SUPREME COURT OF THE TERRITORY OF WASHINGTON
July, 1884, Decided
ERROR, to Third Judicial District, holding terms at New
Tacoma.
The plaintiff in error was indicted by the Grand Jury of the
county of Pierce, at the May term of the District Court of
the Third Judicial District of Washington Territory, holding
terms at Tacoma, charged with the crime of keeping a house
of ill-fame, resorted to for the purposes of prostitution.
It appeared that the following members of the Grand Jury
that found and returned the indictment, Mrs. D. E. Lister,
Mrs. F. Barlow, Mrs. Elizabeth Monroe, Mrs. E. J. Ross, and
Mrs. Jernette Fuller, were, at the time of the summoning and
impaneling of the Grand Jury, and at the time of the finding
and returning of the indictment, each of them, married
women, residing with their husbands, and maintained by them.
And that at all of said times, David Lister, one of the
members of said Grand Jury, was the husband of the said Mrs.
D. E. Lister, who was living with him as his wife, and being
maintained by him as such; and that he was the head of his
family, and the only householder therein.
The plaintiff in error moved to set that indictment aside,
because the Grand Jury was not selected, drawn, summoned, or
impaneled as prescribed by law. This motion was overruled,
and the plaintiff in error duly excepted, and her exception
was allowed.
A trial was then had, and the plaintiff in error was found
guilty, and sentenced to pay a fine of $ 400 and the costs
of the action.
Court: Judgment affirmed.
Syllabus: Married women residing with their husbands are
competent grand jurors.
The Code of 1881, in prescribing the qualifications of grand
jurors, had reference not only to the class of persons who,
at the time of its enactment, possessed the qualifications
prescribed, but also to all other persons who should
afterwards become possessed of the qualifications.
Chapter 183 of the Code of 1881 removed the common law
disabilities of a wife as a member of the family, and placed
her in a position of equality with the husband.
Under this statute the husband and wife conjointly
constitute the head of the family, and each, therefore, in
contemplation of law, is a householder.
The constitution of a Grand Jury is not impaired by making
married women members thereof.
Turner, Associate Justice, dissenting, holds that a married
woman living with her husband is not the head of the family,
and therefore not competent to serve on a Grand Jury; and,
further, that had the Legislature of the Territory attempted
to render married women qualified jurors, it would have
violated constitutional guarantees which secure juries, as
known to the common law, composed exclusively of men.
Counsel: Struve, Haines & McMicken, for Plaintiff in error.
No person shall he held to answer in any Court for any
alleged crime or offense, unless upon an indictment of the
Grand Jury. (Code of Washington, Sec. 764.)
By the term Grand Jury was meant, at the time of the
enactment of this statute, a common law Grand Jury, which
was a jury of men. (Bouvier's Law Dictionary, Title Jury;
Blackstone's Commentaries, Cooley's, Vol. 2, *362; Thompson
and Merriam on Juries, Secs. 463, 464.)
Under the statute in force at that time, only qualified
electors and householders were competent to serve as members
of a Grand Jury. (Code of Washington Territory, Sec. 2078.)
None but male citizens were then qualified electors. (Code
of Washington Territory, Sec. 3050.)
The qualifications of Grand Jurors have not been changed
since the enactment of that statute, unless it be by
implication, in the act approved November 23, 1883, entitled
"an Act to amend Section 3050, Chapter 238, of the Code of
Washington," by which the word "male" is omitted from the
section. (Laws of 1883, pp. 39, 40.)
The law does not favor the repeal of a statute by
implication. (Sedgwick on the Construction of Statutory and
Constitutional Law, pp. 105, 106, 98, and note a; Bowen v.
Lease, 5 Hill N. Y. 225; Rawson v. Rawson, 52 Ill. 63; Casey
v. Harned, 5 Clark, Iowa, 1; The People ex rel. Freeman v.
Barr, 44 Ill. 198; McCool v. Smith, 1 Black. 459;
Henderson's Tobacco, 11 Wallace, 652; Dwarris on Statutes,
674, et seq.)
The intention of the Legislature must govern in the
construction of a statute. (Sedgwick on the Construction of
Statutory and Constitutional Law, 194, et seq., and cases
cited).
In this case the manifest intention of the Legislature was
to simply amend the election law so as to give to women the
right of suffrage.
