it; but, for fome fupervenient caufe, it becomes 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 such mysterious 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 cause, why a man may put away his wife and marry another. The civil law, which is partly of pagan original, allows many caufes of abfolute divorce; and some 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 f) but among them adultery is the principal, and with reafon named the firft. But with us in England adultery is only a cause of separation from bed and board for which the beft 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 allowed 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 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 estate: being fettled at the difcretion of the ecclefiaftical judge, on confideration of all the circumstances of the cafe. This is fometimes called her fovers; for which, if he refufes payment, there is (befides the ordinary procefs 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

e Matt. xix. 9.

f Nov. 117.

g Cod. 5. 17. 8.

A Moor. 683.

i

2 Mod. 314.

Can. 1603. c. 105.

1 x Lev. 6.

the

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 confe quences of fuch making, or diffolution.

By marriage, the husband and wife are one perfon in law": that is, the very being or legal exiftence 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 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 perfon in husband and wife, depend almoft all the legal rights, duties, and difabilities, that either of them acquire by the marriage. Ifpeak 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 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. The hufband 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 besides neceffàries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is

m Cowel. tit. Alimony.

a Co. Litt. 112.

• Ibid.

p Cro. Cat. 551.

9 F. N. B. 27.

r Co. Litt. 112.

$ Salk. 118.

t I Sid. 120.

not

not chargeable even for neceffaries"; at leaft if the perfon, who furnishes them, is fufficiently apprized of her clopement". If the wife be indebted before marriage, the hufband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her perfon or her property, the 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 husband 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 banifhed (4): for then he is dead in law; and, the husband being thus difabled to fue for or defend the wife, it would be moft 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 impossible their teftimony fhould be indif ferent; but principally becaufe of the union of perfon: and therefore, if they were admitted to be witneffes 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 ufually dispensed with: and therefore, by ftatute 3 Hen. VII. c. 2. in cafe a woman be forcibly taken away, and married, fhe may be a witnefs againf

() [In analogy to this principle of abjuration, it has been lately determined (Michaelmas term, 25 Geo. III. K. B. Corbet v. baron Poloenwitz and wife) that where a married woman, living feparate and apart from her husband, with a feparate maintenance fecured to her by deed, contracts a debt, the may be fyed for it as a feme fole.]

VOL. I.

Ff

fuch

fuch her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; becaufe a main ingredient, her confent, was wanting to the contract and alfo there is another maxim of law, that no man shall 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 witnefs, to that very fact.

IN the civil law the husband and the wife are confidered as two diftinct perfons; and may have feparate eftates, 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 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 she must be folely and fecretly examined, to learn if her act be voluntary %. She cannot by will devife 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 constraint of her husband, the law excufes her: 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 misbehaviour, the law thought it reafonable to intruft him with this power of reftraining her, by domeftic chaftisement, 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 fome cafes to anfwer. But this power of correction was confined within reasonable bounds', and the husband was

e C.d. 4. 12. 1.

f 2 Roll. Abr. 298.

g Litt. §. 669, 670. A Co. Litt. 112.

i 1 Hawk. P. C. 2.

k Ibid. 130.

1 Moor. 874.

prohibited

prohibited from ufing any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuce, licite et rationabiliter pertinetTM. The civil law gave the husband 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 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 9. 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 reftrain a wife of her liberty, in cafe of any grofs mifbehaviour 1.

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 moft part intended for her protection and benefit. So great a favourite is the female fex of the laws of England.