The opinion of the Court was drawn up by
Thе question is, whether the replication is an answer to the plea m abatement of coverture of the plaintiff.
If the parties to the mаrriage lived within this Common wealth, it is certain that the facts stated in the replication would not avoid the plea of coverture ; for by the plaintiff’s expulsion from the house of her husband she would have carried with her a credit against him to the extent of her necessary support,
By the statute of New Hampshire respecting marriage and divorce, passed February 17, 1791, among the causes оf divorce from the bonds of matrimony, is where the husband shall willingly absent himself from the wife for the space of three years together, without making suitable provision for her support and maintenance, where it is in his power so to do. And probably where there was an expulsion of the wife from his house, and a continual refusal to admit her, this would be construed to be a voluntary desertion on his part.
Now shall the separation stated in the replication, the plaintiff having come within this Commonwealth and resided here for twenty-three years without any intercourse with her husband, gaining hеr own living by her labor, make her a feme sole within this State ?
In the case of Gregory v. Paul the circumstances of Mrs. Gregory were very similar to those which appear in the present case. Her husband and she were British subjects, living in England, until by his neglect and ill treatment she was induced to leave him and come to this country. She wаs allowed to maintain an action for a legacy, and recover, notwithstanding coverture was pleaded, her husband being alive, the case being assimilated to the English cases of abjuration, exile or transportation ; for though the husband remained at home, and the wife left her home, yet her abandonment of home be ing compulsory, in order to obtain a living by her industry, it was thought her case was brought within the spirit of the rule laid dоwn in the several cases cited in the opinion of the Jourt.
Is there any difference between the case of Gregory v. Paul and the one before us, arising from the political relation or connexiоn between the several States composing the federal union ? By the provision of the constitution of the United States, that the citizens of еach State shall enjoy all the privileges and immunities of the citizens of every other State, are the jurisdictions and governments so amalgamated, that they are not in any respect to be considered as foreign to eacis
Before the adoption of the national constitution, if a husband, of Massachusetts, deserted his wife and removed into another State, making no provision for her, and forbidding her to follow him, assuming a. new marriage relation de facto in his adopted State, the wife remaining here working for her support, he exercising all the rights of a citizen of the other State and never intending to return, would not this amount to an abjurаtion of his native State, so that his wife might have the privileges and be liable to the burdens of a feme sole here ? We think it would. Does then the union of thе States, or the provisions in the constitution referred to, make a difference ? The jurisdiction of the several States as such, are distinct, and in most respects foreign. The constitution of the United States makes the people of the United States subjects of one government quoad every thing within thе national power and jurisdiction, but leaves them subjects of separate and distinct governments. The privileges and immunities secured to the рeople of each State in every other State, can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizеns ; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residencе as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens, that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of such State, eventually enjoy thе full rights of citizenship without the necessity of being naturalized. The constitutional provision referred to is necessarily limited and qualified, for it cannot be pretended that a citizen of Rhode Island coming into this State to live, is ipso facto entitled to the full privileges of a citizen,
This plaintiff was driven from her husband and her home more than twenty years ago. She has all that time acted as a feme sole, and been treated as such by those with whom she has had dealings. Her husband, so far from supporting her, has considered the connexion extinct, and has married and lives with another woman. It is agreed that this separa tian was caused by the cruelty and ill usage of the husband. He hаs obliged the plaintiff to live apart from him, and to get her own living by trading ; and she has sustained herself as a feme sole within this Commonwealth. According tо the decision in the case of Gregory v. Paul,
Rejoinder adjudged bad
See 2 Kent’s Comm. (3d ed.) 149; Montague v. Benedict, 3 Barn. & Cressw. 631; Emery v. Emery, 1 Young & Jerv. 501; Houliston v. Smyth, 3 Bingh. 127; 10 Moore, 482; 2 Carr. & Payne, 22.
See 15 Mass. R. (Rand’s ed.) 35, note a.
See 2 Kent’s Comm. (3d ed ) 154 to 158, Bean v. Morgan, 4 M'Cord, 148.
The principle of the decision in the text has been extended by the Revised Statutes to all cases where a married woman shall come from any other State or country into this State, without her husband, he having never lived with her in this State. C. 77, § 18.