This is a statute in derogation of the common law, and
must be construed strictly. ( Melody v. Reab, 4 Mass. 471;
Gibson v. Jemy, 15 Mass. 205; Commonwealth v. Knapp, 9
Pick., Mass. 496; Wilbur v. Crane, 13 Pick., Mass. 284;
Dwelley v. Dwelley, 46 Me. 377; Burnside v. Whitney, 21 N.
Y. 148; Schuyler Co. v. Mercer Co., 9 Ill. 20; Easterly's
Appeal, 54 Penn. 192.)
The construction involving the exercise of a doubtful
power will not be readily adopted in the absence of direct
words, when the words used admit of another construction
free of all question in regard to the power. (Phill., N. C.
L., 279.)
The Legislature, in making qualified electors eligible as
grand jurors, referred to those persons who were, at the
time of the adoption of the statute qualified, and did this,
not because voters were supposed, from the mere fact of
possessing the right of suffrage, better qualified as grand
jurors, but used the expression only for more convenient
reference, as meaning "American male citizens above the age
of twenty-one years."
This meaning of the term "qualified electors" has never
been enlarged by legislation.
Grand Jurors must be not only "qualified electors," but
also "householders." (Code of Washington, Sec. 2078.)
A householder is the "head of a family," or the master or
person who has charge of or provides for it. (Code of
Washington, Sec. 342; Abbott's Law Dictionary, Title
Homestead; Winfield's Adjudged Words and Phrases, p. 302 and
cases cited; Bouvier's Law Dictionary, Titles Householder,
Household; Smythe on Homestead and Exemptions, Sec. 532;
Thompson on Homestead and Exemptions, Sec. 65, and cases
cited; Woodward v. Murray, 18 Johnson, 400; Griffin v.
Sutherland, 14 Barb. 456; Bowne v. Witt, 19 Wend., N. Y.
475.)
The construction of this term in statutes of exemption is
adopted where it occurs in jury acts. (Thompson and Merriam
on Juries, Sec. 174.)
By the common law, the husband and wife were regarded as
one person, and the wife's legal existence and authority
were in a certain degree lost or suspended. (2 Kent's
Commentaries, 129; 3 Wait's Actions and Defenses, 635, and
cases cited.)
The common law is the rule of decision in this Territory,
so far as it is not repugnant to or inconsistent with the
Constitution and Laws of the United States, and the Organic
Act and Laws of the Territory. (Code of Wash., Sec. 1.)
The husband is the natural and legal head of the family.
(Bishop on the Law of Married Women, Secs. 45, 46, 47, 48
and 49, and cases cited.)
The only changes that have been made regarding the rights
of husband and wife, as compared with what they were at
common law, are found in Chapter CLXXXIII of the Code, and
this act by its title does not purport to affect anything
but "the property rights of married persons," and can have
reference to nothing else.
Section 2398, which provides that "all laws which impose
civil disabilities upon a wife, which are not imposed or
recognized as existing as to the husband, are hereby
abolished," cannot be construed as embracing any wider range
than the title of the chapter, that is, "Property Rights."
Moreover, the liability to jury duty is not a right, but a
duty. (Thompson and Merriam on Juries, Sec. 39; Bragg v. The
People, 78 Ill. 330; Friery v. The People, 54 Barb. 319.)
The husband is the trustee of the community as regards all
commnnity property, and is recognized as the head of it.
(Code of Wash., Secs. 2409, 2410.)
C. M. Bradshaw, Prosecuting Attorney.
The Legislature of Washington Territory has full power and
competent authority to regulate the mode in which it will
bring the offenders against its laws to trial; and it has,
by laws well calculated to accomplish that purpose, made
rules governing the Courts at every step in criminal
proceedings.
Under the statute formerly in force, "only qualified
electors and householders were competent to serve as members
of a Grand Jury."
The qualifications of grand jurors have not been changed.
"Qualified electors and householders" was and is the
language used by the Legislature to define the
qualifications of grand jurors.
It is true that the law does not favor repealing a statute
by implication, but in certain classes of cases it permits
it; and, if that question entered into this discussion, that
would be enough to sustain our view in this case.
