205 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 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 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.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 But the courts of justice may in their sound

■ 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.

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 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. 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.

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. 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 colour of a contract. So the power allowed by law to the parent over the person of the child, may be delegated to a tutor or instructor, the better to accomplish the purposes of education.

The father,

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 Beau fort, 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 elabor. ate 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. Comm.

141. Dean v. Peel, 5 East, 47. Harris v. Butler, 2 Mee. & Wels. 539. Speight v. Olivera, 2 Starkie's N. P. C. 493 Blaymire v. Haley, 6 Meeson & Welsby, 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. R. 387. Hoonketh v. Barr, 8 Sergeant & B. 36. Sargent V. 5 Cowen, 106, Clark v. Fitch, 2 Wend. 459. Hewitt v. Prime, 21 Wend. 79.

• 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,

205 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 deed or will, dispose, after his death, of *206 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 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. In this respect, the Napoleon code was an improvement upon the former law of France, which, in imitation of the civil law, continued the minority to the end of twenty-five years.

с

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, 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,

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. a No. 488.

b Instit. Droit Francais, par Argou, b. i. ch. 7.

• No. 390-402.

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.a In New*207 York, *the mother is, in that case, by statute entitled to the guardianship of the estate.b

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;c and with the Hindoos, it was attended with the loss of the child's inheritance.d 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. It was also 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. When children undertook any hazardous enterprise, it was customary to

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

b N. Y. Revised Statutes, vol. i. p. 718, sec. 5.

• Deut. c. xxi. 18.

a 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.

• Illiad, b. 9, v. 454. Odyss. b. 2, v. 134. Hesiod's Oper. & Die. b. 1. v. 183-186.

1 Potter's Greek Antiq. vol. ii. p. 347-351.

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.a

The laws of New-York have, in some small de

gree, taken care to enforce this duty, not only by *208 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.b This is the only legal provision made (for the common law makes none) to enforce a plain obligation of the law of nature. It has more than once been held in this country, after a critical examination of authorities, that a moral obligation, without some pre-existing 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.d

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

Tu, oro, solare inopem, et succurre relicta. Eneid, 9, 283.

b N. Y. Revised Statutes, vol. i. p. 614.

Le Blanc, J., 4 East's Rep. 84. Edwards v. Davis, 16 Johns. Rep. 281. Rex v. Munden, Str. Rep. 190.

Mills v. Wyman, 3 Pick. Rep. 207. Cook v. Bradley, 7 Conn, Rep. 57.