II. PARENT AND CHILD.
Children may be divided into two classes—legitimate and illegitimate; and the liability of a father in respect of his children is widely different in the case of the latter class from the ordinary duty and responsibility of a parent. In order to clear the ground, we will first dispose of the illegitimate class; and throughout this paper it must be understood that the words parent and child, when used without any qualifying terms, refer to those between whom that mutual relationship lawfully subsists.
An illegitimate child, or bastard, is one who is born without its parents having been lawfully married; and in England, a bastard born is illegitimate to the end of his or her life; but in Scotland, such child may be rendered legitimate by the subsequent marriage of its parents, provided that at the date of its birth and of their marriage they were both free to marry. The father of an illegitimate child has no right to its custody; but he may be compelled to contribute to its support by means of an affiliation order. A bastard cannot inherit either real or personal estate from either of its parents, nor from any other person; neither can any person inherit from a bachelor or spinster who is illegitimate. If, however, such a person marries, the husband or wife and children have the same legal rights as if the stain of illegitimacy had not existed.
A legitimate child—with the exception noted above—is the offspring of parents who were lawfully married before the time of its birth. A posthumous child, if born in due time after the husband’s death, is legitimate.
The father has primâ facie a right to the custody of his children while under the age of sixteen years; after that age, if they are able to maintain themselves, they may be emancipated from his control. But a mother can apply to the court for an order that she may have the exclusive care of her children while they are respectively under seven years of age; and after that age, for leave of access to them at reasonable times, in cases where husband and wife do not live together. In case of the divorce of the parents, the court will give directions as to the custody of the children of the marriage, taking into consideration the offence against morality of the guilty parent, but also what is best for the children’s education and upbringing and prospects in life.
A parent is bound to maintain and educate his children according to his station; and if the father should neglect his duty in this respect, the mother—if living with her husband—may, as his agent, order what is necessary, and he would be responsible for the expense thus incurred, which must be strictly limited to what is reasonably necessary. If a child should become chargeable upon the poor-rates, both father and grandfather are responsible for repayment of the cost incurred; the former primarily, and the latter secondarily, in case of the absence or inability of the father. In like manner, a child may be compelled to repay to the poor-rates authorities the cost of maintenance of his parents, if he have the means of doing so.
A child while under the age of twenty-one years cannot enter into a binding contract, even with the consent and concurrence of its parent, except for special purposes. One of these purposes is the acquisition of knowledge which will enable the child to earn its livelihood when it arrives at maturity. Thus apprentices and articled clerks may be bound in such a manner as to render it compulsory for them to serve until they respectively attain the age of twenty-one years; but the binding cannot be extended beyond that age. As soon as an apprentice attains his majority, he may elect to vacate his indenture, and be free from any further compulsory service. This is founded upon the well-known principle, that a minor can only be compelled to perform contracts entered into on his behalf during his minority; and that when he attains the age of twenty-one years, he is free to enter into contracts on his own behalf, which stand upon an entirely different footing, and are entirely inconsistent with the former contract. It may also be mentioned here that a minor, when he becomes of age, is free to elect whether he will perform any other contracts which he may have entered into during his minority. If any such contract be beneficial, he may allow it to stand; and if it be otherwise, he may cancel it; but the other party, if of full age, will be bound by his contract.
In this connection we may notice the Infants Relief Act, 1874. Although primarily aimed at the protection of ‘infants’ from the consequences of their own imprudence, this statute, the operation of which extends to the whole of the United Kingdom, has been found very useful in relieving children against a cruel but not uncommon kind of pressure by impecunious parents, who in many cases induced their children to encumber their expectant property in order to assist them (the parents) when in difficulties. The manner was this: The son would while under age sign a promise to execute a valid charge, which would accordingly be executed the day after he attained his majority; and though the first promise was worthless, the deed was binding. But it was enacted that all contracts entered into by ‘infants’ for the repayment of money lent or to be lent, and all accounts stated with ‘infants,’ should be not merely voidable, but absolutely void; and further, the ratification when of full age of any such promise should be void also, and the ratified promise should be incapable of being enforced.
A parent may lawfully maintain an action on behalf of his child, whether such child be an infant or of full age, without being liable to be prosecuted for the offence of maintenance or champerty. In like manner, a child if of full age may maintain an action on behalf of his parent, even though he may have no personal interest in the subject-matter of the action.
A parent may also protect his child, or a child protect his parent, from violence or assault, in such circumstances as would expose a stranger to the charge of officiously intermeddling with strife which did not concern him.
The power of an Englishman to dispose of his property by will being absolute, the consideration of a parent’s will as affecting his children need not detain us long. The principal peculiarity is this: In case of the death of a child or grandchild of a testator in the lifetime of the latter, leaving lawful issue, any devise or bequest in the will in favour of the deceased child or grandchild will take effect in favour of his issue in the same manner as if he had survived the testator and died immediately afterwards. In similar circumstances, a gift in favour of any other person who died in the testator’s lifetime would lapse, that is to say, it would altogether fail to take effect.
