the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony "

III. HAVING thus fhewn how marriages may be made, or diffolved, I come now, laftly, to speak of the legal consequences of fuch making, or diffolution.

By marriage, the husband and wife are one perfon in law": that is, the very being or legal existence of the woman is fufpended during the marriage, or at least is incorporated and confolidated into that of the husband: under whose wing, protection, and cover, the performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is faid to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I fpeak not at present of the rights of property, but of fuch as are merely perfonal. For this reafon, a man cannot grant any thing to his wife, or enter into covenant with her°: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when fingle, are voided by the intermarriage P. A woman indeed may be attorney for her husband 9; for that implies no feparation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death". The hufband is bound to provide his wife with neceffaries by law, as much as himself: and if she contracts debts for them, he is obliged to pay them'; but, for any thing befides neceffaries, he is not chargeable. Alfo if a wife elopes, and lives with another man, the husband is

m Cowel. tit. Alimony.

n Co. Litt. 112.

• Ibid.

p Cro. Car. 551.

9 F. N. B. 27.

r Co. Litt. 112.

s Salk. 118.

t 1 Sid. 120.

not.

a

not chargeable even for neceffaries"; at least if the person, who furnishes them, is fufficiently apprized of her elopement". If the wife be indebted before 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 perfon 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 fhe be fued, without making the husband a defendant. There is indeed one case where the wife fhall fue and be fued as a feme fole, viz. where the husband has abjured the realm, or is banished a (q): for then he is dead in law; and, the husband being thus difabled to fue for or defend the wife, it would be moft unreasonable 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 separately b for the union is only a civil union. But, in trials of any fort, they are not allowed to be evidence for, or against, each other": partly because it is impoffible their teftimony should be indif_ ferent; but principally because of the union of person: and therefore, if they were admitted to be witnefies for each other, they would contradict one maxim of law, "nemo in propria "caufa teftis effe debet ;" and if against each other, they would contradict another maxim, "nemo tenetur feipfum accufare." But, where the offence is directly against the person of the wife, this rule has been usually dispensed 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

u Stra. 647.

w I Lev. 5.

x 3 Mod. 186.

y Salk. 119. 1 Roll. Abr. 347. 2 Bro. Error. 173. 1 Leon. 312. 1 Sid. 120. This was alfo the practice in the courts of Athens. (Pott. Antiqu.

b. 1. c. 21.)

a Co. Litt. 133.

b

Hawk. P. C. 3.

c2 Hawk. P. C. 431.

d State trials, vol. 1. Lord Audley's cafe. Stra. 633.

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

VOL. I.

Ff

fuch

fuch her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her confent, 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 ravither here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witnefs, to that very fact.

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

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, by her, during her coverture, are void; except it be a fine, or the like matter of record, in which cafe she must be folely and fecretly examined, to learn if her act be voluntary . She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is fupposed to be under his coercion 1. And in fome felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excufes her: 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 reftraining her, by domeftic chastisement, 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 reasonable bounds, and the husband was

e Cod. 4. 12. I.

f 2 Roll. Abr. 298.

g Litt. §. 669, 670. h Co. Litt. 112.

1 Hawk. P. C. 2. * Ibid. 130.

1 Moor. 874.

prohibited

prohibited from ufing any violence to his wife, aliter quam ad virum, ex caufa regiminis et caftigationis uxoris fuae, licite et rationabiliter pertinet. The civil law gave the hufband the fame, or a larger, authority over his wife: allowing him, for some misdemefnors, flagellis et fuftibus acriter verberare uxorem ; for others, only modicam caftigationem 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 fecurity of the peace against her husband P; or, in return, a husband against his wife 1. 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 grofs mifbehaviour ".

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.

CHAPTER THE SIXTEENTH.

PARENT AND CHILD.

HE next, and the most universal 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.

"Pater eft

I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards. quem nuptiae 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 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 mainteuance, 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