask, -- Are not those who have escaped temptations to moral aberrations, and have been inexperienced in immoral practices, more innocent, discreet and virtuous, than those who are more exposed to temptation, more liable to contract irregular habits, and more frequently become victims of their own misconduct?

Are not men, more than women, and husbands more than wives, exposed to bad company, and evil communications, and hence, their "good manners" more liable to be "corrupted"? -- and do not men oftener than women, and husbands oftener than wives, become subject to such evils and victims of such causes?

Is it by the advice of mothers, that the fathers, as is too often the case, neglect lo provide for their children, and abandon them, reckless of their fate?

Is it by the advice of their wives, that husbands, as too often they do, become gamblers, and spend their time and money, and their wives' fortune too, in the "Hells" upon earth?

Do wives ever council husbands to become drunkards, and idle loungers night and day, at bar-rooms and grog-shops?

Is it to please their wives, that husbands, as in too many instances, spend their own and their wife's property on lewd women, and at the bacchanalian orgies of dissipated company?

Is it by the overruling counsel and influence of their wives, that husbands are induced to hazard their own and their wives' fortunes in wild and visionary schemes of ruinous speculation?

Is not the property of married women, in innumerable [61] instances, spent, wasted and lost, by their husbands, by the ways and means indicated or mentioned in the preceding questions? And would such have been the case if the wife's examples had been followed and her counsel had prevailed?

Can it then be, either in truth or logical consistency, denied, that the property of married women is oftener wasted by means of the improvident expenditure of it by their husbands, than it would be if left in the possession and control of its rightful owner?

How then, let me further ask, can the justice, policy or morality of the law in question, be reconciled with the correct answers lo the preceding questions or the truths to which they point?

Surely, there can be not even the shadow, of truth in the pretense that the properly of married women is taken from them because of any want of mental or moral qualification to preserve, manage and apply it, with prudence and discretion, as well after as before marriage. As little truth is there in the allegation, that the wife's property is given to the husband for its greater safely and its more certain application to the purpose of family subsistence. The real truth lies in a different direction; and is indicated by the true answers to the several questions before noted;—all which go to prove beyond a doubt, that the property of married women, if left in their possession and subject to their control, would be much more certainly applied to the purpose of family subsistence, than it now is, as it is certain that the natural affections of females for their offspring, is stronger and more constant than those of the male sex. Where then, the justice,—the policy or moral influence of a law, which, without moral right or constitutional warrant, transfers the property of married women to their husbands; in whose hands, innumerable facts prove it to be more in danger of being involved and lost in the hazards and vicissitudes of trade and speculation, and of being spent and wasted by worse means, than it would be if left, as of moral right, and by constitutional [62] provisions it ought to be, in the possession and under the control of its rightful owners.

It has been gravely urged as an objection to the proposed law, that "it will create separate interests between husband and wife—cause dissatisfaction, tend to destroy harmony between them, and result in discord, broils, and family disorganization."

Though I never heard this objection advanced by any who had given the subject more than a first thought or superficial consideration, I shall give it that attention and treat it with that deference, to which honest error is always entitled. The objection, however, is probably as destitute of truth as it is of any existing facts to sustain it. Indeed there is no hazard of running into error by saying, that there neither is, and probably never were any facts to give it even the colour of plausibility to any mind which has been seriously occupied with the subject.

At no time in England, has there been a law by which married women have enjoyed the rights of property equally with men and unmarried women; and hence there can be no instance adduced, by which to show that family jars have been caused by the operation of a law which never had a being either in England, or (but with few exceptions) in the United Stales. So, that the objection under consideration, amounts to no more than a naked assertion, or speculative opinion; and proves nothing, or nothing so clearly, as that facts and arguments cannot be plenty, when such pretences or anticipations are resorted to and interposed to prevent the passage of the proposed law.

But, I will here ask, with whom will the alleged dissatisfaction and interruption of domestic peace and harmony originate? It would be very irrational to presume that married women would be disposed to quarrel with their husbands, because the law would not allow the latter to divest their wives of their property, and spend or waste it as they might please. Then it must be, that the husband, if anybody, would be displeased on that [63] account. With him the alleged dissatisfaction would exist, and family jars originate; and, forsooth, because he is denied the power of taking his wife's property from her, and to use or waste it as might happen, he would disturb domestic peace and harmony, reckless of the rights of his wife, and the misery and demoralization consequent on family broils proceeding from himself, and originating in his disappointed cupidity.

