Front Page Titles (by Subject) CHAPTER XVI.: OF PARENT AND CHILD. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XVI.: OF PARENT AND CHILD. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF PARENT AND CHILD.
The next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.
Children are of two sorts; legitimate, and spurious, or bastards, each of which we shall consider in their order; and, first, of legitimate children.
I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. “Pater est quem nuptiæ 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 inquire 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. And, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education.
**447]The duty of parents to provide for the maintenance of their 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 their 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 the 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 rigour of laws, that stifle her inclinations to perform this duty; and, besides, she generally wants ability.
The municipal laws of all well-regulated states have taken 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 στοργη, 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.
The civil law(d) obliges the parent to provide maintenance for 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 *[*448his 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 a 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,(g) 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.
Let us next see what provision our own laws have made for 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)1 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-session shall direct: and(k) if a parent runs away, and leaves his children, the church-wardens and overseers of the parish shall seize his rents, goods, and chattels, and dispose of them toward 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 **449]maintain it:(l) for this, being a debt of hers when single, shall like others extend to charge the husband.2 But at her death, the relation being dissolved, the husband is under no further obligation.3
No person is bound to provide a maintenance for his issue, 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.4 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 entitled to none.(n)5 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.6
Our law has made no provision to prevent the disinheriting of children by will; leaving every man’s property in his *[*450own 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 least a necessary subsistence. Indeed, 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)7
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. 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 the son’s quarrel by beating the other boy, of which beating he afterwards unfortunately died, it was not held to be murder, but manslaughter merely.(t)8 Such indulgence does the law show to the frailty of human nature, and the workings of parental affection.
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 **451]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 its 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 *[*452popish 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.9
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 recompense 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 ancient 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 rigour 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)
The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience.10 He may lawfully correct his child, being under age, in a reasonable manner;(d) for this is for the benefit of his education.11 The consent or concurrence of the parent to the marriage of his child under age, was also directed by our ancient 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 **453]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 son’s 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.12 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.13 The legal power of a father,—for a mother, as such, is entitled to no power, but only to reverence and respect;14 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.15
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 *[*454this 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 livelihood. The legislature, says baron Montesquieu,(g) considered, that in the first case the father, being uncertain, bad 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 burden, by furnishing them with no means of subsistence.
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 shown the greatest tenderness and parental piety.16
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, *[*455yet makes it an indispensable condition, to make it legitimate, 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, abstractly 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 law 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 law 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 **456]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)17
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)18 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 rigour 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)19 and, if she be, to keep her under proper restraint till delivered; which is entirely conformable to the practice of the civil law:(o) but, if the widow be, upon due examination, found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again on the birth of a child within forty weeks from the death of a husband.(p) 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 *[*457husband; 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.(q)20 To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus,(r) a rule which obtained so early as the reign of Augustus,(s) 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.(t)
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,(u) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards.(v) But, generally, during the coverture, access of the husband shall be presumed, unless the contrary can be shown;(w) which is such a negative as can only be proved by showing him to be elsewhere: for the general rule is, præsumitur pro legitimatione.(x)21 In a divorce a mensa et thoro,(y) 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 shown.(z) 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 bastards.(a) Likewise, in case of divorce in the spiritual court, a vinculo matrimonii,(b) all the issue born during the coverture are bastards;(c) because such divorce is always upon **458]some cause that rendered the marriage unlawful and null from the beginning.
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.(d) 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.(f) 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 as 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 giving the parents opportunity to escape.22
*[*4593. 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.(g) Yet he may gain a sirname by reputation,(h) though he has none by inheritance.23 All other children have their primary settlement in their father’s parish; but a bastard in the parish where born, for he hath no father.(i) 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 where 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;(j) or, in the latter case, in the mother’s own parish, if the mother be apprehended for her vagrancy.(k) Bastards also born in any licensed hospital for pregnant women, are settled in the parishes to which the mothers belong.(l) 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:(m) 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 its equitable decisions, made bastards, in some cases, incapable even of a gift from their parents.(n) A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise:(o) as was done in the case of John of Gaunt’s bastard children, by a statute of Richard the Second.
