Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 199.: Parent's duty of maintenance.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 199.: Parent’s duty of maintenance.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 199.

Parent’s duty of maintenance.—

The law of every civilized nation imposes upon the parent the duty to maintain and support the child during his period of infancy, when he is unable to support himself. Having brought the child into the world, he owes this duty, not only to the child, but to society as well, and the legal enforcement of this duty is a justifiable exercise of police power. Probably no one will dispute this, as long as the duty is confined to the support of the child during the time when it is physically or mentally incapable of providing for its own maintenance; and the duty may be made to last as long as the incapacity exists, notwithstanding it is permanent and will continue through life to old age. But when there is no actual incapacity, and the child is really able to provide for himself or herself, may the State impose upon the parent the duty to support the child during the time that the State requires the child to be in attendance upon the schools? This might very properly be considered a doubtful exercise of police power. Still, if the education is necessary to make the child a valuable citizen, and can be made compulsory; as long as this requirement is kept within the limits of necessity, it would seem that the maintenance of the child during its attendance upon the school would be as much the duty of the parent, as to provide for the child’s physical wants during its early infancy. If the question is ever raised, and this is quite likely in any effort to make compulsory education a realized fact, it will probably be settled in favor of the power of the State to impose this duty.

Unless it is otherwise stated in the law, when reference is made to the rights and duties, which children possess and owe, legitimate children are meant; and a child is legitimate or illegitimate, according to the declarations of the municipal law of the country of his residence. The ordinary rule of the common law, which is the prevalent rule in this country, in the absence of statutory modification, is that a child is legitimate only when it is born in lawful wedlock. The subsequent marriage of the parents does not legitimize the offspring born before marriage, as it does in the Roman law. A number of the States have adopted the Roman rule, but requiring that the putative father shall after the marriage acknowledge the paternity of the child. There can be very little doubt that such a statutory change would not infringe any vested rights or constitutional limitations, if the statute were given a retroactive affect, and children already born out of wedlock were legitimized by the statute. The rights of legitimate children to maintenance and to a share of the patrimony are not so vested, as to furnish the ground for constitutional objection to such a retroactive law, which extends the enjoyment of these rights to children, who, under the law in force at the time of their birth, were illegitimate and were denied these rights. This has been the conclusion of the Supreme Court of South Carolina in sustaining a statute of that State, passed in 1865, which provided that every colored child heretofore born shall be the legitimate child of “his colored father, if he is acknowledged by such father.” The act was intended to avoid the confusion and doubt in such matters, which it was supposed would arise out of the loose and obscure marriages of slavery.1

[1]Callahan v. Callahan, 36 S. C. 454.