That there are such characters in society;—that there are many such;—that they are mischievous to public morals and inauspicious to conjugal harmony and domestic happiness, are truths too notorious to require proof on this occasion. But it is equally clear to those who have investigated the subject, that the "common law" in question, sanctifies their views, and furnishes the means by which to carry them into successful operation; thereby influencing unprincipled mercenaries to engage in marriage speculation, and thus to render the marriage institution subservient to the purposes of deception and fraud and the gratification of cupidity and avarice.

But not only he who would marry from such motives, but he also who would connect himself in conjugal union with a female, to whose intelligence prudence and discretion he would not be willing to trust the possession of her own property, nor to allow her to exercise any of the rights and powers in relation to the use and disposition of it, as by law she could do before marriage, could not disguise his mean and dishonourable object, nor acquire credit for the motive which influenced him to become a husband. So frequent are such operations attempted and effected in the community, through the instrumentality of the existing law, that marriages are generally regarded and spoken of as good or bad on the side of the husband, in proportion to the amount of property he may obtain from his wife by such means. The like inducement it is, which prompts worthless, dissipated, unprincipled upper life paupers, who wear the garb of gentlemen and assume that appellation, to sneak into respectable families, and by fraud and deception, to gain the [64] confidence of inexperienced, unsuspecting females, through which to seduce them from their allegiance to parental government; beguile them in many instances in clandestine marriage, and thus mar or destroy the peace and happiness of many families. Such characters and those whose disappointed cupidity would lead them to disturb domestic harmony and peace, would doubtless enveigh against the proposed law, the intention and operation of which would nullify their hopes and disappoint their purpose. To others, who marry with better motives, it would be a matter of indifference,—a subject of approbation or a source of pleasure; a measure of justice; and therefore tend to promote rather than destroy domestic peace and harmony.

Besides creating an inducement, by which selfish cupidity is quickened into active operation, and making marriage the easy, ready and certain means of attaining its object; a further effect of the "common law" in question, is, to bring into association and collision, persons whose education, habits, temper, disposition, standing in society, and views, of life are irreconcilably dissimilar, and tend directly to engender family contentions and broils, mar connubial bliss, defeat the honorable and moral objects of the marriage union, and thus to spread demoralization and misery "far and wide" in the community.

Again—So true is it that absolute and irresponsible power tends to destroy the even balance of equal rights, and leads to injustice and oppression; and so frequently has such power been exercised for selfish purposes, reckless of the rights of those subject to in influence, that it has in truth become proverbial, and is generally or universally admitted as a political axiom, that "when men feel power they forget right." The same truth is recognized in the policy of' nations in relation to each other. Hence the maxim "to preserve peace, be prepared for war," admits that inequality of power tends to aggression by the strong on the rights of the weak, and that equality of power is the surest means to preserve rights as well as peace and harmony. [65]

What but the possession and exercise of absolute and irresponsible power in political governments, has destroyed the equal rights of the people, established privileged orders,—made the monarch a tyrannical despot, and his subjects abject and miserable slaves?

What interests can be more separate, distinct and incompatible, than that of absolute and irresponsible power, from that of its humble, helpless subjects, and oppressed and degraded victims?

Has not the peace and harmony of nations and governments ever been disturbed by the separate interests and the consequent contentions of arbitrary power on the one hand, and resistance to the possession, exercise and abuse of it, on the other?

The like wrong, proceeding from the same radical source, that is, ignorance of the true means of human happiness, may be observed in every stage of human life, from the child in the nursery, to the monarch on his throne.

Put a whip into the hands of a child sufficiently grown to flourish it, and he will use it if opportunity offers, on unoffending dumb animals. In the absense of these, his companions will not fail to suffer under his lash. Arm his companion with a whip or other means of defence, and the aggressor will immediately become more cautious, hesitate, and perhaps desist from aggression; because now his associates are on equal grounds with him. Fear, in the absence of moral principle, will induce him to respect the rights of others, when he sees that unjust and arbitrary power cannot be exercised with impunity.

Thus it is with individuals as with nations; the nearer they approximate in power, the more they fear the consequences of invading the equal rights of those who possess the means to cause their right to be respected.

Inequality of power, therefore, is a source of broils among nations, as inequality of rights is the cause of internal contention and strife in all governments of absolute power and privileged order? No less true is it, [66] that equality of power and rights tends to preserve peace and harmony rather than to create contentions among nations and in political governments. The same cause operates with equal force among individuals of the same community, and the same reasoning is equally applicable to the relations of husband and wife.