But the amendment to Section 3050 does not repeal or even
amend Section 2078. The last named section describes certain
classes of persons who are competent to act as grand jurors
in this territory. But instead of describing such classes by
name, as "men," "women," or "citizens," they are described
as "qualified electors" and "householders."
Such was the Section 2078 before the amendment to Section
3050, and it is precisely the same now. It always was broad
enough to take in whomsoever became a qualified elector. The
young man under twenty-one years of age was not included in
it, but that period passed, he was at once included in the
class of electors who might become a juror, and if a
householder, then a grand juror. The citizen of a foreign
country was not competent as a grand juror, because he was
not an elector. Upon the performance of certain conditions
he became an elector, and as a consequence, competent as a
juror.
The principle for which we are contending is laid down by
the Supreme Court of Missouri, in McKnight v. Crinnion, 22
Miss. 559.
It is claimed that the grand jurors objected to were not
householders; and therefore were not competent.
It seems to us that the plaintiff in error must be
mistaken as to what a householder is. He cites Sec. 342, but
his statement of it is just the reverse of what we think was
intended by the Legislature. It does not say that "a
householder is the head of a family," as stated by
plaintiff, but simply, "there shall also be exempt from
execution and attachment to every householder, being the
head of a family," etc., clearly implying that there may be
householders who are not, in the technical sense, heads of
the family. A person is a householder who may fairly and
reasonably be said to be in the charge, and having devolved
upon him or her the duty of caring for, maintaining, and
supporting a family; as a general rule the husband, no
doubt, is the householder; but too often these burdens and
duties are cast upon the wife, and in such case she is the
householder, and is entitled to whatever privileges belong
to the "head of a house." Whatever may be thought of the
above proposition as a rule of law, it is what the law ought
to be.
The general tendency of legislation in this territory has
been to abolish all distinction between the civil and
property rights of men and women; and in those respects the
whole system of the common law has been swept away, and in
its stead a system of laws has been adopted which, although
in some respects not perfect, is yet susceptible of being so
construed and enforced as to secure to married women all
that was clearly intended to be secured to them.
Judge(s) Opinion by HOYT, Associate Justice. S. C. WINGARD,
Associate Justice, concur. Dissenting opinion by TURNER,
Associate Justice.
Opinion By: HOYT
Opinion by HOYT, Associate Justice.
Plaintiff in error was indicted by a Grand Jury, composed
in part of married women living with their husbands. She
took seasonable objection to said Grand Jury, on the ground
that said women were not competent grand jurors, and her
objection having been overruled, she has brought the case
here, and assigns the overruling of her said objection as
error.
The only important question raised by the record is the
single one, as to whether or not, under the laws of this
Territory, married women living with their husbands are
competent grand jurors.
The Code of 1881 provides that all electors and
householders shall be competent grand jurors, and it is
claimed by plaintiff in error, that this must be held to
apply to only such persons as were thus qualified at the
time such provision was enacted, and not to such as should
thereafter become endowed with such requisite
qualifications; but to us it seems clear that the
Legislature intended simply to prescribe what classes of
persons in society, as it was then, or should be thereafter
constituted, should be called upon to perform such jury
duty, and that whenever a person by any change in his
condition was brought within such requirements, he at once
became liable to perform such duty, and that likewise where,
by a change in the law, a class of persons was brought
within such requirements, the members of such class at once
became liable to society for all the obligations incident to
the class of electors and householders of which they had
thus become members.
Were such married women, then, electors and householders?
That they were electors, is fully conceded, leaving only
the single question, as to their being householders, for
consideration. We shall not be aided in this discussion by
attempting to single out a definition of the word
householder, as under the facts disclosed by this record the
indictment herein must be sustained, if it is possible that
a married woman living with her husband. as such, can be a
householder within the meaning of such term, as used in our
act as to grand jurors; and this must depend entirely upon
the change wrought in family relation by chapter 183 of the
Code of 1881; for of course it is conceded that under the
common law, the relation of the wife to the husband was
such, that while she was living with him she was not such a
householder, as her identity was largely lost in that of her
husband, and she had no right to be heard as to the
disposition of the property or children that resulted from
the marriage, so long as her husband survived.
This harsh rule of the common law has been, however,
gradually changing, and from time to time various
restrictions have been imposed upon the obsolete right of
control of the husband; and the right of the wife to
participate in such control came to be more and more
recognized by the laws of nearly all of the States and
Territories of this Union.
