Front Page Titles (by Subject) CHAPTER XV.: OF HUSBAND AND WIFE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XV.: OF HUSBAND AND WIFE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF HUSBAND AND WIFE.
The second private relation of persons is that of marriage, which includes the reciprocal rights and duties of husband and wife; or, as most of our elder law-books call them, of baron and feme. In the consideration of which I shall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.
I. Our law considers marriage in no other light than as a civil contract.1 The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriage, is the province of the spiritual courts; which act pro salute animæ.(a) And, taking it in this civil light, the law treats it as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
**434]First, they must be willing to contract. “Consensus, non concubitus, facit nuptias,” is the maxim of the civil law in this case:(b) and it is adopted by the common lawyers,(c) who indeed have borrowed, especially in ancient times, almost all their notions of the legitimacy of marriage from the canon and civil laws.2
Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities. What those are, it will be here our business to inquire.
Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are precontract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate’s coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties.3 For, after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties.(d) And therefore when a man had married his first wife’s sister, and after her death the bishop’s court was *[*435proceeding to annul the marriage and bastardize the issue, the court of King’s Bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest.(e) These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God’s law;4 and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge, and fruit of children, shall be indissoluble. And, because in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money, it is declared, by the same statute, that nothing, God’s law except, shall impeach any marriage, but within the Levitical degrees;5 the furthest of which is that between uncle and niece.(f) By the same statute, all impediments arising from precontracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowledge: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33,6 which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract, may collaterally extend to revive this clause of Henry VIII.’s statute, and abolish the impediment of precontract, I leave to be considered by the canonists.7
The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable; not that they **436]dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union.8
1. The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void:(g) polygamy being condemned both by the law of the New Testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express,(h) that “duas uxores eodem tempore habere non licet.”
2. The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect;9 and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law.(i) But the canon law pays a greater regard to the constitution, than the age, of the parties;(j) for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again.(k) If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither:10 and so it is, vice versâ, when the wife is of years of discretion, and the husband under.(l)
*[*4373. Another incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. But, by several statutes,(m) penalties of 100l. are laid on every clergyman who marries a couple either without publication of banns, which may give notice to parents or guardians, or without a license, to obtain which the consent of parents or guardians must be sworn to. And by the statute 4 & 5 Ph. and M. c. 8, whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years’ imprisonment: and her estate during the husband’s life shall go to and be enjoyed by the next heir.11 The civil law indeed required the consent of the parent or tutor at all ages, unless the children were emancipated, or out of the parents’ power:(n) and if such consent from the father was wanting, the marriage was null, and the children illegitimate:(o) but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province:(p) and if the father was non compos, a similar remedy was given.(q) These provisions are adopted and imitated by the French and Hollanders, with this difference: that in France the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty-five;(r)12 and in Holland, the sons are at their own disposal at twenty-five, and the daughters at twenty.(s)13 Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has lately been thought proper to introduce somewhat of the same policy into our laws, by statute 26 Geo. II. c. 33,14 whereby it is enacted, that all marriages celebrated by license (for banns suppose notice) where either of the parties is under twenty-one, (not being **438]a widow or widower, who are supposed emancipated,) without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void.15 A like provision is made as in the civil law, where the mother or guardian is non compos, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor; but no provision is made, in case the father should labour under any mental or other incapacity.16 Much may be, and much has been, said both for and against this innovation upon our ancient laws and constitution. On the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public, by hindering the increase of the people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is concubitu prohibere vago. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbade marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty-five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account: “quia non sua culpa, sed parentum, id commisisse cognoscitur.(t)17
4. A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid.(u) It was formerly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. And therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment; *[*439though not a cause of divorce, if they happened after marriage.(v) And modern resolutions have adhered to the reason of the civil law, by determining(w) that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be difficult to prove the exact state of the party’s mind at the actual celebration of the nuptials, upon this account, concurring with some private family(x) reasons, the statute 15 Geo. II. c. 30, has provided that the marriage of lunatics and persons under phrenzies, if found lunatics under a commission, or committed to the care of trustees by any act of parliament, before they are declared of sound mind by the lord chancellor or the majority of such trustees, shall be totally void.18
Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage.19 Any contract made, per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiæ. But these verbal contracts are now of no force to compel a future marriage.(y) Neither is any marriage at present valid, that is not celebrated in some parish-church or public chapel,20 unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders;(z) though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that pope Innocent the Third was the first who ordained the celebration of marriage in the church;(a) before **440]which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by stat. 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders,—in a parish-church or public chapel, or elsewhere, by special dispensation,—in pursuance of banns or a license,—between single persons,—consenting,—of sound mind,—and of the age of twenty-one years;—or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to their marriage.
II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii,(b) the other merely a mensa et thoro. The total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment before mentioned, and those existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility.21 For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio: and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage as is thus entirely dissolved, are bastards.(c)22
Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving *[*441it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper,23 or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made.24 And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another.(d) The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones: as, if a wife goes to the theatre or the public games, without the knowledge and consent of the husband;(e) but among them adultery is the principal, and with reason named the first.(f) But with us in England adultery is only a cause of separation from bed and board:(g) for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties,(h) which is now prohibited by the canons.(i)25 However divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament.26
In case of divorce a mensa et thoro, the law allows alimony to the wife: which is that allowance which is made to a woman for her support out of the husband’s estate: being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers,27 for which, if he refuses payment, there is, besides the ordinary process of excommunication, a writ at common law de estoveriis habendis, in order to recover it.(j) It is generally proportioned to the rank and quality of **442]the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony.(k)
III. Having thus shown how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.
By marriage, the husband and wife are one person in law:(l) 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; and is therefore called in our law-french a feme-covert, fœmina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.28 Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her:(m) for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.(n)29 A woman indeed may be attorney for her husband;(o) for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death.(p)30 The husband is bound to provide his wife with necessaries by law, as much as himself; and, if she contracts debts for them, he is obliged to pay them;(q) but for any thing besides necessaries he is not chargeable.(r) Also if a wife elopes, and lives with another man, the husband is **443]not chargeable even for necessaries;(s) at least if the person who furnishes them is sufficiently apprized of her elopement.(t)31 If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together.(u)32 If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own:(v) neither can she be sued without making the husband a defendant.(w) There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished,(x) for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all.33 In criminal prosecutions, it is true, the wife may be indicted and punished separately;(y) for the union is only a civil union.34 But in trials of any sort they are not allowed to be witnesses for, or against, each other:(z) partly because it is impossible their testimony should be indifferent, but principally because of the union of person; and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, “nemo in propria causa testis esse debet;”(a) and if against each other, they would contradict another maxim, “nemo tenetur seipsum accusare.”(b)35 But, where the offence is directly against the person of the wife, this rule has been usually dispensed with;(c) and therefore, by statute 3 Hen. VII. c. 2, in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the **444]ravisher here would do, if, by forcibly marrying a woman, he could prevent her from being a witness who is perhaps the only witness to that very fact.
