CHAPTER XVI. OF PARENT AND CHILD. child. THE next and most universal relation in nature is immediately Relation of derived from the preceding, being that between parent and parent and child. A legitimate child is he that is born in lawful wedlock, Legitimate or within a competent time afterwards. children. The duties of parents to their legitimate children (a) consist Duties of pain their maintenance, protection, and education. rents. It is a principle of law that there is an obligation on every Raym. 500. man to provide for those descended from his loins; and the manner in which this obligation shall be performed is thus pointed out. The father and mother, grandfather and grand- 43 Eliz. c. 2. mother, of poor impotent persons, shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct (b); and if a parent runs away and leaves his children, the churchwardens and overseers of the parish are 7 Geo. 1, c. 8. to seize his rents, goods, and chattels, and dispose of them towards their relief. If a mother or grandmother marries again, and was before such marriage of sufficient ability to keep the child, the husband is chargeable to maintain it, for this being a debt of hers, when single, shall, like others, extend to Styles, 283. charge the husband. But at her death, the relation being dis- 2 Bulstr. 346. solved, the husband is under no farther obligation (c). Our law has made no provision to prevent the disinheriting of children by will, leaving every man's property at his own disposal. (a) By 6 & 7 Wm. 4, c. 86, provision is made for registering births, deaths, and marriages in England. The parent or occupier of every house is, upon being requested by the registrar of the district, to give information touching the particulars of the birth of every child therein, in order to such registration. Some person present at the death, or during the last illness of every person dying in England, or the occupier, or some inmate of the house, is also to give information of such death for the same purpose. It has been held to be an indictable misdemeanor in a party refusing to comply with the directions of this act, in giving the requisite particulars of the birth of his child to the registrar. (6) By the poor-law act, 4 & 5 Wm. 4, c. 76, s. 56, it is declared that nothing in that act contained shall discharge the father and grandfather, mother and grandmother, of any poor child from their liability to relieve and maintain such poor child according to the provisions of 43 Eliz. (c) See 4 & 5 Wm. 4, c. 76, s. 57, ante, p. 62. Protection of children. 2 Inst. 564. 1 Hawk. P. C. 131. Education of children. 1 Jac. 1, c. 4. c. 5. 3 Jac. 1, Power of pa rents over children. 1 Hawk. P. C. 130. 26 Geo. 2, c. 33. Duties of children. 43 Eliz. c. 2 Of bastards. Protection is also a natural duty, but rather permitted than enjoined by our municipal laws. A parent may maintain his children in their lawsuits, and may also justify an assault and battery in defence of the persons of his children. With regard to education, parents are mostly left to their own. option, yet in the case of religion they are under some restrictions. The power of parents over their children is derived from the former consideration-their duty. A parent may correct his child, being under age, in a reasonable manner. The consent or concurrence of the parent to the marriage of his child under age is absolutely necessary. A father has no power over his son's estate other than as his trustee or guardian, and if he receives he must account for the profits when his child comes of age. The legal power of a father over the persons of his children ceases at the age of twenty-one. 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. By our law a child is justifiable in defending the person or maintaining the cause or suit of a parent, and is compellable if of sufficient ability to maintain and provide for him. A bastard 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. The English law on this head is superior to the Roman, if we consider the principal end and design of establishing the contract of marriage taken in a civil light. The uncertainty in the proof acquired by the Roman law, that the issue was really begotten by the same man, enabled parents to continue children bastards, or make them legitimate without limitation as to time or number at their option, by a marriage ex post facto, thus opening a door to fraud and partiality, which with us are prevented. Where a widow is suspected to feign herself with child, in ventre inspici- order to produce a suppositious heir to the estate, the heir sumptive may have a writ de ventre inspiciendo to examine whether she be with child or not; and if she be, to keep her The writ de endo. pre under proper restraint till delivered; but if she be found not Co. Litt. 8. pregnant, the presumptive heir shall be admitted to the inherit- Brac. 1, 2. t. 32. ance, though liable to lose it again upon the birth of a child within forty weeks from the death of a husband. But if a Britton, c. 66, man dies, and his widow soon after marries again, and a child is p. 166. born within such a time as that by the course of nature it might have been the child of either husband, in this case the child may, when he arrives to years of discretion, choose which of the fathers he pleases. Children born during wedlock may, in Co. Litt. 8. some circumstances, be bastards, as if the husband be out of the kingdom for above nine months, so that no access to his wife 3 P. W. 276. can be presumed, her issue during that period shall be bastards. Co. Litt. 244. Generally, during coverture access of the husband will be presumed, unless the contrary be shewn, as by proving him to be elsewhere. In case of a divorce a mensa et thoro, if the wife breeds children they are bastards; so also, if there be an ap- Salk. 123. parent impossibility of procreation on the part of the husband, Co. Litt. 244. as if he be only eight years old. And in the case of a divorce in the spiritual court a vinculo matrimonii, all the issue born during Ibid. 235. the coverture are bastards. The