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uits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing toward their maintenance when abroad, by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be execu tor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit [452 ] all his goods and chattels, and likewise all his real estate for life."

parents over

their legiti

mate chil

dren.

2. The power of parents over their children is derived from 2. Power of the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it. And, upon this score, the municipal laws of some nations have given a much larger authority to the parents than others. The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away. But the rigor of these laws was softened by subsequent constitutions; so that we find a father banished by the Emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "patria potestas in pietate debet, non in atrocitate, consistere." But still they maintained to the last a very large and absolute authority; for a son could not acquire any property of his own during the life of his father, but all his acquisitions belonged to the father, or at least the profits of them, for his life.

The power of a parent, by our English laws, is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner;d for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age was also directed by our ancient law to be obtained; but it is now absolutely necessary, for without it the contract is void.e1 And this, also, is another means which the law has put into the parent's hands, in or

a Ff., 28, 2, 11; Cod., 8, 47, 10. b Ff., 48, 9, 5.

c Inst., 2, 9, 1.

(11) These disabilities ceased by the operation of 31 Geo. III., c. 32; see note to Co. Litt., 391, a. Mr. J. Coleridge, nevertheless, doubts whether that act had any such effect; Mr. Chambers, also, even after the Roman Catholic Relief Bill (10 Geo. IV., c. 7), considered the statutes in the text as still in force; see Chamb. on Inf., p. 121. These doubts, however, seem scarcely tenable since the passing of 2 & 3 Wm. IV., c. 115, which was intended to place Roman Catholics

d 1 Hawk., P. C., 130.

e Stat. 26 Geo. II., c. 33.

upon the same footing, with respect to
their schools, chapels, charities, &c., as
Protestant Dissenters; since which act
it has been expressly held that bequests
for the promotion of that religion are
lawful.-2 M. & K., 221, 684. See, also,
the observations on the subject of these
disabilities by Lord Eldon (Jac., 264, n.),
and Lord Cottenham (4 M. & C., 687).

(12) But now only voidable; vide
supra, p. 438, n. 12.

der the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. A father has no other power over his son's estate than as his trustee [453] or guardian; for though he may receive the profits during the child's minority, yet he must account for them when he comes of age." He may, indeed, have the benefit of his children's labor while they live with him and are maintained by him, but this is no more than he is entitled to from his apprentices or servants. The legal power of a father" (for a mother, as such, is entitled to no power, but only to reverence and respect'), the power of a father, I say, over the persons of his

(13) And even before that time, if the infant, by his next friend, bring him to an account in the Court of Chancery; which court will not only protect the infant's property, but will manage and improve it for his benefit until he comes of age, and, in some cases, after that event, making allowances in the mean time for education, maintenance, &c., in proportion to the annual income of the property. It must not be forgotten, however, that the costs of all proceedings incident to such a suit are defrayed out of the estate; see, further, on this subject, infra, p. 463, n. 13.

(14) As to the mode by which a father may regain the custody of the person of his child by writ of habeas corpus, see the cases cited in 4 Ad. & El., 624; and as to the offense of child steal ing, see 54 Geo. III., c. 101.

(15) Until recently, the mother might be excluded by the father from all access to her children; and, though he did so

avowedly for extortion or intimidation, every mother had failed in her attempt to induce the courts to relax this rule; see the cases cited in 4 Ad. & El., 624. Even the Court of Chancery never interfered with the legal right of the father to absolute dominion over his infant children, being wards of court, unless upon distinct proof that the father was of immoral and irreligious principles, and that his children were likely to be corrupted by him; see 10 Ves., 58; Jac., 264, n.; 2 Russ., 1; 2 Sim., 35. But now, by 2 & 3 Vict., c. 54, a mother (unless an adulteress) may, by petition to the lord chancellor or master of the rolls, obtain an order for access to her infant children; but at such times only, and subject to such regulations, as the court shall think proper; and if such infant or infants shall be within the age of seven years, the mother may obtain an order that they shall be delivered to and remain in her custody until attaining such age, subject to such regulations as aforesaid; see 10 Sim., 291; 11 Sim., 178.*

* In New York still greater respect is shown to maternal affection; for there the mother may, if the circumstances of the case require it, obtain the custody of the child not only until it attains the age of seven years, but during its minority for a wife living separate from her husband, but not divorced, may sue out a habeas corpus to have a minor child of the marriage brought before the Supreme Court, which, upon due consideration, may award the custody and charge of the child to the mother, for such time and under such regulations as it may see fit to prescribe, the court retaining power from time to time to vary, modify, or annul its order.-(2 R. S., 148, § 1, 2, 3.) The act 2 & 3 Vict., c. 54, passed in 1839, was considered in England, as it undoubtedly was, a great amelioration of the common law. The State of N. Y., however, is entitled to the honor of having taken the lead on this subject, as its statute went into operation in 1830. Those statutes worked a great change in the law, as, previous to their passage, the general rule undeniably was that the father, in preference of the mother, where the parents lived separate, was entitled to the custody of the minor children of the marriage, which rule was not departed from but under the most peculiar circumstances.-(19 Wendell, 16, 25; Id., 72, and cases, both English and American, there cited.) As the law now stands, both in England and in New York, the whole matter is referred, as it should be, to the sound discretion of the court, influenced by a regard not only to the welfare of the child, but to the per

16

children ceases at the age of twenty-one; for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established), when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may, by his will, appoint a guardian to his children. He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis," and has such a portion of the power of the parent committed to his charge, viz., that of restraint and correction, as may be necessary to answer the purposes for which he is employed.

children.