Vest the husband with absolute and unlimited power, and to him, and not the law, will attach the merit, if his wife does not become a subject of injustice, if not, of oppression.

Make him, as the existing law virtually does, the irresponsible "lord and master;" and his wife sinks to the humble and degraded condition of his "servant" or slave.

And what interests, let me ask, are more separate and distinct than when one of the married parties takes all, (both power and property,) and leaves the other nothing, but the legal obligation to submit without a murmur?

And what kind of harmony is that which results from the possession and exercise of absolute and uncontrolled power on one side, and unqualified submission on the other? It is but the truce of dominant and imperious power of the ruler on the one hand, and sullen and powerless submission of the ruled on the other; or it is any thing but a union of interests,—the harmony of mutual love, sincere, affection or congeniality of mind of all which are indispensable to the happiness of the married life, the fulfilment of the obligations of the wedding contract, and the attainment of the virtuous and true object of the marriage institution. Absolute power and exclusive rights of properly in one of the married parties, is no more compatible with, nor necessary to domestic peace and harmony, than it is propitious to the sentiments of mutual love and affection, which constitute the strongest incitement to domestic harmony, and the surest guarantee of domestic peace and happiness.

Though the foregoing observations are a sufficient refutation of the objection under consideration, a few additional remarks will not exhaust this branch of our subject. [67]

By existing laws as before remarked, the right of unmarried females to possess, use and dispose of their property, is equal with that of men. The law also concedes to unmarried females, not only the right and power, but also judgment and discretion sufficient for the proper management and disposal of their property. It is this right, this power and this judgment and discretion, which places the unmarried female on equal (legal) grounds with her suiter in making the marriage contract. This equal right and power of each to manage and dispose of their own properly, was not the cause of any unpleasant difference or disagreement between them before marriage; nor was their peace or harmony thereby impaired or destroyed. They mutually agreed to the nuptial union; and that is the whole amount of what they did agree to; and is the only true meaning and object of the marriage contract. Supposing the alleged "common law" was not in being, and the suiter had required an absolute transfer to him of all the personal property, of the intended wife, and the yearly income of her real estate during his life, as a preliminary to the contract of marriage, they probably would not have agreed so well. The sordid motive of his addresses could not well be mistaken. And if she could be persuaded by him to make the required transfer, would not her extreme folly and imprudence be regretted and denounced by all her relatives and friends? If such unreasonable and unjust requisition on his part merited animadversion;—and such acquiescence on her part, be regarded as an act of gross folly, imprudence, and injustice; what less could be said of the law in question, which makes such transfer after marriage; thereby, prompting avarice to active operation, and creating the means by which to consummate its sordid views?

What cause can even imagination conjure up as more prolific of family jars, than the improvident waste of the wife's properly by the husband? Such broils which have been and continue to be engendered by such cause, under the influence and operation of the "common [68] law" in question, are more frequent, and attended with more and worse evil consequences, than any which would be likely to occur, should the female continue to possess and control the use and management of her own property after as before marriage. If the husband be discreet and trustworthy, he will take care of his own property; in which case the family will not suffer, even if the wife should happen to be indiscreet in the use, or unfortunate in the management of hers. Not so under the existing law. If, as too frequently happens, the husband wastes not only his own but his wife's property, the family are reduced to poverty, want and duress; and frequently wrangling and demoralization are among other evil consequences which proceed from the operation of .the same cause. And shall that old and iniquitous feudal law be continued on the public records of a free and intelligent people, lest mercenary husbands, (for no others would,) take it in dudgeon, and foment domestic discord, if not possessed of his wife's property, and the irresponsible power to treat her as his caprice, ill temper, or interest might dictate?

Imagine, if possible, the deplorable state of society, were husbands to exercise on their wives all the power the existing laws give them, and the marriage association enables them to exercise in secret and with impunity. That the exercise of such power destroys domestic harmony and happiness is no less certain, than that the possession encourages the exercise of it. Though all do not, too many do exercise too much of the power with which the law has rested them; and far too much for the benefit of domestic harmony or public morals. And were it even true that there are none who exercise all such power, it would furnish an argument against rather than in favor of the law which gives such power to them. The possession of power surely cannot be right, the exercise of which would be wrong. And nothing can be more certain than that the principle of that law must be radically wrong, which clothed husbands with power [69] over their wives, the exercise of which would merit and incur general animadversion.

