coming of age; but if he sanctions it, after that period, it will be valid, and cannot afterward be impeached on that ground.

A voidable marriage is valid for all civil purposes as long as it continues; it may be avoided at the discretion of the parties while they live, but not after the death of either of them.

275. In treating of the rights and liabilities arising from marriage we shall consider first the rights and duties of the husband; second, the rights and duties of the wife; third, their obligations toward their children, and their rights as to them.

276. Persons who marry, contract by the marriage, reciprocally toward each other, the obligation to live together during the existence of the marriage ; and they may be considered, in some sense, as one individual: Erunt duo in carne una. For this reason the very being of the wife is, for most purposes, merged in that of her husband, and it is under his protection and cover that she performs every thing; hence she is called a feme-covert, and her state during the marriage is denominated coverture.65

277. The husband is bound to receive his wife at his home and treat her there as a husband should do, that is, furnish her with all the necessaries and conveniences which his fortune enables him to do, and which her situation requires; but this does not include such luxuries as, according to her fancy, she deems necessaries.

66

By the term necessaries is meant all such things as are proper and requisite for the sustenance of man. Whenever the husband by his misconduct has obliged his wife to take up necessary things on credit, he must pay for them, though he may have previously warned the tradesman not to trust her; but if her own misbehavior has reduced her to want, he cannot be charged, unless the things furnished, other than the necessaries of life, are not sent back when he has it in his power to return them, although he may not then be living with her.

It is his duty to love his wife, and to bear with her faults, and, if possible, by mild means to correct them, and he is required to fulfil towards her his marital promise of fidelity, and can, therefore, have no carnal connection with any other woman, without a violation of his obligations.

As he is bound to govern his house properly, he is liable for its misgovernment, and he may be punished for keeping a disorderly house, where his wife had the principal agency; and he is liable for her torts, as for her slander or trespass.

68

He is also liable for his wife's debts incurred before coverture, provided they are recovered from him during their joint lives; and, generally, for such as are contracted by her during coverture. In this latter case she is presumed to act as his agent.

64

278. Being the head of the family, the husband has a right to establish him

1 Sharswood, Blackst. Comm. 442; Coke, Litt. 112.

65 1 Sharswood, Blackst. Comm. 442.

661 Hagg. Cons. 35.

Waithman v. Wakefield, 1 Campb. 120. The husband must provide his wife with necessaries suitable to her condition so long as they cohabit together. If she leaves him for good cause, as for his adultery, and lives separate from him, he must pay the bills she incurs for necessaries. Billing v. Pilcher, 7 B. Monr. Ky. 758; Shelton v. Pendleton, 18 Conn. 417; Descelles v. Kadmus, 8 Iowa 51. But he is not responsible, if she leaves him without good cause. Those who give credit to a married woman, living separate from her husband, do it at their peril; they must look to the grounds of the separation. Gill v. Read, 5 R. I. 343; Reese v. Chilton, 26 Mo. 598; Morgan v. Hughes, 20 Tex. 141.

This liability is in some states limited to the extent of the property received from the wife. N. Y. Stat. 1853, p. 1057; Ind. Rev. St. ch. 52, 1; Minn. St. 1858, ch. 40; Rennecker v. Scott, 4 Greene, Iowa 185.

self wherever he may please; in this he cannot be controlled by his wife; and he may manage his affairs in his own way. He may make whatever contracts may suit him, and acquire and sell property. His real estate, however, will be liable for his wife's dower, unless she releases it according to certain prescribed forms.

During a barbarous age, the husband had the power to correct or whip his wife, in order to bring her into subjection; this is now considered unlawful in some, and probably all the states of the Union.69

279. The wife is bound to love her husband, to be faithful to him, to do all in her power to promote their common interest, to perform toward him all the marital duties. She is bound to follow him wherever he may desire to establish himself within the United States,70 unless by acts of injustice, or such as are contrary to his marital duties, the husband renders her life or happiness

insecure.

She is not liable to pay any obligations she enters into during the coverture, either for purchases, or for the payment of any money." When she makes a contract for necessaries she is presumed to act by authority of her husband, and he alone is liable for them.