In the civil law the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries;(d) and therefore in our ecclesiastical courts, a woman may sue and be sued without her husband.(e)
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; 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.(f) 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.(g)36 And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her:(h) but this extends not to treason or murder.37
The husband also, by the old law, might give his wife moderate correction.(i) 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 apprentices 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,(j) and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suæ, licite et rationabiliter pertinet. The civil law gave the husband the *[*445same, or a larger, authority over his wife: allowing him, for some misdemeanours, flagellis et fustibus acriter verberare uxorem: for others, only modicam castigationem adhibere.(k) But with us, in the politer reign of Charles the Second, this power of correction began to be doubted;(l) and a wife may now have security of the peace against her husband;(m) or, in return, a husband against his wife.(n) Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour.(o)
These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of England.38
[1 ] Therefore an action is sustainable for a breach of promise to marry where the contract to marry was mutual. 1 Roll. Abr. 22, 1, 5. 1 Sid. 180. 1 Lev. 147. Carth. 467. Freem. 95. And though one of the parties be an infant, yet the contract will be binding on the other. 2 Stra. 937. The action is sustainable by a man against a woman. Carth. 467. 1 Salk. 24. 5 Mod. 511. But an executor cannot sue or be sued. 2 M. & S. 408.
A promise to marry is not within the statute of frauds, and need not be in writing, (1 Stra. 34. 1 Lord Raym. 316. Bull. N. P. 280;) nor when in writing need it be stamped. 2 Stark. 351.
With respect to the evidence to prove the contract of marriage, it has been held in a case where the promise of the man was proved, and no actual promise of the woman, that evidence of her carrying herself as consenting and approving his promise was sufficient. 3 Salk. 16. 1 Salk. 24, n. b.
And where A. stated to the father of the plaintiff that he had pledged himself to marry his daughter in six months, or in a month after Christmas, it was considered evidence from which a jury might infer a promise to marry generally, the proof varying from the statement in the declarations of a more particular promise. 1 Stark. 82.
A bill in equity lies to compel the defendant to disclose whether he promised to marry. Forrest Rep. 42.
If either party give to the other something, as money, &c. which is accepted in satisfaction of the promise, it is a good discharge of the contract. 6 Mod. 156.
If the intended husband or wife turns out on inquiry to be of bad character, it is a sufficient defence for rescinding the engagement; but a mere suspicion of such fact is not. Holt, C. N. P. 151. 4 Esp. Rep. 256.
No bill in equity, or other proceeding, is sustainable to compel the specific performance of a promise to marry; and the 4 Geo. IV. c. 76, s. 27, enacts that marriage shall not be compelled in any ecclesiastical court in performance of any contract; consequently, the only legal remedy is an action at law to recover damages for the breach of contract.
It may be as well here to observe that our law favours and encourages lawful marriages; and every contract in restraint of marriage is illegal, as being against the sound policy of the law.
Hence, a wager that the plaintiff would not marry within six years was holden to be void. 10 East, 22. For although the restraint was partial, yet the immediate tendency of such contract, as far as it went, was to discourage marriage, and no circumstances appeared to show that the restraint in the particular instance was prudent and proper; and see, further, 4 Burr. 2225. 2 Vern. 102, 215. 2 Eq. Ca. Ab. 248. 1 Atk. 287. 2 Atk 538, 540. 10 Ves. 429. 1 P. Wms. 181. 3 M. & S. 463.
On the other hand, contracts in procuration of marriage are void, at least in equity (1 Ch. Rep. 47. 3 Ch. Rep. 18. 3 Lev. 411. 2 Chan. Ca. 176. 1 Vern. 412. 1 Ves. 503. 3 Atk. 666. Show. P. C. 76. 4 Bro. P. C. 144, 8vo ed. Co. Litt. 206, b. Forrest Rep. 142,) and semble it would be so at law. 2 Wils. 347. 1 Salk. 156, acc. Hob. 10, cont. Persons conspiring to procure the marriage of a ward in chancery by undue means are liable not only to be committed, but to be indicted for a conspiracy. 3 Ves. & B. 173.—Chitty.
[(a) ] Salk. 121.
[(b) ]Ff. 50, 17, 30.
[(c) ] Co. Litt. 33.
[2 ] Any words of assent in the present tense constitute a valid marriage, unless there exists some positive statute; nor need a clergyman or magistrate be present. It is complete if there is full, free, and mutual consent between parties capable of contracting, though not followed by cohabitation. Hantz vs. Sealy, 6 Binn. 405. Fenton vs. Reed, 4 Johns. 52. Jackson vs. Winne, 7 Wend. 47.
For all civil purposes, reputation and cohabitation are sufficient evidence of marriage. In cases of prosecutions for bigamy, and in action for criminal conversation, however, strict proof is demanded. Sensee vs. Brown, 1 Penna. Rep. 450. Fenton vs. Reed, 4 Johns. 52. Jackson vs. Clare, 15 Johns. 346. The State vs. Hodgskins, 1 App. 1555. Weaver vs. Cryer, 1 Deo. 337. Taylor vs. Shemwell, 4 B. Monr. 575. Taylor vs. Robinson, 29 Maine, 323. State vs. Winkley. 14 N. Hamp. 450. Tarpley vs. Poage, 2 Texas. 139.—Sharswood.
[3 ] Elliot vs. Gurr. 2 Phil. Ecc. C. 16. And the wife is entitled to dower. 1 Moore, 225, 228. Noy. 29. Cro. Car. 352. 1 Roper, 332, 333.—Chitty.
[(d) ] Co. Litt. 33.
[(e) ] Salk. 548.
