# The American Cyclopædia (1879)/Husband and Wife

Edition of 1879. See also Marriage on Wikipedia; and the disclaimer.
HUSBAND AND WIFE. The laws which govern the marital relation, and determine the mutual rights and obligations of the parties, are among the most important of all laws; and it is to be regretted that in the United States they are less accurately determined and less ascertainable than any others of equal consequence. The reason is that we received from England this portion of the common law, and have only of late years perceived its repugnance to reason and justice. We now know that the feudal system, upon which the common law is founded, did not give to woman that place and those rights which she ought to have. It not only regarded husband and wife as one, but the husband as that one. The sentiment that the law needs vast change in this respect is proved to be universal by the fact that there is no one of our states in which it has not undergone great modification; and the difficulty in making the change in such a way that the essential character of the marriage relation may not be impaired, is proved by the great diversity in the provisions recently introduced, in the frequent changes among them, and in the very frequent expression of opinion that much harm has already been done. In the East woman has always been regarded as
a servant of her husband, as his property, and as his plaything; and man has always been held in absolute political subjection. In Greece there were republics and democracies, in name at least; and certainly that political tyranny which had prevailed among eastern nations was greatly lessened, and the domestic tyranny of the husband over the wife was modified about equally. But the liberty of Greece was the liberty of comparatively few, who were masters of the many; and the most conspicuous of the women of Greece were those who, like Sappho and Aspasia, had indeed escaped from the gynæceum, but had not found a home. In Rome there was a wider spread and better protection of personal right, for even under the most despotic emperors municipal rights and privileges were generally preserved throughout the Roman world; and woman had also advanced so far, that the Roman matron has been since regarded as the type of female dignity and purity. But much was yet wanted. The feudal system, built upon the ruins of western Rome by the Teutonic nations, a new race, acknowledging the new influence of Christianity, made an immense advance, because it gave to every man, even the serf, a definite place and definite rights, and in theory at least knew nothing of unlimited power; and to woman it gave the unspeakable advantage of Christian marriage. It introduced, probably as a means of remedying or of mitigating social mischiefs which it could not otherwise restrain, the spirit of chivalry, whose controlling principle was the sentiment of honor; and while this newly developed sentiment exerted a very wide and beneficial influence upon all the relations and all the departments of society, in nothing was it more useful than in the profound respect and tender care which it sought at least to inspire toward woman. It was under this feudal system that the law grew up which forms the basis of the law under which we live. It was by the gradual elevation of woman in social and domestic life, by the side of man as he rose toward the possession of political rights, that so much good was attained as exists in that law. That the law of husband and wife in the United States is in advance of any that has existed or now exists elsewhere, we are confident. The tendency of the law, however incomplete it may yet be, is to respect and secure the rights of woman in such wise as to preserve her influence and her happiness; and to make the relation of husband and wife not a form of servitude or the means of oppression, but the central origin of blessings which could spring from no other source, and may pervade the whole life of both sexes. As much the greater part of the common law is still in force with us, and whatever laws we have are but various modifications of that law, we purpose, first, to give a condensed view of the principles of the common law in its reference to the relation of husband and wife; and then to present a brief statement of
the principal variations from this law in all the states of this Union. Promises to marry, the contract of marriage, and settlements or contracts in view of marriage, will be considered in the article Marriage. Here we shall treat only of the effect of marriage on the property of a woman, and of the husband's liability for her debts contracted previous to marriage, and of her power to bind him by her contracts, and of his obligations for her, after marriage.—1. A woman's real estate remains her own after marriage; but her husband acquires a right to it (or, in law language, an estate in it) for her life, and an estate in it for his own life as soon as a living child is born to them, by what is called tenancy by curtesy. He has therefore a life estate in her land either for her life or for his own life; but when this life estate ceases, her rights, or the rights of her heirs, revive absolutely. He cannot transfer her land by his deed, nor can she by her deed; but in this country it may be transferred by the joint deed of the two. In different states different precautions are provided by law, to make it sure that she executes such a deed of her own free will. Thus, in many of the states, she must be examined apart from her husband, by some magistrate, as to her willingness and her motives for thus disposing of her land. On the other hand, by her marriage, she acquires an indefeasible right of dower to the use of one third of his lands during her own life, of which she cannot be divested but by her own act. In this country she usually releases her right of dower, when she wishes to do so, by adding her release to her husband's deed of the premises; but his creditors cannot generally get it in any way without her consent. (See Dower.) 2. A woman's personal property in possession becomes absolutely the husband's property by marriage. By this is meant all the money in her hands, and all her chattels, as furniture, plate, pictures, books, jewels, &c. Nor can he by common law give to her either of these or chattels of his own during marriage, because transfer of possession is essential to a valid transfer by gift, and her possession is his possession in law. He however may give to her by his will what he chooses to, and may doubtless make a valid transfer of anything in possession as a gift causa mortis. (See Gift.) The reason why the personal property of the wife is thus absolutely transferred to the husband may have been, in part, the lingering influence of the falsity which regarded the wife herself as only the property of the husband; but it was much more, probably, the comparative worthlessness of personal possessions in the feudal ages, when the common law began. Whatever were the reasons, they have little force or application at present. A single woman may, in general, make whatever contracts a man can. If by such a contract she acquires and receives into her own hands any property, it is property in possession, of which we have
