LEGAL STATUS
OF
WOMEN IN IOWA.
COMPILED BY
JENNIE L. WILSON, LL. B.
Member of the Polk County Bar.
DES MOINES:
IOWA PRINTING COMPANY.
1894.
Preface.
This book has been prepared for the purpose of presenting to the women
of Iowa, in a brief and concise form, those laws which pertain to
subjects in which they are most deeply interested, and about which there
is a strong and growing demand for certain and accurate information.
In this age of general intelligence, when learning in some degree is so
readily attainable, the maxim, that "Ignorance of the law excuses no
one," has a measure of justice in it, which could not be claimed for it
in former times, and it is most certainly true that, "As the subjects of
law, if not as its makers, all ought to know enough to avoid its
penalties and reap its benefits."
Every woman should understand the law of her own state concerning
marriage, divorce, the care and custody of children, and the mutual
rights and duties of husband and wife incident to the marriage relation.
She should know something of the law of minors and guardianship, of
administration, and descent of property, and her knowledge should
certainly embrace that class of crimes which necessarily includes her
own sex, either as the injured party, or as _particeps criminis_.
In the arrangement of this work, a very brief synopsis of the common law
upon these subjects is given, as the principles of the common law
underlie our entire statute law, and a knowledge of the former is
absolutely essential to render much of the latter intelligible. The
statute law of the state has been given in the exact words of the
statutes, with but few exceptions, and the explanations or notes
following these have been gathered from decisions of our supreme court.
The references are to sections of McClain's Annotated Code and
Supplement.
The design of the work is not broad enough to give to the most careful
reader that knowledge of the _minutiae_ of the law necessary in the
application of its principles to particular cases and under a special
state of facts. It is in nowise adequate, even though its contents
should be thoroughly mastered, to make every woman her own lawyer, in
matters where she would otherwise require legal advice, but it is hoped
that its statements are sufficiently plain and free from technical
phraseology and legal terms, that even the casual reader may readily
comprehend them, and be able to gain a general understanding of the law
of our state upon these subjects.
J.L.W.
Des Moines, Iowa, May 1894.
TABLE OF CONTENTS.
CHAPTER I.
SYNOPSIS OF COMMON LAW.
Common law in force--Changes--Marriage--Dissolution of marriage--Power
of husband--Disabilities of wife--Custody of children--Property
rights--Descent of property--Discrimination in criminal matters--Right
of appeal--Reason for subjection of women
CHAPTER II.
MARRIAGE.
Contract of marriage--Legal age--No express form necessary--Who may
solemnize--When void
CHAPTER III.
HUSBAND AND WIFE.
Property rights of married women--Remedy by husband or wife against the
other--Wife's torts--Conveyances to each other--Conveyances to third
parties--Wages of wife--Contracts of wife--Family expenses--Removal from
homestead--Conveyance of property when husband or wife is insane
CHAPTER IV.
DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
Jurisdiction of court--Evidence--Causes for divorce--Husband from
wife--Maintenance during litigation--Alimony--Custody of
children--Annulling illegal marriages--Causes--Legitimacy of children
CHAPTER V.
MINORS AND GUARDIANSHIP.
Majority--Contracts of minors--Natural guardians--Guardians of
property--Powers and duties of guardian--Guardians of drunkards,
spendthrifts and lunatics
CHAPTER VI.
APPRENTICING AND ADOPTION OF CHILDREN.
Method of apprenticing--Schooling and treatment of minors--Who may
adopt--Method and effect of adoption--Home for the friendless--Powers
CHAPTER VII.
WILLS AND LETTERS OF ADMINISTRATION.
Who may make wills--Of what property--Verbal wills--Wills in
writing--Revocation--Cancellation--Executors--Administration--Who
entitled--Time allowed
CHAPTER VIII.
SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY.
Exempt personal property--Life insurance--Allowance to widow and
children--Descent and distribution--Personal property--Real
property--Dower--Curtesy--Widow's share not affected by will--Descent to
children--To parents--To wife and her heirs--Illegitimate children
inherit from mother--When they may inherit from father--When father may
inherit from child
CHAPTER IX.
