Зображення сторінки
PDF
ePub

the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. 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 *. 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':) but among them adultery is the principal, and with reason named the first ". But with us in England adultery is only a cause of separation 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 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, which is now prohibited by the canons *. (10) However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parlia ment. (11)

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 con

e Matt, xix. 9.

f Nov. 117.

Cod. 5. 17. 8.

h Moor. 683.

i 2 Mod. 314.

* Can. 1603. c. 105.

(10) With respect to confessions of adultery, the rule in the ecclesiastical courts seem now to be that they are very objectionable grounds for a sentence of divorce, and to be received with the greatest caution; but that where proved to the satisfaction of the court, to be perfectly free from all suspicion of collusion, they may be sufficient. See Haggard's Rep. i. 304.

ii. 189. 316.

(11) But in passing these bills the two houses proceed with great caution, and not only examine witnesses to prove the adultery, but whenever the circumstances are not such as to make it impossible, they require that the husband shall have obtained a verdict with damages in an action for criminal conversation, and also a sentence of divorce in the spiritual

[ 442 ]

sideration of all the circumstances of the case. This is sometimes called her estovers; 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'. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony m. (12)

III, HAVING thus shewn 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": 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, foemina viro cooperta; 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. Upon this principle, of an 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

1 1 Lev. 6.

m Cowel. tit. Alimony.

n Co. Litt. 112.

(12) The principle upon which alimony is assigned is a consequence of the general rule of law that marriage carries all the property of the wife to the husband during the coverture, and, therefore, where she is shown to have a sufficient independent income, no alimony will be allowed. 2 Haggard's Rep. i. 199. 203. 205. n.

I cannot conclude this part of the head of marriage without earnestly recommending to the student's notice the several cases on this subject in Dr. Haggard's Reports; many of the judgments given in them are masterpieces of judicial eloquence and reasoning; but he will find in them all a fund of information, and an intellect beautifully clear and self-possessed employed in elucidating and settling upon firm principles the ecclesiastical marriage law of the country.

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 himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage". A woman indeed may be attorney for her husband a; 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. 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; but, for any thing besides necessaries, he is not chargeable t. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries": [ 443 ] at least if the person who furnishes them is sufficiently apprized of her elopement ". (12) If the wife be indebted be

。 Co. Litt. 112.

P Cro. Car. 551.

4 F. N. B. 27.

r Co. Litt. 112.

S Salk. 118.
t 1 Sid. 120.

u Stra. 647.
w 1 Lev. 5.

(12) I do not imagine that the liability of the husband to discharge the contracts of his wife depends on the principle of an union of person, but on that of authority and assent expressed or implied. This principle borne in mind is a clue to almost all the decisions; thus, first, during co-habitation, it may be presumed that the husband authorises his wife to contract for all necessaries suitable to his degree; and no misconduct of hers, during co-habitation, 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, co-habitation 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 expences. 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

fore marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. 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: neither can she be sued, without making the husband a defendant. (13) 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 a, 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. In criminal prosecutions, it is true, the wife may be indicted and punished separately; for the union is only a civil union. (14) But, in trials of any sort, they are not allowed to be evidence for or against, each other: 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 ;" and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare." But, where the offence is directly against the person of the wife, this rule has been usually dispensed with: and therefore, by

[blocks in formation]

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 is 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.

(13) Not even if divorced à mensa et thoro for adultery, and in the receipt of a competent allowance for her maintenance. Lewis v. Lee, 3 B. & C. 291.

(14) See Vol. IV. p. 98.

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 [444] 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 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. (15)

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. (16)

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. (17) 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

e Cod. 4. 12. 1.

f

2 Roll. Abr. 298.

Litt. $669, 670. h Co. Litt. 112.

(15) See Vol. IV. p. 209.

(16) So, in a court of equity, husband and wife may sue each other, Mitford, 22. 83. And a wife having separate property, is in equity, as to such property, a feme sole, Powell v. Hankey, 2 P.W.85. Fettiplace v. Gorges, 1 Ves. J. 46. She must take such property through the intervention of trustees; but where such a trust is intended, and no trustees named, her husband taking the legal estate will be a trustee for her. Bennet v. Davis, may sue and be

2 P.W.316. And in respect of her separate estate she

sued without her husband by her prochein amy, Mitford, ub. sup. Grif

fith v. Hood, 2 Ves. sen. 452.

(17) See Vol. II. p.357. n.(3).

« НазадПродовжити »