Whatever may be the present improved state of the human mind, beyond that of the "dark ages" in which the existing "common law" originated, it is yet too certain that too much of its deleterious influence still remains to foment family broils, to disturb domestic peace and harmony, and to demoralize society. How frequently and to what extent domestic peace and harmony has been interrupted and destroyed, by the operation and influence of the law which deprives married women of their property, probably cannot be exactly ascertained, but may he duly estimated by those who have noted its tendency to discourage conjugal union from motives of affections—to prompt unprincipled fortune hunters to venal speculation in matrimony;—to encourage the practice of deception and fraud, by which young and inexperienced females are the common and devoted victims;— to induce mercenary marriages,—to associate in marriage bunds, tempers and dispositions incompatible with each other, and unpropitious to conjugal harmony—to lessen the chances for domestic happiness, and to defeat the honourable and moral purposes of the marriage institution.

The instances are innumerable, in which the property obtained by marriage in pursuance of the existing "common law" has been unfortunately sunk in trade,—wasted in wild speculation,—squandered in extravagant and stylish living.—lost at the gaming-table, or spent in riot, drunkenness and other homogeneous dissipation; the direct tendency of all which is to blight the hope of conjugal felicity,—to engender family broils,—to disturb domestic peace and harmony,—to reduce whole families to poverty, and want; and frequently wretchedness, demoralization and crime have followed in the train of evils consequent on the existing law. And yet in the face of all these truths, and without a solitary fact to sustain the allegation, we are gravely told, that "to allow married women to possess their property will destroy domestic [70] peace and harmony"!!! On the contrary, we shall now proceed to adduce facts which are not only in accordance with all our preceding reasoning on the branch of the subject under immediate consideration, but which, independent of the arguments already noted, go to demonstrate that

To preserve to married women their right of property as guarantied by the Constitution, would not be productive of domestic contention and strife, or lend to destroy conjugal peace and harmony.

Look at those countries in which the "common law of England" by which married women are deprived of their property, is not and never was in being; and we shall find that no such evil effects, as those attributed to the proposed laws which preserve to married women their right of property equally with men and unmarried females. No such "separate interest" as that alleged has been the cause of conjugal dissension, or tended to interrupt domestic harmony or happiness.

Who ever heard that the French people are remarkable for family broils, or lack of domestic harmony on account of the females retaining the right and control of their own properly, after, as before marriage? Who ever heard it alleged in France as an objection to that law, that it tended lo create such separate interests between the husband and wife, as necessarily tended to destroy peace, harmony, or confidence between them? The law in France is the same in principle as the proposed law now under consideration; and that no such family jars have been caused in that country by preserving to married women their right of property, is a truth which (were it even an isolated fad) goes to prove how baseless and visionary is the pretence that the proposed law will tend to impair the harmony or happiness of a man and wife.

But there are other facts which point in the same direction, lead to the same conclusions, harmonize with and confirm the truths just above noted.

By the laws of the state of Louisiana, the rights and [71] property of married women are duly respected and secured to them equally as to men and unmarried women.¹² Yet the separate property of husband and wife, secured to them respectively in pursuance of those laws, has never been regarded as a source of domestic contention or family disorganization, nor quoted as proof of the unjust principle or evil operation of the laws of that State, by which the property of females is preserved to them after, equally as before marriage.

As a further illustration of the futility of the objection under immediate consideration, I will refer to the Society of Friends (or Quakers) who totally disregard the alleged "common law" in question, and never have conformed to it. Among other laws of their society, or rules of their church discipline, is one by which married women continue to hold and manage their own property, after, as before marriage. So far has this just measure been from impairing domestic disharmony, that the very reverse of such effects has been the consequence; for in no community of mankind has there been more domestic peace, harmony and happiness; or less of family contention, disorder, demoralization and misery, than in that of the Society of Friends. So emphatically, true is this, and so creditable is that truth to that community, that there never has been an instance in this or any other country, of a divorce obtained or sought by any male or female of that benevolent and moral class of the human family.

These and the preceding facts not only demonstrate the error of the objection under immediate consideration; but they also go so fully to establish the visionary character of another allegation which has been urged against the proposed law, viz: that "it will operate to destroy [72] the husband's authority as head and governor of his family," that further exposition of the fallacy of that objection would be superfluous. Suffice it to say, that no such consequence has proceeded from the laws of France or Louisiana, or the community of Friends before referred to; and no such objections, that I can learn, have ever been made against those laws as are interposed to the bill under consideration.

