respect of his child's personal estate : he cannot, therefore, give a good discharge for a legacy due to the latter (u), except under an order of the court, or by the direction of the testator.

The father is also entitled, as the general rule, to the possession and custody of the person of his child; and it is only in very extreme cases that he will be deprived of that custody (a). And in general, if the possession or custody be withheld from him, he may regain it by writ of habeas corpus, or by an application to the Chancery Division of the High Court of Justice (y) ; but the court may now, in its discretion, refuse, but only on just grounds, to grant the writ or to make the order (a). The right of the father, mother, or other guardian, to the possession of their children, is also, to a certain extent, protected by the provisions of the criminal law, under which it is made highly penal, either by force or fraud, to take or entice away, or to detain, any child under the age of fourteen, with intent to deprive its parent, guardian, or other person having lawful charge of such child, of the possession thereof; or, with such intent, to receive or harbour it, knowing the child to have been so taken or detained; or unlawfully to take, or cause to be taken, any unmarried girl, under the age of sixteen, out of the possession and against the will of her father or mother, or other person having lawful care or charge of her (b). Moreover, the assent of the father to the marriage of his child, if under age, and not being a widower or widow, is also requisite under the Marriage Acts, 1823 and 1836; as was explained at large in the previous chapter (c).

(u) Dagley v. Tolferry (1715), 1 P. Wms. 285.

(x) Willesley v. Beaufort (1827), 2 Russ. 21; Re Agar Ellis (1883), 24 C. D. 317; Skinner v. Skinner (1888), 13 P. D. 90; but see now Guardianship of Infants Act, 1886, s. 5, infra, p. 340.

(y) Earl of Westmeath's Case (1822), Jacob, 251; Ex parte Witte (1853), 13 C. B. 680; Re Newton, [1896] 1 Ch. 740.

(a) Custody of Children Act, 1891 (54 & 55 Vict. c. 3).

(b) Vide post, bk. VI.
(c) Vide supra, pp. 293, 297.

[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. But until that age arrives, this empire of the father continues even after the father's death; for he may by deed or will appoint a guardian to such of his unmarried children as are infants] (d).

With respect to the mother, she had not at common law, as against the father, any legal power over the child in the father's lifetime (e). But now, under the Guardianship of Infants Act, 1886 (f), the Court may, on the application of the mother, make such order as it may think fit regarding the custody of her infant child, and the access thereto of either parent, having regard to the welfare of the infant, and to the conduct and the wishes of either parent; and upon such application the Court may override entirely the common law rights of the father (g). After the father's death, the mother was always considered to be entitled to the custody of her children until twentyone, subject, however, to the power of the guardians, if any, appointed by the father's will (); and by the will(); Marriage Acts, 1823 and 1836 (), where there was no other guardian appointed, the widow, while she remained unmarried, stood in the father's place, after his death, as to the consent required to the child's marriage during minority. She could not, however, have appointed a guardian by will, as she was not mentioned in the statute of Charles the Second, by virtue of which alone the father enjoyed that privilege (k); though, if she had purported to appoint such a guardian, the Court would have had regard to her wishes (). But it has now been provided.

(d) 12 Car. 2, c. 24.

(e) Re Agar Ellis (1883), 24 C. D. 317; Re A. & B., [1897] 1 Ch. 786.

(f) 49 & 50 Vict. c. 27, s. 5. (y) Re A. & B., [1897] 1 Ch. 786.

(h) Talbot v. Earl of Shrewsbury (1839), 4 My. & Cr. 672.

(i) 4 Geo. 4, c. 76; 6 & 7 Will. 4,

c. 85.

(k) Ex parte Edwards (1747), 3 Atk. 519.

(1) In re Kaye (1866), L. R. 1 Ch. 387.

by the Guardianship of Infants Act, 1886 (m), s. 3, that the mother may by deed or will appoint a guardian after her own death and the death of the father of the children, to act jointly with the guardian (if any) appointed by the father; and by the same Act (section 2), the mother (if she survive the father) is constituted the guardian of her infant children generally, to act jointly with the guardian (if any) appointed by the father, although if no guardian. has been appointed by the father, or the guardians appointed by the father are dead or refuse to act, the 'Court may associate one or more guardians with her (n). By sect. 7 of the same Act, a parent may be declared by the Court which has pronounced a decree for judicial separation or divorce by reason of his or her misconduct, to be unfit to have the custody of the children of the marriage; and in such case the parent so declared unfit will not, upon the death of the other parent, be entitled as of right to the custody or control of such children. It is now well settled, that the mother is the natural guardian of her illegitimate child, though her rights are not identical with those of the father of a legitimate child (o).

