[] State trials, vol. 1. Lord Audley's case. Stra. 633.
In the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d].
[c] Cod. 4. 12. 1.
[d] 2 Roll. Abr. 298.
But, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary[e]. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[f]. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder.
[e] Litt. §. 669, 670.
[f] Co. Litt. 112.
[g] 1 Hawk. P.C. 2.
The husband also (by the old law) might give his wife moderate correction[h]. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds[]; and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet[k]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere[l]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p].
[h] Ibid. 130.