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Subject Area: Law
Topic: The American Revolution and Constitution

§ 193.: Husband’s control of wife’s property.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 193.

Husband’s control of wife’s property.—

Starting out with the proposition, that in the eye of the law husband and wife are looked upon as one person, a duality of which the husband is the head and legal representative, the legal personality being merged in that of her husband, the necessary logical consequence is that he acquires, either absolutely or during coverture, all the rights of property which she possessed, for rights can only be predicated of a legal personality. For this reason, therefore, in the days when the study of law was an exercise in the rigid rules of logic, instead of an earnest effort to discover the means by which substantial justice may be meted out, the wife’s property passed upon marriage, with herself, under the control of the husband. There were other reasons, which might have appeared important in the primeval days of the common law, and justified in the minds of the framers of the law this legal absorption by the husband of the wife’s property, as well as herself. Under the early law as now, the husband was obliged to support the wife, and it was thought but fair that he should have the management and control of all the property that she might have, in consideration of this obligation to support.1

But probably the best reason for this rule may be found in the fact, that when the feudal system prevailed, there were no obligations of citizenship, except such as arose out of the relation of lord and vassal in respect to the land which the latter may hold under the lord, and for which the vassal had to render services of various kinds, usually of such a nature that only a man could perform them.1 When, therefore, lands were acquired by a woman, by descent or otherwise, who subsequently married, her husband had to perform the services due to the lord, and it was but just that he should have the credit of it. The same reasons did not apply to personal property, but in this rude age personal property was inconsiderable; and consisted chiefly of such that a married couple would use in common, household goods and domestic animals, which after a long use in common with like property of the husband, would well-nigh pass beyond the possibility of identification; and, because of this difficulty, the law gave to the legal representative of the duality all such property that was not capable of easy identification, as constituting part of the wife’s paraphernalia.

These reasons are not presented as the justification of such a law at the present day. So grossly unjust has it been felt to be for years and centuries, that with the aid of equity’s corrective influence over the common law, whereby the hard logic of the common law may be respected and yet substantial justice be within the reach of all, it has been possible for any one about to convey property, whether real or personal, to a woman, or for the young woman herself, before marriage, to so settle her property, that it shall remain her separate property, free from the control of her husband, notwithstanding the rules of the common law. And it is probably on account of the means, furnished by equity jurisprudence, of escape from the hardships of the common law in this respect, that the statutory changes, now so common, were not made ages ago. Indeed, it is the firm conviction of many jurists that statutes, which give to married women the same absolute and exclusive control over their property, which they had when single, do not confer upon woman an unmixed good. For while she is thus given the unlimited power of control over her property, she may ruin herself financially, by giving heed to the persuasions of her husband, against which she cannot usually hold out, more readily than she could when, under the rules of equity, her separate property is settled upon her, with limitations upon her power of control, imposed for her own protection. But there can be no doubt that the common law in respect to the property rights of married women, in the present age, cannot be justified by any rule or reason known to constitutional law, however just it may have been under the feudal system. But it is to be supposed that in consequence of the proverbial conservatism of the law, and the remarkable longevity of common-law principles, the wrong can only be remedied by statutory changes.1

[1]See Addoms v. Marx, 50 N. J. L. 253, in which it was held that a statute, which made the husband liable for and on the debts and contracts of the wife, was unconstitutional so far as it was made to apply to marriages, which had been contracted before the enactment of the law. This is a singular retrogression to the policy of the old English common law.

[1]See Tiedeman on Real Property, § 20; 1 Washb. on Real Prop. 46, citing 3 Guizot Nat. Hist. Civ. 108.

[1]“Marriage is not simply a contract; but a public institution, not reserved by any constitutional provision from legislative control; and all rights in property, growing out of the marital relation, are alike subject to regulation by the legislative power.” Noel v. Ewing, 9 Ind. 37. See ante, § 135, for a full discussion of the power of the legislature to change the marital rights of husband and wife in the property of each other.