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HUSBAND AND WIFE

while under the former the wife was one of the husband’s immediate heirs, under the latter she was called to the inheritance only after his kith and kin had been exhausted, and only in preference to the treasury. It seems doubtful how far she had, during the continuance of marriage, a legal right to enforce aliment from her husband, although if he neglected her she had the unsatisfactory remedy of an easy divorce. The law, in fact, preferred to leave the parties to arrange their mutual rights and obligations by private contracts. Hence the importance of the law of settlements (Dotes). The Dos and the Donatio ante nuptias were settlements by or on behalf of the husband or wife, during the continuance of the marriage, and the law seems to have looked with some jealousy on gifts made by one to the other in any less formal way, as possibly tainted with undue influence. During the marriage the husband had the administration of the property.

The manus of the Roman law appears to be only one instance of an institution common to all primitive societies. On the continent of Europe after many centuries, during which local usages were brought under the influence of principles derived from the Roman law, a theory of marriage became established, the leading feature of which is the community of goods between husband and wife. Describing the principle as it prevails in France, Story (Conflict of Laws, § 130) says: “This community or nuptial partnership (in the absence of any special contract) generally extends to all the movable property of the husband and wife, and to the fruits, income and revenue thereof. . . . It extends also to all immovable property of the husband and wife acquired during the marriage, but not to such immovable property as either possessed at the time of the marriage, or which came to them afterwards by title of succession or by gift. The property thus acquired by this nuptial partnership is liable to the debts of the parties existing at the time of the marriage; to the debts contracted by the husband during the community, or by the wife during the community with the consent of the husband; and to debts contracted for the maintenance of the family. . . . The husband alone is entitled to administer the property of the community, and he may alien, sell or mortgage it without the concurrence of the wife.” But he cannot dispose by will of more than his share of the common property, nor can he part with it gratuitously inter vivos. The community is dissolved by death (natural or civil), divorce, separation of body or separation of property. On separation of body or of property the wife is entitled to the full control of her movable property, but cannot alien her immovable property, without her husband’s consent or legal authority. On the death of either party the property is divided in equal moieties between the survivor and the heirs of the deceased.

Law of England.—The English common law as usual followed its own course in dealing with this subject, and in no department were its rules more entirely insular and independent. The text writers all assumed two fundamental principles, which between them established a system of rights totally unlike that just described. Husband and wife were said to be one person in the eye of the law—unica persona, quia caro una et sanguis unus. Hence a man could not grant or give anything to his wife, because she was himself, and if there were any compacts between them before marriage they were dissolved by the union of persons. Hence, too, the old rule of law, now greatly modified, that husband and wife could not be allowed to give evidence against each other, in any trial, civil or criminal. The unity, however, was one-sided only; it was the wife who was merged in the husband, not the husband in the wife. And when the theory did not apply, the disabilities of “coverture” suspended the active exercise of the wife’s legal faculties. The old technical phraseology described husband and wife as baron and feme; the rights of the husband were baronial rights. From one point of view the wife was merged in the husband, from another she was as one of his vassals. A curious example is the immunity of the wife in certain cases from punishment for crime committed in the presence and on the presumed coercion of the husband. “So great a favourite,” says Blackstone, “is the female sex of the laws of England.”

The application of these principles with reference to the property of the wife, and her capacity to contract, may now be briefly traced.

The freehold property of the wife became vested in the husband and herself during the coverture, and he had the management and the profits. If the wife had been in actual possession at any time during the marriage of an estate of inheritance, and if there had been a child of the marriage capable of inheriting, then the husband became entitled on his wife’s death to hold the estate for his own life as tenant by the curtesy of England (curialitas).[1] Beyond this, however, the husband's rights did not extend, and the wife’s heir at last succeeded to the inheritance. The wife could not part with her real estate without the concurrence of the husband; and even so she must be examined apart from her husband, to ascertain whether she freely and voluntarily consented to the deed.

With regard to personal property, it passed absolutely at common law to the husband. Specific things in the possession of the wife (choses in possession) became the property of the husband at once; things not in possession, but due and recoverable from others (choses in action), might be recovered by the husband. A chose in action not reduced into actual possession, when the marriage was dissolved by death, reverted to the wife if she was the survivor; if the husband survived he could obtain possession by taking out letters of administration. A chose in action was to be distinguished from a specific thing which, although the property of the wife, was for the time being in the hands of another. In the latter case the property was in the wife, and passed at once to the husband; in the former the wife had a mere jus in personam, which the husband might enforce if he chose, but which was still capable of reverting to the wife if the husband died without enforcing it.

The chattels real of the wife (i.e., personal property, dependent on, and partaking of, the nature of realty, such as leaseholds) passed to the husband, subject to the wife’s right of survivorship, unless barred by the husband by some act done during his life. A disposition by will did not bar the wife’s interest; but any disposition inter vivos by the husband was valid and effective.

The courts of equity, however, greatly modified the rules of the common law by the introduction of the wife’s separate estate, i.e. property settled to the wife for her separate use, independently of her husband. The principle seems to have been originally admitted in a case of actual separation, when a fund was given for the maintenance of the wife while living apart from her husband. And the conditions under which separate estate might be enjoyed had taken the Court of Chancery many generations to develop. No particular form of words was necessary to create a separate estate, and the intervention of trustees, though common, was not necessary. A clear intention to deprive the husband of his common law rights was sufficient to do so. In such a case a married woman was entitled to deal with her property as if she was unmarried, although the earlier decisions were in favour of requiring her binding engagements to be in writing or under seal. But it was afterwards held that any engagements, clearly made with reference to the separate estate, would bind that estate, exactly as if the woman had been a feme sole. Connected with the doctrine of separate use was the equitable contrivance of restraint on anticipation with which later legislation has not interfered, whereby property might be so settled to the separate use of a married woman that she could not, during coverture, alienate it or anticipate the income. No such restraint is recognized in the case of a man or of a feme sole, and it depends entirely on the separate estate; and the separate estate has its existence only during coverture, so that a woman to whom such an estate is given may dispose of it so long as she is unmarried, but becomes bound by the restraint as soon as she is married. In yet another way the court of Chancery interfered to protect the interests of married women. When a

  1. Curtesy or courtesy has been explained by legal writers as “arising by favour of the law of England.” The word has nothing to do with courtesy in the sense of complaisance.