that this legal rule, as to the power of revocation in either party, rested on the reason, that separation was contrary to the duties of the married state, of which the object was, that the parties should live together that for the attainment of this object, the law allowed either party to revoke expressly, and even held the contract of separation voided, ipso facto, if they actually came together again. But it was observed by the court, in deciding the case referred to, this rule of law could not apply, where the reason of it was inapplicable, where the parties would not or could not live together: that supposing, for instance, one party revoked, but yet refused adherence, such a revocation seemed to receive no support from the law; and there appeared to be just as little reason for giving effect to a revocation made after one of the parties was dead, when all adherence was out of the question, when the effect of the contract, in separating the parties, had had its full completion, and was exhausted. Upon these principles, it was decided, that a voluntary contract of separation was not revocable by the wife after the death of her husband; and that as little so was an exclusion therein contained of the wife's legal provisions in the event of the dissolution of the marriage, though these were more valuable than the provisions of the contract, the difference, however, not being so great, as to render the contract grossly unequal. (a) The law of England does not give effect to deeds by which the parties contemplate their future separation. It recognizes no power in them to vary the rights and duties growing out of the marriage contract, or to effect at their pleasure a partial dissolution of that contract. "It should seem to follow," says an eminent judge, “that the court would not acknowledge the validity of any (a) Bell, 22 Feb. 1812, Fac. Coll. Palmer, 25 Jan. 1810, Fac. Coll. Ersk. Inst. vol. 1, b. 1, tit. 6, n. 30, 31, note. Stair, b. 1, tit. 4, n. 22, note. stipulation that is merely accessary to an agreement for separation. The object of the covenants between the husband and the trustee, is to give efficacy to the agreement between the husband and the wife; and it does seem rather strange, that the auxiliary agreement should be enforced, while the principal agreement is held to be contrary to the spirit, and the policy, of the law. It has, however, been held, that engagements entered into between the husband and a third party shall be held valid and binding, although they originate out of, and relate to, that unauthorized state of separation, in which the husband and wife have endeavoured to place themselves. I have, therefore, only to repeat what the Lord Chancellor has said in the case of Lord St. John v. Lady St. John. (a) If this were res integra, untouched by dictum or decision, I would not have permitted such a covenant to be the foundation of an action or a suit in this Court. But if dicta have followed dicta, or decision has followed decision, to the extent of settling the law, I cannot, upon any doubt of mine, as to what ought originally to have been the decision, shake what is the settled law upon the subject.'" (b) These deeds, therefore, however invalid, as between the husband and wife, are sustained, so far as they relate to the trusts and covenants by which the husband makes a provision for the wife, and the trustees indemnify the husband. (c) The effect of deeds of separation has been materially qualified by the decision in the case of Marshall v. Rutton, (d) that a deed of separation does not relieve (a) 11 Ves. 537. (b) Worrall v. Jacob, 3 Merriv. Rep. p. 268. Rodney v. Chambers, 2 East, Hoare v. Hoare, 2 Ridg. Parl. Ca. in Ireland, 268. Durant v. Titley, 283. 7 Price, 577. Chambers v. Caulfield, 6 East, 244. Bateman (c) Nunn v. Wilsmore, 8 T. R. 521. Gawden v. Draper, 2 Ventr. 217. Leech v. Beer, 3 Keb. 363. Stephens and Olive, 2 Bro. C. C.90. v. Ross, 1 Dow, 235. Jee v. Thurlow, 2 Bar. and Cres. 547. Newman, 4 Bar. and Ald. 419. (d) 8 Term Rep. 545. the wife from the legal disabilities of coverture; and by that in the case of Legard v. Johnson, (a) that an agreement for a separate provision between the husband and wife alone is void, from her incapacity to contract. These deeds generally contain provisions for securing the continuance of the separation, for the remainder of their lives, or until they shall mutually consent to resume cohabitation; and for this purpose, it is stipulated, that no suit shall be instituted for the restitution of conjugal rights, and that the husband shall exercise no personal control over his wife. Provisions of this description are, in the ecclesiastical courts, held to be void, and constitute no objection to a suit for restitution of conjugal rights. (b) They