[4 ] This act does not specify what these prohibitions are, but by the 25 Hen. VIII. c. 22, s. 3, these prohibitory degrees are stated, and it is enacted “that no subjects of this realm, or in any of his majesty’s dominions, shall marry within the following degrees, and the children of such unlawful marriages are illegitimate: viz., a man may not marry his mother or stepmother, his sister, his son’s or daughter’s daughter, his father’s daughter by his stepmother, his aunt, his uncle’s wife, his son’s wife, his brother’s wife, his wife’s daughter, his wife’s son’s daughter, his wife’s daughter’s daughter, his wife’s sister;” and, by sec. 14, this provision shall be interpreted of such marriages where marriages were solemnized and carnal knowledge had; and see the 28 Hen. VIII. c. 7. It is doubtful whether the 25 Hen. VIII. c. 22 was repealed by 28 Hen. VIII. c. 7, s. 3, and 1 Mar. sess. 2, c. 1. See Burn Ecc. L. Marriage, I.—Chitty.
[5 ] See table of Levitical degrees, Burn. Ecc. L. tit. Marriage, I. The prohibited degrees are all those which are under the fourth degree of the civil law, except in the ascending and descending line, and by the course of nature it is scarcely a possible case that any one should ever marry his issue in the fourth degree; but between collaterals it is universally true that all who are in the fourth or any higher degree are permitted to marry; as first-cousins are in the fourth degree, and therefore may marry, and nephew and greataunt, or niece and great-uncle, are also in the fourth degree, and may intermarry; and though a man may not marry his grandmother, it is certainly true that he may marry her sister. Gibs. Cod. 413. See the computation of degrees by the civil law, 2 book, p. 207. The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related; as a husband is related by affinity to all the consanguinei of his wife; and vice versâ, the wife to the husband’s consanguinei: for the husband and wife being considered one flesh, those who are related to the one by blood are related to the other by affinity. Gibs. Cod. 412. Therefore a man after his wife’s death cannot marry her sister, aunt, or niece, or daughter by a former husband. 2 Phil. Ecc. C. 359. So a woman cannot marry her nephew by affinity, such as her former husband’s sister’s son. 2 Phil. Ecc. c. 18. So a niece of a wife cannot after her death marry the husband. Noy. Rep. 29. But the consanguinei of the husband are not at all related to the consanguinei of the wife. Hence two brothers may marry two sisters, or father and son a mother and daughter; or if a brother and sister marry two persons not related, and the brother and sister die, the widow and widower may intermarry; for though a man is related to his wife’s brother by affinity, he is not so to his wife’s brother’s wife, whom, if circumstances would admit, it would not be unlawful for him to marry.—Christian.
[(f) ] Gilb. Rep. 158.
[6 ] The statute is repealed by subsequent acts; but the last statute, repealing a very unadvised and objectionable intermediate act passed 3 Geo. IV. c. 75, is stat. 4 Geo. IV. c. 76.—Chitty.
[7 ] A contract per verba de præsenti tempore used to be considered in the ecclesiastical courts ipsum matrimonium; and if either party had afterwards married, this, as a second marriage, would have been annulled in the spiritual courts, and the first contract enforced. See an instance of it 4 Co. 29. But, as this pre-engagement can no longer be carried into effect as a marriage, I think we may now be assured that it will never more be an impediment to a subsequent marriage actually solemnized and consummated—Christian.
[8 ] A marriage between parties, one of whom has no capacity to contract marriage at all, or where there is a want of age or understanding, or a prior marriage still subsisting, is void absolutely and ab initio; and as between the parties themselves and those claiming under them, no rights whatever are acquired by such marriage. And whether the marriage was void or not may be inquired into by any court in which rights are asserted under it, although the parties to the marriage are dead. Guthings vs. Williams, 5 Iredell, 487.—Sharswood.
[(g) ] Bro. Abr. tit. Bastardy, pl. 8.
[(h) ] Inst. 1, 10, 6.
[9 ] The ecclesiastical court will annual the marriage by license of a minor without consent of parents or guardians, (2 Phil. Ecc. c. 92, 285, 365, 327, 328, 341, 343, 347;) but a marriage of an infant by banns is binding unless there be fraud in publication, as by a false name, &c. 2 Phil. Ecc. C. 365.
But if either party be under seven years of age, the marriage is absolutely void; but marriages of princes made by the state in their behalf at any age are held good, though many of these contracts have been broken through. Swinb. Mat. Contr. See Ward’s Law of Nations. The age of consent within the 1 Jac. I. c. 11, s. 3, is fourteen in males and twelve years in females. Russell and R. Cro. C. 48.—Chitty.
[(i) ]Leon. Constit. 109.
[(j) ]Decretal, l. 4, tit. 2, qu. 3.
[(k) ] Co. Litt. 79.
[10 ] This proposition is too generally expressed; for there are various contracts between a person of full age and a minor in which the former is bound and the latter is not. The authorities seem decisive that it is true with regard to the contract of marriage referred to the ages of fourteen and twelve; but it has also long been clearly settled that it is not true with regard to contracts of marriage referred to the minority under twenty-one.
For where there are mutual promises to marry between two persons, one of the age of twenty-one and the other under that age, the first is bound by the contract, and on the side of the minor it is voidable; or for a breach of the promise on the part of the person of full age, the minor may maintain an action and recover damages, but no action can be maintained for a similar breach of the contract on the side of the minor. Holt vs. Ward Clarencieux, Str. 937. S. C. Fitzg. 175, 275.—Christian.
[(l) ] Co. Litt. 79.
[(m) ] 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Anne, c. 19.
[11 ] The construction of the statute seems to be, that it shall also go to the next heir during the life of the wife, even after the death of the husband. 1 Brown Cha. Rep. 23. But the contrary has been decided in the exchequer. Amb. 73.—Christian.
[(n) ]Ff. 23, 2, 2, and 18.
[(o) ]Ff. 1, 5, 11.
[(p) ]Cod. 5, 4, 1, and 20.
[(q) ] Inst. 1, 10, 1.
[(r) ] Domat, of Dowries, 2, Montesq. Sp. L. 23, 7.
[12 ] This is now altered to twenty-five in sons and twenty-one in daughters, and the consent of the father suffices. After those ages the parties may marry after three respectful, but ineffectual, endeavours to obtain consent of parents. Code Civil, livre 1, title 5.—Chitty.
[(s) ] Vinnius in Inst. l. 1, t. 10.
[13 ] But even in Holland, and of course in countries subjected to the Dutch civil law, the marriage of sons after twenty-five, and daughters after twenty, years of age, without consent of parents, may, upon causes enumerated in the books, be prevented.—Chitty.
