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for it is a common law-right, inherent in every one, to protect his own pupil. Such are the leading features of the law of master and servant. The modern tiger has not been regarded by the ancient Constitution; but we find in * Petersdorff’s Abridgment a quaint allusion to the legs of footmen, some of whom, he says, appear to be regularly calved out for the prominent situations they occupy.
of HUSBAND AND WIFE.
WE now come to treat of Husband and Wife, and shall inquire, first, how marriages may be made, which will be interesting to lovers; secondly, how marriages may be dissolved, which will be interesting to o couples; and lastly, what are the legal effects of marriage, which will be interesting to those who have extravagant wives, for whose debts the husbands are liable. To make a marriage three things are required;—first, that the parties will mari. secondly, that they can ; and thirdly, that they do; though to us it seems that if they do, it matters little whether they will, and that if they will, it is of little consequence whether they can ; for if they do, they do; and if they will, they must, because where there is a will there is a way, and therefore they can if they choose; and if they don't, it is because they won't, which brings us to the conclusion, that if they do, it is absurd to speculate upon whether they will and can marry. It has been laid down very clearly in all the books, that in general all persons are able to marry, unless they are unable, and the fine old constitutional maxim, that “a man may not marry his grandmother,” ought to be written in letters of old over every domestic hearth in the ritish dominions. There are some legal disabilities to a marriage, such as the slight impediment of being married already; and one or two other obstacles, which are too well known to require dwell
ing on. i. a father's heart should happen to be particularly flinty, a child under age has
* Wide MS. marginal note, in pencil, in the author's own copy of this able work.
no remedy, but a stony guardian may be macadamised by the Court of Chancery; that is to say, a marriage to which he objects may be ordered to take place, in spite of him. Another incapacity is want of reason in either of the parties; but if want of reason really prevented a marriage from taking place, there would be an end to half the matches that are entered into. A considerable deal of the sentiment attaching to a love affair has been smashed by the 6th and 7th of William IV., c. 85, explained by the 1st of Victoria, c. 22, —for one Act is always unintelligible until another Act is passed to say what is the former's meaning. This statute enables a F. of ardent lovers to rush to the office of the superintendant registrar, instead of to Gretna Green; and there is no doubt that if Romeo could have availed himself of the wholesome section in the Act alluded to, Juliet need not have paid a premature visit to the “tomb of all the Capulets.” Marriages could formerly only be dissolved by death or divorce; but the New Poor Law puts an end to the union between man and wife directly they enter into a parochial Union. Inivorce, except in the instance just alluded to, is a luxury confined only to those who can afford to pay for it; and a husband is compelled to allow money—called ali-money—to the wife he seeks to be divorced from. Marriages, it is said, are made in Heaven, but unless the office of the registrar be a little paradise, we don’t see how a marriage made before that functionary can come under the category alluded to. A husband and wife are one in law— though there is often anything but unity in other matters. A man cannot enter into a legal agreement with his wife, but they often enter into disagreements which are thoroughly mutual. If the wife be in debt before marriage, the husband, in making love to the lady, has been actually courting the cognovits she may have entered into ; and if the wife is under an obligation for which she might be legally attached, the husband finds himself the victim of an unfortunate attachment. A wife cannot be sued without the husband, unless he is dead in law; and law is really enough to be the death of any one. A husband or a wife cannot be witness for or against one another, though a wife sometimes gives evidence of the bad taste of the husband in selecting her. A wife cannot execute a deed; which is, perhaps, the reason why Shakspeare, who was a first-rate lawyer, made Macbeth do the deed, which Lady Macbeth would have done so much better, had not a deed done by a woman been void to all intents and purposes. By the old law, a husband might give his wife moderate correction; but it is declared in black and white that he may not beat her black and blue, though the civil law allowed any man on whom a woman had bestowed her hand, to bestow his fists upon her at his own discretion. The common people, who are much attached to the common law, still exert the privilege of beating their wives; and a woman in the lower ranks of life, if she falls in love with a man, is liable, after marriage, to be a good deal struck by him. Such are the chief legal effects of marriage, from which it is evident, says Brown, that the law regards the fair sex with peculiar favour; but Smith maintains that such politeness on the part of the law, is like amiability from a hyaena —an animal that smiles to; On those whom it means mischief to.
OF PARENT AND CHILD.
