.P 421
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
CHAPTER THE FIFTEENTH.
OF HUSBAND AND WIFE.
THE fecond private relation of perfons is that of marriage, which includes the reciprocal duties of hufband and wife; or, as moft of our elder law books call them, of baron and feme. In the confideration of which I fahll in the firfth place enquire, how marriages may be contracted or made; fhall next point out the manner in which they may be diffolved; and fhall, laftly, take a view of the legal effects and confequence of marriage.
I. OUR law confiders marriage in no other light than as a civil contract. The Holinefs of the matrimonial ftate is left entirely to the ecclefiaftical law: the temporal courts not having jurifdiction to confider unlawful marriages as a fin, but merely as a civil inconvenience. The punifhment therefore, or annulling, of inceftuous or other unfcriptural marriages, is the province of the fpiritual courts; which act pro falute animaea . And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cafes, where the parties at the time of making it were, in the firft place, willing to contracrt; fecondly, able to contract; and, laftly, actually did contract, in the proper forms and folemnities required by law.
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a Salk. 121.
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| FIRST, |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
FIRST, they muft be willing to contract. “Confenfus, non concubitus, facit nuptias,” is the maxim of the civil law in this cafeb : and it is adopted by the common lawyersc , who indeed have borrowed (efpecially in antient times) almoft all their notions of the legitimacy of marriage from the canon and civil laws.
SECONDLY, they muft be able to contract. In general, all perfons are able to contract themfelves in marriage, unlefs they labour under fome particular difabilities, and incapacities. What thofe are, it will here be our bufinefs to enquire.
NOW thefe difabilities are of two forts: firft, fuch as are canonical, and therefore fufficient by the ecclefiaftical laws to avoid the marriage in the fpiritual court; but thefe in our law only make the marriage voidable, and not ipfo facto void, until fentence of nullity be obtained. Of this nature are pre-contract; confanguinity, or relation by blood; and affinity, or relation by marriage; and fome particular corporal infirmities. And thefe canonical difabilities are either gorunded upon the exprefs words of the divine law, or are confequences plainly deducible from thence: it therefore being finful in the perfons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclefiaftical magiftrate's coercion; in order to feparate the offenders, and inflict penance for the offence, pro falute animarum. But fuch marriages not being void ab initio, but voidable only by fentence of feparation, they are efteemed valid to all civil purpofes, unlefs fuch feparation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not fuffer the fpiritual court to declare fuch marriages to have been void; becaufe fuch declaration cannot now tend to the reformation of the partiesd . And therefore when a man had married his firft wife's fifter, and after her death the bifhop's court was proceeding to annul the mar-
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b Ff. 50. 17. 30.
c Co. Litt. 33.
d Ibid.
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| riage |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
riage and baftardize the iffue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punifh the hufband for incefte . Thefe canonical difabilities, being entirely the province of the ecclefiaftical courts, our books are perfectly filent concerning them. But there are a few ftatutes, which ferve as directories to thofe courts, of which it will be proper to take notice. By ftatute 32 Hen. VIII. c. 38. it is declared, that all perfons may lawfully marry, but fuch as are prohibited by God's law; and that all marriages contracted by lawful perfons in the face of the church, and confummate with bodily knowlege, and fruit of children, fhall be indiffoluble. And (becaufe in the times of popery a great variety of degrees of kindred were made impediments, to marriage, which impediments might however be bought off for money) it is declared by the fame ftatute, that nothing (God's law except) fhall impeach any marriage, but within the Levitical degrees; the fartheft of which is that between uncle and niecef . By the fame ftatute all impediments, arifing from pre-contracts to other person, were abolifhed and declared of none effect, unlefs they had been confummated with bodily knowlege: in which cafe the canon law holds fuch contract to be a marriage de facto. But this branch of the ftatute was repealed by ftatute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all fuits in ecclefiaftical courts to compel a marriage, in confequence of any contract) may collaterally extend to revive this claufe of Henry VIII's ftatute, and abolifh the impediment of pre-contract, I leave to be confidered by the canonifts.
