The case is the same, if the husband should
be the conformist; though how the law is to operate in this case I do
not see: for the act expressly says, that the child shall be taken from
such Popish parent; and whilst such husband and wife cohabit, it will be
impossible to put it into execution without taking the child from one as
well as from the other; and then the effect of the law will be, that, if
either husband or wife becomes Protestant, both are to be deprived of
their children.
The paternal power thus being wholly abrogated, it is evident that by
the last regulation the power of an husband over his wife is also
considerably impaired; because, if it be in her power, whenever she
pleases, to subtract the children from his protection and obedience, she
herself by that hold inevitably acquires a power and superiority over
her husband.
But she is not left dependent upon this oblique influence: for, if in
any marriage settlement the husband has reserved to him a power of
making a jointure, and he dies without settling any, her conformity
executes his powers, and executes them in as large extent as the
Chancellor thinks fit.
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