and, therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband. (ƒ)53

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. (g) 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. (h) And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her ; (i) but this extends not to treason or murder. 54

The husband also (by the old law) might give his wife moderate correction. (k) 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 was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet. (m) 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 [445] urorem; for others, only modicam castigationem adhibere. (n) But, with us, in the politer reign of Charles the Second, this power of correction began to be doubted: (o) and a wife may now have security of the

f 2 Roll. Abr. 298.

i1 Hawk. P. C. 2.

m F. N. B. 80.

g Litt. 669, 670. k1 Hawk. P. C. 130.

n Nov. 117. c. 14. & Van. Leeuwen in loc.

h Co. Litt. 112.

I Moor. 874.

01 Sid, 113. 3 Keb. 433.

So where an action was brought by the direction of the wife, in the name of the husband, to recover a sum of money which had been taken from her on suspicion that it was the produce of stolen property, it was considered that what she had said (in the absence of the husband) respecting money, when examined on a charge of being concerned in the robbery, was evidence for the husband. 4 Camp. 92. So in an action against the husband for goods sold to the wife during the time he occasionally visited her, an acknowledgment by the wife of the debt is evidence. 2 Esp. 211. 5 Esp. 145 1 Camp. 594. And where the wife is accustomed to conduct business for the husband, her admission of a debt is available to take the case out of the statute of limitations. Holt C. N. P. 591. 2 Stark. 204. 1 Camp. 394. 4 Camp. 92, 3. Chitty.

(53) There are cases in equity where the husband's and wife's interests are considered as distinct and separate, and will allow the husband to sue the wife, 1 Fonbl. 94 to 96. Prec. Ch. 24. 1 Atk. 272. Mitford, 22. 85.; or the wife to set up claims adverse to those of her husband, and which she may prosecute by a suit instituted in the name of her prochein amy, or next friend, Prec. Ch. 275. 1 Ves. Jun. 21. 2 Ves. 452. 2 Vern. 493. 614. Gilb. Rep. 152. 3 P. Wms. 39. 269. 1 Foubl. 94, 95. Mitford, 22. 83. and see cases there collected; but it does not seem that a wife can be sued in equity by a stranger, merely in respect of her separate property, except indeed in the cases before mentioned, where she may sue or be sued separately at law. See 1 Foubl. 109. Co. Litt. 133. a. 2 Vern. 104. Salk. 116. 3 P. Wms. 37. Or except when the husband be not within the jurisdiction of the court, and she may be decreed to make good engagements which she has entered into respecting such property. 2P. Wms. 144. Prec. Ch. 328. 2 Vern. 613. Even in such latter case, the most the court can do, is to call forth her separate property in the hands of her "trustees, and to direct the application of it, for the court cannot make a personal decree against a feme covert for the payment of a debt. 1 Fonbl. 110. 1 Bro. Ch. R. 16. 2 Atk. 68. 4 Bro. C. R. 485. 9 Ves. 188. 17 Ves. 365. sed vide 15 Ves. 603. and see ante 443, note (48), as to enforcing in equity the wife's contracts. When a trust for a married woman is intended, and no trustees named, her husband, taking the legal estate, will be a trustee for her. 2 P. W. 316. Chitty (54) The law excuses the wife, perhaps, in no crimes inferior to felony. See this subject considered in the 4th vol. p. 29. and ante 443. note 51.

VOL. I..

45

peace against her husband; (p) or, in return, a husband against his wife. (4) Yet the lower rank of people, who were always fond of the old common law, still claim, and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour. (r)

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! 55 58

p 2 Lev. 128.

q Stra. 1207.

r Stra. 478, 875.

(55) Nothing, I apprehend, would more conciliate the good-will of the student in favour of the laws of England, than the persuasion that they had shewn a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve. In addition to what has been observed in this chapter, by the learned Commentator, I shall here state some of the principal differences in the English law, respecting the two sexes; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is supported by truth.

Husband and wife, in the language of the law, are styled baron and feme: the word haron, or lord, attributes to the husband not a very courteous superiority. But we might be inclined to -think this merely an unmeaning technical phrase, if we did not recollect, that if the baron kills his feme, it is the same as if he had killed a stranger, or any other person; but if the feme kills her baron, it is regarded by the laws as a much inore atrocious crime; as she not only breaks .through the restraints of humanity and conjugal affection, but throws off all subjection to the apthority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason, (though in petit treason the punishment of men was only to be drawn and hanged,) till the 30 Geo. III. c. 43. the sentence of women was to be drawn and burnt alive. 4 Vol. 204. By the common law all women were denied the benefit of clergy; and till the 3 and 4 W. & M. c. 9. they received sentence of death, and might have been executed, for the first offence in simple larceny, bigamy, manslaughter, &c. however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man, who could read, was for the same crime subject only to burning in the hand and a few months' imprisonment. 4. Vol. 369. These are the principal distinctions in criminal matters; now let us see how the account stands with regard to civil rights.