And the changes thus made in the law, though many of them
were at the time considered radical, have so far as we are
advised universally tended to the elevation of the marriage
relation and of society, and have been fully sustained by
the Courts. Our Legislature, imbued with this spirit of
progress, enacted the law which now constitutes the chapter
of the Code above referred to; and that it intended radical
legislation upon the subject is not only consonant with the
spirit of the times, but is clearly shown in the title of
the act, "An Act to define the Rights of Married Persons";
not certain rights, but the rights; and when such title is
viewed in connection with the body of the act, it could
probably with propriety read "all the rights."
At least, the title and the act are broad enough to show
that it was the intention, by it, to abolish all the
disabilities of the wife as a member of the family, which
had been imposed upon her by the common law, and to provide
instead of said common law rule, a new relation between
husband and wife, as members of the family.
What was this new relation provided for in said chapter?
To us it seems that the relation between husband and wife
thereby established was (with certain exceptions therein
stated) one of absolute equality before the law.
As it not only in express terms gives to her the same
rights to hold property as her husband, but in section three
of said act expressly abolishes all civil disabilities
imposed on her by the marriage relation, which were not
imposed or recognized as existing as to the husband; and
such positive and unequivocal language was used to make this
section strong, and beyond question, that it was thought
necessary to expressly provide that the right to vote or
hold office should not thereby be conferred, lest the
unrestricted language of said section should be so strong as
to amend the election law by implication, and thereby enable
women to vote, the single privilege or right which that
Legislature was not ready to confer upon women, but which
the subsequent one saw fit to freely and fully bestow.
Then, by section four of said act, she was given exactly
the same measure of control over the children of the family
as her husband, with the same right to any or all of their
earnings, and the same voice in directing all things
connected with the family government.
Before this act the father could control the children,
irrespective of and even against the express wish and will
of the mother, and could send them from or keep them at home
at his own caprice.
Since its passage, by its express terms, all of this is
changed; and now the mother as fully controls the children
as does the father; and it is clear that under said act it
would take the agreeing wills of both father and mother
before their children could be sent permanently away from
home to attend school, or for any other purposes; and we
think that likewise in all the affairs of the family (not
excepted as above stated) what before could be done by the
husband, even against the will of the wife, can now only be
done by the consent of both.
At common law he had sole control, and was therefore
properly treated and held as the head of the family; by our
statute the two together, and acting jointly, have like sole
control, and are, therefore, jointly the head of the family.
But it is said that if they are thus equal, then neither
of them is the head of the family, and therefore not the
keeper of a house, as each is only a half of a housekeeper.
This, however, does not follow, as each of them has the
absolute right to control the family and household in the
absence of the other, and each has all the responsibilities
and rights growing out of such control.
One person engaged in keeping a store is said to be a
storekeeper, but we do not speak of one or two persons, who
are keeping a store as equal partners, as a half of a
storekeeper.
Neither do we think that one or two persons engaged upon
equal terms in keeping a house, can be said to be or is only
a half of a housekeeper.
Each acting for himself or herself, but in conjunction
with his or her companion, is the keeper of the entire
household.
The chapter in question has, then, so changed the common
law that a wife living with her husband may be a
householder, and hence qualified to serve as a grand juror.
But it is claimed that the said chapter is
unconstitutional, if given this application to our jury
system, on the ground that the jury guaranteed by the
constitution is a jury of men; but as this question was very
slightly, if at all, argued in this case, we shall content
ourselves by saying that, as to this case, such position is
untenable, as the Legislature was at liberty to provide for
the trial of crime (not infamous) without presentment of a
Grand Jury at all, and a fortiori could provide for its
presentment by other than common law Grand Jury. We find no
error in the record, and the judgment and sentence must be
affirmed, and it is so ordered.
I concur: S. C. WINGARD, Associate Justice.
Dissenting opinion by TURNER, Associate Justice.
I am compelled to dissent from the conclusion reached by a
majority of the Court in this case. I do not believe that
females are competent under the law, as grand or petit
jurors, nor do I believe that females who are married and
living with their husbands are "householders," within the
meaning of Section 2078 of the Code.