In concurrence with these truths and in further proof of their salutary operation, I will here remark, that I have it from a member of this House, who now sits within the bearing of my voice, that he is the father of five children,—that he has always left his wife in the possession and management of her own property, and has never had occasion to regret her imprudent use of it;—that when his business required more facilities than could be derived from his own resources, he would borrow of his wife, from whom he was sure to obtain a loan, if she had the means by which to accommodate him;—to refund which in due time, he was as particular as he would be to pay his note in the bank:—that they have lived together fifteen years in the reciprocal interchange of such kindnesses, and the continuance and increase of mutual attachment. Information of many other similar instances, has been derived from sources of as great respectability as any in the community.

Although these facts go to expose the visionary character of the objection under immediate consideration, I will add "yet another" to the redundance of proof already exhibited, pointing in the same direction and leading to the same truth.

Unmarried females, besides the right to acquire, possess and manage their own absolute estate, both real and personal, hare a right also to lake and execute a trust and power m relation to real estate. But if she afterward marry, the trust and power become void,—the estate become absolute and subject to the "legal" marital rights of the husband, in like manner as if it had been rested in the wife previously to her marriage, and without [73] a trust and power. Yet at any time during coverture, she can take and possess real estate under a trust and power; and in virtue of its provisions, use, manage and control it without the interference of her husband; —and even this becomes void and the estate absolute and subject to the legal marital rights of the subsequent husband;—thereby vesting in him marital rights not possessed by his predecessor!

What may have been the reasons or the pretences for the inconsistencies just noted, 1 have never yet been fortunate enough to ascertain, and do not here propose to inquire. I will only remark, that the existence of the laws just quoted, if they do not prove, they certainly admit, as has been already proved, not only that unmarried women of full age and sane mind possess sufficient knowledge and discretion to control and manage their estate, both real and personal; and that married women are in fact equally competent to do so without the interference of their husbands;—but also, that such separate interest or property does not necessarily tend to disturb connubial harmony or domestic happiness, nor to impair or destroy the righteous authority of the husband, as head and governor of his family. The abovementioned provisions of the revised statutes, corresponding in principle (as far as they go,) with the provisions and object of the bill under consideration, may, it is true, tend to disappoint the cupidity and avarice of mercenary husbands; but never can disturb the conjugal harmony nor domestic peace of those who engage in marriage from motives of mutual and sincere affection, whatever interest may pretend, avarice assert, or prejudice believe to the contrary.

Another objection interposed to prevent the right of property being restored to married women, is, that "such an act would work to great INNOVATION on the long established laws of our country and the habits of the people."

Admitted; and what then? That concession is no proof that such a measure would be wrong. Innovation [74] is a change from old to new law, customs, opinions and measures, and is always right when error, folly, falsehood, immorality and injustice are exposed and discarded, and truth and justice suffered to prevail. If the common law in question be proved to be unjust in principle and mischievous in practice, and the habits of the people correspond with both; may not an innovation on such laws and habits be made greatly beneficial to the community, both in its political and moral character!

In pursuing the train of arguments in illustration of the futility of the objection by which they are elicited, I will recur to some remarks which I made on this branch of the subject at the last session of the legislature¹³. "I am aware of the disposition too often manifested by a portion of mankind to take alarm at the proposition of any new measure, which may tend to disturb settled habits of thinking and acting on any subject or matter of physical, or even of moral improvement. But this as often arises from the settled habit of not thinking or reflecting at all on the matter, as from any radical error in the principle of the proposed measure, or from any rational evidence of its inutilily or impracticability. Opinions and actions are as often the effect of habitual and thoughtless acquiescence in existing laws, as they are the result of reflection and investigation. Hence every proposition for new measures is very liable to be regarded by prejudice, with jealousy and alarm; and without investigation or reason, is too often scouted as visionary and delusive; or denounced and condemned as useless or mischievous innovation; as if that term were applicable to error only."

But for innovation, I will here ask, what would now be the deplorable state of this world? What the present condition of the human family? Was it not by means of numerous, great, successive and successful innovations on his laws, habits and customs, that man was enabled to emerge from his savage to his civilized state! [75]

