a

the age of fourteen years. But as the father's guardianship, by nature, continues until the child has arrived to full age, and as he is entitled by statute to constitute a testamentary guardian of the person and estate of his children until the age of twenty-one, the inference would seem to be, that he was, in contemplation of the law, entitled to the custody of the persons, and to the value of the services and labour of his children, during their minority. This is a principle assumed by the elementary writers, and in several of the judicial decisions.b In Gale v. Parrot, it was observed, that if the minor was eloigned from the parent, he might, of necessity, be entitled to receive the fruits of his own labour, and that it would require only slight circumstances to enable the court to infer the parent's consent to the son's receipt and enjoyment of his own wages. The *194 father, says Blackstone, has the benefit of his children's labour while they live with him, and are maintained by him, and this is no more than he is entitled to from his apprentices or servants.d

The father may obtain the custody of his children by the writ of habeas corpus, when they are improperly de

a1 Black's Com. 453.

Reeve's Domestic Relations, 290.

↳ Day v. Everitt, 7 Mass. Rep. 145. Benson v. Remington, 2 Mass. Rep. 113. Plummer v. Webb, 4 Mason, 380. The father may maintain suit in the admiralty for the wages of a minor son earned in a maritime service. 1 N. H. Rep. 28.

d 1 Black's Com. 453. A father may, by agreement with his minor child, relinquish to the child the right which he would otherwise have to his services, and authorize those who employ him to pay him his own earnings. (Jenney v. Alden, 12 Mass. Rep. 375. Whiting v. Earl, 3 Pick. Rep. 201. Burlingame v. Burlingame, 7 Cowen's Rep. 92. Morse v. Welton, 6 Conn. Rep. 547. Vavney v. Young, 11 Vermont Rep. 258. Tillotson v. M'Crillis, Ib. 477. The father is not entitled to the wages of a son, nor to avoid his reasonable contracts when he separates from the mother and leaves the son under her care. Wodell v. Coggestrall, 2 Metcalf's Rep. 89.) The son, in such cases, may make a valid special contract with his employer. Chilson v. Phillips, 1 Vermont Rep. 41.

tained from him ;a but the courts, both of law and equity, will investigate the circumstances, and act according to sound discretion, and will not always, and of course, interfere upon habeas corpus, and take a child, though under fourteen years of age, from the possession of a third person, and deliver it over to the father against the will of the child. They will consult the inclination of an infant, if it be of a sufficiently mature age to judge for itself, and even control the right of the father to the possession and education of his child when the nature of the case appears to warrant it. *The father may al

*195

a The King v. De Manneville, 5 East, 221.

case,

b Archer's case, 1 Lord Raym. Rep. 673. Rex v. Smith, Str. Rep. 982. Rex v. Delaval, 3 Burr. Rep. 1434. Commonwealth v. Addicks, 5 Binney's Rep. 520. The case of M'Dowles, 8 Johns. Rep. 328. Commonwealth v. Nutt, 1 Brown's Penn. Rep. 143. Ozanne v. Delile, 17 Martin's Louis. Rep. 32. Matter of Woolstonecraft, 4 Johns. Ch. Rep. 80. Creuze v Hunter, 2 Cox's Cases, 242. De Manneville v. De Manneville, 10 Vesey, 52. In the matter of Mitchell, R. M. Charlton's Geo. Rep. 494. In re Ann Lloyd, 3 Manning & Granger, 547, an illegitimate child between 11 and 12 years of age, brought up on habeas corpus, being allowed to choose between her mother and putative father, elected to go to the latter. Though the court of chancery has jurisdiction to control the father's possession of his child, yet in England a court of common law has no such delegated authority. Ex parte Skinner, 9 Moore's Rep. 278. McClellan's 1 Dowl. P. C. 81. See also infra, p. 220, 221. In the case of the King v. Greenhill, 4 Adolp. & Ellis, 624, it was held, that the father was entitled to the custody of his legitimate children when they were too young to exercise a discretion as to their custody. The father's right is superior to that of the mother, unless it appears that the child would be exposed to cruelty or gross corruption. See the case of The People v. Mercein, 3 Hill, 399, to the same point, infra, p. 205, note. Upon habeas corpus the chancellor in England has the same jurisdiction as a judge, and has nothing to attend to but personal ill usage to the child, as a ground for taking it from the father. But when there is a cause in court, other circumstances may be considered, and if the father cannot educate the child in a manner suitable to the property given to it by another, the court will not permit the father to withhold from it that education; and in a special case of the kind, chancery would not, on the father's application, withdraw a child from the custody of its aunt. Lyons v. Blenkin, 1 Jacob's Rep. 245. Lord Thurlow, in Powel v. Cleaver, 2 Bro. C. C. 510. S. P. Lord Cottenham, in Campbell v. Mackay, 2 Mylne & Craig, 31, expressed himself strongly on the injurious effects of a permanent residence of English mi

