derived from the preceding, being that between
parent and child.
bastards: each of which we shall consider in their order; and
first of legitimate children.
I.[**1?]
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
bastardy. 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.
1.
which principally consist in three particulars; their maintenance,
their protection, and their education.
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 sex, and the rigor of laws;--that
stifle her inclinations to perform this duty: and besides, she
generally wants ability.
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: sorgê],[**misprint for storgê?] or insuperable degree of affection,
which not even the deformity of person or mind, not even the
wickedness, ingratitude, and rebellion of children, can totally
suppress or extinguish.
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[s], 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 constitutions
of the municipal law.
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 main-*
*tain 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.
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 20s. 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 intitled 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.
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 entitled 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].
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. 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 assault 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.
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 municipal 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 100l. 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.
2.
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 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[a]. But the rigor of
these laws was softened by subsequent constitutions; 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].
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 entitled to from his apprentices
or servants. The legal power of a father (for a mother,
as such, is entitled 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.
3.
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. 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 chastity had been prostituted 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.
only of these particulars, the case of spurious issue. In the other
cases the law does not hold the tie of nature to be dissolved by
any misbehaviour of the parent; and therefore a child is equally
justifiable in defending the person, or maintaining the cause or
suit, of a bad parent, as a good one; and is equally compellable[h],
if of sufficient ability, to maintain and provide for a wicked and
unnatural progenitor, as for one who has shewn the greatest tenderness
and parental piety.
II.
or bastards; with regard to whom let us inquire, 1. Who are
bastards. 2. The legal duties of the parents towards a bastard
child. 3. The rights and incapacities attending such bastard
children.
1.
that is not only begotten, but born, out of lawful matrimony. The
civil and canon laws do not allow a child to remain a bastard, if
the parents afterwards intermarry[i]: and herein they differ most
materially from our law; which, though not so strict as to require
that the child shall be begotten, yet makes it an indispensable
condition that it shall be born, after lawful wedlock. And the
reason of our English law is surely much superior to that of the
Roman, if we consider the principal end and design of establishing
the contract of marriage, taken in a civil light; abstractedly
from any religious view, which has nothing to do with the legitimacy
or illegitimacy of the children. The main end and design
of marriage therefore being to ascertain and fix upon some certain
person, to whom the care, the protection, the maintenance, and
the education of the children should belong; this end is undoubtedly
better answered by legitimating all issue born after wedlock,
than by legitimating all issue of the same parties, even born before
wedlock, so as wedlock afterwards ensues: 1. Because of
the very great uncertainty there will generally be, in the proof
that the issue was really begotten by the same man; whereas, by
confining the proof to the birth, and not to the begetting, our
law has rendered it perfectly certain, what child is legitimate,
and who is to take care of the child. 2. Because by the Roman
laws a child may be continued a bastard, or made legitimate, at
the option of the father and mother, by a marriage ex post facto;
thereby opening a door to many frauds and partialities, which by
our law are prevented. 3. Because by those laws a man may remain
a bastard till forty years of age, and then become legitimate,
by the subsequent marriage of his parents; whereby the main
end of marriage, the protection of infants, is totally frustrated.
4. Because this rule of the Roman laws admits of no limitations
as to the time, or number, of bastards so to be legitimated; but
a dozen of them may, twenty years after their birth, by the subsequent
marriage of their parents, be admitted to all the privileges
of legitimate children. This is plainly a great discouragement
to the matrimonial state; to which one main inducement is usually
not only the desire of having children, but also the desire of procreating
lawful heirs. Whereas our constitutions guard against this
indecency, and at the same time give sufficient allowance to the
frailties of human nature. For, if a child be begotten while the
parents are single, and they will endeavour to make an early reparation
for the offence, by marrying within a few months after,
our law is so indulgent as not to bastardize the child, if it be
born, though not begotten, in lawful wedlock: for this is an incident
that can happen but once; since all future children will be
begotten, as well as born, within the rules of honour and civil
society. Upon reasons like these we may suppose the peers to have
acted at the parliament of Merton, when they refused to enact
that children born before marriage should be esteemed legitimate[k].
before matrimony are bastards by our law; and so it is of all
children born so long after the death of the husband, that, by the
usual course of gestation, they could not be begotten by him.
