§ 207. The word coverture, in law, signifies the state of a married woman, for the reason that she has always been regarded as under the cover or the power of her husband, and, because she should always be under his wing and protection. A married woman, therefore, is called, in law-French, a feme-covert foemina viro cooperta. The origin of this term is not certain. Among the ancient Romans the modesty of the bride was so much consulted that, upon the delicate occasion of her nuptials, she was led to the home of her husband covered with a veil; and it is quite probable that the term originated in this custom. But whatever the origin of the term, time out of memory the condition of woman during her marriage has been called her coverture. By the marriage the husband and wife are one person in law, and upon this principle of a union of person depend almost all the legal rights, duties and disabilities that either husband or wife acquire by the marriage. For this reason a husband cannot, by any conveyance at common law, give an estate or grant any thing to his wife, or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself; and what is true of the husband in this respect is also true of the wife. Neither husband nor wife can contract with the other at common law, although each may enter into covenant or contract for the benefit of the other through the intervention of a trustee; and some of the transactions between husband and wife may be supported by a court of equity. It may also be laid down. as a general proposition that all compacts made between husband and wife when single are nullified by the intermarriage. Thus, at law, if a man make a bond or contract to a woman before marriage, and they afterward marry, the bond or contract is discharged; or if two men make a bond or contract to a woman, and one of them marries her, the bond or contract is discharged. (Vide 1 Black. Com. 442, n. 40.) There are, however, covenants and contracts by a man with a woman which are not destroyed by their marriage, and these will be noted hereafter. 208. At common law the personal existence of a married woman, for most purposes, is merged in that of her husband; and, especially in matters of contract, she is subject to a greater disability than infants. This was not the fact among the Anglo-Saxons, but such has been the rule ever since the adoption of the feudal system. The rule "that the husband and the wife are in law but one person,' did not exist in the enlightened system of Roman jurisprudence, from which the common law has derived the most durable as well as the most valuable of its rules and maxims, nor has it ever prevailed in other countries, where the law as a science has been studied as profoundly, and interpreted as comprehensively, as by the jurists of England. In all these countries the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries, and may also by agreement with each other have a community of interest. Dr. Hartley, a metaphysician of the last century, who wrote a book of some reputation, entitled "Observations upon Man," supports the maxim of the English law, that man and wife are to be regarded as but one person, by the broad declaration that the authority of the man over the wife is but a mark of our degenerate state, by reason of which dominion must be placed somewhere, and therefore in the man. (Gould v. Gould, 29 How. Pr. R. 463, dissenting opinion of Judge Daly.) "The wife was precluded from the enjoyment of property, for whatever belonged to her while single, or came to her while covert, passed absolutely to the husband, or fell under his dominion. In vulgar phrase, what was hers became his, and what was his remained his own; she could possess nothing to her separate use; she could alienate nothing in her life-time; she could bequeath nothing by her death." (Macqueen on Husband and Wife, 283.) The contracts of infants, as we have seen, are, for the most part, only voidable, while those of married women are, with few exceptions, absolutely void. But the disabilities incident to infancy and coverture, arise on grounds very different from each other. Those attached to infancy are designed as a protection for the inexperienced against the fraudulent; while those incident to coverture are the simple consequence of the authority which the law recognizes in the husband. The law regards it as necessary for the preservation of peace, that when two or more persons are destined to pass their lives together, one should possess the pre-eminence, in order to prevent or terminate disputes; and the reason why this pre-eminence is vested in the man is, because he is the stronger, and it was also supposed that the man, by his education and manner of life, acquires more experience, more aptitude for business, and more judgment, than the woman. Of course there are exceptions in this respect, but the law designs to keep in view the ordinary § 207. The word coverture, in law, signifies the state of a married woman, for the reason that she has always been regarded as under the cover or the power of her husband, and, because she should always be under his wing and protection. A married woman, therefore, is called, in law-French, a feme-covert foemina viro cooperta. The origin of this term is not certain. Among the ancient Romans the modesty of the bride was so much consulted that, upon the delicate occasion of her nuptials, she was led to the home of her husband covered with a veil; and it is quite probable that the term originated in this custom. But whatever the origin of the term, time out of memory the condition of woman during her marriage has been called her coverture. By the marriage the husband and wife are one person in law, and upon this principle of a union of person depend almost all the legal rights, duties and disabilities that either husband or wife acquire by the marriage. For this reason a husband cannot, by any conveyance at common law, give an estate or grant any thing to his wife, or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself; and what is true of the husband in this respect is also true of the wife. Neither husband nor wife can contract with the other at common law, although each may enter into covenant or contract for the benefit of the other through the intervention of a trustee; and some of the transactions between husband and wife. may be supported by a court of equity. It may also be laid down as a general proposition that all compacts made between husband and wife when single are nullified by the intermarriage. Thus, at law, if a man make a bond or contract to a woman before marriage, and they afterward marry, the bond or contract is discharged; or if two men make a bond or contract to a woman, and one of them marries her, the bond or contract is discharged. (Vide 1 Black. Com. 442, n. 40.) There are, however, covenants and contracts by a man with a woman which are not destroyed by their marriage, and these will be noted hereafter. 