ces attending the punishment. The instrument used, the time when, the place where, and the temper of heart exhibited at the time, may all unite in demonstrating what the motives were, which influenced the parent. a

Among the methods of inflicting chastisement, to enforce obedience to reasonable commands, is, doubtless, that of confinement of the child, but this like the other, must be exercised in moderation. The life of the child must not be endangered, nor its health sacrificed or unreasonably exposed; nor its limbs paralyzed or injured; nor can it be imposed upon the child to its prejudice, from sheer malice of heart.

This right of custody and control, as has been said, ceases at the arrival of the child at majority, except perhaps in the case of idiocy or other grievous disability of the child to take care of itself. In such cases it becomes the duty of the state authorities to provide. b

This relation may be severed before the child arrives at majority by the express consent of the parent, which is called emancipation, or by the cruel conduct of the parent, in sending it away, or in omitting to provide for it the necessaries of life by repeated acts of barbarity and violence, c or other treatment which would render a residence with the parent intolerable. d But even such conduct, by no means absolves a parent from his obligation to maintain or support his child; he is still liable at common law for the necessary support furnished to his child, even by a stranger. "This relation may also be severed by the courts of justice, when, in their discretion the morals, or safety, or the interests of the child strongly requires it, and may give their custody elsewhere.e Mothers, during coverture, also exercise authority over their children; but in a legal point of view, it is said, they are considered in this respect as only agents for their husbands, and have no legal authority of their own :f howsoever this may be, technically, where both parents reside together, the general custody of a Reeves' Domestic Relations, 288.

b Upton v. Northbridge, 15 Mass. 237; Orford v. Ramsey, 3 N. H. B. 881. c 2 Kent. Com. 193.

d Sternburg v. Bution, 7 Watts & Searg. 864.

• 2 Kent. Com. 205.

f Reeves on Domestic Relations, 295.

the children is doubtless, considered to be in him as the head and governor of the family; but by the universal law of implication, and by the implied consent of both, the mother, has a share in that custody and control; if not independently, and of equal extent with the father; yet if he does not absolutely forbid it, she is entitled to an active part in the discipline and correction of the children, and in his absence, to exercise absolute control, to the same extent as the father. She is entitled to the exercise of it to this extent, to secure to her that reverence and respect, that is due from children to a parent.

On the death of the father, the mother remaining at the head of the family, succeeds to the custody, discipline and government of the children, and to all the rights possessed by the father in his lifetime, and doubtless to the same succession of power in case of the civil death of the father, as where he is convicted of felony and confined in the state prison.

3. "The guardian has a power of control over his ward, corresponding in the main, with that which the father has over his child, though in some respects more restricted, while in others it is broader. The appointment of guardian when made by the courts, is of local force only, being confined to the state in which it is made, and the guardian would have no power to change the domicile of the ward to another state or country. But the appointment commonly has some reference to the possession of the property by the ward, and over this property the guardian possesses a power of control which is not possessed by the father over the property owned by the child.

As our discussion of this relation, in this work, is confined to the power of restraint of personal liberty, we shall only examine it in that view. Chancellor Kent informs us, that the relation of guardian and ward, is nearly allied to that of parent and child, a but throughout his whole lecture, he says not a word on the subject of the guardians right to discipline, control, to administer corporal correction, or to exercise any power of restraint over the personal liberty of the ward. In the state of New Hampshire it was expressly said by Woodbury J., b speaking of the rights of a

a 2 Com. 218.

b Hancock v. Hamstead, 1 N. H. 265.

guardian appointed upon the death of parents, "True he had s guardian, but a guardian though in loco parentis, as to a few purposes, has no absolute control over the person, or services of the ward, unless the ward be a lunatic." Mr. Reeves, who has treated this subject somewhat at large, and speaks of the various kinds of guardians and wards; guardians of the power, as well as guardians of the estate, is entirely silent on the subject of the power of any kind of guardian over the personal liberty of the ward. Blackstone, who has written a full chapter on the several divisions and classes of persons constituting this relation, omits any allusion to the control of the guardian over the personal liberty of the ward, unless it may be implied from this: "The power and reciprocal duty of a guardian and ward are the same pro tempore as that of father and child, and therefore I shall not repeat them." a In Massachusetts it was held that the guardian had no power to bind the person of his ward. b

