Chapter the sixteenth.
Of PARENT and CHILD.
THE next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.
Children are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children.
I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "Pater est quem nuptiae demonstrant," is the rule of the civil law[a]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us enquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents.
[a] Ff. 2. 4. 5.
1. And, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education.
The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf[], 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 manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents. And the president Montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this 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 rigor of laws;—that stifle her inclinations to perform this duty: and besides, she generally wants ability.
[] L. of N. l. 4. c. 11.
[c] Sp. L. l. 23. c. 2.
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 ϛοργη, or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.