CHAPTER XVI.

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, (1) or within a competent time afterwards. "Pater est quem nuptiæ demonstrant," is the rule of the civil law; (a) and this holds with the civilians, whether the nuptials happen

(a) Ff. 2, 4, 5.

could read, was for the same crime subject only to burning in the hand and a few months impris onment. Book 4, 369.

These are the principal distinctions in criminal matters; now let us see how the account stands with regard to civil rights.

Intestate personal property is equally divided between males and females; but a son, though younger than all his sisters, is heir to the whole of real property.

A woman's personal property, by marriage, becomes absolutely her husband's, which at his death he may leave entirely away from her; but if he dies without will, she is entitled to one third of his personal property, if he has children; if not, to one-half. In the province of York, to four-ninths or three-fourths,

By the marriage, the husband is absolutely master of the profits of the wife's lands during the coverture; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life; but the wife is entitled only to dower, or one-third, if she survives, out of the husband's estates of inheritance; but this she has, whether she has had a child or not.

But a husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband. 3 P. Wms, 229.

With regard to the property of women, there is taxation without representation; for they pay taxes without having the liberty of voting for representatives; and indeed there seems at present no substantial reason why single women should be denied this privilege. Though the chastity of women is protected from violence, yet a parent can have no reparation, by our law, from the seducer of his daughter's virtue, but by stating that she is his servant, and that by the consequences of the seduction he is deprived of the benefit of her labor; or where the seducer, at the same time, is a trespasser upon the close or premises of the parent. But when by such forced circumstances the law can take cognizance of the offense, juries disregard the pretended injury, and give damages commensurate to the wounded feelings of a parent.

Female virtue, by the temporal law, is perfectly exposed to the slanders of malignity and falsehood; for any one may proclaim in conversation, that the purest maid, or the chastest matron, is the most meretricious and incontinent of women, with impunity, or free from the animadversions of the temporal courts. Thus female honor, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned calumniator. Book 3, 125.

From this impartial statement of the account, I fear there is little reason to pay a compliment to our laws for their respect and favor to the female sex. CHRISTIAN.]

The statute law of the several states of the American Union has very much changed for the better the common law rules which Prof. Christian here arraigns with so much justice. Some of these changes we have already alluded to. The general purpose is to protect the married woman in the emjoyment and power to dispose of all the property, real or personal, which she may have at the time of the marriage, or acquire afterwards; to preclude the hus band from disposing of the property, exempt from execution, without her consent, and to give to her a larger share of his estate than she had at the common law in the event of her surviving him. The diversity in these statutes is very great, and in some states they give the wife more complete power to dispose of her estate independently than the husband is allowed to Jossess.

(1) On the Continent of Europe the general rule of law is that if the parents of an illegitimate child subsequently intermarry and acknowledge the child, this renders him legitimate for all purposes. This is the law of Scotland, also, but not of England or the United States, except as in some states it has been established by statute. A bastard child born abroad and m de

legitimate by the marriage of his parents, will not be recognized as legitimate for the purpose of inheriting real estate in England. Doe v. Vardill, 5 B. and C. 438; Brith whistle r. Vardill, 7 (1. and Fin. 817. Sce, also, Story Coufl. Laws, & 93 et seq., Wharton Confl. Laws, & 210 et seq.

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: which principally consist in three particulars; their maintenance, their protection, and their education. *The duty of parents to provide for the maintenance of their chil

dren, is a principle of natural law; an obligation, says Puffendorf, (b) [ *447 ] 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 afterwards see 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 preserved. And thus the children will have the perfect right of receiving maintenance from their parents. And the president Montesqueiu (c) 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 fulfil 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 rigour 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 5opy7, 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 law (d) 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 [*448]

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 is remarkable under what colour 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 well distinguishes, (g) 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 positive. constitutions of the municipal law Let us next see 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 those descended from his loins; and the manner in which this obligation shall be performed is thus pointed out. (i) (2) The father and mother, grandfather

very

(e) Nov. 115. (h) Raym. 500. (i) Stat. 43 Eliz. c. 2.