WE now come to the tender subject of parent and child, which Shakspeare has so tenderly touched upon in many of his tragedies. Macduff calls his children “chickens,” probably because he “broods” over the loss of them; and Werner, in Lord Byron's beautiful play of that name, exclaims to Gabor, “Are you a father?” a question which, as the Hungarian was a single man, he could not have answerd in the affirmative without rendering himself amenable to the very stringent provisions of the 45th of Elizabeth. Children are of two sorts—boys and i. though the lawyers still further ivide them into legitimate and illegitimate. The duties of a parent are maintenance and education; or, as Coke would have expressed it, grub and grammar. That the father has a right to maintain his child is as old as Montesquieu-we mean, of course, the rule, not the child or the
parent is as old as Montesquieu-whose exact age, bye the bye, we have no means of knowing. Fortunately, the law of nature chimes' in with the law of the land; for, though there is a game, called “None of my child,” in which it is customary to knock an infant about from one side of the room to the other still there is that natural arop) m in the parental breast that fathers and mothers are for the most part willing to provide for their offspring. he civil law will not allow a parent to disinherit his child without a reason; of which reasons there are fourteen, though there is one reason, namely, having nothing to leave, which causes a great many heirs to be amputated, or cut off even without the ceremony of performing the operation, with a iii. Our own law is more civil to parents than the civil law, for in this country children are left to Fate and the Quarter Sessions, which will compel a father, mother, grandfather, or grandmother, to provide for a child, if of sufficient ability. If a parent runs away, that is to say, doth spring off from his offspring, the churchwardens and overseers may seize his goods and chattels, and dispose of them for the maintenance of his family; so that, if a man lodging in a garret leaves nothing behind him, that must be seized for the benefit of the deserted children. By the late Poor Law Act, a husband is liable to maintain the children of his wife, whether legitimate or illegitimate; and we would therefore advise all “persons about to marry,” that though it is imprudent to count one's chickens i. they are hatched, still it is desirable that chickens already hatched, and not counted on, should be rigidly guarded against. It being the policy of our laws to promote industry, no father is bound to contribute to a child's support more than twenty shillings a month, which keeps the child continually sharp set, and is likely to promote the active growth of the infantine appetite. Our law does not prevent a father from disinheriting his child; a circumstance which has been invaluable to our dramatists, who have been able to draw series of delightful stage old men, who have a strong hold on the filial obedience of the walking ladies and gentlemen, who dare not rush into each other's arms, for fear of the old gentleman in a court coat and large shoe-buckles being unfavorable to the youth in docks, or the maiden in muslin. Heirs are especial favourites of our courts of justice—much as the lamb is the especial favourite of the wolf—for an heir with mint sauce, that is to say, with lots of money, is a dainty dish indeed to tempt the legal appetite. A parent may protect his child; and thus, if one boy batters another boy, the parent of the second boy may batter the first boy and the battery is justifiable, for such battery is in the eye of the law onl the working of parental affection; thoug it is rather awkward for parental affection to take a pugilistic turn in its extraordinary zeal to show itself. The last duty of a parent is to educate a child, or to initiate him into the mysteries of Mavor at an early period. Learning is said to be better than houses and land—probably because it opens a wide field for the imagination—that Cubitt of the mind—to build upon. The old Romans, says Hale, used to be able to kill their children; but he adds that “the practysse off cuttinge offe one's own hair was thougghte barber-ous.” This atrocious pun reminds us of the cruelty of a certain dramatist of modern times, who used to write pieces and take his own children to see them, thereby submitting his own offspring to the most painful ordeal, for they were compelled to sit out the whole performance, and were savagely pinched if they fell asleep, while they were, at the same time, expected to laugh and look cheerful at every attempt at a joke which their unnatural father had ventured to perpetrate. In conformity with the maxim that “paterna potestas in ietate debet non in atrocitate consistere,” it is believed that a child in such a dreadful position as that which we have alluded to, might claim to be released by his next friend, for the time being, the boxkeeper. A parent may correct his child with a rod or a cane—a practice originally introduced to encourage the growers of birch, and to protect the importers of bamboo, as well as to promote the healthy tingling of the juvenile veins; and a schoolmaster, who is in loco parentis, is also empowered to do the like by an old Act of Parliament, known as the statute of Wapping.
Children owe their parents support; but this is a mutual obligation, for they must support each other—though we sometimes hear them declaring each other wholly unsupportable.
