c. 76.

fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage was voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed even then existed; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to the marriage. But these rules have been greatly altered by several recent statutes. In the first place, by stat. 4 Geo. IV. c. 76, (s. 2), 4 Geo. IV. it is enacted, that all banns shall be published in some public chapel in which they may be lawfully published, belonging to the parish wherein the persons to be married shall dwell, upon three Sundays preceding the solemnization of the marriage, and (s. 6), that no minister shall be obliged to publish banns unless the persons to be married shall, seven days previously, deliver to him a notice of their true christian names and surnames, and of the houses of their respective abodes; but it is provided by s. 22, that if any person shall knowingly intermarry without a due publication of banns, and it has been held that if banns be published in the wrong name of the parties, with the knowledge of both of them, and there be no evidence to shew that they had ever been known by such names, the marriage is null and void, whether the misdescription arose by mistake or design.e And by a more recent statute, the 6 & 7 Wm. IV. c. 85, 6x 7 Wm explained by the 1 Vict. c. 22, a still greater alteration is introduced. Persons may still, if they so please, be married according to the rites of the church of England, after publication of banns, or by license as formerly, or they may be married according to such rites without publication of banns or a license, by producing a certificate from the superintendent registrar of the district, (ss. 1 & 4). But if they object to this form they may be married at the office of the superintendent registrar, (ss. 20, 21); who will enter the marriage in the register book, (s. 23). It is further provided, that any place certified according to law, as a place of religious worship, may be registered for solemnizing marriages therein, (s. 18): and marriages may then be solemnized therein in the presence of some registrar and of

e Rex v. Tibshelf, 1 B. & Ad. 195. Rex v. Wraaton, 4 B. & Ad. 640.

&

II. The

manner in

two witnesses, (s. 20). Bishops, with the consent of the patrons, may also license chapels in populous places for the solemnization of marriages according to the rites of the church of England,f (s. 26). It is also there enacted, that all persons unduly solemnizing marriage shall be guilty of felony, (s. 39). Every marriage must be celebrated within three calendar months after the entry of the notice thereof in the "marriage book" of the registrar, or the notice must be renewed, (s. 15). And any person authorized so to do may forbid the issuing of the certificate by the superintendent registrar, whereby the notice of marriage and all proceedings under it will be void, (s. 9). These are the principal provisions of this important act.

II. I am next to consider the manner in which marriages which mar- may be dissolved; and this is either by death, or divorce. be dissolved. There are two kinds of divorce, the one total, the other Two kinds partial; the one a vinculo matrimonii, the other merely a

riages may

of divorce.

Divorce a mensa et thoro.

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 imbecility. 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 bastards.g

Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving [441] 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

See also 4 Geo. IV. c. 76, s. 13, and 5 Geo. IV. c. 32, which authorize the bishop to license any place within the parish for solemnizing mar

riages when a church or chapel is under repair or rebuilding.

Co. Litt. 235.

་

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)i but among them adultery is the principal, and with reason named the first.j But with us in England adultery is only a cause of separation from bed and board: k 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." However, divorces a vinculo matrimonii, for adultery, have Divorce a of late years been frequently granted by act of parliament, trimonii but not without very strict investigation, and, as a general rule, not until both a jury has given damages in an action for criminal conversation, and a sentence of divorce has been passed in the spiritual courts.

m

vinculo ma

In case of divorce a mensa et thoro, the law allows alimony 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 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 estoveris habendis, in order to recover it.n 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."

[ 442 ]

III. The le

III. Having thus shewn how marriages may be made, or gal conse

quences of marriage

and its dissolution.

Husband

and wife one person at law.

Consequence of this rule.

[ 443 ]

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: P 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, fœmina viro co-operta; 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 directly, 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: but a husband may grant to his wife by means of a trustee. However, it is 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;t 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. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries: at least if the person, who furnishes them, is sufficiently apprised of her elopement.y

V

W

If the wife be indebted before 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: a neither can she be sued, without making the husband a defendant. 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: 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; d 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: partly because it is impossible their testimony should be indifferent; but principally because of the union of persons 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 debit;" 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 statute 3 Hen. VII. c. 2, in case a woman be forcibly taken away, and married, she may be a witness against such her hus- [ 444 ] band, 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.