The History of Woman Suffrage Volume III Part 141

PENNSYLVANIA STATUTES AND COURT DECISIONS.

This "perfection of reason" (the common law) has been changed in Pennsylvania in the following particulars:

All women, married and single, are deprived of political rights by the use of the generic word "freeman" in the const.i.tution (29 Legal Intelligencer, 5).

Heir at common law is abolished by statute; however, the right to administer vests in the male in preference to the female of the same degree of consanguinity. Half-brothers are ent.i.tled to the preference over own sisters (Purdon, 410, 27; Single's Appeal, 59 Penn. St. R., 55).

Any property belonging to a woman before marriage, or which accrues to her during coverture by gift, bequest or purchase, continues, by the act of April 11, 1848, to be her separate property after marriage, and is not liable for the debts of her husband nor subject to his disposal without her written consent, duly acknowledged before one of the judges of the Court of Common Pleas as voluntarily given; _provided_, that he is not liable for the debts contracted before or after marriage, or for her torts (Purdon's Dig., 1,005, 13).

"This act protects the wife's interest in her separate property both as to t.i.tle and possession," but "does not empower her to convey her real estate by a deed in which her husband has not joined," nor "create a lease without his concurrence," nor "execute an obligation for the payment of money or the performance of any other act," nor in any way dispose of her property save by gift or loan to him; she may bind her separate estate for his debts, and in security for the loan she may take a judgment or mortgage against the estate of the husband in the name of a third person, who shall act as her trustee (18 Penn. St. R., 506, 582; 21, 402; 1 Gr., 402; 6 Phila., 531; Pur. Dig., 1,007, 21).

The husband is the natural guardian or trustee of the property of the wife; but by application "to the Court of Common Pleas of the county where she was domiciled at the time of her marriage," the court will appoint a trustee (not her husband) to take charge of the property secured to her by the act of 1848. This act, however, does not authorize the appointment of a trustee, to the exclusion of her husband, of property owned by her prior to the pa.s.sage of the act, nor was it intended to affect vested rights of husbands and does not protect them for the wife's benefit against the claims of creditors (10 Penn. St. Rep., 398 and 505; 18, 392 and 509; 21, 260; 1 Jones, 272).

In a clear case the wife's real estate cannot be levied upon and sold by a creditor of the husband, _but the burden of proof_ is upon her to show by evidence "which does not admit of a reasonable doubt," that she owned the property before marriage or acquired it subsequently by gift, bequest, or paid for it with funds not furnished by her husband nor the result of their joint earnings.

The wife's possession of money is no evidence of her t.i.tle to it (18 Penn. St. Rep., 366; 7 Phila., 118).

If no property, or not sufficient property, of the husband can be found, the separate property and goods of the wife may be levied upon and sold for rent or for debts incurred for the support of the family (Purd. Dig., 1,006, 15; 38 Penn. St. Rep., 344).

A married woman's bond and warrant of attorney are absolutely void, nor can she make a valid contract except for a sewing-machine or for the improvement of her separate property, and her bond given or a judgment confessed by her for such debt is void (24 Penn. St.

Rep., 80; Act of 1872, Pur. Dig., 1,010).

She may sell and transfer shares of the capital stock of any railroad company, but cannot herself or by attorney transfer certificates of city loan (28 Leg. Int., 116; Act June 2, 1871).

A married woman cannot enforce her rights against third persons, either for the performance of a contract or the recovery of her property, without her husband join in the suit, although the party contracting with her is liable to an action (1 Gr., 21; Act of 1850 and 1839; 6 Phila., 223).

If divorced or separated from her husband by his neglect or desertion, she may protect her reputation by an action for slander and libel; but if her husband is the defendant, this suit, as also for alimony and divorce, must be in the name of a "next friend."

She is ent.i.tled to a writ of _habeas corpus_ if unlawfully restrained of her liberty (Purd. Dig., 510, 12; 513, 24; 754, 1).

The wife of a drunkard or profligate man by pet.i.tioning the Court of Common Pleas, setting forth these facts and his desertion of her and neglect to provide for her and their children, may be ent.i.tled to the custody of her children, and, as a "_feme sole trader_,"

empowered to transact business and acquire a separate property, which shall be subject to her own disposal during life, and liable for the maintenance and education of her children. Her testimony must be sustained "by two respectable witnesses" (Pur. Dig., 692, 5; Act of 1855, 2; 2 Roper, Husband and Wife, 171, 173).