Illegitimate children are such as are born before wedlock; being, like Richard the Third, “sent before their time into this breathing world:” and though there is a fine maxim, to the effect of its being “better late than never,” it is in some cases, better to be late than too early. They are said to be nullius filii, or nobody's children: but so many people are now the children of mere nobodies, that all the old prejudices on this point against innocent parties are becoming quite obsolete, as they ought to be.
There is now no distinction between the two kinds we have named, except that one cannot inherit, and the other can ; but some of those who can can’t, and some of those who can are enabled to do what is far better—namely, to give instead of taking.
OF GUARDIAN AND WARD.
A GUARDIAN is a sort of temporary parent to a minor, a kind of tarpaulin thrown over the orphan to shield him from the storms of life during his infancy —or, if we may use an humbler illustration, a guardian is a kind of umbrella, put up by the law over the ward, to keep off the pelting of pitiless storms till the years of discretion are arrived at. There are various kinds of guardians, such as guardians by nature, and guardians for nurture, who are of course the parents of the child; for if an estate be left to an infant, the father is guardian, and must account for the profits; but as the father can control the child's arithmetical studies, it is easy for the latter to be brought up in blessed ignorance of accounts, and thus the parent may easily mystify the child when the rofits of the estate are to be accounted or. The mother is the guardian for nurture; that is to say, she is expected to nurse the infant, and the law being very fond of children requires the mother to look to the infantine wardrobe. It also invests her with the absolute power over the milk and water, the bread and butter, making her a competent authority—from which there is no appeal—on all points of nursery practice. Next comes the guardian in socage—so called, perhaps, from the quaint notion that guardianship generally extends to those who wear socs—or socks—which is further borne out by the fact that guar: dianship in socage ceases when the child is fourteen years old—which is about the age when socks are relinquished in favour of stockings. These guardians in socage are such as cannot inherit an estate to which a child is entitled, for Coke says that to commit the custody of an infant to him who is next in succession, is “quasi agnum committere lupo,” to hand over the lamb to the wolf, and thus says Fortescue, in one of those rascally puns for which the old jurists were infamous, “the law, wishing the child to escape from the lupo has left a loop-hole to enable him to do so.” Selden has cleared this pun of a good deal of its ambiguit * changing the word lupo into loop-ho, but Chitty and all the later writers are utterly silent regarding it. the 12th of Charles II. confirmed by 1st Victoria, any father may appoint, by will, a guardian to his child till the latter is twenty-one; but it is twenty to one whether such a guardian—called a testamentary guardian—will be able to exercise proper control over the infant. Guardians in chivalry have been abolished, and so have the guardians of the night, who on the lucus a non lucendo rinciple, were called watchmen from the #. of their never watching. The Lord Chancellor is the general guardian of all infants, and especially of idiots and lunatics, for as Chancery drives people mad, it is only right that Chancery should take care of those who are afflicted with insanity, and who may be called the natural offspring of equity. Having disposed of the guardians, let us come to the wards, or, as Coke would say, “having got rid of the wolf, let us discuss the lamb in an amicable spirit.” A male of twelve years of age may take the oath of allegiance; but this does not apply to all males, for the Hounslow mail” can take nothing but two insides and the letters. At fourteen a boy may marry if he
* The learning on the subject of the Hounslow Mail is fast becoming obsolete, a regular mail-cart having been recently substituted for the cab that previously carried it.
