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 caasa testis esse debet" (a); and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare (b).” ( But, where the offence is directly against the person of the wife, this rule has been usually dispensed with (c); and therefore, by statute 3 Hen. VII. c. 2, in case a woman be forcibly taken away, and married, she may be a witnes 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; [*444] 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 (46).

In the civil law the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries (d) ; and therefore in our ecclesiastical courts, a woman may sue and be sued without her husband (e) (47).

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 in

(d) Cod. 4, 12, 1.

711. So in such case, it is said, she is a competent witness for the prisoner. 2 Hawk. c. 46. s. 79. But if the marriage be ratified by voluntary cohabitation, she is incompetent. Hale, 301. 1 Vent. 243. 3 Keb. 193. Cro. Car. 488. Vent. 243. 4 Mod. 3. Stra. 633. Upon an indictment on 1 Jac. I. c. 11. for marrying a second wife, the first being alive, though the first cannot be a witness, yet the second may, the second marriage being void. Supra I Hale, P. C. 693. 2 Hawk. P. C. c. 46. s. 68. Sir T. Raym. 1. It is not a settled point whether a man and woman, not actually married but cohabiting together, can be admitted as witnesses for or against each other, but it should seem they can. See 3 Stark. on Ev. 711, 2. 1 Price, 81. Leach C. C. L. 245.

In cases of evident necessity, where the fact is presumed to be particularly within the wife's knowledge, there is an exception to the general rule. Thus, a wife may be a witness on the prosecution of her husband for an offence committed against her person. Stra. 633. 1202. Bull. N. P. 287. S. C. 1 East, P. C. 454. 13 East, 171. 1T. R. 698. On the trial of a man for the murder of his wife, her dying declarations are admissible. 2 Leach C. L. 563. 1 East. P. C. 357.

The rule does not extend to declarations of the parties, which are in the nature of facts, for in such cases the presumptions which are made are not founded on the credit of the party, but of the fact. Thus the declaration of the wife at the time of effecting a policy on her life of the bad state of her health, is evidence against her husband. 6 East, 188. 2 Stark, on Evid. 712, 3.

Where the husband has allowed the wife to act as his agent in the management of his affairs, or any particular business, the representations and admissions of the wife, made within the general scope of her authority as such agent, are admissible in evidence against the husband. Thus in an action against the husband for board and lodging, where it appeared that the bargain for the apartments had been made by the wife, and that on a demand being made for the rent she acknowledged the debt, the plaintiff was held entitled to recover. 1 Esp. 142. And in an action for goods sold at defendant's shop, an offer by the wife to settle the demand was admitted in evidence, as she was accustomed to serve in the shop and transact business in the husband's absence. 1 Bing. 199. 2 Stark. 204. And the admission of the wife, as to an agreement for suckling a child, was allowed to be evidence against him. Stra. 527. 1 Esp. 141. And in an action by a servant for wages, the plaintiff was allowed to VOL. I

(e) 2 Roll. Abr. 298.

give in evidence a deed executed by the wife of the defendant at the time of the hiring, which, though void as a deed, was admitted in order to shew the terms of the contract. 6 T. R. 176.

So where an action was brought by the direction of the wife, in the name of the husband, to recover a sum of money which had been taken from her on suspicion that it was the produce of stolen property, it was considered that what she had said (in the absence of the husband) respecting money, when examined on a charge of being concerned in the robbery, was evidence for the husband. Camp. 92. So in an action against the hus band for goods sold to the wife during the time he occasionally visited her, an acknowledgment by the wife of the debt is evidence. 2 Esp. 211. 5 Esp. 145. 1 Camp. 594. And where the wife is accustomed to conduct usi ness for the husband, her admission of a debt is available to take the case out of the statute of limitations. Holt C. N. P. 591. 2 Stark. 204. 1 Camp. 394. 4 Camp. 92, 3.

(47) There are cases in equity where the husband's and wive's interests are considered as distinct and separate, and will allow the husband to sue the wife, 1 Fonbl. 94 to 96.* Prec. Ch. 24. 1 Atk. 272. Mitford, 22, 85; or the wife to set up claims adverse to those of her husband, and which she may prosecute by a suit instituted in the name of her prochein amy, or next friend, Prec. Ch. 275. Ves. Jun. 21. 2 Ves. 452. 2 Vern. 493, 614. Gilb. Rep. 152. 3 P. Wms. 39. 269. 1 Fonbl. 94, 95. Mitford, 22. 83. and see cases there collected; but it does not seem that a wife can be sued in equity by a stranger, merely in respect of her separate property, except indeed in the cases before mentioned, where she may sue or be sued separately at law. See! F 109. Co. Litt. 133. a. 2 Vern. 104. Sak. 116. 3 P. Wms. 37. Orexcept when the husband be not within the jurisdiction of the court, and she may be decreed to make good engagements which she has entered into respecting suc property. 2 P. Wms. 144. Prec. Ch. 328. 2 Vern. 613. Even in such latter case, the most the court can do, is to call forth her separate property in the hands of her trustees, and to direct the application of it, for the court cannot make a personal decree against a feme covert for the payment of a debt. 1 Fonbl. 110. 1 Bro. Ch. R. 16. 2 Atk. 68. 4 Bro. C. R. 483. 9 Ves. 188. 17 Ves. 365. sed vide 15 Ves 603. and see ante 443, note (42), as to enforc ing in equity the wife's contracts. When s trust for a married woman is intended, and no trustees named, her husband, taking the legal estate, will be a trustee for her. 2 P. W, 31 51