The question is not as to the meaning of the act of the
Legislature entitled "An Act to amend Section 3050, Chapter
238, of the Code of Washington, approved November 23d, 1883.
That act does not purport to, and could not legally, do
more than its title expresses to be its purpose. The
question is as to the meaning of 2078 of the Code, which
provides, "all qualified electors shall be competent to
serve as petit jurors, and all qualified electors and
householders shall be competent to serve as grand jurors,
etc."
Section 3050 being amended so as to make females
"qualified electors," it would seem that they are now
embraced within the provisions of Section 2078, and are
therefore competent as jurors, unless it is proper to
construe Section 2078 to mean qualified electors who were
such at the time of the passage of the law, or who might
become such under then existing laws.
An argument in favor of this construction is found in the
provision of the organic act which declares, "To avoid
improper influences which may result from intermixing in the
same act such things as have no proper relation to each
other, every law shall embrace but one object, and that
shall be expressed in the title.
Who shall be qualified electors, and what classes of
citizens shall be subject to jury duty, are entirely
different questions, having no proper relation to each
other. Therefore, to hold that the Legislature, in passing
the law now incorporated in the Code as Section 2078, meant
to establish a rule relating to jurors which might be
materially altered and changed every time the Legislature
enlarged or diminished the qualification of electors, is to
suppose that that body contemplated and intended to provide
for a course of conduct by its successors, opposed to the
spirit if not the letter of the law under which it and they
had and have their being. The organic act says, "Every law
shall embrace but one object, and that shall be embraced in
its title." Section 2078 says, "Laws relating to suffrage
may embrace two objects, only one of which need be expressed
in the title." Such is the effect of Section 2078, unless it
be limited as I have suggested.
Another argument for that construction is found in the
constitutional requirements concerning jury trials.
Section 2, Article 3, of the Constitution of the United
States provides, "The trial of all causes, except in cases
of impeachment, shall be by jury," etc. Article 5 of the
amendment provides, "No person shall be held to answer for a
capital or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury," etc. Article 7 of the
amendments provides, "In suits at common law, when the value
in controversy shall exceed twelve dollars, the right of
trial by jury shall be preserved," etc. The terms "Grand
Jury" and "trial by jury" in these provisions have been held
to secure to the citizens in the Courts of the United States
and in the Courts of the Territories, such a Grand Jury and
such a Petit Jury as was understood and secured by the
common law of England. In construing such provisions, both
in the Courts of the United States and in the Courts of the
States having similar constitutional provisions, it has been
held that the right to a jury trial, and the right to
immunity from trial for crime, except on indictment by a
Grand Jury, included all the incidents attaching to such
proceedings. One of the incidents of a jury trial is, that
the jury shall not be composed of less than twelve men. An
incident of indictment by a Grand Jury is, that the Grand
Jury shall not be composed of less than twelve men; or in
case that a larger number comprise the body, that twelve
must concur in finding the indictment, so that a man shall
not be convicted of a crime except by the verdict of
twenty-four of his neighbors. Another incident of trial by
jury is, that the verdict shall be unanimous. Another
incident is, that the jury must be selected from the great
body of the citizens living in the vicinage; and where the
number from whom juries may be selected has been
unreasonably diminished by law, the law has been held
unconstitutional, as impairing the right of trial by jury.
The application of all this to Section 2078 of the Code
is, that it cannot be supposed that the Legislature, in
framing that provision, meant to leave the important subject
of jurors, and the incidents attaching to jury trials, to be
effected by legislation upon an entirely different subject
matter.
It might well be that at some future time the Legislature
would wish to restrict the elective franchise. A provision
limiting the right to vote to citizens of the age of fifty
years, would be lawful as concerns the rights of electors,
but it would be unlawful and unconstitutional as a
limitation on the right of trial by jury.
