band. In the three instances above mentioned, the husband s regarded as civiliter mortuus.

Although we are not aware that the courts of our country have any authority to pass a sentence of banishment or

before he was apprehended, and could not be taken thence to be tried for his offence. But upon a confession of his offence, before the proper officer, he was admitted to his oath to abjure or forsake the realm within forty days. As this state of things was found often to operate only as a perpetual confinement to some sanctuary, the statute above mentioned abolished the privilege of sanctuary, and this abjuration thereupon ceased. That there ever was any thing of this sort in any part of the United States, nobody will pretend. Nor will any lawyer suppose that the courts in England would regard the wife of an emigrant, who is naturalized in this country, and has abjured his allegiance to the British throne, as a feme sole, for any purpose. The whole course of authorities shows the contrary. See Staunf. P. C. Book ii, c. 40; 2 Inst. 629. 4 Bl. Com. c. 26; 11 East, 302.

In the Mirror, c. i, § 13, is this passage:-" In the right of offenders, who by mischance fall into an offence mortal out of sanctuary, and for true repentance run to monasteries, and commonly confess themselves sorrowful, and repent-such offenders, being of good fame, if they require tuition of the church, king Henry II, at Clarendon, granted unto them, that they should be defended by the church for the space of forty days; and ordained that the towns should defend such flyers for the whole forty days, and send them to the coroner, at the coroner's view. It is in the election of the offender to yield to the law, or to acknowledge his offence to the coroners, and to the people, and to waive the law; and if he yield himself to be tried by law, he is to be sent to jail, and to wait for either acquittal or condemnation. And if he confess a mortal offence, and desire to depart the realm, without desiring the tuition of the church, he is to go from the end of the sanctuary ungirt, in pure sackcloth, and there swear that he will keep the straight way to such a port, or such a passage, which he hath chosen, and will stay in no parts two nights together, until that for this mortal offence, which he hath confessed in the hearing of the people, he hath avoided the realm, never to return, during the king's life, without leave; so God him help, and the holy evangelists; and afterwards let him take the sign of the cross and carry the same; and the same is as much as if he were in the protection of the church." Britton gives substantially the same description of this antiquated proceeding. Kelham's Britton, c. 16. By statute 35 Eliz. c. 2, popish recusants were required upon their corporal oath to abjure the realm of England, and all other the queen's majesty's dominions for ever, and thereupon to depart, at such haven and port, and at such time, as should be in that behalf assigned and appointed by the

transportation, as we have no extra-territorial provinces, yet punishment of death, and other lighter punishments, are sometimes suspended or commuted, on condition that the convict leave the country, either for a limited time or forever. In such instances, if the husband leave the United States, the principle which is applied in cases of peremptory banishment in England might perhaps be applicable here.

If, however, the punishment be suspended or commuted, on condition that the convict merely leave the state where the offence was committed,-and he remain in the United States, or voluntarily leave them,-his wife would probably not be considered as a feme sole for the purpose of contracting.

4. Temporary transportation or banishment, though not civil death of the husband, yet entitles the wife to sue as a feme sole during his absence.' On the husband's return. from transportation, his marital rights revive.'

5. Another exception to the very rigid doctrine of the common law, on this subject, is made in the case of the wife of an alien, who has never himself resided in the country. If she reside here and contract debts, she is responsible personally; and she may also sue as a feme sole, to enforce

officers before whom the oath was taken. As nothing like this ever existed in this country, of course the incidents and effects of abjuration, whether upon the offender or his connexions, have no place in our laws.

This passage is inserted here, principally for the purpose of showing how slightly considered was the dictum in 6 Pick. 92, that "if a husband of Massachusetts deserts his wife, and removes into another state, making no provision for her, and forbidding her to follow him, the wife remaining in Massachusetts, working for her support, the husband never intending to return, it would amount to an ABJURATION of his native state, and his wife would have the privileges, and be liable to the burdens of a FEME SOLE." See Chitty on Contracts, 41.

This note is part of an article first published in the U. S. Law Intelligencer, Vol. i, page 166–7.

1 Lofft, 142; 11 East, 304, note; Co. Litt. 133, note.

the observance of contracts made with her; but it is otherwise, if the husband has ever resided here with her; in such case, the animus revertendi is presumed.'

6. By the custom of London, a feme covert trader, if her husband does not intermeddle in the trading, is regarded as a feme sole. She may sue and be sued; and, though, for the sake of conformity, her husband must join and be joined nominally in suits brought by and against her, yet the judgment when recovered does not affect him; if the judgment is against the wife, he is not liable to respond it."

7. If husband and wife are divorced a mensa et thoro, though the marriage is not dissolved, and they may lawfully live together again, as soon as they agree so to do, yet, while they are separated, the wife for some purposes is regarded as a feme sole. She may sue her husband for alimony decreed to her by the court, upon the divorce; and, of course, may maintain an action against an officer, in her own name only, for any default in executing process to enforce the allowance of alimony. In a case reported by Moore, it is said, the court seemed to suppose she may sue

1 See 15 Mass. Rep. 31, Gregory v. Paul; Abbot v. Bayley, 6 Pick. 89; 3 Campbell, 124, Kay v. Duchesse de Pienne. In two previous cases against this Duchesse (2 Esp. Rep. 554 & 587), lord Kenyon held, at nisi prius, that she was liable during her husband's absence from England, as a feme sole, for supplies furnished to her. Lord Ellenborough, in the case cited from Campbell, ruled differently, and his opinion was confirmed by the whole court of king's bench.