can, of course, have no effect in the courts of civil jurisdiction against the wife personally, and it is difficult to understand, how they can be enforced against the husband, or the wife's trustees, consistently with the dicta laid down in Marshall v. Rutton, that the husband and wife cannot by agreement change their legal capacities and characters. It has been sometimes mentioned as doubtful, whether the husband's covenant not to sue for restitution of conjugal rights could be enforced by prohibition or injunction. (c) In Westmeath v. Westmeath, the lord chancellor said he believed that such an injunction had been granted in the time of Lord Bathurst, but that it was the only instance. From the manner in which the point has been spoken of, it may be inferred, that the courts would now be unwilling to entertain this jurisdiction. (d) Deeds of separation sometimes contain a covenant on (a) 3 Ves. 352. (b) Mortimer v. Mortimer, 2 Hagg. Cons. Rep. 318. 2 Add. 285. Sullivan v. Sullivan, 2 Add. 299. Barker v. Barker, (c) 8 T. R. 546. 2 Cox, 107. 3 Bro. C. C. 620. 11 Ves. 533. Butler's Case, 1 Freem. 282. (d) 2 Swan. 413. Westmeath v. Westmeath, 1 Jacob's Rep. 126. 2 Dick. 791. 3 Mer. 268. the part of the husband to resign the children of the marriage, or some of them, to the care of the wife, but the legality of such a covenant has been questioned. (a) "The father has control over them by the law; as the law imposes upon him, with reference to the public welfare, most important duties as to them. If the husband can contract with his wife, who cannot law contract with him, (and in this instance the contract as to the children is between the husband and wife only,) it deserves great consideration, before a court of law should by habeas corpus upon an unilateral covenant, as the Scotch call it, take from him the custody and control of his children, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands of his wife.” (b) The preceding observations are intended to apply to those civil capacities and incapacities of married persons which are strictly personal, and relate to personal contracts, and not to those which regard the administration, sale, hypothecation, or other disposition of their property, or the liabilities of the husband and wife, and the property of either, in respect of debts contracted by them before their marriage, or during the coverture. It is conceived more proper, that the latter species of capacities and liabilities should be considered in connection with the rights of the husband and wife in the property of each other. It will be found, that the selection of the law to which the decision of those capacities, liabilities, and rights should be referred, will be greatly influenced by their relation to property real, or personal. (a) 11 Ves. 531. 2 Bro. C. C. 500. 1 Vern. 442. Villareal v. Mellish, 2 Swan, 533. (b) Lord St. John v. Lady St. John, 11 Ves. 531. Powel v. Cleaver, Lecone v. Sheires, SECTION II. THE LAW WHICH DECIDES ON THE CIVIL CAPACITIES AND INCAPACITIES INCIDENT TO THE STATUS. The law of the country in which the marriage was contracted, is not adopted, in deciding on the marital authority and the wife's incapacity.-Conflict between that law, and the laws of the husband and wife's domiciles before marriage, or the domicile after marriage.-Law of the wife's domicile not adopted, unless it becomes that of the husband.-The husband's domicile before, or at the marriage.-Domicile matrimonial.-On a change of domicile, the law of the actual domicile prevails.-The law in which the obligation is contracted, rejected. It The THE place in which the marriage is celebrated, may not be that of the domicile of either of the parties, before, or at the time of, or after the marriage. may have been resorted to for no other purpose, than that of celebrating the marriage, and they may have quitted it when the ceremony was performed. domicile of the wife may not have been in the same country, as that of her husband. As the laws of the several places in which the marriage was celebrated, and in which the parties were domiciled, may, in respect of the powers which they confer on the husband, and the incapacity to which they subject the wife, be at variance with each other, it is necessary to ascertain, which of these conflicting laws ought to prevail, in deciding on the powers, capacities, and incapacities, incident to their status. It ought always to be remembered, that the question, whether the status has been constituted by means of a legal marriage, is perfectly distinct from the consideration of the rights, powers, and capacities, which the status confers. The enquiry whether the status has been constituted, is answered by the law of the country, in which the marriage was contracted. If by a mar |