ment. (t) (28) If the wife be indebted before marriage, the husband is bound afterwards to pay; for he has adopted her and her circumstances together. (u) (29.) 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: (v)

(t) 1 Lev. 5.

(u) 3 Mod. 1, 6.

(v) Salk. 119. 1 Roll. Abr. 347.

period, the effect of his absence is the same to the wife as if it had been perpetual. 2 Bla. Rep. 1197; 1 T. R. 7; 2 B. and P. 231; Co. Litt. 133, a. n. 3; 1 B. and P. 358; and see 4 Esp. 27. Where the husband is an alien who has deserted this kingdom, leaving his wife to act here as a feme sole, the wife may be charged as a feme sole after such desertion: 2 Esp. Rep. 554, 587; 1 B. and P. 357; 2 id. 226; I N. R. 80; 11 East, 301; so where the husband is an alien, and has never been in this country. 3 Camp. 123. Indeed it has been considered that the preceding doctrine is confined to the case where the husband has never been in this country. Id. ibid. Sed quære. At all events it is confined to cases only where the husband was an alien: 11 East, 301; 1 N. R. 80; and where the husband resided in the West Indies, and allowed his wife a weekly sum for her subsistence, it was held that she could not contract as a feme sole. 3 Esp. 18; 1 N. R. 80; 5 T. R. 679, 682. And where an Englishman employed in the service of the British government residing in a foreign country, and having lands there, upon the cessation of his employment in consequence of war between the two countries, sent his wife and family to this country, but continued to reside abroad himself, it was held the wife could not contract as a feme sole. 2 B. and P. 226.

By the custom of London, where a feme covert of a husband useth any craft in such city on her sole account, whereof the husband meddleth nothing, such a woman shall be charged as a feme sole, concerning every thing which toucheth the craft; and if the husband and wife be impleaded in such case, the wife shall plead as a feme sole, and if she be condemned, she shall be committed to prison till she hath made satisfaction, and the husband and his goods shall not in such case be charged or impeached. See 3 Burr. 1776; Cro. Car. 67; 10 Mod. 6; 2 B. and P. 93, 101; 3 Chit. Com. Law, 37.]

(28) Mr. Justice Coleridge says: "I do not imagine that the liability of the husband to discharge the contracts of his wife depends upon the principle of a union of person, but on that of authority and assent, expressed or implied. This principle borne in mind is a clew to almost all the decisions; thus, first, during cohabitation, it may be presumed that the husband authorizes his wife to contract for all necessaries suitable to his degree; and no misconduct of hers during cohabitation, 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, cohabitation 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 that the husband is discharged; if there be no allowance agreed upon 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 expenses. 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 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 the husband to maintain an adulteress who has eloped from him, and whose situation has 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."

The husband is under obligation to support his wife only at his own home; and it is only where his conduct is such as to justify her in leaving him, and he makes no suitable provision for her, that he can be held in the law to send her forth with authority to contract for necessaries on his credit. Rumney v. Keyes, 7 N. H. 571; Allen v. Aldrich, 9 Fost. 63; Shaw v. Thompson, 16 Pick. 198; Clement v. Mattison, 3 Rich. 93; Brown v. Mudgett, 40 Vt. 68; Monroe County v. Budlong, 51 Barb. 493. The husband whose wife lives apart from him with his assent, is liable for her support. Carley v. Green, 12 Allen, 104. And in such cases it seems that the credit she carries with her is a general credit, and cannot be restricted by notice by the husband to particular persons not to trust her. Bolton v. Prentice, 2 Strange, 1214; Harris v. Morris, 4 Esp. 41. (29) But though the husband has had a great fortune with his wife, if she dies before him, he is not liable to pay her debts contracted before marriage, either at law or in equity, unless there be some part of her personal property which he did not reduce into his possession before her death, which he must afterwards recover as her administrator; and to the extent of the value of that property, he will be liable to pay his wife's debts, dum sola, which remained undischarged during the coverture. 1 P. Wms. 463; 3 id. 409; Rep. T. Talb. 173.]

