MIA: Library: Mary Beard, Woman as a Force in History, 1946

Woman as a Force in History. Mary Beard 1946

The Challenge of Legislation and Equity

THE Common Law, as multitudes of American lawyers saw it through Blackstone’s narrow eyes, was powerful. There is no doubt of that. But it could not gain undisputed mastery in America.

Resistance to the English common law had begun in the English colonies even before Blackstone published his laudation of that system. And this early resistance in America grew out of many circumstances – out of economic and political realities and developments. It took many forms, moreover. On an almost uninhabited continent, where land was cheap and often so free that any person or family could have it simply by “squatting” upon it, where the vast natural resources could sustain life if human beings were at all inclined to exert themselves, the English common law with its feudal characteristics was not accepted complacently by colonists at large. In the nature of things American, it could not be generally applied.

The mounting democratic spirit, associated with the comparatively wide distribution of freehold land ownership and the love of liberty underlying the migration of many Europeans to the new world, did not comport with the aristocratic servitudes of old feudal land tenures. This American distinction of economy and spirit was early manifested in colonial struggles with great landlords who in one way or another, usually by grants from the English Crown, had acquired huge estates. Furthermore, at the end of the colonial period, freehold farming families, owning and tilling the soil, outnumbered by far all the owners of great manors, estates, and plantations.

In the circumstances peculiar to the new world, immigrants to America began to cast off the restrictions of English law as soon as they had reached these shores and commenced to parcel out the land among themselves. And throughout the colonial era three stringent rules were applied to the acceptance of the common law as binding on the founders and builders of American civilization. First, it was only the common law existing at the time of the founding of the particular colony which was to be treated as binding upon the inhabitants. Second, only those principles of the common law were adopted in any colony which were “suited to the conditions” of that colony, as the lawyers admitted. Third, very early in its founding and development each colony had a legislature, and American legislatures soon began to pour out statutes that revised in numerous respects the doctrines of the common law which otherwise might have been applied by the courts of law.

The Americans Wage War on the Common Law

In the documents of the period following the American Revolution were registered many protests against the theory that the common law generally prevailed in the states of the Union. On this point Jefferson said, in 18 12, in the course of a letter to judge John Tyler of Virginia: “On the other subject of your letter, the application of the common law to our present situation, I deride with you the ordinary doctrine, that we brought with us from England the common law rights... . The truth is, that we brought with us the rights of men; of expatriated men. On our arrival here, the question would at once arise, by what law will we govern ourselves? The resolution seems to have been, by that system, with which we are familiar, to be altered by ourselves occasionally, and adapted to our new situation... . But the state of the English law at the date of our emigration, constituted the system adopted here.”

Owing to the fact that the general domain of civil law was left to the determination of the several states after the Revolution and even after the adoption of the Federal Constitution, there was no uniformity in the extension of equity jurisprudence or in modifications of the common law in that direction. This did not mean, however, that in those states which gave little force to equity the common law as expounded by Blackstone was fully accepted. The extent to which equity was accepted and enforced varied from state to state but the degree and nature of its usage gave distinction to American jurisprudence.

In an opinion written in 1819, judge Peters of Connecticut objected to the contention of the majority of the state supreme court to the effect that a common law of crimes had existed in that state. “I have sought in vain, in the history and legislative acts of our ancestors, for a confirmation of this doctrine. But it is apparent to my understanding that their sole object was to found a pure government in church and commonwealth, ‘surely bottomed on the word of God,’ and that they brought with them no more affection for the common law than the canon law, the court of star-chamber, and the high commission, from which they fled with horror and detestation.” Although judge Peters’ opinion was a minority opinion in that court, it represented the attitude of countless Americans toward attempts to make the common law govern generally in the United States. American legislation did not consist merely of statutory amendments and rejections of the common law.

When it is said, therefore, as it must be said on the basis of historical records, that, in the middle years of the nineteenth century, Equity was enthroned only to a limited extent in Maine, Massachusetts, New Hampshire, and Rhode Island, a caution must be added. Such a statement does not tell the whole story. In colonial times the legislatures of New England turned out statutes in large volume. Under the laws of the Plymouth colony, the high court of assistants was given jurisdiction over “such matters of equity as could not be relieved at law.” Although no such general jurisdiction was ever conferred upon the colonial courts of Massachusetts, Rhode Island, and Connecticut, these three colonies, by legislation, made innumerable laws of their own, touching the law of property and crimes. Not until the history of legislation in colonial and later times has been written will it be possible to discover how far equity principles or other more enlightened principles had been “digested” by statute law before 1850. Hence the following table, which illustrates the rapid spread of equity jurisprudence by the middle of the nineteenth century, by no means reveals the full extent to which the common law had been supplanted by other principles through legislation and judicial decisions.

