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courts of justice may, in their sound discretion, and when the morals, or safety, or interests of the children strongly require it, withdraw the infants from the custody of the father or mother, and place the care and custody of them elsewhere. (c) The parent, or one in loco parentis, may, under certain circumstances, maintain an action for the seduction of his daughter, though, if she be actually in the service or apprenticeship of another, he cannot maintain the action, unless the wrong be done under color of a contract. (d) So the power allowed by law to the parent
(c) Matter of Wollstonecraft, 4 Johns. Ch. 80. Commonwealth v. Addicks, 5 Binney, 520. Ex parte Crouse 4 Wharton, 9. United States v. Green, 3 Mason, 482. Case of Wellesley v. Duke of Beaufort, 2 Russell, 1. The State v. Smith, 6 Greenl. 462. See, also, infra, p. 221, note a. Macpherson on Infants, 142–152. In the case of The People v.. Mercein, 3 Hill, 399, it was held, after an elaborate discussion, as a general rule of law, that as between husband and wife, the claim of the former to the custody of their infant children is paramount, and will be enforced on habeas corpus, though the child be a daughter under five years of age. It was further declared, that the husband could not, by agreement with the wife, alienate to her his right to the custody of their children, and the agreement was void.
(d) 3 Blacks. Comm. 141. Dean v. Peel, 5 East, 45. Harris v. Butler, 2 Mees. & W. 539. Speight v. Oliviera, 2 Starkie, N. P. 493. Blaymire v. Haley, 6 Mees. & W. 55.* But the American cases hold a contrary doctrine. A parent may maintain the action for the seduction of his infant daughter, though she be living apart from him, and in the service of another, for he has a right to her services, and to claim them, and is legally bound to maintain her, and to bear her expenses as a consequence of the seduction. The case would be different if the parent had divested himself of all right to reclaim her services, and all his rights and liabilities had become extinguished. Martin v. Payne, 9 Johns. 387. Hornketh v. Barr, 8 Serg. & R. 36. Sargent v. 5 Cowen, 106. Clark v. Fitch, 2 Wendell, 459. Hewitt v. Prime, 21 Wend. 79.
their rights, without being restrained by the fear of separation from their children. It therefore invests the Court of Chancery with power to interfere with the father's common-law right, by admitting considerations of the husband's marital duty to the wife, and of the interests of the children. Warde v. Warde, 2 Phil. Ch. 786. Ex parte Woodward, 17 E. L. & Eq. 77.
3 It seems that a parent has no right, resulting from that relation alone, to commence an action for compromise, or release an assault committed upon his child. Loomis v. Cline, 4 Barb. (N. Y.) 453. See Eades v. Booth, 8 Ad. & El. N. S. 718; nor maintain an action for any injury to the child, unless actual loss has accrued to the parent. Stephenson v. Hall, 14 Barb. (N. Y.) 222.
On the other hand, the parent is not liable for the wilful acts of his children. See ante, p. 193, note (2.)
If no advantage be taken of the infant, and he pay the money of his parent in satisfaction of his own trespass to one ignorant that the money did not belong to the infant, the parent cannot recover it. Burnham v. Holt, 14 N. Hamp. 367.
4 Dain v. Wycoff, 18 N. Y. 45. Eager v. Grimwood, 1 Wels., Hurls. & G. (Exch.) 61. Davies v. Williams, 10 Ad. & El. N. S. 725. Thompson v. Ross, 5 Hurls. & Nor. 16. The English cases preserve the rigor of the rule as stated in the text, and they are followed in
over the person of the child, may be delegated to a tutor or instructor, the better to accomplish the purpose of education. (c) The father, and in certain cases, the mother, had, at common law, as guardian in socage, a right to the custody of the estate of the heir during his minority, and to take the rents and profits thereof,
as will be more fully shown in the next lecture; and gener* 206 ally in this country, the father may, by deed or will, * dis
pose, after his death, of the custody and tuition of his
(e) A school-master, who stands in that character, loco parentis, may in proper cases inflict moderate and reasonable chastisement. The State v. Pendergrass, 2 Dev. & Bat. 365.6 The father, even with the consent of the managers of a house of refuge, cannot commit a child to their custody, unless that child be adjudged a proper subject for such a place by due course of law. Commonwealth v. M'Keagy, 1 Ashmead, 248.
some of the states. McDaniel v. Edward, 7 Ired. (N. C.) 408. But in Griffiths v. Teetgen, 28 E. L. & Eq. 371, where the plaintiff's daughter went to reside for a month with the defendant at his request and upon his promise to pay her something for doing so, the father maintained his action for her seduction during that time, on the ground that the daughter's absence was not inconsistent with her relation of servant to her father.