so maintain trespass for a tort to an infant child,

nors abroad, and he would not allow an infant ward of the court to be removed out of the jurisdiction of the court, except in a case of imperative necessity. The New-York Revised Statutes, vol. ii. p. 148, 149, sec. 59, have authorized the supreme court to award a habeas corpus on behalf of the wife, when the husband and wife lived separate without being divorced, and to dispose of the custody of minor children in sound discretion; and the chancellor or a judge may, upon habeas corpus, recover and dispose of any child detained by the society of Shakers. So in the case of a suit by the wife for a divorce or separation, the court may, pending the suit, or at or after a final hearing, as occasion may require, make such order for the custody, care and education of the children as may seem proper. The severity of the rule in the English courts of law, that the father has an absolute control over the custody of his infant child, however young, and in opposition to the wishes of the mother, and in destruction of her claim to the custody of the child, has been so strongly felt, that in 1837, Mr. Sergeant Talfourd introduced or proposed in parliament a bill, to empower the lord chancellor and judges to make orders relating to the custody of infant children of tender age, in cases where the parents are living apart, upon the application of either parent, or on the return of a writ of habeas corpus issued at the instance of the father. In Ahrenfeldt v. Ahrenfeldt, before the A. V. Ch. of New-York, 1 Hoffman's Ch. Rep. 497, in a bill by the mother for a separation from her husband for abandonment, and a claim for the custody of her infant children, the court considered it to be the settled English law, that the father had the right to the custody of his children with the exception of very tender infancy, unless his conduct was such as to endanger the bodily or moral welfare of them, or any of them, and that the doctrine of the common law had been weakened though not overthrown in the United States. In the case of Mercein v. The People, 25 Wendell, 64, it was decided in the court of errors of New-York, that as a general rule the father was entitled to the custody of his minor children, but that if the parents lived apart under a voluntary separation, and the father had left the infant in custody of the mother, that custody would not be transferred to the father on habeas corpus when the infant was of tender age and sickly habit, and especially if the qualifications of the mother for the case were superior. The decision in the supreme court was, that the husband had the better title and paramount right to the custody of his ininor children, in the absence of any positive disqualification on his part for the discharge of his parental duties, and the alienism of the husband was not such a disqualification. The court of errors was equally decided on the question touching the decision of the supreme court and its judgment was consequently affirmed. See also the case of The People v. Mercein, 3 Hill, 399, infra, p. 205, note.

provided he can show a loss of service, for that is the gist of the action by the father.a

(2.) Of educating children.

The education of children in a manner suitable to their station and calling, is another branch of parental duty, of imperfect obligation generally in the eye of the municipal law, but of very great importance to the welfare of the state. Without some preparation made in youth for the sequel of life, children of all conditions would probably become idle and vicious when they grow up, either from the want of good instruction and habits, and the means of subsistence, or from want of rational and useful occupation. A parent who sends his son into the world uneducated, and without skill in any art or science, does a great injury to mankind, as well as to his own family, for he defrauds the community of a useful citizen, and bequeaths to it a nuisance. This parental duty is strongly and persuasively inculcated by the writers on natural law.b Solon was so deeply impressed with the force of the obligation, that he even excused the children of Athens from maintaining their parents, if they had neglected to train them up to some art or profession. Several of the states of antiquity were too solicitous to form their youth for the various duties of civil life, even to intrust their education solely to the parent; but this, as in Crete and Sparta, was upon the principle, totally inadmissible in the modern civilized world, of the absorption of the individual in the body politic, and of his entire subjection to the despotism of the state.

Distinguished exertions have been made in several parts of modern Europe, and with which none of the educational institutions of antiquity are to be com

a Hall v. Hallender, 4 Barnw. & Cress. 660.

b Puffendorf, b. 4. ch. 11. sec. 5. Paley's Moral Philosophy, p. 224,

• Plutarch's Life of Solon.

pared, for the introduction of elementary "instruc- *196 tion accessible to the young of all classes. This has been the case, particularly in Denmark, Norway, Sweden, Prussia, some parts of Germany, and Switzerland. The Austrian empire is distinguished for an organized system of popular instruction, under the late emperor Francis, pervading all classes of the people. The university, the classical gymnasium, the commercial academy, and the primary village schools, with licensed normal teachers, in a main degree, are gratuitously open to all. The entire supervision and control of the whole system resides in the government which directs the course of instruction and the books, and no person is competent to hold any office, or exercise any calling, who has not been educated within the realm. Like Prussia, Austria offers education to all, but not like Prussia, she compels it upon none, except by indirect influence. She combines education with religious instruction, but allows Protestants and Jews to have their separate religious instruction upon very tolerant principles. In this branch of political economy, Scotland attained to early and honorable pre-eminence. In 1616, the Scotch parliament adopted incipient measures for settling and supporting a common. school in each parish, at the expense of the heritors or landed proprietors. By the statute of 1633, the assessments for the support of the parochial schools, were to be

a Norway and Sweden are highly educated countries in elementar learning, and their parish schools are universal and excellent. Laing's Norway, 444-Laing's Sweden, 425.

Mr. Turnbull, in his work on Austria, and which is one of the best English books extant on the social and political condition of Austria, says that three fifths of the juvenile population of the Austrian empire, with the exception of Hungary, actually receive scholastic instruction. And as the system of education is uniform, mild, essentially practical, free from excitement, and without the indulgence or permission of any daring speculation or vagaries political or religious, it conduces, according to Mr. Turnbull, to form the most patient, mild, orderly, benevolent and happy people on the face of the globe. See Turnbull's Austria, vol. ii. ch 5. edit London, 1840.