LECTURE XXIX.

OF PARENT AND CHILD.

THE next domestic relation which we are to consider, is that of parent and child. The duties that reciprocally result from this connexion, are prescribed, as well by those feelings of parental love and filial reverence which Providence has implanted in the human breast, as by the positive precepts of religion, and of our municipal law.

I. Of the Duties of Parents.

The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a competent provision for the exigencies of that situation."

The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law. The Athenian and the Roman laws were so strict in enforcing the performance of this natural obligation of the parent, that they would not allow the father to disinherit the child from pas

a Paley's Moral Philosophy, p. 223. Taylor's Elements of the Civil Law, 383. Puffendorf's Droit de la Nature, b. 4. ch. 11. s. 4. and 5,

b Grotius, b. 2. c. 7. s. 4.

sion or prejudice, but only for substantial reasons, to be approved of in a court of justice

a

The obligation on the part of the parent to maintain the child, continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural aftertion, that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is "nature's profession to assist, maintain, and console the child.” A father's house is always open to his children. The best feelings of our nature establish and consecrate this asylum. Under the thousand pains and perils of human life, the home of the parents is to the children a sure refuge from evil, and a consolatiou in distress. In the intenseness, the lively touches, and unsubdued nature of parental affection, we discern the wisdom and goodness of the great Author of our being, and Father of Mercics.

All the provision that the statute law of this state has made on the subject, applies to the case of mere necessary maintenance, and the provision was borrowed from the English statutes of 43 Eliz. and 5 Geo. 1. The father and grandfather, mother and grandmother, being of sufficient ability, of any poor, blind, lame, or decrepit person whomsoever, not being able to maintain himself, and becoming chargeable to any city or town, shall, at their own charge and expense, relieve and maintain every such person, in such manner as the justices of the peace of the county, at their general sessions, shall order and direct, under the penalty of one dollar and fifty cents for every week's disobedience of the order. If the father, or if the mother, being a widow, run away and leave their children a public charge, their estate is liable to be sequestered, and the proceeds applied to

a Polter's Greek Antiq. vol. ii. 351. Dig. 23. 2. 30. Novel, 115, ch. 3.

plied to the maintenance of the children. The statute justly imposes a similar obligation upon the children and grandchildren, under like circumstances. This feeble and scanty statute provision was intended for the indemnity of the public against the maintenance of paupers, and it is all the injunction that the statute law pronounces in support of the duty of parents to maintain their adult children. During the minority of the child, the case is different, and the parent is absolutely bound to provide reasonably for "his maintenance and education, and he may be sued for ne cessaries furnished, and schooling given to a child, under just and reasonable circumstances. The father is bound to support his minor children, if he be of ability, even though they have property of their own ; but this obligation in such a case does not extend to the mother. The legal obligation of the father to maintain his child, ceases as soon as the child is of age, however wealthy the father may be, unless the child becomes chargeable to the public as a pau per. The construction put upon the statute of 43 Eliz. renders it applicable only to relations by blood, and the husband is not liable for the expenses of the maintenance of the child of the wife by a former husband ;e nor for the expense of the maintenance of the wife's mother. If however, he takes the wife's child into his own house, he is then considered as standing in loco parentis, and is respon sible for the maintenance and education of the child; for, by that act, he holds the child out to the world as part of his

a Laws of N. Y. sess. 36. ch. 78. 9. 21, 22.

b Simpson v. Robertson, 1 Esp. Cases, 17. Ford v. Fothergill, ibid. 211. Stone v. Carr, 3 Esp. Cas. 1. Stanton v. Wilson, 3 Day, 37. Van Valkinburgh v. Watson, 13 Johns. Rep. 480.

c Hughes v. Hughes, 1 Bro. 387. Whipple v. Dow, 2 Mass, Rep. 415, Dawes v. Howard, 4 Mass. Rep. 97.

d1 Lord Rrym. 699. Parish of St. Andrews v. Mendez de Breta

e Tubb v. Harrison, 4 Term Rep. 118.

[Part IV. family. There was great force of reason and justice in the extra-judicial dicta referred to in the case in Strange, that the husband ought to maintain the parents of his wife, if he was able, and they were not; because the wife was liable before marriage to support them, and her personal property, and the use of her real estate, passed, by the marriage, to the husband. But the statute does not reach the case; and when the wife, by her marriage, parts with her ability to maintain her children, she ceases to be liable. If, however, the wife has separate property, the Court of Chancery would, undoubtedly, in a proper case, make an order charging that property with the necessary support of her children and parents.

A is not bound by the contract of his son, even for articles suitable and necessary, unless an actual authority be or the circumstances be sufficient to imply one. Were it otherwise, a father who had an imprudent son, might be prejudiced to an indefinite extent. What is necessary for the child is left to the discretion of the parent; and where the infant is sub potestate parentis, there must be a clear omission of duty as to necessaries, before a third person can interfere, and furnish them, and charge the father. It will always be a question for a jury, whether, under the circumstances of the case, the father's authority was to be inferred. If the father suffers the children to remain abroad with their mother, or if he forces them from home by severe usage, he is liable for their necessaries.d And in consequence of the obligation of the father to provide

a Stone v. Carr, 3 Esp. Cases, 1.

6 Billingsly v. Critchet, 1 Bro. 268. Cooper v. Martin, 4 East, 76. c Baker v. Keen, 2 Starkie, 501. Valkinburgh v. Watson, 13 Johns.

Rep. 480.

d Lord Eldon, in 3 Esp. Cases, 252. Rawlins v. Van Dyke, 3 Day, 37. Stanton v. Wilson.