66

neither can she be sued without making the husband a defendant. (w) 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, (x) 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 defense at all. (30) In criminal prosecutions, it is true, the wife may be indicted and punished separately; (a) for the union is only a civil union. (31) But in trials of any sort they are not allowed to be evidence for, or against, each other: (b) 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." (32) But, where the offence is directly against the person of the wife, this rule has been usually dispensed with; (c) 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. (33)

66

[ *444 ]

(w) Bro. Abr. Error, 173. 1 Leon. 312. 1 Sid. 120. This was also the practice in the courts of Athens. Pot. Antiq. b. 1, c. 21. (a) 1 Hawk. P. C. 3. (c) State Trials, vol. 1. Lord Audley's case.

(z) Co. Litt. 133.

(b) 2 Hawk. P. C. 431.

Stra. 633.

(30) Mr. Chitty in his treatise on Pleadings has given very fully the rules of the common law regarding the manner in which actions are to be brought by and against husband and wife. In some of the United States those rules have been changed by statute so far as to permit a married woman to bring suits in her own name alone in respect to her individual property, and also to protect for the benefit of the family, where the husband refuses or neglects to do so, that portion of his property which is exempt from levy and sale on execution, or from being mortgaged or sold by him without her consent.

(31) The criminal responsibility of the wife is considered in Book 4, p. 28.

(32) [The statule 16 and 17 Vic. enacts that husbands and wives shall be competent and compellable to give evidence on behalf of either party; but neither can be compelled to disclose any communication during marriage, and neither is a competent witness in a criminal proceeding, or in any proceedings instituted in consequence of adultery.]

The common law on this subject is changed by statute in some of the United States, and husbands and wives are made competent witnesses for and against each other, but in some only by consent. In the absence of statutory provisions the husband or wife is not permitted, even after the termination of the marriage by divorce, to testify against the other concerning matters occurring while it existed. State v. Jolly, 3 Dev. and Bat. 110; Merriam v. Hartford, &c., R. R. Co., 20 Conn. 354; Cook v. Grange, 18 Ohio, 526; Barnes v. Camack, 1 Barb. 392. Nor after the death of the husband may the wife testify to confidential communications which he had made to her. Pike v. Hayes, 14 N. H. 19; Edgell v. Bennett, 7 Vt. 534.

(33) [The best reason for not allowing a husband or wife to be witnesses against each other is, that if a wife were a witness for her husband she would be under a strong temptation to commit perjury, and if against her husband it would be contrary to the policy of marriage, and might create much domestic dissension and unhappiness; so vice versa of the husband. Bul. N. P. 286; 4 T. R. 679; 2 T. R. 263. The husband and wife cannot be witnesses for each other, and on a prosecution against several for a conspiracy, the evidence of the wife of one of the defendants is inadmissible: 2 Stra. 1094; 5 Esp. Rep. 107; and it is the same in an action for assault, where the cases of the co-defendants cannot be separated. Stra. 1095.

They cannot be witnesses against each other, therefore the husband cannot be a witness against the wife nor the wife against the husband, to prove the first marriage on an indictment for a second marriage. 2 Hawk. P. C. c. 46, s. 68; Sir T. Raym. 1; 4 St. Tr. 754; and see Co. Litt. 6, b.; 2 T. R. 263; 2 Lord Ray. 752; but in such case the second wife or husband may be a witness, the second marriage being void. Bul. N. P. 287; 1 Hal. P. C. 693. So in a civil action, a first wife was refused to be admitted to prove her marriage. 2 Lord Ray. 752. In an action brought by a woman as a feme sole, the plaintiff's husband cannot be called to prove the marriage. 2 T. R. 265, 269; Brownl. 47.