But in Scotland, the power of a father to dispose of his property by will is much more restricted, being confined to what is called the ‘dead man’s’ part—namely, so much as remains after setting aside one-third of the personal property or movable goods for the widow; and one-third for the children of the testator. Or if there be no widow, then the share of the children is one-half, which is divisible among them equally. The rights of either widow or child may be renounced by an antenuptial marriage contract, or for some equivalent provision given in such a contract, or by will; and a child of full age may by deed discharge his claim for legitim, as the children’s share of the succession is called.
In case of intestacy, the eldest son is by the common law his father’s heir-at-law, subject to his mother’s dower, if not barred or discharged. But in some localities, special customs exist, such as Borough English—prevalent at Maldon in Essex and elsewhere, by virtue of which the youngest son is the heir—and Gavelkind, which affects most of the land in Kent, where all the sons inherit in equal shares. Returning to the common-law rule, where there are both sons and daughters, the eldest son inherits to the exclusion of his younger brothers, and his sisters whether elder or younger. But if the intestate had no son, but several daughters, they would take as co-parceners in equal undivided shares. It will be understood that heirs and co-heiresses take freehold houses and land; but that leaseholds are personal property, and like money and goods, stocks and shares, are distributable, subject as hereinafter mentioned, among the widow (if any) and relatives of the deceased. Copyhold property is real estate, and the descent is in each case regulated by the custom of the manor of which the property is holden; Borough English and Gavelkind being much more common as affecting copyhold than freehold estates, though even in the case of copyholds the common-law rule is by far the most general.
The personal property of an intestate is the primary fund for payment of funeral and other expenses, costs of administration, and debts. When these have been paid, the widow (if any) is entitled to one-third of what is left; and the other two-thirds are divisible among the children. If there be no widow, the children take all, the collateral relatives having no claim. If any of the testator’s children have died before him, leaving issue, such issue take in equal shares the portion which their parent would have taken if living.
In England, the heir-at-law who takes his father’s freehold estates is not thereby deprived of his share, or any portion of his share, of the personalty. But in Scotland, the heir must bring into account or collate the value of what he has received in that capacity, before he can claim any part of the movables.
If a son or daughter be possessed of real and personal estate, and die unmarried, or widowed without children, and without making a will, leaving a surviving father, he would take the real estate as heir-at-law, and the personal estate as sole next of kin. If he were dead, the mother would take a share of the personal estate with the surviving brothers and sisters, and the eldest brother would inherit the real estate as heir-at-law. If the mother were living, but no brothers or sisters, nephews or nieces, she would have the personal estate, but could not inherit the real estate so long as any heir could be found on the paternal side. The children of deceased brothers and sisters take equally amongst them the share of personal estate which their deceased parent would have taken if living.
The law of Scotland is not so favourable to the father and mother of intestates. The father does not succeed to real or heritable estate if there be a brother or sister, and in the same event his right is limited to that of one-half the movable estate. When the father has predeceased, and the mother survives, she takes one-third of the movable succession, and the rest goes to brothers and sisters or other next of kin.
Having thus considered the rights, duties, and liabilities of parents with respect to the persons, the necessities, and the property of their children, and the corresponding rights and obligations of children with regard to their parents, we must offer a few remarks on the authority of parents over their children, and the extent to which that authority may be delegated to others.
A parent may control the actions of his children so long as they remain under his roof, and may insist upon his regulations being observed and his commands obeyed. While they are of tender years, he may inflict any reasonable punishment for disobedience or other offence, either by personal chastisement or otherwise; but he must not torture them, nor endanger their lives or health. He may also instruct his children himself; or he may send them to school; in the latter case, delegating to the schoolmaster so much as may be necessary of his power to restrain and correct the children so intrusted to his care. Since compulsory education became law, he must use reasonable means to get them educated. If a child should prove incorrigible, the parent may apply to the justices of the peace to send him or her to an Industrial School; which they have power to do on being satisfied by evidence upon oath that the child is altogether beyond the power of its parent to manage or control; and an order may be made upon the parent to pay the expense of the child’s maintenance and education in such school, if his means are sufficient to enable him to do so.
The liabilities imposed by marriage differ to some extent from the responsibilities of actual parentage. Thus, a man may be compelled to repay the expense incurred by the maintenance of his own father, but not of his wife’s father, in the workhouse. And though a married man is bound to keep his wife’s children, born before his marriage with her, until they are sixteen years of age respectively, if his wife live so long; yet, if she were to die while any of them were under that age, his responsibility would immediately cease. And if any of them were to become chargeable upon the poor-rates when more than sixteen years old, the stepfather could not be required to contribute towards the expense of their maintenance, even though their mother should be still living.