HUSBAND and WIFE, usually termed baron and feme, are one person in law ; that is, the very being or legal existence of the woman is suspended during the marriage ; or, at least, is incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performs every thing; she is therefore, called, in our law (French,) a feme co vert, that is, under the protection and in fluence of her husband, her baron, or lord ; and her condition during her mar riage is called her coverture. A man cannot grant lands to his wife during the coverture, nor any estate or interest to her, nor enter into covenant with her ; but he may, by his deed, covenant with others for her use, as for her jointure, or the like ; and he may give to her, by devise or will, because the devise or will does not take effect till after his death.
All deeds executed by the wife, and acts done by her during her coverture, are void ; except a fine, or the like mat ter of record, in which case she must be solely and secretly examined, that it may be known whether or not her act be vo luntary. A wife is so much favoured, in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for com mitting a bare theft, in company with, or by coercion of, her husband; but if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of treason, murder, or rob bery, in company with or by coercion of her husband, she is punishable as much as if she were sole ; because of the odi. ousness and dangerous consequence of these crimes. By marriage, the husband hath power over his wife's person ; and the courts of law still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour ; but if he threaten to kill her, &c. she may make him find surety of the peace, by suing a writ of supplicavit out of Chancery, or by preferring articles of the peace against him in the court of the King's Bench, or she may apply to the spiritual court for a divorce on account of cruelty. The husband, by marriage, obtains a free hold in right of his wife, if he takes a woman to wife that is seized of a free. hold ; and he may make a lease thereof for twenty-one years, or three lives, if it be made according to the statute, 32 Henry VIII. c. 28. The husband also gains a chattel real, as a term for years, to dispose of, if be please, by grant or lease in her life-time, or by surviving her: otherwise it remains with the wife ; and upon execution for the husband's debt, the sheriff may sell the term during the life of the wife. The husband also, by
marriage, hath an absolute gift of all chat tels personal, in possession of the wife in her own right, whether he survives her or not. But if these chattles personal are choses in action, that is, things to be sued for by action, as debts by obligation, contract, or the like, the husband shall not have them, unless he and his wife re cover them.
By custom in London a wife may car. ry on a separate trade ; and, as such, is liable to the statutes of bankruptcy, with respect to the goods in such separate trade, with which the husband cannot in termeddle. If the wife is indebted before marriage, the husband is bound after wards to pay the debt, living with the wife ; for he has adopted her and her circumstances together ; but if the wife die, the husband shall not be charged for the debt of his wife after her death, if the creditor of the wife do not get judg. ment during the coverture.
The husband is bound to provide his wife necessaries, and if she contract for them, he is obliged to pay for them ; but for any thing besides necessaries, he is not chargeable . and also, if a wife elope, and live with another man, the husband is not chargeable even for necessaries; at least if the persons who furnish them be sufficiently apprised of her elope ment. A man having issue by his wife, born alive, shall be tenant by the courtesy of all the lands in fee simple, or fee-tail general, of which she shall die seized ; and after her death, he shall have all chattles real ; as the term of the wife, or a lease for years of the wife, and all other chattles in possession ; and also all such as are of a mixed nature (part ly in possession and partly in action), as rents in arrear, incurred before the mar riage or after ; but things merely in sic tion, as of a bond or obligation to the wife, he can only claim them as admi nistrator to his wife, if he survive her. If the wife survive the husband, she shall have for her dower the third part of all his freehold lands : so she shall have her term for years again, if he have not al tered the property during his life : so also she shall have again all other chat tels real and mixed ; so things in action, as debts, shall remain to her, if they were not received during the mar riage : but if she elope from her hus band, and go away with her adulterer, she shall lose her dower ; unless her husband had willingly, without coercion ecclesiastical, been reconciled to her, and permitted her to cohabit with him.