THE other fort of difabilities are thofe which are created, or at leaft enforced, by the municipal laws. And, though fome of them may be grounded on natural law, yet they are regarded by the laws of the land, not fo much in the light of any moral offence, as on account of the civil inconveniences they draw after them. Thefe civil difabilities make the contract void ab initio, and not merely voidable: not that they diffolve a contract already
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e Salk. 548.
f Gilb. Rep. 158.
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| formed, |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
formed, but they render the parties incapable of forming any contract at all: they do not put afunder thofe who are joined together, but they previoufly hinder the junction. And, if any perfons under thefe legal incapacities come together, it is a meretricious, and not a matrimonial, union.
1. THE firft of thefe legal difabilities is a prior marriage, or having another hufband or wife living; in which cafe, befides the penalties confequent upon it as a felony, the fecond marriage is to all intents and purpofes voidg : polygamy being condemned both by the law of the new teftament, and the policy of all prudent ftates, efpecially in thefe northern climates. And Juftinian, even in the climate of modern Turkey, is exprefsh , that “duas uxores eodem tempore habere non licet.”
2. THE next legal difability is want of age. This is fufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the moft important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of confent aforefaid, they may difagree and declare the marriage void, without any divorce or fentence in the fpiritual court. This is founded on the civil lawi . But the canon law pays a greater reagard to the conftitution, than the age, of the partiesk : for if they are habiles ad matrimonium, it is a good marrige, whatever their age may be. And in our law it is fo far a marriage, that, if at the age of confent they agree to continue together, they need not be married againl . If the hufband be of years of difcretion, and the wife under twelve, when fhe comes to years of dicretion he may difagree as well as fhe may: for in contracts the obligation muft be mutual; both muft be bound, or neither: and fo it is, vice verfa, when the wife is of years of difcretion, and the hufband udnerm .
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g Bro. Abr. tit. baftardy. Pl. 8.
h Inft. 1. 10. 7.
i Leon. Conftit. 109.
k Decretal. l. 4. tit. 2. qu. 3.
l Co. Litt. 79.
m Ibid.
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| 3. ANOTHER |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
3. ANOTHER incapacity arifes from want of confent of parents or guardians. By the common law, if the parties themfelves were of the age of confent, there wanted no other concurrence to make the marriage valid: and this was agreeabel to the canon law. But, by feveral ftatutes n, penalties of 100 l. are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the confent of parents or guardians muft be fworn to. And by the ftatute 4 & 5 Ph. & M. c. 8. whofoever marries any woman child under the age of fixteen years, without confent of parents of guardians, fhall be fubject to fine, or five years imprifonment: and her eftate during the hufband's life hall go to and be enjoyed by the next heir. The civil law indeed required the confent of the parent or tutor at all ages; unlefs the children were emancipated, or out of the parents powero : and, if fuch confent from the father was wanting, the marriage was null, and the children illegitimatep ; but the confent of the mother or guardians, if unreafonably withheld, might be redreffed and fupplied by the judge, or the prefident of the provinceq : and if the father was non compos, a fimilar remedy was givenr . Thefe provifions are adopted and imitated by the French and Hollanders, with this diffrerence: that in France the fons cannot marry without confent of parents till thiry years of age, nor the duaghters till twenty fives ; and in Holland, the fons are at their own difpofal at twenty five, and the daughters at twentyt . Thus hath ftood, and thus at prefent ftands, the law in other neighbouring countries. And it has been lately thought proper to introduce fomewhat of the fame policy into our laws, by ftatute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns fuppofe notice) where either o the parties is
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n 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.
o Ff. 23. 2. 2. & 18.
p Ff. 1. 5. 11.
q Cod. 5. 4. 1, & 20.
r Inft. I. 10. 1.
s Domat, of dowries §. 2. Montefq. Sp. L. 23. 7.
t Vinnius in Inft. l. t. 10.