Although the husband and wife be not a party to the suit, yet if either be interested in the result of the suit, the other cannot be a witness for the one so interested. Lord Ray. 744;

In the civil law the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries; (d) and therefore in our ecclesiastical courts, a woman may sue and be sued without her husband. (e) (34)

Stra. 1095; 2 Stark, on Evid. 708. But the interest to disqualify the party must be certain and vested. Leach, 133. The wife of a bankrupt cannot be examined as to her husband's bankruptcy. 1 P. Wms. 610, 611; 12 Vin. Ab. pl. 28; 1 Brownl. 47. The husband is an incompetent witness for the wife where her separate estate is concerned. 1 Burr. 424; 4 T. R. 678; 2 N. R. 331; 2 Stark. on Evid. 708; Lord Ray. 344. On the other hand, where the interest of the husband consisting in a civil liability would not have protected him from examination, it seems that the wife must also answer, although the effect may be to subject the husband to an action, for where the husband might be examined, so may the wife. See 2 Stark. on Evid. 709. And in an action between other parties, the wife may be called to prove that credit was given to her husband. Bull. N. P. 287; 1 Stra. 504.

Upon the same principle that the husband and wife cannot be witnesses for or against each other, so in general are their declarations or admissions inadmissible in evidence. 6 T. R. 680; Willes, 577; 3 Ves. and B. 165; Bull. N. P. 28; Hutt. 16; 1 T. R. 69; 1 Burr. 635; Brownl. 47. The declarations of the wife are not evidence for the husband: 4 Camp. 70; and in an action for criminal conversation the wife's confessions are not evidence for the husband: Bull. N. P. 28; Willes Rep. 577; but in such action the conduct of the husband and wife, and their letters passing between them, are admissible to show the terms of affection on which they were living, but the letter sought to be strictly proved. 4 Esp. Rep. 39; 2 Stark. 191; 1 B. and A. 90, S. C. In such action also the letters of the wife to the defendant are not evidence against the husband, though indeed conversations between her and the defendant are. Bull. N. P. 28; Willes, 577. An admission by the wife, even of a trespass committed by her, is not evidence to affect the husband. 7 T. R. 112. So a declaration by the wife in an action against the husband, that the husband absented his house for fear of creditors, is inadmissible in evidence. 3 Moore, 23; and see 1 P. Wms. 610, 611; 12 Vin. Ab. pl. 28; 1 Brownl. 47. So the answer of the wife in equity cannot be read against the husband. 3 P. Wms. 238; Salk. 350; Vern. 60, 109, 110. But letters written by the husband to the wife may be read as evidence against him; and so a discourse between the husband and wife in the presence of a third person may be given in evidence against the husband, like any other conversation in which he may have been concerned. Bull. N. P. 28; 1 Phil. on Evid. 6th

ed. 76.

In high treason a wife may be admitted as a witness against her husband, because the tie of allegiance ought to be more obligatory than any other. Lord Raym. 1; Bull. N. P. 286; 1 Brownl. 47. See also 2 Keb. 403; 1 H. P. C. 301.

So in the case of an indictment for forcible abduction and marriage, the woman is a competent witness for the crown. Supra; Gilb. Ev. 254; Cro. Car. 482, 488, 489; 1 Hale, 301; 1 Vent. 243; 3 Keb. 193; 3 Stark. on Evid. 711. So in such case, it is said, she is a competent witness for the prisoner. 2 Hawk. c. 46, s. 79. But if the marriage be ratified by voluntary cohabitation, she is incompetent. Hale, 301; 1 Vent. 243; 3 Keb. 193; Cro. Car. 488; Vent. 243; 4 Mod. 3; Stra. 633. Upon an indictment for marrying a second wife, the first being alive, though the first cannot be a witness, yet the second may, the second marriage being void. 1 Hale, P. C. 693; 2 Hawk. P. C. c. 46, s. 68; Sir T. Raym. 1.

