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By
Timothy Walker, LL.D.,
Late Professor of Law in the Cincinnati College.
Boston:
Little, Brown, and Company.
1887.
§ 108. Rights and Duties of Parents.
(b) Blackstone and other writers lay down the duties of parents towards their children as consisting in their maintenance, protection, and education. There can be no doubt that these are duties of the highest moral obligation; and he would be an unnatural parent, who should be false to them, having the ability to perform them. But it is certainly a mistake to say that they are duties of strict legal obligation, unless there be a statute to that effect. Such they are not, because the common law furnishes no means of enforcing their performance, or punishing their non-performance. On this subject, writers seem to be beguiled by their good feelings into singular misapprehension or inexcusable vagueness of expression. How can you compel a parent to maintain, protect, or educate his child? The common law furnishes no means of doing it; and as the test of legal obligation is the means of enforcing it, this proves that the legal obligation does not exist. First, as to maintenance or support, our statute seems to presuppose that there are no means of compulsion, by authorizing the township trustees to bind children out when their parents shall not provide for them; and the principle that a parent may by will disinherit a child, or may do the same thing by giving all his property away during his life, leads to the same conclusion. It may even be doubted whether, if a parent should, without reason, turn his child out of doors, and a stranger, knowing this, should provide for the child, he could recover payment from the parent. (a) Next, as to protection, a parent may certainly go as far in defending his child from harm as in defending himself. The law permits him so to do; but it does not undertake to compel him so to do, or punish him for not so doing. And, lastly, as to education, the same is true. A parent of the most unbounded means may, in spite of the law, bring up his children in the most deplorable ignorance. The truth therefore is, that these are not matters of legal obligation. The law has left them to the strong impulses of natural affection. Whether wisely or not, is a question I need not discuss. The fact is all that I am now concerned with. And, on the other hand, the parent's power over the child is very little aided by law. The father is the natural guardian of the minor children; in which capacity he has the custody of their persons, but not of their property. He may correct them with moderation, bind them out to service, receive their earnings, and forbid their marrying. He may also by will appoint for them a testamentary guardian, with powers extending to their persons and property. This is a singular instance in which a person may delegate a power which he does not possess. The father, unless legally appointed guardian, cannot control the separate property of his minor child, except it be earned by the child's labor; but he may by will confer this power on another. Finally, at majority, or when a daughter marries, all power of the parent over the child ceases; and the child, to all intents and purposes, becomes emancipated from parental control. (a)
