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CHAPTER XVI.

Parent and child.

I. Legitimate children.

1st. Duties

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 afterward.' "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.

1. And, first, the duties of parents to legitimate children; of parents. which principally consist in three particulars: their maintenance, their protection, and their education.

children.

[447] The duty of parents to provide for the maintenance of their The duty of children is a principle of natural law; an obligation, says Pufmaintaining fendorf,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 their children life that they might afterward see them perish. By begetting them, therefore, they have entered into a voluntary obligation to endeavor, 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

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(1) In the great case of the Antenatus country in which he was born, he is nev(Doe v. Vardill, 5 B. & C., 43, 8, 44; 6 ertheless still a bastard, so far as regards Bing., N. C., 385; Bligh., N. S., 479; the inheritance of lands in England; 9, 32; 2 Cl. & Fin., 582; Moylan's Re- see, however, Story's Conflict of Laws, port of the case), it was decided that p. 117-143, and 7 Čl. & Fin., 817, 842. even where a bastard, by the subsequent marriage of his parents, becomes legitimate according to the laws of the

(2) As to this period, vide infra, p 456.

Montesquieuc 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 fulfill 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.

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 oropyn, 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 lawd 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 a false one, the child might set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent. And it [448] is remarkable under what color 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,s 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 favor of their parents, or the positive constitutions of the municipal law.

vided for by

Let us next see what provision our own laws have made for How enforthis natural duty. It is a principle of lawh that there is an ob- ced and proligation on every man to provide for those descended from his law. loins; and the manner in which this obligation shall be per

Sp. L., b. 23, c. 2.
d Ff., 25, 3, 5.
e Nov., 115.

(3) But the common law of England never afforded any means of enforcing it, if it existed; see 4 E., 84; 4 Ad. &

f 1. 4, c. 11, § 7.

De J. B. et P., 1. 2, c. 7, n. 3.
Raym., 500.

El., 899; though it seems to be an in-
dictable offense to refuse or neglect to
provide sufficient food, bedding, &c.,

[449]

formed is thus pointed out. 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 Session shall direct; and if a parent runs awayk and leaves his children, the church-wardens and overseers of the parish shall' seize his rents, goods, and chattels, and dispose of them toward 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 ; 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 further obligation.

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 20s. a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to

iStat. 43 Eliz., c. 2.
* Stat. 5 Geo. I., c. 8.

and so to injure the health of any infant
of tender years, servant, apprentice, or
child, unable to provide for itself, whom
the party is obliged by duty or contract
to provide for; see Russ. & Ry., C. C.,
20; 2 Camp., 650.

(4) Or two justices in petty session, subject to appeal to the Quarter Sessions; see 59 Geo. III., c. 12, s. 26. This liability may be enforced by sect. 56 of the Poor Law Amendment Act (4 & 5 Wm. IV., c. 76), which enacts that all relief given under that law to any child or children under the age of sixteen years (not being blind or deaf and dumb) shall be considered as relief to the father, or, if he be dead, to his widow, and may be recovered from such persons by the mode prescribed in the act; see sect. 78.*

(5) But not without an order from two justices, which must state for how long the rents are to be appropriated, how much of such goods and chattels are to be seized, and the amount of relief to be raised; see 6 E., 166.

(6) This doctrine has been overruled,

Styles, 283; 2 Bulstr., 346.

and the obligation in the text decided to extend only to relations by blood; see 2 Str., 955; 4 T. R., 118; 4 E., 76, 82; 4 B. & A., 118. But by the 57th sect. of the Poor Law Amendment Act (4 & 5 Wm. IV., c. 76), the husband by his marriage becomes liable to maintain the children of his wife, whether legitimate or illegitimate, until the age of sixteen years, or the death of the mother.

(7) The amount of maintenance is in the discretion of the justices, and is not limited by the amount of the penalty for disobedience. If the father disobey the order, he may also be proceeded against by indictment (2 Burr., 799); or his goods may be distrained under 43 Eliz., c. 2, s. 2, 11.