[14 ] This act is repealed by the 4 Geo. IV. c. 76; but the 16th section re-enacts the like provisions, viz., “that the father, if living, of a party under twenty-one years of age, such party not being a widower or widow; or, if the father be dead, the guardian of the person so under age lawfully appointed; or, in case of no guardian, then the mother of such party, if unmarried; or if there be no mother unmarried, then the guardian of the person appointed by the court of chancery, if any, shall have authority to give consent to the marriage; and such consent is thereby required for the marriage, unless there be no person authorized to give such consent.”
It has been held that all marriages, whether of legitimate or illegitimate children, are within the general provisions of the marriage act 26 Geo. II. c. 33, which requires all marriages to be by banns or license; and, by three judges, a marriage of an illegitimate minor, had by license with the consent of her mother, is void by the 11th section,—the words father and mother in that section meaning legitimate parents. Priestly vs. Hughes, 11 East, 1. In the case of Horner vs. Liddiard, reported by Dr. Croke, it was decided by Sir William Scott that bastards were bound by the 11th section of 26 Geo. II. c. 33. It follows that a marriage by license, with the consent of either the putative father or mother, will not be a compliance with the marriage act, and therefore void; and the only methods by which the marriage of a natural child can be legally solemnized are either after the publication of banns, or after the appointment of a guardian for the child by the court of chancery, and then the marriage may be performed under a license with the consent of such guardian. 1 Roper, 340.—Chitty.
[15 ] A matter of such importance deserves to be more particularly stated: the party under age marrying by license, if a minor, and not having been married before, must have the consent of a father, if living; if he be dead, of a guardian of his person lawfully appointed; if there be no such guardian, then of the mother if she is unmarried; if there be no mother unmarried, then of a guardian appointed by the court of chancery. I have been inclined to think that the words lawfully appointed comprehend a guardian appointed by the father, a guardian appointed by the court of chancery, and also, where such guardian can exist, a socage guardian, he being a guardian of the person of the ward appointed by the law itself.—Christian.
[16 ] But a provision for this will be found in the 4 Geo. IV. c. 76, s. 17, by which it is enacted, that in case the father of the party under age be non compos mentis, or the guardian or mother, or any of them whose consent is made necessary, in the 16th section mentioned, to the marriage of such party, be non compos mentis, or in parts beyond the seas, or shall unreasonably, or from undue motives, withhold consent to a proper marriage, then the party may apply by petition to the lord chancellor, lord keeper, or the lords commissioners of the great seal of Great Britain for the time-being, master of the rolls, or vice-chancellor of England; and, if it appear proper, they shall declare the same to be so, and such declaration shall be taken to be as effectual as if the father, guardian or guardians, or mother of the person so petitioning, had consented to such marriage.—Chitty.
[(t) ] Nov. 115, 11.
[17 ] The commentator’s profound observation as to this effect of those restraints put upon marriage has been, and is, amply confirmed; but stat. 3 Geo. IV. c. 75 imposed still greater restraints, and the immediate consequence was a very general disregard, indeed, of the marriage rite altogether. Within a year the act was given up, and the present statute substituted, leaving publication by banns nearly upon the former footing.—Chitty.
The statute 26 Geo. II. c. 33 is repealed by the 3 Geo. IV. c. 75: and the 4 Geo. IV. c. 76 is now the existing marriage act. The great distinction between the policy of the former and the latter statute is, that the latter reverts to the old principle of punishing clandestine marriages by loss of property, &c., but does not violently make void a contract actually entered into. It therefore abounds in provisions for securing an assurance before marriage that the parties are of proper age and have proper consent, and with punishments where such provisions are broken through; but these irregularities are not allowed to avoid the marriage when solemnized.—Coleridge.
The statute 6 & 7 Wm. IV. c. 85 (explained by the 1 Vict. c. 22, and 3 & 4 Vict. c. 72) was passed for the relief of those who scrupled at joining in the services of the established church, and was the result of a long and arduous struggle carried on for many years in and out of parliament. It provides for places of religious worship other than the churches and chapels of the establishment, being registered for the solemnization of marriages therein; and it also enables persons who wish to do so to enter into this contract without any religious ceremony whatever. It is, therefore, no longer essential to the validity of a marriage, either that it should be solemnized in a parish-church or public chapel, or be performed by a person in holy orders; but whether celebrated in facie ecclesiæ, or (under the provisions of the above-mentioned statute) in a place of religious worship, or in the presence merely of the superintendent registrar of births, deaths, and marriages, the officer before whom civil marriages may be performed, the contract must be preceded and accompanied by certain circumstances of publicity, or entered into in virtue of a license obtainable only on proof by affidavit that there is no legal impediment to the marriage.—Kerr.
[(u) ] 1 Roll. Abr. 357.
[(v) ]Ff. 23, tit. 1, l. 8, and tit. 2, l. 16.
[(w) ] Morrison’s case, coram Delegat.
[(x) ] See private acts, 23 Geo. II. c. 6.
[18 ] Till the 2 & 3 Edw. VI. c. 21, the clergy in this country were prohibited to marry, by various laws and canons; a statute in the 31 Hen. VIII. c. 14, having even made it felony. But the legislature, by 2 & 3 Edw. VI. c. 21, repealed the laws and canons which imposed that severe restriction upon the clergy, and granted them the same indulgence that the laity enjoyed. But this statute, like all the other reforms in the church, was repealed by queen Mary, and it was not revived again till the 1 Jac. I. c. 25, though the thirty-nine articles had been passed in convocation in the fifth year of the reign of queen Elizabeth, the 32d of which declares that it is lawful for the bishops, priests, and deacons, as for all other Christian men, to marry at their own discretion.
The clerks in chancery, though laymen, were not allowed to marry till stat. 14 & 15 Hen. VIII. c. 8. And no lay doctor of civil law, if he was married, could exercise any ecclesiastical jurisdiction till 37 Hen. VIII. c. 7. 2 Burn’s Ec. L. 418.—Christian.
[19 ] Fraud will sometimes be a ground for annulling the marriage; as on account of banns having been published, or license obtained, under false names, (1 Phil. Ecc. C. 133 298, 224, 230, 375. 2 Phil. 14, 104, 365;) but unless the name was assumed for the purpose of defrauding the other party, or the parents, the circumstance of the marriage being in a fictitious name will not invalidate it. 3 Maule & S. 250, 538. 1 Phil. 147. 2 Phil. 12. Error about the family or fortune of the individual, though produced by disingenuous representations, will not at all affect the validity of a marriage. 1 Phil. E. C. 137.—Chitty.
