In the civil law the husband and wife are confidered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclefiaftical courts, a woman may fue and be sued without her husband d.

But, though our law in general confiders man and wife as one person, yet there are some instances in which she is separately confidered; as inferior to him, and acting by his compulfion. And therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion'. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her: but this extends not to treason or murder.

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 domeftic chastisement, in the fame moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in fome cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet. The civil law gave the husband the fame, or a larger, authority over his wife; allowing him, for fome misdemesnors, flagellis et fuftibus acriter verberare uxorem ; for others, only modicam caftigationem adhibere1.

But, with us, in the politer reign of Charles the second, this power of correction began to be doubtedTM: and a wife may now have security of the peace against her husband"; 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 P.

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.

m

1 Sid. 113. 3 Keb. 433. 2 Lev. 128.

• Stra. 1207.
Stra. 478.875-

Ggg

CHAPTER THE

OF PARENT

SIXTEENTH.

AND

CHILD.

T

HE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.

CHILDREN are of two forts; legitimate, and spurious, or bastards: each of which we shall confider in their order; and first of legitimate children.

I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards. "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 faid when we come to confider the cafe of bastardy. At present let us enquire 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.

I. AND, first, the duties of parents to legitimate children : which principally confist in three particulars; their maintenance, their protection, and their education.

Ff. 2.4.5.

THE

THE duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says 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 the 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 preferved. 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 perfon 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 fex, and the rigor of laws; that stifle her inclinations to perform this duty: and befides, the generally wants ability.

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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 sopyn, or infuperable 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 cognofcet." Nay, it carries this matter so far, that it will not fuffer a parent at his death totally to disinherit his child, without expreffly giving his reason for fo doing; and there are fourteen fuch reasons reckoned up, which may justify such disinherison. If the parent alleged no reafon, or a bad, or false one, the child might set the will afside, tanquam teftamentum inofficiofum, a teftament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in such a cafe: by suggesting that the parent had lost the use of his reason, when he made the inofficious teftament. And this, as Puffendorf observes, was not to bring into dispute the teftator'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 fet them afide. But perhaps this is going rather too far: every man has, or ought to have, by the laws of fociety, a power over his own property: and, as Grotius very well diftinguishes, 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 defcended 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 fufficient ability, according as the quarter sessions shall direct: and if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. By the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before fuch second marriage of fufficient ability to keep the child, the husband shall be charged to main