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CHAPTER THE SIXTEENTH
OF PARENT AND
HE next, and the most univerfal relation 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 firit of legitimate children.
I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards. "Pater eft quem "nuptiae demonftrant," is the rule of the civil law; 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 mufl be precedent to the birth; of which more will be faid when we come to confider the cafe of baftardy. At prefent let us enquire 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 confit in three particulars; their maintenance, their protection, and their education.
a Fj. 2. 4 5.
THE duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, fays Puffendorff, 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 illue, if they only gave the children life, that they might afterwards fee them perifh. 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 fupported and preserved. And thus the children will have perfect right of receiving maintenance from their parents. And the prefident Montefquieu 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 obftacles in her way;-fhame, remorse, the constraint of her sex, and the rigor of laws; that stifle 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 ftorge, 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.
THE Civil law 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
b L. of N. 1. 4. c. II.
c Sp. L. b. 23. c. a.
a Ff. 25. 3. 5.
reafon for fo doing; and there are fourteen fuch reasons reckoned up, which may juftify fuch difinherifon. If the parient alleged no reason, or a bad, or false one, the child might set the will aside, tanquam teftamentum inofficiofum, a teftament contrary to the natu ral duty of the parent. And it is remarkable under what colour the children were to move for relief in fuch a cafe: by fuggefting that the parent had loit the use of his reafon, when he made the inofficious teftament. And this, as Puffendorf observes, was not to bring into dispute the teftator'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 fet them afide. 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 diftinguishes, 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 favour of their parents, or the pofitive conftitutions of the municipal law.
LET us next fee what provision 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 shall 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 feffions fhall direct: and if a parent runs away, and leaves his children, the churchwardens and overfeers of the parish fhall feife his rents, goods, and chattels, and difpofe of them towards their relief. By the interpretations which the courts of law have made upon thefe ftatutes, 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 main
h Rym. 500.
i Stat. 43 Eliz. c. 2.
tain it for this being a debt of hers, when fingle, fhall like others extend to charge the husband. But at her death, the relation being diffolved, the husband is under no farther obligation.
No perfon is bound to provide a maintenance for his iffue, 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 neceffaries, the penalty on refufal being no more than 205. a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in eafe and indolence: but thought it unjust 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 enactedTM, that if any popiíh parent fhall refufe 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 conftrain him to do what is juft and reafonable. But this did not extend to perfons of another religion, of no lefs bitterness and bigotry than the popifh: and therefore in the very next year we find an inftance of a jew of immenfe riches, whofe only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held fhe was intitled to none". But this gave occafion to another ftatute", which ordains, that if jewish parents refufe to allow their proteftant children a fitting maintenance, fuitable to the fortune of the parent, the lord chancellor on complaint may make fuch order therein as he fhall fee proper.
OUR law has made no provision to prevent the difinheriting of children by will: leaving every man's property in his own
1 Styles. 283. 2 Bulftr. 346.
m Stat. 11 & 12 W. III. c.
n Lord Raym. 699.
o Com. Journ. 18 Feb.
12 Mar. 1701.
difpofal, 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. By the custom of London indeed, (which was formerly univerfal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. And, among perfons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldeft, by the marriage-articles. Heirs alfo, and children, are favourites of our courts of juftice, and cannot be disinherited 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".
FROM the duty of maintenance we may easily pass 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 spur. 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 alfo juftify an affault 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 ether boy, of which beating he afterwards unfortunately died; it was not held to be murder, but manslaughter merely'. Such indulgence does the law fhew 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 fuitable to their station in life: a duty pointed out by reafon, and of far the greatest importance of any. For, as Puffendorf very well obferves", it is not cafy to imagine or allow,
q1 Lev. 130.
1 2 Inft. 504. slink. I. C. 131.
t Cro. Jac. 296. 1 Hawk. P. C. 83.