[(a) ]Ff. 2, 4, 5.
[(b) ] L. of N. 14, c. 11.
[(c) ] Sp. L. b. 23, c. 2.
[(d) ]Ff. 25, 3, 5.
[(e) ] Nov. 115.
[(f) ]L. 4, c. 11, 7.
[(g) ]De J. B. & P. l. 2, c. 7, n. 3.
[(h) ] Raym. 500.
[(i) ] Stat. 43 Eliz. c. 2.
[1 ] Independently of the express enactment in the 43 Eliz. c. 2, and other subsequent statutes, there is no legal obligation on a parent to maintain his child; and therefore a third person, who may relieve the latter even from absolute want, cannot sue the parent for a reasonable remuneration, unless he expressly or impliedly contracted to pay. See per Le Blanc, J. 4. East, 84. Sir T. Raym. 260, margin. Palmer, 559. 2 Stark. 521. Whereas, as we have seen in the case of husband and wife, the former may in some cases be sued for necessaries provided for the latter, even in defiance of the husband’s injunctions not to supply them. The common law considered moral duties of this nature, like others of imperfect obligation, as better left in their performance to the impulse of nature. However, a parent may, under circumstances, be indicted at common law for not supplying an infant child with necessaries. Russell & R. C. C. 20. 2 Camp. 650.
The statute 43 Eliz. c. 2, s. 7 enacts that the father and grandfather, and the mother and grandmother, and the children, of every poor, old, blind, lame, and impotent person, or other poor person, not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner, and according to that rate, as by the justices of peace of that county where such sufficient persons dwell, or the greater number of them at their general quarter-sessions, shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein.
Mr. Christian has supposed (p. 448, n. 1) that the relations mentioned in the 43 Eliz. c. 2 can only be compelled to allow each other 20s. a month, or 13l. a year; but he has not distinguished between the power to award a sufficient maintenance and the punishment for the breach of the order. The amount of maintenance is in the discretion of the magistrates; and they may order much more than 20s. a month. And if the party disobey the order to pay that sum, though exceeding 20s. a month, he may be indicted. 2 Burr. 799.
Any two justices may make this order of allowance, which is, in fact, in aid of the parish to which the indigent person belongs. The relation on whom the order is made may appeal to the justices in sessions, who, upon evidence and the consideration of the circumstances and ability of the party, can reduce the allowance or discharge the order. If the party disobey the order, he may, as we have seen, be indicted, (2 Burr. 799,) or his goods may be distrained under a warrant of justices by distress. 43 Eliz. c. 2, s. 2 and 11.
The justices must be of the county where such parent dwells. 2 Bulst. 344.
Though independently of an express contract, or one implied from particular facts, a father cannot be sued for the price of necessaries provided for his infant son, yet very slight circumstances will suffice to justify a jury in finding a contract on his part. In a late case, where a parent was sought to be charged for regimentals furnished to his son, the lord chief justice left it as a question for the jury to consider whether they could infer that the order was given by the assent and with the authority of the father. He said that “a father would not be bound by the contract of his son unless either an actual authority were proved, or circumstances appeared from which such an authority might be implied: were it otherwise, a father who had an imprudent son might be prejudiced to an indefinite extent; and it was therefore necessary that some proof should be given that the order of a son was made by the authority of his father. The question, therefore, for the consideration of the jury was, whether, under the circumstances of the particular case, there was sufficient to convince them that the defendant had invested his son with such authority. He had placed his son at the military college at Harlow, and had paid his expenses while he remained there: the son, it appeared, then obtained a commission in the army, and having found his way to London, at a considerable distance from his father’s residence, had ordered regimentals and other articles suitable to his equipment for the East Indies. If it had appeared in evidence that the defendant had supplied his son with money for this purpose, or that he had ordered these articles to be furnished elsewhere, either of those circumstances,” the learned judge observed, “might have rebutted the presumption of any authority from the defendant to order them from the plaintiff: nothing, however, of this nature had been proved; and since the articles were necessary for the son, and suitable to that station in which the defendant had placed him, it was for the jury to say whether they were not satisfied that an authority had been given by the defendant.” The jury found in the affirmative. 2 Stark. R. 521.
