guardians. By the common law, if the parties themselves were of the
age of consent, there wanted no other concurrence to make the marriage
valid: and this was agreeable to the canon law. But, by several
statutes[n], penalties of 100_l._ are laid on every clergyman who
marries a couple either without publication of banns (which may give
notice to parents or guardians) or without a licence, to obtain which
the consent of parents or guardians must be sworn to. And by the
statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman child under
the age of sixteen years, without consent of parents or guardians,
shall be subject to fine, or five years imprisonment: and her estate
during the husband's life shall go to and be enjoyed by the next heir.
The civil law indeed required the consent of the parent or tutor at
all ages; unless the children were emancipated, or out of the parents
power[o]: and, if such consent from the father was wanting, the
marriage was null, and the children illegitimate[p]; but the consent
of the mother or guardians, if unreasonably withheld, might be
redressed and supplied by the judge, or the president of the
province[q]: and if the father was _non compos_, a similar remedy was
given[r]. These provisions are adopted and imitated by the French and
Hollanders, with this difference: that in France the sons cannot marry
without consent of parents till thirty years of age, nor the daughters
till twenty five[s]; and in Holland, the sons are at their own
disposal at twenty five, and the daughters at twenty[t]. Thus hath
stood, and thus at present stands, the law in other neighbouring
countries. And it has been lately thought proper to introduce somewhat
of the same policy into our laws, by statute 26 Geo. II. c. 33.
whereby it is enacted, that all marriages celebrated by licence (for
banns suppose notice) where either of the parties is under twenty
one, (not being a widow or widower, who are supposed emancipated)
without the consent of the father, or, if he be not living, of the
mother or guardians, shall be absolutely void. A like provision is
made as in the civil law, where the mother or guardian is _non
compos_, beyond sea, or unreasonably froward, to dispense with such
consent at the discretion of the lord chancellor: but no provision is
made, in case the father should labour under any mental or other
incapacity. Much may be, and much has been, said both for and against
this innovation upon our antient laws and constitution. On the one
hand, it prevents the clandestine marriages of minors, which are often
a terrible inconvenience to those private families wherein they
happen. On the other hand, restraints upon marriage, especially among
the lower class, are evidently detrimental to the public, by hindering
the encrease of people; and to religion and morality, by encouraging
licentiousness and debauchery among the single of both sexes; and
thereby destroying one end of society and government, which is,
_concubitu prohibere vago_. And of this last inconvenience the Roman
laws were so sensible, that at the same time that they forbad marriage
without the consent of parents or guardians, they were less rigorous
upon that very account with regard to other restraints: for, if a
parent did not provide a husband for his daughter, by the time she
arrived at the age of twenty five, and she afterwards made a slip in
her conduct, he was not allowed to disinherit her upon that account;
"_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]."
[Footnote n: 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.]
[Footnote o: _Ff._ 23. 2. 2, & 18.]
[Footnote p: _Ff._ 1. 5. 11.]
[Footnote q: _Cod._ 5. 4. 1, & 20.]
[Footnote r: _Inst._ 1. 10. 1.]
[Footnote s: Domat, of dowries Sec. 2. Montesq. Sp. L. 23. 7.]
[Footnote t: _Vinnius in Inst._ _l._ 1. _t._ 10.]
[Footnote u: _Nov._ 115. Sec. 11.]
4. A FOURTH incapacity is want of reason; without a competent share of
which, as no other, so neither can the matrimonial contract, be valid.
Idiots and lunatics, by the old common law, might have married[w];
wherein it was manifestly defective. The civil law judged much more
sensibly, when it made such deprivations of reason a previous
impediment; though not a cause of divorce, if they happened after
marriage[x]. This defect in our laws is however remedied with regard
to lunatics, and persons under frenzies, by the express words of the
statute 15 Geo. II. c. 30. and idiots, if not within the letter of the
statute, are at least within the reason of it.
[Footnote w: 1 Roll. Abr. 357.]
[Footnote x: _Ff._ 23. _tit._ 1. _l._ 8. & _tit._ 2. _l._ 16.]
LASTLY, the parties must not only be willing, and able, to contract,
but actually must contract themselves in due form of law, to make it a
good civil marriage. Any contract made, _per verba de praesenti_, or
in words of the present tense, and in case of cohabitation _per verba
de futuro_ also, between persons able to contract, was before the late
act deemed a valid marriage to many purposes; and the parties might be
compelled in the spiritual courts to celebrate it _in facie
ecclesiae_. But these verbal contracts are now of no force, to compel
a future marriage[y]. Neither is any marriage at present valid, that
is not celebrated in some parish church or public chapel, unless by
dispensation from the arch-bishop of Canterbury. It must also be
preceded by publication of banns, or by licence from the spiritual
judge. Many other formalities are likewise prescribed by the act; the
neglect of which, though penal, does not invalidate the marriage. It
is held to be also essential to a marriage, that it be performed by a
person in orders[z]; though the intervention of a priest to solemnize
this contract is merely _juris positivi_, and not _juris naturalis aut
divini_: it being said that pope Innocent the third was the first who
ordained the celebration of marriage in the church[a]; before which it
was totally a civil contract. And, in the times of the grand
rebellion, all marriages were performed by the justices of the peace;
and these marriages were declared valid, without any fresh
solemnization, by statute 12 Car. II. c. 33. But, as the law now
stands, we may upon the whole collect, that no marriage by the
temporal law is _ipso facto_ void, that is celebrated by a person in
orders,--in a parish church or public chapel (or elsewhere, by special
dispensation)--in pursuance of banns or a licence,--between single
persons,--consenting,--of sound mind,--and of the age of twenty one
years;--or of the age of fourteen in males and twelve in females, with
consent of parents or guardians, or without it, in case of widowhood.
And no marriage is _voidable_ by the ecclesiastical law, after the
death of either of the parties; nor during their lives, unless for the
canonical impediments of pre-contract, if that indeed still exists; of
consanguinity; and of affinity, or corporal imbecillity, subsisting
previous to the marriage.
[Footnote y: Stat. 26 Geo. II. c. 33.]
[Footnote z: Salk. 119.]
[Footnote a: Moor 170.]
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. Sec. 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: storge], 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. Sec. 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.]