HOMESTEAD AND EXEMPTIONS.
Homestead exempt--Family defined--Conveyance or encumbrance--Liability
for taxes and debts--What constitutes homestead--Exemptions to head of
family--Insurance--Personal earnings--Pension money--Damages producing
death
CHAPTER X.
CRIMINAL LAW--ILLEGITIMATE CHILDREN.
Rape--Intent to commit--Compelling to marry--Carnal knowledge--Producing
miscarriage--Enticing female child--Seduction--Marriage a bar to
prosecution--Adultery--Evidence in cases of rape or
seduction--Bigamy--Lewdness--Houses of ill fame--Penalty for
prostitution--Incest--Illegitimate children--Support of--Rendered
legitimate by marriage of parents
CHAPTER XI.
MISCELLANEOUS PROVISIONS.
Damages under prohibitory liquor law--Parties in actions for
seduction--In actions for injury to minor child--Married women--When
husband or wife deserts family--Husband or wife as
witness--Communications between husband and wife--Women eligible to
office--Police matrons--Right of suffrage
CHAPTER XII.
CONCLUSION.
Common law in Iowa--Law will not always protect married women--It may
cause hardship and suffering--Change or modification needed
Common Law
CHAPTER I.
SYNOPSIS OF COMMON LAW.
[Sidenote: Common law in force.]
Until a comparatively recent period the laws of England in force at the
time of the independence of the American colonies, relating to married
women, the mutual duties of husband and wife, their property rights and
the care and custody of children, were everywhere in force in this
country except in those states which were originally settled by other
nations than the English.
[Sidenote: Changes.]
The agitation of the last fifty years, caused by the demand for equality
in educational opportunities and in professional, business and trade
relations, as well as for the legal and political recognition of women,
has brought about great changes in these laws, until they are in many
instances almost entirely superseded by statutory enactments more in
accordance with the spirit of justice and in greater harmony with the
requirements of a higher form of civilization. In many states they have
reached a condition in which the legal status of husband and wife is
nearly, if not wholly, one of equality.
[Sidenote: Basis of statue law.]
It must always be borne in mind, however, that the common law is the
foundation upon which almost the entire structure of our American
system of jurisprudence is based, although it is claimed that it has
only been recognized by our courts so far as it has been "applicable to
the habits and conditions of our society and in harmony with the genius,
spirit and objects of our institutions." As it became apparent from time
to time that it was not thus applicable, or where it failed to meet the
requirements of the changed conditions of society the strictness of its
rules was relaxed by giving to them a broader construction, or, when
this could not be done, they were modified or entirely changed by
statute.
[Sidenote: Marriage]
Marriage was regarded by the common law as a civil contract and might be
entered into legally by a boy of fourteen or a girl of twelve years of
age, provided they were under no legal disability to contract marriage.
This was called the age of consent, or discretion, and a marriage
contracted prior to this time was inchoate only, and might be repudiated
by either party upon arriving at the legal age. If one of the parties
was above and the other under the required age, the marriage might still
be disaffirmed by either. If after reaching the age of consent the
parties continued to live together as husband and wife, this would be
regarded as an affirmance of the marriage.
[Sidenote: What constitutes.]
The mutual consent of the parties themselves, followed by cohabitation,
was sufficient to constitute a legal marriage, without the observance of
any formalities. The formal ceremonies provided by statute for the
celebration of marriages, and the penalties imposed upon clergymen and
others who married those who had not complied with these formalities,
were solely for the purpose of providing a convenient and certain proof
of marriage, should it be afterwards necessary to establish that fact
by evidence, rather than to invalidate marriages which would otherwise
be legal.
[Sidenote: Dissolution of marriage.]
Having established the marriage relation, it could only be dissolved by
death or divorce granted by act of parliament, or, in this country after
the declaration of independence, by act of legislature. No absolute
divorce could be granted for any cause arising after the marriage, but a
separation might be decreed in case of adultery by either party.