Another incident of trial by jury at common law, in my
judgment, was that the jury should be composed of men. The
language of the venire facias was, that the sheriff cause to
come on such a day "twelve free and lawful men." Blackstone
gives as one of the causes of challenge to the poll, "
Propter defectum"; as if a juror be alien born, this is
defect of birth; if he be a slave or bondman, this is defect
of liberty, and he cannot be liberty legalis homo. Under the
word homo, also, though a name common to both sexes, the
female, however, is excluded, propter defectum sexus. It
cannot be doubted that at common law one of the incidents of
a jury trial, with one exception, and that founded on regard
for the delicacy of the sex, was, that the jury should be
composed of men. Blackstone classes that qualification with
those of citizenship and liberty. It is said that the rights
of the weaker sex, if I may now call them so, are more
regarded than in the days of Blackstone; and that the theory
of that day, that women were unfitted by physical
constitution and mental characteristics to assume and
perform the civil and political duties and obligations of
citizenship, has been exploded by the advanced ideas of the
nineteenth century. This may be true. No man honors the sex
more than I. None has witnessed more cheerfully the
improvement in the laws of the States, and particularly in
the laws of this Territory, whereby many of the disabilities
of that day are removed from them, and their just personal
and property rights put upon an equal footing with those of
men. I cannot say, however, that I wish to see them perform
the duties of jurors. The liability to perform jury duty is
an obligation, not a right. In the case of woman, it is not
necessary that she should accept the obligation to secure or
maintain her rights. If it were, I should stifle all
expression of the repugnance that I feel at seeing her
introduced into associations and exposed to influences
which, however others regard it, must, in my opinion, shock
and blunt those fine sensibilities, the possession of which
is her chiefest charm, and the protection of which, under
the religion and laws of all countries, civilized or
semi-civilized, is her most sacred right.
If one woman is competent as a juror, all women having the
same qualifications are competent. If women may try one
case, they may try all cases. It is unnecessary to say more,
to suggest the shocking possibilities to which our wives,
mothers, sisters, and daughters may be exposed, unless the
Legislature should hereafter relieve us from what I believe
to be a mistaken construction of the law. These
observations, however, are not pertinent here. The question
is, What is the law?
I say, that the laws now concerning the important
incidents of a jury trial are, by express constitutional
provision, what they were at the common law, and that under
that law a jury was no jury unless it was composed of men.
The jury spoken of by the Constitution is the common law
jury, and consists of twelve men. (Note to Sedgwick on the
Construction of Stat. and Const. Law, 493.)
It is true that the constitutional guarantee of indictment
before trial is extended by the Constitution to the trial of
offenses only that are infamous; and that the offense above
not being infamous, it is competent for the Legislature to
have the indictment found by such a Grand Jury as it
pleases, or to prosecute without indictment of a Grand Jury
if it pleases.
The qualification of grand and petit jurors being fixed by
the same section and in the same sentence of the law,
however, it is certainly a good argument against a
construction of that law, that would make women grand jurors
in case of misdemeanor, to show that in no case, even by
express enactment, could the Legislature make women petit
jurors or grand jurors, to investigate capital or other
infamous crimes.
It has been said that it is a safe and wholesome rule to
adopt the restricted construction of a statute, when a more
liberal one will bring us in conflict with the fundamental
law. It would appear to be the same, where such a
construction may bring us in conflict with the fundamental
law.
In the construction of the statute under consideration,
however, it is not necessary to resort to the principle of
strict construction. Its letter and spirit comport as well
with the view I have taken of its meaning, as with that
adopted by a majority of the Court.
Next, as to the meaning of the word "householder," in the
statute. Householder means, according to all the
definitions, "the head of a family." I think that in all
cases where there is a husband living with his family, that
he is in contemplation of law the head, and the only head,
of the family. It has been said, "the term householder has
no reference to a holding of property. It is understood to
mean the head, master, or person who has the charge of, and
provides for a family," etc.
It is claimed that in this Territory the laws have placed
the civil and property rights of husband and wife on an
equal footing; that they are equal as to rights and
obligations in the household, and therefore that both of
them are heads of the family, and both of them householders.
If it be true that the laws of the Territory have had the
effect stated, the logical deduction would seem to be, not
that the law had created two heads of the family, but that
it has deposed from the position of superiority what was
formerly the one head, and that now there is no head, as
understood by the common law term. The idea of a double head
in nature or in government is that of a monstrosity.
But there is something even above the provisions of
statutory law, in the conception embraced in the term the
"head of a family." It embraces the idea of legal supremacy,
perhaps, but is not confined to that.
The husband was not only the head of the family at common
law, because under that law he had the right to be obeyed by
all the family, including the wife, but because of inherent
and acquired differences between himself and wife, in mental
and physical constitution. He was better fitted to wage the
war for present subsistence, and to accumulate the
competence that was to make provision against want in the
future.