This rule applies only to necessaries; the wife is not the general agent of the husband." She may bind her husband by purchases for the family, and by such other contracts as he has authorized her to make, and authority will be implied from a uniform custom.73 In most of the states married women are now authorized by statute to retain their property and to contract in reference to it, and to do other business as if they were single; and such contracts bind them and their separate property, but do not bind the husband.

280. When she commits a criminal act, she is responsible as any other person, unless in cases where the crime is not malum in se, and it is committed in the presence of her husband." But if it appear she acted independently of him, she will be responsible even in such a case.75

She is liable for her torts, as though she were not married; as trespass, slander, and the like.

281. She has a right to the love and affection of her husband, to such part of his fortune as may be necessary and proper, taking his circumstances into consideration.76 But this is only upon the condition that she fulfil her own duties; for, if she were to elope with another man, she would not be entitled to his alimony."

282. The duties of parents toward their children vary according to the fact whether they are legitimate or illegitimate. These will be separately considered. A child born during the coverture, whether conceived before or after marriage, is presumed to be the child of the husband and wife. This presumption is, however, merely a presumption of fact, and may be rebutted by any proof which shows that the husband cannot be the father." 78 But the mother is not

See 1 Sharswood, Blackst. Comm. 444.

TO Chretien v. Her Husband, 5 Mart. N. 8. La. 60. "Jackson v. Vanderheyden, 17 Johns. N. Y. 167.

"Brown v. Hannibal R. R. 33 Mo. 309; Gilbert v. Plant, 18 Ind. 308; Johnston v. Pike, 14 La. Ann. 731; Tryon v. Sutton, 13 Cal. 490.

73 White v. Oeland, 12 Rich. So. C. 308.

74 Roscoe, Cr. Ev. 785; Commonwealth v. Neal, 10 Mass. 152; Martin v. Commonwealth, 1 Mass. 347; Commonwealth v. Trimmer, 1 Mass. 476.

75 Hale, P. C. 516; 1 Russell, Cr. 16, 20; State v. Collins, 1 M'Cord, So. C. 355; Jones v. State, 2 Blackf. Ind. 484; State v. Nelson, 29 Me. 329.

"Bascom v. Bascom, Wright, Ch. Ohio, 362; Chunn v. Chunn, 1 Meigs, Tenn. 139. "Holmes v. Holmes, Walk. 474; see Daily v. Daily, Wright, Ch. Ohio, 514.

78 Commonwealth v. Shepherd, 6 Binn. Penn. 283.

allowed to testify that the husband had no intercourse with her when the child was begotten, though this happened before marriage."

283. A legitimate child is one who is born in lawful wedlock, or within a competent time afterward. It is a principle of the common law, that when a child is born during the coverture of his mother, her husband is presumed to be the father: Pater is est quem nuptia demonstrat.80 But this presumption may be rebutted.81

284. The principal obligations which parents owe their children are their maintenance, their protection, and their education.

Parents are bound to maintain their children. In the first place will be considered who is bound; secondly, what the maintenance shall be; and, thirdly, when it shall cease.

The obligation to maintain children arises from one of the first laws of nature, which the civil law seconds and sanctions. This right of support, and the duty corresponding to it, extend to the father, grandfather, mother, and grandmother, and other ascendants. If neglected, this duty will be enforced by the courts, provided the parties are of sufficient ability.82

The obligation of parents to support their children extends to the necessaries of life, including food, lodging, and clothing, in a just proportion between the wants of the child and the ability of the parents. Nothing fixed or certain can be demanded; there is always something relative in ascertaining the amount due.

No parent is bound to provide a maintenance for his issue, unless the children are impotent and unable to work, either through infancy, disease, or accident. Hence it follows, that when a child has attained an age sufficient to support himself, has been restored to ability, or has been cured from disease, the parents are no longer bound to support him.83

285. A parent is bound to protect his children, but this duty is so well enforced by the law of nature, that it requires but little aid from the civil law. A parent may justify an assault and battery in defense of his child, and he may uphold his children in their quarrels and lawsuits, without incurring the guilt or punishment of the crime of maintenance.

286. The education of children is not always enforced by the civil or municipal law. Nature has implanted in the human breast a strong desire to see children prosperous and happy; and it is owing to this that parents spend so much time and money to educate their children. Besides, by the laws of most of the states, the people are educated at the public expense.

