At common law the disability of a married woman is almost entire. Her personal existence is merged for most purposes in that of her husband. This was not so among the Anglo-Saxons, nor with the earlier Teutonic races; and must be explained as one of the effects of the feudal system. It was a principal object of that system to make the whole strength of the State available as a military force; and to this purpose was sacrificed much of the consideration and respect which had been formerly paid by the German tribes to woman and her rights of property, and which had distinguished these tribes from the nations of Rome, Greece, and the East. As a married woman could not be a soldier, she was permitted to have but imperfect and qualified rights of property, because property was then bound to the State, and made the means of supplying it with an armed force. It is possible that the Teutonic respect for woman was intensified into the extravagance of chivalry, as a kind of compensation. All was done for her that could be done, in manners and in social usages; because in law, and in reference to rights of property, so little was allowed. Dower was carefully secured to her; but the exercise of her own free will over her property was forbidden. But the influence of the feudal system is broken, very much in England, and far more here. And among the effects of this decay of a system in which many of the principles and forms of our law originated, we count the changes which have been made and are now making in the law which defines the position and the rights * of the married woman. This law is in fact, at this moment, in a transition state in this country. It seems to be everywhere conceded that the old rules were oppressive and unjust, and certainly not in conformity with the existing temper or condition of society. Almost everywhere changes are 364 made, or attempted; and the necessity of change is not denied But in some parts of our country the slow and gradual progress of these changes indicates a belief that there is much need of caution, in order to improve and liberalize the marital relation, without inflicting upon it great injury. We know that in those States in which the greatest changes have been made, and still greater are desired by some persons, there are those who think mischief has already been caused, and that a brief experience will prove the inconvenience and danger of permitting husband and wife to possess interests and properties and powers, altogether, or in a great degree, independent and equal. The tendency of this would seem to be, necessarily, to make them bargainers with each other; and as watchful against each other, as careful for good security, as strict in making terms and compelling an exact performance of promises or conditions, and as prompt to seek in litigation a remedy for supposed wrongs, as seller and buyer, lender and borrower, usually are; and as these parties may be, more properly and safely, than husband and wife.

We place in a note at the end of this chapter, a synopsis of the statutory provisions of the several States affecting the law of husband and wife; but shall present in the text what may still be regarded as common law on this subject, and in force, where not changed as stated in the synopsis. (aa)

We will first consider the effect of marriage upon the contracts made by the woman before her marriage, and then her contracts made after marriage.