PENNSYLVANIA.
BY CARRIE S. BURNHAM.
The common law of England as modified by English statutes prior to the Revolution has been formally adopted either by constitutions and statutes or assumed by courts of justice as the law of the land in every State save Louisiana, and in the absence of positive statutes is the common law of the United States. To understand the legal status of woman in Pennsylvania it is therefore necessary, First—To ascertain her condition under the common law; Second—How this law has been modified in this State by statutes.
Common Law.
By the common law, which Lord Coke calls "the perfection of reason," women arrive at the age of discretion at twelve, men at fourteen; both sexes are of full age at twenty-one, entitled to civil rights, and if unmarried and possessed of freehold, they are equally entitled to the exercise of political rights (Blackstone, I., 463; IV., 212; Bouvier's Institutes, 156, 157; Decisions of English courts in 1612, quoted in 7 Mod. Rep., 264).
"By marriage, the husband and wife are one person in law"; that is, the legal existence of the woman is "merged in that of her husband." He is her "baron," or "lord," bound to supply her with shelter, food, clothing and medicine, and is entitled to her earnings—the use and custody of her person, which he may seize wherever he may find it (Blackstone, I., 442, 443; Coke Litt., 112 a, 187 b; 8 Dowl., P. C., 632.)
The husband being bound to provide for his wife the necessaries of life, and being responsible for "her morals" and the good order of the household, may choose and govern the domicil, choose her associates, separate her from her relatives, restrain her religious and personal freedom, compel her to cohabit with him, correct her faults by mild means and, if necessary, chastise her with moderation, as though she was his apprentice or child. This is in "respect to the terms of the marriage contract and the infirmity of the sex" (Bl., I., 444; 1 Bishop on Mar. and Div., 758; 8 Dowl. P. C., 632; Bouv. Insts., 277, 278, 2,283; 1 Wend. Bl., 442, note; 4 Petersdorf's A. B., 21, note).
Woman's character, exposed to the vilest slanders of "malignity and falsehood," and her chastity are protected on account of the injury sustained by the father, husband or master from loss of her services, or wrongful entry of his house, rather than the injury done to her as an individual (Bl. I., 445, note; III., 141, 143, note; 3 Serg. and Rawle, Penn., 36; 3 Penn., 49; 2 Watts' Penn., 474).
The husband is entitled to recover damages for "criminal conversation with his wife," or for injury to her person whereby he is deprived of his "marital rights," or of her "company and assistance"; also an action of trespass vi et armis against the individual enticing her away or encouraging her to live separately from him; the offense implies force and constraint, "the wife having no power to consent," and is punishable with fine and imprisonment (Bl., III., 139; 2 Inst., 434; Bouvier's Institutes, 3,495).
The wife has no action for injuries to her husband as she is not entitled to his services, neither has she any separate interest in anything during her coverture. The law takes notice only of the injuries done to the "superior of the parties related"; because "the inferior has no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior" (Blackstone, III., 143; Bouv. Insts., 3,495).
The husband, by marriage, becomes entitled absolutely to the personal property of his wife, which at his death goes to his representatives; also to the rents and profits of her lands, to the interest in her chattels real and choses in action, of which he can dispose at pleasure, except by will. He acquires the same right in any property whether real or personal of which she may become possessed after marriage, and is liable during coverture for her debts contracted before marriage (Bl., II., 434, 435; Bouv. Insts., 4,005; Coke Litt., 46, 351).
At his death she becomes possessed of her wardrobe and jewels, such of her chattels as remain undisposed of, and her own real estate; also quarantine (i. e., forty days' residence in "his mansion"), one-third of his personality absolutely and the use of one-third of any real estate of which he is possessed during coverture for the term of her natural life. His mansion, realty and personalty includes what they have jointly earned as well as that of which he was possessed at marriage. The widow's right to one-third of the personal estate was abolished by English statutes prior to the Revolution, but has since been revived by Pennsylvania statutes (Blackstone, II., 129, 134, 139, 436, 492, 493; Coke Litt., 31, 34; Bouvier's Institutes, 1,750; Brightley's Purdon, 806, 2 and 3).
At the death of the wife their joint earnings, also her chattels real, vest absolutely in the husband, and if they have had a living child the husband, as "tenant by the curtesy," becomes possessed of her entire real estate for life. The wife loses her dower by adultery, but the husband does not lose his curtesy on that account. Her dower is also barred by his treason and by a divorce grounded on his adultery (Blackstone, II., 127, 434; Roper, Husband and Wife, 1,210; 2 Kent, 131; 7 Watts, 563; Bouvier's Institutes, 1,732).
A husband cannot convey real estate directly to his wife, but may through a trustee; neither can he give "anything to her nor covenant with her, for the grant would be to suppose her separate existence, and to covenant with her would be to covenant with himself." Their covenants or indebtedness to each other before marriage are by the marriage extinguished (Blackstone, I., 442; Coke Litt., 3, 30; 112 a; 187 b; Connyn. Dig. Baron and Feme, D).
