PARENT, a term of relation applicable to those from whom we immediately derive our being. To this subject belongs an inquiry, first, into the legal duties of parents to their legitimate children, and, secondly, their power over them.

I. The duties of parents to legitimate children consist in their maintenance, protection, and education. The duty of parents to provide for the maintenance of their children, is a principle of natural law, an obligation 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 degree 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 take care that the life which they have bestowed shall be supported and preserved. And thus the children have a perfect right to receive maintenance from their parents. The president Montesquieu justly observes upon this head, that the establishment of marriage, in all civilized states, is built on the 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, which stifle her inclinations to perform this duty; and, besides she generally wants the ability to do so.

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 στοογη, or affection, which neither the deformity of person or mind, nor even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.

The civil law obliges the parent to provide maintenance for his child; and if he refuse, judex de ea re cognoscet. Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen reasons reckoned up, which may justify such disinherison. If the parent alleged no reason, or a bad one, the child might set the will aside, tanquam testamentum inofficiosum, as a testament contrary to the natural duty of the parent, by suggesting that the parent had lost the use of his reason when he made the inofficious testament. And this, as Puffendorff observes, 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, 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 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, 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.

The father and mother, grandfather and grandmother, of poor impotent persons, shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct; and if a parent run away and leave his children, the church wardens and overseers of the parish shall seize his rents, goods, and chattels, and dispose of them towards their relief. By the interpretations which the courts of law have put upon these statutes, if a mother or grandmother marry again, and before such second marriage had sufficient ability to keep the child, the husband shall be charged to maintain it; for this being a debt of his wife when single, shall, like others, extend to the charge of the husband. But at her death, the relation being dissolved, the husband is under no farther obligation.

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 he is only obliged to find them in necessaries, the penalty on refusal being no more than twenty shillings a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence, but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgencies 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, 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 that she was entitled to none. But this gave occasion to another statute, which ordains, that if Jewish parents refuse to allow their Protestant children a fitting maintenance, suitable to the fortune of the parents, the Lord Chancellor, on complaint, may make such order therein as he shall see proper.

Our law has made no provision to prevent the disinheriting of children by will, leaving every man’s property in his own disposal, upon a principle of liberty in this as well as every other action, although perhaps it would not have been amiss if the parent had been bound to leave them at the least a necessary subsistence. Indeed, amongst 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.
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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 law-suits, without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defence of the persons of his children. 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 unfortunately died, it was not held to be murder, but only manslaughter. 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 one of the greatest importance. For it is not easy to imagine that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he afterwards entirely neglect his culture and education, and suffer him to grow up like a mere beast, or 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, 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 the ornament or the disgrace of their family.

II. 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. Upon this point 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 the principle, that he who gave had also the power of taking away. But the rigour of these laws was so softened by subsequent constitutions, that we find a father banished by the Emperor Hadrian for killing his son, although he had committed a very heinous crime; upon the maxim, that the 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; and all his acquisitions, or at least the profits of them, belonged to the father during his life.

The power of a parent by the English law is much more moderate, but is still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; because 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 ancient law to be obtained; but it is now absolutely necessary, for without it the contract is void. And this is also 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 evil 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 although he may receive the profits during the child’s minority, yet he must account for them when the child comes of age. He may indeed have the benefit of his children’s labour whilst 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) over the persons of his children ceases at the age of twenty-one; for they arc then enfranchised by arriving at years of discretion, or that point which the law has established, when the empire of the father or other guardian gives places to the empire of reason. Yet till that age arrives the 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, namely, that of restraint and correction, as may be necessary to answer the purposes for which he is employed.