So where a man marries a widow who has children by her former husband, who are received by the second husband into, and held out by him to the world as forming part of, his own family, he will be liable to pay third persons for necessaries furnished for them. Per lord Ellenborough, 4 East, 82.
But where a parent allows his child a reasonable sum for his expenses, he will not be liable even for necessaries ordered by such child. 2 Esp. R. 471.
And where a tradesman has furnished a young man with clothes to an extravagant extent, he cannot sue the father for any part of his demand, (1 Esp. Rep. 17;) nor is the infant liable for any part of the articles. 2 Bla. R. 1325.
And it should seem, as in the cases of husband and wife, or principal and agent, if the credit be given solely to the child, the parent will not in any case be liable.
But although in a particular case credit may have been given to a minor, and not to his parent, yet the latter may be responsible in a case of fraud. Thus, where the goods were supplied to a minor on a fraudulent representation by his father that he was about to relinquish business in favour of his son, although the credit was given to the son, the father dealing with the proceeds was held responsible, in assumpsit, for goods sold and delivered. 1 Stark. 20.—Chitty.
[(k) ] Stat. 5 Geo. I. c. 8.
[(l) ] Styles, 283. 2 Bulst. 346.
[2 ] It has lately been decided that the authorities here relied upon by the learned commentator never were law, and that a husband is not bound, even whilst his wife is alive, to support her parents, or her children by a former husband, or any other relation; for the statute 43 Eliz. c. 2 extends only to natural relations, being those by blood and not by marriage. 4 T. R. 118.
And where a step-father had maintained the son of his wife whilst he was under age, who, when he was of age, promised to pay his step-father the expense he had incurred; he brought an action for it, and it was held he was not bound by the act of marriage with the mother to maintain her son, but stood in that respect in the situation of any other stranger. And having done an act beneficial to the defendant in his infancy, it was a good consideration for the defendant’s promise after he came of age. If the step-father had been bound by law to maintain the children of the wife, then the promise of the step-son would have been a nudum pactum, and the step-father could have maintained no action upon it. 4 East, 82.—Christian.
The son’s father is not compellable to maintain the son’s wife. 2 Stra. 995.—Chitty.
[3 ] A father-in-law is not obliged to maintain the children which his wife may have had by a former husband. Commonwealth vs. Hamilton, 6 Mass. 273. Worcester vs. Marchant, 14 Pick. 510. Williams vs. Hutchinson, 3 Comst. 312.—Sharswood.
[4 ] A parent is bound by the common law to support his children as long as he has any means whatever to do it. He cannot therefore charge their separate estate with the expense of their maintenance and education. Hillsborough vs. Deering, 4 N. Hamp. 86. Harland’s Accounts, 5 Rawle, 323. Addison vs. Bowie, 2 Bland, 606. Dupont vs. Johnson, 1 Bailey, Ch. R. 274.
Although courts of equity recognise the common law liability of a father to support and educate his child, yet in a case where he has not ability to do so according to their station in life, assistance will be granted him from the estate of the child. Newport vs. Cook, 2 Ashm. 332. Cawls vs. Cawls, 3 Gilman, 435. Godard vs. Wagner, 2 Strob. Eq. 1.
A parent is bound to provide his children with necessaries; and, if he neglect to do so a third person may supply them and charge the parent with the amount. Van Valkinburgh vs. Watson, 13 Johns. 480. Stanton vs. Willson, 3 Day, 37. Pidgin vs. Comm. 8 N. Hamp. 350.
