tage of his own wrong; which the ravisher [444] 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: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband.'t

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;2 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.s‡ 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. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her: but this extends not to treason or murder.|| ¶The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for

2 First edition adds, "or at least voidable."

*Cited, 22 N. H. 125; 10 Conn. 93; 39 Pa. St. 133; 3 Brev. 4; 5 Am. Dec. 530; 13 Peters, 221.

+-+ Quoted, 34 Ohio St. 626; 3 Colo. 491.

- Quoted, 2 Har. & McH. 19; 1 Am. Dec. 372. Cited, 40 N. H. 261, 263; 19 N. H. 486; 37 N. H. 302; 4 N. Y. 12; 4 Mason, 54, 55.

2- Quoted, 65 N. C. 398. Cited, 97 Mass. 228.

Ref. 2 Blackf. 484.

her misbehaviour, the law thought it reasonable to entrust 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,' 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 [445] same, or a larger, authority over his wife: allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere." *But, with us, in the politer reign of Charles the second, this power of correction began to be doubted:† and a wife may now have security of the peace against her husband; P or, in return, a husband against his wife. 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. [See note 27, at page 452.]

These are the chief legal effects of marriage during

Nov. 117. c. 14. & Van Leeuwen. in loc.

1 Sid. 113. 3 Keb. 433.

p 2 Lev. 128.

q Stra. 1207.

r Stra. 478. 875.

5 Previously, "servants."

2 First edition reads, "to use."

- Quoted with omission, Phill. (N. C.) 456; 98 Am. Dec. 79. Cited 32 Kan. 410.

- Quoted, 1 Hen. & M. 172. Cited, 20 Ga. 649; 43 Ala. 198; 45 Ala. 534.

1-2 Quoted, 3 Hill, 408; 38 Am. Dec. 648.

? Cited, 3 Hill, 410; 38 Am. Dec. 649; 65 Ill. 137; 12 Serg. & R. 226; 50 N. H. 507.

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.*

NOTES OF THE AMERICAN EDITOR TO CHAPTER XV.

(27) The reciprocal rights and duties of husband and wife, page 433.

The difference between Blackstone's theory of law and that now current is clearly seen in these chapters upon the domestic relations when compared with the doctrine of modern cases: for Blackstone regarding ethics or natural law a part of his subject, has devoted much space to the duties of husband and wife, parent and child, to each other, which are not strictly enforcible by law and can rarely become the subject of litigation. No fault can be found with him for this mode of treatment, because it was the necessary result of the definitions with which he commences his work: but a modern judge or writer, to whom law deals only with such rights and duties as can, by their very nature, be enforced by the power of the state, goes entirely beyond his province when he lays down the rules by which the conduct of the parents toward the child, or of one spouse toward the other, is to be governed in the tribunal of his own conscience, or as a matter of paternal or conjugal duty.

And even the legal duties of a parent or a husband, in the supply of subsistence, or clothing, or education, must be distinguished from those to which an absolute right corresponds in the object of the duty. These duties may be enforced indirectly by punishing a parent or husband for neglect, or, in some cases, by giving to third persons a right of action for goods furnished or moneys laid out in supply of their defi

*-* Quoted, 92 N. Y. 157; 33 Ohio St. 161; 4 Heisk. 607.

ciencies. But the law gives no action to the wife or child, directly, for any breach of the husband's or the parent's duty.

One illustration of the consequences produced by neglecting this distinction may, perhaps, seem more ludicrous than instructive or useful. The statement of the commentator (p. 444) that the husband, by the old law, might give the wife moderate correction, has often been used, of late, to point criticisms upon the supposed barbarism of that law, and, by implication, if not expressly, to exalt our own. But the truth is that, if we confine ourselves to the strict rule of law, there has been no change in it from the earliest time. The rule referred to by Blackstone is that ethical rule which pointed out to the husband the proper method of governing his own household, as he should answer for the souls committed to his charge at the great day: and it was not the law of England, so much as the law of God, that was supposed to give him this wholesome means of fulfilling his responsibilities, just as it admonished the parent not to spare the rod. The only rule of the common law bearing on the subject was that which denied to the wife as well as the child an action for assault and battery, which any stranger might bring for such a correction. That rule of the common law remains unchanged so far as England and most of our American states are concerned to the present day. But in the “Body of Liberties," enacted by the Gen. Court of Mass. A. D. 1641, which was probably the first colonial legislation that exercised any considerable influence upon the development of American law, it was expressly provided that: "80. Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defense upon her assault. If there be any just cause of correction, complaint shall be made to authority assembled in some court, from which only she shall receive it."

No doubt many of the diversities between American and English common law which are usually accounted for by mere changes of custom might be traced back to distinct legislation of the colonies. But the denial of any common law extending over all the states prevents us from reasoning from these colonial statutes to other states. If the common law, as we now understand it, had been the foundation of Blackstone's remark, it should have been made in the present tense and not in the preterit. It was only because Blackstone's conception of his theme included "ethics or natural law," that he stated a rule of personal conduct with which the common law, in our sense, had nothing to do: and it is a change in ethics, and in the teachings of the church, not in the common law, that has done away with it.

(28) The holiness of the married state is left entirely to the ecclesiastical law, page 433.

The law of marriage as laid down in our older books is subject to some peculiar difficulties, beside those common to all older law. Much of it was formed in the spiritual courts, which had exclusive jurisdiction of the subject (except so far as property rights grew out of it), and many rules now accepted in America as part of the common law were really formed in these courts, which in most respects are treated as of no commonlaw authority. (1 Bishop on Marriage and Divorce, 22 56, 58, 68, 71.) The court of equity had no jurisdiction whatever of the subject. (1 Bishop on Marriage and Divorce, 69, n. 6.) The legality of a marriage shall never be agitated in equity, especially after sentence in the spiritual court, although the proceedings in the spiritual court were only faint and collusive. (Halfield v. Halfield, MS. case, 1715; cited, 5 Vin. Abr. 262, tit. Marriage, G. 8. Cf. Burtis v. Burtis, Hopk. Ch. 557.)

The common-law courts could issue a writ of prohibition to the spiritual courts when they exceeded their