[vided for younger children, and the bulk of the estate settled upon the eldest, by the marriage articles.] [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 respect, working so strongly as to need rather a check than a spur.] It is, however, distinctly recognized in the English jurisprudence; [it being laid down that a parent may maintain and uphold his children in their law suits, without being guilty of the legal crime of maintaining quarrels (h)] and may also justify an assault and battery in defence of their persons (i). [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 (j), 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 provisions constraining the parent to educate his child have been of comparatively rare occurrence in municipal law, and none are up to this day to be found in the law of England, though it has in several instances (as we shall have occasion to show hereafter) strongly exhibited its sense of the importance of affording the means of due instruction to the children of the poor, and adopted a variety of provisions for encouraging and promoting that object (k). 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 (h) 2 Inst. 564. As to the offence of maintenance, vide post, bk. vi. C. IX. (i) 1 Hawk. P. C. 131. (j) L. of N. b. 6, c. 2, s. 12. (k) Vide post, bk. IV. pt. III. Index, tit. Education. [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 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 (q). But the rigour of these laws was softened by subsequent constitutions; so that (r) 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 (s). The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience.] A father is, generally speaking, guardian (a relation of which we shall speak in the next chapter) to his infant children; and it is understood, that though this right ceases in some instances and for some purposes, at fourteen, he is always entitled, in his paternal capacity, to the control of their persons until the age of twenty-one (t); and if the possession of them during this period be withheld from him, he may in general regain it by writ of habeas corpus (u), of which more will be said in the next chapter. Besides which the right of the father, mother, or other guardian, to infants of tender age, is protected in some measure by the provisions of the criminal law for by 9 Geo. IV. c. 31, all persons who, by force or : (g) Ff. 28, 2, 11; Cod. 8, 47, 10. (t) 1 Bl. Com. 461. See the next chapter. (u) See Murray's case, 5 East, 223; Earl of Westmeath's case, Jacob, 251; Ex parte M'Clellan, 1 fraud, take or entice away, or detain, any child under the age of ten, with intent either to deprive its parent, or any other person having lawful charge of it, of the possession thereof, or to steal any article about its person, shall incur the penalties of felony (v). [A father may also lawfully correct his child, being under age, in a reasonable manner (x); for this is for the benefit of his education.] His consent to the marriage of his child, if under age, is also required; for if the marriage is by banns, the declaration of the father's dissent at the time of their publication will make void a marriage solemnized thereupon: if the marriage is to be by ecclesiastical licence, none will, as the general rule, be granted unless oath be made that his consent has been obtained (y); and if the marriage is to be under the new regulations we have already explained, he may "forbid" the notice on which the subsequent proceedings are founded (z). As to property, also, where the child happens to have any real estate independent of his father, the latter, in capacity of guardian, has generally the charge of it, and may receive the rents and profits during the minority, subject to the liability to account for them on the attainment of full age. But the legal power of a father over the persons or property of his children, extends not in any case beyond 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,] or till their marriage (which is another species of emancipation), [this empire of the father continues even after his death; for he may by his will appoint a guardian to his unmarried children (a). He may also (v) 9 Geo. 4, c. 31, s. 21. As to this provision, and as to the cognate offence of the abduction of unmarried girls under the age of sixteen, vide post, bk. vI. c. IV. (x) 1 Hawk. P. C. 130. (y) But the marriage of a minor by ecclesiastical licence, such licence (2) Vide sup. pp. 259, 262. [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.] With respect to the mother, she has no legal power over the child in the father's lifetime, (at least as against the father,) except that by the 2 & 3 Vict. c. 54, where the child is within seven years, the Lord Chancellor or Master of the Rolls may, upon the mother's petition, (unless she has been adjudged an adulteress,) make an order on the father or testamentary guardian, to deliver it into her custody. But after the father's death she is entitled, as it seems, to the custody of the infant until twenty-one; and by the Marriage Acts, where there is no other guardian appointed, the mother, if unmarried, stands in the father's place, after his death, as to the consent required to the child's marriage during minority. She cannot, however, (like the father,) appoint a guardian by will, as she is not mentioned in the statute of Charles the second, by virtue of which he enjoys that privilege (b). 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.] In this country the law has not deemed it necessary to make much provision on the subject of the filial obligations. But it is held [that a child is justified in de (b) Vaughan, 180; Ex parte Edwards, 3 Atk. 519. [fending the person and maintaining the cause or suit of a parent, as a parent is justified in performing the same duties for a child (c).] And by the statutes relating to the poor, the children of every poor, old, blind, lame and impotent person, or other poor person not able to work, shall, if of sufficient ability, at their own charges relieve and maintain every such person, in the manner and according to the rate which the justices of the peace at their quarter sessions shall direct (d). III. We are next to consider the case of illegitimate children, or bastards. The duty of parents to their bastard children, by our law, is principally that of maintenance. [For, though bastards are not looked upon as children to any civil purposes, yet the ties of nature are not so easily dissolved ;] and the support of the offspring by the parent, is, for reasons already noticed, a matter of natural obligation. [The civil law, therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances (e), was neither consonant to nature nor reason; however profligate and wicked the parents might justly be esteemed.] The method in which the English law provides maintenance for them is as follows. The mother of a bastard is entitled to its custody (as it would seem) in preference to its putative father (f); and is bound to maintain it as part of her family, while she remains unmarried, or until the child attains the age of sixteen, or gains a settlement in its own right, or (being a female) is married (g); and in the event of the mother's marriage, the same liability attaches to her husband (h). If the mother be of sufficient ability to maintain the bastard, while he is so dependent upon her, (c) 1 Bl. Com. 454. (d) 43 Eliz. c. 2, s. 7; 5 Geo. 1, c. 8; 4 & 5 Will. 4, c. 76, s. 78; vide sup. p. 296. (e) Nov. 89, c. 15. (ƒ) R. v. Hopkins, 7 East, 579; Ex parte Ann Knee, 1 Bos. & P. (N. S.) 148. (g) 4 & 5 Will. 4, c. 76, ss. 57, 71; 2 & 3 Vict. c. 85; Laing v. Spicer, 1 Tyr. & Gran. 358; R. v. Wendron, 7 Ad. & El. 819. (h) 4 & 5 Will. 4, c. 76, ss. 57,78. |