The husband may devise any property to his wife, but the wife cannot make a will, the law supposing her to be under his coercion; neither can she bind her person or property, nor make nor enforce a contract, nor can she be a witness in any matter in which her husband is interested (Blackstone, II., 293, 498, 444; 2 Kent, 179; Bouv. Insts., 1,441; Connyn. Dig. Pleader, 2 A, 1; Baron and Feme, W; 2 Roper, Husband and Wife, 171).
A wife, with the consent of her husband, may act as his or other's attorney, may be a guardian, trustee, administratrix or executrix, but cannot sue in auter droit unless her husband join in the suit. This incapacitates her to act independently in either capacity (Blackstone, II., 503; 1 Anders., 117; 2 Story, Eq. Juris., 1,367, note; 57 Penn. St. Rep., 356).
A wife cannot enforce her rights nor defend any action brought against her, but must plead coverture in person, being incapable of appointing an attorney (Bouv. Insts., 2,787, 2,907; 41 N. H., 106; 2 Saund., 209; c. n. 1).
When a woman marries after having commenced a suit, the suit abates; but the husband may in equity sue her for his marital rights in her property; marriage of a female partner dissolves the partnership (Bouv. Insts., 4,037, 1,494; 4 Russ. Ch., 247; 3 Atk. Ch., 478; 2 P. Will Ch., 243).
The father of legitimate children is bound for their maintenance and education, is entitled to their labor and custody and has power to dispose of them until twenty-one years of age, by deed or legacy, even though they are unborn at his death. The testamentary guardian's right to their custody supersedes that of their mother (Bl., I., 447, 451, 453; 2 Kent, 191 and 193; Bouv. Insts., 344; 5 Rawle, 323; 2 Watts, 406; 5 East, 221; Purd. Dig., New Ed., 411, 29; 5 Pitts, L. J., 406; 1 Pitts, 412).
"A mother is entitled to no power, but to reverence and respect, from her children"; she has no legal authority over them nor right to their services, but her property is liable for their maintenance if the father has not an estate. The mother's appointment of a testamentary guardian is absolutely void (Bl., I., 453 and 461, note by Chitty; Vaughan, 180; 1 Leg. Gaz. R., 56).
The mother of a "natural or illegitimate" child is its natural guardian, entitled to its control and custody and her settlement is its domicil (Bl., I., 459; 2 Kent, 216; 5 Term Rep., 278; Newton vs. Braintree, 14 Mass., 382).
"Intestate personal property is divided equally between males and females, but a son, though younger than all his sisters, is the heir to the whole of real property" (Bl., I., 444, note by Christian).
Pennsylvania Statutes and Court Decisions.
This "perfection of reason" (the common law) has been changed in Pennsylvania in the following particulars:
All women, married and single, are deprived of political rights by the use of the generic word "freeman" in the constitution (29 Legal Intelligencer, 5).
Heir at common law is abolished by statute; however, the right to administer vests in the male in preference to the female of the same degree of consanguinity. Half-brothers are entitled to the preference over own sisters (Purdon, 410, 27; Single's Appeal, 59 Penn. St. R., 55).
Any property belonging to a woman before marriage, or which accrues to her during coverture by gift, bequest or purchase, continues, by the act of April 11, 1848, to be her separate property after marriage, and is not liable for the debts of her husband nor subject to his disposal without her written consent, duly acknowledged before one of the judges of the Court of Common Pleas as voluntarily given; provided, that he is not liable for the debts contracted before or after marriage, or for her torts (Purdon's Dig., 1,005, 13).
"This act protects the wife's interest in her separate property both as to title and possession," but "does not empower her to convey her real estate by a deed in which her husband has not joined," nor "create a lease without his concurrence," nor "execute an obligation for the payment of money or the performance of any other act," nor in any way dispose of her property save by gift or loan to him; she may bind her separate estate for his debts, and in security for the loan she may take a judgment or mortgage against the estate of the husband in the name of a third person, who shall act as her trustee (18 Penn. St. R., 506, 582; 21, 402; 1 Gr., 402; 6 Phila., 531; Pur. Dig., 1,007, 21).
The husband is the natural guardian or trustee of the property of the wife; but by application "to the Court of Common Pleas of the county where she was domiciled at the time of her marriage," the court will appoint a trustee (not her husband) to take charge of the property secured to her by the act of 1848. This act, however, does not authorize the appointment of a trustee, to the exclusion of her husband, of property owned by her prior to the passage of the act, nor was it intended to affect vested rights of husbands and does not protect them for the wife's benefit against the claims of creditors (10 Penn. St. Rep., 398 and 505; 18, 392 and 509; 21, 260; 1 Jones, 272).
