414 
MARRIAGE. 
Conditions ascainft marrying generally are void in law 5 
and, if a condition is annexed to a legacy, as where money 
is given to a woman, on condition that Ihe marries with 
confent of fuch a perfon, See. fuch a condition is void by 
ecclefiaftical law, becaufe the marriage ought to be free 
without coercion ; yet it is laid it is not fo at the com¬ 
mon law. 
Of the EJfcEl of Marriage, by Operation of Law. The wife 
doth partake of the name, nature, and condition, of the 
hufband by the marriage 5 for, if die be an earl’s wife, die 
is a conntefs; if a knight’s wife, a lady ; and, if he be an 
alien and made a denizen, the wife is fo likewife. 39 Hen.V I, 
45. 4 Hen. VII. 31. Bro. 499. 
There being divers advantages by marriage, to the man 
and the woman ; therefore, on promife of marriage, da¬ 
mages may be recovered, if either party refufe to marry ; 
but the promife mud be mutual on both fides, to ground 
the aftion ; and, if the plaintiff prove an offer to marry 
defendant, and refufal by defendant, or if defendant marry 
another, whereby performance of the promife is, in law, 
rendered impoffible, action lies, and damages are recover¬ 
able. By the Statute of Frauds, 29 Car. II. c. 3. no ac¬ 
tion fhall be brought upon any agreement on confidera- 
tion of marriage, except it be put in writing, and figned 
by the party to be charged, &c. Mutual promifesof the 
parties to marry each other, are not within the ftatute. 
The chattels, which belonged formerly to the wife, are 
by act of law veiled in the hufband, with the fame degree 
of property, and with the fame powers, as the wife, when 
foie, had over them. This depends entirely on the no¬ 
tion of an unity of perfon betweeen the hufband and wife ; 
it being held that they are one perfon in law ; fo that the 
very being and exiftence of the woman is fufpended during 
the coverture, or entirely merged or incorporated in that 
of the hufband. Hence it follows, that whatever perfonal 
property belonged to the wife before marriage, is, by mar¬ 
riage, abfolutely veiled in the hufband. In a real ejiale, 
he only gains a title to the rents and profits during cover¬ 
ture} for that, depending upon feodal principles, remains 
entire to the wife after the death of her hufband, or to her 
heirs if fhe dies before him; unlefs, by the birth of a 
child, he becomes tenant for life by the curtefy. Bur, in 
chattel interefts, the foie and abfolute property veils in 
the hufband, to be difpofed of at his pleafure, if he choofes 
to take pofleffion of them ; for, unlefs he reduces them to 
poffeflion, by exercifing fome aft of ownerfhip upon them, 
no property veils in him, but they fhall remain to the wife, 
or her reprefentatives, after the coverture is determined. 
There is therefore a very confiderable difference in the 
acquifition of thisfpecies of property by the hufband, ac¬ 
cording to the fubjeft matter; viz. whether it be a chattel 
real, or a chattel perfonal ; and, of chattels perfonal, whe¬ 
ther it be in pojfefjion, or in a Elion only. A chattel real veils 
in the hufband, not abfolutely, but fub modo. As, in cafe 
of a leafe for years, the hufband fhall receive all the rents 
arid profits of it, and may, if he pleafes, fell, lurrender, or 
difpofe of it during the coverture; (Co. Litt. 46.) If he be 
outlawed or attainted, it fhall be forfeited to the king; 
(Plowd. 263.) It is liable to execution for his debts; (Co. 
Litt. -351.) and, if he furvives his wife, it is to all intents 
and purpofes his own ; (Co. Litt. 300.) Yet, if he has 
made no difpofition thereof in his life-time, and dies be¬ 
fore his wife, he cannot difpofe of it by will; (Poph. 5. 
