Lastly, the partios must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage.(16) Any contract made, per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late acf deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiæ. But these verbal contracts are now of no force, to compel a future marriage. (y) Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders; (2) though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that Pope Innocent the Third was the first who ordained the celebration of marriage in the church; (a) before *which it was totally a civil con[440] tract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II, c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders,-in a parish church or public chapel, or elsewhere, by special dispensation,-in pursuance of banns or a license, between single persons,-consenting,-of sound mind,and of the age of twenty-one years;-or of the age of fourteen in males and twelves in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to their marriage. (17)

II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. (18) There are two kinds of divorce, the

declared null for the fraud. Scott v. Shufeldt, 5 Paige, 43; Guilford v. Oxford, 9 Conn. 321 Morris . Morris, Wright, 630; Baker v Baker, 13 Cal. 87; Reynolds v. Reynolds, 3 Allen, 309. Deception in respect to identity of person, by means of which one is induced to enter into marriage with one person, supposing it to be another, is unquestionably such legal fraud as will avoid the marriage, for in this case the element of consent is entirely wanting, and consequently no valid contract has been effected.

The fraud in any case, to be available as a ground for annulling a marriage, must be a fraud upon one of the parties thereto, and such party must complain. A marriage fraudalent as to third persons-for example, creditors-cannot be set aside on that ground. Mckinney Clarke, 2 Swan, 321.

So a marriage may be declared void if contracted in consequence of the use of force, menace or duress. Shelford on Mar. and Div. 213. And see Harford v. Morris, 2 Hagg. Cons. R. 423. But where the only duress consists in legal proceedings, not resorted to maliciously an! by abuse of legal process, and the defendant enters into a marriage to avoid imprisonment. and because of being unable to procure bail, the marriage will nevertheless be valid. Jackson e. Winne, 7 Wend. 47. And see Scott v. Shufeldt, 5 Paige, 43.

(16) As to the consequences of a failure to observe the formalities required by the marriage act, see the statutes 4 Geo. IV, c. 76; 6 and 7 Wm. IV, c. 85; 19 and 20 Vic. c. 119.

(17) [The marriage act extends only to marriages in England. Marriages on elopements to Scotland seem to be valid. Bul. N. P. 113; 1 Ves. and B. 112, 114; 2 Haggard, 54; 1 Roper, 334. Marriages of British subjects in foreign countries are valid if made according to the laws of those countries. 10 East, 282; 2 Marsh. 243; 1 Dowl. and R. Rep. 38. So a marriage in Ireland, performed by a clergyman of the church of England, in a private house, was held valid, although no evidence was given that any license had been granted to the parties. Smith r. Maxwell, Ryan and M. Rep. 80.]

The general rule is, that a marriage, valid by the law of the state where it is entered into, is valid everywhere, unless incestuous or bigamous.

(18) [The jurisdiction in the United States over the contract of marriage is almost entirely statutory. It has been held, however, that the court of chancery, in virtue of its inherent

one total, the other partial; the one a vinculo matrimonii, the other merely a 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. (19) 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. (c) (20)

Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: [*441] 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 any cause whatsoever, that arises after the union is made. (21) And

(c) Co. Litt. 235.

equity powers, has jurisdiction to declare marriages null on the ground of fraud, mistake or defect of mental capacity. Sce Wightman v. Wightman, 4 Johns. Ch. 343; Burtis v. Burtis, Hopk. 557; Perry v. Perry, 2 Paige, 501; Clark v. Field, 13 Vt. 460; Ferris v. Ferris, 8 Conn. 166.

(19) [The impotency of the husband at the time of the marriage to consummate it, and still continuing, is ground for annulling it, though the husband was ignorant of his constitutional defects. 2 Phil. Ec. C. 10. Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage, viz.: the legitimate procreation of children, may have been answered; but no kindred by affinity can happen subsequently to the marriage; for as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not go related at the time of the marriage, they can never become so afterwards.]

The causes for which a total divorce is allowed in the United States are prescribed by statute. and differ in the different states. The consequences mentioned in the text only follow in those cases in which the marriage was void ab initio; in other cases the marriage is regarded as binding upon the parties up to the time of the decree, and as put an end to, for all purposes, at that time. The distinction is between a decree of nullity, which declares a marriage to have been void from the beginning, and a decree of divorce, which dissolves a marriage once valid for the misconduct of one of the parties. The English law has been recently changed so as to permit divorces for causes arising after marriage, and a court is created with jurisdiction over the subject. The husband may have a divorce from the bonds of matrimony for the adultery of the wife, and the wife for incestuous adultery, bigamy, rape or unnatural crime by the husband, or for adultery coupled with two years' desertion. And either party may have a judicial separation from the other for adultery, cruelty, or desertion without cause for two years or upwards. See statute 20 and 21 Vic. c. 85.