Of the original thirteen states, by 1850 several had recognized or adopted equity jurisprudence and had vested jurisdiction over cases in equity either in special courts of Chancery or in the ordinary courts of law.

Virginia. The constitution of 17 76, in force until 1830, empowered the legislature to appoint judges in chancery, as well as judges of other high courts. Lower courts of equity were created in 1802. Under the constitution of 1830 general judicial power was vested in a supreme court and inferior courts, including county courts and the justices of the peace. Thus the same set of judges had jurisdiction over laws and equity.

North Carolina. The constitution of 1776 instructed the legislature to make provision for the salaries of “the judges of the supreme court of law and equity.” The jurisdiction and proceedings in chancery were extensively covered by legislation.

South Carolina. The constitutions of 1776 and 1778 made provision for chancery courts. The constitution of 1790, in force until the civil war, vested judicial powers in such superior and inferior courts of law and equity as the legislature might direct and establish. In I 850 equity powers were still vested in and exercised by separate tribunals on the English model.

Maryland. The constitution of 1776 had provisions relative to the chancellor and the court of chancery. Later a mixed jurisdiction in law and equity was conferred on Maryland courts.

Delaware. After trying a mixture of law and equity under the constitution of 1776, Delaware, by the constitution of 1792, established a special court of chancery, required to hold sessions in the several counties of the state.

New Jersey. Under the constitution of 1776, New Jersey long relied upon the common law as modified by legislation in which law and equity were blended; but by the constitution of 1844 New Jersey provided for a separate court of chancery, and made the chancellor a member of the court of errors and appeals.

New York. The constitution of 1777 provided for a chancellor. In 1823 the office of chancellor was abolished and equity distributed among law courts and vice-chancellors’ courts. In 1846 jurisdiction over law and equity was vested in the regular courts of law, high and low.

In the remaining original states, six in number, the use of equity was limited, either particularly or loosely.

Pennsylvania. Under the constitutions of 17 7 6 and 17 go regular courts had grants of a few specific equity powers. These were extended greatly in 1836 and 1840 but not made broad and universal.

Georgia. Ordinary courts of law were given equity powers over all cases where the common-law remedy was inadequate.

Connecticut. James Kent noted in his Commentaries: “In the revised Statute Code of Connecticut, published in 1784, p. 48, and again in 182 1, P. 195, the courts having jurisdiction of suits in equity arc directed to proceed according to the rules in equity, and to take cognizance of such matters only wherein adequate remedy cannot be had in the ordinary course of law. But, under this general grant, the equity system in Connecticut appears, in practice, to be broad and liberal.”

Rhode Island. The constitution of 1842 authorized the legislature to confer equity powers on the supreme court but on no other court to any greater extent “than is now provided by law.” In practice the exercise of equity powers by the courts was closely limited.

Massachusetts and New Hampshire. Chancery powers in general were strictly limited in Massachusetts and New Hampshire; but in relation to trusts created by will, the performance of contracts concerning land as against heirs, and some other matters, the supreme judicial court in Massachusetts had ample equity powers.

As new states came into the original Union, the equity powers conferred upon courts varied from extremely limited to broad and general; and in practice the application of equity by courts varied in the same way, often according to the quality of the judges chosen to enforce law and equity. In Vermont, equity powers were severely limited. Tennessee in 1796 empowered the legislature to vest judicial powers in superior and inferior courts of law and equity. The Ohio constitution of 1803 vested the judicial power “in matters of law and equity” in the supreme court, courts of common pleas in each county, justices of the peace, and such other courts as the legislature might establish. The supreme court heard appeals in common law and equity. The Indiana constitution of 18 16 gave the judicial power “both as to matter’s of law and equity” to the supreme court, circuit courts, and other inferior courts which the legislature might establish from time to time. Under the Michigan constitution of 1835 “a separate court of equity was established, with plenary powers and jurisdiction”; the state was divided into circuits and the chancellor held sessions in each circuit; appeals from the chancellor’s court came under the equity jurisdiction of the supreme court. In other states of the West and South equity jurisdiction was generally limited, but equity proceedings were distinct from proceedings in law and appeals were heard by the supreme court. Louisiana, whose law was based upon the French civil code, was the one state in 1850 in which the distinction between law and equity in the English sense apparently was not recognized at all.

An impetus to the spread of equity in the United States was given by the adoption of the Federal Constitution and the establishment of the federal judiciary in 1789. The third article of the Constitution provided that the judicial power shall extend to “all cases arising in law and equity” under the Constitution, laws, and treaties of the United States. Thus, as judge Story wrote in his Commentaries on the Constitution of the United States, in 1833, when any case was a suit in equity, no less than in law, and involved any federal question, it came within the judicial power of the federal courts. Where equitable remedies were properly demanded by parties to suits, the principles of the decision were to be derived from equity sources. Since federal courts also had jurisdiction over suits between citizens of different states, often involving not federal law but state law only, the federal courts, when issues of equity were raised, confronted the necessity of applying, even developing, the principles of equity.

