« ForrigeFortsett »
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 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 cooperate 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 *202 teachers 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.*
'President Humphrey justly remarks, that it was a great oversight when the Conuccticnt 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 was 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. 1, 246. •ays Che 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
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, 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 *203 for the necessary maintenance of their infant *children, and those adults, who are not of ability to provide for themselves.* 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 suprised," said Lord Alvanley,b " 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.0 This is the true foundation of pa
branches of learning and science. Again, be says, education ought to be conducted under 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.
» Puff. Droit de la Nature, lib. 4. ch. 11. sec. 7.
b 5 Vesey, 444. See infra, p. 327, and vol. iv. p. 502, 503, as to the provision made by the laws of ancient Athens and Rome, for children, out of the estates of their parents.
« 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, rental 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, according to Justinian, exceeded all other people, and the liberty and lives of the children were placed within the power of the father.* 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 paternal power was exercised without the forms of justice. The
that u minister of the gospel had no right, contrary to the express commands of the father, to receive an infant daughter, 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 actious 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. (Heineccins' Elem. Jur. Nat. et Gentinm, b 2. ch. 3. sec. 52. 55.)
* Inst. 1. 9. De Patria Potentate. Law of the Twelve Tables. See vol L p. 524, note. Taylor's Elements of the Civil Law, p. 395. 397. 402. Voyage du Anacharsis en Grece, tom. hi. ch. 2G. Caesar de Bel. Gal. lib. v. ch. 18. St. John's History of the Manners and Customs of Ancient Greece, vol. i. 120—125. Infanticide was the horrible and stubborn vice of almost all antiquity. Gibbon's History, vol. viii. p. 55—57. Noodt de Partus Expositione et Nece apud vetsres; 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 Fulvins Senatoris filins, retractum ex itinere parens necari Jussit. Sal. Bel Cat. ch. 39.
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.* Bynkershoeck 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.1" When the crime of exposing and killing infants was made capital, under Valentinian and Valens, then the practice was finally exterminated,0 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 discre*205 tion.d In every "thing 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 honours.
» Liceat ms exheredare, quos occidere licebat. Dig. 28. 2. 11.
b Numerum liberorumfinirc, aul quemquam ex agnatis ueeare, fiagitinm habetur, plusque ibi boni mores ealent, quam alibi bona leges. Toe. de Mos. Ger.ch. 19.
« Dr. Taylor, in his Elements of the Cieil Law, p. 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 Bynkershoeck has composed a regular treatise, with infinite learning, in this subject. It is entitled, Opusenlum de jure Decidendi, eendendi, et exponent! i liberos a pud eetsrss 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. Heineccins, in his Syntagma Antiq. Rom. Jur. lib. i. 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.
s 1 Hawk. P. C. b. i. ch. 60, sec . 23.
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 as a rational heing. Such a code of law was barbarous and unfit for a free and civilized people; and Justinian himself pronounced it inhuman, and mitigated its rigour 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.*
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.1" But the courts of justice may in their sound
* lnst. 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.
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 R 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 be bad abused the right to the custody of his child, or there be an apprehension of cruelty, or some exhibition of ip-oss 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. 148, sec. 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, p. 194, 195.