(2) The obligation of the father to support his children is not dependent upon the children having no estate of their own. Dupont r. Johnson, 1 Bailey Ch. 274; Matter of Burke, 4 Sandf. Ch. 617; Hillsborough e. Deering, 4 N. II. 86. Thompkins v. Thompkins' Executors. 3 Green, N. J. 303; but the courts of equity may make provision for applying such estate to their support. Ibid.

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 (4) if a parent runs away, and leaves his children, the churchwardens 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 suflicient ability to keep the child, the husband shall be charged to maintain it: () for, this being a debt of *149] hers when single, shall like others extend to charge the husband. (3) But at her death, the relation being dissolved, the husband is under no farther 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. (4) 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 ease and indolence: but thought it unjust to oblige the parent against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted, (m) that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order 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 riches, 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. (n) (5) But this gave occasion (0) to another statute, (p) which ordains, that if Jewish parents refuse to allow their protestant children a fitting maintenance suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper. (6)

(k) Stat. 5 Geo. I. c. 8. (n) Lord Raym. 699.

(1) Styles, 283. 2 Bulstr. 346.
(0) Com. Journ. 18 Feb. 12 Mar. 1701.

(m) Stat. 11 and 12 W.III, c. 4.
(p) 1 Ann. st. 1. c. 30.

It has sometimes been said that if a parent neglect to supply his child with necessaries, any third person may supply them, and charge the parent with the amount. Van Valkenburga r Watson, 13 Johns. 480; Pidgin e. Cram, 8 N. H. 350; Dennis v. Clark, 2 Cush. 353; Matter of Ryder, 11 Paige, 185. But in the absence of the parent's authority for the supply of such necessaries, either express or implied, it is believed no action can be maintained therefor. See Varney e. Young, 11 Vt. 258; Gordon v. Potter, 17 id. 348; Hunt e. Thompson, 3 Scam. 179; Raymond . Loyl, 10 Barb. 453, where the cases are fully collected; Mortimore . Wright, 6 M. and W. 482; Shelton v. Springett, 11 C. B. 452. The course in case of neglect is to pursue such remedy as the statute gives.

(3) By the common law a man is not obliged to maintain the children of his wife by a former marriage. Williams. Hutchinson, 3 N. Y. 312: Worcester v. Marchant, 14 Pick. 510. But if he receives them into his home, he is considered as adopting them as his children, and the law will not imply a promise on his part to pay them for services performed for him, nor on theirs to compensate him in money for necessaries supplied. Williams e. Hutchinson, 3 N. Y. 312; Swartz v. Hazlett, 8 Cal. 118; Sharp v. Cropsey, 11 Barb. 224; Brush v. Blanchard, 18 Ill. 46; Resor v. Johnson, 1 Ind. 100; Oxford v. McFarland, 3 id. 156. Luney v. Vantine, 40 Vt. 501.

The statute 4 and 5 Wm. IV, c. 76, § 57, makes the husband liable to maintain the children of his wife born before his marriage with her, whether the children be legitimate or illegitimate, until they attain the age of sixteen years, or until the death of the mother.

(4) The amount of the provision to be made for them is fixed by the justices.

By statute 31 and 32 Vie. c. 122, the parent who wilfully neglects to provide adequate necessaries for his child, being in his custody and under the age of 14 years, is punishable criminally. (6) [It was not held that she was entitled to none because she was the daughter of a Jew, but because the order did not state that she was poor, or likely to become chargeable to the parish.] (5) There statutes are now repealed. Statute 9 and 10 Vic. c. 59.

