an absolute license of power among the Romans, to *204 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. (b) 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 domestica emendationis, or right of inflicting moderate correction, under the exercise of a sound discretion. (d) In every thing that related to the *205 domestic connections, the English common law has an

*

History of the Manners and Customs of Ancient Greece, vol. i. pp. 120–125. Infanticide was the horrible 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.

(b) 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 recondite 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.

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

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. (b)

(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.)

(b) 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 Neville & Manning, 244. 4 Adolp. & Ellis, 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 and 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's Miss. R. 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, 195.1

1 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 their rights, without being restrained by the fear of separation from their children.

But the 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. (a) 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. (b) So the power allowed by law to

(a) Matter of Wollstonecraft, 4 Johns. Ch. Rep. 80. Commonwealth v. Addicks, 5 Binney's Rep. 520. Ex parte Crouse, 4 Wharton, 9. United States v. Green, 3 Mason's Rep. 482. Case of Wellesley v. Duke of Beaufort, 2 Russell's Rep. 1. The State v. Smith, 6 Greenleaf's Rep. 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.

(b) 3 Blacks. Com. 141. Dean v. Peel, 5 East, 45. Harris v. Butler, 2 Mees. & Wels. 539. Speight v. Oliviera, 2 Starkie's N. P. R. 493. Blaymire v. Haley, 6 Meeson & Welsby, 55.2 But the American cases hold a contrary doctrine. A parent

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 Phillips, Ch. 786. Ex parte Woodward, 17 E. L. & Eq. 77.

1 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. S. C. R. 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. R. 222.

On the other hand, the parent is not liable for the wilful acts of his children. See ante, p. 198, 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. R. 367.

2 Eager v. Grimwood, 1 Wels. Hurls. & G. (Exch.) R. 61. Davies v. Williams, 10 Ad. & El, N. S. 725. The English cases preserve the rigor of the rule as stated in the text, and they are followed in some of the states. McDaniel v. Edwards, 7 Ired. R. 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 plain

the parent over the person of the child, may be delegated to a tutor or instructor, the better to accomplish the purpose of education. (a) 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 generally in this country, the father may, by *206 deed or will, dispose, after his death, of the custody and tuition of his children under age. This power was originally given by the English statute of 12 Charles II. c. 24; and

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 re-claim her services, and all his rights and liabilities had become extinguished. Martin v. Payne, 9 Johns. R. 387. Hornketh v. Barr, 8 Sergeant & R. 36. Sargent v., 5 Cowen, 106. Clark v. Fitch, 2 Wend. 459. Hewitt v. Prime, 21 Wend. 79.

(a) A schoolmaster, who stands in that character, loco parentis, may in proper cases inflict moderate and reasonable chastisement. The State v. Pendergrass, 2 Dev. & Battle, 365. 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's Rep. 248.

tiff 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. S. C. Rep. 661. Bartley v. Richtmyer, 2 Barb. S. C. Rep. 182.

In George v. Van Horn, 9 Barb. R. 523, 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 seem 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 e. Richtmyer, 4 Comstock, R. 38, reversing the decision in 2 Barb. 182. Knight v. Wilcox, 15 Barb. Dain v. Wycoff, 3 Seld. 191. Mulvehall v. Millward, 1 Kern. 343. See too Roberts v. Connelly, 14 Ala. 235. Kendrick v. McCrary, 11 Geo. 603. Lee v. Hodges, 13 Gratt. 726. Parker v. Meek, 3 Sneed, 29.

279.

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. Vossel v. Cole, 10 Mo. R. 634.

By the code of Virginia, tit. 44, ch. 148, section 1, an action for seduction may be maintained without any allegation of loss of service of the female.

The seduction of an unmarried woman of previous chaste character is, in Wisconsin, a misdemeanor. Rev. St. 1849, ch. 139, sec. 6. It is a misdemeanor also in New York. (Laws, 1848, ch. 111, p. 148); and also in Indiana, if the woman be under 21 years of age, and the seduction be under promise of marriage. Acts of Ind. c. 95, 1847.

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, (b) 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 *207 that case, by statute, entitled to the guardianship of the estate. (e)

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

(a) No. 488.

(b) Instit. Droit Français, par Argou, b. i. ch. 7.

(c) No. 390-402.

(d) Litt. sec. 123. 3 Co. 38. Co. Litt. 84, b. 2 Atk. 14. 3 Com. Dig. tit. Guardian, B. D. E. 7 Vesey, 348.

(e) N. Y. Revised Statutes, vol. i. p. 718, sec. 5.