[Sidenote: Subjection of married women.]
By the rules of the common law, the person and property of women were
under the absolute control of their husbands. The maxim, _Uxor non est
juris, sed sub potestate viri_, "a wife is not her own mistress, but is
under the power of her husband," is but an expression of the actual
legal status of a woman from the instant she entered the matrimonial
state, until released therefrom by death or divorce.
[Sidenote: Legally dead.]
Marriage was the act by which she ceased to have a legal existence, by
which, we are told, her very being became incorporated or consolidated
into that of her husband. From the time her identity became thus merged,
she was presumed by the law to be under the protection and influence of
her husband, to be so absolutely and entirely one person with him, that
she had henceforth no life in law apart from his.
[Sidenote: Unity of person.]
The legal fiction of the unity of the persons of husband and wife dates
back to feudal times, and may, perhaps, have been a necessity of the age
and of the peculiar social and political systems of that period. Like
many another law having its inception in a sincere desire to secure the
greatest good to the greatest number, and apparently necessary for that
purpose at the period of social development which gave it birth, it
existed for centuries after it had ceased to result in any benefit or
afford any protection, and after the reason for its being had passed
away and been forgotten.
[Sidenote: Power of husband.]
We are told that at marriage the husband "adopted his wife and her
circumstances together." He might exercise his power over her person by
restraining her of her liberty in case of gross misbehavior, or by
giving her moderate chastisement in the same degree that he might
administer correction to his children. An early decision of one of our
state courts interpreted this to mean that a man might whip his wife
with a switch as large as his finger, but not larger than his thumb,
without being guilty of an assault.
[Sidenote: Disabilities.]
Husband and wife being one person could not contract nor enter into a
business partnership with each other; neither could one convey property
to the other without the intervention of a third party. The wife was
incapable of receiving a legacy unless it was willed to another person
as trustee, for her use and benefit, and if a legacy were paid directly
to her, the husband could compel the executor to pay it again to him.
[Sidenote: Wife's power to contract.]
The wife had no power to contract a legal debt nor to bind herself by
any kind of an agreement, neither could she make her husband liable for
any debt or contract, except for necessaries. These, the husband was
under obligation to provide, and in contracting for them, the law
assumed that the wife was acting as his agent.
[Sidenote: Release of dower.]
She might release her right of dower in lands of her husband, but only
when examined separately she acknowledged that the conveyance or release
was not secured by his influence or coercion.
[Sidenote: Wife's earnings.]
Her earnings though acquired by her individual labor and in a business
separate and apart from her husband belonged to him, and he could
collect them by action. This was the law though husband and wife were
living apart. They could be subjected to the payment of his debts, by
his creditors, and if he died without a will they descended to his heirs
as other personal property. They were not considered the property of the
wife, even in equity, without a clear, express, irrevocable gift, or
some distinct affirmative act of the husband, divesting himself of them
and setting them apart for her separate use.
[Sidenote: Power of conveyance and devise.]
A wife had no power to convey her real property, nor could she devise
her personal property by will, without the consent of her husband.
[Sidenote: Domicile.]
The husband had the legal right to establish his home or domicile in any
part of the world where "his interests, his tastes, his convenience, or
possibly, his caprice might suggest," and it was the wife's duty to
follow him. If she refused to accompany him, no matter upon what ground
she based her refusal, she was guilty of desertion. A promise by the
husband before marriage as to the establishment of the place of
residence of the family, created a moral obligation only and was a mere
nullity in law. Whenever there was a difference of opinion between
husband and wife in regard to the location of the common home, the will
of the wife had to yield to that of the husband. This law of domicile
was based upon the grounds of the "identity of the husband and wife, the
subjection of the wife to the husband, and the duty of the wife to make
her home with her husband."
[Sidenote: Witness.]
Neither husband nor wife was competent as a witness to testify either
for or against the other in civil or criminal cases.
[Sidenote: Husband entitled to society of wife.]