287. In treating of illegitimate children, we shall consider first the legal duties of parents toward such children; and, second, the rights and incapacities of such children.

288. The father of a bastard child is bound to maintain him during his childhood, until he can maintain himself; on a failure to do so, the public

"Dennison v. Page, 29 Penn. St. 420.

1 Sharswood, Blackst. Comm. 446; Tate v. Penne, 7 Mart. N. s. La. 548, 553. See beyond, 303, seq.

82 Hillsboro' v. Deering, 4 N. H. 86; Harland's case, 5 Rawle, Penn. 323. If a man marries a woman having children by the former marriage, he is not, in general, bound to support them. But if he takes them into his family and treats them as part of the family, he is considered as standing in loco parentis, and is liable for their support as long as they remain with him. Williams v. Hutchinson, 3 N. Y. 312.

1 Sharswood, Blackst. Comm. 449. The obligation to support a child terminates when he arrives at the age of twenty-one years. Before that time the father cannot relieve himself from his liability by showing that the child is able to support himself. Litchfield v. Londonderry, 39 N. H. 247; Hines v. Mullins, 28 Geo. 486. By an English statute of 43 Eliz., which is re-enacted in most of the states, the parents, if of sufficient ability, are bound to support their pauper children after attaining their majority.

authorities, guardians or overseers of the poor, or by whatever name they may be known, can, under the statute regulations in the several states, institute proceedings against the father, who is known as the putative father.

84

The mother of a bastard has a right to the control and custody of the child.85

86

289. The rights of bastard children are very few, being principally such as they acquire. They are entitled to be maintained by their putative father; but at common law a bastard is regarded as nullius filius, and can inherit neither from his father nor mother. But in most of the states this harsh rule has been modified, and bastards inherit from and through their mother as if they were legitimate.8 And he inherits from both parents if legitimated by a subsequent marriage, in many states where this provision is made. He may gain a name by reputation, though he has none by inheritance. In general the settlement of his mother is his domicil.88 Illegitimate children of the same mother do not inherit from each other, nor from the mother's legitimate children." It has been held that the legitimate children inherit from an illegitimate child of the same mother, though the father is alive."

290. The contract of marriage is dissolved by death and by divorce.

291. Death has the effect of dissolving the marriage; for, by its very terms, it was to continue only till that change should take place. On the death of one party, the other is free to marry again; but decency requires that no marriage should take place till at least the end of one year; and, in the case of women, this time is absolutely requisite in order that it may be known who is the father of any child she might have.

With regard to property, the real estate of the wife and her choses in action are restored to her on the death of her husband; and she has a dower in his real estate, of which he was seised. On her death, her real estate descends to her heirs, unless, under a power, she has made a will devising it, subject to her husband's right by curtesy, when he is entitled to it.

On the death of the wife, the liability of the husband to be sued for her debts, dum sola, ceases; and on the death of the husband his representatives are not liable for such debts.

292. In its most extensive sense, the word divorce signifies the lawful separation of husband and wife: Divortium à diversitate mentium dictum est, quia in diversas partes sunt qui distrahunt matrimonium.92

There are two kinds of divorce, namely, à mensa et thoro, which merely separates the parties, without destroying the contract; and the divorce which severs the tie, quoad fœdus et vinculum, which is a dissolution of the marriage contract: this is commonly called a divorce à vinculo matrimonii.

293. Each state has the power of regulating marriages and divorces within its limits, and can undoubtedly divorce parties who are married and reside within their jurisdiction. But if the parties remove from the state in which they were married to another state, and there obtain a divorce, a question arises how this divorce will be regarded in the former state. If the court granting the divorce has full jurisdiction over the parties as citizens its decree is con

84

Bacon, Abr. Bastardy, (E.) Bouvier, ed. It is, in general, necessary that the mother should declare during her travail who the father is, in order to admit her testimony. Blake v. Jenkins, 35 Me. 433.

85 2 Kent, Comm. 178; Robaline v. Armstrong, 15 Barb. N. Y. 247.

