Commentaries on the Laws of England Part 41

CHAPTER THE SIXTEENTH.

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 b.a.s.t.a.r.ds: 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 nuptiae demonstrant_,"

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 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 b.a.s.t.a.r.dy. At present let us enquire 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.

[Footnote a: _Ff._ 2. 4. 5.]

1. AND, first, the duties of parents to legitimate children: which princ.i.p.ally 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[b], 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 the 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 a perfect _right_ of receiving maintenance from their parents. And the president Montesquieu[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 s.e.x, and the rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability.

[Footnote b: L. of N. l. 4. c. 11.]

[Footnote c: Sp. L. l. 23. c. 2.]

THE munic.i.p.al 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 [Greek: storge], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingrat.i.tude, 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 the parent alleged no reason, or a bad, or 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 very 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 const.i.tutions of the munic.i.p.al law.

[Footnote d: _Ff._ 25. 3. 5.]

[Footnote e: _Nov._ 115.]

[Footnote f: _l._ 4. _c._ 11. --. 7.]

[Footnote g: _De j.b. & p._ _l._ 2. _c._ 7. _n._ 3.]

LET us next see what provision our own laws have made for this natural duty. It is a principle of law[h], 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]. The father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards 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 sufficient ability to keep the child, the husband shall be charged to maintain it[l]: for this being a debt of hers, when single, shall like others extend to charge the husband. But at her death, the relation being dissolved, the husband is under no farther obligation.

[Footnote h: Raym. 500.]

[Footnote i: Stat. 43 Eliz. c. 2.]

[Footnote k: Stat. 5 Geo. I. c. 8.]

[Footnote l: Styles. 283. 2 Bulstr. 346.]

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 20_s._ 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 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 int.i.tled to none[n]. But this gave occasion[o] 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.

[Footnote m: Stat. 11 & 12 W. III. c. 4.]

[Footnote n: Lord Raym. 699.]

[Footnote o: Com. Journ. 18 Feb. 12 Mar. 1701.]

[Footnote p: 1 Ann. st. 1. c. 30.]

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. By the custom of London indeed, (which was formerly universal throughout the kingdom) the children of freemen are ent.i.tled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. And, 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[q].

[Footnote q: 1 Lev. 130.]

FROM the duty of maintenance we may easily pa.s.s to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any munic.i.p.al 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 lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. A parent may also justify an a.s.sault and battery in defence 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 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.

[Footnote r: 2 Inst. 564.]

[Footnote s: 1 Hawk. P.C. 131.]

[Footnote t: Cro. Jac. 296. 1 Hawk. P.C. 83.]

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[u], 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 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 munic.i.p.al 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. Yet in one case, that of religion, they are under peculiar restrictions: for[x]

it is provided, that if any person sends any child under his government beyond the seas, 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, 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 100_l._ 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 contribute 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.

[Footnote u: L. of N. b. 6. c. 2. --. 12.]

[Footnote w: See page 414.]

[Footnote x: Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.]

[Footnote y: Stat. 11 & 12 W. III. c. 4.]

[Footnote z: Stat. 3 Car. I. c. 2.]

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 munic.i.p.al laws of some 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 also the power of taking away[a]. But the rigor of these laws was softened by subsequent const.i.tutions; 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].

[Footnote a: _Ff._ 28. 2. 11. _Cod._ 8. 47. 10.]

[Footnote b: _Ff._ 48. 9. 5.]

[Footnote c: _Inst._ 2. 9. 1.]

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[d]; for this is for the benefit of his education. The consent 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 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 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 sons _estate_, 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 ent.i.tled to from his apprentices or servants. The legal power of a father (for a mother, as such, is ent.i.tled to no power, but only to reverence and respect) the power of a father, I say, 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 delegate 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.

[Footnote d: 1 Hawk. P.C. 130.]

[Footnote e: Stat. 26 Geo. II. c. 33.]

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 ent.i.tled 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 a.s.sistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. And the Athenian laws[f] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chast.i.ty had been prost.i.tuted by consent of the father, and to those whom he had not put in any way of gaining a livelyhood. The legislature, says baron Montesquieu[g], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence.