No. 321.

Book 1, part 2, tit. 7, chap. 3, sec. 1.

No. 322.

that they are born out of lawful wedlock; and in opposition to adopted children, it means that they are the actual offspring of their parents. It is only in the first sense here given, that natural children will be considered in this chapter.

Natural children have been divided into three classes; first, those born of persons who were free, and might, at the time of conception, have lawfully married, these are called simply natural children; secondly, those who are the offspring of persons related by consanguinity or affinity within certain degrees, and these are incestuous natural children; and, thirdly, those whose parents, or one of them, was married to another person than the father or mother of such children, and these are denominated adulterous natural children. These distinctions are unknown to the common law, though they have been adopted in some of the United States. (a) The last two classes cannot become legitimate by any act of their parents.

321. In Louisiana, a further division is made: illegitimate children are classified into those whose fathers are known, and these are strictly called natural children; and those whose fathers are unknown, who are called bastards.(b)

322. A natural or illegitimate child is called a bastard. A bastard is one who is born of an illicit union, and before the lawful marriage of his parents.

A man is a bastard if born

1st. Before the lawful marriage of his parents, but although he may have been begotten while his parents were unmarried, yet, if afterward, they married together, and he is born during the coverture, or after it shall have been determined, he is legitimate. (c)

2dly. If begotten and born during the coverture, under circumstances which render it impossible that the husband of the mother can be the father, he will

(a) Civil Code of Lo., art. 217.
(b) Civil Code, art. 220.

(c) 1 Bl. Com. 455, 456.

No. 323.

Book 1, part 2, tit. 7, chap. 3, sec. 2.

No. 324.

be a bastard. But, unless there is an impossibility that the husband can be the father, the rule that he is so is universal: pater is est quem nuptia demonstrant.(a)

3dly. A child may be a bastard if born beyond a competent time, (generally considered forty weeks,) after the dissolution of the marriage. But the time of gestation is not absolutely fixed by the law. (b)

SECTION 2.- OF THE LEGITIMATION OF NATURAL CHILDREN.

323. By the common law of England, adopted generally in the United States, children cannot be legitimated by the subsequent marriage of their parents, because the policy to permit legitimation of such children, it is urged, is against morals, and "a great discouragement to the matrimonial state."(c)

On the contrary, for the purpose of suppressing concubinage, the Roman emperors established the rule that the subsequent marriage of the parents should legitimate the children: (d) in so very different a point of view may the same institution be seen.

The canon law adopted the same rule, and the reason assigned is to favor repentance and a return to good morals, and because it is founded in equity.

324. In this country, several of the states have adopted the rule, and passed statutes making legitimate, children born before the marriage of their parents, but who, after such marriage, have been acknowledged by them.

The subsequent marriage of parents legitimates the child in Illinois, but he must be afterward acknowledged. The same rule seems to have been adopted in Indiana, Missouri and Louisiana. An acknowledg

(a) Dig. 2, 4, 5.

(b) Co. Litt. 123, a; Harg. and Butler's note to Inst. 123, a; 1 Beck's Med. Jur. 478; Cyclop. of Pr. Med. vol. 4, p. 87, art. Succession of Inheritance. In Louisiana the time is fixed; the Code has adopted the rule of the French Code Civil. Civ. Code of Louis. b. 1, t. 7, c. 2. Vide ante, B. 1, part 2, t. 7, c. 1.

(c) 1 Bl. Com. 455.

(d) Code, lib. 5, t. 27, 1. 5, 6 et 11.

No. 325.

Book 1, part 2, tit. 8.

No. 326.

ment of illegitimate children, of itself, legitimates in Ohio; and, in Michigan and Mississippi, marriage alone, between the reputed parents, has the same effect. In Maine, a bastard inherits to one who is legally adjudged, or in writing, owns himself to be A bastard may be legitimated in North Carolina on application by the putative father to court, either where he has married the mother or she is dead, or married to another, or lives out of the state.

the father.

In a number of states: namely, in Alabama, Connecticut, Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, North Carolina, Ohio, Rhode Island, Tennessee, Vermont and Virginia, a bastard takes by descent from his mother, with certain modifications, regulated by the laws of these states. (a)

325. Numerous private laws have been passed to legitimate children born out of lawful wedlock; these laws are enacted at the request of the individuals to be benefited, and provide for the rights of third persons whom they might otherwise affect.