The Federal judiciary Act of 1789, drawn to carry into effect the article of the Constitution relative to judicial powers, provided that, in equity suits properly arising under the Constitution, proceedings shall be according to the principles, rules, and usages which belong to courts of equity as distinguished from courts of law. Speaking in 18 19 of a case in equity which rose in Massachusetts, where equity was extremely limited, Chief justice Marshall declared: “As the Courts of the Union have a chancery jurisdiction in every State and the judiciary Act confers the same chancery powers on all, and gives the same rule of decision, its jurisdiction in Massachusetts must be the same as in other States.” Confirming this view in 1869, justice Davis, of the Supreme Court, asserted: “The Equity jurisdiction conferred on the Federal Courts is the same that the High Court of Chancery in England possesses; is subject to neither limitation nor restraint by State Legislation, and is uniform throughout the different States of the Union.” Although the range of federal equity was limited to specific types of cases, its application in such cases extended throughout the Union and even Blackstone lawyers in search of remedies in federal courts for their clients were remiss if they knew no equity as developed by federal courts.

While the makers of state constitutions were establishing or empowering legislatures to establish separate equity courts or mixed courts having jurisdiction in law and equity, legislatures in the states were sweeping away whole sections of the common law, particularly in respect of the property rights of married women, and substituting new law based on or going beyond equity principles. This is what Thomas Jefferson hoped that his fellow citizens would do, as he made evident in the letter already mentioned: “For, however I admit the superiority of the [Roman] civil law over the common law code, as a system of perfect justice, yet an incorporation of the two would be like Nebuchadnezzar’s image of metals and clay, a thing without cohesion of parts. The only natural improvement of the common law, is through its homogeneous ally, the chancery, in which new principles are to be examined, concocted and digested. But when, by repeated decisions and modifications, they are rendered pure and certain, they should be transferred by statute to the courts of common law, and placed within the pale of juries.”

State Legislation Overrides Common Law Doctrines

In no respect was the swiftness and radicalism of this new movement more evident than in modifications of the land laws, particularly with regard to primogeniture and entail, both features of the feudal law incorporated in the common law. The rule of primogeniture prescribed that, if the father died without making a will, his lands passed to the eldest son, if there was one, or through a daughter or daughters, to eldest sons. Under the law of entail, a landed estate could be irrevocably vested in a man and his legitimate descendants, according to arrangements which the maker of the legal instrument might devise, within limits. Both primogeniture and entail formed the basis of the English landed aristocracy. But they were early resented in several of the American colonies and after 1776 they encountered revolutionary opposition.

The situation in New England was peculiar, for the leveling spirit was strong among the Puritans. Their laws gave landholders a considerable freedom in distributing their property by gift or will among their children – sons and daughters. Nevertheless, owing to their attachment to the Mosaic law, they generally provided that, in case a landowner left no will, an exception to equal distribution must be made: the eldest son was to have a double share of the estate. Primogeniture once existed in Pennsylvania and Maryland, but it had been abolished there before the Revolution. So had entails in South Carolina. In 1776, however, primogeniture and entails were still well entrenched in New York, New Jersey, Virginia, North Carolina, and Georgia.

“Then came the Revolution,” as J. Franklin Jameson says in The American Revolution Considered as a Social Movement. “In ten years from the Declaration of Independence every state had abolished entails, excepting two, and those were two in which entails were rare. In fifteen years every state, without exception, abolished primogeniture and in some form provided for equality of inheritance, since which time the American eldest son has never been a privileged character. It is painful to have to confess that two states, North Carolina and New Jersey, did not at once put the daughters of the Revolution upon a level with the sons. North Carolina for a few years provided for equal distribution of the lands among the sons alone, and not among the daughters save in case there were no sons. New Jersey gave the sons a double share. But elsewhere absolute equality was introduced.”

Of the Virginia movement for the revolution in land tenure, Thomas Jefferson was the leader, and he was proud of his accomplishments. From the outset he insisted upon equal distribution among sons and daughters. When one of his colleagues, Edmund Pendleton, proposed to “adopt the Hebrew principle, and give a double portion to the elder son,” Jefferson replied: “If the eldest son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on a par in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony.” Thus Jefferson advanced the democratic principle of equality against common-law doctrines held by Blackstone lawyers in America.

Long before 1850 practically all vestiges of feudal land tenures had been abolished in the original states and one tenure had been substituted as basic, namely, freehold tenure in fee simple; and the principle of equal distribution among children, saving the widow’s special share, had become the general rule applicable in cases where the owner died intestate. As feudal tenures were never introduced in the Western states, the rule of freehold tenure in fee simple and the principles of equal distribution were more easily established there as a matter of course.

