50
THE CONGRESS OF WOMEN.
these the wife’s earnings are either absolutely the husband’s, or “subject to his control.” The wife’s power to do business and make contracts varies greatly in the different states. In most of the states she may be a trader and bind herself by any contract made in her business. In fact, there seems to be but four states which absolutely prohibit the married woman from doing business on her own account. These are Wisconsin, Vermont, Rhode Island and Texas, and in the two last named the wife has scarcely any more power to make any kind of a binding contract than she had at common law. The power to sue and be sued in court is a necessary consequence of legal permission to make a contract; so in every state where a wife can independently of her husband make a valid contract, the law furnishes a remedy upon such contracts by a right of suit by or against the wife for a breach thereof. An interesting question is, How far can husbands and wives have direct business dealings with each other, so that they may sue each other for breach of an ordinary business contract?
Under the old English equity system, still in force in our country, also, if a wife loaned money to her husband upon his promise to repay, a court of equity would upon her petition compel him to refund the money. This was the only instance where a wife could sue her husband. A court of law would never allow husbands and wives to sue each other, or even to testify for or against each other. But our modern stat- * utes are in many states sufficiently broad to allow husbands and wives to contract as freely with each other, and to sue and be sued, as if they were not married. This is especially true of the states west of the Mississippi, but a number of the older states, as New York, Pennsylvania, Mississippi and South Carolina, grant a like freedom.
Although the legal separate existence of the wife is now a fact in our country, the husband is still viewed as the head of the family, the natural guardian of the children, and he alone is liable for the support of the family. In some of our newer western states, all property acquired by either husband or wife during the marriage is the joint property of both, and in such a case the parents are jointly liable for the support of the family. The same is true in a few other states, which hold the parents jointly liable (while not recognizing any joint ownership of property) out of their own separate estates. In but six states of the Union is the mother’s right to the guardianship of her children recognized by statute as equal to that of the father. These states are Oregon, Washington, Nebraska, Kansas, Iowa and New York.
In England the wife has full property rights and contract powers. Turning to the condition of the married woman under the codes of Continental Europe, we see that very much progress has been made. The doctrine of all those countries which have for a fundamental law the code Napoleon, is that of the marital supremacy of the husband and the complete subjection of the wife. It is the old idea of the frailty of the sex. It is true that the code recognizes a common ownership of property, but the complete management and control of the same is in the husband. If the dowry of the wife is imperiled, or the husband’s affairs are in a serious condition, the wife may have her property set apart for her out of the common purse. The earnings of the wife belong to the husband, and he can pledge her personal effects for his debts. She may be a merchant, but she must first be authorized by her husband to do so, and even then her contracts are not as absolutely binding upon her as upon a man. She cannot be the guardian of her children. In Italy and Russia these features are somewhat modified, and the wife’s property is, as with us, her sole and separate property. In Russia she maintains a completely separate legal existence, and can do business, sue and be sued, independently of her husband. The husband is obliged to support the family, however, and the wife is not bound to do so. In Italy she needs merely a general power of attorney from her husband to enable her to act as a single woman in respect to her property, and not even this is necessary for her to be a merchant, nor in case of the minority, imprisonment or absence of the husband.
The condition of the widow is much changed in England and America. The ancient law of dower,that is, the life interest in one-third the husband’s real estate, has been very generally abolished, and instead thereof the widow or the widower is entitled