A father is also liable on his child's contracts for necessaries but only on proof of an express or implied assumpsit; see 6 A. & E., 710. What articles are necessaries is a question of fact, to be decided by the jury under the direc tion of the court, after proof of the infant's age and station in life; see 6 M. & W., 42; 1 Man. & Gr., 550; and infra, p. 466, n. 25.

In N. Y. there is a similar legislative provision for the maintenance, not only of impotent parents, but of impotent children: parents being required to take care of their children, and children of their parents.-(1 R. S., 614, § 1.)

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 indulgen-
ces of fortune, imagining they might trust to the impulse of
nature, if the children were deserving of such favors. Yet, as
nothing is so apt to stifle the calls of nature as religious bigot-
ry, it enactedm that if any popish parent shall refuse to allow
his Protestant child a fitting maintenance, with a view to com-
pel him to change his religion, the lord chancellor shall, by or-
der 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 rich-
es, whose only daughter having embraced Christianity, he
turned her out of doors; and, on her application for relief, it
was held she was entitled to none." But this
gave occasiono
to another statute,P which ordains, that if Jewish parents re-
fuse to allow their Protestant children a fitting maintenance
suitable to the fortune of the parent, the lord chancellor, on com-
plaint, may make such order therein as he shall see proper.

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 pa- [450] rent had been bound to leave them at the least a necessary subsistence. Indeed, 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 favorites of our courts of justice, and can not 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

From the duty of maintenance we may easily pass to that of The duty of protecting protection, which is also a natural duty, but rather permitted children. than enjoined by any municipal laws; nature, in this respect, working so strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their lawsuits without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defense of the persons of his children:s nay, where a

m Stat. 11 & 12 Wm. III., c. 4.

Lord Raym., 699.

• Com. Journ., 18 Feb., 12 Mar., 1701. P 1 Ann., st. 1, c. 30.

(8) But on referring to the case, it will be seen that this decision was not based on her want of title to relief, but on the want of a statement in the magistrate's order that she was likely to become chargeable to the parish.

q 1 Lev., 130.

r2 Inst., 564.

1 Hawk., P. C., 131.

(9) The favor of our laws to heirs appears also in granting issues to try the validity of wills purporting to disinherit, in the doctrine of election, in all questions of costs, in the legacy duties, and many other instances.

The duty of educating children.

man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterward unfortunately died, it was not held to be murder, but manslaughter merely. Such indulgence does the law show to the frailty of human nature, and the workings of parental affection.

The last duty of parents to their children is that of giving them an education suitable to their station in life; a duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well observes," it is not easy to imagine or allow that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he afterward entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shame[451] ful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labor under those griefs and inconveniences which his family, so uninstructed, will be sure to bring upon him. Our laws, though their defects in this particular can not be denied, have, in one instance, made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children,w and are placed out by the public in such a manner as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. The rich, indeed, are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. Yet in one case, that of religion, they are under peculiar restrictions; for it is provided, that if any person sends any child under his government beyond the seas, either to prevent its good education in England, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent, or person sending, shall forfeit £100, whichy shall go to the sole use and benefit of him that shall discover the offense. And if any parent or other shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in any priory, abbey, nunnery, popish university, college, or school, or house of Jes

t Cro. Jac., 296; 1 Hawk., P. C., 83.
u L. of N., b. 6, c. 2, § 12.
See page 426.

(10) It would seem from Foster, 294, and 2 Ld. Raym., 1498, that the father only struck the child once, and with a small cudgel; so that, as Mr. Justice

Stat. 1 Jac. I., c. 4, and 3 Jac. I., c. 5. y Stat. 11 & 12 Wm. III., c. 4. Stat. 3 Car. I., c. 2.

Coleridge observes, the ground of this decision was the absence of any fact denoting malice, rather than indulgence shown to parental passion.

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