If a father abandon his duty, so that his infant child is forced to leave his house, he is liable for a suitable maintenance; but where the son voluntarily leaves his father’s house, the authority of the father to purchase necessaries is not implied. Owen vs. White, 5 Porter, 435. Hunt vs. Thompson, 3 Scam. 179. Raymond vs. Loyd, 10 Barb. Sup. Ct. 483. Watts vs. Steele, 19 Ala. 656.—Sharswood.
[(m) ] Stat. 11 & 12 W. III. c. 4.
[(n) ] Lord Raym. 699.
[5 ] It was not held that she was entitled to none because she was the daughter of a Jew, but because the order did not state that she was poor, or likely to become chargeable to the parish.—Christian.
[(o) ] Com. Jour. 18 Feb. 12 March, 1701.
[(p) ] 1 Anne, st. 1, c. 30.
[6 ] Both these statutes are now repealed by 9 & 10 Vict. c. 59.—Sharswood.
[(q) ] 1 Lev. 130.
[7 ] And the heirs will not be disinherited by any implied construction of the devise of his ancestor; for descent is favoured, and this rule applies as well to heirs general as by custom; and there must be some plain words of gift, or necessary implication, to disinherit an heir-at-law. 2 Ves. 164. 11 Ves. 29; and cases collected in H. Chitty’s Law of Descents, 311.
And it is a rule of the court of equity to turn the scale in favour of an heir, and the court always inclines in his favour, and will allow artificial reasoning to prevent his being disinherited. 3 Atk. 680, 747. Every heir has a right to inquire by what means, and under what deed, he is disinherited. And before he has established his title, he may go into equity to remove terms out of the way which would prevent his recovering there, and may also have a production and inspection of deeds and writings in equity. 1 Atk. 339. 2 Ves. 389. 3 Atk. 387.
The law also favours bequests to children, in preference to other persons, on the account of the legacy-duty.
See also cases of implied revocations of a will by subsequent marriage and birth of a child. 5 T. R. 49, 51. 4 M. & S. 10.—Chitty.
[(r) ] 2 Inst. 564.
[(s) ] 1 Hawk. P. C. 131.
[(t) ] Cro. Jac. 296. 1 Hawk. P. C. 83.
[8 ] This case should not be read without the comment of Mr. J. Foster on it: he says the case as reported by lord Coke always appeared to him very extraordinary. The two children had been fighting: the prisoner’s son is worsted and returns home bloody; the father takes a staff, runs three-quarters of a mile and beats the other boy, who dies of the beating. “If,” says he, “upon provocation such as this, the father, after running three-quarters of a mile, had despatched the child with an hedge-stake or any other deadly weapon, or by repeated blows with his cudgel, it must, in my opinion, have been murder, since any of these circumstances would have been a plain indication of malice.”
He then adverts to Coke’s report of the case, and to the remarks made on it by lord Raymond in R. vs. Oneby, 2 Ld. Raym. 1498; from which he infers that the accident happened by a single stroke with a small cudgel, not likely to destroy, and that death did not immediately ensue. So that the ground of the decision was the absence of any fact showing malice, rather than indulgence shown to parental passion. Foster, 294.—Coleridge.
[(u) ] L. of N. b. 6, c. 2, 12.
[(w) ] See page 426.
[(x) ] Stat. 1 Ja. I. c. 4, and 3 Ja. I. c. 5.
[(y) ] Stat. 11 & 12 W. III. c. 4.
[(z) ] Stat. 3 Car. I. c. 2.
[9 ] These restrictions on education in the Roman Catholic religion are removed by 10 Geo. IV. c. 7, the statute for the emancipation of the Roman Catholics.—Sharswood.
[(a) ]Ff. 28, 2, 11. Cod. 8, 47, 10.
[(b) ]Ff. 48, 9, 5.
[(c) ] Inst. 2, 9, 1.
[10 ] At law the father has against third persons the right to the custody and possession of his infant son, and the court of King’s Bench cannot directly control it. 5 East, 221. 10 Ves. J. 58, 59. And, at common law, it was an offence to take a child from his father’s possession. Andrews, 312. And child-stealing is an offence now punishable by statute 54 Geo. III. c. 101. A court of equity controls this power of the parent when he conducts himself improperly, as being in constant habits of drunkenness or blasphemy, or attempting to mislead him in matters of religion, or to take him improperly out of the kingdom; and the father may be compelled to give security in these cases. 10 Ves. J. 58, 61.—Chitty.
