Chapter 40

II. I AM next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one _a vinculo matrimonii_, the other merely _a mensa et thoro_. The total divorce, _a vinculo matrimonii_, must be for some of the canonical causes of impediment before-mentioned; and those, existing _before_ the marriage, as is always the case in consanguinity; not supervenient, or arising _afterwards_, as may be the case in affinity or corporal imbecillity. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful _ab initio_; and the parties are therefore separated _pro salute animarum_: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage, as is thus entirely dissolved, are bastards[b].

[Footnote b: Co. Litt. 235.]

DIVORCE _a mensa et thoro_ is when the marriage is just and lawful _ab initio_, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[c]. The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the theatre or the public games, without the knowlege and consent of the husband[d]) but among them adultery is the principal, and with reason named the first[e]. But with us in England adultery is only a cause of separation from bed and board[f]: for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties[g], which is now prohibited by the canons[h]. However, divorces _a vinculo matrimonii_, for adultery, have of late years been frequently granted by act of parliament.

[Footnote c: Matt. xix. 9.]

[Footnote d: _Nov._ 117.]

[Footnote e: _Cod._ 5. 17. 8.]

[Footnote f: Moor 683.]

[Footnote g: 2 Mod. 314.]

[Footnote h: Can. 1603 c. 105.]

IN case of divorce _a mensa et thoro_, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband's estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her _estovers_; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law _de estoveriis habendis_, in order to recover it[i]. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony[k].

[Footnote i: 1 Lev. 6.]

[Footnote k: Cowel. tit. Alimony.]

III. HAVING thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

BY marriage, the husband and wife are one person in law[l]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and _cover_, she performs every thing; and is therefore called in our law-french a _feme-covert_; is said 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 speak not at present of the rights of property, but of such as are merely _personal_. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her[m]: 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 single, are voided by the intermarriage[n]. A woman indeed may be attorney for her husband[o]; for that implies no separation 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[p]. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[q]: but for any thing besides necessaries, he is not chargeable[r]. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. 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[u]. If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own[w]: neither can she be sued, without making the husband a defendant[x]. There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[y]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. In criminal prosecutions, it is true, the wife may be indicted and punished separately[z]; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses _for_ each other, they would contradict one maxim of law, "_nemo in propria causa testis esse debet_;" and if _against_ each other, they would contradict another maxim, "_nemo tenetur seipsum accusare_." But where the offence is directly against the person of the wife, this rule has been usually dispensed with[b]: and therefore, by statute 3 Hen. VII. c. 2. in case a woman be forcibly taken away, and married, she may be a witness against such 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 consent, 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 ravisher 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.

[Footnote l: Co. Litt. 112.]

[Footnote m: _Ibid._]

[Footnote n: Cro. Car. 551.]

[Footnote o: F.N.B. 27.]

[Footnote p: Co. Litt. 112.]

[Footnote q: Salk. 118.]

[Footnote r: 1 Sid. 120.]

[Footnote s: Stra. 647.]

[Footnote t: 1 Lev. 5.]

[Footnote u: 3 Mod. 186.]

[Footnote w: Salk. 119. 1 Roll. Abr. 347.]

[Footnote x: 1 Leon. 312. This was also the practice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)]

[Footnote y: Co. Litt. 133.]

[Footnote z: 1 Hawk. P.C. 3.]

[Footnote a: 2 Haw. P.C. 431.]

[Footnote b: State trials, vol. 1. Lord Audley's case. Stra. 633.]

IN the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d].

[Footnote c: _Cod._ 4. 12. 1.]

[Footnote d: 2 Roll. Abr. 298.]

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, or at least voidable; 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[e]. 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[f]. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder.

[Footnote e: Litt. §. 669, 670.]

[Footnote f: Co. Litt. 112.]

[Footnote g: 1 Hawk. P.C. 2.]

THE husband also (by the old law) might give his wife moderate correction[h]. 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 servants 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[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. 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 uxorem_; for others, only _modicam castigationem adhibere_[l]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. 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 gross misbehaviour[p].

[Footnote h: _Ibid._ 130.]

[Footnote i: Moor. 874.]

[Footnote k: F.N.B. 80.]

[Footnote l: _Nov._ 117. _c._ 14. & Van Leeuwen _in loc._]

[Footnote m: 1 Sid. 113. 3 Keb. 433.]

[Footnote n: 2 Lev. 128.]

[Footnote o: Stra. 1207.]

[Footnote p: Stra. 478. 875.]

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.

CHAPTER THE SIXTEENTH.

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. "_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 enquire 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.

[Footnote a: _Ff._ 2. 4. 5.]

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, says Puffendorf[b], 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 injurious to their issue, if they only gave the 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 rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability.

[Footnote b: L. of N. l. 4. c. 11.]

[Footnote c: Sp. L. l. 23. c. 2.]

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 [Greek: storgê], 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 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 disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[e], which may justify such disinherison. If the parent alleged no reason, or a bad, or false one, the child might set the will aside, _tanquam testamentum inofficiosum_, 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 the favour of their parents, or the positive constitutions of the municipal law.

[Footnote d: _Ff._ 25. 3. 5.]

[Footnote e: _Nov._ 115.]

[Footnote f: _l._ 4. _c._ 11. §. 7.]

[Footnote g: _De j.b. & p._ _l._ 2. _c._ 7. _n._ 3.]

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 mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards 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 to maintain it[l]: 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.

[Footnote h: Raym. 500.]

[Footnote i: Stat. 43 Eliz. c. 2.]

[Footnote k: Stat. 5 Geo. I. c. 8.]

[Footnote l: Styles. 283. 2 Bulstr. 346.]

NO person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20_s._ a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[m], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. But this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a Jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[n]. But this gave occasion[o] to another statute[p], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper.

[Footnote m: Stat. 11 & 12 W. III. c. 4.]

[Footnote n: Lord Raym. 699.]

[Footnote o: Com. Journ. 18 Feb. 12 Mar. 1701.]

[Footnote p: 1 Ann. st. 1. c. 30.]

OUR law has made no provision to prevent the disinheriting of children by will; leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. By the custom of London indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. And, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. Heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir[q].

[Footnote q: 1 Lev. 130.]

FROM the duty of maintenance we may easily pass to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. A parent may also justify an assault and battery in defence of the persons of his children[s]: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards died; it was not held to be murder, but manslaughter merely[t]. Such indulgence does the law shew to the frailty of human nature, and the workings of parental affection.

[Footnote r: 2 Inst. 564.]

[Footnote s: 1 Hawk. P.C. 131.]

[Footnote t: Cro. Jac. 296. 1 Hawk. P.C. 83.]

THE last duty of parents to their children is that of giving them an _education_ suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes[u], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. Our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[w]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. The rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. Yet in one case, that of religion, they are under peculiar restrictions: for[x] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it's good education in England, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit 100_l._ which[y] shall go to the sole use and benefit of him that shall discover the offence. And[z] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life.

[Footnote u: L. of N. b. 6. c. 2. §. 12.]

[Footnote w: See page 414.]

[Footnote x: Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.]

[Footnote y: Stat. 11 & 12 W. III. c. 4.]

[Footnote z: Stat. 3 Car. I. c. 2.]