But, this being a matter of some uncertainty, the law is not exact
as to a few days[l]. And this gives occasion to a proceeding at
common law, where a widow is suspected to feign herself with
child, in order to produce a supposititious heir to the estate: an
attempt which the rigor of the Gothic constitutions esteemed
equivalent to the most atrocious theft, and therefore punished
with death[m]. In this case with us the heir presumptive may have
a writ de ventre inspiciendo, to examine whether she be with child,
or not[n]; which is entirely conformable to the practice of the civil
law[o]: and, if the widow be upon due examination found not
pregnant, any issue she may afterwards produce, though within
nine months, will be bastard. But if a man dies, and his widow
soon after marries again, and a child is born within such a time,
as that by the course of nature it might have been the child of
either husband; in this case he is said to be more than ordinarily
legitimate; for he may, when he arrives to years of discretion,
choose which of the fathers he pleases[p]. To prevent this, among
other inconveniences, the civil law ordained that no widow should
marry infra annum luctus[q]; a rule which obtained so early as the
reign of Augustus[r], if not of Romulus: and the same constitution
was probably handed down to our early ancestors from
the Romans, during their stay in this island; for we find it established
under the Saxon and Danish governments[s].
state, is begun, or after it is determined, so also children born
during wedlock may in some circumstances be bastards. As if the
husband be out of the kingdom of England (or, as the law
somewhat loosely phrases it, extra quatuor maria) for above nine
months, so that no access to his wife can be presumed, her issue
during that period shall be bastard[t]. But, generally, during the
coverture access of the husband shall be presumed, unless the
contrary can be shewn[u]; which is such a negative as can only be
proved by shewing him to be elsewhere: for the general rule is,
praesumitur pro legitimatione[w]. In a divorce a mensa et thoro, if
the wife breeds children, they are bastards; for the law will presume
the husband and wife conformable to the sentence of separation,
unless access be proved: but, in a voluntary separation by
agreement, the law will suppose access, unless the negative be
shewn[x]. So also if there is an apparent impossibility of procreation
on the part of the husband, as if he be only eight years old,
or the like, there the issue of the wife shall be bastard[y]. Likewise,
in case of divorce in the spiritual court a vinculo matrimonii,
all the issue born during the coverture are bastards[z]; because such
divorce is always upon some cause, that rendered the marriage
unlawful and null from the beginning.
2.
by our law; which is principally that of maintenance. For,
though bastards are not looked upon as children to any civil purposes,
yet the ties of nature, of which maintenance is one, are
not so easily dissolved: and they hold indeed as to many other
intentions; as, particularly, that a man shall not marry his bastard
sister or daughter[a]. The civil law therefore, when it denied
maintenance to bastards begotten under certain atrocious circumstances[b],
was neither consonant to nature, nor reason, however
profligate and wicked the parents might justly be esteemed.
for them is as follows[c]. When a woman is delivered, or declares
herself with child, of a bastard, and will by oath before a justice
of peace charge any person having got her with child, the justice
shall cause such person to be apprehended, and commit him till
he gives security, either to maintain the child, or appear at the
next quarter sessions to dispute and try the fact. But if the woman
dies, or is married before delivery, or miscarries, or proves
not to have been with child, the person shall be discharged:
otherwise the sessions, or two justices out of sessions, upon original
application to them, may take order for the keeping of the
bastard, by charging the mother, or the reputed father with the
payment of money or other sustentation for that purpose. And
if such putative father, or lewd mother, run away from the parish,
the overseers by direction of two justices may seize their
rents, goods, and chattels, in order to bring up the said bastard
child. Yet such is the humanity of our laws, that no woman can
be compulsively questioned concerning the father of her child, till
one month after her delivery: which indulgence is however
very frequently a hardship upon parishes, by suffering the parents
to escape.
3.
appertain to a bastard. The rights are very few, being only such
as he can acquire; for he can inherit nothing, being looked upon
as the son of nobody, and sometimes called filius nullius, sometimes
filius populi[d]. Yet he may gain a sirname by reputation[e],
though he has none by inheritance. All other children have a
settlement in their father's parish; but a bastard in the parish
where born, for he hath no father[f]. However, in case of fraud,
as if a woman be sent either by order of justices, or comes to beg
as a vagrant, to a parish which she does not belong to, and drops
her bastard there; the bastard shall, in the first case, be settled in
the parish from whence she was illegally removed[g]; or, in the
latter case, in the mother's own parish, if the mother be apprehended
for her vagrancy[h]. The incapacity of a bastard consists
principally in this, that he cannot be heir to any one, neither can
he have heirs, but of his own body; for, being nullius filius, he
is therefore of kin to nobody, and has no ancestor from whom
any inheritable blood can be derived. A bastard was also, in strictness,
incapable of holy orders; and, though that were dispensed
with, yet he was utterly disqualified from holding any dignity in
the church[i]: but this doctrine seems now obsolete; and in all
other respects, there is no distinction between a bastard and another
man. And really any other distinction, but that of not inheriting,
which civil policy renders necessary, would, with regard
to the innocent offspring of his parents' crimes, be odious,
unjust, and cruel to the last degree: and yet the civil law, so
boasted of for it's equitable decisions, made bastards in some cases
incapable even of a gift from their parents[k]. A bastard may,
lastly, be made legitimate, and capable of inheriting, by the
transcendent power of an act of parliament, and not otherwise[l]:
as was done in the case of John of Gant's bastard children, by a
statute of Richard the second.
End of section 45