spoken. But if the thing which she purposes to obtain by the contract be money, or the right to dividends, or any other right, and it remains to be received or acquired after her marriage, she herself possesses not the thing, but a right to demand and receive the thing; and this right is a thing in action (usually called by the Norman French phrase a chose in action), and not a thing in possession. This chose in action, belonging to the wife, passes by marriage to the husband, but not absolutely. What he acquires is the right to reduce it to possession, and thereby make it absolutely his own. But he is not obliged to reduce it to possession; and if he does not, and dies, the wife surviving him, all his right is gone, and the chose in action remains as absolutely the property of the widow as it would have been had she never married. The principal choses in action to which this rule applies are notes, bills of exchange, and evidences of debt generally, and scrip or stocks standing in her name. The principal ways of reducing it to his possession are four: by collecting and receiving the debt for his own use; making a new contract with the debtor in his own name, in substitution for her name; having the scrip or certificates or other evidences of debt transferred to himself and his own name; or suing the debt and recovering a judgment upon it. If she dies before him, and before he has reduced them to his own possession, he may now do so as her administrator, and then retain them for his own benefit. If he dies (having survived her) without having reduced them to possession, his next of kin may take out letters as her administrator, and reduce the choses in action to possession for his heirs. In regard to the debts she owes at the time of marriage, the general rule is that the husband is answerable for all of these. The creditor may demand payment of the husband, and may sue him. This is equally true of the debts which had matured and become due before marriage, and of those which were not payable until afterward; and his liability for her debts is the same, whether he receives much with her, or little, or nothing. But this liability is not absolute; for if she dies before he pays the debt, and before a judgment is recovered against him, his liability ceases. But if she leaves choses in action not reduced to the husband's possession, these are still liable for her debts, and the husband, or whoever becomes her administrator, must apply them to pay these debts, and retain only the surplus for the husband or his next of kin. If he dies before he pays her debts, and before judgment is rendered against him, his estate is not liable, but the wife's liability, which was suspended during his life, revives at his death. This is true although he received a large property with her. But when a wife thus brings a considerable property to her husband, courts of equity sometimes interfere on her application and compel him and his assignees to make an equitable settlement out of it for the
support of herself and of the children of the marriage, if any. 3. We will now consider the contracts or obligations of the wife made or entered into during marriage. In the first place, a married woman has at common law no power whatever to make a valid contract which shall bind herself or her husband. If money is due for her services, or for money lent by her, it is due not to her, but to him. Her time and her labor and her money are all his. But she may act as his agent in making a contract, and if authorized by him, he is bound. This authority may be express, or it may be implied from frequent acts of agency recognized by him, as when she acts as his clerk, accepting or paying bills, &c.; and then it does not differ in law from a common agency. There is, however, an important and peculiar agency of the wife, growing out of her duties; and this is an implied agency for the husband in all domestic matters, as the hiring of servants, and the purchase of provisions and of clothing for the family. As this grows out of necessity, it is measured by it; but the law means a reasonable necessity, and this is only an appropriateness. For any contract of this sort made by her, which is in due conformity with her husband's means, station, and manner of life, would bind him, and he would not be permitted to deny his authority. If they exceeded this necessity or appropriateness, the husband could be held only on some evidence of authority or assent, as that he knew the contract, or saw the things bought, and made no objection. The question then occurs, How far is the husband bound to supply the necessities of the wife? The general rule on this subject is, that he is bound to supply her with all necessaries, which means in this case all her reasonable wants, while they live together. If they separate because he drives her away without sufficient cause, the same liability continues; and then he is responsible for any debts she may contract for this purpose. Even Lord Eldon declared that “where a man turns his wife out of doors, he sends with her credit for her reasonable expenses.” (3 Espinasse, 250.) There can hardly be a sufficient cause for thus casting her off without his liability for her subsistence, unless it be her adultery; but this certainly is sufficient. If, however, she voluntarily leaves him, she cannot carry his credit with her, unless she leaves with sufficient cause; and while it is not easy to determine in all cases what would be sufficient cause, perhaps it would be safe to say that any cause which would be sufficient for divorce, either from the bonds of matrimony or from bed and board, would justify her leaving. While the law is now pretty well settled, both in England and in this country, as to when the husband is liable for necessaries furnished to the wife, and when he is not, a question of much moment remains, and of late years has been much considered, viz.: On what ground does this liability rest? It must rest on his authority as proved, or as