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| F f f | under |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
under twenty one, (not being a widow or widower, who are fuppofed emancipated) without the confent of the father, or, if he be not living, of the mother or guardians, fhall be abfolutely void. A like provifion is made as in the civil law, where the mother or guardian is non compos, beyond fea, or unreafonably foward, to difpenfe with fuch confent at the difcretion of the lord chanchellor: but no provifion is made, in cafe the father fhould labour under any mental or other incapacity. Much may be, and much has been faid both for and againft this innovation upon our antient laws and conftitution. On the one hand, it prevents the clandftine marriages of minors, which are often a terrible inconvenience to thofe private families wherein they happen. On the other hand, reftraints upon marriage, efpecially among the lower clafs, are evidently detrimental to the public, by hindering the encreafe of people; and to religion and morality, by encouraging licentioufnefs and debauchery among the fingle of both fexes; and thereby deftroying one end of fociety and government, which is, concubitu prohibere vago. And o this laft inconvenience the Roman laws were fo fenfible, athat at the fame time that they forbad marriage without the confent of parents or guardians, they were lefs rigorous upon that very account with regard to other reftraints: for, if a parent did not provide a hufband for his daughter, by the time fhe arrived at the age of twenty five, and fhe afterwards made a flip in her conduct, he was not allowed to difinherit her upon that account; “quia non fua culpa, fed parentum, id commififfe cognofcituru .”
4. A ROURTH incapacity is want of reafon; without a competent fhare of which, as no other, fo neither can the matrimonial contract, be valid. Idiots and luantics, by the old common law, might have married w ; wherein it was manifeftly defective. The civil law judged much more fenfibly, when it made fuch deprivations of reafon a previous impediment; though not a caufe of divorce, if they happened after marriagex . This defect in
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n Nov. 115. §. 11.
w 1 Roll. Abr. 357.
x Ff. 23. tit. l. 8. & tit. 2. l. 16.
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| our |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
our laws in however remedied with regard to lunatics, and perfons under frenzies, by the exprefs words of the ftatute 15 Geo. II. c. 30. and idiots, if not within the letter of the ftatute, are at leaft within the reafon of it.
LASTLY, the parties muft not only be willing, and able, to contract, but actually muft contract themfelves in due form of law, to make it a good civil marriage. Any contract made, per verba de praefenti, or in words of the prefent tenfe, and in cafe of cohabitation per verba de futuro alfo, between perfons able to contract, was before the late act deemed a valid marriage to many purpofes; and the parties might be compelled in the fpiritual courts to celebrate it in facie ecclefiae. But thefe verbal contracts are now of no force, to compel a future marriage y . Neither is any marriage at prefent valid, that is not celebrated in fome parifh church or public chapel, unlefs by difpenfation from the archbifhop of Canterbury. It muft alfo be preceded by publication of banns, or by licence from the fpiritual judge. Many other formalities are likewife prefcribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be alfo effential to a marriage, that it be performed by a perfon in ordersx ; though the intervention of a prieft to folemnize this contract is merely juris pofitivi, and not juris naturalis aut duvini: it being faid that pope Innocent the third was the firft who ordained the celebration of marriage in the churcha ; before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the juftices of the peace; and thefe marriages were declared valid, without any frefh folemnization, by ftatute 12 Car. II. c. 33. But, as the law now ftands, we may upon the whole collect, that no marriage by the temporal law is ipfo facto void, that is celebrated by a perfon in orders, --- in a parifh church or public chapel (or elfewhere, by fpecial difpenfation) --- in purfuance
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y Stat. 26 Geo. II. c. 33.
z Salk. 119.
a Moor 170.
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| F f f 2 | of |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
of banns or a licence, --- between fingle perfons, --- confenting, --- of found mind, --- and of the age of twenty one years; --- or of the age of fourteen in males and twelve in females, with confent of parents or guardians, or without it, in cafe of widowhood. And no marriage is voidable by the ecclefiaftical law, after the death of either of the parties; nor during their lives, unlefs for the canonical impediments of pre-contract, if that indeed ftill exifts; of confaguinity; and of affinity, or corporal imbecillity, fubfifting previous to the marriage.