can find any one fool enough to have him, and at twenty-one he may dispose of his property, so that he may throw himself away seven years sooner than he can throw away, his money. By the law of England a girl may be given in marriage at seven, but surely this must mean the hour of the day at which she may be married, and not the age at which the ceremony may be performed. Formerly children might make their wills at fourteen, but as they could not be expected to have a will of their own, it has been enacted that no will made by a person under twenty-one shall be valid. Among the Greeks and Romans, women were never of age, and if they had their way in this country a good many of them never would be. This law must have been the civil law, for its consideration towards the fair sex on a matter of so much delicacy as a W.” of age betokens extreme civility. When this wore away, the Roman law was so civil as to regard them as infants till they were five-and-twenty—which was meeting the ladies half-way by treating them as little innocents for the first quarter of a century of their precious existences. Infants have various privileges, such as the common law privilege of jumping over the posts at the corners of the streets, and playing at hop-scotch or rounders in retired neighbourhoods. Another infantine privilege is the juvenile amusement of ; to law, which a child may do by is guardian or his prochein ami, or next friend—though, by the bye, he must be a pretty friend who would help another into a law-suit. A child may certainly be hanged at fourteen, and certainly may not be hanged at seven, but the intermediate period is one of doubt whether the infant culprit is hangable. Hale gives two instances of juvenile executions in which two infant prodigies were the principal characters. One was a girl of thirteen, who was burned for killing her mistress; and the other a boy still younger, who, after murdering one of his comanions by a severe hiding, proceeded to #. himself and was declared in legal language, doli capaa’-up to snuff—or, to follow the Norman jurists, en haut du tabac, and hanged accordingly. It is a fine maxim of the English law, that an infant shall not lose by laches, or, in other words, that the stern old doctrine of no askee no
havee does not apply to a child who is entitled to something which he neglects asking for. An infant cannot bind himself, but he may be “stitched in a neat wrapper”— that is to say, a Tweedish wrapper—at his own cost, if he thinks proper to go and pay ready money for it. An infant cannot convey away his own estate, but he may run through his own property as fast as he likes, for if he has a field he may run across it—in at one end and out at the other—whenever he feels disposed for it. An infant trustee may convey an estate that he holds in trust for another person, though he may not be a party in a conveyance on his own account, yet he may, neverthless, join a party in a public conveyance, such as an omnibus. An infant may present a clerk to the Bishop, but if the Bishop don't like the clerk, he may turn upon his heel; but still the presentation does not fall by lapse into the laps of the Bishop. An infant may bind himself for necessaries, such as food and physic; thus, if he gives a draft to pay for a pill, or contracts with a butcher to supply what is requisite and meet, he will be clearly liable. - In weighing the disabilities and privileges of infants, we come to the conclusion, that, to every six of one, there will be about half-a-dozen of the other.
THE pleadings, though now in writing, were formerly carried on by word of mouth, and the parties used to meet to talk each other down with declarations and pleas, until the court, by giving its opinion, put a o to the quarrel. He who could jaw the longest, had of course the best chance under the old system.
The pleadings begin with declaration, anciently called the tale, though it was by no means like the tale of Othello, a “round, unvarnished one.” . By the way, as a round tale could come to no definite end, the law is perhaps right in disregarding such a tale, as savouring of rigmarole. The declaration sets forth the plaintiff's grievances in a most exaggerated style; and in making his complaint he lays it on alarmingly thick, in conformity with the old maxim, that some is sure to stick
when such a plan is resorted to. He, in fact, twists the matter into every possible shape, like the ingenious individual who attends fairs and races, professing to fold “a single sheet of paper into six-andtwenty different forms.” After the declaration comes the plea, in which, the defendant sometimes simply gives the lie to the plaintiff, and at j. times the latter shuffles and prevaricates to such an extent that the former is completely flabbergasted. The facts of the case then become so thoroughly mystified, that they are lost sight of altogether, and the whole matter becomes a question of law, when the parties themselves, no longer understanding their own dispute, give the thing up to the lawyers, who frit. ter away the real cause of contention in demurrers and nice points, that are only nice to those who get nice pickings out of them. Pleas are of two kinds: dilatory pleas, and pleas to the action. Dilatory pleas, like the order on board a steam-packet, to “Ease her,” are only to make the action slower. Such pleas are soon answered, and the other party can “go on a-head” with the action immediately afterwards. Dilatory pleas are—1st. To the jurisdiction. As, if the Court of Requests should propose to try a right of way, then its jurisdiction might be denied by a plea, unless it was a right of way through the mob, which usually chokes up the path to its own fountain of justice, the commissioner's seat on the mantelpiece. 2nd. To the disability of the plaintiff. . As, if he should be an infant, or a monk, or an outlaw, or all three at once, he is said to be disabled from coming into court; but a disabled soldier, who has lost his limbs, is not thought unfit to go into legal action, though when he comes into court he may not have a leg to stand upon. 3rd. In abatement. As, if the plaintiffshould die, though he may have had a good action, his good actions do not live after him, but must, as Shakespeare says be “interred with his bones.” A plea to the action either gives the R. the lie direct, by denying his eclaration, or prevaricates, by confessing that there was some truth in it at one time, but that the grievance has been somehow or other atoned for. This is called confession and avoidance; but the avoidance of a just claim too frequently