Obrázky stránek
PDF
ePub

fore marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own: neither can she be sued, without making the husband a defendant2. (13) There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished a, for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately; for the union is only a civil union. (14) But, in trials of any sort, they are not allowed to be evidence for or against, each other: partly because it is impossible their testimony should be indifferent but principally because of the union of person: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, "nemo in propria causa testis esse debet ;" and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare." But, where the offence is directly against the person of the wife, this rule has been usually dispensed with: and therefore, by

[blocks in formation]

ground for presuming an authority from him to her to contract for rea sonable necessaries. Against this presumption no general notice not to deal with her shall be allowed to prevail; but where there is an express notice to any particular individual, that person cannot sue upon contracts afterwards entered into with her. In the last case, there is no ground for the presumption of authority, the law does not oblige a husband to maintain an adulteress who has eloped from him, and whose situation is thus become public, and therefore it will not be inferred that he has given her authority to bind him by contracts, and there will be no necessity for notice to rebut an inference which does not arise. See the cases collected and arranged. 1 Selw. N.P 275. 284.

(13) Not even if divorced à mensa et thoro for adultery, and in the receipt of a competent allowance for her maintenance. Lewis v. Lee,

3 B. & C.291.

(14) See Vol. IV. p. 28.

statute 3 Hen. VII. c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case [ 444 ] she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman he could prevent her from being a witness, who is perhaps the only witness, to that very fact. (15)

In the civil law the husband and the wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband. (16)

BUT, though our law in general considers man and wife as one person, yet, there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void; 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 5. (17) 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

e Cod. 4. 12. 1.

f

2 Roll. Abr. 298.

Litt. § 669, 670. h Co. Litt. 112.

(15) See Vol. IV. p. 209.

(16) So, in a court of equity, husband and wife may sue each other, Mitford, 22. 83. And a wife having separate property, is in equity, as to such property, a feme sole, Powell v. Hankey, 2 P. W. 85. Fettiplace v. Gorges, 1 Ves. J. 46. She must take such property through the intervention of trustees; but where such a trust is intended, and no trustees named, her husband taking the legal estate will be a trustee for her. Bennet v. Davis, may sue and be

2 P.W.316. And in respect of her separate estate she

sued without her husband by her prochein amy, Mitford, ub. sup. Grifa fith v. Hood, 2 Ves. sen. 452.

(17) See Vol. II. p.357. n.(3).

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 pertinet". 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 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 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!

[blocks in formation]

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.

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.

I. 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

[blocks in formation]

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.

с

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 sopy, 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.

d

THE Civil law .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.

Sp. L. b. 23. c. 2.

d Ff. 25. 3. 5.

* Nov. 115.

« PředchozíPokračovat »