86 Heath v. White, 5 Conn. 228; Brown v. Dye, 2 Root, Conn. 280.

87 Beyond No. 324.

88 Newton v. Braintree, 14 Mass. 382; Canajoharie v. Overseers, 17 Johns. N. Y. 41.

89 Allen v. Ramsey, 1 Metc. Ky. 635; Bent v. St. Vrain, 30 Mo. 268.

90 Bacon v. McBride, 32 Vt. 585.

91 Ellis v. Hatfield, 20 Ind. 101.

92 Dig. 24, 2, 2.

clusive. If the defendant has never been within the jurisdiction of the court, the divorce is invalid." The rule in some states is quite lax, but the better opinion is that the court should refuse to entertain a petition for divorce unless both parties have been within its jurisdiction. The causes for which a divorce will be granted are established by statute, and vary in the different states, and the principal ones are described in the following sections.

95

294. The divorce à vinculo was never granted by the ecclesiastical courts except for the most grave reasons. These, according to Lord Coke, are causa præcontractus; causa metus; causa impotentia, seu frigiditatis; causa affinitatis; et causa consanguinitatis.

96

In the United States divorces à vinculo may be granted by the legislatures of the several states, for such causes as may be sufficient to induce the members to vote in favor of granting them. But in some of the states the legislatures are prohibited from granting them ;97 and in others they can be granted by the legislatures only after the courts have granted them for specified causes.98 The courts, in nearly all the states, have the power to decree divorces for grave causes, provided for and defined in their acts of assembly. These may be classed into those which occurred before marriage, and those which happened since. 295. The causes which existed before marriage are precontract, or the marriage of one of the parties existing at the time of the marriage sought to be dissolved; consanguinity, or that degree of kindred within which marriage is forbidden by law; impotence, when incurable;" idiocy, lunacy, or other mental imbecility, which renders the party subject to it incapable of making a contract; fraud, when it has been exercised to induce the marriage; and in some states, affinity within certain degrees.100

296. Divorces may also be granted for causes which have arisen since the marriage took place, the principal of which are adultery and cruelty.

Adultery, or the criminal carnal connection between one of the spouses and any person of the opposite sex. But if the adultery has been condoned, that is, forgiven by the innocent spouse, which forgiveness is evidenced by cohabitation, a divorce will not be granted. 101 Nor will adultery be a sufficient cause for a divorce when the party complaining has been guilty of the same offence." Cruelty, which consists in those acts which affect the life, the health, or even the comfort of the party aggrieved, and give a reasonable presumption of bodily hurt.103

"Ditson v. Ditson, 4 R. I. 87; Thompson v. State, 28 Ala. 12. *Harding v. Alden, 9 Me. 140.

98

Coke, Litt. 235 a.

95 Shannon v. Shannon, 4 All. Mass. 134. 97 Wisc. Const. art. 4, s. 24.

Legislative divorces are declared to be unconstitutional in Teft v. Teft, 3 Mich. 67; Bryson v. Bryson, 17 Miss. 590; Bingham v. Miller, 17 Ohio, 445, contra Wright v. Wright, 2 Md. 429; Jones v. Jones, 12 Penn. St. 350. The court in Kentucky say that the contract of marriage is not within the prohibition in the United States Constitution against laws impairing the obligation of contracts; Cabell v. Cabell, 1 Metc. Ky. 319. It seems that, unless restrained by the Constitution, the legislature may grant divorces, but the practice is now unusual, and the question is commonly decided by the courts.

"Keith v. Keith, Wright, Ch. Ohio, 518.

100 Vt. Rev. St. t. 16, c. 63, s. 1.

101 Barnes v. Barnes, Wright, Ch. Ohio, 475; Questel v. Questel, Wright, Ch. Ohio, 491; Bouvier, Law Dict. Condonation; Quincy v. Quincy, 10 N. H. 272; Phillips v. Phillips, 4 Blackf. Ind. 131; Hall v. Hall, 4 N. H. 462; Marsh v. Marsh, 2 Beasl. N. J. 281.

Christianberry v. Christianberry, 3 Blackf. Ind. 203. A wife who deserts her husband without cause for five years cannot obtain a divorce for his adultery during that time. Hall v. Hall, 4 All. Mass. 39.

1 Richards v. Richards, 37 Penn. St. 225; Johnson v. Johnson, 14 Cal. 459; Bouvier, Law Dict. Cruelty. By the French law, while divorces were granted, one of the causes was the libel or slander of one of the spouses by the other. In our jurisprudence, I am not aware that the wife has any remedy against her husband for slander.