[(y) ] Stat. 26 Geo. II. c. 33.
[20 ] The marriage act requires that the marriage shall be celebrated in some parish-church or public chapel where banns had been usually published; i.e. before the 25th of March, 1754. In consequence of this construction, the court of King’s Bench were obliged to declare a marriage void which had been solemnized in a chapel erected in 1765. Doug. 659. And as there were many marriages equally defective, an act of parliament was immediately passed which legalized all marriages celebrated in such churches or chapels since the passing of the former marriage act; and it also indemnified the clergymen from the penalties they had incurred. 21 Geo. III. c. 53.—Christian.
[(z) ] Salk. 119.
[(a) ] Moor, 170.
[(b) ] “From the bands of matrimony.”
[21 ] The impotency of the husband at the time of the marriage to consummate it, and still continuing, is ground for annulling it, though the husband was ignorant of his constitutional defects. 2 Phil. Ec. C. 10.—Chitty.
Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage—viz., the legitimate procreation of children—may have been answered: but no kindred by affinity can happen subsequently to the marriage; for, as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not so related at the time of the marriage they never can become so afterwards.—Christian.
[(c) ] Co. Litt. 235.
[22 ] In these divorces the wife, it is said, shall receive all again that she brought with her; because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth. But this is where the goods are not spent; and if the husband give them away during the coverture without any collusion, it shall bind her: if she knows her goods are unspent, she may bring an action of detinue for them; but, as to money, &c., which cannot be known, she must sue in the spiritual court. Dyer, 62.
This divorce enables the parties to marry again, and to do all other acts as if they had never been married. Com. Dig. Bar. and Feme, C. 1 and C. 7. Moore Rep. 666. Ca. 9, 10. 1 Salk. 115, 6. Cro. Eliz. 908. 3 Mod. 71. Cro. Car. 463. And after this divorce, the liability of the husband for the debts of the woman does not continue. Gow. C. N. p. 10.
A sentence of divorce stands in force till reversed on appeal. 1 And. 185. 2 Lev. 169. 5 Co. 98, b. So a sentence for nullity of a marriage in causa jacitationis maritagii. Carth. 225. And if the parties die, an examination will not be allowed to prove an heir contrary. Cro. J. 186. 7 Co. 43.—Chitty.
[23 ] It may be doubted whether ill temper alone is a ground for a divorce a mensa et thoro: the policy of the law is to consider marriage indissoluble, and the court is slow to interfere, except where something appears which renders cohabitation unsafe or is likely to be attended with injury to the person or to the health of the party applying. It is no less truly than beautifully said by Sir W. Scott, in the case of Evans vs. Evans, 1 Hagg. Rep. 36, that “though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happines of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.”—Coleridge.
[24 ] But the husband and wife may live separate by agreement between themselves and a trustee; and such agreement is valid and binding, and may be sued upon, if it be not prospective in its nature as for a future separation, to be adopted at the sole pleasure of the wife, the parties being, at the time of making the agreement, living together in a state of amity. See Jee vs. Thurlow, 2 Bar. & C. 547. 4 Dowl. & R. 11. 2 East, 283. 6 East, 244. 7 Price, 577. 11 Ves. 529.
If after this agreement to live separate they appear to have cohabited, equity will consider the agreement as waived by such subsequent cohabitation; (1 Dowes’s Rep. 235; Moore, 874; 2 Peere W. 82; 1 Fonbl. 106; as notes, 2 Cox, Rep. 100; Bunb. 187; 11 Ves. 526, 537;) or if, the agreement being in consequence of the wife’s elopement, the husband offer to take her again. 1 Vern. 52.
But at law, the wife being guilty of adultery is no bar to a claim made by her trustee under a separation-deed for arrears of annuity, there being no clause that the deed should be void on that account. 2 Bar. & Cres. 547. 4 D. & R. 11 S. C.—Chitty.
[(d) ] Matt. xix. 9.
[(e) ]Nov. 117.
[(f) ]Cod. 5, 17, 8.
[(g) ] Moor, 683.
[(h) ] 2 Mod. 314.
[(i) ] Can. 1603, c. 105.
[25 ] With respect to confessions of adultery, the rule in the ecclesiastical courts seems now to be that they are very objectionable grounds for a sentence of divorce, and to be received with the greatest caution; but that when proved to the satisfaction of the court to be perfectly free from all suspicion of collusion, they may be sufficient. See 1 Haggard’s Rep. 304. 3 id. 189, 316.—Coleridge.
[26 ] For the purpose of obtaining this divorce by a bill in parliament, it is necessary that on the petition for the bill to the house of lords (where such bill usually originates) that an official copy of the proceedings and definitive sentence of divorce a mensa et thoro in the ecclesiastical courts, at the suit of the petitioner, shall be delivered at the bar on oath. Upon the second reading of the bill, the petitioner must attend the house to be examined at the bar, if the house think fit, whether there is any collusion respecting the act of adultery, or the divorce, or any action for crim. con.; and whether the wife was living apart from her husband under articles of separation. In all divorce bills must be contained a clause, prohibiting the offending parties from intermarrying with each other, (but this clause is generally struck out in the committee, and the act passed without it,) and evidence must be given in the committee of the house of commons on the bill, that an action for damages has been brought against the seducer, and judgment for the plaintiff had thereon, or a sufficient reason given why such action was not brought, or judgment obtained. See the standing orders of the two houses. The proof of a verdict at law may be dispensed with where the circumstances are such that the adultery of the wife can be proved by satisfactory evidence, and where at the same time it is impossible for the husband to obtain a verdict in an action at law. It was dispensed with in the case of a naval officer, whose wife had been brought to bed of one child in his absence upon duty abroad, and upon his return was far advanced in her pregnancy with the second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman. It would also be dispensed with if the adulterer should die before the husband could obtain a verdict.
In case of divorce for the adultery of the wife, the legislature always interferes to make her an allowance out of the husband’s estate, and for this most just, humane, and moral reason, that she may not be driven by want to continue in a course of vice. Per Best, J. 4 D. & R. 17.—Chitty.
[27 ] A word used by Bracton to signify any kind of aliment. And stat. 6 Edw. I. c. [Editor: Illegible character] puts it as an allowance for meat or cloth. The modern acceptation of the word, if one it have, refers to house-bote, hay-bote, and plough-bote.—Chitty.