implied by law; or else upon his marital duty as husband. If it stands upon the former foundation, it must follow that he may always prevent his liability by express refusal and prohibition; or, in other words, that he always has the power to limit or prevent his liability. If it stands on the foundation of his marital duty, this he is bound to discharge, and his prohibitions are of no effect. The former was the unquestionable rule in England and here until very recently, no other ground for the husband's liability being recognized in any way than his authority express or implied; and therefore it was held that if a wife lived with her husband, no one could recover from him the price of any necessaries supplied to her, under any circumstances, against his prohibition. Thus, Chief Justice Hale said (1 Siderfin, 109): “The law will not presume so much ill, as that a husband should not provide for his wife's necessities.” At length, however, it began to be seen that there might be cases of incapacity, as where the husband was wholly insane, and could not be supposed to constitute an agent or confer authority upon any one; and yet it could not be supposed that the wife was to be deprived of the necessaries of life which her husband's means were amply sufficient for, because he could not authorize the purchase of them. Again, we have seen that the husband who drives his wife abroad sends his credit with her; but the absurdity of supposing that he constitutes her his agent struck the court. Baron Alderson said (Read v. Legard, 6 Exch., 636): “It is a monstrous proposition that a man who drives a woman out of doors, who hates, who abominates her, actually gives her authority to make contracts for him.” In that case the principle was recognized that the right of a wife to a proper support grows out of the marital relation, and that the liability of the husband for necessaries supplied to her is a consequence of that right. This case was so decided in 1851; but like decisions had previously been made in this country, and are now the settled law. It must be remembered, however, that there is an essential difference between the case where husband and wife cohabit, and that where they live apart. In the first, the presumption of law is strong against the husband; and he can resist payment for supplies furnished only by showing that they were not necessaries, either because they were unreasonable and inappropriate in kind or in amount, or that the wife was sufficiently supplied elsewhere. But if she have separated from him, no such presumption exists. Whoever supplies the wife now, takes upon himself the risk of being able to show that she needed what he gave her, and that there was no such sufficient cause for the husband's withdrawing his support of her as would destroy his liability for what was furnished to her.—As to the separation of husband and wife by mutual consent, the law has always regarded it as a kind of voluntary divorce, and formerly refused to
admit or acknowledge it in any way. Of late years, however, it seems to be otherwise. It is still a rule of the common law that husband and wife cannot contract with each other, because they are not two persons, but one. Hence no bargain which they can make directly with each other has any force or effect at law. But if they make their bargain through and by means of a third person, by way of trustee, and enter into certain covenants with him, a court of equity, and for some purposes a court of law, would permit this trustee to maintain such actions as might be necessary to give full effect to the bargain, although its only purpose were to provide for the separation of the parties. There are, however, two qualifications to this rule. One is, that if the court see that the terms of separation are catching, oppressive, or unreasonable, they will not carry them into effect. The other is, that the locus pænitentiæ is always kept open. Although the bargain provides that the separation shall be perpetual, and all its terms are founded upon this supposition, and are clothed for this purpose in the most stringent language, yet, as soon as either party wishes the separation to cease, it must cease. The husband cannot deprive himself of his right to recall his wife; and she cannot deprive herself of her right to return. By the “custom of London,” a married woman may be a sole trader there, but nowhere else in England. In the United States, partly by statute and partly by adjudication, a married woman would generally be permitted to carry on business on her own account, much as a single woman might, in case of continued abandonment, or long imprisonment of the husband, or alienage and non-residence, or with the knowledge and consent of the husband, which might be inferred from circumstances. It should be added that the husband is liable for the wife's wrong doings in many cases; as for her libel, slander, fraud, cheating, and generally for injurious misconduct. If she commit a crime in his presence, the law presumes that he ordered it; but he may remove this presumption by evidence of its falsity.—Important changes have been made in the common law by statutes in the several states of the American Union. In Maine, the property owned by the woman at marriage or acquired afterward remains hers, and she has the same rights as any other owner in respect to it, except that if the property came from the husband she cannot dispose of it without his joining. In New Hampshire, after three months' desertion or any act of the husband entitling her to divorce, she may hold and dispose of the property by her acquired and the earnings of the minor children, and the judge of probate may order provision made for her from her husband's property in the state, and her property shall descend on her death as if she were single. A married woman may will her property to any one except her husband, but not cut off his right by the curtesy. In Vermont, the