The husband was entitled to the society and services of his wife and he
might bring an action for damages against anyone who harbored her, or
persuaded or enticed her to leave him or live separate from him. If
injuries were wrongfully inflicted upon her, two actions might be
brought against the party responsible for the wrong, one by husband and
wife for the personal injury to the wife, and one by the husband for
loss of the wife's services. In either case, the amount recovered
belonged to the husband.
[Sidenote: Suits at law.]
The wife could neither sue or be sued unless her husband was joined with
her in the suit. A judgment recovered against her alone was void,
because she was unknown to the law apart from her husband. One entered
in her favor became the property of her husband.
[Sidenote: Wife as executor.]
The consent of the husband was necessary to enable a married woman to
act as executor, administrator, guardian or trustee.
[Sidenote: Duty of husband.]
[Sidenote: Liable for anti-nuptial contracts.]
[Sidenote: Torts of wife.]
The husband became responsible for the maintenance of the wife according
to her rank and station, and if he failed to make suitable provision for
her, tradesmen might furnish her with necessaries at her request and
could collect payment from the husband. He was liable for all of her
debts contracted before marriage, and this was the case, though he may
have received no property with her. He was responsible for certain
wrongs committed by her after marriage, such as libel and slander, and
judgment could be recovered against him. If a wrong were committed
jointly by both, action might be brought against the husband alone. When
a judgment was recovered upon contract, or because of the wrongful act
of the wife, if the husband failed to pay it, he might be imprisoned.
[Sidenote: Widow's quarantine.]
After the death of the husband the law gave the widow a right to remain
forty days in his house, during which time her dower might be assigned.
This right was known as the "widow's quarantine."
[Sidenote: Custody of children.]
The father was legally entitled to the custody of his children,--the
right of the mother was never recognized, it being expressly stated by
Blackstone that "a mother, as such, is entitled to no power, but only to
reverence and respect." He might by will appoint a guardian for them
after his death, though yet unborn, and might apprentice them or give
them into the custody of others without the consent of the mother.
[Sidenote: Property rights.]
[Sidenote: Wife's paraphernalia]
All personal property belonging to the wife vested absolutely in the
husband at marriage. He could will it to whom he pleased or, if he died
without a will, it descended to his heirs. Even her wearing apparel and
ornaments known by the term "paraphernalia," belonged to the husband.
During his life he had the power to sell or give them away, but he could
not devise them by will. If they remained in the possession of the wife
while the husband lived, she was entitled to them over and above her
dower, but even then creditors of the husband might claim them, if there
chanced to be a deficiency of other assets with which to pay the debts
of the estate.
[Sidenote: Choses in action.]
The wife's choses in action, or evidences of money or property due to
her, such as notes, bonds, contracts or the like, belonged to the
husband if he reduced them to possession during her life, and they could
be taken for his debts. He might bequeath them by will, but if he died
without a will they descended to his heirs. If he failed to reduce them
to possession while the wife lived, after his death they would revert to
her heirs. If she outlived her husband they belonged to her. After the
husband's death the wife took one-third of his personal estate if there
were children, and one-half if there were no children.
[Sidenote: Real property of wife.]
[Sidenote: Curtesy.]
[Sidenote: Dower.]
The husband was entitled to the control, use and enjoyment, together
with the rents and profits of his wife's real estate during the
marriage, and if a living child were born, he had, after the wife's
death, a life estate in such property and might retain possession of it
while he lived. This was known as the husband's title by curtsy. The
wife took a dower, or life estate in one-third of the husband's lands
after his death, whether there were children or not. This estate of
dower was forfeited should the husband be found guilty of treason, but
his interest in her lands was not disturbed by the treason of the wife.
His life interest in her real estate attached to trust estates, but she
could claim no interest in trust estates of her husband. If the wife
owned leases of land they could be sold or assigned by the husband
during marriage. If he survived his wife they belonged to him, if she
survived him, they belonged to her, provided he had not disposed of them
while living.
[Sidenote: Descent of property.]