[(j) ] 1 Lev. 6.
[(k) ] Cowel, tit. Alimony.
[(l) ] Co. Litt. 12.
[28 ] Whatever may be the origin of feme-covert, it is not perhaps unworthy of observation, that it nearly corresponds in its signification to the Latin word nupta; for that is derived a nubendo, i.e. tegendo, because the modesty of the bride, it is said, was so much consulted by the Romans upon that delicate occasion, that she was led to her husband’s home covered with a veil.—Christian.
[(m) ] Co. Litt. 112.
[(n) ] Cro. Car. 551.
[29 ] The husband and wife being one person in law, the former cannot, after marriage, by any conveyance of common law, give an estate to the wife, (Co. Litt. 112, a., 187, b.,) nor the wife to the husband. Co. Litt. 187, b. But the husband may grant to the wife by the intervention of trustees, (Co. Litt. 30;) and he may surrender a copyhold to her use. A husband cannot covenant or contract with his wife, (Co. Litt. 112, a.;) though he may render his contract binding, if entered into with trustees; for unless by particular custom, as the custom of York, (Fitz. Prescription, 61. Bro. Custom, 56,) a feme covert is incapable of taking any thing of the gift of her husband, (Co. Litt. 3,) except by will. Litt. s. 168. 2 Vern. 385. 3 Atk. 72. 1 Fonblanque on Eq. 103.
But in equity, gifts between husband and wife are supported, (1 Atk. 270. 2 Ves. 666 1 Fonb. on Eq. 103. 3 P. Wms. 334,) unless in fraud of creditors, &c., or where the gift is of the whole of the husband’s estate. 3 Atk. 72. 2 Ves. 498.
But though in equity the wife may take a separate estate from her husband in respect of a gift, and even have a decree against her husband in respect of such estate, (1 Atk. 278,) or avail herself of a charge for payment of his debts, (Prec. Ch. 26,) yet if she do not demand the produce during his life, and he maintains her, an account of such separate estate shall not be carried back beyond the year. 2 P. Wms. 82, 341. 3 P. Wms. 355. 2 Ves. 7, 190, 716. 16 Ves. 126. 11 Ves. 225. 1 Fonbl. on Eq. 104. 1 Atk. 269. 1 Equ. Ca. Ab. 140, pl. 7.
By 27 Hen. VIII. the husband may make an estate to his wife; as if he make a feoffment to the use of his wife for life, in tail or in fee, the estate will be executed by the 27 Hen. VIII., and the wife will be seised. Co. Litt. 112, a. So if the husband covenant to stand seised to the use of his wife, (id. a. b.;) and this where, by custom, he might devise at common law. Litt. s. 168. So where the husband or wife act en auter droit, the one may make an estate to the other; as if the wife has an authority by will to sell, she may sell to her husband. Co. Litt. 112, a.
At law, if a man make a bond or contract to a woman before marriage, and they afterwards intermarry, the bond or contract is discharged. Cro. Car. 551. 1 Lord Raym. 515.
So if two men make a bond or contract to a woman, or e contra, and one of them marries with her, the bond, &c. is discharged, (Cro. Car. 551,) though it be intended for the advantage of the wife during the coverture, as that she shall have such rents, &c. at her disposal. Ca. Ch. 21, 117.
But a covenant or contract by a man with a woman is not destroyed by their marriage, where the act to be performed is future, to be done after the marriage is determined; as to leave his wife so much after his death. Hut. 17. Hob. 216. 2 Cro. 571. Cro. Car. 376. 1 Ch. Ca. 21. 1 Salk. 326. Palm. 99. Carth. 512. Com. Dig. B. & F. D. 5 T. Rep. 381. So the marriage does not defeat a breach before. Skin. 409. And the courts of equity admit a debt in præsenti, or which might arise during coverture, to be extinguished at law by the marriage, upon the notion that husband and wife are but one person in law, and cannot sue each other; yet as they may sue each other in equity, a bond or other security, though void at law, shall be sustained in equity, at least as evidence of an agreement. 2 P. Wms. 243. 2 Vern. 480, 481. 2 Atk. 97. Prec. Ch. 41. Dick. 140. And an agreement to make a marriage settlement shall be decreed in equity after the marriage, though it was to be made before the marriage. 2 Vent. 343. So an agreement to permit the wife to dispose of so much money during her coverture. Dub. 1 Ver. 409. And if a wife charge her estate with payment of her husband’s debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as a gift to her husband, equity will decree the husband’s assets to be applied in exoneration of her estate, or in repayment of the money advanced. 2 Vern. 347, 689. 1 Bro. P. C. 1. 2 Vern. 604. 1 P. Wms. 264. 2 Atk. 384. 1 Fonb. on Eq. 102, 103.—Chitty.
When husband and wife join, according to the provisions of a statute law, in conveying the wife’s land to a third person, and such third person reconveys to the husband, the husband acquires a title in his own right. Jackson vs. Stevens, 16 Johns. 110. Meriam vs. Harson, 2 Barb. Ch. Rep. 232. A husband cannot convey land directly to his wife, but he may convey it to trustees for her use. Abbott vs. Hurd, 7 Blackf. 510. A married woman who, by virtue of any statute, joins her husband in the conveyance of her land by deed, is nevertheless not bound personally by any of the covenants contained therein, further than they may operate by way of estoppel. Fowler vs. Sheane, 7 Mass. 14. Aldridge vs. Burleson, 3 Blackf. 201. Den vs. Crawford, 3 Halst. 90. Wadleigh vs. Glines, 6 N. Hamp. 17. Shelton vs. Deering, 10 B. Mon. 405. So if she have a power of appointment for her separate use and disposal, she may execute the same for the benefit of her husband. Hoover vs. The Samaritan Society, 4 Whart. 445.—Sharswood.
[(o) ] F. N. B. 27.
[(p) ] Co. Litt. 112.
[30 ] A donatio causa mortis by a husband to his wife may also be good, as it is in the nature of a legacy. 1 P. Wms. 441.—Chitty.
[(q) ] Salk. 118.
[(r) ] 1 Sid. 120.
[(s) ] Stra. 647.
[(t) ] 1 Lev. 5.