Intestate personal property is equally divided between males and females; but a son, though younger than all his sisters, is heir to the whole of real property.

woman's personal property, by marriage, becomes absolutely her husband's, which at his death he may leave entirely away from her; but if he dies without will, she is entitled to onethird of his personal property, if he has children; if hot, to one-half. In the province of York, to four-ninths or three-fourths.

By the marriage, the husband is absolutely master of the profits of the wife's lands during the coverture; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life: but the wife is entitled only to dower, or one-third, if she survives, out of the husband's estates of inheritance; but this she has, whether she has had a child'or not.

But a husband can be tenant by the courtesy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband. 3 P. Wms. 229.

With regard to the property of women, there is taxation without representation; for they pay taxes without having the liberty of voting for representatives; and indeed there seems at present no substantial reason why single women should be denied this privilege. Though the chastity of women is protected from violence, yet a parent can have no reparation, by our law, from the seducer of his daughter's virtue, but by stating that she is his servant, and that by the consequences of the seduction, he is deprived of the benefit of her labour; or where the seducer, at the same time, is a trespasser upon the close or premises of the parent But when by such forced circumstances the law can take cognisance of the offence, juries disregard the pretended injury, and give damages commensurate to the wounded feelings of a parent.

Female virtue, by the temporal law, is perfectly exposed to the slanders of malignity and falsehood; for any one may proclaint in conversation, that the purest maid, or the chastest matron, is the most meretricious and incontinent of women, with impunity, or free: from the animadversions of the temporal courts. Thus female honour, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned calumniator. 3 Vol. 125, From this impartial statement of the account, I fear there is little reason to pay a compliment to our laws for their respect and favour to the female sex. Christian.

As to the interest which the husband has in the chattels real and choses in action of his wife iî he survive her, and what interest his representatives have if she survive him, I should recom mend to the student's perusal Mr. Butler's note of Co. Litt. 351 a. n. 1. Archbold.

(56) See an excellent Treatise on the relative rights and duties of husband and wife by judge Reeve.-Reeve's Dom. Rel, tit. Baron & Feme.

CHAP. XVI.

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. 2" Pater est quem nuptiae demonstrant," is the rule of the civil law; (a) 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, saith Puffendorf. (6) 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 in- [447] jurious 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 (c) 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, shé 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 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.

The civil law (d) obliges the parent to provide maintenance for his a Ff. 2. 4, 5. c Sp. L. b. 23. c. 2.

b L. of N. 1. 4.c. 11.

(1) What is a lawful marriage, ante 433 to 441.
(2) What is a competent time, post. 456, note (17),

d Ff. 25. S. 5:

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 disin

herit his child, without expressly giving his reason for so doing ; and [448] there are fourteen such reasons reckoned up, (e) 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 inofficios sum, a testament 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 case; by suggesting that the parent had lost the use of his reason, when he made the inofficious testament. And this, as Puffendorf observes, ( f ) 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, (g) 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 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, (h) 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. (i) The father and fl. 4. c. 11. § 7. g de. j. b. and p. l. 2. c. 7. n. 3. i Stat. 43 Eliz. c. 2.

e Nov. 115.

h Raym. 500.

(3) Independently of the express enactment in the 43 Eliz. c. 2. and other subsequent statutes, there is no legal obligation on a parent to maintain his child, and therefore a third person, who may relieve the latter even from absolute want, cannot sue the parent for a reasonable remuneration, unless he expressly or impliedly contracted to pay. See per Le Blanc, J. 4. East, 84. Sir T. Raym. 260. margin. Palmer, 559 2 Stark, 521. Whereas, as we have seen in the case of husband and wife, the former may, in some cases, be sued for necessaries provided for the latter, even in defiance of the husband's injunctions not to supply them. The common law considered moral duties of this nature like others of imperfect obligation, as better left in their per formance to the impulse of nature. However a parent may, under circumstances, be indicted at common law for not supplying an infant child with necessaries. Russell & R. C. C. 20. 2 Camp. 650.

The statute 43 Eliz. c. 2. s. 7. enacts, that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, and impotent person, or other poor person not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner, and according to that rate, as by the justices of peace of that county where such sufficient persons dwell, or the greater number of them at their general quarter sessions, shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein.

Mr. Christian has supposed (p. 448. n. 1.) and the relations mentioned in the 43 Eliz. c. 2. can only be compelled to allow each other 20s. a month, or 131. a year; but he has not distinguished between the power to award a sufficient maintenance and the punishment for the breach of the order. The amount of maintenance is in the discretion of the magistrates, and they may order much more than 20s. a month. And if the party disobey the order, by paying that sum, though exceeding 20s. a month, he may be indicted. 2 Burr. 799.

