experience may give of the course of nature on this subject (j).

In connexion with this matter, we may notice a proceeding in our antient law (of which there have been instances also in modern times) applicable to the case, [where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate; an attempt which the rigour of the Gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death (k). In this case, with us, the heir presumptive may have a writ de ventre inspiciendo, to examine whether she be with child or not (1), and if she be, to keep her under proper restraint till delivered; which is entirely conformable to the practice of the civil law (m): but if the widow be upon due examination found not pregnant, the presumptive heir shall be admitted to the inheritance, though liable to lose it again on the birth of a child within forty weeks from the death of a husband (n). But if a man dies, and his widow soon after marries again, and a child is born within such a time as that by the course of nature it might have been the child of either husband, in this case he is said to be more than ordinarily legitimate, and] it is laid down, that [he may, when he arrives to years of discretion, choose which of the fathers he pleases (o). To prevent this, among other inconveniences, the civil law ordained that no widow should marry infra annum luctus (p); a rule which obtained so early as the reign of Augustus, if

(j) Lord Coke lays it down as a positive rule, that the extreme period is nine calendar months, or forty weeks, Co. Litt. 123 b. But though that limit is seldom exceeded, the law considers it as subject to possible extension. Vide 1 Bl. Com. 457; Co. Litt. by Harg. 123 b, n. (1); Alsop v. Bowtrell, Cro. Jac. 541; Case of the Gardner Peerage.

(k) Stiernh. De Jure Goth. 1. 3, c. 5.

(1) Bract. 1. 2; c. 32; Aiscough's case, 2 P. Wms. 591; Ex parte Wallop, 4 Bro. C. C. 90; Co. Litt. by Harg. 8 b, and n. (3); ibid. 123 b, n. (1).

(m) Ff. 25, tit. 4, per tot.
(n) Britton, c. 66.

(0) Co. Litt. 8 a; but this doctrine has been questioned. Ibid. n. (7), by Harg.

(p) Cod. 5, 9, 2.

[not of Romulus (q): and the same constitution was probably handed down to our early ancestors from the Romans, during their stay in the island, for we find it established. under the Saxon and Danish governments (r).]

II. Having thus explained to what children the epithet of legitimate applies, we are next to consider the duties of parents towards, and their power over, such children; and the reciprocal duties of the children towards their parents.

1. And, first, the duties of the parents: [which principally consist in three particulars; the maintenance of the children, 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 (s), 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 their 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 (1) 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,

(q) But the Roman year, as established by Romulus, only consisted of ten months. Ov. Fast. 1. 27.

(r) "Sit omnis vidua sine marito duodecim menses."-Wilk. Leg. Anglo

Sax. LI. Ethel. A.D. 1008; Ll. Canut.
c. 71.

(s) L. of N. 1. 4, c. 11.
(t) Sp. L. b. 23, c. 2.

[remorse, the constraint of her sex, and the rigour of laws, —that stifle her inclinations to perform this duty; and besides, she generally wants ability.

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 σrogy, 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.

The civil law (u) obliges the parent to provide maintenance for his child; and if he refuses, "judex de eâ 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 such reasons reckoned up (x), which may justify such disinherison. If the parent alleged no reason, or a bad, or a false one, the child might set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the inofficious testament. And this, as Puffendorf observes (y), 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 (z), 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 them by the favour of their parents, or the positive constitutions of the municipal law.]

(u) Ff. 25, 3, 5.

(x) Nov. 115.

(y) L. 4, c. 11, s. 7.

(*) De J. B. et P. 1. 2, c. 7, n. 3.

Let us next see what provision our own laws have made on this subject. However plain the moral obligation, that every man shall provide for those descended from his loins, it is one which the common law seems to have given no means of enforcing (b), perhaps because its neglect was considered as an improbable case. But very slight circumstances will be sufficient to raise the presumption of a contract on the part of the father to pay for necessaries provided to his infant child (c); and the statute law, among its other provisions relating to the poor, has made it compulsory upon all parents, whose circumstances enable them to do so, to provide a maintenance for their children, of whatever age, when in poverty, and unable through infancy, disease, or accident, to support themselves. The manner in which this obligation shall be performed is thus pointed out by the stat. 43 Eliz. c. 2; 5 Geo. I. c. 8; and 59 Geo. III. c. 12, s. 26. The father and mother, grandfather and grandmother, of poor persons not able to work, shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions, or two justices in petty sessions, shall direct; and if a parent runs away and leaves his children, the churchwardens and overseers of the parish shall, upon obtaining an order of magistrates for the purpose, seize his rents, goods, and chattels, and dispose of them towards their relief (d). Also by 4 & 5 Will. IV. c. 76, ss. 56, 57, all relief given under the poor-laws to any child or children under the age of sixteen, (not being blind, or deaf and dumb,) shall be considered as given to the father, or (if he is dead) to the widow; and every person is made liable to maintain his wife's children born before his marriage to her, (whether legitimate or illegitimate,) as part of his family, and shall be chargeable with all relief granted to them under the poor-laws,

(b) See Urmston v. Newcomen, 4 Ad. & El. 899; Queen v. Hogan, 20 L. J. (M. C.) 219.

(c) Law v. Wilkin, 6 Ad. & El.

(d) See 4 & 5 Will. 4, c. 76, ss. 78, 99. As to orders of maintenance, see also 11 & 12 Vict. c. 110 s. 8.

until they attain the age of sixteen, or until the death of the mother (e). And by 18 & 19 Vict. c. 87, in any case in which any juvenile offender is detained in a "reformatory school," under the provisions of 17 & 18 Vict. c. 86, the parent or step-parent, if of sufficient ability, shall be liable to contribute to his support and maintenance a sum not exceeding five shillings a week.

[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 is only obliged to find them in necessaries. 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 indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours (f).]

We have before had occasion to observe (g), that our present law (setting aside the antient right of the children to the pars rationabilis) [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; though perhaps it had not been amiss if the parent had been bound to leave them at the least a necessary subsistence. Indeed, among persons of any rank or fortune, a competence is generally pro

(e) See Queen v. Inhabitants of Shavington-cum-Gresty, 17 Q. B. 48. Such children, however, do not acquire the second husband's settlement. R. v. Walthamstow, 6 Ad. & El. 301. As to the former state of the law with respect to the duty of the second husband in this particular, vide Cooper v. Martin, 4 East, 76.

(f) By 11 & 12 Will. 3, c. 4, if a Popish parent refused to allow his Protestant child a fitting main

tenance, with a view to compel him to change his religion, the lord chancellor was, by order of the court, to compel him to do what was just and reasonable. And by 1 Ann. st. 1, c. 30, if a Jewish parent refused to allow his Protestant children a fitting maintenance, suitable to the fortune of the parent, a similar remedy was provided. But both statutes are now repealed by 9 & 10 Vict. c. 59.

(g) Vide sup. p. 192.