Commentaries on the Laws of England Part 40

[Footnote a: Moor 170.]

II. I AM next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one _a vinculo matrimonii_, the other merely _a mensa et thoro_. The total divorce, _a vinculo matrimonii_, must be for some of the canonical causes of impediment before-mentioned; and those, existing _before_ the marriage, as is always the case in consanguinity; not supervenient, or arising _afterwards_, as may be the case in affinity or corporal imbecillity. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful _ab initio_; and the parties are therefore separated _pro salute animarum_: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage, as is thus entirely dissolved, are b.a.s.t.a.r.ds[b].

[Footnote b: Co. Litt. 235.]

DIVORCE _a mensa et thoro_ is when the marriage is just and lawful _ab initio_, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of 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 a.s.signs incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[c]. 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 knowlege and consent of the husband[d]) but among them adultery is the princ.i.p.al, and with reason named the first[e]. But with us in England adultery is only a cause of separation from bed and board[f]: 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 case when divorces were allowed for canonical disabilities, on the mere confession of the parties[g], which is now prohibited by the canons[h]. However, divorces _a vinculo matrimonii_, for adultery, have of late years been frequently granted by act of parliament.

[Footnote c: Matt. xix. 9.]

[Footnote d: _Nov._ 117.]

[Footnote e: _Cod._ 5. 17. 8.]

[Footnote f: Moor 683.]

[Footnote g: 2 Mod. 314.]

[Footnote h: Can. 1603 c. 105.]

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 consideration of all the circ.u.mstances 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[i]. 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[k].

[Footnote i: 1 Lev. 6.]

[Footnote k: Cowel. t.i.t. Alimony.]

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[l]: 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_; 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 his wife, or enter into covenant with her[m]: 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[n]. A woman indeed may be attorney for her husband[o]; 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[p]. 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[q]: but for any thing besides necessaries, he is not chargeable[r]. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circ.u.mstances together[u]. 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[w]: neither can she be sued, without making the husband a defendant[x]. 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[y]: 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[z]; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but princ.i.p.ally 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[b]: and therefore, by 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 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.

[Footnote l: Co. Litt. 112.]

[Footnote m: _Ibid._]

[Footnote n: Cro. Car. 551.]

[Footnote o: F.N.B. 27.]

[Footnote p: Co. Litt. 112.]

[Footnote q: Salk. 118.]

[Footnote r: 1 Sid. 120.]

[Footnote s: Stra. 647.]

[Footnote t: 1 Lev. 5.]

[Footnote u: 3 Mod. 186.]

[Footnote w: Salk. 119. 1 Roll. Abr. 347.]

[Footnote x: 1 Leon. 312. This was also the practice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)]

[Footnote y: Co. Litt. 133.]

[Footnote z: 1 Hawk. P.C. 3.]

[Footnote a: 2 Haw. P.C. 431.]

[Footnote b: State trials, vol. 1. Lord Audley's case. Stra. 633.]

IN the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d].

[Footnote c: _Cod._ 4. 12. 1.]

[Footnote d: 2 Roll. Abr. 298.]

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, or at least voidable; 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[e]. She cannot by will devise lands to her husband, unless under special circ.u.mstances; for at the time of making it she is supposed to be under his coercion[f]. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder.

[Footnote e: Litt. --. 669, 670.]

[Footnote f: Co. Litt. 112.]

[Footnote g: 1 Hawk. P.C. 2.]

THE husband also (by the old law) might give his wife moderate correction[h]. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastis.e.m.e.nt, in the same moderation that a man is allowed to correct his servants 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[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for others, only _modicam castigationem adhibere_[l]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o].

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[p].

[Footnote h: _Ibid._ 130.]

[Footnote i: Moor. 874.]

[Footnote k: F.N.B. 80.]

[Footnote l: _Nov._ 117. _c._ 14. & Van Leeuwen _in loc._]

[Footnote m: 1 Sid. 113. 3 Keb. 433.]

[Footnote n: 2 Lev. 128.]

[Footnote o: Stra. 1207.]

[Footnote p: Stra. 478. 875.]

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 most part intended for her protection and benefit. So great a favourite is the female s.e.x of the laws of England.