Was it not by repeated innovations on his ignorance, the original source of his errors and his crimes, that man has been enabled to arrive at his present state of intellectual and moral improvement? What progress could have been made in literature, or the arts and sciences, had there been no innovation on superstitious mummery, ecclesiastical tyranny, political despotism, and the consequent degraded and debased state of mankind in the "dark ages"? Did not the discovery of the art of printing" lead to great innovations on the preceding circumscribed means of the acquirement and diffusion of useful knowledge? Was it not by innovating on the limited application of steam power, that a great and useful innovation was made on the preceding mode of propelling ships and other vessels; and driving the various machinery of numerous manufactories? Was the discovery and diffusion of useful knowledge, the improved State of the arts and sciences, and the consequent melioration of the condition of mankind wrong, because they produced great innovations on arbitrary and despotic political power? Did not the doctrine of equal rights, the radical principle and primary object of a free government, result in great innovations on the long established union and misrule of Kings, Priests and other privileged orders? Was not the national independence of our country a great innovation on the preceding and abused power of England over these (then) colonies? Was not our free political government predicated on the just and equitable principle of the equal rights of all our citizens, a righteous innovation on the British system of partial laws, privileged orders, and violated justice? And will it be contended that all these measures were wrong, because they were innovations on the long established wrongs and errors to which they succeeded? Cannot then, innovations be right as well as wrong? Right, when they explode wrongs, and wrong when they violate the principle of equal rights? Was it consistent, wise, just, or proper, to establish a government for the protection and preservation of the equal rights of its constituents, and then to adopt the laws of England which palpably and grossly violate that holy principle? Was it right to innovate on the power of a government of privileged orders, for the purpose of reclaiming and maintaining the equal rights of man; and was it not wrong to leave married women still to be governed and oppressed by laws, the source of which is obscured by the distance of time and the darkness of the age in which they originated? laws which, however congenial with the spirit and policy of the monarchical government of the nation, whose example we followed in adopting them, are grossly adverse to the genius of our government, and inconsistent with the principles of equal rights, morality, justice and equity, which constitute its legitimate basis. That such vile enactments have so long been suffered to remain on our statute-book, as a libel on the intelligence of the people, and as a disgrace to a government intended to secure the equal rights of all within its jurisdiction, excites the "special wonder" of all who have given to the subject more than a superficial consideration.

I have said more on this branch of my argument, than I at first intended, and perhaps more than was necessary. But the cry of innovation being the common-place bug-bear usually raised by interest, power, and prejudice, in opposition to many measures of reform, as well in morals as in government, with a view to excite alarm and avert discussion, I discerned the present a proper time and occasion to analyze the term,-illustrate its true meaning, and expose its fallacy and absurdity, as an objection to the bill under consideration.

That the "common law" in question should prevail in England,—in the dark ages, and during the existence of the feudal system,—when despotism ruled-the nation,— when the mass of the population was uneducated, ignorant, debased, and servile,—when they were regarded and treated like villains, and appurtenances of the soil or domain of their "liege lord and master," and by him bargained, sold and transferred like cattle or other livestock pertaining to his [77] estate;—when husbands were allowed by law to beat their wives, as other "lords and masters" were permitted to beat their slaves;—when the husband regarded his wife as a piece of brute property, and could lead her with a halter round her neck to the public market, and sell her as dumb beasts and other articles of traffic were vended at the fair¹⁴; I repeat, that the law by which married women are deprived of their rights and their property should exist among such a people, at such a time and under circumstances as just described, may be a matter of more regret that wonder. But that the educated and enlightened citizens of the free and independent republic of the United States of North America;— who aspire to be distinguished for their intelligence and patriotism;—who boast of the just and liberal principles of the political institutions of their country; who plume themselves on their devotion to the equitable doctrine of equal rights and equal laws; who exult in the triumphant "march of the human mind," and the melioration of the condition of the human family, as the result of the combined influence of education, free government and wise and impartial legislation; in short, that the people of this country, in the present advanced state of civilization, and of political, moral, and intellectual improvement, should look to the despots who reigned in a foreign country in the "dark ages,"—to the Lords and Barons of feudal times;—to a community of villains, vassals, and slaves, for illustrations of the principles of free government,—for instruction in the doctrine of equal rights; or for lessons of wisdom on political jurisprudence,—follow their lead and adopt their laws, by which the wives and the mothers of freemen are still [78] governed and degraded to the condition of mere "servants" and "slaves" to their "legal lords and masters." is a servile adhesion to the customs, manners, habits and institutions of ignorance and despotism;—a miserable exemplification of the spirit and principles of our free republican government;—a sad commentary on the justice of equal rights and equal laws,—a degrading exposition of the provisions of the Constitution, intended to preserve them,--a blot on the escutcheon of our nation's fame;—a reflection on the intelligence of the people;—a libel on the sagacity of their legislators, and indeed anything but a compliment to their fidelity, to the principles of our government or to the provisions of the Constitution.

