[Sidenote:  Dissolution of marriage.]

Having established the marriage relation, it could only be dissolved by death or divorce granted by act of parliament, or, in this country after the declaration of independence, by act of legislature.  No absolute divorce could be granted for any cause arising after the marriage, but a separation might be decreed in case of adultery by either party.

[Sidenote:  Subjection of married women.]

By the rules of the common law, the person and property of women were under the absolute control of their husbands.  The maxim, Uxor non est juris, sed sub potestate viri, “a wife is not her own mistress, but is under the power of her husband,” is but an expression of the actual legal status of a woman from the instant she entered the matrimonial state, until released therefrom by death or divorce.

[Sidenote:  Legally dead.]

Marriage was the act by which she ceased to have a legal existence, by which, we are told, her very being became incorporated or consolidated into that of her husband.  From the time her identity became thus merged, she was presumed by the law to be under the protection and influence of her husband, to be so absolutely and entirely one person with him, that she had henceforth no life in law apart from his.

[Sidenote:  Unity of person.]

The legal fiction of the unity of the persons of husband and wife dates back to feudal times, and may, perhaps, have been a necessity of the age and of the peculiar social and political systems of that period.  Like many another law having its inception in a sincere desire to secure the greatest good to the greatest number, and apparently necessary for that purpose at the period of social development which gave it birth, it existed for centuries after it had ceased to result in any benefit or afford any protection, and after the reason for its being had passed away and been forgotten.

[Sidenote:  Power of husband.]

We are told that at marriage the husband “adopted his wife and her circumstances together.”  He might exercise his power over her person by restraining her of her liberty in case of gross misbehavior, or by giving her moderate chastisement in the same degree that he might administer correction to his children.  An early decision of one of our state courts interpreted this to mean that a man might whip his wife with a switch as large as his finger, but not larger than his thumb, without being guilty of an assault.

[Sidenote:  Disabilities.]

Husband and wife being one person could not contract nor enter into a business partnership with each other; neither could one convey property to the other without the intervention of a third party.  The wife was incapable of receiving a legacy unless it was willed to another person as trustee, for her use and benefit, and if a legacy were paid directly to her, the husband could compel the executor to pay it again to him.