In a clear case the wife's real estate cannot be levied upon and sold by a creditor of the husband, but the burden of proof is upon her to show by evidence "which does not admit of a reasonable doubt," that she owned the property before marriage or acquired it subsequently by gift, bequest, or paid for it with funds not furnished by her husband nor the result of their joint earnings. The wife's possession of money is no evidence of her title to it (18 Penn. St. Rep., 366; 7 Phila., 118).
If no property, or not sufficient property, of the husband can be found, the separate property and goods of the wife may be levied upon and sold for rent or for debts incurred for the support of the family (Purd. Dig., 1,006, 15; 38 Penn. St. Rep., 344).
A married woman's bond and warrant of attorney are absolutely void, nor can she make a valid contract except for a sewing-machine or for the improvement of her separate property, and her bond given or a judgment confessed by her for such debt is void (24 Penn. St. Rep., 80; Act of 1872, Pur. Dig., 1,010).
She may sell and transfer shares of the capital stock of any railroad company, but cannot herself or by attorney transfer certificates of city loan (28 Leg. Int., 116; Act June 2, 1871).
A married woman cannot enforce her rights against third persons, either for the performance of a contract or the recovery of her property, without her husband join in the suit, although the party contracting with her is liable to an action (1 Gr., 21; Act of 1850 and 1839; 6 Phila., 223).
If divorced or separated from her husband by his neglect or desertion, she may protect her reputation by an action for slander and libel; but if her husband is the defendant, this suit, as also for alimony and divorce, must be in the name of a "next friend." She is entitled to a writ of habeas corpus if unlawfully restrained of her liberty (Purd. Dig., 510, 12; 513, 24; 754, 1).
The wife of a drunkard or profligate man by petitioning the Court of Common Pleas, setting forth these facts and his desertion of her and neglect to provide for her and their children, may be entitled to the custody of her children, and, as a "feme sole trader," empowered to transact business and acquire a separate property, which shall be subject to her own disposal during life, and liable for the maintenance and education of her children. Her testimony must be sustained "by two respectable witnesses" (Pur. Dig., 692, 5; Act of 1855, 2; 2 Roper, Husband and Wife, 171, 173).
By act of April, 1872, any married woman having first petitioned the court, stating under oath or affirmation her intention of claiming her separate earnings, is entitled to acquire by her labor a separate property which shall not be subject to any legal claim of her husband or of his creditors, she, however, being compelled "to show title and ownership in the same." The husband's possession of property is evidence of his title to it; not so with the wife (Purd. Dig., 1,010, 38, 39; 4 Lansing, 164; 61 Barb., 145).
A married woman may devise her separate property by will, subject, however, to the husband's curtesy, which in Pennsylvania attaches, though there be no issue born alive, and which she cannot bar (Purd. Dig., 806, 804; I Pars., 489; 26 Penn. St. R., 202, 203; 2 Brewster, 302).
The husband may bar the wife's dower by a bona fide mortgage given by himself alone or by a judicial sale for the payment of his debts. It is also barred by a divorce obtained by her on the ground of his adultery, and in case of such divorce she is entitled to the value of one-half of the money and property which the husband received through her at marriage (Purd. Dig., 514; 2 Dall. 127; 12 Serg. and R., 21; I Yeates Pa., 300).
A single woman's will is revoked by her subsequent marriage, and is not again revived by the death of her husband; a single man's will is revoked by marriage absolutely only when he leaves a widow but no known heirs or kindred (Purd. Dig., 1,477, 18 and 19; 47 Penn. S. Rep., 144, 34, 483).
If the husband die intestate leaving a widow and issue, the widow shall have one-third of his and their joint personalty absolutely, and one-third of the real estate for life; if there are no children, but collateral heirs, she is entitled to the use of one-half the realty, including the mansion-house, for her life, and one-half the personalty absolutely (Purd. Dig., 806, 2 and 3; Act of 1833, 1).
If the wife die intestate leaving a husband and no issue, he is entitled to her entire personalty and realty during his life; if there are children her personal estate is divided between the husband and children share and share alike; in either case he is entitled to their entire joint estate (Purd. Dig., 806, 5; Act of 1848, 9).
Married women may be corporate members of any institution composed of and managed by women, having as its object the care and education of children or the support of sick and indigent women (Purd. Dig., 283; Act of 1859, 1).
It is a crime, punishable by fine and imprisonment, to employ any woman to attend or wait upon an audience in a theater, opera or licensed entertainment, to procure or furnish commodities or refreshments (Purd. Dig., 337, 112).
A man, by marriage, is subjected to no political, civil, legal or commercial disabilities, but acquires all the rights and powers previously vested in his wife. He is capable of all the offices of the government from that of postmaster to the presidency, and of transacting all kinds of business from the measuring of tape to the practice of the most learned professions. Woman, deprived of political power, is limited in opportunities for education, and, if married, is incapable of making a contract; hence crippled in the transaction of any kind of business.