The alleged "common law" and the concurrent statutory enactments, are unrighteous innovations on the rights of property of married women, and the provisions of the Constitution by which those rights were intended to be secured to every " person"—every "citizen" and every "member" of this State, equally and without distinction or exception. Should the existing innovation on the right of property of married women be exploded, a great improvement in the moral, intellectual and political condition of society, would follow as certainly as that every effect succeeds its parent cause. The following, among other considerations, goes to confirm this truth.

Mothers are the natural, and most immediate guardians and primary teachers of their infant offspring. The first and early impressions on the infant mind are usually the result of maternal tuition; and are more influential in moulding the character of the rising generation, and forming the moral and intellectual condition of society, than any subsequent education. The mind of the preceptor is the standard by which the mind of the pupil is usually attempted to be formed. While therefore the primary teachers of the infant and juvenile generation, continue to be undervalued,—their mental capabilities held in low repute, and their intellectual acquirements [79] made to correspond with such disparaging estimate;—while they continue to be regarded in law, and the community thus are taught to regard them, (when married only) so deficient in knowledge and discretion as to render them unworthy and unfit to possess and exercise the right of property, and so devoid of maternal affection as to prevent them from applying it to the purpose of subsistence of their offspring;—while they are deemed qualified only to occupy the humble station of "servants" to their legal "lords and masters," to whose irresponsible authority they are held in a state of menial surveillance, suited better lo the debased character and condition of the semi-civilized vassals, servants and slaves of the feudal "lords and barons" of the "dark ages" and despotic government in which the law in question originated, than to that of the wives of the free and enlightened citizens of republican America;—and in fine, while married women continue to be deprived of their rights, despoiled of their properly, slandered in their character, neglected in their right education, and thus degraded in their condition, what of moral, intellectual or political improvement can reasonably be expected in a community, the rudiments of whose education are derived from primary teachers thus wronged and degraded according to feudal "common law"? And what will more certainly tend to raise the standard of their education, increase their knowledge, elevate their character, extend their influence, add to their utility, and hence to improve the public morals, meliorate the condition and promote the happiness of mankind, than the proposed innovation on the causes which obstruct the attainment of such beneficial and desirable objects?

That such innovation will be made when the subject shall be rightly understood by the public, I have as much confidence, as in the facts and arguments by which I have demonstrated the unconstitutionality, injustice, and demoralizing influence of the alleged existing "common law" in question. Whether this will be done by legislative enactments, or by judicial decisions overruling and [60] disclaiming further progress in the inadvertent error of sustaining an unconstitutional and mischievous law, time and events will determine. That our courts of judicature will disturb the titles or ownership of property, obtained by husbands by the operation of an "abrogated" and unconstitutional law, is perhaps not very certain. But that they will be called on to protect married women in their right of property as secured to them by constitutional provisions, I think will happen as soon as married women shall obtain a knowledge of their rights; and the title to an amount of property be sufficiently large, to induce a wife or widow or their respective heirs to assert the right of property as secured to married women by the Constitution, in common with every "citizen" and every " person" in this State, without discrimination or exception; in which case legislative interposition, may not be necessary.

Should married women be protected in the exercise of their right of property, great, obvious and beneficial results would follow, and be felt and acknowledged by the community.

That salutary, just and constitutional law would enable parents to secure to their daughters personal property given to them by deed or will, or obtained by inheritance. The income of their real estate would likewise innure to their benefit, without the interference of their husbands, and without the need, trouble, inconvenience and unpleasant interposition of trustees. Their personal property as well as the rents, issues and profits of their real estate, being thus rescued from the power of their husbands, would not be wasted through the vices of worthless, nor become involved in the misfortunes of worthy husbands; nor be liable to be taken for the debts of either;—and thence would, more immediately and more certainly than now innure to the benefit of mothers and their children. Daughters not being so liable to be impoverished, would not so frequently as now be thrown back, with their increased and suffering offspring, as paupers depending for subsistence on the charity [81] and benevolence of their sympathising and sorrowing parents and friends;—and who would in many instances, as a necessary consequence, be exempted from the trouble and expense of such domestic revulsions. Young, inexperienced, innocent, unsuspecting and credulous females would not so often as now, become the devoted victims of intrigue, fraud, deception and mercenary marriages. Nuptial engagements would more frequently be based on mutual and sincere affection;— conjugal harmony more surely preserved,—domestic happiness more certainly increased, the true objects of the marriage institution more fully attained, and the State of public morals proportionally improved. And should an impoverished mother earn by her own labour a pittance by which to sustain herself and helpless children, it would not be wrung from maternal hands and be given as now by law, to her dissipated husband, to be spent at the alehouse or other iniquitous haunts of dissolute company. And in conclusion, I will repeat, as on a former occasion I remarked, that "the sphere for the intriguing, selfish and deceptive operations of worthless fortune-hunters would be greatly circumscribed;—speculative and mercenary marriages would be less frequent, as the inducements thereto would he lessened or destroyed; and conjugal happiness and domestic harmony would be less frequently interrupted from such cause than under the present state of things. Should a worthy husband be unfortunate, or a worthless one spend his own fortune in dissipation, the wife's property, in many instances, would be the means of preventing much of the evil flowing from the existing law. It would serve or assist to maintain the family;—to keep them together —and to sustain their standing and respectability in society. It would serve or assist to prevent pauperism and save the public from the burden and expense of supporting many unfortunate and distressed females. It would serve or assist to educate the children, to prevent their being reared in gross ignorance, to lessen the chances and inducements to associate with bad company, to [82] acquire vicious habits, and to become thereby irredeemably debased. Thus the number of criminals and the amount of crime would become less, and one source from which is derived subjects for the house of refuge, penitentiaries; and state prisons, would be diminished or destroyed, public morals improved, and the condition and happiness of society meliorated and promoted."

