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“ the proceeds of all lands belonging to this state, except such parts thereof as may be reserved or appropriated to public use, which shall thereafter be sold or disposed of, together with the fund denominated the common-school fund, shall be and remain a perpetual fund, the interest of which shall be inviolably appropriated and applied to the support of common schools throughout this state."

Such provisions for the universal diffusion of common and useful instruction may be contemplated with pride and cheering anticipations. But the splendid provisions which have been made in some of the states, and especially in Connecticut and New York, for the support of common schools, ought not to relax the efforts

in New York. In the governor's message to the legislature of New York, in January, 1842, it was stated that the productive capital of the common-school fund was $2,036,625; and that there were 10,886 school districts and libraries, with an aggregate amount of 630,000 volumes; and that the whole capital permanently invested for the support of education, including the literary and common-school fund, the endowments of colleges, and the value of school edifices, was ten and a half millions of dollars. But facts are not quite in accordance with the splendid vision, on paper, of the New York common-school system. In the report of Mr. Young, the secretary of state, in January, 1843, (and he is, ex officio, superintendent of common schools,) he is of opinion that the school districts have been needlessly multiplied and divided that more than one-half of the children residing in the school districts were irregular and uncertain attendants — that it was bad policy to distribute the proceeds of the school fund in proportion to the number of children residing within each district limits, instead of making the distribution according to the time the children are in actual attendance that of the 7,534 school-houses under the system, only 4,000 were in good repair, and the rest unfit for use. The legislature of New York, by the Act of May, 1844, ch. 311, established a normal school in the county of Albany, “ for the instruction and practice of teachers of common schools in the science of education, and in the art of teaching," and $10,000 were to be annually appropriated for that purpose. And in the New York Revised Statutes, vol. i. 3d edition, under the head of “public instruction,” there is a well-digested code in detail of the establishment, organization, government, powers, and funds of the colleges, academies, select schools, normal schools, common schools, school districts, and libraries, which have from time to time been wisely and liberally provided and endowed ; and for this system at large, I must refer to the statutes, without going into further particulars

But the Revised Constitution of New York, in 1846, art. 9, has made some material alteration in the distribution of public moneys for education. It declares that the capi. tal of the common-school fund, the capital of the literature fund, and the capital of the United States deposit fund, shall be preserved inviolate, and that the revenues of the common-school fund shall be applied to the support of common schools; the revenues of the literature fund shall be applied to the support of academies, and the sum of $25,000 of the revenues of the United States deposit fund shall each year be appropriated to and make part of the capital of the common-school fund. These constitutional provisions seem to have drawn unwisely all legislative support from colleges, normal schools, and district libraries.

of parents and guardians, and of the community at large, to encourage and sustain a more thorough and elevated system of education. They ought not to remain contented with the means the state fund affords, of instruction without taxation and without expense. The true province of a school fund is not to supersede, but to encourage and stimulate, the proper efforts of parents and town authorities, in sustaining and perfecting the system of common-school education. Individuals ought to coöperate with the public authorities, and a wise and patriotic legislature cannot cease to patronize and endow academies and colleges, and render the elements of science and the higher branches of education accessible in every state. Without a large portion amongst us, of men of superior * education, who can teach the teach- * 202 ers of common schools, we cannot expect that the great duties appertaining to public trusts will continue to be discharged with the requisite skill, ability, and integrity. It is not common schools alone; (for they must, of necessity, be confined to very humble teaching ;) it is the higher schools, academies, and colleges, that must educate those accomplished men, who are fit to lead the public councils, and be intrusted with the guardianship of our laws and liberties, and who can elevate the character of the nation. (a)

The remaining branch of parental duty consists in making competent provision, according to the condition and circumstances of the father, for the future welfare and settlement of the child; but this duty is not susceptible of municipal regulations, and it is usually left to the dictates of reason and natural affection. Our laws have not interfered on this point, and have left every man to dispose of his property as he pleases, and to point out in his discretion

(a) President Humphrey justly remarks, that it was a great oversight, when the Connecticut school fund of two millions of dollars was established, that the academies were not brought in for a share of the income; and that it is a wise provision in the school laws of New York, which empowers the regents of the university to help the academies of that state. Mr. Young, of Nova Scotia, on Colonial Literature, Science, and Education, vol. i. p. 246, says, the perfect and modern system of education ought to consist of - 1. Infant schools for the training of children ; 2. Normal schools for the education of teachers ; 3. Common schools; 4. Academies ; 5. Useful knowledge institutions ; 6. Itinerating libraries; 7. Colleges for the higher branches of learning and science. Again, he says, education ought to be conducted upler the superintendence of the government, and regulated by law, and supported by legislative funds or local taxation, and the funds made permanent, certain, and compulsive.

