return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, ftill claim and exert their antient privilege; and the courts of law will still permit a husband to restrain a wife of her liberty, in cafe of any grofs mifbehaviour.

By marriage the whole property of the wife belongs to the hufband, but it is customary to guard against the effects of caprice, diffipation, or misfortune, by a contract entered into before marriage, by which eftates or fums of money are vested in the names of truftees, whofe duty it is to preferve them free from the debts, engagements, or controul of the husband, for the ufe and benefit of the wife during her life, and fubfequently of her children, or in fuch other mode as the parties and their parents, guardians, or friends have agreed, and this is called a marriage fettlement. Where no fuch fettlement is made, or where it is not exprefsly stated to be in bar of dower, or thirds at the common law, the wife on the death of her husband is intitled to dower that is to fay, to the third part of all the lands and tenements whereof he was feized at any time during the coverture, to hold for herfelf, during her natural life. To this rule of endowment there are fome inconfiderable limitations and exceptions, but it is in general fo extenfive, that if the hufband poffefs the eftates though but a fingle moment, the wife fhall be endowed; and if he alienates them, they are ftill liable to dower copyhold cftates are not fo, being only at the lord's will; unlefs by fpecial cuftom of the manor, in which cafe it is ufually called the widow's free bench. To gain this benefit the woman must be the actual wife of the party at the time of his deceafe. If divorced a vinculo matrimonii, fhe cannot be endowed; but a divorce a menfa et thoro only, does not deftroy the dower. Elopement and living with an adulterer deprive her of this benefit, unlefs her husband be reconciled and bring her back to live with him.

If a woman is feifed of any eftate for life, and a man marries her, has a child by her which is born alive, and fhe dies, the furviving widower holds the eftate for his life, to the prejudice of the perfon who ought to have fucceeded to it; he is then called tenant, by the courtesy of England.

DIVORCE. Marriage is intended to laft during the jointlives of the parties, but divorces may be obtained for various causes. They are of two forts, the one a menfa et thoro, which enables the parties to live feparately, but not to contract matrimony elfewhere; the other, a vinculo matrimonii, which utterly diffolves or declares null the marriage tie, and allows each party to act as if the rites of wedlock had never been performed.

Pre-contract is efteemed a caufe of divorce a vinculo; but it

can

can hardly exist in its more pure fenfe fince the marriage act, which forbids the proceeding in the ecclefiaftical court, on any fuch fuppofed contract; but where marriage has actually taken effect, and where one of the parties has married again after a feven years abfence, or on a generally accredited report of the death of the abfentee; the fecond contract would be void, and the children illegitimate.

Confanguinity or affinity, within the prohibited degrees, afford ground for a fimilar fentence attended with the fame confequences.

Frigidity or impotence, frustrating the original cause of the marriage contract, is likewise a foundation for a divorce a vinculo; but this defect must have been original and conftant, for if it has fupervened after marriage, it is not a matter of which any court can take cognizance.

Cruelty on the part of the husband, or his living in adultery, or being guilty of practices repugnant to nature, are good reafons for granting a divorce a menfa et thoro, at the fuit of the wife.

Adultery of the wife is the foundation only of a divorce a menfa et thoro, in the ecclefiaftical courts; nor will even that be granted if the recriminates, and proves that her husband was indulging in the fame irregularities. If his conduct is not open to this cenfure, or to the imputation of cruelty or gross neglect, he can, not only obtain this feparation, but damages from him who has committed adultery with his wife, and verdicts on this account have been given to a very great amount. After the husband has purfued these two courfes, he can apply to parliament, for an act divorcing him intirely from his unfaithful wife, and leaving him free to contract elsewhere. But parliament in exercifing this extraordinary power, fhew a great degree of jealoufy and caution; they rigidly infift on the divorce in the ecclefiaftical court; and damages in a court at Westminster being obtained, they re-examine the witneffes to prove all the material facts in the cafe; and they take every precaution that can be reasonably devifed, to affure themselves that there is no collufion among the parties, and that the application to them does not proceed from reftle finefs of inclination, or love of change.

In cafe of divorce a menfa et thoro, the law gives the wife alimony, or an allowance out of the husband's estate for her fupport. It is fettled at the difcretion of the ecclefiaftical judge, on confideration of all the circumstances of the cafe. This is fometimes called the wife's eftovers for recovery of which, there is (befides the ordinary procefs of excommunica tion,) a writ at common law de eftoveriis habendis. It is generally proportioned to the rank and quality of the parties; but in cafe of elopement, and living with an adulterer, the law

allows

allows to the wife no alimony. In modern times the neceffity of fuch applications to judges and courts, is frequently prevented by the marriage fettlement, which fixes a fum under the name of feparate maintenance, to be allowed to the wife in cafe of thofe incompatibilities of temper, or irregularities of conduct which may occafion feparations.

Elopement is the culpable act of a woman, voluntarily leaving her husband; or continuing to absent herself from him by her own confent, after an original leaving by force. However immodest a wife's conduct may be, yet while the co-habits with her husband, he is bound to fupply her with neceffaries, and to pay for them; for he took her for better for worse: fo if he runs away from her, or turns her away; but if she goes away from him; when fuch feparation becomes notorious, whoever gives her credit, does it at his peril, for the husband is not liable, unless he takes her again; in which case all her legal claims are revived. If husband and wife feparate by confent, he making her a separate allowance, and the fact being publicly and commonly known, no perfon fupplying her, even with neceflaries, can afterward have recourfe to him for payment; but if a husband turns his wife away without her confent, he must be answerable for the debts fhe incurs.