There has been a wide departure from the English rule in New York. Where the plaintiff had taken a girl to bring up as his own, who, after she became of age, went out to work on her own account, and was seduced, and returned to his house, and was there confined, he was allowed to recover against the seducer. Ingersoll v. Jones, 5 Barb. (N. Y.) 661. Bartley v. Richtmyer, 2 Barb. (N. Y.) 182.
In George v. Van Horn, 9 Barb. 533, the two last-mentioned cases are doubted; and it was decided that the parent could not maintain an action for the seduction of a daughter over the age of twenty-one, and not residing with the parents. The courts of New York seein desirous now (1850) of returning to the English rule, and hold that the relation of master and servant, actual or constructive, must exist as the basis of the action. Bartley v. Richtmyer, 4 Comstock, 38, reversing the decision in 2 Barb. (N. Y.) 182. Knight v. Wilcox, 15 Barb. (N. Y.) 279. Dain v. Wycoff, 3 Seld. (N. Y.) 191. Mulvehall v. Millward, 1 Kernan, 343. See, too, Roberts v. Counelly, 14 Ala. 235. Kendrick v. McCrary, 11 Geo. 603. Lee v. Hodges, 13 Gratt. 726. Parker v. Meek, 3 Sneed, 29. Bolton v. Miller, 6 Ind. 262. Ball v. Bruce, 21 Ill. 161. And there must be actual loss of service consequent on the seduction. Knight 7. Wilcox, 4 Kernan, 413.
It seems, that a mother cannot maintain an action for the seduction of her daughter during the life of the father, though the child be not born until after the father's death. Vossell o. Cole, 10 Mo. 634. George v. Van Horn, 9 Barb. (N. Y.) 523.
By the code of Virginia, tit. 44, ch. 148, sec. 1, an action for seduction may be maintained without any allegation of loss of service of the female. And it was held, in White v. Campbell, 13 Gratt. (Va.) 573, that the plaintiff, in a suit for the seduction of his daughter, may, to increase the damages, prove that the defendant succeeded in debauching her by promising to marry her.
The seduction of an unmarried woman of previous chaste character is, in Wisconsin, a misdemeanor. Rev. Stat. 1849, ch. 139, sec. 6. It is a misdemeanor also in New York, (Laws, 1848, ch. 111, p. 140); and also in Indiana, if the woman be under twenty one years of age, and the seduction be under promise of marriage. Acts of Indiana, c. 95, 1847.
6 Even for acts done out of school, if prejudicial to its order and good discipline. Lander v. Seaver, 32 N. Hamp. 114.
children under age. This power was originally given by the English statute of Charles II. ch. 24; and the person so invested may take the care and management of the estate, real and personal, belonging to the infants; and may maintain actions against any person who shall wrongfully take or detain them from his custody.
This power of the father ceases on the arrival of the child at the age of majority, which has been variously established in different countries, but with us is fixed at the age of twenty-one; and this is the period of majority now fixed by the French civil code. (a)! In this respect, the Napoleon Code was an improvement upon the former law of France, (6) which, in imitation of the civil law, continued the minority to the end of twenty-five years.
In case of the death of the father during the minority of the child, his authority and duty, by the principles of natural law, would devolve upon the mother; and some nations, and particularly the French in their new civil code, (c) have so ordained. The father is, however, under the French law, allowed by will to appoint an adviser to the mother, without whose advice she can do no act relating to the guardianship. This is analogous to our law, which allows the father, and the father only, to create a testamentary guardianship of the child. But if there be no such testamentary disposition, the mother, after the father's death, is entitled to the guardianship of the person, and in some cases, of the estate of the infant, until it arrives at the age of fourteen, when it is of sufficient age to choose a guardian for itself. (d) In New York, * the mother is, in that case, by * 207 statute, entitled to the guardianship of the estate. (a)
(a) No. 488.
(d) Litt. sec. 123. 3 Co. 38. Co. Litt. 84, b. 2 Atk. 14. 3 Com. Dig. tit. Guar. dian, B. D. E. 7 Vesey, 348.
(a) N. Y. Revised Statutes, vol. i. p. 718, sec. 5.
1 Postea, p. 258.
: By Sess. Laws of New York, 1862, ch. 172, sec. 6, p. 345, a father cannot bind his child as an apprentice or part with the control of a child, or create a testamentary guardian, without the written consent of the mother, if living.