In this legal development the daughters of land owners became land owners in increasing numbers. Besides, owing to the amount and cheapness of land, unmarried women could acquire and did acquire, by various methods of purchase, inheritance, and devise, land holdings in all parts of the country, especially in the West. In this way their economic power was enlarged, and additional reasons were provided for modifying the common-law rules respecting the power of the husband over the wife’s real and personal property. An ever greater number of fathers and mothers had manifest grounds for protecting their daughters against selfish or improvident husbands through a resort to the safeguards of equity, in case modifications had not already been made by legislation in the common-law rules expounded under the Blackstone fiction.

So much for landed property. With reference to the distribution of personal property of persons dying intestate – furniture, jewels, money, goods, stocks, bonds, notes, and evidences of indebtedness in general – the rule of equal distribution among children, saving the wife’s share, was adopted earlier and prevailed even more easily. This was partly due to the growing importance of commerce and industry as against agriculture and the ever-increasing proportion of personal property in the total national wealth, and partly to the fact that American colonists had quickly grasped the significance of the English statute of 1671 for the distribution of personal estates. That statute, enacted in the reign of Charles II, covered in great detail the distribution of personal property in all cases of intestacy. The colony of New Jersey adopted it ten years after its passage, that is in 1681, and other colonies brought it into application, subject to various qualifications. Blackstone had taken note of it and American lawyers who studied the Commentaries could hardly miss it.

The English statute of distributions provided that, after the discharge of the intestate’s debts and other proper obligations, the remaining goods and personal estate should be divided as follows: “one third part ... to the wife of the intestate, and of the residue, by equal portions, to and amongst the children of the intestate and their representatives.” For cases in which there was no widow or children or children’s descendants, the act made elaborate provision in detail for distribution among other relatives of the intestate. Although Blackstone insisted that the statute bore a close resemblance to the “ancient English law” and, in his regular manner, minimized its resemblance to Roman civil law, the substance of the act was borrowed from Justinian’s novels and, except in certain instances expressly mentioned, was to be construed and applied according to the rules of Roman civil law. In short, it came from a primary source of equity and in fact was written by a specialist in Roman law.

Since the equal distribution of personal property among sons and daughters increased the number of women, single and married, who acquired property, it made still more objectionable to men and women involved in the process the common-law doctrine which, in the absence of other arrangements, vested the married woman’s personal property in her husband during marriage. And men and women were often equally concerned in avoiding the proscriptions of the common law as applied to any particular woman. The father and mother, brothers and sisters, and other relatives, male and female, had interests, affectionate and practical, in safeguarding a woman’s rights before and after her marriage. The woman herself, holding property or knowing that property would come into her possession at some time, could scarcely be indifferent to the disabilities she could incur in respect of her property under common-law rules. In anticipation of marriage or afterward, if informed at all, she knew that her personal property, in case of misfortune to her husband, might be swept away for the benefit of his creditors and a part, if not the whole, of the family support be destroyed. Moreover, a husband, in his regard for his intended or his actual wife, if not in his own interest, if informed at all, knew that, in case of misfortune to him, under the common-law rules his wife’s estate as well as his own might be seized for the benefit of creditors.

For such men and women there was only one unfailing recourse until the abolition of the common-law doctrines respecting married women’s property was effected by legislation: that was to ante-nuptial and post-nuptial arrangements authorized by equity jurisprudence and enforced by courts of equity. As time passed resort to such arrangements became more common; and Blackstone’s feudal law was more and more civilized by the spread of equity jurisprudence in the United States. Indeed it is scarcely too much to say that the moral revolution in respect of married women’s property rights had occurred before 1840 and that the married women’s property acts, which completed the revolt against Blackstone, merely transformed generally accepted equity principles into provisions of statutes.

From decade to decade, as the nineteenth century advanced, the battle between Equity and Blackstone for possession of the law intensified. From the seaboard to the frontiers of the United States, thousands of courts, independent and mixed, on petitions in due form and at the insistence of equity lawyers, applied Equity to the correction of common-law discriminations against married women, establishing more and more the equality of rights which had prevailed in the civil law of Rome in the age of Roman enlightenment. Leaders in the woman movement joined men in the war on Blackstone and demanded from legislators the enactment of statutes designed to obliterate common-law rules and to safeguard the property rights of women in general and bring them into more accord with the spirit of the age.