[31 ] I do not imagine that the liability of the husband to discharge the contracts of his wife depends on the principle of a union of person, but on that of authority and assent expressed or implied. This principle borne in mind is a clew to almost all the decisions: thus, first, during cohabitation, it may be presumed that the husband authorizes his wife to contract for all necessaries suitable to his degree; and no misconduct of hers during cohabitation, not even adultery, which he must therefore be supposed to be ignorant of or to have forgiven, can have any tendency to destroy that presumption of authority. But if that presumption be removed, either by the unreasonable expensiveness of the goods furnished, or by direct warning, the liability falls to the ground. Secondly, cohabitation may cease either by consent, the fault of the husband or of the wife: in the first case, if there be an agreement for a separate allowance to the wife, and that allowance be paid, it operates as notice that she is to be dealt with on her own credit, and the husband is discharged; if there be no allowance agreed on, or none paid, then it must be presumed that she has still his authority to contract for her necessaries, and he remains liable. In the second case, in which it is improbable that any allowance should be made, the husband is said to send his wife into the world with general credit for her reasonable expenses. This is upon the general principle that no one shall avail himself of his own wrong: by the common law, the husband is bound to maintain his wife, and when he turns her from his house he does not thereby discharge himself of that liability, which, still remaining, is a ground for presuming an authority from him to her to contract for reasonable necessaries. Against this presumption no general notice not to deal with her shall be allowed to prevail; but where there is an express notice to any particular individual, that person cannot sue upon contracts afterwards entered into with her. In the last case there is no ground for the presumption of authority: the law does not oblige a husband to maintain an adulteress who has eloped from him, and whose situation has thus become public; and therefore it will not be inferred that he has given her authority to bind him by contracts, and there will be no necessity for notice to rebut an inference which does not arise. See the cases collected and arranged, 1 Selw. N. P. 275, 284.—Coleridge.
If a wife elopes from her husband, though not with an adulterer, the husband is not liable for any of her contracts, though the person who gave her credit for necessaries had no notice of the elopement. But if she offers to return, and her husband refuses to receive her, his liability upon her contracts for necessaries is revived from that time, notwithstanding notice not to trust. McCutchen vs. McGahay, 11 Johns. 281. Cunningham vs. Irvin, 7 S. & R. 247. McGahay vs. Williams, 12 Johns. 293. Kimball vs. Keeps, 11 Wend. 33. Hunter vs. Boucher, 3 Pick. 289. Brown vs. Patton, 3 Humph. 135. Fredd vs. Eves, 4 Harring. 385. The authority and assent of the husband to the contract of the wife for necessaries are implied where the conduct of the husband prevents cohabitation. Cary vs. Patton, 2 Ashmead, 140. Billing vs. Pilcher, 7 B. Monroe, 458. If the wife carry on business with the knowledge of the husband, it will be presumed to be with his consent, and he will be responsible on her contracts made in the course of it. McKinley vs. McGregor, 3 Wharton, 369. The power of a wife to bind her husband by her contracts depends upon the fact of agency alone, express or implied,—she having, as wife, no original and inherent power to bind him by any contract. Sawyer vs. Cutting, 23 Verm. 486.—Sharswood.
[(u) ] 3 Mod. 1, 6.
[32 ] But though the husband has had a great fortune with his wife, if she dies before him, he is not liable to pay her debts contracted before marriage, either at law or in equity, unless there be some part of her personal property which he did not reduce into his possession before her death, which he must afterwards recover as her administrator; and to the extent of the value of that property he will be liable to pay his wife’s debts dum sola which remained undischarged during the coverture. 1 P. Wms. 468. 3 P. Wms. 409. Rep. T. Talb. 173.—Christian.
He is liable for her debts dum sola, even though he be an infant, but not liable after her death or after divorce, unless they have been prosecuted to judgment against him before that. Roach vs. Quick, 9 Wend. 238. Waul vs. Kirkman, 13 S. & M. 599. Morrow vs. Whitesides, 10 B Monr. 411. After the coverture has ceased, a woman may be proceeded against at law for a debt which she owed previous to the marriage. Clarke vs. Windham, 12 Ala. 798.—Sharswood.
[(v) ] Salk. 119. 1 Roll. Abr. 347.
[(w) ] Bro. Error, 173. 1 Leon. 312. 1 Sid. 120. This was also the practice in the courts of Athens. Pott. Antiq. b. 1, c. 21.
[(x) ] Co. Litt. 133.
[33 ] A mere temporary absence of the husband does not subject his wife to be sued as a feme sole. Robinson vs. Reynolds, 1 Aiken, 174. Rogers vs. Phillips, 3 Eng. 366. An absence of seven years, which raises a presumption of his death, does. Boyer vs. Owens, 1 Hill S. C. 8. King vs. Paddock, 18 Johns. 141. So also if the husband actually deserts the wife without the intention of returning. Gregory vs. Paul, 15 Mass. 31. Starrett vs. Wynn, 17 S. & R. 130. Gregory vs. Peirce, 4 Metc. 478. Arthur vs. Broadnax, 3 Ala. 557. James vs. Stewart, 9 ibid. 855. So in case of a divorce a mensa et thoro. Pierce vs. Burnham, 4 Metc. 303.—Sharswood.
[(y) ] 1 Hawk. P. C. 3.
[34 ] In many inferior misdemeanours the law holds the wife responsible for her own conduct. For instance, if she receives stolen goods of her own separate act without the privity of her husband. Hale P. C. 516. A feme covert may be indicted alone for a riot, (Dalt. 447,) or for selling gin against the statute 9 Geo. II. c. 23, (Stra. 1120,) or for being a common scold, (6 Mod. Rep. 213, 239,) for assault and battery, (Salk. 384,) for keeping a gaming-house, (10 Mod. Rep. 335,) for slander or trespass, (Roll. Abr. 251,) for keeping a bawdy-house without the concurrence of her husband, (10 Mod. Rep. 63,) and though she has obtained his consent she is still punishable. 1 Hawk. P. C. c. 1, s. 12. Lord Mansfield says, “a feme covert is liable to be prosecuted for crimes committed by her;” and Mr. Justice Wilmot, in the same case, observed, “the husband is not liable for the criminal conduct of his wife.” See Rex vs. Taylor, 3 Burr. 1681. Where a wife, by her husband’s order and procuration, but in his absence, knowingly uttered a forged order and certificate for the payment of prize-money, it was held that the presumption of coercion at the time of uttering did not arise, as the husband was absent, and the wife was properly convicted. Russell & R. Cro. C. 210.—Chitty.