In cases of evident necessity, where the fact is presumed to be particularly within the wife's knowledge, there is an exception to the general rule. Thus, a wife may be a witness on the prosecution of her husband for an offence committed against her person. Stra. 633, 1202; Bull. N. P. 287, S. C.; 1 East, P. C. 454; 13 East, 171; 1 T. R. 698. On the trial of a man for the murder of his wife, her dying declarations are admissible. 2 Leach, C. L. 563; 1 East, P. C.

357.

The rule does not extend to declarations of the parties, which are in the nature of facts, for in such cases the presumptions which are made are not founded on the credit of the party, but of the fact. Thus the declaration of the wife at the time of effecting a policy on her life of the bad state of her health, is evidence against her husband. 6 East, 188; 2 Stark. on Evid. 712, 713.

Where the husband has allowed the wife to act as his agent in the management of his affairs, or any particular business, the representations and admissions of the wife, made within the general scope of her authority as such agent, are admissible in evidence against the husband. See 1 Esp. 142; 2 Stark. 204; Str. 527; 6 T. R. 176; 4 Camp. 92; 2 Esp. 211; 5 Esp. 145.]

As to the competency of one of the parties to be a witness against the other in a case where the validity of the marriage is in dispute: see Dixon v. People, 18 Mich. 84.

(34) In respect to that property which, by marriage articles or otherwise, is settled upon a married woman for the support of herself and her children, to the exclusion of marital rights in the husband, and which is technically called her separate estate, the wife is to be treated as a feme sole, and her contracts are valid without in any way binding the husband or his prop

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. (f) 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. (g) And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her: (h) but this extends not to treason or murder.

The husband also, by the old law, might give his wife moderate correction. (i) 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 chastisement, in the same moderation that a man is allowed to correct his apprentices 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, (j) and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suæ, licite et rationabiliter pertinet. The civil law gave the husband the *same, or a larger, authority over his [*445] wife: allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorum; for others, only modicam castigationem adhibere. (k) But with us, in the politer reign of Charles the Second, this power of correction began to be doubted; (7) and a wife may now have security of the peace against her husband;(m) or, in return, a husband against his wife. (n) Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour. (0)

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 sex of the laws of England. (35)

(f) Litt. 669, 670. (5) Moor. 874.

(m) 2 Lev. 128.

(g) Co. Litt. 112.

(h) 1 Hawk, P. C. 2.
(k) Nov. 117, c. 14, and Van Leeuwen in loc.
(n) Stra. 1207. (o) Stra. 478, 875.

(i) Ibid. 180.
(2) 1 Sid. 113. 3 Keb. 433.

erty. They are not, however, binding upon her personally, but are enforced in equity against the property, which she either charges expressly or is presumed to intend to charge when making them. Story Eq. Juris. § 1400; Vanderheyden v. Mallory, 1 N. Y. 452; Gardner v. Gardner, 7 Paige, 112. Her contracts for the sale of such separate estate are also enforceable against her in equity, but cannot be sued upon at law, except in states where the statute has made her liable to such actions.

(35) [Nothing, I apprehend, would more conciliate the good will of the student in favor of the laws of England, than the persuasion that they had shown a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve. In addition to what has been observed in this chapter, by the learned commentator, I shall here state some of the principal differences in the English law, respecting the two sexes; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is supported by truth.

Husband and wife, in the language of the law, are styled baron and feme: the word baron, or lord, attributes to the husband not a very courteous superiority. But we might be inclined to think this merely an unmeaning technical phrase, if we did not recollect, that if the baron kills his feme, it is the same as if he had killed a stranger, or any other person; but if the feme kills her baron, it is regarded by the laws as a much more atrocious crime; as she not only breaks through the restraints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason, (though in petit treason the punishment of men was only to be drawn and hanged,) till the 30 Geo. III, c. 48, the sentence of women was to be drawn and burnt alive. Book 4, 204.

