Page:The New International Encyclopædia 1st ed. v. 15.djvu/400

PARENT AND CHILD. head of the house were exercised by his kinsmen, and to some extent by those of his wife, and, when the family was recognized as a religious institution, by the priests. These restraints, which at an early period began to lift the wife out of the position of a mere chattel, aft'ected but slightly the position of the child. (For that of the Roman child, see Patri.v Potestas.) In the old German law (heathen ])eriod) the infant was not to be exposed after it had teen sprinkled with water and had received its name ; nor was a child to be put to death subsequently without cause; nor was a child to be sold except when the parents were in dire need. With the accept- ance of Christianity by the Germans, the right of exposure disappeared, but the paternal power of punishment for crime and of sale in case of necessity were not at first atl'ected. As regarded personal property, all that the unmarried daugh- ter or the son living in the paternal house ac- quired was acquired for the father. As regards property, however, the children's eventual rights were protected; inherited realty of the parents was 'tied up' {verfanfjen) in the interest of the children, and a sale by the father conveyed no perfect title to the purchaser.

Medi.eval Law. In the course of the ^Middle Ages the authority of the father assumed more and more the aspect of a natural guardiansliip. The mother, also, with the disappearance of the rule that women were themselves always under guardianship, acquired a subordinate authority. After tiie death of the father, or when he was incapable of exercising control over the children, the mother became the natural guardian (at least of the persons) of her children.

The canon law introduced in the raedia-val law of parent and child but one important modifica- tion, viz. legitimation of children born out of wedlock by subsequent marriage between the parents. This rule was borrowed from the Roman law, but was extended by the Church; at Roman law it applied only to children of a concubine, at canon law it applied to all illegitimate chil- dren. When it came, however, to recognizing such children as heritors, the Church encountered obstinate resistance. In many parts of Europe Cierman law held its owm, especially as regards the inheritance of entailed estates. The reception of the law-books of .Justinian (see Civil Law) had little intlucnce upon the European law of parent and child, for the patria potestas of the Roman law was not generally received.

Modern European Law. In modern European law maternity is purely a question of fact ; pa- ternity is based on the presumption that the child born or conceived in wedlock is the hus- band's child, but proof of the contrary is per- mitted. The child born out of wedlock, if 'recog- nized' by the father, or if the fact of paternity be established by judicial inquiry, is entitled to support up to a certain age, and has rights of succession (q.v.) in the paternal estate, but not the same rights which belong to legitimate chil- dren. In the French law, however, inquiry into the paternity of the illegitimate child is pro- hibited, and "such a child has no rights against the father unless it has been recognized. The legal relation of the parent and child is regularly established bv birth in wedlock, by legitiniatmn, and by adoption. A child born out of wedlock is legitimized by the subsequent marriage of the parents accompanied by recognition of the child; and in .some countries (e.g. in Spain and in Ger- many) the child may be legitimized by admin- istrative decree issued at the father's request. Adoption (q.v.) is usually permitted only when the adopting parent is childless. Legitimation and adoption generally give parent and child the same rights which pertain to the parent and to the child born in wedlock, but this is not always the case.

The autliority of the parent over the person of the child is that of a guardian; i.e. the ele- ment of duty is more emphasized than that of power. In the exercise of parental aulliorily the voice of the father is decisive, so that the pa- rental rights of the mother become legally ef- fective only when the father is dead, or when he is unable to exercise his rights or has been de- prived of them by a decree of court. The admin- istration of the property of children belongs to the parents (to the father as of right; to the mother, usually, only with the authorization of the family council or the court), and in most of the codes the parents are not obliged to account for the income, their rights being those of usu- fructuaries ; but where property is given or be- queathed to a child, the donor or testator may exclude this parental usufruct and even the parental administration. The parental usufruct is also excluded as regards money and property acquired by the child's separate labor and in- dustry. In case of divorce or annulment of marriage, the control of the persons and the property of the children is regulated by order of the court. The authority of the widow or divorced wife over her children and her usu- fructuary rights are, in all civil legislations, im- paired by her remarriage; and the (ierman law makes provision for safeguarding the interests of children of the first marriage when the father marries again. Parental authority is extin- guished when the child' reaches full age or is emancipated. In many legislations, however, parental consent is necessary for the marriage of a child even after the child has reached full age. See JIabriage.

In all European legislations parents, like other guardians, are subject to the control of the State,. exercised through the courts; and they are usually incompetent to alienate real estate belonging to the children without the authoriza- tion of the proper court.

The chief duties of parents are the suitable supiiort and education of their children. In many of the civil codes they are also bound to provide daughters with dowries (so at Spanish and German law) ; but this is not the case at French law, the Code Xapol^on following the old maxim, "nc dote qui ne veut.' Parents are re- sponsible for debts contracted by their children without their authorization only as a result of the dutv of support and education (i.e. they are li.ible oiilv for necessaries). In most legislations they are liable for all torts committed by chil- dren; at German law, however, the parent is responsible onlv when the tort could and should have been prevented by him, i.e. when he has failed to exercise proper surveillance and con- trol.

Legitimate Children. The parents are the le"al as well as the natural guardians and pro- tectors of the child. They have the legal right