the municipal laws of most countries feem to be defective in this point, by not conftraining the parent to beftow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the inftruction of his family, to labour under those griefs and inconveniencies, which his family, fo uninftructed, will be fure to bring upon him. Our laws, though their defects in this particular cannot be denied, have in one inftance made a wife provifion for breeding up the rifing generation: fince 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 ftatutes for apprenticing poor children; and are placed out by the public in fuch a manner, as may render their abilities, in their feveral 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 ornaments or difgraces to their family. Yet in one cafe, that of religion, they are under peculiar restrictions: for it is provided, that if any perfon fends any child under his government beyond the feas, either to prevent it's good education in England, or in order to enter into or refide in any popifh college, or to be inftructed, perfuaded, or ftrengthened in the popish religion; in fuch case, befides the difabilities incurred by the child fo fent, the parent or perfon fending fhall forfeit 100 . which fhall go to the fole use and benefit of him that fhall difcover the offence. And if any parent, or other, fhall fend or convey any perfon beyond fea, to enter into, or be refident in, or trained up in, any priory, abbey, nunnery, popish univerfity, college, or fchool, or houfe of jefuits, or pricfts, or in any private popish family, in order to be inftructed, perfuaded, or confirmed in the popish religion; or fhail contribute any thing towards their maintenance when abroad by any pretext whatever, the perfon both fending and fent fhall be difabled to fue in law or equity, or to be executor or adminiftrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in w See pag. 426. Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5. y Stat. 11 & 12 W. III. c. 4. the the realm, and fhall forfeit all his goods and chattels, and likewife all his real estate for life. 2. THE power of parents over their children is derived from the former confideration, their duty': this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompenfe for his care and trouble in the faithful discharge of it. And upon this score the municipal laws of fome nations have given a much larger authority to the parents, than others. The antient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away3. But the rigor of these laws was foftened by fubfequent conftitutions; fo that we find a father banished by the emperor Hadrian for killing his fon, though he had committed a very heinous crime, upon this maxim, that "patria poteftas in pietate "debet, non in atrocitate, confiftere." But ftill 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; but all his acquifitions belonged to the father, or at leaft the profits of them for his life. THE power of a parent by our English laws is much more moderate; but ftill fufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. The confent or concurrence of the parent to the marriage of his child under age, was also directed by our an◄ tient law to be obtained: but now it is abfolutely necessary ; for without it the contract is void. And this also is another means, which the law has put into the parent's hands, in order the better to difcharge his duty; firft, of protecting his children from the fnares of artful and defigning perfons; and, next, of fettling them properly in life, by preventing the ill confequences of too early and precipitate marriages. A father has no other power over his fon's eftate, than as his trustee d 1 Hawk. P. C. 130. e Stat. 26 Geo. II. 33. a Ff. 28. 2. 11. b Ff. 48. 9. 5• с Inft. 2. 9. 1. Cod. 8. 47. 10. or or guardian; for, though he may receive the profits during the child's minority, yet he must account for them when he comes of age. He may indeed have the benefit of his children's labour while they live with him, and are maintained by him but this is no more than he is entitled to from his apprentices or fervants. The legal power of a father (for a mother, as fuch, is entitled to no power, but only to reverence and refpect) the power of a father, I fay, over the perfons of his children ceafes at the age of twenty-one: for they are then enfranchised by arriving at years of difcretion, or that point which the law has eftablifhed (as fome muft neceffarily be established) when the empire of the father, or other guardian, gives place to the empire of reafon. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. He may alfo delegate part of his parental authority, during his life, to the tutor or fchoolmafter, of his child; who is then in loco parentis, and has fuch a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be neceffary to answer the purposes for which he is employed. 3. THE duties of children to their parents arife from a principle of natural juftice and retribution. For to those, who gave us existence, we naturally owe fubjection and obedience during our minority, and honour and reverence ever after they, who protecled the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by fuftenance and education have enabled their offspring to profper, ought in return to be fupported by that offspring, in cafe they stand in need of affiftance. Upon this principle proceed all the duties of children to their parents which are enjoined by pofitive laws. And the Athenian laws carried this principle into practice with a scrupulous kind of nicety : obliging all children to provide for their father, when fallen into poverty; with an exception to fpurious children, to those whose chastity had been prostituted by confent of the father, and to thofe whom he had not put in any way of f Potter's Antiq b. 4. c. 15. gaining gaining a livelyhood. The legislature, fays baron Montef quieu, confidered, that in the firft cafe the father, being uncertain, had rendered the natural obligation precarious; that, in the fecond cafe, he had fullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third cafe, he had rendered their life (fo far as in him lay) an infupportable burthen, by furnishing them with no means of fubfiftence. OUR laws agree with thofe of Athens with regard to the first only of these particulars, the case of spurious iffue. In the other cafes the law does not hold the tie of nature to be diffolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the perfon, or maintaining the caufe or fuit, of a bad parent, as a good one; and is equally compellable, if of fufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has fhewn the greatest tenderness and parental piety. II. We are next to confider the cafe of illegitimate children, or baftards; with regard to whom let us inquire, 1. Who are baftards. 2. The legal duties of the parents towards a baftard child. 3. The rights and incapacities attending fuch bastard children, 1. WHO are baftards. A baftard, by our English laws, 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 intermarry1: and herein they differ moft materially from our law; which, though not fo ftrict as to require that the child fhall be begotten, yet makes it an indifpenfable condition, to make it legitimate, that it fhall be born, after lawful wedlock. And the reafon of our English law is furely ruch fuperior to that of the Roman, if we confider the principal end and defign of establishing the contract of marriage, taken in a civil light; abstractedly from Sp. I. b. 26. c. 5. i C. I. Inft. 1. 10, 13. Decret. 1. 4. t. 17. any any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage therefore being to ascertain and fix upon fome certain perfon, to whom the care, the protection, the maintenance, and the education of the children fhould belong; this end is undoubtedly better anfwered by legitimating all iffue born after wedlock, than by legitimating all iffue of the fame parties, even born before wedlock, fo as wedlock after.. wards enfues; 1. Because of the very great uncertainty there will generally be, in the proof that the iffue was really begotten by the fame man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. 2. Becaufe by the Roman law a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex poft facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3. Becaufe by thofe laws a man may remain a baftard till forty years of age, and then become legitimate, by the fubfequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally fruftrated. 4. Because this rule of the Roman law admits of no limitations as to the time or number of baftards fo to be legitimated; but a dozen of them may, twenty years after their birth, by the fubfequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great difcouragement to the matrimo nial state; to which one main inducement is usually not only the defire of having children, but also the defire of procreating lawful heirs. Whereas our conftitutions guard against this indecency, and at the fame time give fufficient allowance to the frailties of human nature. For, if a child be begotten while the parents are fingle, and they will endeavour to make an carly reparation for the offence, by marrying within a few months after, our law is fo indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock; for this is an incident that can happen but once, fince all future children will be begotten, as well as born, within the |