comes improper or impoffible for the parties to live together: As in the cafe of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this cafe, deems fo highly and with fuch myfterious reverence of the nuptial tie, that it will not allow it to be unloofed for any cause whatsoever that arifes after the union is made. And this is faid to be built on the divine revealed law; though that exprefsly affigns incontinence as a caufe, and indeed the only caufe, why a man may put away. his wife and marry another e. The civil law, which is partly of pagan original, allows many caufes of abfolute divorce; and fome of them pretty fevere ones: (As if a wife goes to the theatre or the publick games, without the knowledge and confent of the husband f) but among them adultery is the principal, and with reafon named the first &. But with us in England, adultery is only a caufe of feparation from bed and board h: For which the best reafon 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 cafe when divorces were allowed for canonical difabilities, on the mere confeffion of the parties, which is now prohibited by the canons k. However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament. In case of divorce a menfa et thoro, the law allows alimony to the wife: Which is that allowance, which is made to a woman for her fupport out of the husband's eftate; being fettled at the difcretion of the ecclefiaftical judge, on confideration of all the circumftances of the cafe. This is fometimes called her eftovers; for which, if he refufes payment, there is (befides the ordinary process of excommunication) a writ at common law de eftoveris habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties. e Matt. xix. 9. h Moor. 683. i 2 Mod. 314. 1 x Lev. 6. parties. But in cafe of elopement, and living with an adulterer, the law allows her no alimony m. III. Having thus fhewn how marriages may be made, or diffolved, I come now, laftly, to fpeak of the legal confequences of fuch making, or diffolution. By marriage, the husband and wife are one person in law: That is, the very being or legal existence of the woman is fufpended during the marriage, or at least is incorporated and confolidated into that of the husband : Under whofe wing, protection, and cover, the performs every thing; and is therefore called in our law french a feme covert, foemina viro cooperta; is faid 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. Upon this principle, of an union of perfon 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 prefent of the rights of property, but of fuch as are merely perfonal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: For the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himfelf: And therefore it is also generally true, that all compacts made between husband and wife, when fingle, are voided by the intermarriage P. A woman indeed may be attorney for her husband ; for that implies no feparation from, but is rather a reprefentation 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. The husband is bound to provide his wife with neceffaries by law, as much as himself; and if fhe contracts debts for them, he is obliged to pay them; but, for any thing befides neceffaries, he is not chargeable . Alfo, if a wife elopes, and lives with another man, the husband is m Cowel. tit. Alimony. n Co. Litt. 112. o Ibid. Cro. Car. 551. q F. N. B. 27. tx Sid. 120. not not chargeable even for neceffaries"; at least if the perfon, who furnishes them, is fufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumftances together *. If the wife be injured in her person or her property, the can bring no action for redrefs without her husband's concurrence, and in his name as well as her own y Neither can fhe be fued without making the husband a defendant 2. There is, indeed, one case where the wife fhall fue and be sued as a feme fole, viz. where the hufband has abjured the realm, or is banifhed a (q): For then he is dead in law; and, the husband being thus disabled to fue for or defend the wife, it would be most unreafonable if fhe had no remedy, or could make no defence at all. In criminal profecutions, it is true, the wife may be indicted and punished feparately b; for the union is only a civil union. But, in trials of any fort, they are not allowed to be evidence for, or against, each other; Partly because it is impoffible their teftimony fhould be indifferent; but principally because of the union of perfon: And, therefore, if they were admitted to be wit-neffes for each other, they would contradict one maximn of law" nemo in propria caufa teftis effe debet:" and if against each other, they would contradict another maxim" nemo tenetur feipfum accufare." But, where the offence is directly against the perfon of the wife, this rule has been usually difpenfed with : And, therefore, by ftatute 3 Hen. VII. c. 2. in cafe a woman be forcibly taken away, and married, fhe may be a witness a-gainst fuch her husband, in order to convict him of felony.. Stra. 647. WI Lev. 5. 3 Mod. 186. y Salk. 119. 1 Roll. Abr. 347. z Bro. Error. 173. I Leon. 312. 1 Sid. 120. This was alfo the practice in the courts of A thens. (Pott. Antiqu. b. 1. c. 21.) a Co. Litt. 133. bi Hawk. P. C. 3. c 2 Hawk. P. C. 431. d State trials, vol. 1. Lord Audley's cafe. Stra. 633. (9) [In analogy to this principle of abjuration, it has been lately determined (Michaelmas term, 26 Geo. 111. K. B. Corbet v. baron Poloenwitz and wife) that where a married woman, living feparare and apart from her husband, with a feparate maintenance fecured to her by deed, contracts a debt, the may be fued for it as a feme fole.j ony. For in this cafe the can with no propriety be reckoned his wife; because a main ingredient, her confent, was wanting to the contract: And alfo there is another maxim of law, that no man fhall take advantage of his own wrong; which the ravifher here would do, if by forcibly marrying a woman, he could prevent her from being a witnefs, who is perhaps the only witness, to that very fact. In the civil law the husband and the wife are confidered as two diftinct perfons; and may have feparate ef tates, contracts, debts, and injuries; And, therefore, in our ecclefiaftical courts, a woman may fue and be sued without her husband £. But, though our law in general confiders man and wife as one perfon, yet there are some instances in which the is feparately confidered; as inferior to him, and acting by his compulfion. 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 cafe fhe must be folely and fecretly examined, to learn if her act be voluntary §. She cannot by will devile lands to her husband, unless under special circumftances; for at the time of making it she is supposed to be under his coercion 1. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excufes her : But this extends not to treafon or murder. The husband alío (by the old law) might give his wife moderate correction *. For, as he is to answer for her misbehaviour, the law thought it reasonable to intruft him with this power of reftraining her, by domeltick chastisement, in the fame moderation that a man is allowed to correct his apprentices or children; for whom the mafter or parent is alfo liable in some cases to answer. But this power of correction was confined within reafonable bounds, and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet". The civil law gave the husband the the fame, or a larger, authority over his wife: Allowing him, for fome mifdemefnors flagellis et fuftibus acriter verberare uxorem for others, only modicam caftigationem adhibere ". But, with us, in the politer reign of Charles II, this power of correction began to be doubted: And a wife may now have fecurity of the peace against her husband P; or, in return, a husband against his wife 9. Yet the lower rank of people, who were always fond of the old common law, ftill claim and exert their ancient privilege: And the courts of law will ftill permit a husband to restrain a wife of her liberty, in cafe of any grofs misbehaviour г. 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 moft part intended for her protection and benefit. So great a favourite is the female fex of the laws of England. |