(20) [In these divorces the wife, it is said, shall receive all again that she brought with her; because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth; but this is where the goods are not spent; and if the husband give them away during the coverture without any collusion, it shall bind her: if she knows her goods are unspent, she may bring an action of detinue for them; but, as to money, &c., which cannot be known, she must sue in the spiritual court. Dyer, 62.

This divorce enables the parties to marry again, and to do all other acts as if they had never been married.]

(21) [But the husband and wife may live separate by agreement between themselves and a trustee; and such agreement is valid and binding, and may be sued upon, if it be not prospective in its nature as for a future separation, to be adopted at the sole pleasure of the wife, the parties being, at the time of making the agreement, living together in a state of amity. See Jee . Thurlow, 2 Bar. and C. 547; 4 Dowl. and R. 11; 2 East, 283; 6 id. 244; 7 Price, 577; 11 Ves. 529.

If, after this agreement to live separate, they appear to have cohabited, equity will consider the agreement as waived, by such subsequent cohabitation. 1 Dowes' Rep. 235; Moore, 874: 2 Peere W. 82; 1 Fonbl. 106, and notes; 2 Cox Rep. 100: Bunb. 187; 11 Ves. 526, 537. Or if the agreement being in consequence of the wife's elopement, the husband offer to take her again.

1 Vern. 52.

But at law, the wife being guilty of adultery is no bar to a claim made by her trustee under a separation deed, for arrears of annuity, there being no clause that the deed should be yoid on that. account. 2 Bar. and Cres. 547; 4 D. and R. 11, S. C.] 289

VOL. I.-37

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. (d) 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 theater or the public games, without the knowl edge and consent of the husband; (e) but among them adultery is the principal, and with reason named the first. (f) But with us in England adultery is only a cause of separation from bed and board: (g) 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, (h) which is now prohibited by the canons. (i) (22) However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament. (23)

In case of divorce a mensa et thoro, the law allows 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 estoveriis habendis, in order to recover it. (j) It is generally proportioned to the rank and quality of *the par[ *442 ] ties. But in case of elopement, and living with an adulterer, the law allows her no alimony. (k)

III. Having thus shewn how marriages may be made or 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: (?) 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, fæmina 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, or enter into covenant with her: (m) for the grant would be to suppose her separate existence; and to covenant with her would be only to covenant with himself: (24) and

(22) Confessions alone ought seldom, if ever, to be sufficient proof of guilt on which to found a decree of divorce, because of the very great danger of collusion. They are receivable, however, in support of other evidence, and their weight will depend very much upon the conclusiveness of the surrounding circumstances in disproving their having been made for the purposes of a divorce. Adultery is now cause for a divorce a vinculo matrimonii, not only in all the states of the American Union, but in England also.

(23) The legislatures of the American states have claimed and exercised the right to grant divorces, and it has generally been conceded that they possessed full authority to do so. Some courts, however, have denied their right, on the ground that the power was in its nature judicial, not legislative, and consequently was not conferred in a grant of legislative power. Bingham v. Miller, 17 Ohio, 445; Clark v. Clark, 10 N. H. 380; Ponder v. Graham, 4 Flor. 23; State v. Fry, 4 Mo. 120; Bryson v. Campbell, 12 id. 498; Bryson v. Bryson, 17 id. 590. And in most of the states now, the legislature is prohibited, by express constitutional provision, to grant

divorces.

As to what will give the courts of a state jurisdiction to grant divorces, see Story Con. L. § 230, a; Bish. Mar. and Div. § 727 et seq.; Ibid. 4th ed. vol. 2, § 155 et seq.; Cooley Const. Lim. 400-402.

(24) [The husband and wife being one person in law, the former cannot, after marriage, by any conveyance at common law, give an estate to the wife. Co. Litt. 112, a, 187, b. Nor the

therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. (n) (25) A woman indeed may be attorney for her husband; (0) 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. (p) (26) The husband is bound to provide his wife with necessaries by law, as much as himself; and, if she contracts

wife to the husband. Co. Litt. 187, b. But the husband may grant to the wife, by the interven tion of trustees: Co. Litt. 30; and he may surrender a copyhold to her use. A husband cannot covenant or contract with his wife: Co. Litt. 112, a; though he may render his contract binding, if entered into with trustees; for unless by particular custom, as the custom of York, a feme covert is incapable of taking any thing by the gift of her husband: Co. Litt. 3; except by will. Lit. s. 168; 2 Vern. 385; 3 Atk. 72; Fonbl. Eq. vol. 1, 103.

But in equity, gifts between husband and wife are supported: 1 Atk. 270; 2 Ves. 666; 1 Fonb. on Eq. 103; 3 P. Wms. 334; unless in fraud of creditors, &c., or where the gift is of the whole of the husband's estate. 3 Atk. 72; 2 Ves. 498.