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 [ *450 ] had not been amiss if the parent had been bound to leave them at 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 favourites of our courts of justice, and cannot 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: (7) (7)

From the duty of maintenance we may easily pass to that of protection, which is also a natural duty, but rather permitted than enjoyed by any municipal laws; natural 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. (r) A parent may also justify an assault and battery in defense of the persons of his children: (s) nay, where a 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 afterwards unfortunately died, it was not held to be murder, but manslaughter merely. (t) Such indulgence does the law shew to the frailty of human nature, and the workings of parental affection. (8)

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, (2) 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 afterwards [451] entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful 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 labour 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 cannot 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.(9) Yet in one case, that of

(s) 1 Hawk. P. C 131. (t) Cro. Jac. 296. 1 Hawk. P. C. 83. (w) See page 426.

(7) See Fitch v. Weber, 6 Hare, 145; Mangham v. Mason, 1 V. and B. 410. (8) [This case should not be read without the comment of Mr. Justice Foster on it; he says the case as reported by Lord Coke always appeared to him very extraordinary. The two children had been fighting, the prisoner's son is worsted, and returns home bloody; the father takes a staff, runs three-quarters of a mile and beats the other boy, who dies of the beating. If, says he, upon provocation such as this, the father after running three-quarters of a mile had dispatched the child with an hedge stake, or any other deadly weapon, or by repeated blows with his cudgel, it must in my opinion have been murder, since any of these circumstances would have been a plain indication of malice. He then adverts to Coke's report of the case, and to the remarks made on it by Lord Raymond in R. v. Oneby, 2 Lord Raym. 1498, from which he infers that the accident happened by a single stroke with a small cudgel not likely to destroy, and that death did not immediately ensue. So that the ground of the decision was the absence of any fact showing malice, rather than indulgence shown to parental passion. Foster, 294.]

(9) If the child has a property independent of the father, and the father fails to provido suitable maintenance and education, the court of chancery may interfere and cause them to be

religion, they are under peculiar restrictions; for (a) 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 1007., which (y) shall go to the sole use and benefit of him that shall discover the offence. And (z) 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 jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the *popish religion, or shall con[*452] tribute any thing towards 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 executor 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 all his goods and chattels and likewise all his real estate for life. (10)

2. The power of parents over their children is derived from 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 rigour of these laws was softened by subsequent constitutions; so that (b) 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.(c) The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience.(11) He may lawfully correct his child, being under age, in a reasonable manner; (d) for this is for the benefit of his education.(12) 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 now it is absolutely necessary, for without it the contract is void.(e) And this also, is another means, which the law has put into the parent's hands, in *order the better to discharge his duty: first, of protecting his children [ *453 ] 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 or guardian; for though he may receive the profits during the child's

(x) Stat. 1 Ja. I, c. 4, and 3 Ja. I. c. 5.

(z) Stat. 3 Car. I. c. 2. (c) Inst. 2, 9, 1.

(y) Stat. 11 and 12 W. III, c. 4.
(a) Ff. 28, 2. 11. Cod. 8, 47, 10.
(b) Fr. 48, 9, 5.
(d) 1 Hawk. P. C. 130.
(e) Stat. 26 Geo. II, c. 33.

provided at the expense of the child's estate, through the intervention of a guardian. See Clark v. Clark, 8 Paige, 153; Thompkins v. Thompkins' Ex'r, 3 Green, N, J. 303; Story Eq. Juris. §§ 1341, 1353 to 1357.

(10) Since the statutes 10 Geo. IV, c. 7, and 2 and 3 Will. IV, c. 115, these restrictions no longer exist.

(11) [At law the father has against third persons the right to the custody and possession of his infant son, and the court of king's bench cannot directly control it. 5 East, 221; 10 Ves. J. 58,

59.

Aud, at common law, it was an offence to take a child from his father's possession. Andrews, 312. And child-stealing is an offence now punishable by statute. A court of equity controls this power of the parent when he conducts himself improperly, as being in constant habits of drunkenness or blasphemy, or attempting to mislead him in matters of religion, or to take him improperly out of the kingdom; and the father may be compelled to give security in these cases. 10 Ves. J. 58, 61.]

(12) The parent may be said to exercise a judicial authority in determining what punishment is proper for his child, but he is liable criminally in a clear case of excess. Johnson v. State, 2 Humph. 283.