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Personal property.-Both the Kentish Customary and the Common Law divide personal property into three parts and this provision may have its roots in ancient customs,* but it was not a general rule of law until after the Conquest (the Anglo-Saxon right of disposal of personalty by will being unlimited) and was never the rule of the Anglo-Saxons in regard to real estate. Professor Young † discusses this subject carefully and concludes that in Anglo-Saxon law no distinction between movables and immovables existed.


I have already said that the system of married women's property set forth by Glanvill continued in force in England until the present generation. ‡

On the continent the feudal disabilities were gradually mitigated and the doctrine that husband and wife were one person soon became obsolete.§

The reason for the duration of these disabilities in England is bound up with the whole history of the English people, which preserved an anomalous feudal family law by the side of great and growing constitutional and political liberties. Laboulaye's description of the aristocratic system in France may perhaps be held to apply in England. The growth of the aristocracy, he says, and the idea of families as units increased the tendency to ignore women and younger sons. "To maintain the nobility existing, to enrich it with new fortunes, to raise the bourgeoisie to nobility was the constant aim of jurisconsults and legislators." In the fifteenth and sixteenth centuries primogeniture and the exclusion of women were looked upon very favorably "quia da familiarum conservationem præsertim ordinantur et diriguntur.” Laboulaye adds (in 1842): "The same opinion is entertained

* See Ine. 57, and Bede "Ecclesiastical History," lib. 5, c. 12.

† Pp. 135, et seq.

With the changes described in the last chapter.

Glasson, II., 286, etc.

| Gide op. cit. p. 241, says the Norman feudal law is as it were the Law of the Twelve Tables in England, and Laboulaye op. sit. p. 305, calls England the Herculaneum of feudalism.

to-day by the English lawyers." Sir Frederick Pollock also says: "It might be a topic of curious meditation for the student of comparative jurisprudence to note how well the English land-owning families have striven, though all unconsciously, to produce in our modern society something like the image of an archaic Aryan household." Sir Henry Maine says there is no better way of forming an idea of the early Roman patria potestas than by "reflecting on the prerogative attached to the husband by the pure English Common Law."t

To relieve the situation of married women in England a complicated system of jointures and settlements grew up and the Court of Chancery modified the action of the common law, so that in equity a married woman's disabilities were greatly reduced.

By the act of 3 and 4 William IV. called the Dower Act, covering all cases of marriage since 1834, the dower of married women has been placed completely within the power of their husbands. The effect has been that dower no longer exists in practice in England. In 1882 the Married Women's Property Act was passed, which provides that a married woman is capable of acquiring, holding and disposing by will, or otherwise, of any real or personal property as her separate property without trustee. "The effect of the law has been principally to improve the position of wives of the humbler class unprotected by marriage settlements." "The principal disability under which women are now placed is the exclusion of female heirs from intestate succession to real estate unless in absence of a male heir." The act of 1882 restored to married women the right to make a will of which the Norman Conquest had deprived them.

* "Land Laws," p. 113.

"Essay on Married Women's Property."

Washburn on " Real Property," I., 267.

"Encyclopedia Britannica," article on "Women, Laws in regard to."

It is perhaps not strange that the twelfth century principles should have lasted in England until the nineteenth, but it seems strange that the Americans, who laid aside many of the feudal customs, including primogeniture, as mediæval provisions out of place in a republic, should have kept the provisions of the Common Law regarding women apparently without question.

In France the régime of "liberty, fraternity and equality " was extended to women, and the Code Napoléon treats them with distinguished though not uniform fairness. In this country the same ferment was at work, but slowly. The great American lawyer, Timothy Walker,* attacked the common law on this subject in no uncertain terms, in 1837. "The whole theory is a slavish one compared even with the civil law. I do not hesitate to say that the law of husband and wife as you gather it from the books is a disgrace to any civilized nation. I do not mean to say that females are degraded in point of fact. I only say that the theory of the law degrades them almost to the level of slaves. We hold them amenable to the laws when made, but allow them no share in making them. This language applied to males would be the exact definition of political slavery."

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The first step toward new legislation on women's property was taken in Mississippi in 1839.† Since that time nearly every State has changed the common law provisions in some respect, the general tendency being to give married women control of their own property and earnings. The present state of the law is very chaotic, ranging from the old system, almost unmodified, in Kentucky and Tennessee, to the community of property derived from the civil law, which has its most liberal expressions in California. there the sexes are not equal.

"Introduction to American Law,” p. 255.


+ Hitchcock, "Marital Property Rights," Journal of Social Science, March, 1881. { Schouler, 184. "We may observe both in England and the United States a liberal disposition of courts and legislature within the present century to bring her nearer to the plane of manhood and advance her condition from obedient wife to something like co-equal marriage partner."

In the statutes on this subject in our various States, inequalities on both sides are to be found. Advantages are unjustly given to husbands in some provisions and to wives in others. The law on this whole subject needs revision. The common-law dower prevails in twenty-six States and an Act of Congress, passed March 3, 1887, provides that a widow shall have this right of dower in all the territories of the United States. The common-law share of one-third the personal property is also widely prevalent, but in a considerable number of States the wife is entitled only to a child's share, which may be even less than the Norman widow received.

In most States a married woman may make a will "under more or less restrictions. If her husband assents in writing to her will of her personal estate, that will is everywhere good."

It is not the purpose of this monograph to discuss the present state of married women's property. But I have called attention to it in order to remark the curious fact that the Norman dower of one-third the real estate, which superseded the community of property of our Anglo-Saxon forefathers, is still the rule eight centuries later in a large number of the laws of a race which has no prouder name for itself than Anglo-Saxon.

Oshkosh, Wis.


*The working of this act is doubtful.

L. J. Robinson, "Law of Husband and Wife," p. 59.


That cotton raising on small holdings, as now carried on in the South, has economic disadvantages against which the farmer finds it difficult to struggle, may be true; but the situation of the farmer can not be understood nor the direction of its improvement indicated until the non-essential conditions under which he lives are taken into account, especially the sort of peonage under which he is held by the merchant.

Before the civil war the agricultural land of the South was owned and cultivated in large areas by white planters who were wealthy and independent. Their purchases and sales were made through agents and brokers whose accounts showed balances in favor of the planters sufficient to meet all purchases made in their behalf and all drafts made by them for cash. When a planter wanted sugar, coffee, clothing for slaves and other supplies that could not be produced on the plantation, they were bought by the agent and their cost charged against the balance in his hands remaining from sales of cotton or other products. It rested with the planter to decide how much cotton he would raise, and, if he had preferred to abandon cotton for other products, no one was in a situation to prevent him from doing so. He made bacon and raised corn, but not so much as he should have done, and, as far as he could economically and conveniently do so, he produced other supplies. His plantation was an independent little principality, on which the small economies were attended to, and these were of considerable importance. The slaves kept the various implements in repair, did the work of blacksmiths and carpenters, pruned and grafted in the orchards, and guarded the poultry from hawks and foxes; their labor, in numerous directions, was superintended intelligently and effectively and with a view to prevent waste, losses and idleness.

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