Part 17 (1/2)

--3. No person can lawfully remarry who has a wife or husband living.

Such second marriage is, by the common law, null and void. In some of the states, perhaps in most of them, it is declared _polygamy_, and a state prison offense, except in certain cases; as when the husband or wife of the party who remarries has been long absent, and the party re-marrying does not know the other to have been living within the time; or when the former husband or wife of the party remarrying has been sentenced to imprisonment for life; or when the former marriage has been lawfully annulled or dissolved. If, however, a marriage has been annulled or dissolved for the cause of adultery, the criminal party is, in some states at least, not allowed to remarry.

--4. In some of the cases excepted in the preceding section, the second marriage is merely excusable. Although the party to such marriage is exempt from the _penalty_, yet if the former wife or husband is living, though the fact is unknown, and no divorce has been duly announced, or the first marriage has not been duly annulled; the second marriage is void. Where there is no statute regulation, the common law governs, which is, that nothing but death, or a decree of a competent court, can dissolve the marriage tie.

--5. The manner in which marriages are to be solemnized, and by whom, and the manner in which marriage licenses are to be obtained, or notices of marriage published, (which are required in some states,) are prescribed by the laws of the states in which such regulations exist. Marriages may usually be solemnized by ministers of the gospel, judges, justices of the peace, and certain other officers. But by the common law, a marriage is rendered valid by a simple consent of the parties declared before witnesses, or subsequently acknowledged; or such consent may be inferred from continual cohabitation and reputation as husband and wife.

--6. In law, the husband and wife are regarded as one person. By the common law, the husband, by marriage, acquires a right to the property of the wife which she had before marriage, and which she may acquire after marriage. To her personal property, including debts due her by bond, note, or otherwise, he has an absolute right, and may use and dispose of the same as he pleases. Her chattels real, however, which are leases of land for years, though personal property, he can not dispose of by will; and if he makes no disposition of them during his life time, and she outlives him, she takes them in her own right. If he survives his wife, he acquires an absolute right to them.

--7. But to the real estate of the wife, the husband does not acquire an absolute right. He has only a right to the use, rents, and profits thereof during his life, if he shall die before his wife; and in that event she takes the estate again in her own right. If the wife dies first, and there are no children, her heirs immediately take the estate.

If there are children living, the husband holds the estate for life, and on his death it goes to the wife or her heirs.

--8. But this rule of the common law which gives to the husband the possession and disposal of the property of the wife, has been repealed by special enactments in most of the states. By these state laws, the real and personal property of the wife owned by her before marriage, or conveyed to her by any other person than her husband after marriage, with the rents and profits of such property, is declared to be her own, and at her disposal, and not liable for the debts of her husband, except in a few cases specified in the law of each state. In some of these states, although the property of the wife is not liable for the husband's debts, he has the control and management, and the rents and profits of it.

--9. As the husband, by common law, acquires, by marriage, an interest in the property of his wife, he becomes liable for her debts contracted before marriage; but if they are not recovered of him during coverture, he is discharged _Coverture_, in law, is the state of a married woman, considered as under _cover_, or under the power of her husband. Some of the states which have abolished the common law right of the husband to the property of the wife acquired before marriage, have also abolished the common law obligation of the husband to pay the debts of the wife contracted before marriage; her property alone being liable for such debts.

--10. The husband is bound to maintain his wife, and is liable for debts which she may contract for necessaries, but for nothing more. If he refuses to provide for her wants, or if, through other ill treatment or fault on his part, they become separate, he is liable to fulfill her contracts for necessaries, even though he has forbidden persons to trust her. If they part by consent, and he secures to her a separate maintenance, and pays it according to agreement, he is not liable, even for necessaries.

--11. The husband and wife can not be witnesses for or against each other; but any declarations made by a wife when acting as agent for her husband, may be admitted in evidence against him. In a few states, laws have been proposed, and, it is believed, in some they have been pa.s.sed, removing, to some extent, this restriction upon the right of a husband or wife to the testimony of the other.

