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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 commonlaw principles, the wrong can only be remedied by statutory changes.?
§ 163. 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,
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
POLICE REGULATION OF THE RELATION OF PARENT AND
CHILD, AND OF GUARDIAN AND WARD.
SECTION 165. Original character of the relation of parent and child — Its
§ 165. Original character of the relation of parent and child — Its political aspect. — The early history of all the Aryan races, from whom the modern European races have sprung, reveals the family, with the husband and father as autocrat, as the primal social and political organization, upon which subsequently the broader organizations of tribe and nation were established. The tribe was a union of families, of Gentes, and the nation a union of tribes. But the family organization remained intact, and the tribal government was represented by the father or head of the family. The other members of the family did not have a voice in the administration of the tribal affairs, nor did the government of the tribe have any control of the concerns of the family. The father and head of the family ruled its members without constraint, could command the services of the child, make a valid sale of the adult children as well as the minor, and punish them for offenses, inflicting any penalty which his wisdom or caprice may suggest, even to the taking of life. Nor did this police control extend only to the offenses committed against the members of the same family. The members of one family bore no legal relation to those of another, except the two heads. If the member of one family was guilty of a trespass upon the rights of a member of another family, the head of the latter family demanded redress from the head of the former, and he would inflict the proper punishment upon his offending kinsman, or else prepare to bear the responsibility of the act in an appeal to the tribal authorities.
It is not necessary to enter into the details of the family relation, in its political character. It is sufficient for the present purposes to say that it is in the political character of the family as an institution of government, that the father is given this absolute control over the children and others forming the family of which he is the head and ruler. It is not in his natural capacity of a sire that the justification of this control is to be found. When, therefore, the family ceases to be a subdivision of the body politic, and becomes a domestic relation instead of a political institution, we expect to find, and we do find as a fact, that this absolute control of the children is taken away. The children, like the father, become members of the body politic, and acquire political and civil rights, independently of the father. Then this supreme control is transferred to the State, the father retaining only such power of control over his children during minority, as the promptings of nature and a due consideration of the welfare of the child would suggest. By the abolition of the family relation as a political institution, the child, whatever may be his age, acquires the same claim to liberty of action as the adult, viz. : the right to the largest liberty that is consistent with the enjoyinent of a like liberty on the part of others; and he is only subject to restraint, so far as such restraint is necessary for the promotion of the general welfare or beneficial as a means of protection to himself. The parent has no natural vested right to the control of his child. Except in the day when the family was a political institution of which the father was the king or
ruler, his power over the child during minority is in the nature of a trust, reposed in him by the State (or it may, historically, be more correct to say, which the State reserved to the father, when the political character of the family was abolished), which may be extended or contracted, according as the public welfare may require. To recognize in the father any absolute right to the control of his child, would be to deny that" all men are born free and equal.” For if the child is subject to the commands of the father, as a matter of abstract right, there can be no limitation upon the parental control, except what may be necessary to promote the general welfare, for the prevention of cruelty to the children, and for the protection of the rights of members of other families ; the political powers of the father of the patriarchal age could not be taken away from him and vested in some other State organization. The father has as much a right to control the actions of his child when he is over twenty-one years of age as when he is below that age. Liberty, therefore, as we understand it, was not created for him ; the heads of families alone are freemen. But it is said that men are free to do as they please, when they become of age. By what authority are they denied their full liberty until they reach the age of twenty-one? Is a youth of twenty, by nature, less free than the youth of twenty-one? Is it because the father has a natural right to control the actions, and command the obedience, of the youth of twenty, and had not the same power of control over the youth of twenty-one? We have seen that in his political character the father exercised the same absolute control over the members of his family, whatever may be the age of the child or other member of the family. With the abolition of the family, as a political institution, the parental control was limited to the period of minority of the child, and the adult was free to do as he pleased, being only amenable to the State or society for infractions of its laws. If all men are born free and equal, are entitled to the