riage must be a Christian, which means a monogamous, marriage (n).

In order to facilitate the celebration abroad of the marriages of British subjects, various Acts have been passed (o). These Acts were repealed, and with certain amendments re-enacted, by the Foreign Marriage Act, 1892 (p), by which any marriage solemnized abroad in accordance with its provisions is declared valid, if one at least of the parties thereto is a British subject. A marriage under this Act must be celebrated with open doors in the presence of a "marriage officer" and two witnesses, either according to the rites of the Church of England, or according to such form as the parties may think fit to adopt, provided that the same words are used as are prescribed by s. 20 of the Marriage Act, 1836. "marriage officer," within the meaning of this Act, is appointed either by a marriage warrant signed by a Secretary of State, or by his Majesty in Council, and is usually a British ambassador or consul, governor or high commissioner, or similar officer, or, in the case of marriages celebrated on board one of his commanding officer of the ship. must be the official house of the last-mentioned case, the ship of which he is commander. The Act contains provisions as to the giving of notice, the requirement of consent in the case of infants, registration and the like matters, corresponding to those applicable in the case of marriages celebrated in England. The Act

mith, 187; Dalrymple v. Dalrymple (1811), 2 Hagg. Con. 54; Swift v. Kelly (1835), 3 Knapp. 257; Co. Litt. by Harg. 79 b, n. (1).

(n) Bethell v. Hildyard (1888), 38 C. D. 220; Brinkley v. Att.Gen. (1890), 15 P. D. 76.

(0) Marriages Validity Act, 1823 (4 Geo. 4, c. 91); Consular Marriage Act, 1849 (12 & 13 Vict.

Majesty's ships (9), the The place of celebration marriage officer, or in the

c. 68); Consular Marriage Act, 1868 (31 & 32 Vict. c. 61); Marriage Act, 1890 (53 & 54 Vict. c. 47) Foreign Marriage Act, 1891 (54 & 55 Vict. c. 74).

(p) 55 & 56 Vict. c. 23.

(a) Cf. as to marriages on board a man-of-war, Culling v. Culling, [1896] P. 116; and 42 & 43 Viet. e. 29.

also declares the validity of marriages celebrated within the lines of a British army serving abroad, by a chaplain or other person officiating under the order of the commanding officer (r). By the Registration of Births, Deaths, and Marriages (Army) Act, 1879 (s), provision has been made for the registration of marriages celebrated abroad of the officers and soldiers of his Majesty's land forces.

As regards marriages celebrated abroad within any of his Majesty's possessions, it is provided by the Colonial Marriages Act, 1865 (t), that any law passed by the legislative body in such possession for the purpose of establishing the validity of any marriage solemnized therein, shall give to such marriage the same validity out of the limits of such possession as it would, previously to the Act, have given within those limits; provided, however, that no marriage shall be thereby made valid, unless the parties thereto were competent to contract the same according to the law of England.

II. The legal effect of the relation of husband and wife.-[For some purposes, the husband and wife become, by their marriage, a single person in the eye of the law (u); and it was accordingly a principle of the old common law, that a man could not grant anything to his wife, or enter into any covenant with her (...). No action could be brought by either of them against the other; and all compacts between them, made before marriage, were avoided (or at least suspended) by their intermarrying (y).

[The husband, however, might have granted to or contracted with a trustee for his wife; and, by conveying land to a third person to her use, he might have conferred upon her the legal estate in the land. Also, he might have devised or bequeathed anything to her by will; for his will did not take effect till the union was severed by his death (). Also, where the wife acted in the execution of a mere power or authority, she might have conveyed an estate to her husband; e.g., if she had authority under a will to sell, she might have effectually sold to him (a). And she might have been agent for her husband; for that implied no separation from, but was rather a representation of, her lord (b).]

The principle of the unity of husband and wife would appear to be inapplicable as between a Queen Regnant and her Consort, though in two cases it was deemed necessary to exclude by statute the Consort from any interest in the Queen's property (c). And the wife of the King of England "is of capacity to grant and to take, sue and be sued, as a "feme sole, at the common law" (d).

It long remained a fundamental rule in our law of evidence, that husbands and wives could not in trials of any sort, whether civil or criminal, be received as witnesses for or against each other (e), excepting that in a criminal prosecution against the husband for treason, or for violence to the person of his wife, the evidence of the latter was admitted (ƒ). But in modern times, it came to be deemed expedient greatly to relax these rules of the earlier law; and accordingly by the Evidence Amendment Act, 1853, and the Evidence Further Amendment Act, 1869 (g), the husbands and wives of the parties to civil proceedings

(z) Co. Litt. 112 a. (a) Ibid.

