been the practice in England and the United States generally, and in numerous cases. See cases of Lister; Crompton v. Collinson; Rodney v. Chambers, above.

$5. The general principle on which the wife is sued alone. That she may be sued alone in certain cases, is perfectly clear, but eminent judges and lawyers differ as to the principle. For centuries past it has been settled, that she might be sued alone on her contracts, or for her torts, where her husband was banished; so where he was an alien enemy. So where he was transported, though only for seven years; so in modern cases where there is a regular separation by contract, or a judicial divorce from bed and board. On what principle do these cases rest? Those most opposed, as Lord Kenyon &c. to the wife's liability to civil actions, contend she is liable only on the principle her husband is civiliter mortuus, or civilly dead, as where banished, transported &c.; but this principle clearly fails, for most clearly the alien enemy husband is not civiliter mortuus, nor can one be, transported but for seven years, nor in these or even in the case of one banished for life, or exiled is he in fact civilly dead; for his wife cannot marry again, no administration can be granted on his estate, there is no descent of his estate, no dower assigned in it. So are clearly the best authorities. Lord Mansfield and others have rested this liability on cases of separation, and the agreement to live separate, and on her separate maintenance; but the true principle seems to have been not much noticed in the English cases. The true principle is this, barely mentioned by Lawrence J., when he holds she is not liable to be sued alone, because her husband had not renounced his marital rights to her person, society, and services &c.; and by Lord Kenyon when he said, if we allow the wife to be sued alone (in cases of separation) she may be taken in execution and imprisoned alone, and this will be as a divorce.

The true principle is here suggested; for on examining the cases carefully it will be found, she cannot be sued, though living separate, where her husband has not renounced his right to her person. And that she may be sued alone where he has renounced this right, and she may bind herself so as to be sued alone on her contracts, whenever his marital rights are not affected by them and there is no coercion. This is the case of the wife of the alien enemy; and because no rights of her husband can thereby be affected, he being an alien enemy and out of the country, has no right that can be lost or effected by her being sued alone and imprisoned. And it has been well observed, that in the case of Marshall v. Rutton, on which so much stress is laid by some, this right was not renounced. It has been said by Judge Reeve, that she is not

CH. 19.

Art. 1.

CH. 19.
Art. 1.

liable to be sued, alone and imprisoned, because she has a separate maintenance, for if so, this maintenance would be the measure of her liability, and no lawyer contends for this. It is true, her liability may not depend wholly on this maintenance for a reason to be mentioned presently; but I think it cannot be correct to say this maintenance, if any ground of this liability at all, must be the measure of it. For when the question is, if a person shall be liable to be sued or not, the quantity of his property more or less, can never decide the question; if he is capable of having property, the law in deciding this question never can make the quantity of it very material, and this is never done. The mere liability to be imprisoned may be a ground of debts.

I believe we shall find the true principle of her liability to be sued alone and imprisoned, and her separate property taken in execution, if we resort to the true grounds or principles of her exemption while living with her husband. These are, first, because her marriage with him by law deprives her nearly of all property, and means wherewith to satisfy a judgment and execution against her; for by the marriage this law of the land transfers to him absolutely all her personal property in possession, and all her personal earnings, and all the usufructs of her real estate during the coverture; and gives him an absolute power to make his own when he pleases, all her choses in action accruing to her either before or during the marriage, and all her chattels real.

Second, because by the marriage her husband has a right by this law to her person, her society, and her services. Now if she could be sued and imprisoned alone, he might be perpetually deprived of her person, society, and services, and so of all his marital rights, and yet be held to maintain her. The law which regards his rights will not suffer this injustice to be done to him; for as to her property he receives by the marriage, he may receive much, little, or none, and by the same. law of the land she may receive a quid pro quo out of his estate, in dower, maintenance, and otherwise : so property may in the average of cases balance property. Now these being the real grounds of her non-liability while living with him, and doing the duties and receiving the support of a wife, what ought to be the legal and equitable effect of restoring to her her personal earnings, and her property in the form of an adequate separate maintenance at her disposal, and his renouncing his marital rights, as is done in a proper separation? Clearly it ought to be to put her as near as can be into her condition of a feme sole, and this is the very effect of a proper separation with such adequate maintenance, and his marital rights renounced, abandoned, or annulled, by deed or judgment of court; she is

put into the very situation of a feme sole in every respect whatever, except she cannot again marry while he lives, and there is no divorce a vinculo. In fact, her marriage removes her from her condition of a feme sole, in which she is suable as any person is; and her separation on proper terms, with such maintenance, and the marital rights renounced, restores her in all respects to her condition of a feme sole, as it concerns civil actions; for her not being able to marry again certainly can have no effect on these.

The weight of the decisions on this subject is clearly, as we shall see in the detail, in support of this reasoning, and so of this separate liability; but if I am reasoning right, why are so many able judges and lawyers opposed to this liability? I answer, there are and have been as many able judges and lawyers in favour of it.

The real sources of the opposition to this liability, I believe to be two. First, an undue adherence to fictions and old maxims of law. Secondly, religion, morality, and public policy of a rigid cast.

These sources, these fictions of law, merit attention, because perhaps nothing misleads more in the construction of laws, than an undue adherence to old fictions and maxims of law, the reasons of which once existing are now nearly ceased, and moral and religious notions not suited to the existing state of society.