3. The duties of children to their parents arise from a princi- 3. Duties of ple of natural justice and retribution; for to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents which are enjoined by positive laws; and the Athenian laws carried this principle into practice with a scrupulous kind of nicety, obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity has been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelihood. The legislature, [454] says Baron Montesquieu,s considered that, in the first case, the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in de

f Potter's Antiq., b. 4, c. 15.

(16) Unless the father, by consenting to his child's marriage previously to attaining that age, has impliedly emancipated him.

Sp. L., b. 26, c. 5.

and offices toward a child," without being the actual parent. The adoption of this character by a testator is always a question of great importance, as many nice and important distinctions exist in (17) This phrase, now in universal the doctrines of ademption of legacies, use, is not confined to a person having maintenance, &c., between cases where the authority of a parent over a child, the testator is in loco parentis to the legabut is applicable to every person" mean- tee, and cases where he is not; see 2 K., ing to adopt any of the parental duties 598; 3 M. & C., 366; 5 M. & C., 35.

manent interests of society, in the due enforcement of matrimonial obligations, and unshackled by the harsh and unbending rules of the common law. For the cases on this subject, see Ex parte M'Dowles, 8 Johns. R., 328; Ex parte Waldron, 13 Id., 418; Ex parte Woolstonecraft, 4 Johns. Ch. R., 80; Ex parte Chegarey, 18 Wendell, 637; Ex parte Nickerson, 19 Id., 16; Ex parte Barry, 8 Paige, 47, 25; Wendell, 68; 3 Hill, 399. See, also, 2 Kent's Comm., 194, n. c; 205, n. b; 220, 221, n. a.

II. Illegitimate chil

dren.

1. Who are bastards.

priving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burden, by furnishing them with no means of subsistence.

Our laws agree with those of Athens with regard to the first only of these particulars, the case of spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any misbehavior of the parent; and, therefore, a child is equally justifiable in defending the person, or maintaining the cause or suit of a bad parent as a good one; and is equally compellable, if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor as for one who has shown the greatest tenderness and parental piety.18

II. We are next to consider the case of illegitimate children, or bastards; with regard to whom let us inquire, 1. Who are bastards; 2. The legal duties of the parents toward a bastard child; 3. The rights and incapacities attending such bastard children.

1. Who are bastards. A bastard, by our English laws, is one that is not only begotten, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterward intermarry ; and herein they differ most materially from our law, which, though not so strict as to require that the child shall be begotten, yet makes it an indispensable condition, to make it legitimate, that it shall be born after lawful wedlock. And the reason of our English law is surely much superior to that of the Roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light, abstractedly from any relig[455] ious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage, therefore, being to ascertain and fix upon some certain person to whom the care, the protection, the maintenance, and the education of the children should belong, this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterward ensues; 1. Because of the very great uncertainty there will generally be in the proof that the issue was generally begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain what child is legitimate, and who is to take care of the child. 2. Because, by the Roman law, a child may be continued a bastard or made legitimate, at the option of the father and mother, by a marriage ex post facto; thereby opening a door

h Stat. 43 Eliz., c. 2.

i Inst., 1, 10, 13; Decret., l. 4, t. 17, c. 1.

(18) A liability which may also be enforced under sects. 56, 78 of the Poor Law Amendment Act.

to many frauds and partialities which, by our law, are vented. 3. Because, by those laws, a man may remain a baspretard till forty years of age, and then become legitimate by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. 4. Because this rule of the Roman law admits of no limitations as to the time or number of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs. Whereas, our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature; for, if a child be begotten while the parents are single, and they will endeavor to make an early reparation for the offense by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock; for this is an incident that can happen but once, since all future children will be begotten, as well as born, within the rules of honor and civil society. Upon reasons like [456] these we may suppose the peers to have acted at the Parliament of Merton, when they refused to enact that children before marriage should be esteemed legitimate.k

From what has been said, it appears that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband that, by the usual course of gestation," they could not be begotten by him. But this being a matter of some uncertainty, the law is not exact as to a few days. And this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate; an attempt which the rigor of the Gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death. In this case, with us, the heir preRogaverunt omnes episcopi mag- tare, quæ hucusque usitata sunt et apnates, ut consentirent quod nati ante probate.-Stat. 20 Hen. III., c. 9. See matrimonium essent legitimi, sicut illi the introduction to the Great Charter, qui nati sunt post matrimonium, quia edit. Oxon., 1759, sub anno 1253. ecclesia tales habet pro legitimis. Et 1 Cro. Jac., 541. omnes comites et barones una voce responderunt quod nolunt leges Angliæ mu

(19) In Co. Litt., 123, b, it is laid down as a positive rule that the extreme period of gestation is forty weeks. But it has been now long settled that our law has not authoritatively established any fixed period for gestation, but that the legitimacy or illegitimacy of a party is always a question of fact, to be decided in each particular case by the jury; who VOL. I.-E E

m Stiernhook, De Jure Gothor., 1. 3,

c. 5.

may, however, receive the testimony of
persons of medical experience as to the
course of nature on this subject, as in the
Gardiner Peerage case, reported by Le
Marchant. The Code Civile, however,
has fixed the period of three hundred
and ten days as a limit to our credulity
respecting retarded births; see l. 1, tit.
vii.

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