The father is in the first instance entitled to the custody of the children; but the courts will exercise a sound discretion for the benefit of the children, and in some cases will order them into the custody of a third person, when both parents are immoral, grossly ignorant, and unfit to be intrusted with their care and education. Commonwealth vs. Nutt, 1 Browne, 143. United States vs. Green, 3 Mason, 482. Commonwealth vs. Addick, 2 S. & R. 174. Matter of Rottman, 2 Hill, S. C. 363. The People vs. Mercein. 3 Hill, 399. The State vs. Paine, 4 Humph. 523. Ex parte Schumpert, 6 Rich. 344. Smith, petitioner, 13 Illinois, 138.—Sharswood.
[(d) ] 1 Hawk. P. C. 130.
[11 ] A parent is punishable for an excessive punishment of his child, and what constitutes excess is a question of fact for the jury. Johnson vs. The State, 2 Humph. 283.—Sharswood.
[(e) ] Stat. 26 Geo. II. c. 33.
[12 ] Where children have fortunes independent of their parents, lord Thurlow declared that it was the practice in chancery to refer it to the master, to inquire whether the parents were of ability to maintain the children; if not, then to report what would be a proper maintenance. See per Le Blanc, J. 4 East, 84, 85. And this practice did not vary where a maintenance was directly given by the will, unless in cases where it was given to the father; under which circumstance it was a legacy to him. 1 Bro. 388. And an allowance will be made for their maintenance and education for the time past since the death of the testator, and for the time to come until they attain the age of twenty-one. 6 Ves. Jun. 454.—Christian.
The father, as guardian by nature, has no right to receive the rents and profits of his child’s lands; nor is he authorized to receive payment of a legacy to his child. Jackson vs. Combs, 7 Cowen, 36. Miles vs. Boyden, 3 Pick. 213. Isaacs vs. Boyd, 5 Port. 388. Hyde vs. Stone, 7 Wend. 354.—Sharswood.
[13 ] A parent is entitled to the earnings of his minor child, where there is no agreement, express or implied, that payment may be made to the child; and an action for the work, labour, and service of such child must be brought in the name of the parent. Benson vs. Remington, 2 Mass. 113. Gale vs. Parrot, 1 N. Hamp. 28. United States vs. Meste, 2 Watts, 406. Morse vs. Wilton, 6 Conn. 547. Stovall vs. Johnson, 17 Ala. 14. If a parent contract for the services of his minor child, in consideration of a remuneration to the latter, the contract is valid, and will enable the child to maintain an action for the breach of it, in his own name. Ewbanks vs. Peak, 2 Bailey, 497. Chase vs. Smith, 5 Verm. 556. Where a minor son makes a contract for services on his own account, and his father knows of it and makes no objection, there is an implied assent that the son shall have his earnings. Cloud vs. Hamilton, 11 Humph. 104. Whiting vs. Earle, 3 Pick. 201. The right of a father to the fruit of the child’s labour has its foundation in his obligation to support and educate the child, and if he abandons the child he forfeits his right to his earnings. The Atna, Ware, 462. Stone vs. Pulsipher, 16 Verm. 428. Godfrey vs. Hays, 6 Ala. 501. Marriage of a minor son is a legal emancipation, and entitles him to his own earnings. Dicks vs. Grisson, 1 Freeman, Ch. 428.—Sharswood.
[14 ] Now, however, by the statute 2 & 3 Vict. c. 54, commonly called Talfourd’s Act, an order may be made on petition to the court of chancery, giving mothers access to their children, and, if such children are within the age of seven years, for delivery of them to their mother until they attain that age. No mother, however, against whom adultery has been established, is entitled to the benefit of the act.