3. [Thirdly, the duties of children to their parents.— These are duties which arise from natural justice. For to those who gave us existence, we naturally owe subjection, honour, and reverence; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their own age; and they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by their offspring. In this country, however, the law has not deemed it necessary to make much provision on the subject of the filial obligations; it is, nevertheless, a provision of our law, that a child is justified in defending the person and maintaining the cause or suit of his parent, just as we have seen that a parent is justified in performing the

(m) 49 & 50 Vict. c. 27.

(n) Ibid. S. 2, and see Re Scanlan (1888), 40 Ch. D. 200.

(0) R. v. Nash (1883), 10 Q. B. D. 454; Barnardo v. McHugh, [1891] A. C. 388.

[same duties for his child.] And by the Acts relating to the relief of the poor, the children of any old, blind, lame, impotent, or other poor person not able to work, if of sufficient ability, are required, at their own charges, to relieve and maintain him or her, in the manner and according to the rate which the justices of the peace at their petty sessions shall direct (p).

III. We are next to consider the case of illegitimate children or bastards. [By our law, the duty of parents with regard to these is principally that of maintenance; for, though bastards are not looked upon as children for any civil purposes, yet the support of the offspring by the parent is a matter of natural obligation (9).] And the method in which the English law provides maintenance for an illegitimate child, during its infancy, is as follows. The mother is entitled to the custody of the child (as it would seem) in preference to the putative father (r), and is bound to maintain it until the child attains the age of sixteen, or (being a female) marries (s). In the event of the mother's marriage, the same liability attaches to her husband, but ceases with her death (t). If the mother, being of sufficient ability to maintain her bastard, neglects that duty, so that it becomes chargeable to the parish, she is made liable, by the Poor Law Amendment Act, 1844 (u), to be punished as an idle and disorderly person under the Vagrancy Act, 1824 (). If, on the other hand, she be not of sufficient ability, the law affords her the means of relieving herself from her liability as its mother, and of compelling the putative father to supply a fund for its maintenance. For by the Bastardy Laws Amendment Acts,

(p) Vide supra, p. 335, and post, bk. IV. pt. II.; 43 Eliz. c. 2, s. 6; 31 & 32 Vict. c. 122.

(4) Cf. Nov 89, c. 15.

(r) Ex parte Anne Knee (1804),

1 B. & P. (N.s.) 148; R. v. Nash, (1883), 10 Q. B. D. 454.

(8) 4 & 5 Will. 4, c. 76, s. 71.
(t) Ibid., s. 57.

(u) 7 & 8 Vict. c. 101, s. 6.
(c) 5 Geo. 4, c. 83.

1872 and 1873 (y), a single woman may, either before the birth of her bastard child, or at any time within twelve months afterwards, make application to a justice of the peace, charging a person by name as the father of such child; and where the alleged father has within twelve months next after its birth paid money for the maintenance of the child, such application may be made at any subsequent period whatever without limitation in regard to time. Upon such application the justice issues his summons to the party charged to appear at a petty sessions (a). On the hearing of the summons, the evidence on both sides is heard; and if the evidence of the mother as to the paternity of the child be corroborated in some material particular (b) by other testimony to the satisfaction of the justices in petty sessions, the man charged may be adjudged to be the "putative father" of the child in question. And in that case the justices or magistrate may (if they or he see fit under the circumstances) make an order on him, called a bastardy, affiliation, or maintenance order, for the payment to the mother, or to some other person to be appointed for the custody of the child in the case of her death, insanity, or imprisonment, of a weekly sum of money for its maintenance and education. Such an order remains in force until the child dies or attains the age of thirteen, or (occasionally) the age of sixteen (c), and (unless the justices otherwise order) continues enforceable after the mother's marriage (d); and the father's liability

(y) 35 & 36 Vict. c. 65; 36 & 37 Vict. c. 9. Similar provisions are contained in ss. 2, 3 (now repealed) of the Poor Law Amendment Act, 1844 (7 & 8 Vict. c. 101).

(a) In London a single police magistrate has the same powers as the justices at petty sessions (Bastardy Act, 1845 (8 & 9 Viet. c. 10), s. 9).

(b) As to what amounts to corroboration, see Cole v. Manning (1877), 2 Q. B. D. 611.

(c) 35 & 36 Vict. c. 65, s. 5; Pearson v. Heys (1881), 7 Q. B. D. 260.

(d) Sotheron V. Scott (1881), 6 Q. B. D. 518; Williams v. Davies (1883), 11 Q. B. D. 74.