But though in equity the wife may take a separate estate from her husband in respect of a gift, and even have a decree against her husband in respect of such estate: 1 Atk. 278; or avail herself of a charge for payment of his debts: Prec. Ch. 26; yet, if she do not demand the produce during his life, and he maintains her, an account of such separate estate shall not be carried back beyond the year. 2 P. Wms. 82, 341; 3 id. 355; 2 Ves. 7, 190, 716; 16 id. 126; 11 id. 225; 1 Fonbl. on Eq. 104; 1 Atk. 269; 1 Eq. Ca. Ab. 140, pl. 7.

By 17 Hen. VIII, the husband may make an estate to his wife; as if he make a feoffment to the use of his wife for life, in tail or in fee, the estate will be executed by the 27 Hen. VIII, and the wife will be seized. Co. Litt. 112. a. So if the husband covenant to stand seized to the use of his wife. Id. a, b. And this where by custom he might devise at common law. Lit. s. 168. So where the husband or wife act en auter droit, the one may make an estate to the other; as if the wife has an authority by will to sell, she may sell to her husband. Co Litt. 112, a.]

The statutes of some of the American states have changed this rule of the common law, by conferring upon married women the power to make contracts in respect to their individual property and to buy and sell and receive conveyances and transfers in the same manner and with the like effect as if unmarried. See Bishop, Law of Married Women. Independent of these statutes, contracts between husband and wife are enforced in equity where they are just and equitable, clear and distinct in terms, and appear to have been entered into with full knowledge and free will on the part of the wife. West v. Howard, 20 Conn. 581; Livingston r. Livingston, 2 Johns. Ch. 537; Shepard v. Shepard, 7 id. 57; Garlick v. Strong, 3 Paige, 440; Neimcewicz v. Gahn, 3 Paige, 614; Imlay v. Huntington, 20 Conn. 146. And the wife may make gifts to her husband, which will be sustained if satisfactorily established. Imlay v. Huntington, 20 Conn. 146; Penniman . Perce, 9 Mich. 509. Agreements for separation between husband and wife are not favored in the law, and if they contemplate future separation, and are designed to bring it about, they are absolutely roid. Carson v. Murray, 3 Paige, 483. But where the parties actually separate, and, by agreement at the time or afterwards, provision is made for disposing of property, and settling the respective rights of the parties thereto, and the agreement seems not unreasonable in view of their circumstances and of an actual separation, equity will enforce the stipulations in respect to property, and generally give effect to those regarding the control of the persons of children. And although it has been supposed that trustees were necessary to the validity of such agreements: Story Eq. Juris. § 1428; the better opinion appears to be otherwise. Reeve's Dom. Rel. 91 and

note.

(25) [At law, if a inan make a bond or contract to a woman before marriage, and they afterwards intermarry, the bond or contract is discharged. Cro. Car. 551; 1 Lord Ray. 515.

So if two men make a bond or contract to a woman, or e contra, and one of them marries with her, the bond, &c., is discharged Cro. Car. 551.

Though not if it be intended for the advantage of the wife during the coverture, as that she shall have such rents, &c., at her disposal. Ca. Ch. 21, 117.

But a covenant or contract by a man with a woman is not destroyed by their marriage where the act to be performed is future, to be done after the marriage is determined, as to leave his wife so much after his death. Cro. Car. 376; Salk. 326; 5 T. Rep. 381. If a wife charge her estate with payment of her husband's debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as gift to her husband, equity will decree the husband's assets to be applied in exoneration of her estate, or in repayment of the money advanced. 2 Vern. 347, 689; 1 P. Wms. 264; 2 Atk. 384; 1 Fonbl. on Eq. 102. 103.]

(26) [A donatio causa mortis by a husband to his wife may also be good, as it is in the nature of a legacy. 1 P. Wuns. 441.]

debts for them, he is obliged to pay them; (7) but for anything besides necessaries he is not chargeable. (r) (27) Also if a wife elopes, and lives with another

