CHAPTER THE SIXTEENTH. OF PARENT AND CHILD. TH HE next, and the most universal 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, firft, 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 demonflrant," is the rule of the civil law; and this holds with the civilians, whether the nuptials hap pen 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 faid when we come to confider the cafe of baftardy. At prefent 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 confift 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, fays Puffendorf, laid on them not only by nature herfelf, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their iffue, if they only gave their 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 preferved. And thus the children will have a perfect right of receiving maintenance from their parents. And the prefident Montefquieu 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 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 thoufand obftacles in her way;fhame, remorse, the conftraint of her fex, and the rigor of laws; that ftifle her inclinations to perform this duty and befides, the 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 breaft of every parent that natural sogyn, 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. d THE eivil 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 exprefsly giving his reafon for fo doing; and there are fourteen fuch reafons reckoned up, which may justify such difinherifon. If the parent alleged no reason, or a bad, or a falfe one, the child might fet the will aside, tanquam teftamentum inofficiofum, a b L. of N. 1. 4. c. II. Sp. L. b. 23. c. 2. d Ff. 25. 3. 5. Ff3 teftament BOOK I. teftament contrary to the natural 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 loft the ufe of his reafon, when he made the inofficious teftament. And this, as Pufendorf obferves, was not to bring into difpute the teftator's power of difinheriting 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 fociety, a power over his own property: and, as Grotius very well distinguishes %, natural right obliges to give a neceffary 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 provifion 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 fhall 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 feflion fhall direct; and if a parent runs away, and leaves his children, the churchwardens and overfeers of the parifh fhall feife his rents, goods, and chattels, and difpofe of them toward 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 husband fhall be charged to maintain it for this being a debt of hers, when fingle, fhall like others extend to charge the hufband. But at her death, the relation being diffolved, the hufband is under no farther obligation. fl. 4. c. 11. §. 7. 8 de j. b. & p. 1. 2. c. 7. n. 3. h Raym. 500, i Stat. 43 Eliz. c. 2. k Stat. 5 Geo. I. c. 8. No No perfon is bound to provide a maintenance for his iffue, unlefs 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 20s. a month. For the policy of our laws, which are ever watchful to promote induftry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjuft to oblige the parent, against his will, to provide them with fuperfluities, and other indulgences of fortune; imagining they might truft to the impulse 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 enacted", that if any popish parent shall refuse 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 constrain him to do what is just and reasonable. But this did not extend to perfons of another religion, of no lefs bitternefs and bigotry than the popish: 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 entitled to none". But this gave occafion to another ftatute P, which ordains, that if jewish parents refuse 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 provifion to prevent the difinheriting of children by will: leaving every man's property in his own 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 least a neceffary fubfiftence. Indeed, among perfons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the eftate fettled upon the eldeft, by the marriage-articles. Heirs alfo, and children, are favourites of our courts of juftice, and cannot be difinherited by any dubious or ambiguous words; there being required the utmost certainty of the teftator's intentions to take away the right of an heir o. FROM the duty of maintenance we may easily pass to that of protection, which is alfo 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 fpur. A parent may, by our laws, maintain and uphold his children in their law-fuits, without being guilty of the legal crime of maintaining quarrels. A parent may also justify 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 other boy, of which beating he afterwards unfortunately died; it was not held to be murder, but manflaughter merely. Such indulgence does the law fhew to the frailty of human nature, and the workings of parental affection. THE laft duty of parents to their children is that of giving them an education fuitable to their ftation in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Pufendorf very well obferves ", it is not cafy to imagine or 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 suffers him to grow up like a mere beaft, to lead a life ufelefs to others, and fhameful to himself. Yet 91 Lev. 130. r 2 Ing. 564. I Hawk. P. C. 131. Cro. Jac. 296. 1 Hawk. P. C. 83. u L. of N. b. 6. c. 2. §. 12. the |