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their union, are voided by their intermarriage. A woman may indeed be attorney for her husband, for that implies no separation, but merely a representation. A husband may bequeath any portion or all of his estate to his wife by will.
Husband's Liability. A husband is bound by law to provide necessaries to his wife, and if she contracts debts for them, he is obliged to pay them, but is not chargeable for aught except necessaries. If, however, she elopes, and the shopkeeper is apprised of the fact, she cannot bind her husband for necessaries furnished. If a wife be indebted before marriage, her husband is bound afterwards to pay such debt, for he has adopted both her and her circumstances.
Joinder in Actions at Law. If the wife be injured in her person or property, she cannot sue for redress without her husband's concurrence, and in his name, as well as her own, neither can she be sued, without her husband be also made a defendant. If, however, the husband has abjured the realm, or is banished, she may sue alone, for then he is dead in law. In criminal prosecutions, the wife may be indicted and punished separately, for the union is only a civil one. But in trials of any sort, they are not allowed to give evidence either for or against each other, principally because of the union of person. But where the offence is directly against the person of the wife, this rule has been usually dispensed with, and by statute of Henry VII, in case a woman is abducted, she may testify against her husband, in order to convict him of felony. He cannot close her mouth in such case, by going through the meaningless form of a ceremony of marriage.
Wife's Immunity from Liability. Though the law considers husband 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, except it be a fine or a like matter of record, in which case, she must be solely and secretly examined, to learn if her act be voluntary. And in some felonies committed by her through constraint of her husband, the law excuses her, but this extends not to treason or murder.
1 But their contract is not destroyed by their marriage, where the act is to be performed in futuro, after the marriage is determined, as an ante-nuptial contract to leave the wife so much after the death of the husband.
Correction of the Wife. Under the old law, the husband might give his wife moderate correction. For as he is to answer for her misbehavior, the law intrusted him with the power of restraining her by domestic chastisement, as he would punish a child or an apprentice. But this power of correction was confined within reasonable bounds, and he was prohibited from using violence. The civil law gave a man even a larger authority over his wife, permitting him to whip her, if he deemed it necessary.
This form of correction was checked in the reign of Charles II, and has not been revived, but the courts of law still permit a husband to restrain his wife of her liberty, in case of any gross misbehavior.
CHAPTER XVI.-PARENT AND CHILD
Division of Children. Children are of two sorts, legitimate and illegitimate. The latter are termed bastards. !. LEGITIMATE CHILD.
Defined. Such a child is one born in wedlock, or within a competent time afterwards. The civil law legitimated a child, even if the marriage between the parents took place after its birth. In England, the nuptials must precede the birth.
1. Duties of Parents to Children. These consist of three things: their maintenance, their protection and their education.
Maintenance. The duty of parents to provide for the maintenance of their children is a principle of natural law. By begetting them, parents entered into a voluntary obligation to do all in their power to preserve the life or lives they had bestowed. Thus the children have a right to claim maintenance from their parents. The municipal laws enforce such duty, though Providence has implanted in the breast of all parents that natural affection for their offspring, which the ingratitude of a child can never totally suppress.
Rule of the Civil Law. The civil law obliges the parent to provide maintenance for the child. It carries this principle .
so far, that it will not suffer a parent to disinherit a child in his will, without expressly giving his reason for doing so, and there are fourteen reasons enumerated, which may justify such act. If the parent allege no reason or a bad one, the child might set such will aside, as a testament at variance with the natural duty of the parent.
Rule of the English Law. We will notice, what provision our own laws have made for this natural duty. On every man is reposed an obligation to provide for his offspring. The parents and grandparents of poor children shall maintain them, if of sufficient ability, according as the quarter session courts may direct, and if a parent runs away, the churchwardens and overseers of the poor shall seize his rents, goods and chattels, and dispose of them towards their relief.
Children Unable to work. No person need provide maintenance for his issue, unless where the children are unable to work, either through infancy, disease or accident, and then is only obliged to find them in necessaries. The law does not compel a father to maintain an idle and lazy child in ease and indolence.