Co. Litt. 551.) for, the hufband having made no alteration 
in the property during his life, it never was transfei*red 
from the vyife ; but after bis ‘death lire fhall remain in 
her ancient pofTeffion, and it lliall not go to his execu¬ 
tors. bo it is alfo of chattels perfonal (or chafes') in aElion ; 
as debts upon bond, contrafts, and the like ; thefe the 
hufband may have if he pleafes; that is, if he reduces 
them into pofTeffion by receiving or recovering them at 
law. And, upon fuch receipt or recovery, they are ab¬ 
folutely and entirely his own ; and fhall go to his exe¬ 
cutors or adminiltrators, or as he (hall bequeath them by 
will, and fhall not re-velt in the wife. But, if he dies be¬ 
fore he has recovered or reduced them into pofleffion, fo 
that at his death they Hill continue chofes in aElion, they 
fhall furvive to the wife; for^jhe hufband never exerted 
the power he had of obtaining an exclufive property in 
them; (Co. Litt. 351.) Thus in both thefe fpecies of 
property the law is the fame, in cafe the wife furvives the 
hufband ; but, in cafe the hufband furvives the wife, the 
law is very different with refpeft to chattels real and chofes 
in aElion ; tor he fhall have the chattel real by furvivorfhip, 
but not the chofe in aElion, (3 Mod. 186.) except in the 
cafe of arrears of rent, due to the wife before her cover¬ 
ture, which, in cafe of her death, are given to the hufband 
by flat. 32 Hen. VIII. c. 37. And the reafon for the ge¬ 
neral law is this: that the hufband is in abfolute pofleffion 
of the chattel real during the coverture, by a kind of joint- 
tenancy with his wife; wherefore the law will not wreft 
it out of his hands, and give it to her reprefentatives j 
though, in cafe he had died firft, it would have furvived 
to the wife, unlefs he thought proper in his life-time to 
alter the pofleffion. But a chofe in aElion fhall not furvive 
to him, becaufe he never was in pofleffion of it at all, 
during the coverture; and the only method he had to 
gain poffeflion of it, was by fuing in his wife’s right; but 
as, after her death, he cannot (as hufband) bring an ac¬ 
tion in her right, becaufe they are no longer one and the 
fame perfon in law, therefore he can never (as fuch) re¬ 
cover the poffeflion. But he (till will be entitled to be 
her adminiflrator ; and may, in that capacity, recover fuch 
things in aftion as became due to her before or during the 
coverture. 
Duty of Marriage, is a term ufed in fome ancient cuf- 
toms, fignifying an obligation on women to marry. To 
underltand this, it mull be obferved, that old maids and 
widows about fixty, who held fees in body, or were charged 
with any perfonal or military fervices, were anciently- 
obliged to marry, to render thofe fervices to the lord by 
their hufbands, or to indemnify the lord for what they 
could not do in perfon. And this was called duty, or fer- 
vice, of marriage. 
Policy of encouraging Marriage. Dr. Halley obferves, 
that the growth and increafe of mankind is not fo much 
(tinted by any thing in the nature of the fpecies, as it is 
from the cautious difficulty mod people make to adven¬ 
ture on the flate of marriage, from the profpect of the 
trouble and chargeoF providing fora family; nor are the 
poorer fort of people herein to be blamed, who, befldes 
themfelves and families, are obliged to work for the pro¬ 
prietors of the lands that feed them ; and of fuch does the 
greater part of mankind confid. Were it not for the 
backwardnefs to marriage, there might be four times as 
many births as we find ; for by computation it appears, 
that of 15,000 perfons above 16 and under 45, of which at 
lead 7000 are women capable of bearing children, there 
are only 1238, or little more than a fixth part, that breed 
yearly; whereas, were they all married, it is highly pro¬ 
bable that 4000 of them bring forth a child every year. 
Therefore, as the drength and glory of a kingdom or date 
confids in the multitude of fubjefts, celibacy above all 
things ought to be difeouraged, as by extraordinary tax¬ 
ing or military fervice; and, on the contrary, thofe who 
have numerous families fliould be allowed certain privi¬ 
leges and immunities, like the jus trium liberorum among; 
the Romans 5 and efpecially, by effectually providing for 
the fubfiftence of the poor. See Jus liberorum, voi. xi„ 
Our modern economics, on the other hand, are rather 
inclined to difeourage marriage, from a fear that the in¬ 
habitants of the earth (of this kingdom at lead) may in¬ 
creafe fader than the means of fupplying them with food. 
But, having already drawn this article to a great length, 
we fhall forbear entering into the difpute. 
MAR'RIAGE, adj. Belonging to wedlock. 
MARRIAGE-ACT', dat. 26 Geo. II. c. 33. Royal, 
dal. 12 Geo. III. c. 11. See Marriage. 
MARRIAGE-AR'TICLE,yi An article or agreement 
in order to marriage* a dipulation between the parties 
3 which 