supreme court may authorize a deserted wife to convey her estate and the personal estate which came to the husband by the marriage, and require the debtors of the husband in her right to make payment to her; and the proceeds of the earnings of herself and the minor children are to be at her disposal. The rents and profits of the wife's real estate, and the interest of the husband in it, are exempt from execution for his debts, and can only be conveyed by her joining in the deed. The wife may dispose of her property by will. In Massachusetts, a married woman may be a sole trader, and may dispose of her real estate by will, leaving to the husband his estate by the curtesy, and also her personal estate, but not more than one half of it away from the husband without his consent. She holds as her own all property howsoever acquired except by gift from her husband, but she cannot convey real estate or shares in a corporation except with his consent, or the consent of a judge of the supreme, common pleas, or probate court. Her real estate and corporate shares are not liable for the husband's debts. In Rhode Island, a married woman may dispose of her real estate by will, saving to the husband his estate by the curtesy, and whatever deposits are made by her in savings banks are her own. In Connecticut, the personal property acquired by the husband in right of the wife he holds as trustee for her, except to the extent he may have paid ante-nuptial debts, and his interest in her real estate cannot be taken for his debts during her life or the life of children. The proceeds of her real estate are deemed hers in equity and not subject to his debts, and all acquired by her personal services is hers absolutely. Her savings deposits are also her own, and there are further provisions in case of abandonment or abuse by the husband. In New York, the wife's property, acquired before or after marriage, is subject to her own control, and not liable for the husband's debts, but is liable for her own debts, while the husband is not liable except in case of neglect to take out administration on her estate on her death. In New Jersey, the real and personal estate of the wife, whenever acquired, remains hers, free from her husband's control and not liable for his debts. In case of his desertion she may have provision made for her from his estate. In Pennsylvania, the property of the married woman, acquired before or after marriage, remains hers, free from any control by the husband, and liable for her debts, but not for his. The husband is not liable for the wife's ante-nuptial debts. In case of desertion or neglect by the husband to provide for her, she has the rights of a feme sole. In North Carolina, the interest of the husband in the real estate of the wife cannot be taken on execution for his debts, nor can it be disposed of by the husband except with her consent. In Florida, the property of the wife remains hers, and the husband is not liable for her
ante-nuptial debts. The same is true in Alabama, and substantially so in Mississippi. In Louisiana the laws are peculiar, but it is competent for the married woman to carry on business as a sole trader, and to have all her property secured to her own use, or the property of the two may be in common. In Texas the laws are also peculiar, but the property of the wife owned at the marriage, or acquired by gift, devise, or descent afterward, remains her own, though subject to the husband's management. In California, the property owned by either the husband or wife at the time of the marriage remains his or hers, as does also any that either may acquire by gift, bequest, devise, or descent afterward, with the rents, issues, and profits thereof; but all other property acquired by either afterward is community property. Husband and wife may contract with each other or with third persons respecting property, as they might if unmarried; his separate property is not liable for her ante-nuptial debts, nor her separate property or earnings for his debts, and dower and curtesy are abolished. While the husband is liable for the wife's support, the wife is also liable for his support if he has no separate property and they have no community property, and he from infirmity is incompetent to support himself. The husband has the management of community property, and may dispose of it otherwise than by will. In Kentucky, a married woman may dispose of her separate property by will, and the husband during her lifetime has only the use of it. In Ohio, a married woman may dispose of her separate property by will, and the interest of the husband in any of her property cannot be taken for his debts during her life or the life of children. In Indiana, the wife's property remains hers and may be disposed of by will, and is not liable for the husband's debts. In the other western states, it may be said generally, the real and personal estate owned by the wife before marriage or acquired by her afterward is at her absolute disposal, by contract, conveyance, or will, and not subject to her husband's debts; while the husband is not liable for her debts contracted before marriage nor for those contracted afterward, except where she may have acted as his agent and with the proper authority. The recent changes in the southern states have been in the same direction. It is not easy to say exactly how the estate by the curtesy stands in the states where it is not expressly saved by statute, but we should say any valid conveyance of the wife's estate would cut it off, and in some states it has been decided that the broad terms in which statutes secure to married women their property will preclude curtesy attaching.—In other respects statutes have made important changes respecting the rights of women which do not depend on the status of marriage. Thus, in the territory of Wyoming the distinction of sex in the exercise of the elective franchise has been
abolished, and women of the requisite age are admitted to vote and are eligible to office. In Illinois, by statute, women passing the necessary examination may be admitted to the bar, and in some of the other states they have been admitted by the courts without question. Women who pay school taxes are voters at school meetings in a number of the states, and in recent elections in some, notably in Illinois and Iowa, women have been chosen county superintendents of schools. In Michigan a woman has for several years been state librarian.