Great American Commentators on Law and Equity Begin to Break the Tyranny of Blackstone

Another factor in the disintegration of the Blackstone dogma was the publication of great treatises on American law in which Equity received a recognition denied to it in the Commentaries on the Laws of England. It is true that American editors who brought out fresh editions of Blackstone from time to time inserted notes calling attention to some legal departures in the United States; but they treated the changes on the whole in a cavalier fashion. It was American writers of law books, writing for American readers, who first devoted serious attention to modifications in the common law by American statutes and by the inroads of Equity. If in the early age of the Republic of the United States, when the allegiance to Blackstone was so tenacious, the average Americans who stood out as leaders of opinion had excuses for being unaware of the nature and force of equity as practice, their heirs and successors had no such grounds for justifying their ignorance in the time of Andrew Jackson and the rise of American democracy. Books for the appraisal and correction of Blackstone as master of jurisprudence were then in the public bookshops and in many private libraries.

Two men trained in Blackstone’s version of English and inherited American law led the way in this intellectual revolution: James Kent and Joseph Story.

The first great treatise of the new age was James Kent’s Commentaries on American Law in four volumes. They were published from 1827 to 1830, and the work was received with so much enthusiasm that five new editions came from his pen by 1848. In

many ways Kent was peculiarly fitted to make this monumental survey of American law and equity. He had begun his career as a disciple of Blackstone; of this experience he later said that the reading of Blackstone’s four volumes had “inspired me, at the age of fifteen, with awe, and I fondly determined to be a lawyer.” From the practice of law in New York, he rose high in the administration of justice. From 1796 to 1798 he was dispensing Equity as a master in chancery; from 1798 to 1814 he was a judge of the New York supreme court; from 1814 to 1823 he served as chancellor of the New York chancery court.

After his retirement, Kent lectured on law at Columbia College and devoted himself to the study of law as historically developed and practiced. His extraordinary learning, his case with foreign languages and his study of Roman and Continental law, combined with his special knowledge of American law, qualified him for the immense undertaking he assumed. As a Federalist in politics and hostile to the democratic equalitarianism of the age, Kent in legal theory followed the Federalist line, but his political predilections did not lead him to bypass or belittle Equity in the style of his early mentor, Sir William Blackstone. He preferred, he confessed, the common law to the civil law of Rome on “paternal and conjugal relations,” and he did not go as far as he could have done in treating equity principles in that respect. Nevertheless, in his sections on the property rights of women in American law, he demonstrated that equity had in practice extensively shaken the force of the common-law doctrines.

True to common-law traditions, Kent opened his chapter on husband and wife with a statement of the Blackstone summary on husband and wife. But he then dealt with modifications of the common law in America. And, unlike Blackstone, he immediately took up at length, in the very same chapter, the wife’s capacity in Equity and showed how most of the “disabilities” which prevailed at common law had been or could be voided in Equity.

After making this demonstration of equity’s power, Kent called distinct attention to the differences between American law and equity and the provisions of Roman and Continental civil law in respect of the rights of husband and wife. “Our law concerning marriage settlements,” he remarked, “appears to us at least to be quite simple, and easy to be digested, when compared with the complicated relations of the community and partnership system between husband and wife prevailing in parts of Europe and the state of Louisiana.” He added that “doubts may arise in the mind of a person educated in the school of the common law, as to the wisdom or policy of the powers which, by the civil law and the law of those modem nations which have adopted it, are conceded to the wife in matters of property.” But he noted that the civil law of Rome in the age of its enlightenment and of the modem countries which had followed this law conferred “equality and dignity upon the female character.”

Six years after Kent published the last volume of his Commentaries on American Law, justice Joseph Story brought out a great work in two volumes , entitled Commentaries on Equity jurisprudence as Administered in England and America and devoted entirely to the development and nature of equity in England and the United States. After his appointment as an associate justice of the United States Supreme Court in 1811, Story, who as Kent had done started his legal training with a study of Blackstone, dedicated spare time to independent research, combining it with work as a professor of law at Harvard after 1828.

Well versed in European history and law and given to wide ranging explorations, Story early encountered the deep imprints which Equity had made upon the Common Law, including that part of it concerned with the rights and obligations of married women. He spent years in examining the decisions and opinions in equity cases, English and American.

The results of his researches he employed in formulating and expounding the first principles of equity jurisprudence, supported by citations of specific cases settled in courts which enjoyed chancery jurisdiction. After the first edition appeared in 1836 no educated man or woman in the United States, who wished to discourse on the rights of women with knowledge and intelligence, had any just grounds for overlooking the drastic changes which equity had wrought in the common law or for treating Blackstone as the supreme legal authority. Story’s treatise went through many editions, the fourteenth edition coming out in 1918, at the end of the first world war.