(27) [Every agreement of any nature entered into by a married woman, without the express or implied consent of her husband, is absolutely void. 1 Sid. 120; 1 Lev. 4; 1 Mod. 128, S. C.; 2 Atk. 453; & Wils. 3; 8 T. R. 545; 2 B. and P. 105; Palm. 312; 1 Tauut. 217. Except indeed in the instance of the queen consort: Co. Litt. 133, a: or of a deed enrolled or covenant on the warranty of a fine, or on a covenant running with the land of the wife, demised by her during coverture: 2 Saund. 180, n. 9; and contracts binding her by special custom : Hob. 225; 34 and 35 Hen. VIII, c. 83; and this rule prevails so strongly that a feme may avail herself of her coverture to defeat a contract, though she have been guilty of fraud: 4 Camp. 26; nor can a married woman even state an account of a debt contracted before marriage. 2 Esp. 716; 1 Taunt. 212. If the wife sell, or dispose of the money or goods of the husband without his assent, the sale is void, and the husband may have trover for the goods; and if she lose money at cards, the husband may bring an action for the money. Com. Dig. Bar. and F. As a consequence of the same doctrine, a married woman cannot in general be made a bankrupt. 1 Mont. on B. L. 4. In equity, the same rule as to the husband's liability for the wife's contract applies: Prec. Ch. 255; 2 Vern. 118; Sel. Ca. Ch. 19; 3 Mod. 186; and a court of equity cannot make the husband liable in respect of the fortune he may have had with his wife for her debts contracted before marriage. 1 P. Wms. 461; 3 id. 410; Forrester, 173, but see 2 Freem. 231. Though indeed if he take out administration to her he will be liable to the extent of what he receives as her assets. Forrester, 172; and see post as to enforcing in equity the wife's contract.

But notwithstanding the wife is thus in general incapable of making a valid contract, so as to bind her husband, yet in some cases he will be rendered liable when his assent to her contract can be presumed, or was expressly given. Thus, during cohabitation the law will, from that circumstance, presume the assent of the husband to all contracts made by the wife for necessaries, which are suitable to the husband's degree and estate, and the misconduct, short of the adultery of the wife, will not destroy this presumption. 2 Lord Raym. 1006; 1 Salk. 118. And this liability for necessaries is not confined to cases where they are supplied to, or for the use of, the lawful wife of the party to be charged. A man cohabiting with a woman, and allowing her to assume his name, and appearing to the world as his wife, and in that character to contract debts for necessaries, will be liable, though indeed the tradesman knew the circumstances: 2 Esp 637; 4 Camp. 215; and though the man be married to another woman: 1 id. 245, 249; but this rule only holds during cohabitation. 4 id. 215. When a man marries a widow, and receives her children into his family, although he was not bound by the act of marriage to maintain the children; 4 T. R. 118; 4 East. 76; yet, having treated them as part of his family, he is liable for contracts made by the wife in his absence for the education of the children. 3 Esp. Rep. 1. If the husband be an infant, yet he is liable for necessaries furnished to his wife and children, their interests being considered as identified with his own. 1 Stra. 168; Bul. N. P. 155. This legal presumption of asseut may in particular cases be rebutted; as for instance, in an action brought for the price of dresses supplied for the wife by her order, evidence may be given that she was not in want of articles of this kind, or that the husband had given notice to the tradesman not to trust her upon credit. 2 Lord Ray. 1006; 1 Salk. 118; 3 B. and C. 631.

And where a husband makes an allowance to the wife for the supply of herself and family with necessaries during his temporary absence, and a tradesman with notice of this supplies her with goods, the husband is not liable. 4 B. and A. 252. Money lent to a married woman cannot be recovered against the husband. 1 Salk. 387; 1 P. Wms. 482; Prec. Ch. 502. Even though the money be laid out in the purchase of necessaries; though indeed in a court of equity the lender would, in such case, be entitled to stand in the place of the tradesman by whom the goods were supplied. Id. Where a married woman buys materials for clothing, and pawns them before they are made up, the husband is not liable, for they never came to his use, though it would be otherwise if the clothes were made up and used by the wife, although they may be afterwards pawned by her. 1 Salk. 118; Com. Dig. B. and F. Where a party contracts solely with, and gives credit to, the wife, he cannot sue the husband, though for necessaries; and this, although the wife lives with him, and he sees her in possession of some of the goods, unless indeed the husband by any act show that he considered himself the debtor. 5 Taunt. 356; 1 Carr. Rep. 16; 3 Camp. 22; 4 id. 70; 2 Stra. 706; 4 B. and A. 255.

Where the husband and wife are separated and live apart from each other, still the husband will be liable upon a contract for necessarics made with her where his assent can be implied. Thus, where the husband deserts his wife, or turns her away without any reasonable ground, or refuses to admit her into his house, or compels her by ill usage, indecency of demeanor, or severity, to leave him, in all these cases he gives the wife a general credit, and is liable to be sued for necessaries furnished her. 1 Esp. 441; Lord Raym. 444; 4 Esp. 42: 3 id. 251, 252; 2 Stra. 1214; 3 Taunt. 421; 2 Stark. 87. And this although he has given general notice to all per

a

sons, or even a particular one to the individual supplying her with necessaries, not to give credit to her. 4 Esp. 42; 1 Selw. N. P. 5th ed. 275. And a husband who, without cause, turns away his wife, is liable for costs she incurs in articles of the peace against him. 3 Camp.