In New York and some other States by statute, and in other parts of the Union by common law, the courts are vested with the power, in the exercise of a sound discretion with a view to the welfare of the child, of determining to which parent the custody shall be committed, and, in some cases, of denying such custody to either parent.
An infant owes reverence to his mother; but she has no legal authority over him and no legal right to his services. Commonwealth vs. Murray, 4 Binn. 487. Whipple vs. Dow, 2 Mass. 415.—Sharswood.
[15 ] This power must be temperately exercised; and no schoolmaster should feel himself at liberty to administer chastisement coextensively with the parent, howsoever the infant delinquent might appear to have deserved it. Delegation of parental power may not extend to apprenticing a child without his consent. 3 B. & A. 584. But, under some provisions found in the poor-laws, magistrates have the power of binding children apprentices, and, in the case specified, have power to examine the father or mother. See stat. 56 Geo. III. c. 139, 1.—Chitty.
[(f) ] Potter’s Antiq. b. 4, c. 15.
[(g) ] Sp. L. b. 26, c. 5.
[(h) ] Stat. 43 Eliz. c. 2.
[16 ] The words of the statute are “the father and grandfather, mother and grandmother, and children, of every poor and impotent person, &c.;” from which words and a former statute, Dr. Burn is inclined to think, even contrary to the opinion of lord Holt, that a grandchild is not compellable to relieve an indigent grandfather; but I should entertain no doubt but the court of King’s Bench would determine the duty to be reciprocal, and would construe any ambiguous expression in favour of the discharge of such a natural and moral obligation.—Christian.
A child is not liable at common law for the support of an infirm and indigent parent. The liability rests altogether upon statute provisions. Edward vs. Davis, 16 Johns. 281.—Sharswood.
[(i) ] Inst. 1, 10, 13. Decret. l. 4, t. 7, c. 1.
[(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 Angliæ mutare, quæ hucusque usitatæ sunt et approbatæ. Stat. 20 Hen. III. c. 9. See the introduction to the great charter, edit. Oxon. 1759, sub anno 1253.
[17 ] And so strict is this rule that where a person born a bastard becomes, by the subsequent marriage of his parents, legitimate according to the laws of the country in which he was born, he is still a bastard, so far as regards the inheritance of lands in England. Doe d. Birdwhistle vs. Vardill, 6 Bingh. N. C. 358.—Kerr.
[(l) ] Cro. Jac. 541.
[18 ] The following information from Dr. Hunter will be found in Harg. & B. Co. Litt. 123, b.:—“1. The usual period of gestation is nine calendar months; but there is very commonly a difference of one, two, or three weeks. 2. A child may be born alive at any time from three months; but we see none born with powers of coming to manhood, or of being reared, before seven calendar months, or near that time: at six months it cannot be. 3. I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months; and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception.” See further Runington on Ejectments, 1 ed.
In a case where the wife was a lewd woman, and she was delivered of a child forty weeks and ten days after the death of the husband, it was held legitimate. Hale’s MSS. Stark. on Evid. part iv. 221, n. a. So where the child was born forty weeks and eleven days after the death of the first husband. 18 Ric. II. Hale’s MSS. Cro. Jac. 541. Godb 281. See also 2 Stra. 925. Roll. Abr. 356.—Chitty.
[(m) ] Stiernhook de Jure Gothor. l. 3, c. 5.
[(n) ] Co. Litt. S. Bract. l. 2, c. 32.
[19 ] The writ is granted not only to an heir-at-law, but to a devisee for life, or in tail, or in fee, and whether his interest is immediate or contingent. See 4 Bro. 90. For the proceedings under this writ, see 2 P. Wms. 591. And in Moseley’s Report of Aiscough’s case, the same in 2 P. Wms. 591, a case of personal estate is cited. The writ directs that, in the presence of knights and women, the female tractari per uberem et ventrem,—the presumed necessity of the case dispensing at once with common decency and with respectful deference to sex.—Chitty.
[(o) ]Ff. 25, tit. 4, per tot.
[(p) ] Britton, c. 66, page 166.