The absence of expression of opinion by elementary writers on the subject of this power of restraint of the guardian over the person and liberty of his ward, and the remarkable absence of cases in which this question has been passed upon by the courts under the writ of habeas corpus or otherwise, makes it hazardous to express an opinion, as to the power of the guardian in this respect; or, if he possesses the power, to say where, and to what extent, and under what circumstances he may exert it. The relation of guardian, has not the same basis to support the power of restraint and discipline, as that of the parent. The parent has first, the natural law of power. By begetting the child, he has entered into an implied and voluntary obligation to endeavor, as far as in him lies, that the life he has bestowed shall be supported and preserved, and thus the child has a perfect and natural right to receive maintenance and support from the parent.c This gives to the parent the right to such authority, and to exercise such discipline, as may be requisite for the discharge of the sacred trust. This is the true foundation of parental power. d The guardian has no such natural relation; and he is under no legal obligation whatever, to maintain the ward from his own funds, nor at common

a 1 Black. Com. 462. e 4 Black. Com. 447.

b Foster v. Fuller, 6 Mass. 58. d 2 Kent. Com. 203.

law, can he bind him out to service. He can only do this by some express statutory provision. Our statutes define the powers of the several kinds of guardians known to our law, but by none of them is conferred the power of the personal restraint of liberty. If it exists, it exists only at common law. Blackstone indeed does say, that in England, the guardian performs the office, both of tutor and curator of the Roman law; the former of which, had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, (as he says,) according to the language of the Court of Chancery, the tutor was the committee of the person, the curator the committee of the estate; but this office, he says, is always united in our law, in regard to minors, a In looking at the civil law, we find the tutor, defined to be, a guardian who has the charge of persons who are under the age of puberty. Tutores, latin, from tueri to protect; as the law hath it, "to protect, or defend him during the age, in which he cannot protect himself." b Though in the civil law, this guardianship to protect and defend until the age of puberty, and in the English law, a combination of duties till majority; both systems are silent on the subject of the power of restraint of liberty. To protect and defend the person, is not identical with the power to control, to discipline, and restrain.

Mr. Hurd, a modern writer on the laws of the right of personal liberty, however, lays it down thus: c "When the ward is within the age of discretion," (which he assumes to be the age, when by law, they may choose their own guardians,) "it is plain enough, that the guardian possesses the right, and that it is clearly his duty, on proper occasions, in a reasonable manner, to correct his ward for misbehavior, with the rod, if in his judgment that mode of correction be necessary. And especially is this true, where the ward resides in the family of his guardian. In such a case, it is important to allow the guardian to employ the usual means of discipline, not only for the benefit of the ward, but to enable him to execute his reasonable plan of family government. For no man fit to be entrusted with the training up of a child, would take the infant stranger under his roof to educate, with any privib Inst. 1, 13, 1.

a 1 Black. Com. 379.

c Hurd on Personal Liberty, 51-52.

lege to misbehave, or to escape the punishment usually inflicted on his own children for misconduct. It would not be safe perhaps, to deny that in a case of flagrant misbehavior, the guardian possesses the right to chastise his ward, when of somewhat riper years. But when by reason of the advanced age of the ward, this mode of correction becomes deeply humiliating, as well as painful, it is safe, perhaps, to say, that the right cannot be lawfully exercised unless it appears that there was probable cause for it, and that all the other means of correction, less severe were inadequate." These views, though no authority is cited to sustain them, stand on a basis of reason and good practical common sense; and they are, no doubt, the practice to some extent in the relation of guardian and ward.

4. "The relation of master and apprentice is founded on a contract between the two generally, with the consent of the parent, or party standing in loco parentis, to the latter, by which the master is to teach the apprentice some specified trade or means of living. This relation is also statutory and local, and for power to control or punish against the opposition of the apprentice, the statute must be examined."

This relation is a matter of civil contract, and is generally in its forms and creation regulated by the local statutes of the several states, as to the age, time of service, the employment, trade or occupation, to be pursued, and the persons who are authorized to bind the child apprentice to the service of a master. All these being matters of civil contract, do not come within the scope of this work. "The relation of master and apprentice, says Chancellor Kent, a "was in its original spirit and policy and an intimate interesting connection, calculated to give the apprentice a thorough trade, education, and, to advance the mechanic arts in skill, neatness and fidelity of workmanship, as well as in the facility and utility of their application. The relationship, if duly cultivated under a just sense of the responsibility attached to it, and with the moral teachings which belong to it, will produce parental care, vigilance, and kindness on the part of the master, and a steady, diligent, faithful and reverential disposition and conduct on the part of the apprentice."

a 2 Com. 265.