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 illegitimate; 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, or within a competent time afterwards. "Pater est quem nuptiæ demonstrant," 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 must be precedent to the birth. 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 children, is a principle of natural law; an obligation, says 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 issue, if they only gave their children life that they might afterwards see them perish. It is a principle of our own law, that there is an obligation on every man to provide for those descended from him; and the manner in which this obligation shall be performed is thus pointed out. The father and mother, grandfather and grandmother, of poor impotent persons, shall maintain them at their own charges, if of sufficient ability. 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. 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. 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 had not been amiss, if the parent had been bound to leave them at the 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. 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: nature, 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 law-suits, without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defence of the of his children. persons 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, it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child by bringing him * The civil law would not allow a parent to disinherit his child without giving a valid reason for doing so and if he gave a bad one, or a false one, the child might set the will aside. into the world, if he afterwards 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: 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. 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 recompence 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 those of 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 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; for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age, is also directed by our law to be obtained. The legal power of a father over the persons 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 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 deiegate 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. 3. The duties of children to their parents arise from a principle of natural justice and retribution. For to those who gave us existence, we naturally owe subjection 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 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. The law does not hold the tie of nature to be dissolved by any misbehaviour 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 shewn the greatest tenderness and parental piety. IJ. We are next to consider the case of illegitimate children. Such by our English laws, is one that is born * See this beautifully expressed by Juvenal. "Dii! majorum umbris, tenuem et sine pondere terram, "Qui præceptorem sancti voluêre parentis "Esse loco!". out of lawful matrimony. The civil and canon laws the parents do not allow a child to remain illegitimate, afterwards intermarry: and herein they differ most materially from our law; which makes it an indispensable condition, to make it legitimate, that it shall be born after lawful wedlock. 3. His rights are very few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of nobody; and sometimes called filius nullius, sometimes filius populi. Yet he may gain a sirname by reputation, though he has none by inheritance. He was also, in strictness, incapable of holy orders; and though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church; but this doctrine seems now obsolete; and in all other respects there is no distinction between him and another man. And really any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree; and yet the civil law, so boasted of for its equitable decisions, made such children in some cases incapable even of a gift from their parents. An illegitimate may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise: as was done in the case of John of Gant's children, by a statute of Richard the second. QUESTIONS. What is a legitimate child? Does our law require a parent to support his child? How is this rule limited? May a parent totally disinherit all his children, if he will? May a parent uphold his children in law-suits? May he justify an assault and battery in defence of his children? Do our laws compel a parent to educate his children? What was the ancient Roman law with reference to a parent's power over his children? What are our laws on this subject? Where does a parent's power over his children cease? Does a tutor or schoolmaster stand in loco parentis? Has he the power of restraint and correction? |