Although Joseph Story, in his Commentaries on Equity Jurisprudence, was cautious and gentle in dealing with the curt way in which Blackstone handled equity, he entered a strong dissent as to Blackstone’s statement pertaining to the nature and substance of equity. Story, like Blackstone, rejected the extravagant claims of those writers who insisted that equity dispensed freely a kind of omniscient justice based on principles of universal and everlasting ethics. Like Blackstone, he conceded that equity had become a type of law fixed in many respects by long lines of precedents established by equity courts through the centuries. But Story challenged Blackstone’s narrow enumeration of the functions performed by equity. He chose an enumeration by Lord Redesdale as “far more satisfactory as a definite enumeration.” In Redesdale’s summation, equity must intervene “where the courts of ordinary jurisdiction are made instruments of injustice” and “where the principles of law, by which the ordinary courts are guided, give no right, and upon the principles of universal justice the interference of the judicial power is necessary to prevent a wrong and the positive law is silent”; ... and “to put a bound to vexations and oppressive litigation, and to prevent multiplicity of suits.” Thus, in effect, Story repudiated Blackstone’s illiberal views as to the very substance and duties of equity and accorded to it the flexibility for doing justice, which Blackstone and his school of lawyers sought to withhold from it.

At the opening of his chapter on “Married Women,” Story described the position of married women under the common law as expounded by Blackstone, beginning with the famous doctrine that husband and wife are “one person” – the husband – under that law. But he qualified that doctrine by indicating that even under the creed itself they were not “one!’ in all respects. Then Story proceeded to show in what fundamental respects equity modified, overrode, voided for particular purposes the common-law doctrines and substantiated the rights of married women in their persons and property.

Did a woman, after all, cease to exist at law in respect of her property rights when she married? Story answered: “Courts of Equity for many purposes treat the husband and wife as the civil law [of Rome] treats them, as distinct persons, capable (in a limited sense) of contracting with each other, of suing each other, and of having separate estates 1, debts, and interests. A wife may in a Court of Equity sue her husband and be sued by him. And in cases respecting her separate estate, she may also be sued without him, although he is ordinarily required to be joined, for the sake of conformity to the rule of law, as a nominal party whenever he is within the jurisdiction of the court and can be made a party.”

Do contracts made between a man and a woman before their marriage become utterly extinguished after they are married? It depends upon the nature of the contracts. “Courts of Equity ... will, in special cases in furtherance of the manifest intentions and objects of the parties, carry into effect such a contract made before marriage between husband and wife, although it would be voided at law. An agreement therefore entered into by husband and wife before marriage for the mutual settlement of their estates, or of the estate of either upon the other upon the marriage, even without the intervention of trustees, will be enforced in equity though void at law; for equity will not suffer the intention of the parties to be defeated by the very act which is designed to give effect to such a contract... . ‘In equity it is constant experience that the husband may sue the wife or the wife the husband.’ ... Where a husband covenanted before marriage with his intended wife that she should have the power to dispose Of 9300 of her estate, he was afterwards held bound specifically to perform it.” The same rule in equity was applied in cases where the woman bound herself to give her intended husband any portion of her estate.

But what of the woman’s contractual rights after marriage, when her separate personality “ceased to exist” at common law in such matters? “Courts of Equity will ... under particular circumstances give full effect and validity to post-nuptial contracts. Thus, for example, if a wife having a separate estate should bona fide enter into a contract with her husband to make him a certain allowance out of the income of such separate estate for a reasonable consideration, the contract, although void at law, would be held obligatory, and would be enforced in equity. So if the husband should after marriage for good reasons contract with his wife that she should separately possess and enjoy property bequeathed to her, the contract would be upheld in equity... . Nay, if an estate should be devised to a husband for the separate use of his wife, it would be considered as a trust for the wife, and he would be compelled to perform it.”

In general the husband, in Equity, could make gifts to his wife, although according to Blackstone she had no separate existence: “Courts of Equity will uphold them in many cases where they would be held void at law, although in other cases the rule of law will be recognized and enforced. Thus, for example, if a husband should by deed grant all his estate or property to his wife, the deed would be held inoperative in equity as it would be in law; for it could in no just sense be deemed a reasonable provision for her (which is all that the Courts of Equity hold the wife entitled to), and in giving her the whole he would surrender all his own interests. But on the other hand if the nature and circumstances of the gift or grant, whether: it be express or implied, are such that there is no ground to suspect fraud, but it amounts only to a reasonable provision for the wife, it will, even though made after coverture, be sustained in equity.”

Not only will reasonable post-nuptial settlements made by a husband upon his wife in return for proper consideration be enforced at equity, but a married woman may acquire and possess a separate estate subject to her own power and interests. “It is well known that the strict rules of the old common law would not permit the wife to take or enjoy any real or personal estate separate from or independent of her husband. And although these rules have been in some degree relaxed and modified in modem times, yet they have still a very comprehensive influence and operation in Courts of Law. On the other hand Courts of Equity have for a great length of time admitted the doctrine that a married woman is capable of taking real and personal estate to her own separate and exclusive use, and that she also has an incidental power to dispose of it. The power to hold real and personal property to her own separate and exclusive use may be and often is reserved to her by marriage articles or by an actual settlement made before marriage; and in that case the agreement becomes completely obligatory between the parties after marriage and regulates their future rights, interests, and duties. In a like manner real and personal property may be secured for the separate and exclusive use of a married woman after marriage, and thus the arrangement may acquire a complete obligation between the parties.”