By act of April, 1872, any married woman having first pet.i.tioned the court, stating under oath or affirmation her intention of claiming her separate earnings, is ent.i.tled to acquire by her labor a separate property which shall not be subject to any legal claim of her husband or of his creditors, she, however, being compelled "to show t.i.tle and owners.h.i.+p in the same." The husband's possession of property is evidence of his t.i.tle to it; not so with the wife (Purd. Dig., 1,010, 38, 39; 4 Lansing, 164; 61 Barb., 145).

A married woman may devise her separate property by will, subject, however, to the husband's curtesy, which in Pennsylvania attaches, though there be no issue born alive, and which she cannot bar (Purd. Dig., 806, 804; I Pars., 489; 26 Penn. St. R., 202, 203; 2 Brewster, 302).

The husband may bar the wife's dower by a _bona fide_ mortgage given by himself alone or by a judicial sale for the payment of his debts. It is also barred by a divorce obtained by her on the ground of his adultery, and in case of such divorce she is ent.i.tled to the value of one-half of the money and property which the husband received through her at marriage (Purd. Dig., 514; 2 Dall. 127; 12 Serg. and R., 21; I Yeates Pa., 300).

A single woman's will is revoked by her subsequent marriage, and is not again revived by the death of her husband; a single man's will is revoked by marriage absolutely only when he leaves a widow but no known heirs or kindred (Purd. Dig., 1,477, 18 and 19; 47 Penn.

S. Rep., 144, 34, 483).

If the husband die intestate leaving a widow and issue, the widow shall have one-third of his and their joint personalty absolutely, and one-third of the real estate for life; if there are no children, but collateral heirs, she is ent.i.tled to the use of one-half the realty, including the mansion-house, for her life, and one-half the personalty absolutely (Purd. Dig., 806, 2 and 3; Act of 1833, 1).

If the wife die intestate leaving a husband and no issue, he is ent.i.tled to her entire personalty and realty during his life; if there are children her personal estate is divided between the husband and children share and share alike; in either case he is ent.i.tled to their entire joint estate (Purd. Dig., 806, 5; Act of 1848, 9).

Married women may be corporate members of any inst.i.tution composed of and managed by women, having as its object the care and education of children or the support of sick and indigent women (Purd. Dig., 283; Act of 1859, 1).

It is a crime, punishable by fine and imprisonment, to employ any woman to attend or wait upon an audience in a theater, opera or licensed entertainment, to procure or furnish commodities or refreshments (Purd. Dig., 337, 112).

A man, by marriage, is subjected to no political, civil, legal or commercial disabilities, but acquires all the rights and powers previously vested in his wife. He is capable of all the offices of the government from that of postmaster to the presidency, and of transacting all kinds of business from the measuring of tape to the practice of the most learned professions. Woman, deprived of political power, is limited in opportunities for education, and, if married, is incapable of making a contract; hence crippled in the transaction of any kind of business.

CHAPTER XLII.

INDIANA.

[A.]

Governor Porter made the following novel appointment: On August 30, 1882, Mrs. Georgia A. Ruggles, from Bartholomew county, presented to Governor Porter an application for a requisition from the governor of Indiana upon the governor of Kansas, for William J.

Beck, charged with the crime of bigamy. Beck had been living a few months in Bartholomew county and had pa.s.sed as an unmarried man; had gained the affections of a young lady much younger than himself and much superior to him by birth and education. After their marriage the fact that Beck had already one wife became known and he fled to Kansas. Mrs. Ruggles was a friend to the young lady who had been thus duped, and upon learning the facts she called the attention of the proper authorities to the matter, and begged them to effect Beck's arrest. They were not disposed to do so, and upon various excuses postponed action. She therefore determined to take the matter into her own hands. Governor Porter granted her the desired requisition; she went to Kansas, and on September 10, 1882, she received Beck from Samuel Hamilton, sheriff of Ellsworth county; she herself brought the prisoner, in cuffs, to Indiana, and, September 13, she delivered him into the hands of Thomas E.

Burgess, sheriff of Bartholomew county. Beck was tried, convicted and sent to the penitentiary. This bit of justice was the fruit of a woman's pluck and a governor's good sense.

EXTRACT FROM GEN. COBURN'S ADDRESS.

The people expect that they will in their own way and time inaugurate such measures as will bring these questions in their entire magnitude into the arena. I hope to see 10,000 women in convention here. They can, if they will, create a public sentiment in favor of their enfranchis.e.m.e.nt that will be irresistible. They have the ears of the voters; they have access to the columns of the newspapers; they control all the avenues of social life. What can they not accomplish, if, with their whole hearts they set about it?