208. At common law the personal existence of a married woman, for most purposes, is merged in that of her husband; and, especially in matters of contract, she is subject to a greater disability than infants. This was not the fact among the Anglo-Saxons, but such has been the rule ever since the adoption of the feudal system. The rule "that the husband and the wife are in law but one person," did not exist in the enlightened system of Roman jurisprudence, from which the common law has derived the most durable as well as the most valuable of its rules and maxims, nor has it ever prevailed in other countries, where the law as a science has been studied as profoundly, and interpreted as comprehensively, as by the jurists of England. In all these countries the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries, and may also by agreement with each other have a community of interest. Dr. Hartley, a metaphysician of the last century, who wrote a book of some reputation, entitled "Observations upon Man," supports the maxim of the English law, that man and wife are to be regarded as but one person, by the broad declaration that the authority of the man over the wife is but a mark of our degenerate state, by reason of which dominion must be placed somewhere, and therefore in the man. (Gould v. Gould, 29 How. Pr. R. 463, dissenting opinion of Judge Daly.) "The wife was precluded from the enjoyment of property, for whatever belonged to her while single, or came to her while covert, passed absolutely to the husband, or fell under his dominion. In vulgar phrase, what was hers became his, and what was his remained his own; she could possess nothing to her separate use; she could 'alienate nothing in her life-time; she could bequeath nothing by her death." (Macqueen on Husband and Wife, 283.) The contracts of infants, as we have seen, are, for the most part, only voidable, while those of married women are, with few exceptions, absolutely void. But the disabilities incident to infancy and coverture, arise on grounds very different from each other. Those attached to infancy are designed as a protection for the inexperienced against the fraudulent; while those incident to coverture are the simple consequence of the authority which the law recognizes in the husband. The law regards it as necessary for the preservation of peace, that when two or more persons are destined to pass their lives together, one should possess the pre-eminence, in order to prevent or terminate disputes; and the reason why this pre-eminence is vested in the man is, because he is the stronger, and it was also supposed that the man, by his education and manner of life, acquires more experience, more aptitude for business, and more judgment, than the woman. Of course there are exceptions in this respect, but the law designs to keep in view the ordinary course of things, and those who would entirely abrogate this rule, unwittingly hold out to the woman a dangerous snare. It is conceded that the rule of the common law is in many respects cruel and oppressive, and not in accordance with the existing state of society; but in making the changes that are at present going on, great caution is needed, "in order to improve and liberalize the marital relation, without inflicting upon it great injury." (1 Par sons on Con. 284.) § 209. Says Sir Thomas Smith: "The naturalist and first conjunction of two toward the making a further society of continuance, is of the husband and wife, each having care of the family; the man to get, to travel abroad, and to defend; the wife to save, to stay at home, and to distribute that which is gotten, for the nurture of the children and family; which to maintain, God has given the man greater wit, better strength, better courage, to compel the woman to obey, by reason or force; and to the woman, beauty, fair countenance, and sweet words, to make the man obey her again for love. Thus each obeys and commands the other; and they two together rule the house, so long as they remain in one." (Smith's Commonwealth of England, book 1, ch. 2.) The great apostle to the Gentiles, in his reference to the sacred relation of husband and wife, exhorts the wife to be subject to her own husband for her good; and to render this submission more easy, beneficial and comfortable, the husband is commanded to love his wife, with that tender, constant, faithful and compassionate affection which Christ showed to his church, saying: "So ought men to love their wives as their own bodies;" adding: "he that loveth his wife, loveth himself." (Ephesians, ch. 5, verses 22, 25, 28.) Here is declared the true effect which should follow the union of husband and wife as one person, according to the principle of the common law, which is recognized by the codes of all Christian and civilized nations. § 210. In treating further of the powers and faculties which the policy of the common law withholds from married women, it may be asserted that every agreement entered into by a married woman, especially while living with her husband, without the express or implied consent of her husband, is absolutely void (Worthington v. Young, 6 Ohio R. 313); nor can a married woman, at common law, be sued for any cause whatever, without her husband be joined with her in the process. |