The experience gained by him in prosecuting this branch of
the partnership matured his judgment, strengthened his will,
and made him confident and self-reliant. I believe that the
facts I have mentioned obtain to this day, and that they
operate and will continue to operate, to give the husband
paramount authority in the household, as that term is
understood at common law, until an upheaval of nature has
reversed the position of man and woman in the world.
Legislative enactment would not make white black, nor can it
provide the female form with bone and sinew equal in
strength to that with which nature has provided man. No more
can it reverse the law of cause and effect, and clothe a
timid, shrinking woman, whose life theater is, and will
continue to be, and ought to continue to be, primarily the
home circle, with the masculine will and self-reliant
judgment of a man.
The law has not attempted to do any such thing. It can
only be effected, if effected at all, by countless ages of a
civilization in which the scope of usefulness of women in
the world and in society is changed and reversed. It cannot
be truthfully said that changes in the property or civil
rights of women in this Territory, such as are found in the
statutes, has had or has begun to have such an effect.
But it is not true that the laws of this Territory have
wiped out in every respect the supremacy of the husband, and
put the wife upon a plane with him in the matter of rights
and obligations. Section 2399 does not in my opinion, as has
been assumed, raise an issue to be adjudicated at law, when
the husband and wife disagree as to the school the children
should attend, the branches of learning they should be
taught, or the profession or avocation in life they should
be trained to follow.
This would be a more intolerable evil than the
unrestrained control of such matters by the one or the
other. Section 2399 relates to the custody of the children,
and the right to receive their earnings in cases of
separation.
The use of the term "misconduct" shows that, moreover, the
earnings of the children being community property, the right
of the husband to receive it and apply it, unless in case of
separation, is undoubted. (Section 2409.)
The control of the husband over community personal
property, extending to the right to dispose of such property
as he pleases, without accounting to the wife, is another
particular in which the legal rights of the husband are
superior to those of the wife.
The right of the husband over the wife is again recognized
in the provision giving him the preference right to select
the homestead for the family, from the community real
property.
This right of a selection of the family homestead suggests
another matter in which the right of the husband is
paramount. His domicile is the domicile of the wife, and she
may not abandon it for one year without giving him legal
ground for the divorce. The converse of the proposition is
not true. The wife cannot say to her husband, "You must live
here, if you wish to live with me"; but the husband may so
say to the wife, if he offers her a home suitable to her
condition.
Another distinction in rights, which recognizes the
paramount obligations of the husband, is in the matter of
alimony in case of separation. The law imposes upon the
husband the obligation of supporting the wife, and the
Courts will so decree; but it would be a novel idea that the
husband should assert such a claim against the wife.
There is an exception in the law in favor of the wife from
responsibility for criminal acts done in the presence of her
husband, which it is believed the statutes of this Territory
have not wiped out.
How can the wife be considered an entirely free agent in
matters of only civil concern, and of but little moment,
when it is the policy of the law to consider that she is so
much under the influence of the husband, that it will not
hold her responsible for crimes committed in his presence?
An ingenious mind, having the time to employ in the task,
might multiply the illustrations indefinitely.
An argument to the effect that the law considers the wife
a "householder" is attempted to be drawn from the relations
to each other of Section 342 of the Code and Section 2415.
The first section named gives the right to select a
homestead, to every "householder being the head of a
family." The latter section authorizes both the husband and
wife to select homesteads from their separate property, and
it is said that in this respect it is supplementary to
Section 342, and has the effect to recognize the wife as a
householder. It is answer to this to say, that Section 2415
is part of the chapter relating to the property and other
rights of married women; and that having given her a
separate property, it was thought proper to give her the
same exemptions with respect to it, that other persons had.
Section 342 gives the exemption only in favor of a homestead
occupied as such. Section 2415 gives it without
qualification. If Section 2415 were considered only as an
extension to married women of the right received by Section
342, it was unnecessary, on the theory that married women
are householders and heads of their families. Their right to
the exemption would attach under Section 342, without
further legislation.
My views, therefore, are that women cannot be jurors; and
that they cannot be householders so long as they are
married, and sharing the household of the husband.