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the path his children ought to pursue. The writers on general law allow that parents may dispose of their property as they please,

after providing for the necessary maintenance of their infant * 203 * children and those adults who are not of ability to provide

for themselves. (a) A father may, at his death, devise all his estate to strangers, and leave his children upon the parish ; and the public can have no remedy by way of indemnity against the executor. “I am surprised,” said Lord Alvanley, (6) " that this should be the law of any country, but I am afraid it is the law of England.”

II. Of the rights of parents.

The rights of parents result from their duties. As they are bound to maintain and educate their children, the law has given them a right to such authority; and in the support of that authority, a right to the exercise of such discipline as may be requisite for the discharge of their sacred trust. (c) This is the true . foundation of parental power; and yet the ancients generally carried the power of the parent to a most atrocious extent over the person and liberty of the child. The Persians, Egyptians, Greeks, Gauls, and Romans, tolerated infanticide, and allowed to fathers a very absolute dominion over their offspring; but the Romans, ac

(a) Puff. Droit de la Nature, lib. 4, ch. 11, sec. 7.

(b) 5 Vesey, 444. See infra, p. 327, and vol. iv. pp. 502, 503, as to the provision made by the laws of ancient Athens and Rome for children, out of the estates of their parents.

(c) In the case of the Commonwealth v. Armstrong, in the session of the peace for Lycoming county, Pennsylvania, in 1842, Mr. Justice Lewis, the president judge, decided, after a learned examination of the subject, that a minister of the gospel had no right, contrary to the express commands of the father, to receive an infant danghter, under the immediate guardianship of the father, from the church to which the father belonged, and in which the child was baptized and instructed, and initiate it, by baptism, into another church of a different denomination. It was held to be the right and the duty of the father, not only to maintain his infant children, but to instruct their minds in moral and religious principles, and to regulate their consciences by a course of education and discipline. All interference with the parental power and duty, except by the courts of justice, when that power is abused, is injurious to domestic subordination, and to the public peace, morals, and security. Parents, says a distinguished jurist on natural law, have the right by the law of nature, to direct the actions of their children, as being a power necessary to their proper education. It is the will of God, therefore, that parents should have and exercise that power. Nay, he observes, parents have the right to direct their children to embrace the religion which they themselves approve. (Heineccius's Elem. Jur. Nat. ct Gentium, b. 2, ch. 3, sec. 52, 55.)


cording to Justinian, exceeded all other people, and the liberty and lives of the children were placed within the power of the father. (d) It was not, however, an absolute * license * 204 of power among the Romans, to be executed in a wanton and arbitrary manner. It was a regular domestic jurisdiction, though in many instances this parental power was exercised without the forms of justice. The power of the father over the life of his child was weakened greatly in public opinion by the time of Augustus, under the silent operation of refined manners and cultivated morals

It was looked upon as obsolete when the Pandects were compiled. (a) Bynkershoek was of opinion that the power ceased under the Emperor Hadrian, for he banished a father for killing his son. The Emperor Constantine made the

. crime capital as to adult children. In the age of Tacitus the exposing of infants was unlawful; but merely holding it to be unlawful was not sufficient. (6) When the crime of exposing and killing infants was made capital, under Valentinian and Valens, then the practice was finally exterminated, (c) and the paternal power reduced to the standard of reason and of our own municipal law, which admits only the jus domesticæ emendationis, or right of inflicting moderate correction, under the exercise

(d) Inst. 1, 9. De Patria Potestate. Law of the Twelve Tables. See vol. i. p. 524, note. Taylor's Elements of the Civil Law, pp. 395, 397, 402. Voyage du Anarcharsis en Gréce, tom. iii. ch. 26. Cæsar de Bel. Gal. lib. 6, ch. 19. St. John's History of the Manners and Customs of Ancient Greece, vol. i. pp. 120–125. Infanticide was the hor. rible and stubborn vice of almost all antiquity. Gibbon's History, vol. viii. pp. 55–57. Noodt de Partus Expositione et Nece apud veteres ; which is considered to be a singular work of great accuracy on this subject. Sallust mentions the extreme exercise of the parental power at Rome, as a thing of course, and without any observation. In his erat Fulvius Senatoris filius, retractum ex itinere parens necari Jussit. Sal. Bel. Cat. ch. 39.