(b) 1 Bl. Com. 442; M'George v. Egan (1839), 5 Bing. N. C. 196. (c) 1 Mar. st. 3, c. 2; 3 & 4 Vict. c. 3.

(d) Co. Litt. 133 a.

(e) Hawkins, P. C. b. 2, ch. 46,

s. 16; 1 Hale, P. C. 301; Wedg wood v. Hartley (1839), 10 Ad. & El. 619.

(f) Lord Audley's Case, Str. 633; Hale, ubi sup. ; 1 East, P. C. 454.

(g) 16 & 17 Vict. c. 83; 32 & 33 Vict. c. 68.

(including proceedings instituted in consequence of adultery) were made both competent and compellable to give evidence.

As regards criminal proceedings, the incompetence of husband and wife to give evidence has been only partially removed. In the first place, in a small number of cases, husband and wife have been made both competent and compellable witnesses. This class comprises proceedings which are only in form criminal; such as indictments for the non-repair of highways (Evidence Act, 1877 (h) ), and also proceedings under the Married Women's Property Acts, 1882 and 1884 (i), in respect of offences by husband and wife against each other's property. In the latter case, however, a defendant is not compellable to give evidence. In the second place, in a considerable class of cases, husband and wife are competent witnesses both for prosecution and for the defence, but are not compellable to give evidence. This class includes (inter alia) proceedings under the Offences against the Person Act, 1861, the Criminal Law Amendment Act, 1885, and the Prevention of Cruelty to Children Act, 1894 (k). Thirdly, by the Criminal Evidence Act, 1898 (1), husbands and wives are made competent witnesses for the defence as regards criminal proceedings generally. It must also be remembered that, as regards proceedings, whether civil or criminal, the rule still holds, that no husband or wife is compellable to disclose any communication made to him or her by the other during the marriage (m).

[But though the wife was antiently considered in law for most purposes as the same person with her husband, she was for other purposes held to be a distinct person;

(h) 40 & 41 Vict. c. 14.

(i) 45 & 46 Vict. c. 75, ss. 12, 16; and 47 & 48 Vict. c. 14; see Reg. V. Brittleton (1884), 12 Q. B. D. 266.

(k) 24 & 25 Vict. C.

100,

ss. 48-55; 48 & 49 Vict. c. 69; 57 & 58 Vict. c. 41; and see 61 & 62 Vict. c. 36, s. 4, and Schedule.

(7) 61 & 62 Vict. c. 36, s. 1. (m) 16 & 17 Vict. c. 83, s. 3; 61 & 62 Vict. c. 36, s. 1 (d).

[but even so, she was deemed subordinate, being under his cover, protection, and influence. She was therefore called, in our law-French, a feme coverte, or in Latin, femina viro cooperta; and her condition during marriage was and still is called her coverture (n).] We have now to consider the effect of such coverture, in respect 1. Of her person; 2. Of her property; and 3. Of her contracts and other transactions.

1. As to the wife's person.-It was formerly thought, that the custody of this belongs of right to her husband (0); and by some antient authorities it was even considered that he might give her moderate correction (p), though in the reign of Charles the Second, the power of correction began to be doubted (q). But in more recent times it has been held that a husband has no such right to the custody of his wife as a parent has to the custody of a child; and the court has refused to grant a habeas corpus on the application of a husband, in order to restore to his custody a wife who was voluntarily living apart from him (r). So, too, a husband is not entitled to imprison his wife in order to enforce restitution of conjugal rights (8), nor can a decree for such restitution be now enforced by attachment (t). But it is possibly the case that our law still permits a husband to restrain his wife of her liberty, in case of gross misbehaviour, or at any rate as a means of preventing such misbehaviour (u).

2. As to the wife's property. By the common law, any freehold estate of which the wife was seised at the time of

(n) But see as to the true meaning of the phrase feme coverte, Pollock & Maitland, ii. 404 (n). (0) In re Cochrane (1840), 8 Dowl. 635.

(p) Moore, 874; F. N. B. 80. (q) 1 Sid. 113; Lord Leigh's Case (1674), 3 Keb. 433.

(r) R. v. Leggatt (1852), 18 Q. B.

781.

(s) R. v. Jackson, [1891]1 Q. B. 671.

(t) Matrin.onial Causes Act, 1884 (47 & 48 Vict. c. 68).

(u) Child v. Hardyman (1731), 2 Str. 875: R. v. Jackson, ubi supra.