[(q) ] Co. Litt. 8.
[20 ] “Brooke,” says Mr. Hargrave, in his note on the passage cited from Co. Litt. in support of this position, “questions this doctrine; from which it seems as if he thought it reasonable that the circumstances of the case, instead of the choice of the issue, should determine who is the father.”—Coleridge.
[(r) ] Cod. 5, 9, 2. “Within the year of mourning.”
[(s) ] But the year was then only ten months. Ovid. Fast. I. 27.
[(t) ]Sit omnis vidua sine marito duodecim menses. L. L. Ethelr.ad 1008. L. L. Canut. c. 71.
[(u) ] “Without the four seas.”
[(v) ] Co. Litt. 244.
[(w) ] Salk. 123. 3 P. W. 276. Stra. 925.
[(x) ] 5 Rep. 98. “It is presumed for legitimation.”
[21 ] It used to be held, that, when the husband was living within the kingdom, access was presumed, unless strict proof was adduced that the husband and wife were all the time living at a distance from each other; but now the legitimacy or illegitimacy of the child of a married woman living in a notorious state of adultery, under all the circumstances, is a question for a jury to determine. 4 T. R. 356 and 251. And when the husband in the course of nature cannot have been the father of his wife’s child, the child is by law considered a bastard; and lord Ellenborough said that circumstances which show a natural impossibility that the husband could be the father of the child of which the wife is delivered, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, are grounds on which the illegitimacy of the child may be founded; and, therefore, where it was proved that the husband had only access one fortnight before the birth of a child, it was held to be illegitimate; but the court said that in the case where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, it stands upon its own peculiar ground, the child in that case is legitimated by the recognition of the husband. 8 East, 193.—Christian.
The presumption of law is in favour of the legitimacy of children born in wedlock; but this presumption may be rebutted by placing the fact of non-access of the husband beyond reasonable doubt. It is not necessary to show that access was impossible, though probability of non-access is not sufficient to overthrow the presumption. Stegall vs. Stegall, 2 Brock. 256. Cross vs. Cross, 3 Paige, C. R. 139. Wright vs. Hicks, 12 Georgia, 155. However, in the Supreme Court of the United States the more stringent rule has been adopted, that, when once a marriage has been proved, nothing can impugn the legitimacy of the issue short of the proof of facts showing it to be impossible that the husband could be the father. Patterson vs. Gaines, 6 How. U. S. 550. A child born in wedlock, though born within a month or a day after marriage, is presumed to be legitimate; and when the mother was visibly pregnant at the marriage, it is a presumption juris et de jure that the child was the offspring of the husband. The State vs. Heman, 13 Iredell, 502.—Sharswood.
[(y) ] “From table and from bed.”
[(z) ] Salk. 122.
[(a) ] Co. Litt. 244.
[(b) ] “From the bond of marriage.”
[(c) ] Ibid. 235.
[(d) ] Lord Raym. 68. Comb. 356.
[(e) ] Nov. 89, c. 15.
[(f) ] Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3 Car. I. c. 4. 13 & [Editor: Illegible character] Car. II. c. 12. 7 Geo. II. c. 31.
[22 ] In the technical treatises on the poor-laws will be found the cases occurring as to the right of custody, whether it be in the father or in the mother of the bastard. And the right of the mother to such custody seems recognised and established. 5 East, 221. See also 1 B. & P. N. R. 148. 7 East, 579.
But the assent of either father or mother to a marriage of a bastard under age does not appear to be expressly required by the late marriage act; and hence either banns, or the assent of a guardian appointed by the lord chancellor, seem necessary to establish its validity.—Chitty.