duty of parents to their bastard children is principally The duty of that of maintenance (d). parents to bastard child ren. Rights and in capacities of Fort. de L. L. c. 40. The rights of a bastard are 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 bastards. filius populi. Yet he may gain a surname by reputation, though he has none by inheritance. All other children have their primary settlement in their father's parish; but a bastard in the parish where born, for he has no father (e); but in case Salk. 427. of fraud, as if a woman be sent by order of justices, or comes 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 Salk. 121. the parish from whence she was illegally removed, or in the (d) See 4 & 5 Wm. 4, c. 76. The acts relating to the liability and punishment of putative father and punishment of mother of illegitimate children are repealed, s. 69. The mothers of illegitimate children are bound to maintain them until sixteen years old, s. 71. The quarter sessions, on application of overseers, may make an order on putative father of child to support it; but the evidence of the mother must be corroborated in some material particular by other testimony to the satisfaction of the court, 8.72. By 2 & 3 Vict. c. 85, the petty sessions may order the putative father of child to support it, the evidence of the mother being corroborated as required by 8. 72 of 4 & 5 Wm. 4, c. 76. (e) See the last note. latter case in the mother's own parish, if the mother be appre17 Geo. 2, c.5. hended for her vagrancy. Bastards also born in any licensed 13 Geo. 3, c. 82. 4 Inst. 36. hospital, for pregnant women are settled in the parishes to which the mothers belong. A bastard cannot be heir to any one, nor can he have heirs but of his own body. A bastard may be made legitimate and capable of inheriting by an act of parliament, and not otherwise (ƒ). CHAPTER XVII. The relation of gardian and ward. The several species of guardians. Co. Litt. 88. 3 Rep. 39. Moore, 738 3 Rep. 38. 2 Jones, 90. 2 Lev. 163. Litt. s. 123. Co. Litt. 88. OF GUARDIAN AND WARD. THE relation of guardian and ward bears a near resemblance to and is derived out of the last. Of the several species of guardians, the first are guardians by nature, viz. the father, and in some cases the mother of the child. If an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits. By 4 & 5 Ph. & M. c. 8, the father may, by deed or will, assign a guardian to any woman child under sixteen, and if none be assigned the mother shall be guardian. The father or mother is also guardian for nurture till the infant attains fourteen. In default of father or mother, the ordinary may assign a person to take care of the infant's personal estate, and to provide for his maintenance and education. Guardians in socage by the common law, explained hereafter (a), take place only when the minor is entitled to some estate in lands, when, by the common law, the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend. The guardian in socage continues only till the minor is fourteen, when he may choose his own guardian, unless one be appointed by the father by virtue of 12 Car. 2, c. 24, by which any father under age, or of full age, may, by deed or will, dispose of the custody of his child, either born or unborn to any person, except a popish recusant, either in possession or reversion, till such child attains twenty-one. These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London and other places, but they are particular exceptions, and do not fall under the general law. (f) By 6 & 7 Wm. 4, c. 22, bastards in Scotland are empowered to make testaments. (a) See book 2, cap. 6. The power and reciprocal duty of a guardian and ward are the same pro tempore as that of a father and child. The guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. The lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; and in case any guardian abuses his trust, the court will check and punish, and sometimes remove him and appoint another in his stead. Power of guardians. 1 Sid. 424. 1 P. Wms. 703. The ages of male and female are different for different The ward. purposes. A male at twelve years old may take the oath of allegiance, at fourteen is at years of discretion and may then consent or disagree to marriage, may choose his guardian, and if his discretion be actually proved, may make his testament of his personal estate (b), at seventeen may be an executor, and at twenty-one is at his own disposal, and may alien his lands, goods, and chattels. A female at seven years old may be betrothed or given in marriage, at nine is entitled to dower, at twelve is at years of maturity, and may then consent or disagree to marriage, and if proved to have sufficient discretion, may bequeath her personal estate (b), at fourteen is at years of legal discretion and may choose a guardian, at seventeen may be executrix, and at twenty-one may dispose of herself and lands. Full age in male or female is twenty-one, which is completed on the day preceding the anniversary of a person's birth, who till that time is an infant, and so styled in law. An infant cannot be sued but under the protection and joining the name of his guardian, for he is to defend himself against all attacks, as well by law as otherwise; but he may sue either by his guardian or prochein amy, his next friend, who is not his guardian. In criminal cases an infant at fourteen may be capitally 1 Hal. P. C. punished, but under seven he cannot. Between seven and fourteen he is, generally speaking, judged prima facie innocent; yet, if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and suffer judgment and execution of death. An infant shall lose nothing by nonclaim or neglect of demanding his right, nor shall any other laches or negligence be imputed to an infant except in some particular cases. Infants cannot alien Salk. 44, 625. Lord Raym. 480, 1096. Infants, their privileges and disabilities. Co. Litt. 135. 25. (6) By 7 Wm. 4 and 1 Vict. c. 26, no will made after 1st January, 1838, by any person under the age of twenty-one years shall be valid. |