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but, for fome fupervenient caufe, it becomes improper or impoffible for the parties to live together: as in the cafe of intolerable itl 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 whatfoever, 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. The civil law, which is partly of pagan original, allows many causes of abfolute divorce; and fome of them pretty severe ones: (as if a wife goes to the theatre or the public games, without the knowlege and confent of the husband') 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": 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 the parties, they would probably be extremely frequent; as was the cafe when divorces were alloxved for canonical difabilities, on the mere confeffion of the parties', which is now prohibited by the canons. However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament.
IN cafe of divorce a menfa et thore, 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 circumstances of the cafe. This is fometimes called her eftovers; for which, if he refufes payment, there is (befides the ordinary procefs of excommunication) a writ at common law de cereriis habendis, in order to recover it'. It is generally proportioned ta Hhh
the rank and quality of the parties. But in cafe of elopement, and living with an adulterer, the law allows her no alimony".
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 lawa: that is, the very being or legal exiftence of the woman is fufpended during the marriage, or at leaft is incorporated and confolidated into that of hufband: under whofe wing, protection, and cover, the performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta; 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 person in hufband and wife, depend almoft all the legal rights, duties, and difabilitics, 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 fuppofe her separate exiftence; and to covenant with her, would be only to covenant with himself: and therefore it is alfo generally true, that all compacts made between husband and wife, when fingle, are voided by the intermarriage'. A woman indeed may be attorney for her husband'; for that implies no feparation from, but is rather a reprefentation of, her lord. A husband may alfo 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 she 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 hufhand
husband is not chargeable even for neceffaries"; at leaft 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 perfon, or her property, fhe can bring no action for redrefs without her husband's concurrence, and in his name, as well as her own': neither can fhe be fued, without making the hufband a defendant. There is indeed one cafe where the wife fhall fue and be fued as a feme fole, viz. where the husband has abjured the realm, or is banished": for then he is dead in law; and the husband being thus difabled to fue for or defend the wife, it would be moft unreasonable if the had no remedy, or could make no defence at all. In criminal profecutions, it is true, the wife may be indicted and punished feparately"; for the union is only a civil union. But, in trials of any fort, they are not allowed to be evidence for, or againft, each other: partly because it is impoflible their teftimony should be indifferent; but principally because of the union of períon: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, "nemo in propria caufa teflis 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 statute 3 Hen. VII. c. 2. in cafe a woman be forcibly taken away, and married, she may be a witness against fuch her husband, in order to convict him of felony. For in this cafe she can with no propriety be reckoned his wife; because a a main ingredient, her confent, was wanting to the contract: and also 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 witness, who is perhaps the only witness to that very fact.
In the civil law the hufband and the wife are confidered as two diftinct perfons; and may have separate estates, contracts, debts, and injuries and therefore, in our ecclefiaftical courts, a woman may fue and be fued without her husband'.
. BUT, though our law in general confiders man and wife as one perfon, yet there are fome inftances in which she is separately 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 devise lands to her husband, unless under fpecial circumftances; for at the time of making it fhe is fuppofed to be under his coercion. And in fome felonies, and other inferior crimes, committed by her, through conftraint of her husband, the law excufes heri: but this extends not to treafon or murder.
THE husband alfo (by the old law) might give his wife moderate correction. For, as he is to answer for her mifbehaviour, the law thought it reasonable to entrust him with this power of reftraining her, by domeftic chastisement, in the fame moderation that a man is allowed to correct his fervants or children; for whom the master or parent is alfo liable in fome cafes to answer. But this power of correction was confined within reasonable bounds', and the hufband was prohibited from ufing any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet". The civil law gave
Cod. 4. 12. I.
f 2 Roll. Abr. 198.
g Litt. . 669, 6701
Co. Litt. 112.
ii Hawk. P. C. 2.
k Ibid. 130.
1 Moor. 874.
m F. N. B. 80.
the husband the fame, or a larger, authority over his wife: allowing him, for fome misdemefnors, flagellis et fuftibus acriter verberare uxorem; for others, only modicam caftigationem adhibere". But, with us, in the politer reign of Charles the fecond, this power of correction began to be doubted°: and a wife may now have fecurity of the peace against her husband': or, in return, a husband against his wife'. Yet the lower rank of people, who were always fond of the old common law, ftill claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in cafe of any grofs mifbehaviour'.
THESE are the chief legal effects of marriage during the coverture; upon which we may obferve, that even the difabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female fex of the laws of England.