With reference to the guardianship of children, the custom is in advance of the law; while her power to make a will is so carefully guarded, that it might as well be surrendered.
A married woman in Massachusetts can make no contract to bind her, except one strictly relating to her trade, business, or property. She cannot, for instance, indorse a note, or be a surety for another person in any way.
In Maine, since 1857, a wife may hold the wages of her own labor.
In Ohio, at the same date, the law gave this right only under conditions. Long before any such changes took place, however, the current of public opinion often forced courts to decide against the common law, and in accordance with equity,—equity not technically, but divinely, considered.
Judge Graham, of the Court of Common Pleas in Perry County, Penn., made such a decision in a suit where a wife claimed return of earnings loaned by her to her husband, and accumulated after marriage. The legal question brought before Judge Graham was, "Can a wife maintain a suit against her husband?" He decided that she could legally hold him to a contract of the kind under consideration; and a verdict was rendered for the woman, in the sum of $2,508.
In August, 1859, Mrs. Dorr put in a claim for $40,000 on her husband's estate, in the Court of Insolvency in Worcester County. The court objected to entertaining the claim until after the choice of an assignee. The hearing was never completed; some private adjustment taking its place. The claim was said to be the first of the kind in the Commonwealth.
We come now to the consideration of the Property Bill, passed in the spring of 1860 by the State of New York. Not only as the latest act of specific legislation, but as the most complete provision ever made by any government to outwit the common law, it demands our attention. After it was passed, a deficiency relating to the rights of guardianship was discovered, and a supplement was added. By these two acts, the "New-York Tribune" tells us that at least five thousand women in that State are redeemed from pauperism, and established in peaceful homes.
But the supplement bears on one important point, which should be alluded to. According to the common law, as I showed in referring to England, a daughter owes service only to her father. The mother, who bore and nursed her; who has trained her up, it may be by painful sacrifices, to habits of propriety and thrift,—has no claim upon her service, even in her minority. By conferring on the mother, in case of the father's decease, all the rights, remedies, privileges, and responsibilities in law appertaining to the father, the new act meets the difficulty.
Before quitting the subject, we cannot refrain from alluding to the fact, that, as early as 1849, the State of New York had passed a qualified measure in regard to property; and directing your attention to the manifest truth, that every imperfect act of legislation constitutes a new set of exceptions to general rules, and very undesirably complicates legal practice.
If reforms are not to be unpopular, they should be simple and complete.[44]