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Subject Area: Law
Topic: The American Revolution and Constitution

§ 194.: Legal disabilities of married women.— - 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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§ 194.

Legal disabilities of married women.—

It is also a consequence of the legal theory, that the personality of the wife is lost in that of the husband, that married women are placed under various legal disabilities, the most important of which is that they cannot make a valid contract. If they could not hold property in their individual capacity, it would hardly be consistent to give them the power to make contracts in their own names. As agents of their husbands, they could make any contracts that came within the scope of their expressed or implied authority; but they were not allowed to make contracts, the performance of which they could not guarantee, since their property was not subject to their control. When equity provided a way, in which a married woman could hold separate property, she was permitted in equity to make contracts in respect to such property, and the creditors could enforce such claims against the separate estate by instituting the proper action in a court of equity. This was but just, for the disability to contract was but a consequence of the common-law rule, which gave to the husband the complete control of her property. When, therefore, by statutory changes her property rights are secured to the married woman, free from the control of her husband, there can be no reason or justice in retaining the common-law disability to make a contract, except as a protection to herself against the evil designs of her husband. It is no doubt permissible for the law to provide this protection by making void all her contracts and gifts of property to her husband; but the disability must be kept within these limits, in order to be consonant with common justice.

CHAPTER XIII.

STATE REGULATION OF THE RELATION OF PARENT AND CHILD, AND OF GUARDIAN AND WARD.

SECTION195.Original character of the relation of parent and child—Its political aspect.
196.No limitation to State interference.
196a.People v. Turner.
197.Compulsory education.
198.Child’s right to attend public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.
199.Parents’ duty of maintenance.
200.Child’s duty to support indigent parents.
201.Relation of guardian and ward altogether subject to State regulation.
202.Testamentary guardians.