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 beast, 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 beftow a proper education upon upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, fo uninftructed, will be fure to bring. upon him. Our laws, though their defects in this particular cannot be denied, have in one inftance made a wife provision for breeding up the rifing generation: fince the poor and laborious part of the community, when paft the age of nurture, are taken out of the hands of their parents, by the ftatutes for apprenticing poor children; and are placed out by the public in fuch 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 difgraces to their family. Yet in one cafe, that of religion, they are under peculiar reftrictions: for it is. provided, that if any person sends any child under his government beyond the feas, either to prevent it's good education in England, or in order to enter into or reside in any popish college, or to be instructed, perfuaded, or ftrengthened in the popish religion; in fuch cafe, befides the difabilities incurred by the child fo fent, the parent or perfon fending fhall forfeit 100l. which" fhall go to the fole use and bencfit of him that shall discover the offence. And if any parent, or other, shall send or convey any perfon beyond fea, to enter into, or be refident in, or trained up in, any priory,abbey, nunnery, popifh univerfity, college or fchool, or houfe of jefuits, or priefts, or in any private popifh family, in order to be instructed, perfuaded, or confirmed in the popifh religion; or fhall contribute any thing towards their maintenance. when w Sed pag 416. Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5. Iii 2 y Stat. 11 & 12 W. III. c. 4. z Stat. 3 Car. I. c. 1. X when abroad by any pretext whatever, the perfon both fending and fent fhall be difabled to fue in law or equity, or to be exccutor or administrator to any perfon, or to enjoy any legacy or deed of gift, or to bear any office in the realm and fhall forfeit all his goods and chattels, and likewife all his real eftate for life. 2. THE power of parents over their children is derived from the former confideration, their duty: this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompence for his care and trouble in the faithful discharge of it. And upon this fcore the municipal laws of fome nations have given a much larger authority to the parents, than others. The antient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had alfo the power of taking away. But the rigor of thefe laws was foftened by fubfequent conftitutions; fo that we find a father banished by the emperor Hadrian for killing his fon, though he had committed a very heinous crime,upon this maxim that "patria poteftas in pietate debet, non in atrocitate, confiftere." But fill they maintained to the last a very large and absolute authority for a fon could not acquire any property of his own during the life of his father; but all. his acquifitions belonged to the father, or at leaft the profits of them for his life. b THE power of a parent by our English laws is much more moderate; but ftill fufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. The confent or concurrence of the parent to the marriage of his child under age, was also directed by our antient law to be obtained but now it is abfolutely neceffary; for without it the contract is void. And this alfo is another means, which the law has put into the parent's hands, in order the better to discharge his a Ff. 28. 2. 11. Cod. 8. 47. 10. b Ff. 48 9. 5. ◄ Inft. 2. 9. 1. di Hawk. P. C. 130. his duty; firft, of protecting his children from the fnares of artful and designing perfons; and next, of fettling them properly in life, by preventing the ill confequences of too early and precipitate marriages. A father has no other power over his fon's ef tate, than as his trustee 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 labour while they live with him, and are maintained by him but this is no more than he is entitled to from his apprentices or fervants. The legal power of a father (for a mother, as fuch, is entitled to no power, but only to reverence and refpect) the power of a father, I fay, over the person of his 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 fome muft neceffarily be eftablished) 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 alfo delegate part of his parental authority, during his life, to the tutor or fchoolmafter 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, 3. THE duties of children to their parents arise from a principle of natural juftice and retribution. For to thofe, who gave us exiftence, we naturally owe fubjection and obedience during our minority, and honour 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 fuftenance and education have enabled their offspring to profper, ought in return to be fupported by that offspring, in cafe they ftand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by pofitive laws. And the Athenian f Athenian laws carried this principle into practice with a fcrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to fpurious children, to thofe whofe chastity had been prostituted by confent of the father, and to thofe whom he had not put in any way of gaining a livelyhood. The legiflature, fays baron Montefquieu, confidered, that in the first cafe the father being uncertain, had rendered the natural obligation precarious; that, in the fccond cafe, he had fullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third cafe, he had rendered their life (to far as in him lay) an infupportable burthen, by turnishing them with no means of fubsistance. OUR laws agree with thofe of Athens with regard to the first only of these particulars, the cafe of fpurious iffue. In the other cafes the law does not hold the tie of nature to be disolved by any mifbehaviour of the parent; and therefore a child is equally justifiable in defending the perfon, or maintaining the cause or fuit of a bad parent, as a good one; and is equally compellable", if of fufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has fhewn the greatest tenderness and parental picty. II. WE are next to confider the cafe of illegitimate children, or bastards; with regard to whom let us enquire. 1. Who are baftards. 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending fuch baftard children. 1. WHO are baftards. A baftard, 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 afterwards intermarry': and herein they differ most materially from our law; which, though not fo ftrict as to require f Potter's Antiqu. b. 4. c. 15. g Sp. L. b. 26. c. 5. h Stat. 43 Eliz. c. 2. i ft. 1. 10. 13. Decret. 1.4. 1. 17.6.1. quire that the child fhall be begotten, yet makes it an indifpenfible condition that it should be born, after lawful wedlock. And the reafon of our English law is furely much fuperior to that of the Roman, if we confider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and defign of marriage therefore being to afcertain and fix upon fome certain person to whom the care, the protection, the maintenance, and the education of the children fhould belong; this end is undoubtedly better answered by legitimating all iffue born after wedlock, than by legitimating all iffue of the fame parties, even born before wedlock, fo as wedlock afterwards enfues: 1. Because of the very great uncertainty there will generally be, in the proof that the iffue was really begotten by the fame 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 baftard, or made legitimate, at the option of the father and mother, by a marriage ex poft facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Because by those laws a man may remain a baftard 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. Because this rule of the Roman law admits of no limitations as to the time, or number, of bastards fo to be legitimated; but a dozen of them may, twenty years after their birth, by the subfequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great difcouragement to the matrimonial ftate; to which one main inducement is ufually not only the desire of having children, but also the defire of procreating lawful heirs. Whereas our conftitutions guard against this indecency, and at the fame time give fufficient allowance to the frailties of human nature. For if a child be begotten while the parents are single, and they will endeavour to make an early reparation 4. |