Personal property descended to males and females in equal shares, but
the oldest son was entitled to the whole of his father's real property.
[Sidenote: Unity of person in criminal law.]
The unity of husband and wife was not so strongly affirmed by the common
law when it dealt with their relation to criminal matters. When a wife
committed an offense against the state she possessed a separate and
distinct life and personalty, for the purposes of punishment. It is true
that she was still inferior and this distinction was recognized and
emphasized by the difference in the penalties imposed for the commission
of the same crimes, these penalties being in inverse ratio to the
importance of the criminal.
[Sidenote: Theft, burglary, etc.]
[Sidenote: Presumption of innocence.]
If a wife committed theft, burglary or other offenses in the company or
presence of her husband, the law presumed that she acted under
compulsion and held her not guilty, but this presumption did not extend
to cases of murder or treason, and it might always be overcome by proof
that she acted independently. The exception in cases of murder or
treason, we are informed, was not alone because of the magnitude of the
crimes, but rather on account of "the husband having broken through the
most sacred tie of social community by rebellion against the state, had
no right to that obedience from a wife which he himself, as a subject,
had forgotten to pay."
[Sidenote: Murder of wife.]
[Sidenote: Murder of husband.]
If a man murdered his wife it was as if he had murdered a stranger, and
he might avail himself of the benefit of clergy, and secure immunity
from punishment, provided he could read, but women were denied all
benefit of clergy because of their sex, and because they "were not
called upon to read." If a wife killed her husband it was a much more
serious offense, he being her lord, and she was guilty of treason and
subject to the same punishment as if she had killed the king.
[Sidenote: Petit treason.]
In cases of petit treason the penalty depended upon the sex of the
criminal, men being sentenced to be drawn and hanged, while women were
drawn and burnt alive.
[Sidenote: Larceny, bigamy, etc.]
In larceny, bigamy, manslaughter and other crimes, men might claim the
benefit of clergy and by taking holy orders, escape all punishment,
except branding in the hand and a few months imprisonment, while women
might receive sentence of death and be executed for the first offense.
Later the law was changed so that in cases of simple larceny under the
value of ten shillings, they might be burned in the hand and whipped,
stocked or imprisoned for any time not exceeding one year. The
disability of sex and of ignorance were both finally removed and all men
and women admitted to benefit of clergy.
[Sidenote: Adultery and seduction.]
[Sidenote: Rape.]
By the common law, adultery and seduction were not classed with crimes,
but were only civil injuries for which compensation might be recovered
by husband, father or guardian, but the woman, who might be wronged, had
no right of action for the injury to herself, and the State did not
recognize any wrong to society by an injury to the person of one who was
civilly dead. The crime of rape was punishable by death, and consent,
though proved, was no defense, if the offense was committed upon a child
under ten years of age.
[Sidenote: Right of appeal.]
Magna Charta, granted by King John, while redressing many hardships and
grievances incident to feudal times, and confirming and securing to the
people many rights and liberties, among which was the right of the wife
to dower in her husband's property, denied to women the right of appeal
except in case of the death of their husbands. The right of appeal was
the privilege of private prosecution for crime. (Analogus to our present
method of commencing prosecutions by information.)
According to Blackstone, even the disabilities of the wife were for the
most part intended for her protection and benefit, and he adds: "So
great a favorite is the female sex of the laws of England!"
[Sidenote: Reason for discrimination.]
The discrimination made by the common law between men and women, was
based alone upon the assumption that women were, and must be always
dependent by reason of their sex. In the light of a broader humanity,
the distinctions seem cruel and barbarous, but that they were the result
of any spirit of injustice or intentional tyranny, or of any desire on
the part of men to oppress women or impose upon them any hardship or
burden because of their physical weakness, is not at all probable. They
were merely the outgrowth of the conditions incident to ruder stages of
social development, and were, perhaps, as favorable to women at that
period, as the laws of our own times will be considered when judged in
the light of the civilization of the future, after successive centuries
of intellectual and moral growth have been added to the enlightenment of
to-day.
Law of Iowa.