Sect. I: On the Study of the Law
Sect. II: Of the Nature of Laws in general
Sect. III: Of the Laws of England
Sect. IV: Of the Countries subject to the Laws of England
Book I: Of the Rights of Persons
Chap. I: Of the absolute Rights of Individuals
Chap. II: Of the Parliament
Chap. III: Of the King, and his Title
Chap. IV: Of the King's royal Family
Chap. V: Of the Councils belonging to the King
Chap. VI: Of the King's Duties
Chap. VII: Of the King's Prerogative
Chap. VIII: Of the King's Revenue
Chap. IX: Of subordinate Magistrates
Chap. X: Of the People, whether Aliens, Denizens, or Natives
Chap. XI: Of the Clergy
Chap. XII: Of the Civil State
Chap. XIII: Of the Military and Maritime States
Chap. XIV: Of Master and Servant
Chap. XV: Of Husband and Wife
Chap. XVI: Of Parent and Child
Chap. XVII: Of Guardian and Ward
Chap. XVIII: Of Corporations
(from chap. I of Book I)
Now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura [= rights]. Both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.
Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are suchas created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.
The rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals and single persons: relative, which, are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.
By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man in intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain and enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws: private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by an civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.
The absolute rights of man, considered as a free agent, endowed with
discernment to know good from evil, and with power of choosing those measures
which appear to him to be most desirable, are usually summed up in one
general appellation, and denominated the natural liberty of mankind. This
natural liberty consists properly in a power of acting as one thinks fit,
without any restraint or control, unless by the law of nature: being a
right inherent in us by birth, and one of the gifts of God to man at this
creation, when he endued him with the faculty of free-will. But every man,
when he enters into society, gives up a part of his natural liberty, as
the price of so valuable a purchase; and, in consideration of receiving
the advantages of mutual commerce, obliges himself to conform to those
laws, which the community has thought proper to establish. And this species
of legal obedience and conformity is infinitely more desirable, than that
wild and savage liberty which is sacrified to obtain it. For no man, that
considers a moment, would wish to retain the absolute and uncontroled power
of doing whatever he pleases; the consequence of which is, that every other
man would also have the same power; and then there would be no security
to individuals in any of the enjoyments of life. Political therefore, or
civil, liberty, which is that of a member of society, is no other than
natural liberty so far restrained by human laws (and no farther) as is
necessary and expedient for the general advantage of the publick. Hence
we may collect that the law, which restrains a man from doing mischief
to his fellow citizens, though it diminishes the natural, increases the
civil liberty of mankind: but every wanton and causeless restraint of the
will of the subject, whether practiced by a monarch, a nobility, or a popular
assembly, is a degree of tyranny. Nay, that even laws themselves, whether
made with or without our consent, if they regulate and constrain our conduct
in matters of mere indifference, without any good end in view, are laws
destructive of liberty: whereas if any public advantage can arise from
observing such precepts, the control of our private inclinations, in one
or two particular points, will conduce to preserve our general freedom
in others of more importance; by supporting that state, of society, which
alone can secure our independence.
(from chap. XV of Book I)
The second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.
... [on that third and last section:]
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; 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: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; 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. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them: but for any thing besides necessaries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person, who furnishes them, is sufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant. There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the real, or is banished: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, "nemo in propria causa testis esse debet;" [=no one ought to be witness in his own cause] and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare." [=no one is bound to accuse himself"]. But where the offence is directed against the person of the wife, this rule has been usually dispensed with: and therefore, by statute of 3 Henry VII, c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact.
In the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband.
But, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion. And in some felonies, and other inferior crimes, committed by her, though constraint of her husband, the law excuses her: but this extends not to treason or murder.
The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, "[here translated:] other than as licitly and reasonably pertains to the husband for the rule and correction of his wife." The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, "[here translated:] with flails and cudgels to beat the wife energetically;" for others, only "[here translated:] to apply limited punishment." But, with us, in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour.
These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.