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[and Danish governments (9).] But although the hasty remarriages of widows are indecent, and (in some instances) have been revolting, there is nothing in our law which prohibits them.
II. [We are next to consider the duties of parents towards, and their powers over their legitimate children ; and the reciprocal duties of such children towards their parents.
1. And first, the duties of the parents. These duties principally consist in three particulars, namely, the maintenance of the children, their protection, and their education. For the duty of parents to provide for the maintenance of their children is a principle of natural law (r). And as Montesquieu very justly observes (s), the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children ; and the municipal laws of all well-regulated states have taken care therefore to enforce this duty. The Roman civil law, in particular, obliged the parent to provide maintenance for his child (t); and it carried this matter so far, that it would not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing (u). And if the parent alleged no reason, or a bad one, or a false one, the child might set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent (x), a law which Grotius and others have considered as going too far (y).] But certainly our own common law may be said to have gone not far enough ; for the obligation at common law of a father to provide for the maintenance of his
(9) “ Sit omnis vidua sine marito duodecim menses.”_Wilk. Ley. Anglo-Sax. LI. Ethel. A.D. 1008; Ll. Canut. ch. 71.
(r) Puff. L. of N. I. 4, ch. 11. (*Sp. L. b. 23, ch. 2
(1) Dig. 25, 3, 5.
(1) Inst. ii. 18; Puff. L 4, ch. 11, s. 7.
(y) De J. B. et P. 1. 2, ch. 7, n. 3.
children is one which the common law supplies no direct means of enforcing (2). For the mere moral obligation upon a father to maintain his child affords no inference of a promise to do so, or to pay for necessaries supplied for the use of the child (a). Possibly, however, a father may be liable to repay another for the support of his child, when he has deserted it and left it in a destitute state (b).
The deficiencies of the common law in this respect have been in some measure supplied by statute ; the Acts relating to the relief of the poor, making it compulsory upon all, whose circumstances enable them to do so, to provide a maintenance for their progeny, when in poverty, of whatever age they may be, and indeed whenever, through infancy, disease, or accident, they are unable to support themselves. The manner in which this obligation is to be performed is thus pointed out by the legislature (c). The father and mother, grandfather and grandmother, of any poor person not able to work, are to maintain him or her at their own charges, if of sufficient ability, according as the justices in petty sessions shall direct. The orders of the justices may be enforced in the manner prescribed by the Summary Jurisdiction Act, 1848 (d). If a parent runs away and leaves his children chargeable to the parish, the churchwardens and overseers, upon obtaining an order of the magistrates for the purpose,
(z) Cooper v. Martin (1803), 4 East, 84 ; Mortimore v. Wright (1840), 6 M. & W. 482.
(a) Mortimore v. Wright, ubi supra; overruling Law v. Wilkin (1837), 6 A. & E. 718.
(6) Urmston v. Nervcomen (1836), 4 A. & E. 899.
(c) See especially the Poor Relief Act, 1601 (43 Eliz. c. 2), s. 6; J Geo. 1, c. 8; Poor Relief Act, 1819 (59 Geo. 3, c. 12), s. 26 ;
Vagrancy Act, 1824 (5 Geo. 4, c. 83), s. 3; Poor Law Amendment Act, 1834 (4 & 5 Will. 4, c. 76); Poor Law Amendment Act, 1848(11 & 12 Vict.c. 110), s. 8; Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122) ; Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), ss. 1, 23.
(d) 11 & 12 Vict. c. 43 ; see 31 & 32 Vict. c. 122, s. 36.
may seize his rents, goods and chattels, and dispose of them towards the required relief (e).
Every man is liable to maintain the children (whether legitimate or illegitimate) of his wife born before his marriage with her, as part of his own family, and is chargeable with all poor law relief granted to them, until they attain the age of sixteen, or until the death of the mother (f).
By the Married Women's Property Act, 1882 (9), a married woman having separate property is made subject to the same liability for the maintenance of her children and grandchildren, as the husband is subject to for the maintenance of her children and grandchildren.
