_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.
[Footnote r: 2 Inst. 564.]
[Footnote s: 1 Hawk. P.C. 131.]
[Footnote t: Cro. Jac. 296. 1 Hawk. P.C. 83.]
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[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 100_l._ 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.
[Footnote u: L. of N. b. 6. c. 2. Sec. 12.]
[Footnote w: See page 414.]
[Footnote x: Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.]
[Footnote y: Stat. 11 & 12 W. III. c. 4.]
[Footnote z: Stat. 3 Car. I. c. 2.]
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 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].
[Footnote a: _Ff._ 28. 2. 11. _Cod._ 8. 47. 10.]
[Footnote b: _Ff._ 48. 9. 5.]
[Footnote c: _Inst._ 2. 9. 1.]
THE power of a parent by our English laws is much more 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.
[Footnote d: 1 Hawk. P.C. 130.]
[Footnote e: Stat. 26 Geo. II. c. 33.]
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. 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.
[Footnote f: Potter's Antiq. b. 4. c. 15.]
[Footnote g: Sp. L. l. 26. c. 5.]
OUR laws agree with those of Athens with regard to the first 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.
[Footnote h: Stat. 43 Eliz. c. 2.]
II. WE are next to consider the case of illegitimate children, 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. WHO are bastards. A bastard, by our English laws, is one 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].
[Footnote i: _Inst._ 1. 10. 13. _Decretal._ _l._ 4. _t._ 17. _c._ 1.]
[Footnote k: _Rogaverunt omnes episcopi magnates, ut consentirent quod
nati ante matrimonium essent legitimi, sicut illi qui nati sunt post
matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites
et barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt et approbatae._ Stat. 20 Hen. III. c. 9.
See the introduction to the great charter, _edit. Oxon._ 1759. _sub
anno_ 1253.]
FROM what has been said it appears, that all children born 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].
[Footnote l: Cro. Jac. 541.]
[Footnote m: Stiernhook _de jure Gothor._ _l._ 3. _c._ 5.]
[Footnote n: Co. Litt. 8.]
[Footnote o: _Ff._ 25. _tit._ 4. _per tot._]
[Footnote p: Co. Litt. 8.]
[Footnote q: _Cod._ 5. 9. 2.]
[Footnote r: But the year was then only _ten_ months. Ovid. Fast. I.
27.]
[Footnote s: _Sit omnis vidua sine marito duodecim menses._ _LL.
Ethelr._ _A.D._ 1008. _LL. Canut._ _c._ 71.]
AS bastards may be born before the coverture, or marriage 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.
[Footnote t: Co. Litt. 244.]
[Footnote u: Salk. 123. 3 P.W. 276. Stra. 925.]
[Footnote w: 5 Rep. 98.]
[Footnote x: Salk. 123.]
[Footnote y: Co. Litt. 244.]
[Footnote z: _Ibid._ 235.]
2. LET us next see the duty of parents to their bastard children, 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.
[Footnote a: Lord Raym. 68. Comb. 356.]
[Footnote b: _Nov._ 89. _c._ 15.]
THE method in which the English law provides maintenance 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.
[Footnote c: Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3 Car. I. c. 4. 13 &
14 Car. II. c. 12. 6 Geo. II. c. 31.]
3. I PROCEED next to the rights and incapacities which 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.
[Footnote d: _Fort. de LL._ _c._ 40.]
[Footnote e: Co. Litt. 3.]
[Footnote f: Salk. 427.]
[Footnote g: Salk. 121.]
[Footnote h: Stat. 17 Geo. II. c. 5.]
[Footnote i: Fortesc. _c._ 40. 5 Rep. 58.]
[Footnote k: _Cod._ 6. 57. 5.]
[Footnote l: 4 Inst. 36.]
CHAPTER THE SEVENTEENTH.
OF GUARDIAN AND WARD.
THE only general private relation, now remaining to be discussed, is
that of guardian and ward; which bears a very near resemblance to the
last, and is plainly derived out of it: the guardian being only a
temporary parent; that is, for so long time as the ward is an infant,
or under age. In examining this species of relationship, I shall first
consider the different kinds of guardians, how they are appointed, and
their power and duty: next, the different ages of persons, as defined
by the law: and, lastly, the privileges and disabilities of an infant,
or one under age and subject to guardianship.
1. THE guardian with us performs the office both of the _tutor_ and
_curator_ of the Roman laws; the former of which had the charge of the
maintenance and education of the minor, the latter the care of his
fortune; or, according to the language of the court of chancery, the
_tutor_ was the committee of the person, the _curator_ the committee
of the estate. But this office was frequently united in the civil
law[a]; as it is always in our law with regard to minors, though as to
lunatics and idiots it is commonly kept distinct.
[Footnote a: _Ff._ 26. 4. 1.]