There is

be sued, without making the husband a defendant ". 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 a, for then he is dead in law (19); 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 b; 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 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 con

z Bro. Error. 173. 1 Leon. 312. 1 Sid. 120. This was also the practice in the courts of Athens. (Pot. Antiqu. b. 1. c. 21.)

a Co. Litt. 133.

b 1 Hawk, P. C. 3.
e 2 Hawk. P. C. 431

(19) This principle had been extended to a case which was thought analogous to that, where the husband was considered dead in law, viz. where a married woman was separated from her husband, and was allowed a separate maintenance by deed; it having been decided by the court of king's bench in several instances, that, if the wife under such circumstances contracted debts, she was liable to be sued as a feme sole. 1 T. R. 5.

But a similar case has since been argued before all the judges, and their unanimous judgment was pronounced by lord Kenyon, in the conclusion of which he declares, that "we find no authority in the books to "shew that a man and his wife can, by agreement between themselves, "change their legal capacities and characters; or that a woman may be ❝sued as a feme sole, while the relation of marriage subsists, and she "and her husband are living in this kingdom." Marshall v. Rutton. 8 T. R. 545.

But it is still held, that, if the wife has a separate maintenance, and lives apart from her husband by agreement, the husband will not be liable for necessaries, for this is equivalent to notice to the world not

tradict another maxim, “nemo tenetur seipsum accusare (20).” But, where the offence is directly against the person of the wife, this rule has been usually dispensed withd: 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:

d State trials, vol. 1. Lord Audley's case. Stra. 633.

to trust her upon his credit; and where she has consented to support herself upon a certain allowance, what she procures beyond upon the credit of her husband could not be considered as necessaries for her in that condition.

(20) The union of person is scarce sufficient to account for this rule of law; for the confessions of the husband or wife are no evidence against the other, yet the confessions of the party are legal evidence: but the better reason seems to be that, which is generally assigned, viz. 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 dissention and unhappiness; so vice versa of the husband. Bull. N. P. 286. But this rule, I should think, ought to be confined to cases where he husband or wife is a party in the action or prosecution; yet in one case it seems to have been held, that a wife shall not be called in any instance to give evidence, even tending to criminate her husband. 2 T. R. 263. If this be true, a plaintiff or prosecutor may have the benefit of the testimony of the one, and the defendant or prisoner cannot have the benefit of the testimony of the other;, because the evidence of the latter would tend to charge the former with perjury. Surely in such cases, where the interests of strangers are concerned, the furtherance of public justice is a consideration far superior to the policy of marriage, or the domestic strifes of the witnesses.

In all cases where the crime is a violence done to the person of the other, the husband may be evidence against the wife, and the wife against the husband. This was held by all the judges in the case of Jagger, who was convicted at York upon the evidence of his wife of an attempt to poison her. Spring Assizes, 1797.

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 [444] could prevent her from being a witness, who is perhaps the only witness, to that very fact.

In the civil law the husband and the wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband f (21).

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 8. 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 h. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses heri (22): but this extends not to treason or murder.

THE husband also (by the old law) might give his wife moderate correction k. For, as he is to answer for her mis

e Cod. 4. 12. 1.
f 2 Roll. Abr. 298.

g Litt. sec. 669, 670.
h Co. Litt. 112.

i 1 Hawk. P. C. 2.
k 1 Hawk. P. C. 130.

(21) A feme covert having a separate estate, may, in a court of equity, be sued as a feme sole, and be proceeded against without her husband; for, in respect of her separate estate, she is looked upon as a feme sole. 2 Ver. 614. And in a court of equity, baron and feme are considered as two distinct persons, and therefore a wife by her prochein amy, may sue her own husband. 3 Cox. P. Wms. 39.

(22) The law excuses the wife, perhaps, in no crimes inferior to felony. See this subject considered in the 4th vol. p. 29. n. 4.

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behaviour, 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', and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet m. The civil [445] 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". But, with us in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband P; or, in return, a husband against his wife. 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 misbehaviourr.

THESE are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disa bilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England (23).

1 Moor. 874.

m F. N. B. 8o.

n Nov. 117. c. 14. et Van Leeuwen in loc. o 1 Sid. 113. 3 Keb. 433.

p 2 Lev. 128.

q Stra. 1207.
r Stra. 478. 875.

(23) 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 shewn 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. 4 Vol. 204.

By the common law all women were denied the benefit of clergy and till the 3 and 4 W. & M. c. 9. they received sentence of death, and might have been executed, for the first offence in simple larceny, bigamy, manslaughter, &c. however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man, who could read, was for the same crime subject only to burning in the hand and a few months imprisonment, 4 Vol. 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 one-third 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.

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