But in the equity of the middle ages in England it was necessary to put property designed for the separate and exclusive use of a married woman in the hands of trustees obligated to manage it in her interest, subject to her scrutiny and her power to institute legal actions against them. Was this the absolute rule of equity for modern times? Story informed his readers that it was not: “It was formerly supposed that the interposition of trustees was in all arrangements of this sort, whether made before or after marriage, indispensable for the protection of the wife’s rights and interests. In other words, it was deemed absolutely necessary that the property of which the wife was to have the separate and exclusive use should be vested in trustees for her benefit; and that the agreement of the husband should be made with such trustees, or at least with persons capable of contracting with him for her benefit. But although in strict propriety that should always be done and it usually is done in regular and well-considered settlements, yet it has for more than a century been established in Courts of Equity that the intervention of trustees is not indispensable; and that whenever real or personal property is given or devised or settled upon a married woman either before or after marriage for her separate and exclusive use without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife’s interest protected against the marital rights and claims of her husband and of his creditors also. In all such cases the husband will be held a mere trustee for her; and although the agreement is made between him and her alone, the trust will attach upon him and be enforced in the same manner and under the same circumstances that it would be if he were a mere stranger. It makes no difference whether the separate estate be derived from her husband himself or from a mere stranger; for as to such separate estate when obtained in either way her husband will be treated as a mere trustee and prohibited from disposing of it to her prejudice.”

In numerous cases in equity involving the rights of the married woman in the enjoyment of property dedicated to her separate and exclusive use, equity made various discriminations. In each case the Court of Equity had to be on guard against loose claims made by the husband or the wife. In particular it had to be watchful lest the husband and wife had entered into collusion in this respect for the purpose of defrauding his or her creditors. For such reasons equity insisted that the instruments relative to the married woman’s property should contain precise language or terms showing that a separate and independent estate was actually intended by the parties to transactions and settlements in the premises. But in construing the rights of the married woman to her own property, Courts of Equity were generally liberal in that they sought to give effect to the intention of the parties respecting any such arrangement, settlement, or understanding.

Such arrangements respecting the separate existence and the rights of the married woman to the enjoyment of her own property, and the income derived from it, could be and were readily carried into effect in rural regions where most of the property was in land and in chattels associated with the operations of agriculture. Men and women could make innumerable agreements between themselves, in various relations, as husbands and wives, and as fathers or mothers in connection with their sons and daughters. The major portion of such arrangements were carried out by mutual understanding and never came before any court of law or court of equity for adjudication. But if litigation did arise involving equitable rights, courts of equity were prepared to enforce the rights of women as well as the rights of men in respect of reasonable agreements and separate holdings, if free of any taint of collusion intended to defraud the creditors of either husbands or wives.

What, however, of the right of the married woman, in the modern age of expanding commerce and industry, to engage in separate occupations an her own account? At common law the single woman could, of course, buy and sell, make contracts, sue and be sued, hold and transfer property at will in the same manner as the single or married man. But at Common Law the existence of the married woman was supposed to be “suspended” during marriage; she could not make independent contracts, buy and sell at her pleasure, sue or be sued, and hence she could not engage in business transactions on her own account.

What did Equity have to say about this domain of the married woman’s liberty? Story carefully considered this matter and replied: “By the custom of London a married woman may carry on trade within the city as a sole trader, and be liable as such.” Yet as a rule in England and the United States the practice raised many ticklish questions for both husbands and wives. If the wife was successful in trade, perhaps few issues arose, except as to the disposition of her accumulated property after her death. If, on the other hand, she was unsuccessful in trade and became heavily involved in debts, where then did the husband stand in case litigation arose between her and her creditors ? In this situation equity, in justice to both husband and wife, had to be circumspect, and inquire whether the husband was involved in the affair and/or had given his consent.

Story took into account the position of the married woman in business as far as equity was then concerned. “The right to carry on trade on her sole account,” he said, “may independently of any such custom [as prevailed in London] be established by an agreement between the husband and wife before or after marriage. When such an agreement is entered into before marriage, it stands upon a valuable consideration; and therefore, if there is the interposition of trustees, it will be maintained against the husband and his creditors as well at law as in equity. In such a case the trustees of the wife will be entitled to the property assigned and to the increase and profits thereof, for her sole and separate use and benefit... . Even if no trustees are interposed, the property will in the like case be protected in equity, against the claims of the husband and his creditors, and excepted out of the general rules which govern in cases of husband and wife.”

