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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 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.c The father,
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 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 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 wise 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. g Wels. 539. Speight v. Olivera, 2 Starkie's N. P. C. 493 Blaymire v. Haley, 6 Meeson f. 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 f. B. 36. Sargent 5 Cowen, 106, Clark v. Fitch, 2 Wend. 459. Hewitt v. Prime, 21 Wend. 79.
C A schoolmaster, who stands in that character loco parentis, may in proper cases inflict moderate and reasonable chastisement. The State v. Pendergrass, 2 Dev. J. Battle, 365. The father, even with the consent of the managers of a house of refuge, cannot commit a child to their custody,
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, 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,
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.
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 suffi
cient age to choose a guardian for itself.a In New*207 York, the mother is, in that case, by statute enti
tled 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.
N. Y. Revised Statutes, vol. i. p. 718, sec. 5. • Deut. c. xxi. 18.
d 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. f 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 degree, 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.c 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 relicte. Æneid, 9, 283. b N. Y. Revised Statutes, vol. i. p. 614.
• La Blanc, J., 4 East's Rep. 84. Edwards v. Davis, 16 Johns. Rep. 281. Rex v. Munden, Str. Rep. 190.
d Mills v. Wyman, 3 Pick. Rep. 207. Cook v. Bradley, 7 Conn, Rep. 57.
modifications, in France, Germany, Holland, and *209 Scotland. But *this principle has never been in
troduced into the English law;b and Sir William Blackstonec has zealously maintained, in this respect, the superior policy of the common law.d We have, in relation to this subject, a memorable case in English history.
a Coustoumier de Normandie, ch. 27. 2 Domat. 361. Code Civil, No. 331. 1 Ersk. Inst. 116. Inst. 1, 10, 13. Code, 5, 27, 10. Novel, 89, c. 8. Butler's note, 181 to lib. 3 Co Litt. Voet, Com. ad Pand. 25, 7, sec. 6 and 11. Dissertation dans laquelle on discute les Principes du Droit Romain, et du Droit Francois, par rapport aux Batards. Oeuvres de Chancelier D' Aguesseau, tom. vii. 381, 470.
b In Doe ex dem. Birtwhistle v. Vardill, 5 Barnw. g. Cress. 433, it was held, that a child born in Scotland of unmarried parents domiciled there, and who afterwards marries, could not inherit lands in England, for the English law does not recognize the legitimacy, by foreign law and by marriage, of persons so born, and follows its own rules of descent. But the case was afterwards carried up on error to the house of lords, and though the twelve judges gave their opinion to the lords that the judgment was correct, yet Lord Chancellor Brougham suggested doubts, and a further argument was ordered before the lords. Birtwhistle v. Vardill, 9 Bligh. Rep. 72–88. 6 Bing. N. C. 385. 2 Clark & Finn. 571—600. 1 Scott, N. R. 828, S. C. and the doctrine of the K. B. affirmed. The principle which Lord Brougham contended for was, that the law of the country where the marriage of the parents and the birth of the child took place, determined the legitimacy of the child, and that if by the law of the place the marriage had a retrospective effect, and by fiction of law, held the child to have been born in lawful wedlock, the English courts ought so to regard it, and that he was entitled to take, as lawful heir, his father's inheritance in England. But on the rehearing of the case, the opinion of the judges was not changed, and the judgment below was affirmed. By the Scotch law, the subsequent marriage in Scotland of the parents, will not legitimate the previous issue born in a country where such marriage does not render legitimate such issue. Bell's Principles of the Law of Scotland, sec. 1628, vide post, p. 430.
c Com. vol. i. p. 455.
d It is a remarkable-fact, that in many of the United States, the rule of the civil law, that ante-nuptial children are legitimated by the father's mar. riage to the mother, and recognition of the children, prevails, in opposition to the common law, viz: In Vermont, Maryland, Virginia, Georgia, Ala. bama, Mississippi, Louisiana, Kentucky, Missouri, Indiana, Illinois and Ohio. Griffith's Law Reg. passim. Aitkin's Dig. 22. edit. 77. See p. 212, 213.