II. I AM next to confider the manner in which marriages may be diffolved; 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 menfa et thoro. The total divorce, a vinculo matrimonii, muft be for fome of the canonical caufes of impediment before-mentioned; and thofe, exifting before the marriage, as is always the cafe in confanguinity; not fupervenient, or arifing afterwards, as may be the cafe in affnity or corporal imbecillity. For in cafes of total divorce, the marriage is declared null, as having been abfolutely unlawful ab initio; and the parties are therefore feparated pro falute animarum: for which reafon, as was before obferved, no divorce can be obtained, but during the life of the parties. The iffue of fuch marriage, as is thus entirely diffolved, are baftardsb .
DIVORCE a menfa et thoro is when the marriage is juft and lawful ab initio, and therefore the law is tender of diffolving 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 fuch myfterious reverence of the nuptial tie, that it will not allow it to be unloofed for any caufe whatfoever, that arifes after the union is made. And this is faid to be built on the divine re-
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b Co. Litt. 235.
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| vealed |
The RIGHTS of PERSONS.
BOOK I.
Ch. 15.
vealed law; though that expreffly affigns incontinence as a caufe, and indeed the only caufe, why a man may put away his wife and marry anotherc . The civil law, which is partly of pagan original, allows many caufes of abfolute divorce; and fome of them pretty fevere ones, (as if a wife goes to the theatre or the public games, without the knowlege and confent of the hufbandd ) but among them adultery is the principal, and with reafon named the firfte . But with us in England adultery is only a caufe of feparation from bed and boardf : for which the beft reafon 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 partiesg , which is now prohibited by the canonsh . 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 ot the hufband's eftate; being fettled at the difcretion of the ecclefiaftical judge, on confideration of all the circumftances 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 eftoveriis habendis, in order to recover iti . It is generally proportioned to the rank and quality of the parties. But in cafe of elopement, and living with an adulterer, the law allows her no alimonyk. .
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 diffolultion.
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c Matt. xix. 9.
d Nov. 117.
e Cod. 5. 17. 8.
f Moor 683.
g 2 Mod. 314.
h Can. 1603 c. 105.
i 1 Lev. 6.
k Cowel. tit. Alimony.
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| BY |
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The RIGHTS of PERSONS.
Book I.
Ch. 15.
By marriage, the hufband and wife are one perfon in law l : 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 the hufband : under whofe wing, protection, and cover, fhe performs every thing ; and is therefore called in our law-french a feme-covert ; is faid to be covert-baron, or under the protection and influence of her hufband, her baron, or lord ; and her condition during her marriage is called her coverture. Upon this principle, of an union of perfon in hufband and wife, depend almoft all the legal rights, duties, and difabilities, that either of them acquire by the marriage. I fpeak not at prefent of the rights of property, but of fuch as are merely perfonal. For this reafon, a man cannot grant any thing to his wife, or enter into covenant with her m : for the grant would be to fuppofe her feparate exiftence ; and to covenant with her, would be only to covenant with himfelf : and therefore it is alfo generally true, that all compacts made between hufband and wife, when fingle, are voided by the intermarriage n. A woman indeed may be attorney for her hufband o ; for that implies no feparation from, but is rather a reprefentation of, her lord. And a hufband may alfo bequeath any thing to his wife by will ; for that cannot take effect till the coverture is determined by his death p. The hufband is bound to provide his wife with neceffaries by law, as much as himfelf ; and if the contracts debts for them, he is obliged to pay themq : but for any thing befides neceffaries, he is not chargeable r. Alfo if a wife elopes, and lives with another man, the hufband is not chargeable even for neceffaries g ; at laft if the perfon, who furnifhes them, is fufficiently apprized of her elopement t. If the wife be indebted before marriage, the hufband is bound afterwards to pay the debt ; for he has adopted her and
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l Co. Litt. 112.
m Ibid.
n Cro. Car. 551.
o F. N. B. 27.
p Co. Litt. 112.
q Salk. 118.
r 1 Sid. 120.
s Stra. 647.
t 1 Lev. 5.
