constraint of her husband, the law excuses her; but this extends not to treason or murder. (18) THE husband also (by the old law) might give his wife moderate correction *. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds', and the husband [445] was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinetTM. The civil law gave the husband the same, or a larger, authority over his wife: allowing him for some misdemesnors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere". But, with us, in the politer reign of Charles the second, this power of correction began to be doubted°: and a wife may now have security of the peace against her hus- · band; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim, and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour г. THESE are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England! CHAPTER THE SIXTEENTH. OF PARENT AND CHILD. THE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child. CHILDREN are of two sorts; legitimate and spurious, or bastards; each of which we shall consider in their order; and, first, of legitimate children. 66 I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards. (1) "Pater est quem nuptiae demonstrant," is the rule of the civil law; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us inquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents. 1. AND, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education. THE duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Ff. 2. 4. 5. (1) See post, p. 457. с Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish. By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents. And the president Montesquieu has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children: for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way; - shame, remorse, the constraint of her sex, and the rigour of laws; - that stifle her inclinations to perform this duty; and besides, she generally wants ability. THE municipal laws of all well-regulated states have taken care to enforce this duty: though Providence has done it more effectually than any laws, by implanting in the breast of every parent that natural spy, or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children can totally suppress or extinguish. THE Civil lawd obliges the parent to provide maintenance for his child: and, if he refuses, "judex de ea re cognoscet." Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up, which may justify such disinherison. If the parent alleged no reason, or a bad, or a false one, the child might set the will aside, tanquam testamentum [448] inofficiosum, a testament contrary to the natural duty of the parent. And it is remarkable under what colour the children b L. of N. 1. 4. c. 11. s. 4. d Ff. 25. 3. 5. * Nov. 115. were to move for relief in such a case; by suggesting that the parent had lost the use of his reason, when he made the inofficious testament. And this, as Puffendorf observes', was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. But perhaps this is going rather too far; every man has, or ought to have, by the laws of society, a power over his own property: and, as Grotius very well distinguishes, natural right obliges to give a necessary maintenance to children; but what is more than that they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law. LET us next see what provision our own laws have made for this natural duty. It is a principle of law ", that there is an obligation on every man to provide for those descended from his loins; and the manner, in which this obligation shall be performed, is thus pointed out. The father and mother, grandfather and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter session shall direct (2): and if a parent runs away *, and leaves his children, the churchwardens and overseers of the parish shall seize his rents, goods, and chattels, and dispose of them toward their relief. (3) By the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient abi fl. 4. c.11. § 7. de j. b. & p. l. 2. c. 7. s. 4. n.3. h Raym. 500. iStat. 43 Eliz. c. 2. * Stat. 5 Geo. I. c. 8. (2) The 59 G.3. c.12. gives the same power to any two justices assembled in petty session. (3) The statute does not leave, as might be inferred perhaps from the short statement in the text, a discretion in the parish officers to seize and administer the rents, &c. They must first apply to two justices, who are to grant a warrant, and in that warrant limit the amount to be taken. When the parish officers have seized to that amount, they cannot dispose of it, till the warrant has been confirmed at the quarter sessions, and an order there made for that purpose. See Stable v. Dixon. 6 East.166. [449] lity to keep the child, the husband shall be charged to maintain it': for this being a debt of hers, when single, shall like others extend to charge the husband. But at her death, the relation being dissolved, the husband is under no farther obligation. (4) No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20s. a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent against his will to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. But this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a Jew of immense riches, whose only daughter having embraced Christianity, he turned her out of doors; and on her application for relief, it was held she was entitled to none". (5) But this gave occasion to another statute P, which ordains, that if Jewish parents refuse to allow their protestant children a fitting maintenance suitable to the fortune • Com. Jur.8 R0.24 Mar. 1701. 1 Styles, 283. 2 Bulst. 346. (4) m Stat. 11 & 12 W. III. c. 4. (4) These decisions have been overruled, mis aow understood thit the statute of Elizabeth imposes no obligation except in respect of relations. Tubb v. Harrison, 4 B. & A. 118. Caer v. Marta, der of magistrates for relief was quashed, not because she was dane, but because it did not state that she was poor, or likely hargeable to the parish, |