1st, Obliged to provide for his wife out of his fortune, or her own
that he has taken into his custody, of what the court calls
"necessaries,"--these again, of course, to be dependent on the "_man's
notion_"! and,--
2d, Becomes liable for her frauds and torts during coverture,--the law
understanding, as well as a merchant, that it is useless to "sue a
broken bench."
The _indulgence_ of the law toward the wife, we are then told, is
founded on the idea of force exercised by the husband; a presumption
only, which may be repelled. What this indulgence is, we may well be
puzzled to guess, unless the phrase indicate that she is not to be
prosecuted for theft, where _both_ are guilty; and yet, if the
presumption that he compelled her to steal be _repelled_, she _may_ be
prosecuted, and found guilty.
A wife cannot devise her lands by will; nor can she make a testament of
chattels, except it be of those which she holds _en autre droit_,
without the license of her husband. It is not strictly a will, then,
only an appointment, which the husband is bound to allow (vol. ii. p.
170).
The laws are essentially the same in Pennsylvania, Virginia, North
Carolina, South Carolina, Kentucky, and New York; in the latter State,
of course, only as applicable to marriages contracted before the passage
of the new bill. It is the same in all the States, with one or two
Western exceptions; because the passage of a new law never annuls
_pre-existing_ contracts. In consequence, practice becomes contradictory
and intricate; and most lawyers not only _feel_, but _show_, a great
dislike to new laws on that account.
In regard to marriage and divorce, Kent says that the English practice
was, not to grant divorce for unfaithfulness on the part of the
_husband_; and the early settlers of Massachusetts made the same
distinction, creating a difference at the very outset in the moral
responsibility of the two, fatal alike to happiness and civilization.
In 1840, the policy of South Carolina continued so strict, that there
had been no instance, since the Revolution, of a divorce pronounced by a
court of justice, or an act of the legislature.
In Massachusetts, the law was, that divorce could only be had for
criminality. In Vermont, New Jersey, Kentucky, Mississippi, and
Michigan, divorce from "bed and board" may be had for extreme cruelty;
and, in Michigan, for wilful desertion for three years.
In Indiana, it is rendered for any cause, at the judgment of the court.
In Illinois, divorce may be had for the usual causes, and for
drunkenness or cruelty, or such other cause as the court shall think
right; and, in such cases, the wife does not lose her dower. These
differences in statute law indicate, one would think, a variety
sufficient to test in time all the theories of reformers and
experimentalists.