HUSBAND AND WIFE. 



the personal services of his wife ; and, in the action 

 by the husband against another on account of criminal 

 conversation with the wife, direct allusion is made to 

 this marital right, while the wife lias no correspond- 

 ing action against a woman who does her a similar 

 injury. In respect to the children as a divided 

 authority, where the voices would be equal would 

 lead to embarrassment the law assigns the guar- 

 dianship and authority over them to the father, to 

 whic.li the mother succeeds, in a great degree, on his 

 decease, but not wholly, for the children may, at a 

 certain age in their minority, choose guardians for 

 themselves, in case of the tattler's decease. 



As the law assigns a certain ascendency to the 

 husband, so it provides some compensation, by im- 

 posing upon him stronger and more extensive 

 obligations; and both the authority and the obliga- 

 tions of the husband are more extensive where the 

 common law of England has sway than where the 

 Roman law is the fountain of civil jurisprudence. 

 As this common law, according to its original spirit 

 and usual operation, leaves the wife destitute of the 

 means of supporting herself, it imposes upon the 

 husband the obligation of supporting tier, in the most 

 direct and absolute terms. His duly to provide for 

 the support of the children is no less imperatively 

 enjoined by the law, to which duty the wife succeeds, 

 in its full force, in case of the decease of the husband. 

 In either case, the duty extends to the utmost ability 

 and means of the party. In respect to the distinct 

 possession of property, and distinct civil abilities of 

 the two parties, in regard to the acquisition and 

 management of property, the common law of Eng- 

 land and the codes springing from the Roman law 

 are widely different, and give rise to the most strik- 

 ing diversities in the civil relations of families under 

 the jurisdiction of these respective systems. 



By the theory, as well as the practical administra- 

 tion of the common law of England, which has not 

 been very deeply trenched upon by statutes or judicial 

 modifications, the civil rights and abilities of the wife 

 are mostly merged by the marriage. The husband 

 and wife are considered, in law, to be one person, 

 and that one person recognised by the law is the 

 husband. By the very act of the marriage, the 

 chattels of the wife become the property of the hus- 

 band. He has a right, also, to collect all the debts 

 due to her; but then he also, at the same time, incurs 

 a corresponding obligation, for he at once becomes 

 liable to pay all her debts. Though, in bringing 

 suits, after the marriage, for the debts due to the 

 wife before marriage, the names of both the husband 

 and wife are used as plaintiffs and creditors, yet, 

 when ttie debts are collected, the proceeds are at the 

 absolute disposal of the husband. So the rents and 

 income of the wife's real estate, during the continu- 

 ance of the conjugal connexion, belong to the 

 husband as absolutely as if the estate itself were his 

 own; but he cannot sell the estate without the con- 

 currence of the wife, and, in England, such a sale 

 can be made only under judicial cognizance, by a 

 proceeding in which the wife must appear personally 

 in court, and express her assent to the sale. In the 

 United States of America this precaution is not taken, 

 though, in some of the states, the wife must be ex- 

 amined separately from her husband, by some magis- 

 trate authorized to take the acknowledgment of 

 deeds; and, on her acknowledging that she, freely, 

 and without constraint by the husband, assents to the 

 sale, the conveyance will be good ; while, in other 

 states, no such separate examination is required, but 

 she may execute the deed either in the presence or 

 absence of her husband, as the law may provide in 

 this respect. If the wife has already commenced a 

 suit, at the time of the marriage, the husband's con- 



trol of the claim for the demand in suit is considered 

 to be so direct and absolute, that the defendant is no 

 longer liable to answer to the wife, and the suit will 

 be defeated on the defendant's objecting to its being 

 further prosecuted in her name; for the common law 

 does not allow the husband, in such <:ase, to come in 

 and join ; .n the prosecution, though there seems to be 

 no very good reason why it should not. In such 

 case, the proceedings must be commenced anew, in 

 the names of both. If a suit is pending against the 

 wife at the time of the marriage, it does not abate, 

 for the law will not permit the rights of third parties 

 to be injured by the voluntary act of the defendant, 

 but such suit proceeds as if no marriage had taken 

 place, or ttie husband is cited in and made a co-de- 

 fendant in the suit. The same principles extend to 

 all the civil relations of the wife. If she was acting 

 as executrix on an estate, the husband, on ttie mar- 

 riage, becomes executor with her. So if she is 

 appointed executrix during the marriage, the hus- 

 band is executor with her ; and so where imprison- 

 ment for debt is permitted, the law does not allow 

 the wife to be imprisoned on execution for her own 

 debt, separately from her husband, but he must be 

 imprisoned with her; and if lie escapes from prison, 

 and is not retaken, after a reasonable time allowed 

 for this purpose, the wife will be discharged. 



On the dissolution of the marriage by the death of 

 the husband, or by a divorce from the bonds of ma- 

 trimony, the civil abilities of the wife revive, and 

 she will then also be entitled, in her own right, to 

 the rents and income of her real estate accruing sub- 

 sequently, and she will also be entitled, in her own 

 right, to all the debts due to her before the marriage, 

 and which the husband lias not appropriated to him- 

 self. But, as all the earnings of the wife, during ttie 

 marriage, belong exclusively to the husband, whethei 

 gained by her labour, by trade, or in any other wny 

 he alone can sue for any claim thence arising ; and, 

 in case of his decease, his executors succeed to his 

 right, and not the wife in her individual capacity. 

 The law, at the same time, shows a scrupulous re- 

 spect for a union so intimate, and permits the parties 

 mutually to defend each other against the attacks of 

 other persons; and also exempts them, except in a 

 few extreme cases, from being witnesses against each 

 other, upon the same principle on wtiich it exempts 

 a party from being a witness against himself; and 

 even farther, for it will not permit either to be a 

 witness against the other. 



It is a general rule, that this contract of marriage 

 so completely absorbs all others, that the parties can- 

 not afterwards contract with each other, since, in the 

 view of the law, it would be equivalent to a contract 

 of a party with himself. In the time of lord Mansfield, 

 some decisions were made by the court of king's bench, 

 in England.tending to the introduction of an exception 

 to this doctrine, in case of an agreement between 

 husband and wife to live separately, upon formal 

 articles made by them, providing for a separate 

 maintenance of the wife. But the same court re- 

 traced its steps, in the time of the succeeding chief- 

 justice, lord Kenyon, and re-established the old doc- 

 trine, that all such agreements were absolutely void. 

 The only way, accordingly, of protecting and main- 

 taining the pecuniary contracts of the wife, and pre- 

 venting them from being merged by the marriage, is 

 through the intervention of trustees. The law does 

 not prevent the putting property into ttie hands of 

 trustees, to be managed either according to the 

 discretion of the trustees, or under the direction 

 of the wife, for her separate benefit, as if she 

 were a single woman ; and this may be done either 

 before or after the marriage, provided that the inter- 

 est of creditors, having subsisting claims at the time. 