TITLE VIII.-OF PATERNAL POWER.

326. The family is constituted by marriage, which has been examined in title sixth, and title seventh has been the subject of paternity and filiation, or an inquiry into the persons who compose the family. Under the eighth title will be considered paternal power, or the means of maintaining order in the family, by regulating by wise principles this most sacred magistracy, established by nature herself, anterior to all laws and agreements or compacts.

But this authority, which receives the sanction of law, ought to be exercised for the protection and direction of the children, and when, by its abuse, it becomes the means of oppression, so far from being supported by law, the parents will be deprived of it.

(a) 2 Hill, Ab. ss. 24 to 35; Civil Code of Louis., art. 241.

No. 327.

Book 1, part 2, tit. 8, chap. 1, 2.

No. 329.

Naturally this authority belongs to the wife as well as to the husband, but by the policy of law, she does not possess this power, being herself under the power of her husband.

In general the husband is alone vested with parental power over the children, and on his death this authority, subject to certain modifications, is vested in the mother.

327. It will be perceived that every thing relative to paternal power has not been collected under this title, other matter will be found better placed under other heads.

This title will be divided into four chapters; in the first will be examined the general duties of children toward their parents; in the second, the right of the parents to control their children; in the third, the right of the father to his son's labor; and, in the fourth, will be considered the power of the father and mother over natural children.

CHAPTER I.-OF THE GENERAL DUTIES OF CHILDREN TOWARD THEIR PARENTS.

328. The lawful obligations enjoined upon children, which they are bound to fulfil toward their parents, are obedience and assistance during their minority; and generally they are bound, by statutory provisions, to maintain their parents who are in want, when they have sufficient ability to do so.(a) Their duties are to honor and respect them during their whole lives.

After they arrive at their majority, their obligations cease, if we except that of alimony ;(b) but their duties never end.

CHAPTER II.—OF THE RIGHT OF PARENTS TO CONTROL THEIR CHILDREN.

329. To enable the parents to perform their duties toward their children, and for their benefit, the law has invested them with considerable authority.

(a) Poth. Du Mariage, partie 5, c. 1, art. 2, § 2. See 2 Kent's Com. 207. (6) State v. Shreeve, Coxe, 230.

No. 330.

Book 1, part 2, tit. 8, chap. 3.

No. 332.

The father has the power to take his children, while in their minority, wherever he will; he may send them to school, place them in college, put them out to a trade, and provide for them as he may think proper. (a)

330. But in case of a separation between the husband and wife, and a dispute arises as to the custody of the children, when all things are equal, the courts will give the custody to the father in preference to the mother; but whenever the good of the children requires it, they will be delivered to the mother, or even to a stranger.(b)

331. Parents may correct their children for lawful cause, with moderation, and for their good. A malicious whipping could not be justified, and might possibly render the parent amenable to the criminal law.(c) The right of correction which they possess may be transferred by them to teachers, and to masters with whom the children may be placed, who are to exercise it with moderation, for the benefit of the child; and for any wanton abuse of it, they are liable to punishment.

CHAPTER III.-OF THE RIGHTS OF THE FATHER TO THE LABOR OF THE CHILD.

332. As the father is bound to support his child during his minority, the law gives him, in return, the right to his labor or the fruit of it, while he lives with him and is maintained by him.(d) But this right ceases in the following cases:

1. If he puts him out as an apprentice to learn a

(a) Matter of Wollstencraft, 4 John. Ch. R. 80; Comm. v. Addicks, 5 Binn. 520; Ex parte Crouse, 4 Whart. 9.

(b) 4 John. Ch. R. 80; Comm. v. Nutt, 1 Browne, 143; Comm. v. Addicks, 2 S. & R. 174; Matter of Kottman, 2 Hill, S. C. R. 263; U. S. v. Green, 3 Mass. 482.

(c) Com. Dig. Pleader, 3 M 19; Hawk. c. 60, s. 23, and c. 62, s. 2;— c. 29, s. 5.

(d) The Etna, Ware, 462; Steele v. Thatcher, Ware, 91; Stone v. Pulsipher, 16 Verm. 428; Lord v. Poor, 10 Shep. 569; Shute v. Dorr, 5 Wend. 204; Benson v. Remington, 2 Mass. 113.