If the agreement for a separate trade by the wife occurred after marriage and was made in due form, both Equity and Law would enforce it for the protection of the wife’s interest against the husband and his creditors. “If it is a voluntary agreement, it will be good against the husband only, and not against his creditors.” But, of course, the wife in trade had to be careful as to the form of her transactions lest, through neglect, the husband enforce against her his rights in her property allowed to him by common law.

The wife, whether in trade or not, could have her separate estate in real and personal property and use the income of it for her sole and exclusive purposes. What of her right to dispose of it? Story also dealt with this question: “It may be laid down as a general rule ,that all ante-nuptial agreements for securing to a wife separate property will, unless the contrary is stipulated or implied, give her in equity the full power of disposing of the same, whether real or personal, by any suitable act or instrument in her lifetime, or by her last will, in the same manner and to the same extent as if she were a feme sole. And in all cases where a power for this purpose is reserved to her by means of a trust which is created for the purpose, she may execute the power without joining her trustees, unless it is made necessary by the instrument of trust.”

In the case of post-nuptial agreements respecting the wife’s separate estate, numerous fine distinctions appeared, particularly as to the rights of her husband and her heirs in her separate property. Many technical rules were therefore applied in relation to the right of the woman to dispose of separate property acquired after marriage. She could enjoy it for her own purposes but she could not sell, give, or bequeath any way she liked. In this connection it is important to know and remember that neither could the husband so dispose of his own property to any extent or in any way that suited his pleasure or convenience. The protection of the family through its property was at stake.

In numerous other cases, mounting upward into the hundreds by the time Story wrote his great work on Equity Jurisprudence, the rights of the married woman were protected by equity as against common-law doctrines. Of her dowry rights in her husband’s estate or their combined estates, so complicated and extensive in nature, there is no room to speak here, except to say that equity sought to maintain them as they stood at law and in equity, against the husband and all other claimants upon him. He too, of course, had his rights in her estate, exclusive of any portion assigned to her and her heirs for separate use. This was of necessity a certain outcome of the very marriage union which men and women voluntarily entered, thus assuming obligations which neither of them could morally or legally avoid at their pleasure afterward. Even if they desired or agreed to do exactly as they wished in their own relations, personal and propertied, both law and equity perforce had to intervene if other parties, such as creditors and heirs, instituted litigation against the husband or the wife or the two jointly or their estates. And equity courts, as well as common-law courts, in rendering decisions, had to consider the rights of outsiders, no less than the rights and obligations of the husband and the wife, and to enforce these rights in proper cases against husband and wife.

In cases at law and in equity, therefore, it was not often, if ever, a question whether the rights of the husband and wife were “equal.” It was usually a question of the rights and obligations attached to each party to the marriage and to both of them, by virtue of their act of marriage and the continuance of marital relations in varying circumstances of life. Equity sought to follow the common law in certain cases, the precedents of equity, and in final analysis the prescriptions of reasoned justice. Exact equality or exact justice to husband and wife and creditors and heirs was difficult to define – and still is; but an examination of Story’s volumes, to say nothing of other records of the time, reveals valiant efforts on the part of equity courts to attain the ideal of justice.

By way of illustrating this broad generalization another citation from Story may be given: “If it is apparent from the state of the case that the husband must remain in future without funds to maintain his wife, and there is an equitable fund belonging to her within the reach of a Court of Equity, it will decree the income of the whole fund to be applied primarily to the maintenance of the wife during her lifetime, and after her death the principal to be divided among her children. Thus if the husband has become insolvent and has ,taken advantage of an Insolvent Act, which discharges his person but not his future effects, there a Court of Equity will secure the whole fund in the manner above mentioned, for the benefit of the wife and children.”

Not only did equity protect the married woman against restraints of common law in innumerable relations. It protected young unmarried men and women against various kinds of fraudulent and coercive acts on the part of each other or their parents or outside persons. Equity did this on the general principle that all conditions and actions against the liberty of young men and women to choose their own mates were unlawful, void and unenforceable. For example, a gift or grant based on the condition that a person did not marry until reaching the age of fifty was void. So was a condition that a girt should not marry a lawyer or a physician or any person not a member of a particular craft or trade. On the other hand, many conditions were held valid, such as the condition to marry or not to marry a person or persons specified by name.

Anyone who runs through hundreds of equity cases involving restraints on the right of young men and women to marry (or widows and widowers, as well) will discover problems put up to equity courts that might well defy the wisdom of omniscient justice to settle according to rules of universal right and equality. Yet anyone who makes a survey of this kind must be deeply impressed by the reasonableness and humane spirit of Equity, as it broadened through the years.

Since such were the rights of women in Equity as things stood in 1836, fortified by a long line of precedents stretching back through the centuries, it seems perfectly plain that the dogma of woman’s complete historic subjection to man must be rated as one of the most fantastic myths ever created by the human mind.