III. Of the duties of children.
The duties that are enjoined upon children to their parents are obedience and assistance during their own minority, and gratitude and reverence during the rest of their lives. This, as well as the other primary duties of domestic life, have generally been the object of municipal law. Disobedience to parents was punished under the Jewish law with death ;(6) and with the Hindoos it was attended with the loss of the child's inheritance. (c) Nor can the classical scholar be at a loss to recollect how assiduously the ancient Greeks provided for the exercise of filial gratitude. They considered the neglect of it to be extremely impious, and attended with the most certain effects of divine vengeance. (d) It was only an object of civil animadversion. Solon ordered all persons who refused to make due provisions for their parents to be punished with infamy; and the same penalty was incurred for personal violence towards them. (e). When children undertook any hazardous enterprise, it was customary to engage a friend to maintain and protect their parents; and we have a beautiful allusion to this custom in the speech which Virgil puts into the mouth of Euryalus, when rushing into danger. (f)
The laws of New York have, in some small degree, * 208 taken * care to enforce this duty, not only by leaving it in
the power of the parent, in his discretion, totally to disinherit, by will, his ungrateful children, but by compelling the children (being of sufficient ability) of poor, old, lame, or impotent persons, (not able to maintain themselves,) to relieve and maintain them. (a) This is the only legal provision made (for the common law makes none) to enforce a plain obligation of the law of nature. (6) It has more than once been held in this country, after a critical examination of authorities, that a moral
(6) Deut. c. xxi. 18.
(c) Gentoo Code, by Halhed, p. 64. The first emigrants to Massachusetts followed the Jewish law, and made filial disobedience a capital crime. Governor Hutchinson, in his History of Massachusetts, vol. i. p. 441, says that he had met with but one conviction under that sanguinary law, and that offender was reprieved.
(d) Iliad, b. 9, v. 454. Odyss. b. 2, v. 134. Hesiod's Oper. & Die. b. 1, v. 183-186. (e) Potter's Greek Antiq. vol. ii. pp. 347–351. (f) At tu, oro, solare inopem, et succurre relictæ. Æneid, 9, 290. (a) N. Y. Revised Statutes, vol. p. 614.
(6) Le Blanc J., 4 East, 84. Edwards v. Davis, 16 Johns. 281. Rex v. Munden, Str. 190.
obligation, without some preexisting legal obligation applicable to the subject-matter, was not a sufficient consideration for a promise; and, consequently, that the promise of a son to pay for past expenditures in relief of an indigent parent, or of a father to pay for the relief of a poor and sick son, who was of age. and indigent, and not a member of his family, was not binding in law. (c)
IV. Of illegitimate children.
I proceed next to examine the situation of illegitimate children, or bastards, being persons who are begotten and born out of lawful wedlock.
These unhappy fruits of illicit connection were, by the civil and canon laws, made capable of being legitimated by the subsequent marriage of their parents; and this doctrine of legitimation prevails at this day, with different modifications, in France, Germany, Holland, and Scotland.(d). But * this principle * 209 has never been introduced into the English law ;(a) and
(c) Mills v. Wymann, 3 Pick. 207. Cook v. Bradley, 7 Conn. 57.
(d) Coustoumier de Normandie, ch. 27. 2 Domat, 361. Code Civil, No. 331. 1 Ersk. Inst. 116. Inst. 1, 10, 13. Code, 5, 27, 10. Novel, 89, c. 8. Butler's note, 181 to lib. 3, Co. Litt. Voet, Com. ad Pand. 25, 7, sec. 6 and 11. Dissertation dans laquelle on discute les Principes du Droit Romain, et du Droit François, par rapport aux Batards. Oeuvres de Chancelier D’Aguesseau, tom. vii. 381, 470.
(a) In Doe ex dem. Birtwhistle v. Vardill, 5 Barn. & Cress. 438, it was held, that a child born in Scotland of unmarried parents domiciled there, and who afterwards marries, could not inherit lands in England, for the English law does not recognize the legitimation of persons so born, by the subsequent marriage of the parents, and follows its own rules of descent. But the case was afterwards carried up on error to the House of Lords; and though the twelve judges gave their opinion to the lords that the judgment was correct, yet Lord Chancellor Brougham suggested doubts, and a further argument was ordered before the lords. Birtwhistle v. Vardill, 9 Bligh, 72–88. 6 Bing. 385. 2 Clark & Fin. 571-600. 1 Scott N. R. 828, S. C., and the doctrine of the K. B. affirmed. The principle which Lord Brougham contended for was, that the law of the country where the marriage of the parents and the birth of the child took place, determined the legitimacy of the child ; and that if by the law of the place the marriage had a retrospective effect, and by fiction of law held the child to have been born in lawful wedlock, the English courts ought so to regard it; and that he was entitled to take, as lawful heir, his father's inheritance in England. But on the rehearing of the case, the opinion of the judges was not changed, and the judgment below was affirmed. S. C. 7 Clark & Fin. 895. By the Scotch law, the subsequent marriage in Scotland of the parents will not legitimate the previous issue born in a country where such marriage does 'not render
1 And the law implies no promise on the part of a mother to pay for boarding and necessaries furnished her, while living with a child. Lynn v. Lynn, 29 Penn. (State,) 369.