ferior 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 the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary (f).) 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 (g).) And in some felonies, and other inferior crimes, committed by her, through constraint of her husband. the law excuses her (h): but this extends not to treason or murder (48).

The husband also, by the old law, might give his wife moderate correcton (i). 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 apprentices 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 (j), and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis ux

oris suæ, licite et rationabiliter pertinet. The civil law gave the [*445] husband the same, or a larger, authority over his wife: allowing

him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere (k). But with us, in the politer reign of Charles the second, this power of correction began to be doubted (1);(and a wife may now have security of the peace against her husband (m); or, in return, a husband against his wife (n).) Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour (o).

:

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 (49)

(f) Litt. 669, 670,

(g) Co. Litt. 112.

(h) Hawk. P. C. 2. (i) Ibid. 130.

G) Moor, 874.

(48) This constraint and coercion of the husband is presumed, when the wife is in company with the husband.

(49) Nothing, I apprehend, would more conciliate the good-will of the student in favour of the laws of England, than the persuasion that they had shewn a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve. In addition to what has been observed in this chapter, by the learned Commentator, I shall here state some of the principal differ ences in the English law, respecting the two sexes; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is supported by truth. Husband and wife, ir the language of the Jaw, are styled baron and feme; the word baron, or lord, attributes to the husband not a very courteous superiority. But we might be

(k) Nov. 117, c. 14, and Van Leeuwen in loc. (1) I Sid. 113. 3 Kebb. 433

(m) 2 Lev. 128.

(n) Stra. 1207.
(0) Stra. 478, 875.

inclined to think this merely an unmeaning technical phrase, if we did not recollect, that if the baron kills his feme, it is the same as if he had killed a stranger, or any other per son; but if the feme kills her baron, it is re garded 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 subjection to the authority of her husband. And therefore the law de nominates her crime a species of treason, and condemns her to the same punishinent 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 sen tence of women was to be drawn and burat alive. 4 book, 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 sentence of death

CHAPTER XVI.

OF PARENT AND CHILD.

fнe next, and the most universal relation in nature, is immediately deed 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 childien.

. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "Pater est quem nuptiæ 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 inquire 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.

་་་་་་་་་་ ་་་

(a)® Ff. 2, 4, 5.

and might have been executed, for the first offence in simple larceny, bigamy, man slaughter, &c. however learned they were, merely because their sex precluded the possibility of their taking holy orders; though a man, who could read, was for the same crime subject only to burning in the hand and a few months imprisonment. 4 book, 369.

These are the principal distinctions in criminal matters; now let us see how the account stands with regard to civil rights.

Intestate personal property equally divided between males and females; but a son, though younger than all his sisters, is heir to the whole of real property.

A woman's personal property, hy marriage, becomes absolutely her husband's, which at his death he may leave entirely away from her; but if he dies without will, she 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 husband is absolutely master of the profits of the wife's lands du ring the coverture; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life; but the wife is entirled only to dower, or one third, if she survives, out of the husband's estates of inheritance; but this she has, whether she has had a child or not.

But a husband can be tenant by the curte sy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband. 3 P. Wms. 229.

With regard to the property of women, there taxation without representation; for they

pay taxes without having the liberty of voting for representatives; and indeed there seems at present no substantial reason why single 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 seducer of his daughter's virtue, but by stating that she is his servant, and that by the consequences of the seduction, he is deprived of the benefit of her labour; or where the seducer, at the same time, is a trespasser upon the close or premises of the parent. But when by such forced circumstances the law can take cognizance of the offence, juries disregard the pretended injury, and give damages commen surate to the wounded feelings of a parent.

Female virtue, by the temporal law, is per fectly exposed to the slanders of malignity and falsehood; for any one may proclain in conversation, that the purest maid, or the chastest matron, is the most meretricious and incontinent of women, with impunity, or free from the animadversions of the temporal courts. Thus female honour, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned calumni. ator. 3 book, 125.

From this impartial statement of the ac count, I fear there is little reason to pay a compliment to our laws for their respect and favour to the female sex.

As to the interest which the husband has in the chattels real and choses in action of his wife if he survive her, and what interest his representatives have if she survive him, 1 should recommend to the student's perusal Mr. Butler's note of Co. Liit, 351. alm.i