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her
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The RIGHTS of PERSONS.
Book I.
Ch. 15.
her circumftances together u. If the wife be injured in her perfon or her property, fhe can bring no action for redrefs without her hufband's concurrence, and in his name, as well as her own w : neither can fhe be fued, without making the hufband a defendant x. There is indeed one cafe where the wife fhall fue and be fued as a feme fole, viz. where the hufband has abjured the realm, or is banifhed y : for then he is dead in law ; and, the hufband 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 punifhed feparately z ; 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 a : partly becaufe it is impoffible their teftimony fhould be indifferent ; 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 teftis effe debet ;” and if againft each other, they would contradict another maxim, “nemo tenetur feipfum accufare.” But where the offence is directly againft the perfon of the wife, this rule has been ufually difpenfed with b : and therefore, by ftatute 3 Hen. VII. c. 2. in cafe a woman be forcibly taken away, and married, fhe may be a witnefs againft fuch her hufband, in order to convict him of felony. For in this cafe fhe 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 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 witnefs, who is perhaps the only witnefs, to that very fact.
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u 3 Mod. 186.
w Salk. 119. 1 Roll. Abr. 347.
x 1 Leon, 312. This was alfo the practice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)
y Co. Litt. 133.
z 1 Hawk. P. C. 3.
a 2 Haw. P. C. 431.
b State trials, vol. 1. Lord Audley's cafe. Stra. 633.
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IN
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The RIGHTS of PERSONS.
Book I.
Ch. 15.
IN the civil law the hufband and wife are confidered as two diftinct perfons ; and may have feparate eftates, contracts, debts, and injuries c : and therefore, in our ecclefiaftical courts, a woman may fue and be fued without her hufband d.
BUT, though our law in general confiders man and wife as one perfon, yet there are fone 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 converture, are void, or at leaft voidable ; except it be a fine, or the like matter of record, in which cafe fhe muft be folely and fecretly examined, to learn if her act be voluntary c. She cannot by will devife lands to her hufband, unlefs under fpecial circumftances ; for at the time of making it fhe is fuppofed to be under his coercion f. And in fome felonies, and other inferior crimes, committed by her, through conftraint of her hufband, the law excufes her g : but this extends not to treafon or murder.
THE hufband alfo (by the old law) might give his wife moderate correction h. For, as he is to anfwer for her mifbehaviour, the law thought it reafonable to intruft him with this power of reftraining her, by domeftic chaftifement, in the fame moderation that a man is allowed to correct his fervants or children ; for whom the mafter or parent is alfo liable in fome cafes to anfwer. But this power of correction was confined within reafonable boundsi ; and the hufband was prohibited to ufe any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet k. The civil law gave the hufband the fame, or a larger, authority over his wife ; allowing him, for fome mifdemefnors, flagellis et fuftibus acriter vering him, for fome mifdemefnors, flagellis et fuftibus acriter verberare uxorem ; for others, only modicam caftigationem adbibere l.
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c Cod. 4. 12. 1.
d 2 Roll. Abr. 298.
e Litt. §. 669. 670.
f Co. Litt. 112.
g 1 Hawk. P. C. 2.
h Ibid. 130.
i Moor. 874.
k F. N. B. 80.
l Nov. 117. c. 14. & Van Leeuwen in loc.
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But
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Ch. 15.
But, with us, in the politer reign of Charles the fecond, this power of correction began to be doubted m : and a wife may now have fecurity of the peace againft her hufband n ; or, in return, a hufband againft his wife o. 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 ftill permit a hufband to reftrain a wife of her liberty, in cafe of any grofs mifbehaviour p.
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.
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m 1 Sid. 113. 3 Keb. 433.
n 2 Lev. 128.
o Stra. 1207.
p Stra. 478. 875.
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