the case of other so-called natural rights, this can be no more than a moral obligation, and therefore the rights in a legal sense do not exist. We may test this by supposing any one of the supposed rights violated: that, for instance, of protection. A third person beats the child without justification, the father looking on and not giving the protection which the impulses of affection and the sense of justice should prompt him to afford. In such a case the assaulter is responsible to the State for his criminal attack upon a citizen; he is responsible to the child in a civil action, and he may possibly even be liable to the father if the attack has diminished the child's ability to perform labor. But the father incurs no liability to the child for failure to extend protection.'

In thus neglecting the parental obligation he may have demonstrated how lamentably he is wanting in natural feeling, but he has violated no positive command of the law. The same remark holds good when the education of the child is in question. A parent having the necessary ability ought to give his child such an education as will fit him to enter the world of business, literature, science, art, or politics, with such full preparation as will enable him to contend for wealth, position, and honors with those whom he may there encounter. But the duty to do this was never imposed by the law; it was left wholly to the dictates of natural affection, family pride, and the other motives which usually are expected to influence the parent in that direction. If these failed of effect, the child at the common law had no remedy whatever. Some steps have recently been taken by statute for the compulsory education of children; but the duty which statutes impose in that direction is imposed as a duty to the State, and its performance is compelled by imposing penalties, not by allowing the child to bring action against the delinquent parent.

*The old common law did not empower the parent to [*41] dispose of his real estate by testamentary gift and it probably did not permit him to dispose of all his chattels. But since the reign of Henry VIII. a general power to dispose of both. species of property has existed, saving, however, the rights of

'A mother, as natural guardian, cannot by an admission deprive her child of a right of action which is a

right of property. Power v. Harlow, 57 Mich. 107.

creditors, and of the widow if there was one. While, therefore, it is usually expected that the child will be permitted to share in the parent's estate, the law does not insure this as a right. If the parent sees fit to disinherit him, he has no redress. But if the parent makes no will, the law of distributions and descents apportions the property among the kindred, usually remembering the children first of all.

There have, in some instances, been statutes which took from the parent some portion of this authority; limiting his power to dispose of property by testamentary gift to a certain proportion thereof, leaving the remainder to pass to those who are designated by the law as heirs and distributees. Even such statutes give no rights to the child as such. They limit the power of the owner over his real estate; but what they give on the owner's death is given, not in recognition of a right, and not necessarily to a child, but to such persons as in that contingency, in view of their relationship to the deceased, the State has thought proper to make his successor in the ownership.

Right to Form the Family. Back of these family rights is the right to form the relation from which at the common law, all family rights spring: the relation of marriage. In various directions this right is hedged about with conditions, established for the general good. First. The person must have attained the prescribed age or the act will be inchoate only and require confirmation when that age is reached. Second. The consent of parents or guardian may perhaps be required by law. Third. There must be the consent of the person to be married, freely given; for the law only sanctions voluntary arrangements. Some act of publicity may be required to precede it, such as the publishing of banns, or the issue and record of a license. Fourth. The law may permit it only under certain prescribed forms, the absence of which will render any voluntary action ineffectual. And, even observing these forms, it is only persons of consenting mind who may marry; by which is meant only those persons who have that degree of legal capacity which the law recog [*42] nizes as sufficient for entering into *contracts of this important nature. When, therefore, it is said that the right to enter into the relation of marriage is universal, this does not exactly express the legal idea. The legal idea is, that every one

has a legal right to marry who obtains the consent of a person of the opposite sex having a like right, provided both have the capacity and qualifications prescribed by law, and observe all the legal conditions.

Domestic Relations in General. Besides the family relations which spring from marriage there are certain domestic relations of another origin. The relation of master and servant, for instance, is one of contract. The relation of master and apprentice is similar, though here the contracting party on one side may really be the State in some cases. The relation of guardian and ward is of various origin but usually is a matter of judicial creation. But none of these are strictly family relations, or give family rights. Family relations, strictly and fully recognized by the law as such, embrace that formed in marriage and those which spring therefrom. The common law did not even take notice of adoption as giving one any permanent family rights.. The adopted child was only permitted to occupy the place of a child for the time being; that is to say, he stood in the position. of child by sufferance only, and had no share in the distribution of the parent's property at his death. The child born out of

The statutes of some States give a child formally adopted the rights, more or less complete, of a child by birth under the laws of descent. This is, of course, a change of the common law. See Commonwealth v. Nancrede, 32 Penn. St. 389; Sewall o. Roberts, 115 Mass. 262; Safford v. Houghton, 48 Vt. 236; Barnes v. Allen, 25 Ind. 222; Russell v. Russell, 3 South. Rep. 900 (Ala.). If statutes give an adopted child the right to inherit from the foster parent but do not give expressly a reciprocal right to the latter, the estate of an adopted child descends to his blood kindred. Hole. Robbins, 53 Wis. 514; Barnhizel. Ferrell, 47 Ind. 335. In Illinois such child can inherit only from the person adopting, not from a child of such person. Keegan v. Geraghty, 101 Ill. 26. If one adopts children of his deceased daughter they

1

take as his own children and also the share of their mother. Wagner v. Varner, 50 Ia. 532. If a man without his wife's concurrence adopts a child, it would not become the heir of his widow. Sharkey v. McDermott, 16 Mo. App. 80. As to inheriting when adoption has taken place in another State, see Ross v. Ross, 129 Mass. 243; Keegan v. Geraghty, 101 Ill. 26. In the absence of statute and without contract to that effect a stepfather is not bound to support stepchildren. Smith v. Rogers, 24 Kan. 140; McMahill v. McMahill, 113 Ill. 461; In re Besondy, 32 Minn. 385; Norton. Ailor, 11 Lea, 563. But step children and adopted children who are received into a family stand for the time being in the position of children. They cannot claim compensation for services performed in the family, neither, on the other hand,

matrimony had, at the common law, no claim whatever upon the parent.'