Any two justices may make this order of allowance, which is, in fact, in aid of the parish to which the indigent person belongs. The relation on whom the order is made, may appeal to the justices in sessions, who, upon evidence and the consideration of the circumstances and ability of the party, can reduce the allowance, or discharge the order. If the party disobey the order, he may, as we have seen, be indicted, 2 Burr. 799., or his goods may be distrained under a warrant of justices by distress. 43 Eliz c. 2. s. 2. & 11.

The justices must be of the county where such parent dwells. 2 Bulst, 344.

Though independently of an express contract, or one implied from particular facts, a father cannot be sued for the price of necessaries provided for his infant son, yet very slight circumstances will suffice to justify a jury in finding a contract on his part.

In a late case, where a parent was sought to be charged for regimentals furnished to his son, the lord chief justice left it as a question for the jury to consider whether they could infer that the order was given by the assent and with the authority of the father, he said, that "a father would not be bound by the contract of his son unless either an actual authority were proved, or

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: and if a parent runs away, (k) 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. 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 ability to keep the child, the husband shall be charged [449] to maintain it: (1) 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.

No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, dis

k Stat. 5 Geo. I. c. 3.

I Styles, 283. 2 Bulstr. 346.

circumstances appeared, from which such an authority might be implied; were it otherwise, a father, who had an imprudent son, might be prejudiced to an indefinite extent, and it was therefore necessary that some proof should be given that the order of a son was made by the authority of his father. The question, therefore, for the consideration of the jury was, whether, under the circumstances of the particular case, there was sufficient to convince them that the defendant had invested his son with such authority. He had placed his son at the military college at Harlow, and had paid his expenses whilst he remained there; the son, it appeared, then obtained a commission in the army, and having found his way to London, at a considerable distance from his father's residence, had ordered regimentals and other articles suitable to his equipment for the East Indies. If it had appeared in evidence, that the defendant had supplied his son with money for this purpose, or that he had ordered these articles to be furnished elsewhere, either of those circumstances," the learned judge observed, "might have rebutted the presumption of any authority from the defendant, to order them from the plaintiff; nothing, however, of this nature had been proved; and since the articles were necessary for the son, and suitable to that situation in which the defendant had placed him, it was for the jury to say, whether they were not satisfied that an authority had been given by the defendant." The jury found in the affirmative. 2 Stark. R. 521.

So where a man marries a widow, who has children by her former husband, who are received by the second husband into, and held out by him to the world as forming part of his own family, he will be liable to pay third persons for necessaries furnished for them. Per Lord Ellenborough, 4 East, 82.

But where a parent allows his child a reasonable sum for his expenses, he will not be liable, even for necessaries ordered by such child. 2 Esp. R. 471.

And where a tradesman has furnished a young man with clothes to an extravagant extent, he cannot sue the father for any part of his demand, 1 Esp. Rep. 17.; nor is the infant liable for any part of the articles. 2 Bla. R. 1325.

And it should seem, as in the cases of husband and wife, or principal and agent, if the credit be given solely to the child, the parent will not in any case be liable.

But although in a particular case, credit may have been given to a minor, and not to his parent, yet the latter may be responsible in a case of fraud. Thus, where the goods were supplied to a minor, on a fraudulent representation by his father, that he was about to relinquish business in favour of his son, although the credit was given to the son, the father dealing with the proceeds was held responsible, in assumpsit, for goods sold and delivered. 1 Stark. 20. Chitty. (4) The order of justices for seizing this property, must state how much of the goods or rents should be seized, and must specify the quantum of relief to be appropriated out of them; and in case of rents, must limit the period of such appropriations. 6 East, 163.

(5) This doctrine has been overruled, and a husband is not bound, even whilst his wife is alive, to support her parents, or her children by a former husband, or any other relation; for the statute 43 Eliz. c. 2. extends only to natural relations, being those by blood and not by marriage. 4 T. Christian.

R. 118.

་ And where a step-father had maintained the son of his wife whilst he was under age, who, when he was of age promised to pay his step-father the expense he had incurred; he brought an action for it, and it was held, he was not bound by the act of marriage with the mother to maintain her son, but stood in that respect in the situation of any other stranger. And having done an act beneficial to the defendant in his infancy, it was a good consideration for the defendant's promise after he came of age. If the step-father had been bound by law to maintain the children of the wife, then the promise of the step-son would have been a nudum pactum, and the step-father could have maintained no action upon it. 4 East, 82. The son's father is not compellable to maintain the son's wife. 2 Stra. 955.

Chitty.