By the common law all women were denied the benefit of clergy; and till the 3 and 4 W. and M. c. 9, they received sentence of death, and might have been executed for the first offense in simple larcency, bigamy, manslaughter, &c., however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man, who 297

VOL. I.-38

CHAPTER XVI.

OF PARENT AND CHILD.

THE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.

Children are of two sorts; legitimate, and spurious or bastards, each of which we shall consider in their order; and, first, of legitimate children.

I. A legitimate child is he that is born in lawful wedlock, (1) or within a competent time afterwards. "Pater est quem nuptiæ demonstrant," is the rule of the civil law; (a) and this holds with the civilians, whether the nuptials happen

(a) Ff. 2, 4, 5.

could read, was for the same crime subject only to burning in the hand and a few months imprisonment. Book 4, 369.

These are the principal distinctions in criminal matters; now let us see how the account stands with regard to civil rights.

Intestate personal property is equally divided between males and females; but a son, though younger than all his sisters, is heir to the whole of real property.

A woman's personal property, by marriage, becomes absolutely her husband's, which at his death he may leave entirely away from her; but if he dies without will, she is entitled to onethird of his personal property, if he has children; if not, to one-half. In the province of York, to four-ninths or three-fourths,

By the marriage, the husband is absolutely master of the profits of the wife's lands during the coverture; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life; but the wife is entitled only to dower, or one-third, if she survives, out of the husband's estates of inheritance; but this she has, whether she has had a child or not.

But a husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband. 3 P. Wms. 229.

With regard to the property of women, there is taxation without representation; for they pay taxes without having the liberty of voting for representatives; and indeed there seems at present no substantial reason why single women should be denied this privilege. Though the chastity of women is protected from violence, yet a parent can have no reparation, by our law, from the seducer of his daughter's virtue, but by stating that she is his servant, and that by the consequences of the seduction he is deprived of the benefit of her labor; or where the seducer, at the same time, is a trespasser upon the close or premises of the parent. But when by such forced circumstances the law can take cognizance of the offense, juries disregard the pretended injury, and give damages commensurate to the wounded feelings of a parent.

Female virtue, by the temporal law, is perfectly exposed to the slanders of malignity and falsehood; for any one may proclaim in conversation, that the purest maid, or the chastest matron, is the most meretricious and incontinent of women, with impunity, or free from the animadversions of the temporal courts. Thus female honor, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned calumniator. Book 3, 125.

From this impartial statement of the account, I fear there is little reason to pay a compliment to our laws for their respect and favor to the female sex.

As to the interest which the husband has in the chattles real and choses in action of his wife, if he survive her, and what interest his representatives have if she survive him, I should recommend to the student's perusal Mr. Butler's note of Co. Litt. 351, a. n. 1. CHRISTIAN.]

The statute law of the several states of the American union has very much changed for the better the common law rules which Prof. Christian here arraigns with so much justice. Some of these changes we have already alluded to. The general purpose is to protect the married woman in the emjoyment and power to dispose of all the property, real or personal, which she may have at the time of the marriage, or acquire afterwards; to preclude the hus band from disposing of the property, exempt from execution, without her consent, and to give to her a larger share of his estate than she had at the common law in the event of her surviving him. The diversity in these statutes is very great, and in some states they give the wife more complete power to dispose of her estate independently than the husband is allowed to possess.

(1) [In the great case of the Antenatus: Doe v. Vardill, 5 B. and C. 43; 6 Bing. N. C. 385; 6 Bligh. N. S. 479; 2 Cl. and Fin. 582; Moylan's report of the case; it was decided that even where a bastard, by the subsequent marriage of his parents, becomes legitimate according to the laws of the country in which he was born, he is nevertheless still a bastard, so far as regards the inheritance of lands in England. See, however, Story's Conflict of Laws, p. 117-143, and 7 Cl. and Fin. 817, 842.]