Legal Position of Women

Parent and Child.

At common law the father was entitled to the custody of his minor child and the mother had a right to custody only after the father's death. In form this still stands in the books as law, but in substance there has been a complete change within a generation. Equity long ago refused to give effect to the father's common law right of custody as against the interest of the child, and by taking the equitable doctrine of regard for the interest of the child over into the law, the courts have been able to put father and mother upon an equality for practical purposes in almost all jurisdictions. Yet the com mon law doctrine remains theoretically in force in the absence of legislation, and legislation is still far from universal. One decision, as late as 1905, holds that the father has a legal right to control the religious training of the children (Hernandez v. Thomas, 5o Florida Reports, 522, 536).

Husband and Wife.

Marital interests of women include claims against the world at large growing out of the relation of husband and wife, and claims of wives against husbands because of that relation. As interests of personality a wife has claims to the society of her husband, quite apart from any economic ad vantage; to the affection of her husband, analogous to the legally recognized claim of the husband to the society and affection of the wife; and to the chastity and constancy of the husband as involving her self-respect and honour. These interests, however, are not yet recognized to their full extent and are not fully se cured even in legal theory. The first and second are now protected by an action for alienating the husband's affections, which has come to be allowed by the overwhelming weight of American au thority (Turner v. Heavrin, 182 Kentucky Reports, 65, 1918). The third was recognized more recently in New York (Oppenheim v. Kridel, 236 New York Reports, 156). Generally it is at most but partially recognized and indirectly secured ; but it should be said that the obvious inutility of the husband's means of redress, which should be applied by analogy to make the law logically complete, has had much to do with the apparent backwardness of the law on this subject.

As an interest of substance the wife may claim to be secured in the marriage relation as an economically advantageous relation, providing her with support and shelter. Where the husband is enticed or induced to abandon his wife or to divert earnings which should be devoted to her support, the courts are coming to rec ognize this interest directly. (The wife's action was allowed in Flandermeyer v. Cooper, 85 Ohio State Reports, 327, 1912; it was denied in Brown v. Kistleman, 177 Indiana Reports, 692, 1912.) On the other hand, in case of physical injury to, or ab duction of, the husband, the wife is still usually denied an action, although the husband may recover in the converse case for "loss of service." The claim of the wife to support was recognized

fully and secured adequately at common law. Legislation setting up domestic relations courts and providing for criminal prosecu tion in case of non-support has only put more effective adminis trative machinery behind existing legal duties of the husband.

The most serious inequalities in this connection were in the procedural difficulties encountered in enforcing the wife's legal rights. Domestic relations courts, which have had a consider able development in the United States, are adapted especially to removing these obstacles (see Smith, Justice and the Poor, chap. ii.). Modern legislation, although taking away from the husband all control over the wife's property and earnings and committing it solely to the wife, has left untouched the common law duty of the husband to support the wife even if she has property and he has none. Some courts go so far as to allow a wife possessed of means who has supported herself out of her separate estate to sue the husband and obtain restitution of the amount thus contributed (De Bauwere v. De Bauwere, 203 New York Reports, 46o, 1911). A few Western States, however, now impose upon a wife of means and ability a duty of supporting an indigent and infirm husband, and allow an action by the husband to enforce this duty (Hagert v. Hagert, 22 North Dakota Reports, 29o, 1911). American courts now recognize the separate domicile of the wife substantially to the full extent of her individual interest in free self-assertion (Williamson v. Osenton, 232 U.S. Reports, 619 1914).

So also with respect to actions by the wife against the husband.

The older Married Women's Acts, which in form merely removed disabilities as to property and contract, were long construed as not allowing such actions since they did not do so expressly, and a policy against aggravation of domestic troubles by dragging them into court was taken to be in the way. This sacrifice of the individual interests of the wife to the supposed exigencies of a social interest has now definitely given way, and conservative courts are allowing such actions even under statutes in terms dealing with property rights only (Brown v. Brown, 88 Connecti cut Reports, 42, 1914). The more recent type of statute, provid ing that a married woman shall have the same legal existence and personality of ter marriage as before marriage, necessarily permits such litigation (Fielder v. Fielder, 42 Oklahoma Reports, 124, 1914). As to capacity to own, acquire, use and enjoy prop erty, very little remains of the old law, and there are but few jurisdictions where legislation might still be able to accomplish anything.