[*43]

*Family, as Such, No Rights. It was remarked in the preceding chapter that the law only recognized individual rights; it did not recognize associations except as so many individuals, each having a distinct legal identity and distinct legal rights. An apparent exception was made in the case of a corporation, but only by aggregating the persons composing the corporation and treating them all as one artificial person. The remark holds good in the case of the family; the family as such has no distinct rights in the law. The father has a certain position in the family, and this he may defend against outside assailants; the wife has also a certain position in the family, and the children have their respective positions; but the act which destroys the family or takes away any of its component parts is not in law a family wrong, but only a wrong to individual members of the family. Thus this fundamental relation, which is older than civilization, and must always precede and always accompany it, and without which there can be neither social state in which morality or decency will be recognized, nor civil state with regulated liberty and order, is only indirectly recognized in the recognition of

can they be required to pay for a support received, in the absence of express contract. Williams v. Hutchinson, 3 N. Y. 312; Sharp v. Cropsey, 11 Barb. 224; Defrance v. Austin, 9 Penn. St. 309; Lanz v. Frey, 19 Penn. St. 366; Worcester v. Marchant, 14 Pick. 510; Brush v. Blanchard, 18 Ill. 46; Freto v. Brown, 4 Mass. 675; Bond v. Lockwood, 33 Ill. 212; Andrus v. Foster, 17 Vt. 550; Lunay v. Vantyne, 40 Vt. 501; Hussey v. Roundtree, Busbee, 510; Gillett v. Camp, 27 Mo. 541; Murdock v. Murdock, 7 Cal. 511; Mowbry v. Mowbry, 64 Ill. 383; Mulhert v McDavitt, 16 Gray, 404; Meyer v. Temme, 72 Ill. 574; McMahill . McMahill, 113 Ill. 461; Sword v. Keith, 31 Mich. 247; Ruckman's Appeal, 61 Penn. St. 251; Brown . Welsh, 27 N. J. Eq. 429; Disenger's case,39 N. J. Eq. 227;Gerdes v

Weiser, 54 Ia. 591; Ela v. Brand, 63 N. H. 14; Norton v. Ailor, 11 Lea, 563, In re Besondy, 32 Minn. 385; Smith v. Rogers, 24 Kan. 140. In England the statute 4 and 5 W. IV. c. 76, § 75, requires the husband to support the children of his wife, legitimate or illegitimate, until they reach the age of sixteen or their mother dies.

'It is provided by statute in several States that the intermarriage of the parents of an illegitimate child, and their recognition of him as their offspring, shall legitimate him. As to such legislation see Morgan v. Perry, 51 N. H. 559. The issue of adulterous intercourse becomes lawful by the marriage of the parents after the death of the first wife of the father. Hawbecker v. Hawbecker, 43 Md. 516.

rights of its constituent members. Whether it would be wiser for the law to give positive recognition to the family as a legal entity, and confer rights to definite legal positions therein, is something which experience could alone determine. Religion, we have seen, is only indirectly recognized in the law, in the regulations that are made for the protection of worshipers, and yet religion, doubtless, is most prosperous when the State interferes with it least. And it is probably true that in the vast majority of cases the natural impulses and affections have more influence in insuring the observance of moral obligations in the family relations than the law could exercise or possess.

Taking away Rights. All the rights which have been enumerated are subject to be taken away by an act of sovereignty accomplished under legal forms. This is sometimes done by way of forfeiture or punishment, as life or liberty is taken away for felony. In other cases it is done in the regular administration of justice to others, as family rights are taken in granting a divorce, or property is taken *in compelling the satisfaction of a debt. In [*44] still other cases a man deprives himself of the legal protection

of rights by his own illegal conduct. Thus, to a certain extent, a man puts aside the protection of the law when he makes an assault upon another, for the other may law fully inflict injury upon. him in necessary self-defense.' So, if he engages in an illegal

Dr. WOOLSEY, speaking of selfdefense,considers the party defending himself, as for the time, in so doing, an instrument of the law in adminis tering its justice. He says: "There are seeming cases of collision which must be explained by the essential limitation of certain rights. One of these is the right of taking life in lawful self-defense, as when a man is attacked by a robber. The harmless passenger and the highwayman have both by nature a right to life, but the right is not unlimited; otherwise the State could not take the life of the criminal, and the man who respects his obligations would be required to renounce for ever the right of selfdefense against enemies seeking his

life. The true statement is that the right of self-defense belongs only to the innocent man, and not, in this particular case, to the robber. He has the general right of life, but now he is in effect punished for a crime, and there can be no punishment without deprivation of rights.” And again: "It might seem that a man who, in self-defense, takes away the life of a robber, does an injury to another. The true statement, however, seems to have been given already; he does no injury to the robber, although he does harm to him, for he acts as a minister of justice." Political Science, § 18. This is not at all the legal view. The right of self-defense is given solely for self-protection, and it is