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fect till the coverture is determined by his death'. The husband is bound to provide his wife with neceffaries by law, as much as himfelf: and if he contracts debts for them, he is obliged to pay them; but, for any thing befides neceffaries, he is not chargeable 3. Alfo, if a wife elopes, and lives with another man, the husband is not chargeable even for neceffaries 4 at leaft if the perfon, who furnishes them, is fufficiently apprifed of her elopement 5. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumftances together. If the wife be injured in her perfon or her property, fhe can bring no action for redrefs without her husband's concurrence, and in his name, as well as her own: neither can fhe be fued, without making the husband a defendant. There is indeed one cafe where the wife fhall fue and be fued as a feme fole, viz. where the hufband has abjured the realm, or is banifhed' (7): for then he is dead in law; and, the husband being thus difabled to fue for or defend the wife, it would be most unreafonable if she had no remedy, or could make no defence at all. In criminal profecutions, it is true the wife may be indicted and punished feparately; for the union is only a civil union. But, in trials of any fort, they are not allowed to be evidence for, or againft, each other partly because it is impoffible their tef

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(9) [In analogy to this principle of abjuration, it has been lately determined (Michaelmas term, 26 Gco. III. K. B. Corbet v. baron Poloenwitz and wife) that where a married woman, living f parate and apart from her husband, with a feperate maintenance fecured to her by deed, contracts a debt, he may be fued for it as a feme fole.]

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timony fhould be indifferent; but principally because of the union of perfon: and therefore, if they were admitted to be witneffes for each other, they would contradict one maxim of law, nemo in propria caufa "teflis effe debet ;" and if against each other, they would contradict another maxim, nemo tenetur feip"fum accufare". But where the offence is directly against the perfon of the wife, this rule has been usually difpenfed with: and therefore, by ftatute 3 Hen. VII. c. 2. in cafe a woman be forcibly taken away, and married, she may be a witness against fuch her husband, in order to convict him of felony. For in this cafe fhe can with no propriety be reckoned his wife; because a main ingredient, her confent, was wanting to the contract: and alfo there is another maxim of law, that no man fhall take advantage of his own wrong which the ravifher 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.

In the civil law the hufband and the wife are confidered as two diftinct perfons; and may have feparate eftates, contracts, debts, and injuries 3; and therefore, in our ecclefiaftical courts, a woman may fue and be fued without her husband 4.

But, though our law in general confiders man and wife as one perfon, yet there are fome inftances in which fhe is feparately confidered; as inferior to him, and acting by his compulfion. And therefore all deeds executed, and acts done, b her, during her coverture, are void; except it be a fine, or the like matter of record, in which cafe fhe must be folely and fecretly examined, to learn if her act be voluntary 5. She cannot by will devife lands to her husband, unless under fpecial circumftances; for at the time of making it fhe is fuppofed to be under his coercion. And in fome felonies, and other inferior crimes, committed by her, through conftraint of her husband, the

2 State trials, vol. I. Lord Audley's cafe. Stra. 633. 3 Cod. 4. 12. I.

4 2 Roll. Abr. 298.
5 Litt. §. 669, 670.
6 Co. Litt. 112.

law excufes her? : but this extends not to treafon or murder.

The hufband alfo (by the old law) might give his wife moderate correction 8. For, as he is to answer for her mifbehaviour, the law thought it reasonable to intrust him with this power of reftraining her, by domeftic chastisement, in the fame moderation that a man is allowed to correct his apprentices or children; for whom the mafter or parent is alfo liable in fome cafes to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from ufing any violence to his wife, aliter quam ad virum, ex caufa regiminis et cafligationis uxoris fuae, licite et rationabiliter pertinet. The civil law gave the hufband the fame, or a larger, authority over his wife: allowing him, for fome mifdemefnors, flagellis et fuftibus acriter verberare uxorem; for others, only modicam caftigationem adhibere. But, with us, in the politer reign of Charles the fecond, this power of correction began to be doubted: and a wife may now have fecurity of the peace against her hufband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, ftill clai and exert their antient privilege: and the courts of law will fill permit a husband to restrain a wife of her liberty, in cafe of any grofs misbehaviour 5.

These are the chief legal effects of marriage during the coverture; upon which we may obferve, that even the difabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female fex of the laws of England.

1 Hawk. P. C. 2.

& Ibid. 130.

Moor. 874.

F. N. B. 80.

1 Nov. 117. c. 14. & Van

Leeuwen. in lue,

21 Sid. 113. 3 Keb. 433.

32 Lev. 128.

Stra. 1207.

s Stra. 478. 875.

CHAPTER THE SIXTEENTH.

OF PARENT AND CHILD.

THE next and the moft univerfal relation in nature, is immediately derived from the preceding, being that between parent and child.

Children are of two forts; legitimate, and fpurious, or baftards; each of which we shall confider in their order; and, firft, of legitimate children.

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I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "Pater eft quem nuptiae demonftrant," 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 baftardy. At prefent let us inquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of fuch children to their parents.

1. And, firft, the duties of parents, to legitimate children which principally confift in three particulars; their maintenance, their protection, and their

education.

Ff. 2. 4. 5.

The duty of parents to provide for the maintenance of children, is a principle of natural law; an obligation, fays Puffendorf, laid on them not only by nature herfelf, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their iffue, if they only gave their children life, that they might afterwards fee them perifh. 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 fhall be fupported and preferved. And thus the children will have a perfect right of receiving maintenance from their parents. And the prefident Montefquieu 3 has a very juft obfervation 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 afcertains and makes known the perfon who is bound to fulfil this obligation: whereas, in promifcuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obftacles in her way;-fhame, remorfe, the conftraint of her fex, and the rigour of laws;-that ftifle her inclįnations to perform this duty: and befides, fhe 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 breaft of every parent that natural sogn, or infuperable degree of affection, which not even the deformity of perfon or mind, not even the wickedness, ingratitude, and rebellion of children; can totally fupprefs or extinguish.

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The civil law obliges the parent to provide maintenance for his child; and, if he refufes," judex de ea re cognofcet." Nay, it carries this matter fo far, that it will not fuffer a parent at his death totally to difinherit his child, without exprefsly giving his reafon for fo doing; and there are fourteen fuch reafons reckoned up 5, which may justify fuch difinherifon.

2 L. of N. 1. 4. C. II. Sp. L. b. 23. G. 2.

A-Ff. 25. 3. 5.
5 Nov. 115.

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