Fortunately for us, Chancellor Kent talks plain English. He tells us
exactly what the law means, and sets it forth as if it were written to
be understood; which is not exactly the case with all his predecessors.
As to the estimate of woman on which the laws are based, we have, in
connection with what we have already quoted from English law-books, the
following statement:--
"But as the husband is the guardian of the wife, and bound to
protect and maintain her, the law has given him a reasonable
superiority and control over her person; and he may even put gentle
restraints upon her liberty, if her conduct be such as to require
it. The husband is the best judge of the wants of the family, and
the means of supplying them; and, if he shifts his domicile, the
wife is bound to follow him."--_Kent's Commentaries_, vol. ii. p.
180.
The best comment on this is found, I think, in a story told by Mrs.
Stowe, who says that she once saw a little hut perched on a barren ledge
of the Alps, out of reach of human help, and without pasture; but a
little below it were stretches of sweet Alpine grass, inviting to eye
and foot, and capable of affording sustenance to goats and sheep. "How
long have you lived here?" asked Mrs. Stowe of the old woman. "Above
forty years."--"And what made you come so far up? Don't you like the
meadow?"--"I don't know," was the reply: "it was the _man's notion_."
It is somewhat questionable, whether this man _would_ be the best judge
of the wants of his family, Chancellor Kent to the contrary
notwithstanding; as also what might be his idea of "gentle restraint,"
in case the wife had refused "to shift her domicile." As to property,
Kent proceeds:--
The general rule is, that the husband becomes entitled, on the marriage,
to all the goods and chattels of the wife, and to the rents and profits
of her lands; and he becomes liable to pay her debts and perform her
contracts.
1. If the wife have an inheritance in land, he takes the rents and
profits during their joint lives. He may sue in his own name for an
injury to the profits of the land; but, if the husband himself chooses
to commit waste, the wife has no redress at common law.
2. If the wife, at the time of her marriage, hath an estate for her
life, the husband becomes seized of such an estate, and is entitled to
the profits during marriage.
3. The husband also becomes possessed of the chattels real of the wife;
and the law gives him power, _without her consent_, to sell, assign,
mortgage, or otherwise dispose of, the same as he pleases. Such chattels
real are liable to be sold on execution for his debts (vol. ii. p.
133). If he survive his wife, the law gives him her chattels real by
survivorship.
4. If debts are due to the wife before marriage, and are recovered by
the husband afterward, the money becomes, in most cases, absolutely his
own.