Chancellor Kent, in the 1st edition of his Commentaries, overlooked the case of Kay v. Duchesse de Pienne, and stated the English rule to be, that the wife of a foreigner is liable as a feme sole on contracts made by her during his absence. 2 Kent's Comm. 130, 131; 1 U. S. Law Intell. 164 et seq.

22 Bos. & Pul. 93, Beard v. Webb; 4 Dunrf. & East, 361, Caudell v. Shaw; 10 Mod. 6, Anonymous; Hetley, 9, Bowett & Langham's case; Cro. Car. 68. S. C.

315 Mass. Rep. 196, Howard v. Howard; 1 Const. Rep. (S. C.) 453, Prather v. Clarke; 2 Starkie's Ev. 698, n. (1).

4 Moore's Rep. 666, Stephens v. Tot. But in Croke's report of this case, no such intimation of the court is given. Cro. Eliz. 908.

alone on a cause of action against a third person. And, in the ecclesiastical courts, which proceed according to the rules of the civil law, by which husband and wife are not regarded as one person, suits are constantly brought by the wife alone, after a divorce a mensa et thoro, for personal injuries.1

The court in Massachusetts has decided that after such partial divorce, the wife can contract debts and render herself liable to a suit as a feme sole." And this decision conforms to the opinion of several learned writers.' The contrary, however, has recently been decided by the court of king's bench. It is said by Duval, J. that if a husband voluntarily abandons his wife, and she obtains credit as a feme sole, it is settled law, that she is liable to be sued for her debts thus contracted." But no authorities warrant this assertion.

There were several decisions in the time of lord Mansfield, that after a voluntary separation of husband and wife under articles of agreement, by which a separate maintenance was secured to the wife, she might contract debts and be sued as a feme sole. Mr. Powell strongly contested this doctrine; and in the case of Marshall v. Rutton,' which was argued before all the judges of England, it was unanimously overruled.

If a married woman fraudulently represent herself as sole, and thereby obtain credit, she will not be allowed to avail herself of the defence of coverture; and if her husband be absent seven years unheard from, she may be treated as a

1 3 Bulstrode, 264, Motteram v. Motteram; 5 Mod. 71, Chamberlaine v. Hewson; 1 Ld. Raym. 73. S. C.; 2 Dane's Abr. 307; Reeve's Dom. Rel. 205. 25 Pick. 461, Dean v. Richmond.

3 See 1 Dane's Ab. 358; Bac. Ab. Baron & Feme, M; 2 Ves. Jr. 145; 1 Bos. & Pul. 338; 2 Kent's Com. (1st ed.) 132.

3 B. & C. 291, Lewis v. Lee; 5 D. & R. 98. S. C.

$ 1 Peters S. C. Rep. 108.

1 Powell on Cont. 77, et

seq.

7 8 D. & E. 545.

feme sole, and may contract and be sued as such, although her husband may in fact be alive and within the country. The legal presumption, in that case, is, that he is dead.'

Subject to these exceptions, husband and wife are regarded in law as one person, and the wife's separate existence, so far at least as the power of making contracts is concerned, is merged and discontinued. She can acquire no property, and is therefore liable to pay no demand. Any promise made by her is void, and so is any deed executed by her, except in conjunction with her husband. The husband can make no contract with her, nor bestow any property upon her. If a third person give or bequeath any thing to her, it becomes the husband's; and any promise made to the wife can be enforced only by the husband, and for his benefit.

Some of the inconveniences and hardships of the common law, as they affect married women, are removed or mitigated by a court of chancery; but, of this branch of the subject, it is not our purpose to treat.

5. OUTLAWS AND PERSONS ATTAINTED.

The process, by which, according to the common law, a person is outlawed in a criminal prosecution, or civil suit, may be found described in the books cited in the margin.*

1 6 East, 85; 4 B. & A. 434; Hardin, 479; 18 Johns. 141.

2 Bac. Abr. Outlawry; 4 Black. Comm. ch. 24; 3 Ib. ch. 19; Appx. No. iii. Syst. Pl. 331 et seq; 1 Chitty on Crim. Law, 347 et seq. The process of outlawry was abolished in Massachusetts, in June, 1831. It was obsolete long before. Yet, until that time, a statute was in force, prescribing the proceedings by which persons charged with criminal offences before the supreme court, by indictment or presentment of a grand jury, and who absconded, &c. might be pursued to outlawry-and declaring the disabilities thereby incurred by the offender; Statute of 1782, c. 19. The only case, in which a person could be pursued to outlawry in a civil proceeding, was that of a collector of taxes, who should "abscond or secrete himself for the space of one month, having assessments in his hands unsettled;" Statute of 1785, c. 46, § 15. The incidents of outlawry, in this case, were not mentioned in the statute. Doubtless they were those of the common law.