[(z) ] 2 Hawk. P. C. 431.
[(a) ] “No one is allowed to be a witness in his own cause.”
[(b) ] “No one is bound to accuse himself.”
[35 ] The statute 16 & 17 Vict. c. 83 enacts that husbands and wives of parties shall be competent and compellable to give evidence on behalf of either party; but neither can be compelled to disclose any communication during marriage, and neither is a competent witness in a criminal proceeding, or in any proceedings instituted in consequence of adultery.—Stewart.
In a suit to which the trustee of a married woman is a party, her husband, although he has no interest in the subject of the trust, cannot be a witness for the trustee, because his wife has an interest. Burrell vs. Bull, 3 Sandf. Ch. Rep. 15. Hodges vs. The Bank, 13 Alabama, 455. Footman vs. Pendergrass, 2 Strob. 317.
The widow is not as such disqualified as a witness in a case in which her husband had an interest. She may testify to any fact within her personal knowledge, but not to any thing disclosed by his communications with her. As to all communications thus made in the close confidence of the marriage relation, the law stops her mouth forever. Edgell vs. Burnett, 7 Verm. 506, 534. Pike vs. Hayes, 14 N. Hamp. 19. It has been held, however, that after a wife has been divorced from her husband, she will not be permitted to testify against him in respect to transactions which took place prior to the divorce and during the coverture. Barnes vs. Camack, 1 Barbour, 392. Cooke vs. Grange, 48 Ohio, 526.—Sharswood.
[(c) ] State Trials, vol. i. Lord Audley’s case. Stra. 633.
[(d) ] Cod. 4, 12, 1.
[(e) ] 2 Roll. Abr. 298.
[(f) ] Litt. 669, 670.
[(g) ] Co. Litt. 112.
[36 ] A married woman, with the assent of her husband, may make a will, by way of appointment, of the personal property at her disposal. She cannot, even with the assent of her husband, make a devise of lands, so as to render the will effectual against her heir, unless it be in virtue of the provisions of some statute, or of a power granted to her in the original creation of the estate. Nor does the circumstance of her surviving her husband render valid the will of a married woman, unless she republishes it after his death. Osgood vs. Breed, 12 Mass. 525. Banks vs. Stone, 13 Pick. 420. Marston vs. Norton, 5 N. Hamp. 205. Thomas vs. Folwell, 2 Whart. 11. Newlin vs. Freeman, 1 Iredell, 514. A husband may revoke his assent to a will made by his wife of her personal estate; but it must be done before the probate of the will. Wagner’s Estate. 2 Ashm. 448.—Sharswood.
[(h) ] 1 Hawk. P. C. 2.
[37 ] The wife is not indictable for offences committed by the command of or in company with her husband, unless the crime is malum in se, or where the wife may be presumed to be the principal agent. If, however, she commit any indictable offence without the presence or coercion of her husband, she alone is responsible. Commonwealth vs. Neal, 10 Mass. 152. Commonwealth vs. Lewis, 1 Metc. 151. State vs. Parkerson, 1 Strob. 169. Davis vs. The State, 15 Ohio, 72. If a married woman commits a misdemeanour with the concurrence of her husband, the husband is liable. Williamson vs. The State. 16 Alabama, 431.—Sharswood.
[(i) ] Ibid. 130.
[(j) ] Moor, 784.
[(k) ] Nov. 117, c. 14, and Van Leeuwen in loc.
[(l) ] 1 Sid. 113. 3 Kebb. 433.
[(m) ] 2 Lev. 128.
[(n) ] Stra. 1207.
[(o) ] Stra. 478, 875.
[38 ] Nothing, I apprehend, would more conciliate the good will of the student in favour of the laws of England than the persuasion that they had shown a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve. In addition to what has been observed in this chapter by the learned commentator, I shall here state some of the principal differences in the English law respecting the two sexes; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is supported by truth.
Husband and wife, in the language of the law, are styled baron and feme. The word baron, or lord, attributes to the husband not a very courteous superiority. But we might be inclined to think this merely an unmeaning technical phrase, if we did not recollect that if the baron kills his feme it is the same as if he had killed a stranger, or any other person; but if the feme kills her baron, it is regarded by the laws as a much more atrocious crime; as she not only breaks through the restraints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason, (though in petit treason the punishment of men was only to be drawn and hanged,) till the 30 Geo. III. c. 48, the sentence of women was to be drawn and burnt alive. 4 book, 204.
By the common law, all women were denied the benefit of clergy; and till the 3 & 4 W. and M. c. 9, they received sentence of death, and might have been executed, for the first offence in simple larceny, bigamy, manslaughter, &c., however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man who could read was for the same crime subject only to burning in the hand and a few months’ imprisonment. 4 book, 369.
These are the principal distinctions in criminal matters. Now let us see how the account stands with regard to civil rights.
Intestate personal property is equally divided between males and females; but a son, though younger than all his sisters, is heir to the whole of real property.
A woman’s personal property by marriage becomes absolutely her husband’s, which at his death he may leave entirely away from her; but if he dies without will, she is entitled to one-third of his personal property, if he has children; if not, to one-half. In the province of York, to four-ninths or three-fourths.
By the marriage, the husband is absolutely master of the profits of the wife’s lands during the coverture; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life; but the wife is entitled only to dower, or one-third, if she survives, out of the husband’s estates of inheritance; but this she has whether she has had a child or not.
But a husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband. 3 P. Wms. 229.
With regard to the property of women, there is taxation without representation; for they pay taxes without having the liberty of voting for representatives; and indeed there seems at present no substantial reason why single women should be denied this privilege. Though the chastity of women is protected from violence, yet a parent can have no reparation by our law from the seducer of his daughter’s virtue but by stating that she is his servant, and that by the consequences of the seduction he is deprived of the benefit of her labour; or where the seducer at the same time is a trespasser upon the close or premises of the parent. But when by such forced circumstances the law can take cognizance of the offence, juries disregard the pretended injury, and give damages commensurate to the wounded feelings of a parent.
Female virtue, by the temporal law, is perfectly exposed to the slanders of malignity and falsehood; for any one may proclaim in conversation that the purest maid or the chastest matron is the most meretricious and incontinent of women with impunity, or free from the animadversions of the temporal courts. Thus female honour, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned caluminator. 3 book, 125.
From this impartial statement of the account, I fear there is little reason to pay a compliment to our laws for their respect and favour to the female sex.—Christian.