6. Old maxims and fictions. These once adopted for reasons once existing, almost invariably outlive those reasons, especially in the law, their congenial soil. Among the most extraordinary is the old fiction, a wife has no existence and no will. We see its effects in the old action of trespass vi et armis for criminal conversation with the plt's. wife; on this fiction this action instead of case was introduced, and on the idea she was so very destitute of a will, that she could not consent to commit adultery; and therefore, the deft's. criminal connexion with her was wholly an affair of force and violence. On this ground he was viewed as a mere ravisher, and as effecting his purpose altogether by violence, and so trespass vi et armis was the kind of action instituted; yet the next hour this wife might be indicted for adultery, and be considered as having as much distinct existence and will as any other person; swear the peace even against her husband and get him bound over; be heir by descent, real owner of trust estate, act independently in auter droit, &c. &c. What can be more absurd and repugnant to common sense than such a fiction, especially in the present condition of wives? How absurd it is, to consider a wife has no will in her criminal connexion with a man, in conducting the civil action, when the

CH. 19.
Art. 1.

CH. 19.
Art. 1.

criminal law absolutely adjudges she wittingly and willingly receives him to her bed, and is as guilty as he is; and hence, this criminal law invariably and justly punishes her for wickedly and wilfully committing the crime of adultery. The English lawyers in some cases, in order to preserve one absurd fiction, seem to have laboured hard to invent another. Holding to the one, a wife could not convey her real property for want of existence and will, and finding she had always done it by fine or recovery in court, they invented another notion, not having the least foundation in fact, that is, that she in so doing was considered by the court, as a feme sole, when the very record itself of the case shewed she was examined by the court as a wife, and in every breath inquired of, if she was influenced by her husband. In fact, such is the inveterate hold this fiction or notion has ever had on some minds, that they never can view a wife as having any will, any power to contract for herself, so as to be suable alone. Perhaps this notion was once correct, when the law viewed wives almost as their husbands' slaves, and almost incapable of separate property; however this may be, it has in the present state of society in England and the United States, no foundation in fact. Half of the rights of wives now may be claimed in chancery, and near all their rights, when living separate, as by law they may do, may there be claimed and enforced, where they are viewed to most purposes as single women, and may even by prochein ami sue their husbands; and if they have no other trustees of their separate property, have their husbands deemed and held trustees. And even at law, they can, as all agree, take securities for property to any reasonable amount before marriage, keep them during it, and enforce them whenever it is terminated; they can in courts of law, directly and by themselves alone, sue their husbands for alimony, as will appear in many cases stated in this and other chapters; and many other rights wives now have in England and America, which render them almost as independent, as to property and suits, as wives are in France and other countries, that have adopted the Civil Law, as the broad foundation of all their laws.

7. Morality, religion, and public policy. It will be recollected, that as riches of all kinds, and especially personal property, rapidly increased in England in the eighteenth century; so separation of man and wife, with separate maintenances and renunciations of marriage rights, rapidly increased also; but they did not excite any material alarm for a long time; in fact, not till after many judicial decisions, to be cited in the sequel, had been made establishing their legality. However, in process of time, as new notions widely spread in Europe, by some thought liberal, and by some loose and pernicious, the

final effects of which were seen in the approach and progress of the French revolution, some judges and lawyers more rigid in their morals and religion, and of course more so as to family order and public policy, became more opposed to these separations, and their natural consequences, the breaking up of many families, and so family order. They found, however, their legality was established by numerous precedents that could not be overturned; but these judges and lawyers were not so bound but that they might express opinions, that it had been better if originally the decisions had been the other way, and against their legality. These opinions they occasionally did express. It became natural for them to seize every allowable pretence to discountenance them, and as often, in making them, the marital rights were not clearly, fully, and permanently renounced, and the rights of separate property were not fully and permanently restored the wife, so as to restore her condition of a feme sole in all things but marrying again, whence the reasons of her liability to be sued alone, insome points failed; it was natural for judges &c., on principle opposed to such separations vastly multiplied, to seize on these defects in the articles of separation, to discountenance these modern inroads on the marriage state; and one way was as in Marshall v. Rutton, to hold the wife separated not capable to contract, so as to be alone suable, as this at once placed her in a humble subjected state in which no one would trust her; a state in which her friends would not be much inclined to place her. It must be admitted, that this wife ought not to be suable as a feme sole, until she is restored to the condition of one in relation to her husband, that is, until she has the rights of a feme sole as to her separate property, and rendered no longer liable to have her person, society, or personal services ever after claimed by her husband. Now, upon a close examination it will be found, that in Rutton's case, and in every case in which the decision has been against this separate liability of the wife, there have existed one or both of these defects in the articles of separation. Either her separate maintenance has been clearly inadequate, and a mere fraud upon her, or not effectually, or not permanently secured to her, or her husband has retained some right at some time to seize her person, or to claim it with her society, and of course her services. In either case the reason of this her liability fails. It is true, though such defects have been so discoverable in these cases, they have not always been expressly mentioned by the judges in giving their opinions. On the whole, it is very clear the cases of Barwell v. Brooks, Ringstead v. Lady Lanesborough, Corbitt v. Pilnorts, &c. remain unshaken, if we examine the cases

CH. 19.

Art. 1.