The sphere of public life has many vacant places to be filled by women. Why shall they not serve upon the boards of trustees of our great reformatory and benevolent inst.i.tutions, as superintendents in our hospitals, and as directors and inspectors in our prisons?

The last legislature conferred upon them the right to hold any office in our great school system except one, that of State superintendent of public instruction. From them may now be selected, president of the State university, or of the Normal School, or of Purdue University, school commissioners and county superintendents. But the legislature should give them the power to rescue our prisons, hospitals and asylums from the indescribable horror of filth, neglect and cruelty which hangs like a murky cloud over many of them. Men have tried it and failed. Stupidity or partisans.h.i.+p or brutality or avarice, has transformed many a n.o.ble foundation of benevolence into a h.e.l.l of abomination. Some one must step in to inspect; to enforce order, cleanliness and virtue; to bring comfort and hope to the downcast and to the outcast of society. This purpose must be backed up by the strong arm of power, by the sanction of the law, and that law must have upon it the stamp of woman's intellect. This year the women of Indiana can place themselves in the van of human progress and dictate the policy which mankind must recognize as just and true for ages to come. The public mind is not unprepared for this measure. The spread and the acceptance of great ideas is almost miraculous in intelligent communities.

[B.]

LEGAL OPINION BY W. D. WALLACE, ESQ., UPON THE POWER OF THE LEGISLATURE TO AUTHORIZE WOMEN TO VOTE FOR PRESIDENTIAL ELECTORS.

_Capt. W. DeWitt Wallace, Attorney-at-law, Lafayette, Ind.:_

DEAR SIR: You will confer a favor upon the friends of woman suffrage in Indiana, if you will send me, in writing, your opinion, as a lawyer, in answer to the following question, giving your reasons therefor: Can the legislature of this State empower women to vote for presidential electors?

MARY F. THOMAS, _President I. W. S. A._

_Richmond, Ind._, December 30, 1880.

LAFAYETTE, Ind., January 5, 1881.

_Dr. Mary F. Thomas, President of Indiana Woman Suffrage a.s.sociation, Richmond, Indiana:_

DEAR MADAM: In your favor of the 30th ult., you ask my opinion upon, to me, a novel and most interesting question, viz.: "Can the legislature empower women to vote for presidential electors?" After the most careful consideration which I have been able to give to the subject, consistent with other duties, and with the aid of such books as I have at command, I answer your question in the affirmative. The grounds of my opinion I will proceed to state: Section 1, article 2, of the Const.i.tution of the United States, which provides that the president and vice-president shall be chosen by electors appointed by the several States, declares in the following words how said electors shall be appointed:

Each State shall appoint in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which said State may be ent.i.tled in the congress, etc., etc.

Now, in the absence of any provision in the State const.i.tution, limiting or attempting to limit the discretion of the legislature as to the manner in which the presidential electors shall be chosen, there can be no doubt but that the legislature could empower female, as well as male, citizens to partic.i.p.ate in the choice of presidential electors.

Section 2, article 2 of our State const.i.tution is as follows: In all elections, not otherwise provided for by this const.i.tution, every white male citizen of the United States, of the age of twenty-one years, and upwards, who shall have resided in the State during the six months immediately preceding such election * * * *

shall be ent.i.tled to vote in the towns.h.i.+p or precinct where he may reside.

Two questions at once suggest themselves upon the reading of this section: _First_--Does the section apply to elections of presidential electors, and thus become a limitation upon the discretion of the legislature in case it shall direct the appointment of the electors by a popular vote? _Second_--If so, can a State const.i.tution thus limit the discretion which the Const.i.tution of the United States directs shall be exercised by the legislature? I shall consider the last question first.

While the legislature is created by the State, all its powers are not derived from, nor are all its duties enjoined by the State. The moment the State brings the legislature into being, that moment certain duties enjoined, and certain powers conferred, by the nation, attach to it. Among the powers and duties of the legislature, which spring from the national const.i.tution, is the power and duty of determining how the State shall appoint presidential electors. The Const.i.tution of the United States declares in the most explicit terms that the State shall do this "in such manner as the legislature may direct." In the case of _Ex-Parte_ Henry E. Hayne, _et al._, reported in volume 9, at page 106, of the Chicago Legal News, the Circuit Court of the United States for the district of South Carolina, in speaking of the authority upon which a State legislature acts in providing for the appointment of presidential electors, says: