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; except it be a fine, or the like matter of record, in which cafe fhe muft be folely and fecretly examined, to learn if her act be volun tary. She cannot by will devife lands to her husband, unless under special circumstances; for at the time of making it she is fuppofed to be under his coërcion". And in fome felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excufes her (22): but this extends not to treafon or murder. THE husband also (by the old law) might give his wife moderate correction *. For, as he is to anfwer for her misbehaviour, the law thought it reasonable to intrust him with this power of reftraining her, by domeftic chaftifement, in the fame moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in fome cafes to answer. But this power of correction was confined within reafonable bounds', and the husband was prohibited from ufing any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuæ, licite et rationabiliter pertinetTM. The civil law gave the hufband the fame, or a larger, authority over [ 445 ] 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 husband P; or, in return, a husband (22) The law excufes the wife, perhaps, in no crimes inferior to felony. See this fubject confidered in the 4th vol. p. 29. n. 4. against Book I. againft his wife 9. Yet the lower rank of people, who were always fond of the old common law, ftill 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 grofs mifbehaviour". 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 (23). (23) Nothing, I apprehend, would more conciliate the goodwill of the student in favour of the laws of England, than the perfuafion that they had fhewn a partiality to the female fex. But I am not fo much in love with my subject as to be inclined to leave it in poffeffion of a glory which it may not justly deserve. In addition to what has been obferved in this chapter, by the learned Commentator, I fhall here ftate fome of the principal differences in the English law, refpecting the two fexes; and I fhall leave it to the reader to determine on which fide is the balance, and how far this compliment is fupported by truth. Husband and wife, in the language of the law, are ftiled baron and feme: the word baron, or lord, attributes to the husband not a very courteous fuperiority. But we might be inclined to think this merely an unmeaning technical phrafe, if we did not recollect, that if the baron kills his feme, it is the fame as if he had killed a ftran ger, or any other perfon; but if the feme kills her baron, it is regarded by the laws as a much more atrocious crime; as she not only breaks through the restraints of humanity and conjugal affection, but throws off all fubjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the fame 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. 48. the fentence 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 fentence of death, and might have been executed, for the first offence in fimple larceny, bigamy, manslaughter, &c. however learned they were, merely because their sex precluded the poffibility of their taking holy orders; though a man, who could read, was for the same crime fubject 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 fee how the account ftands with regard to civil rights. Inteftate perfonal property is equally divided between males and females; but a son, though younger than all his fifters, is heir to the whole of real property. A woman's perfonal 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, fhe is entitled to one-third of his personal property, if he has children; if not, to one-half. In the province of York, to four-ninths or threefourths. By the marriage, the hufband is abfolutely mafter of the profits of the wife's lands during the coverture; and if he has had a living child, and furvives the wife, he retains the whole of thofe lands, if they are eftates of inheritance, during his life: but the wife is entitled only to dower, or one-third, if she survives, out of the husband's eftates of inheritance; but this fhe has, whether he has had a child or not. But a husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be endowed of the truft eftates 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 reprefentatives; and indeed there feems at present no fubftantial reason why fingle 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 feducer of his daughter's virtue, but by ftating that she is his fervant, and that by the confequence of the seduction, he is deprived of the benefit of her labour: or where the feducer, at the fame time, is a trefpaffer upon the close or premises of the parent. But when by fuch forced circumftances the law can take cognizance of the offence, juries difregard the pretended injury, and give damages commenfurate to the wounded feelings of a parent. Female virtue, by the temporal law, is perfectly exposed to the flanders of malignity and falfehood; for any one may proclaim in converfation, that the pureft maid, or the chafteft matron, is the most meretricious and incontinent of women, with impunity, or free from the animadverfions of the temporal courts. Thus female honour, which is dearer to the fex than their lives, is left by the common law to be the fport 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 fex. CHAPTER THE SIXTEENTH. OF PARENT AND CHILD. THE HE next, and the most 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 fhall 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 eft quem nuptiæ demonftrant," 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 faid when we come to confider the cafe of baftardy. At prefent let us inquire into, 1. The legal duties of parents to their legiti mate children. 2. Their power over them. 3. The duties of fuch children to their parents. 1. AND, first, the duties of parents, to legitimate children: which principally confist in three particulars; their maintenance, their protection, and their education. THE duty of parents to provide for the maintenance of their [ 447] children, is a principle of natural law; an obligation, says, VOL. I. Ff. 2. 4. 5. Puffendorf, |