CHAPTER THE SIXTEENTH. OF PARENT AND CHILD. THE next, and the most universal re lation in nature, is immediately derived from the preceding, being that between parent and child. Children are of two forts; legitimate, and fpurious, or baftards: Each of which we fhall confider in their order; and, first, of legitimate children. "Pater I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "eft quem nuptiae demonftrant," 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 s in England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be faid 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 fuch children to their parents. 1. And, firft, the duties of parents, to legitimate children Which principally confift in three particu lars; their maintenance, their protection, and their edu eation. The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, a Ff. 2. 4. 5. с gation, fays Puffendorf, 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 iffue, if they only gave their children life, that they might afterwards fee 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 preferved. And thus the children will have a perfect right of receiving maintenance from their parents. And the President Montefquieu e has a very juft obfervation 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 afcertains and makes known the person who is bound to fulfil this obligation: Whereas, in promifcuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;-fhame, remorfe, the conftraint of her sex, and the rigour of laws;-that ftifle her inclinations to perform this duty: And befides, fhe generally wants ability. The municipal laws of all well regulated ftates have taken care to enforce this duty: Though providence has done it more effectually than any laws, by implanting in the breaft of every parent that natural rogy, or infuperable degree of affection, which not even the deformity of perfon or mind, not even the wickedness, ingratitude, and rebellion of children, can totally fupprefs or extinguish. d The civil law 4 obliges the parent to provide maintenance for his child; and, if he refufes, judex de ea re " cognofcet." Nay, it carries this matter fo far, that it will not fuffer a parent at his death totally to difinherit his child, without expressly giving his reason for so doing; and there are fourteen fuch reasons reckoned up, which may justify fuch difinherifon. If the parent alleged no reason, or a bad, or a falfe one, the child might set the will aside, tanquam teftamentum inofficiofum, a teftament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in fuch a cafe: By fuggesting that the parent had loft the use of his reason, when he made the inofficious teftament. And this, as Puffendorf obferves, was not to bring into dispute the testator's power of difinheriting his own offspring; but to examine the motives upon which he did it: And, if they were found defective in reason, then to fet them aside. But perhaps this is going rather too far: Every man has, or ought to have, by the laws of fociety, a power over his own property: And, as Grotius very well dif tinguishes 8, natural right obliges to give a neceffary 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 pofitive conftitutions of the municipal law. Let us next fee what provifion our own laws have made for this natural duty. It is a principle of law", that there is an obligation on every man to provide for thofe defcended from his loins; and the manner in which this obligation fhall be performed, is thus pointed out. The father, and mother, grandfather, and grandmother of poor impotent perfons fhall maintain them at their own charges, if of fufficient ability, according as the quarter feffion fhall direct: And k if a parent runs away, and leaves his children, the church. wardens and overfeers of the parifh fhall feize his rents, goods, and chattels, and difpofe 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 fuch fecond marriage of fufficient ability to keep the child, the hufband fhall be charged to maintain it 1: For this being a debt of hers, when fingle, fhall like others extend to charge the hufband. But at her death, the relation being dif folved, the husband is under no farther obligation. fl. 4. c. 11. §. 7. No i Stat. 43 Eliz. c. 2. g Dej.b. & p. l. 2. c. 7. n. 3. k Stat. 5 Geo. I. c. 8. h Raym. 500. 1 Styles, 283. 2 Bulstr. 346, No perfon is bound to provide a maintenance for his iffue, unless where the children are impotent and unable to work, either through infancy, difeafe, or accident; and then is only obliged to find them with neceffaries, the penalty on refufal being no more than 20s. a month. For the policy of our laws, which are ever watchful to promote induftry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: But thought it unjuft to oblige the parent, against his will, to provide them with fuperfluities, and other indulgences of fortune; imagining they might truft to the impulfe of nature, if the children were deferving of fuch favours. Yet, as nothing is fo apt to ftifle the calls of nature as religious bigotry, it is enacted m, that if any Popish parent fhall refuse to allow his Proteftant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor fhall, by order of court, constrain him to do what is juft and reasonable. But this did not extend to perfons of another religion, of no less bitterness and bigotry than the popifh: And, therefore, in the very next year we find an inftance of a Jew of immense riches, whofe only daughter having embraced Chriftianity, he turned her out of doors; and, on her application for relief, it was held fhe was entitled to none ". But this gave occafion to another ftatute P, which ordains, that if Jewifh parents refufe to allow their Proteftant children a fitting maintenance suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he fhall fee proper. Our law has made no provifion to prevent the difinheriting 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 amifs, if the parent had been bound to leave them at the leaft a neceffary fubfiftence. Indeed, among m Stat. 11 & 12 W. III. c. 4. n Lord Raym. 699. • Com. Journ. 18 Feb. 12 Mar. 17012 among perfons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the eftate fettled upon the eldest, by the marriage articles. Heirs also, and children, are favourites of our courts of justice, and cannot be difinherited by any dubious or ambiguous words; there being required the utmoft certainty of the teftator's intentions to take away the right of an heir 9. From the duty of maintenance we may eafily pafs to that of protection; which is also a natural duty, but rather permitted than enjoined by any municipal laws: Nature, in this refpect working fo ftrongly as to need rather a check than a fpur. A parent may, by our laws, maintain and uphold his children in their lawfuits, without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defence of the perfons of his children: Nay, where a man's fon was beaten by another boy, and the father went near a mile to find him, and there revenged his fon's quarrel by beating the other boy, of which beating he afterwards unfortunately died; it was not held to be murder, but manslaughter merely t. Such indulgence does the law fhew to the frailty of human nature, and the workings of parental affection. The laft duty of parents to their children is that of giving them an education fuitable to their station in life: A duty pointed out by reason, and of far the greatest importance of any. For, as Puffendorf very well obferves", it is not eafy to imagine or allow, that a parent has conferred any confiderable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and fuffers him to grow up like a mere beaft, to lead a life useless to others, and fhameful to himself. Yet the municipal laws of moft countries feem to be defective in this point, by not conftraining the parent to bestow a proper education qi Lev. 130. r 2 Inft. 564. t Cro. Jac. 296. 1 Hawk. P. C. 83. u L. of N. b. 6. c. 2. §. 12. |