BOOK I. BUT, though our law in general confiders man and wife as one perfon, yet there are fome inftances in which the is feparately 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 case she must be folely and fecretly examined, to learn if her act be voluntarys. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is fuppofed to be under his coercion. And in fome felonies, and other inferior crimes, committed by her, through conftraint of her husband, the law excuses heri (22). but this extends not to treafon or murder. THE husband alfo (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 intruft him with this power of restraining her, by domeftic chaftifement, in the fame moderation that a man is allowed to correct his apprentices or children; for whom the mafter or parent is also liable in fome cafes to anfwer. 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 caftigationis uxoris fuae, licite et rationabiliter pertinet m. The civil law gave the husband the [445] 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 Litt. § 669, 670. A Co. Litt. 112. i1 Hawk. P. C. 2. I Moor. 874. m F. N. B. 80. n Nov. 117. 6. 14. & Van Leeuwen in loc. looked upon as a feme sole. 2 Ver. 614. And in a court of equity; baron and feme are confidered as two diftin&t persons, and therefore a wife by her prochein amy, may fue her own husband. 3 Cox. P. Wms. 39. (22) This conftraint and coercion of the husband is presumed, when the wife is in company with the husband. 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 against his wife. 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 ftill permit a husband to reilrain a wife of her liberty, in case of any grofs misbehaviour". THESE are the chief legal effects of marriage during the coverture; upon which we may observe, 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). 1 Sid. 113. 3 Keb. 433. P 2 Lev. 128. q Stra. 1207. (23) Nothing, I apprehend, would more conciliate the goodwill of the ftudent in favour of the laws of England, than the perfuafion that they had fhewn a partiality to the female fex. But I am not so 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 stiled 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 fpecies of treafon, and condemns her to the fame punishment as if she had killed the king. And for every species of treason, (though in petit treason 445 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 exccuted, for the first offence in fimple larceny, bigamy, manflaughter, &c. however learned they were, merely because their fex precluded the poffibility of their taking holy orders; though a man, who could read, was for the fame crime fubject only to burning in the hand and a few months imprifonment. 4 Vol. 369. Thefe are the principal diftinctions in criminal matters; now let us fee how the account flands with regard to civil rights. Inteftate perfonal property is equally divided between males and females; but a fon, though younger than all his fifters, is heir to the whole of real property. A woman's perfonal property, by marriage, becomes abfolutely 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 perfonal 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 ower, or one-third, if the furvives, out of the husband's eftates of inheritance; but this he has, whether he has had a child or not. But a husband can be tenant by the curtefy 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 prefent no fubftantial reason why fingle women fhould be denied this privilege. Though the chaflity 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 confequences of the feduction, 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 circumftances the law can take cognizance of the offence, juries difregard the pretended injury, and give damages commensurate to the wounded feelings of a parent. Female virtue, by the temporal law, is perfectly expofed to the flanders of malignity and falfehood; for any one may proclaim in conversation, that the pureft maid, or the chastest 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 ftatement of the account, I fear there is little reafon 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 moft univerfal relation in nature, is immediately derived from the preceding, being that between parent and child. CHILDREN are of two forts; legitimate, and spurious, of baftards; each of which we fhall confider in their order; and, firft, of legitimate children. 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 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 fuch children to their parents. 1. AND, first, the duties of parents, to legitimate children which principally confift in three particulars; their maintenance, their protection, and their education. 447 THE duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says a Ff. 2. 4. 5. Puffendorf, |