HUSBAND AND WIFE. The legisla tion of the past 50 or 60 years, beginning with the Married Woman's Property Acts of the 40's in the last century, have profoundly affected the rights and obligations of the parties to a marital contract, with respect to each other as well as with respect to the world at large. But the new legislation has been of the greatest diversity in character so that it is impossible to make a statement of the law that will exactly fit every locality. Moreover, the general rule that a statute does not abrogate the common law, unless such is clearly and irrefragably the intent thereof, makes a knowledge of the ante cedent legal rules essential to an understanding of those which have superseded them in whole or in part. It is the duty of husband and wife to adhere to the marriage contract and cohabit; the husband having the right to determine the place of domicile. If he changes the same the wife must go with him; though in this country the husband is obliged to show a reasonable cause for removing to another abode in order to obligate the wife to follow him. The un reasonable refusal of the wife to follow would be an act of desertion. It is the duty of spouses by mutual forbearance to make a living to gether tolerable. Blackstone would find few subscribers nowadays to his dictum that a hus band may correct his wife by subjecting her to restraint and even to "moderate" corporeal pun ishment. Such restraint and chastisement would have to be very moderate to satisfy modern ideas of ethical or legal propriety. On the other hand, if a wife is a woman of bad temper and provokes her husband's ill-usage, she will not be permitted by law to separate herself from his bed and board; "her remedy in such case is by bettering her own manners." (Warring v. Warring, Haggard Consistorial Reports). If the husband drives his wife from his house by "conduct so abominable that no decent woman would live under the same roof with him,') her departure would not be desertion. Incontinence, of course, would justify the innocent party in leaving the guilty one, and no legal right would be forfeited in consequence of such departure.
Either spouse has a cause of action against any one who entices away or estranges the affections of the other. In England either the husband or the wife may bring suit against the other for a restitution of conjugal rights; actions of this character have not obtained judicial favor in this country, however. • At common law the husband was responsible for the torts of his wife even when committed before marriage. In theory of the law the hus band stood in the position of a universal suc cessor; having succeeded, on marriage, to all the rights of his wife, whether to things in possession or choses in action, he was assumed to have succeeded as well to her obligations, whether ex delicto or ex coneractu. So the hus band alone could proceed to recover damages for an injury, suffered by his wife and was solely responsible for her torts during cover ture. If the wife slandered another lady or horsewhipped a blackguard, the husband had to pay the damages. When a husband thus liable died, the right of action died with him and could not be pursued against the surviving widow or the husband's estate. Even for mis demeanors of a wife, not punishable by im prisonment, the husband alone could be held and prosecuted — and would be compelled to pay the fine. At the present time, and in nearly
all jurisdictions, the husband's liability for the torts and misdemeanors of his wife is more narrowly circumscribed, and is limited to those committed in his presence; the presumption of law being that he coerced or commanded the wife to do what she did, or, at least, that he encouraged or connived in the wrong. The husband, however, can defend himself by show ing the wrong to have been done by the wife against his will. As to higher crimes the com plicity of the husband was also presumed from his presence. The suggestion, however, to ab solve the wife from punishment for a felony committed presumptively under coercion from, or at the command of, the husband never found favor. When a married woman commits treason no presumption of coercive influence over her was deducible from her husband's participation in the crime, because the peculiar dangerousness of this offense to the state re quired from all persons connected with the act the fullest responsibility for their own part therein. Where a man and wife are charged with keeping a brothel, coercive influence from the husband will not be presumed, because in such a case "the wife probably would be the chief manager, and 'to hold her guiltless would be absurd" The presumption of the guilt of the husband from his presence at the commission of a criminal act by the wife could always be re butted, while, nowadays, his partnership in crime would have to be proven like that of any other accomplice. It was a general rule of the com mon law that husband and wife could not bear witness against one another in any action, civil or criminal. The rule was mandatory, not merely a rule of privilege — and was grounded on public policy, which would not be served by the disruption of conjugal relations and the disturbance of domestic tranquillity. From this rule an exception was again made in trials for high treason, in which either party to the mari tal contract could become a competent witness against the other; and where the testimony of the wife was of necessity required, as in the case of personal violence or cruel treatment charged against the husband, she would be a competent witness to prove the facts. In civil actions a wife might testify against her hus band to anything she had done in the capacity of his agent. Modern legislation has brushed most of these disabilities and distinctions aside; and husbands and wives are permitted, and may be compelled, to testify against each other in nearly all kinds of legal proceedings. They are not competent witnesses in suits for divorce on the ground of adultery, nor in actions for criminal conversation, except to prove the fact of marriage. They are permitted but cannot be compelled to testify against each other in crimi nal actions; and they will neither be compelled nor permitted to disclose anything communicated in the confidence of the marital relation. A husband or wife giving harbor, aid and com fort to a spouse who has committed a crime does not thereby become an accessory after the fact. The duty of the husband to protect im plies his right to defend the wife from personal injury; and a battery committed by either in defense of the other is not actionable.