BASTARDS. In this term are included all children born out of lawful matrimony, even though their putative parents afterward marry; and all those born of parents who are divorced for polygamy, confanguinity, or affinity; but if either of the parties who have married within the prohibited degrees, dies before fentence of divorce, the contract remains unimpeachable in itself and the iffue are legitimate. In wedlock fome cafes are admitted in which the children are reputed baftards; as impotency of the husband, or where it can be proved that he has not had accefs to his wife for a certain term; it was in old times fettled that if both were within the four feas, accefs fhould be prefumed, but modera decifions have more wifely established, that accefs fhould be matter of evidence, and left to the determination of a jury.

A baftard is in law the child of nobody; but this definition does not hold to such an extent, as to fanction acts evidently criminal. He has no parent from whom he can claim inheitance; if he dies unmarried and inteftate, his brothers, or any of the defcendants of his father or mother, cannot inherit his property, but it lapfes to the patentee or grantee of the crown; but yet a baftard cannot marry his mother, or his baftard fifter; for though the law does not acknowledge his affinities, nature does, and her law must not be counteracted. The ftatutes have made many provifions, for preventing baftard

children

children from becoming chargeable to parishes, and they give power to magiftrates to commit the fathers and mothers to the houfe of correction; and the ecclefiaftical court may subject the offenders to penance.

Such are the chief ecclefiaftical rites, and the duties and contingencies arifing from them.

ECCLESIASTICAL OFFENCES AND PUNISHMENTS. Thefe of fences may be equally committed by the clergy and laity; but as the clerical character is a high aggravation, the ecclefiaftical courts punish with greater feverity delinquents of that class.

SIMONY. The name of this offence is derived from Simon the forcerer, mentioned in the Acts of the Apostles, as endeavouring to purchase for money the gift of the Holy Ghoft. It is defined to be the buying or felling of holy orders, or of any ecclefiaftical dignity of promotion. This was by the canon law a very grievous crime; and fo much the more odious, becaufe, as Sir Edward Coke obferves, it is ever accompanied with perjury; for the prefentee is fworn to have committed no fimony. The canons being found infufficient to inforce adequate punishment, an act was pafled 31 Eliz. c. 6. defining the offence in very explicit and copious terms, and ordaining that the presentation fhould be void, and the turn lapfe to the crown, the grantor to forfeit befides, double the amount of one year's value of the benefice, and the clerk fo corruptly taking or feeking it was difabled to hold that benefice. Any perfon, for any reward or benefit direct or indirect, admitting, inftituting, inftalling, inducting, invefting or placing a man in a benefice or dignity, forfeits double the value of one year's profit; the benefice or dignity to become void, and the patron to be at liberty to prefent anew. A refignation or exchange for money, or a corrupt motive, fubjects both giver and receiver to a penalty of double the fum. The perfon taking a reward beyond the ordinary fees for giving orders, or licence to preach, to forfeit 40/., and the perfon fo receiving orders or licence to forfeit 10/.; and any benefice conferred on him within seven years after his fo entering into the miniftry to be void, and the patron to prefent again. The penalties mentioned in this act are to be paid in equal parts, to the crown and to the informer. Doubts having arifen whether this ftatute extended to a clerk, purchafing the next prefentation to a benefice while it was full, it was enacted by 12 Anne, c. 12. that such transactions should be deemed fimoniacal, and the fame penalties incurred as if the agreement had been made after the vacancy of the benefice. Thefe ftatutes, it is to be obferved, extend only to presentations, but not to advowfons, which being a temporal inheritance, may be conveyed like others of the fame

clafs;

clafs; but if an advowfon is granted during the vacancy of a benefice, the turn to that prefentation is not included in the grant.

Bonds of refignation have been held to be intimately connected with fimony; they are of two forts, general and special. General bonds conditioned for the refignation of the living on the request of the patron, were declared to be legal by a long series of decifions in all the courts; but in a cafe which occurred in 1783, after the validity of fuch a bond had been eftablished in the courts of Common Pleas, and King's Bench, their judgment was reverfed on a writ of error in the House of Lords; the lord chancellor Thurlow, and the bishops strenuously exerting themselves against fuch bonds, and maintaining their illegality, although their opinion was directly contrary to that of all the judges, except baron Eyre. This decifion has not hindered the court of King's Bench from giving judgment in a subsequent cafe, that a bond given to refign a rectory when the patron's fon came of age, and to keep the chancel and rectory in repair, was valid; but as the condition of this bond was fpecial, it was expected that the House of Lords if the cafe was carried there, would allow the principle of their former decifion to be reargued. But however good fuch bonds might be in law, the courts of Equity have always interfered to restrain an improper ufe of them, as when the patron ufed his bond as a threatening inducement to the parfon to forbear demanding his tythes or dues of a parishioner, or when the party in whofe favour the refignation was intended to be, came of age, but instead of the living, compelled the incumbent to grant him an annuity; in fuch cases perpetual injunctions have been granted.

BLASPHEMY AND PROFANENESS. All blafphemies against God, as denying his being or providence; and all contumelious reproaches of Jefus Chrift; all profane fcoffing at the holy fcripture, or expofing any part thereof to contempt or ridicule; all impoftures in religion, as falfely pretending to extraordinary commiffions from God, and terrifying or abufing the people with falfe denunciations of judgments; and all open lewdnefs, grofsly fcandalous, tend to fubvert religion or morality, which are the foundation of government, and are therefore punishable by the temporal judges with fine and imprisonment, and alfo fuch corporeal infamous punishment, as to the court in its difcretion fhall feem meet, according to the heinousness of the crime. Alfo, feditious words, in derogation of the established religion, are indictable, as tending to a breach of the peace; as these, "your religion is a new religion; preaching is but prattling, and prayer once a day is more VOL. I. edifying."

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