Chapter XLIX.

Domestic Relations, continued. Parent and Child; Guardian and Ward; Minors; Masters, Apprentices, and Servants.

--1. Parents, as the natural guardians of their children, are obliged to provide for their support and education during their minority, or while they are under twenty-one years of age. At twenty-one they attain the age of majority, when they are said to be _of age_. Under this age they are, in law, _infants_, or _minors_. The father, if he is able, is bound to support his minor children, even if they have property of their own; but in such case the mother is not so bound. But a husband is not obliged to maintain the child of his wife by a former husband. If, however, he takes the child into his family, he is responsible for its maintenance and education while it lives with him.

--2. A father may be liable for necessaries sold to a child. But to be so liable, it must be proved that the contract for the articles was made by his actual authority, or the circ.u.mstances must be sufficient to imply authority; or that neglect to provide for the child, or some other fault on the part of the father, rendered a.s.sistance to the child necessary.

Being bound to provide for his children, the father has a right to their labor or service; and he may recover their wages from any person employing them without his consent.

--3. In general, a minor cannot bind himself by contract. If he lives with his father or guardian, by whom he is properly supplied, he can not bind himself even for necessaries. But if, on contracting a debt, he agrees to pay it after he shall have become of age, he will then become liable. If a minor has no father or other guardian, his contracts for necessaries are binding upon him.

--4. If a minor takes an estate and agrees to pay rent, he will be liable for its payment after he shall have become of age. If he receives rents, he can not demand them again when of age. If he pays money on a contract, and enjoys the benefit of the contract and then avoids it when he comes of age, he can not recover back the consideration paid. And if he avoids an executed contract when he comes of age, on the grounds of infancy, he must restore the consideration.

--5. Minors are answerable for crimes, and may be indicted and tried, and, on conviction, be fined and imprisoned. They are responsible also for acts of fraud. Their age and the peculiar circ.u.mstances in which they were placed, might be such as to exempt them from liability; but in cases of gross and palpable fraud committed by minors who have arrived at the age of discretion, they would be bound by a contract.

--6. In general, male infants and unmarried females under eighteen years, may, of their own free will, bind themselves, in writing, to serve as _apprentices_ and servants, in any trade or employment; males until the age of twenty-one, and females until the age of eighteen years, or for a shorter time. But the minor must have the consent of the father; or if the father is dead, or disqualified by law, or neglects to provide for his family, consent must be had of the mother; or, if the mother is dead or disqualified, then of the guardian.

--7. Pauper children may be bound out by the officers having charge of the poor. And the laws of many of the states, perhaps of most or all of them, very properly require, that a person, to whom a poor child is bound, shall agree to cause such child to be taught to read and write, and, if a male, to be also instructed in the general rules of arithmetic.

--8. Masters have a right to correct their apprentices with moderation for negligence and misbehavior; and they may recover damage at law of their apprentices for willful absence. On the other hand, a master may be prosecuted for ill usage to his apprentice, and for a breach of his covenant. A master is liable to pay for necessaries for his apprentice, and for medical attendance, but he is not so liable in the case of a hired servant.

--9. When an apprentice becomes immoral and disobedient, an investigation of the matter may be had by the proper authorities; and for good cause the indenture may be annulled, and the parties discharged from their obligations. Upon the death of a master, an apprentices.h.i.+p is dissolved.

--10. There is, it is believed, no statute law in any state, particularly defining the rights and obligations of _hired servants_ and the persons employing them. Both are obliged to fulfill their agreement. If a hired servant leaves the service of his employer, without good cause, before he has worked out the time for which he was hired, he cannot recover his wages. And for immoral conduct, willful disobedience, or habitual neglect, he may be dismissed. On the other hand, ill usage, or any failure on the part of the employer to fulfill his engagement, releases the laborer from his service.