Scottish Court of Session Decisions

Subject_1 ALIMENT.
Subject_2 ALIMENT due ex debito naturali.

Children of the Earl of Buchan,
v.
Lady Buchan

Date: 23 February 1666
Case No. No 45.

A mother is obliged to aliment her children jure naturæ; but it is sufficient that she aliment them in her family.

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The six children of the Earl of Buchan pursue their mother for aliment. It was alleged absolvitor, Because their was neither law, statute; nor custom of this kingdom, obliging a mother to aliment her children. 2do, Albeit there were, she offers her to admit them in her family, and to entertain them according to her means; but can never be obliged to pay a modification, in money, out of the family; for, in all cases of aliment of wives, or children against parents, the offer to accept, and aliment them in the family, according to the parents means, doth always exclude modification; as was lately found in the case of Sir Andrew Dick and his Son.—It was answered, That the law of nature is a part of the law of this, and all other civil kingdoms ; and, according thereto, the Lords do always decide, in cases now occurring, where there was neither statute nor custom, and if aliment be due, the manner and measure is in arbitrio judicis, who may justly ordain their children to be bred from their mothers, seeing she hath miscarried, and married a deposed minister.—It was answered, That the law of nature, without our custom, is no sufficient law to us, and does not induce obligationem civilem, but only pietatem et affectum: Upon which ground it is, that there was necessity of this statute, to appoint an aliment for heirs against the wardatars and liferenters; which insinuates that there was no such law before; and, if the law of nature be the adequate rule, we are obliged to entertain the poor, and all in distress; and therefore they might pursue us thereupon, 2do, There is no reason to put it in arbitrio judicis, whether a child should be educated with the parent, who must aliment him, even upon pretence of the parents miscarriage; for that being the indispensable right of parents to educate their children, as they fee cause, especially who demand aliment of them; it ought not to be in the arbitrament of any judge, unless it were a Parliament; and this arbitrament would lay the foundations to encourage children to desert their parents, and to claim aliment out of their family, and to pretend the parents miscarriages, as unfit persons to be bred with, and not breeding them in a fit way; which accusations were prohibited by the civil law, and never admitted by our custom; for albeit the Lords may appoint the way of education of pupils, their parent being dead; yet tutors have no such interest as parents.

The Lords found the mother obliged to aliment the children jure naturæ; which was sufficient to infer this civil obligation and action; but found, that the offer of alimenting them in her family, was sufficient according to her means; and they could demand no aliment, nor modification, extra familiam: For they found, that the Lords had thus sustained aliment to children against their fathers, not upon the act of Parliament, which is competent against all liferenters and donatars, without consideration of their being parents, but super jure naturæ, which they found would not extend to the obligation of charity, and which had no definite rule, but at the discretion of the giver, and was not allowed as a civil obligation by any nation.

Fol. Dic. v. 1. p. 32. Stair, v. 2. p. 365.