(a) Liceat eos exheredare, quos occidere licebat. Dig. 28, 2, 11.

(6) Numerum liberorum finire, aut quemquam ex agnatis necare, flagitium habetur, plusque ibi boni mores valent, quam alibi bonæ leges. Tac. de Mor. Ger. ch. 19.

(c) Dr. Taylor, in his Elements of the Civil Law, pp. 403–406, gives a concise history of the progress of the Roman jurisprudence, in its efforts to destroy this monstrous power of the parent; but Bynkershoek has composed a regular treatise, with infinite learning, on this subject. It is entitled, Opusculum de jure occidendi, vendendi, et exponendi liberos apud veteres Romanos. Opera, tom. i. p. 346; and it led him into some controversy with his predecessor, the learned Noodt, on the doubtful points and recondito learning attached to that discussion. Heineccius, in his Syntagma Antiq. Rom. Jur. lib. 1, tit. 9, Opera, tom. iv., has also given the history of the Roman jurisprudence, from Romulus to Justinian, relative to this tremendous power of the father, and which, he says, was justly termed, by the Roman authors, patria majestas.



* 205 of a sound diseretion. (d) In * everything that related

to the domestic connections, the English common law has an undoubted superiority over the Roman. Under the latter, the paternal power continued during the son's life, and did not cease even on his arriving at the greatest honors. The son could not sue without his father's consent, or marry without his consent; and whatever he acquired, he acquired for the father's advantage ; and in respect to the father, the son was considered rather in the light of property than a rational being. Such a code of law was barbarous and unfit for a free and civilized people; and Justinian himself pronounced it inhuman, and mitigated its rigor so far as to secure to the son the property he acquired by any other means than by his father; and yet even as to all acquisitions of the son, the father was still entitled to the use. (a)

The father (and on his death, the mother) is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. (6) But the

(d) i Hawk. P. C. b. 1, ch. 60, sec. 23.

(a) Inst. 2, 9, 1. If an infant son marries against the will of his father, this does not emancipate him, and the father may sue for and recover his wages, or value of his services. White v. Henry, Law Reporter for July, 1846, No. 9, p. 116.

(6) The father is entitled to the custody of his legitimate children, to the exclusion of their mother, though they be within the age of nurture. Rex v. Greenhill, 6 Nev. & M. 244. 4 Adol. & Ell. 624, S. C. If the child be brought up on habeas corpus and be of an age to exercise a choice, the court will leave him to elect where he will go. If not, he goes to the father, unless he had abused the right to the custody of his child, or there be an apprehension of cruelty, or some exhibition of gross profligacy, or want of ability to provide for his children. The People ex relat. Nickerson, 19 Wendell, 16. But if the parents live in a state of separation, without being divorced, and without the fault of the wife, the courts may, on the application of the mother, award the custody of the child to the mother, according to the provision of the New York R. S. vol. ii. p. 148, secs. 1, 2. So in England, by the statute of 2 & 3 Vict. c. 54, if the child be within seven years, the lord chancellor or master of the rolls may, upon the mother's petition, make an order on the father or testamentary guardian to deliver it into her custody. In the case of Foster v. Alston, 6 Howard (Miss.) 406, the jurisdiction of the courts over the disposition of minors brought before them upon habeas corpus, was very elaborately discussed, and it was held, that the court was not bound to restore to a testamentary guardian a child forcibly taken from him and placed with the mother, though the guardian had not abused his trust, and was not incompetent to discharge it. The court, consulting the interests and inclinations of the child, allowed it to remain with the mother. See supra, pp. 194, 195,2


· People v. Wilcox, 22 Barb. (N. Y.) 178. Wilcox v. do. 4 Kernan, 576.

• It was the object of the statute 2 & 3 Vict. c. 54, amending the law relating to the custody of infants, to enable married women, who were ill-treated by their husbands, to assert,

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