But whether our legislature or courts of judicature will be induced to protect married women in their right of property, or not, lime and events will determine. Be that as it may, certain it is, that I cannot be deprived of the satisfaction derived from the conscientious discharge of what I deemed my duty, in exerting my utmost efforts to effect that salutary and desirable act of justice and constitutional right, and the consequent moral improvement and melioration of the condition of human society.

Page numbers in square brackets indicate the end of the page with that number.

Footnotes:

1 "We have," says the Evening Star of January 15th, 1836, "already noticed the bill introduced into the Legislature of last year b Judge Herttell, in relation to the rights of women. The fill in question, we understand, was partly drawn under the direction and inspection of the Hon. Judge Savage, late Chief Justice of the Supreme Court of this State, one of the ablest Jurists in the United States, and part by the Hon. John G. Spencer, one of the Revisors of the Statutes of this State, and the residue by Judge Herttell," who by consent of the House submitted this bill for the one first brought in. Publisher

2 R. L. Part II, 1st volume p. [sic- no page number given]

3 3rd subdivision, 1st volume, p. 728

4 Does not the acceptance of property by a female given to her on the conditions contained in the deed or will through which her ???? to it is required, amount to a contract between the giver and the receiver of such property? If so, then the wife's rights, in relation to such property, is secured by the Constitution of the United States which interdicts the existence of state law, "impairing the obligation to contract," etc. If the state law interdicts or prevents the performance of the conditions of the performance of the conditions on which such property is acquired, does not the property revert to the estate of the donor or testator?

5 Declaration of Independence

6 7th section, vii art. [page 20]

7 The principle was violated in the instance of private railroad corporations, inadvertently at first, and subsequently by the controlling power of monied [sic] institutions in our legislative bodies, under the sophistical pretense that railroads, though owned by private individuals were for public use. [page 20]

8 Section 1 and 7, art. vii [page 22]

9 Sec. 13, art. vii

10 Under the present law a married man may forsake his lawful wife and children, hold possession or the property belonging to her, and if so dispossessed, lavish the property of his wife, obtained through her parents on another woman not his wife, and all the law will require of him is the bare support of his lawful wife and legitimate children, however great the amount of property may be. Thus the existing law in its operation, protects the villain, upholds his villainy, and induces crime.

-- Editor

11 A German woman in humble life, being told that a gentleman, in whose family she had lived as a servant, had married a second wife whose reputation was somewhat tarnished, said, "Well, it is almost always so, when God almighty means to make a fool, he always takes a widow man.

12 The law in that State goes further in protecting the rights and property of married women, than is contemplated in the proposed law. In that State if a husband loans money from his wife, and fails in business, the law makes hers a preferred debt which must be paid before a dividend is made among the business creditors. There are good and sufficient reasons for such a law.

13 In the year 1836

14 Note by the publishers: Sale of a wife – A cabriolet and a one-horse chaise containing two men and two females, stopped at the King's Head Inn, Chelmsford on Wednesday, when the party alighted and called for wine; they sent for the crier, and gave him instructions to give notice that a wife would be sold at two o'clock in the market-place. At the appointed time, the brutal husband appeared, leading his wife by a halter round her neck, and sold her to his equally brutal companion for fourteen shillings. (Chelmsford Chronicle) – The above was cut from the Sunday News, May 2nd 1839.

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