A parent who, although able to do so, neglects or refuses to maintain his family, which thereby becomes chargeable to the parish, may be punished under the Vagrancy Act, 1824 (h).
By the Prevention of Cruelty to Children Act, 1894 (f), any person over the age of sixteen years who, having the custody of any child under the age of sixteen years, neglects, abandons or exposes such child in a manner likely to cause such child unnecessary suffering, or injury to its health, is guilty of a misdemeanor, and is punishable on conviction on indictment by a maximum fine of 1001., or a maximum imprisonment for two years, and on summary conviction by a maximum fine of 251., or maximum imprisonment for six months.
By the Reformatory Schools Act, 1866, and the Industrial Schools Act, 1866 (k), in any case in which a child is detained in a certified reformatory or industrial school, the parent or step-parent, or other person liable for his maintenance, if of sufficient ability, is made liable to contribute to his support, maintenance, and training therein, to the
(e) 5 Geo. 1, c. 8.
(i) 57 & 58 Vict. c. 41, s. 1.
(k) 29 & 30 Vict. c. 117, s. 23 ; c. 118, s. 39.
extent of five shillings a week, or such lesser sum as shall be directed.
[No person, however, is bound to provide a maintenance for his issue, unless where the children, either through infancy, disease, or accident, are impotent and unable to work ; and then he is only obliged to find them in necessaries. For our laws do not compel a father to maintain his children, who are able to maintain themselves ; and it is unjust to oblige the parent, against his will, to provide his children with superfluities. Moreover, our laws have made no provision to prevent the disinheriting of children by will, but leave every man's property at his own disposal ; though among persons of any rank or fortune, a competence is generally provided by the marriage settlement for younger children, while the bulk of the estate is settled upon the eldest son.
Next to the duty of maintenance is the duty of protection ; and a parent may maintain and uphold his children in their lawsuits, without being guilty of the offence of maintaining quarrels (?), and he may also justify an assault and battery, in defence of their persons (m).
The third duty of parents to their children is to give them an education suitable to their station in life.] Although provision for the education of children has from the earliest times been made by our churches and chapels and by the munificence of wealthy individuals and corporations, yet by reason of the vast increase of the population, the supply (at least of elementary schools) has never outstripped the demand. The matter received the special attention of the Government in the year 1870, when by the Elementary Education Act, 1870 (n), very extensive further provision was made for the education of the poorer classes of children, and the school boards constituted by
(l) 2 Inst. 564 ; Bradlaugh v. Veudegate (1883), 11 Q. B. D. 1.
(m) 1 Hawk. P. C. 131.
that Act obtained power to make bylaws requiring parents to cause their children to attend school. The duty of procuring efficient elementary instruction for their children was first imposed on parents generally by the Elementary Education Act, 1876 (0). Of these statutes, and of those by which they have been amended, we shall give a more particular account hereafter (p).
2. Secondly, the powers of parents.--[The power of parents over their children is derived from their duty towards them ; and the municipal laws of some nations have given a much larger authority to parents than we find in others. Thus, the antient Roman law gave the father a power of life and death over his children (9); and, though the rigour of that law was softened by subsequent enactments (r), parents maintained to the last, under the Roman law, a very large and absolute authority. For, with certain exceptions, a son could not acquire any property of his own during the life of his father, all his acquisitions belonging to the father, or at least the profits of them for his life (s). And although, under our law, the power of parents is much more moderate, still it is sufficient to keep children in order ; and a father may lawfully correct his child, being under age, in a reasonable manner, for that is for his benefit (t). The father may also delegate part of his parental authority to a tutor or schoolmaster ; and the schoolmaster is then in loco parentis, and has such power of correction, as may be necessary to answer the purposes for which he is employed.
A father is also, generally speaking, guardian of the property of his infant child ; and, if such child has any real estate, the father is entitled to take charge of it, and to receive the rents and profits thereof during the minority, subject to a liability to account for them on the child's attaining full age.] But a father has no such right in
(0) 39 & 40 Vict. c. 79, s. 4.
(9) Dig. 28, 2, 11 ; Cod. 8, 47, 10.
(r) Dig. 48, 9, 5.