But by the poor-law act, 4 & 5 W. IV. c. 76, all previous statutes on this subject are repealed: and it is enacted that every child which shall be born a bastard, after the passing of the act, shall follow the settlement of the mother until he shall attain sixteen, or shall acquire a settlement in his own right; and such mother shall be bound to maintain such child as part of her family until sixteen, and such liability on marriage is to attach to her husband. And now, by 7 & 8 Vict. c. 101, s. 6, (amended by 8 & 9 Vict. c. 10,) if such child shall become chargeable to the parish, the mother is liable to be punished under the vagrant act; and if the mother is not of sufficient ability, the justices in petty session, or one justice within the metropolitan district, under 8 & 9 Vict. c. 10, s. 9, may make an order on the putative father for maintenance, provided the evidence of the mother be corroborated by other testimony; but such order shall in no case continue in force after the child shall attain thirteen years, or die, or the mother be married.—Stewart.
[(g) ]Fort. de L. L. c. 40.
[(h) ] Co. Litt. 3.
[23 ] A bastard having gotten a name by reputation may purchase by his reputed or known name to him and his heirs, (Co. Litt. 3, b.;) but this can only be to the heirs of his own body.
A conveyance to a man who is a bastard, and his heirs, though his estate is in its descent confined to the issue of his body, yet gives him a fee simple, and confers an unlimited power of alienation; and any person deriving title from him or his heirs may transmit the estate in perpetual succession. The law, however, so far adverts to the situation of a bastard, that a limitation over on failure of the heirs of the bastard, after a gift by will to him and his heirs, would convert the devise into an estate tail. 3 Bulst. 195. 1 Lord Raym. 1152.
Bastards may take by gift or devise, provided they are sufficiently described, and have gained a name by reputation. 1 Ves. & B. 423. 1 Atk. 410.
But the rule as to a bastard’s taking by his name of reputation must be understood as giving a capacity to take by that name merely as a description, not as a child by a claim of kindred: therefore a bastard cannot claim a share under a devise to children generally, though the will was strong in his favour by implication, (5 Ves. 530; and see 1 Ves. & B. 434, 469. 6 Ves. 43. 1 Maddox, 430. H. Chitty’s Law of Descents, 28, 29;) nor is any illegitimate child entitled to immediate interest upon a legacy payable at a future time, when such legacy was given by its reputed father. 2 Roper on Leg. 2 ed. 199.
A limitation cannot be to a bastard en ventre sa mere; for bastards cannot take till they gain a name by reputation. 1 Inst. 3, b. 6 Co. 68. 1 P. Wms. 529. 17 Ves. 528 1 Mer. 151. 18 Ves. 288. H. Chitty’s Law of Descents, 29, 30.
Though a bastard may be a reputed son, yet he is not such a son for whom, in consideration of blood, a use can be raised. Dyer, 374. Yet on an estate otherwise effectually passed, an estate may be as well declared to a bastard being in esse, and sufficiently described, as to another person; but where the use will not arise but in consideration of blood, if derived through any but the pure channel of marriage, however near it may be, it will not prevail. Id. Co. Litt. 123, a. See 2 Fonb. on Eq. 5 ed. 124.
If a bastard die seised of a real estate of inheritance, without having devised it, and without issue, the estate will escheat to the king, or other immediate lord of the fee. 3 Bulst. 195. 1 Lord Raym. 1152. 1 Prest. Est. 468, 479, post, 2 book, 249. 2 Cruise’s Dig. 374. But as there might in many cases be much apparent hardship in the strict enforcement of this branch of the royal prerogative, it is usual in such cases to transfer the power of exercising it to some one of the family, reserving to the crown a small proportion, as a tenth, of the value of both the real and personal estate. 1 Woodd. 397, 398. And so likewise in the case of personal estate, where a bastard dies intestate and without issue, the king is entitled, and the ordinary of course grants, administration to the patentee or grantee of the crown. Salk. 37. 3 P. Wms. 33. See H. Chitty’s Law of Descents, 27, 28.—Chitty.
[(i) ] Salk. 427.
[(j) ] Ibid. 121.
[(k) ] Stat. 17 Geo. II. c. 5.
[(l) ] Stat. 13 Geo. III. c. 82.
[(m) ] Fortesc. c. 40. 5 Rep. 58.
[(n) ] Cod. 6, 57, 5.
[(o) ] 4 Inst. 36.