Disinheriting Children. Our law has made no provision to prevent the disinheriting of children by will, leaving every man's property at his own disposal, though it might be advisable to compel the parent to leave the child a necessary subsistence. Among persons of fortune, it is not infrequent to provide a competence to younger children in the marriage articles, and the bulk of the estate to the eldest child. Children cannot be disinherited by any ambiguous words in a will, there being required the utmost certainty of the testator's intentions to take away the right of an heir.
Protection. This is also a natural duty, which is rather permitted than enjoined by any municipal laws, nature, in this respect, needing a check, rather than a spur. A parent may maintain a child in a law suit, and may justify an assault and battery, in defense of his child.
Education. This duty is pointed out to the parent by reason, and is of the greatest importance. Yet the municipal laws are defective on this point, by not compelling a parent to bestow a proper education upon his children. Our laws, however, make provision for the education of the children of the
poor, by the statutes apprenticing them, in such a manner, as may ultimately render their abilities useful to the commonwealth. The rich are left at their own option, whether they will bring up their children to be ornaments or disgraces to their family. Disabling statutes as to the foreign education of English children have been repealed.
2. Power of Parents, Authority over their children is given parents to enable them more effectually to perform their duty, and partly as a recompense for their care in discharging it. The ancient Roman law gave the father the power of life and death over his child, on the principle, that he who gave had also the power of taking away. In the emperor Hadrian's time, this law was materially modified, but large authority was permitted, for a son could acquire no property of his own, during the life of his father, but all the profits of his acquisitions belonged to his parent, at least for life.
Under English Law. The power of a parent is much more moderate, but still sufficient to keep the child obedient. He may lawfully correct his child, being under age, in a reasonable manner. The consent of the parent to the marriage of his child under age was directed under our ancient law, and now it is absolutely necessary in order to make the contract valid. А father has no other power over his son's estate, than as his trustee or guardian, for though he may receive the profits during the child's minority, he must account for them, when he comes of age. He may have the benefit of his childrens' labor, while they reside with him, and are maintained by him, but this is no more than he is entitled to from his apprentice and servan A mother is only entitled to reverence and respect. The legal power of a father over a child ceases when the latter reaches twenty-one years of age, for the child has arrived at the age of discretion, and is then enfranchised. Up to that age, the father may appoint a testamentary guardian over him, or may delegate part of the parental authority to a tutor or schoolmaster, who is then in loco parentis.
3. Duties of Children. These duties to parents arise from a principle of natural justice. To those who gave us existence, we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age, and those who have sustained and educated us ought in return to be supported by us, if they should require assistance.
Athenian Laws. The Athenian laws obliged all children to provide for their father, when fallen into poverty, with an exception as to spurious children, whom he had not supported or educated, and to those whom he had not afforded opportunity to gain a livelihood. In regard to bastard children, our laws agree with those of Athens.
II. ILLEGITIMATE CHILD.
1. Who are Bastards. A bastard by English law, is one who is not only begotten, but born out of lawful wedlock. The civil and canon laws remove this stain, if the parents afterwards intermarry, wherein they differ from the English law, which though not so strict, as to require that the child shall be begotten, yet make it indispensable, for legitimacy, that it be born after marriage. The reason of our law is assuredly superior to that of the Roman law in this respect, if we reflect upon the object of the marriage contract, taken in a civil light, abstractly from any religious view, which has nothing to do with the legitimacy of the children.
Main Object of Marriage. The main end and design of marriage being to devolve upon some person the care, maintenance and education of the children, this end is better answered by legitimating all issue born after wedlock, than by legitimating issue of the same parties, born before wedlock, when wedlock afterwards ensues. The reasons therefor are these:
Comparison with Roman Law. (1) Because of the uncertainty who is the father of the child, whereas by confining the proof to the birth, and not to the begetting, our law renders it certain, what child is legitimate, and upon whom devolves its maintenance. (2) Because by the Roman law, a child may be continued a bastard or made legitimate, at the option of the father and mother, by a marriage ex post facto, thereby inviting many frauds and partialities, which by our law are prevented, (3) Because by those laws, a man may remain a bastard, till forty years of age, and then become legitimate, by the subsequent marriage of his parents, whereby the main end of marriage, the protection of infants, is frustrated. (4) Because this rule of the Roman law admits of no limitations, as to the time