larger authority to the parents than others. The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that. he who gave had also the power of taking away (b). But the rigour of these

(b) Dig. 28, 2, 11; Cod. 8, 47, 10.

As to the payment of wages by the parent, or for the board or support of a child who remains with the parent after attaining full age, see note 127. The rule as to adopted chil. dren is the same as that relating to natural children, upon the question of wages or board. Luney v. Vantyne, 40 Vt. 501. A parent by adoption, sanctioned by the court, has the same right as a natural parent to the custody of the child, as against a guardian. Rives v. Sneed, 25 Ga. 612. The title to clothing and jewelry, furnished by a father for the use of his infant daughter, remains in him; and, in case of its loss by a common carrier, he is the proper party to sue for its value. Prentice v. Decker, 49 Barb. 21; Parmelee v. Smith, 21 Ill. 620. A father, as the natural guardian of his infant children, may preserve and take care of their property; but he cannot, as natural guardian, sell it and bind the infants by such sale. Griffings v. Hopkins, Walker (Miss.), 49; Wilson v. Wright, Dudley (Ga.), 102; Isaacs v. Boyd, 5 Port. 388; McCarty v. Rountree, 19 Mo. 345; Evans v. Pearce, 15 Gratt. (Va.) 513; Alston v. Alston, 34 Ala. 15; Judson v. Sierra, 22 Tex. 365. If the parent desires to take charge of the infant's property, or to dispose of it, his proper course is to qualify as guardian, by giving the proper bond. Ib.

A parent may resume property given to an infant child, without the consent of the child. Crane v. Kroger, 22 Ill. 74.

The right of the parent to the infant's services gives him a right of action against a person who deprives him of them, either by enticing him away and employing him, or by doing him an injury which prevents or unfits him from the performance of such services. A father may recover damages, not only for the loss of service down to the time of the trial, but also for the prospective value of the services of his son, aged eight years, who was injured by an act of negligence. Drew v. Sixth Avenue R. R. Co., 26 N. Y. (12 Smith) 49; O'Mara v. Hudson River R. R. Co., 38 N. Y. (11 Tiff.) 445; Rogers v. Smith, 17 Ind. 323; Kennard v. Burton, 25 Me. 39; Wilt v. Vickers, 8 Watts, 227.

Where an infant child, who is too young to render service, is injured by a third person in such a manner as to give the infant a right of action against him for negligence, the father may recover against him for the trouble and expense he is put to in caring for the child. Dennis v. Clark, 2 Cush. 347. See Durden v. Bennett, 7 Ala. N. S. 169; Arnold v. Norton, 25 Conn. 92; Kennard v. Burton, 25 Me. 39.

A father may maintain an action for the seduction of his infant daughter, where the slightest acts of service are shown. Pence v. Dozien, 7 Bush (Ky.), 133; Ingerson v. Miller, 47 Barb. 47.

The action is founded upon the relation of master and servant, not that of parent and child, and pregnancy need not follow to maintain the action; for, if the defendant communicates to the daughter a venereal disease, which renders her sick and unfit to labor, this is sufficient. White v. Nellis, 31 N. Y. (4 Tiff.) 405.

Although the daughter is over twenty-one, at the time of her seduction, but the relation of master and servant between her and her father actually exists, he may maintain the action, although at the time of the seduction she was temporarily absent. Lipe v. Eisenlord, 32 N. Y. (5 Tiff.) 229.

But if the daughter is over twenty-one, and no acts of service are shown, and she was not a member of her father's family at the time of the seduction, he cannot maintain an action. Patterson v. Thompson, 24 Ark. 55.

But, slight acts of service are sufficient. Badgley v. Decker, 44 Barb. 577.

After the daughter is twenty-one, the father may maintain an action for the seduction of his daughter while she was an infant. Stevenson v. Belknap, 6 Clarke (Iowa), 97.

An action lies by a parent for the unlawful abduction of his infant child. Steele v. Thacher, Ware, 91; Marits v. Garnhart, 7 Watts (Penn.), 302, 303; Magee v. Holland, 3 Dutch. (N. J.) 86.

But no action lies by the father against a person who procured the marriage of his infant VOL. I.48

laws was softened by subsequent constitutions; so that (c) we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "patria potestas in pietate debet, non in atrocitate, consistere." But still they maintained to the last a very large and absolute *authority: for a son could not acquire any property of [*556] his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life(d).

The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner(e); this being for the benefit of his education.(165) The consent or concurrence of the parent to the mar

(c) Dig. 48, 9, 5. (d) Inst. 2, 9, 1.

(e) 1 Hawk. P. C. bk. 1, c. 28; Surety of the Peace, s. 23.

daughter with another person. Goodwin v. Thompson, 2 Greene (Iowa), 329; Hewey v. Maseley, 7 Gray, 479; Jones v. Tevis, 4 Litt. (Ky.) 25. Contra, Hills v. Hobert, 2 Root, 48.

A father may emancipate his infant children, and, if he does so, they are entitled to and may receive or recover the value of their services from those for whom they were rendered on request. Rush v. Vought, 55 Penn. St. 437; Fairhurst v. Lewis, 23 Ark. 435. A minor daughter is emancipated by her marriage, with the consent of her father; and such consent may be implied from circumstances. Bucksport v. Rockland, 56 Me. 22. But a minor son is not emancipated by a marriage, without the consent and contrary to the directions of his father. White v. Henry, 24 Me. 531. A father who consents that his infant son may enlist in the service of the government, and who promises that he may have the money earned in such service, will be bound by his word, and will be compelled to refund such money if placed in his keeping by the son. Ayer v. Ayer, 41 Vt. 302. Whether the father relinquished his claim is a question of fact. Ayer v. Ayer, 41 Vt. 302; Baker v. Baker, id. 55. An emancipation of a minor child by a parol agreement, and without consideration, is revocable until acted upon. Abbott v. Converse, 4 Allen (Mass.), 530. See Everett v. Sherfey, 1 Clarke (Iowa), 356; Ream v. Watkins, 27 Mo. 516.

A conditional emancipation, by which the father is to receive a certain sum annually from the infant's earnings, and he is to have the care of his son and the control of his affairs, and to see that he gets his wages from those who employ him, is not such an emancipation as will prevent the father from suing for the infant's wages or earnings. Mason v. Hutchins, 32 Vt. 780.

(165) Although a parent is authorized to inflict a reasonable punishment upon his child, he cannot lawfully exceed such bounds and inflict a cruel or excessive punishment; and if he does so he is himself criminally punishable. Johnson v. State, 2 Humph. (Tenn.) 283. While a parent is said to exercise a judicial authority in such a case, he is still liable in a clear case of excess; and what constitutes such an excess is a question of fact for a jury. Johnson v. State, 2 Humph. (Tenn.) 283.

Where a father imprisoned his blind, helpless boy in a cold, damp cellar, without fire, during several days in midwinter, and giving as an excuse that the boy was covered with vermin, and had been anointed by the father with kerosene, this was held to be a needless cruelty, which subjected the father to indictment and punishment. Fletcher v. People, 52 Ill. 395.

When the child is employed as an agent by the parent, he will be liable for his acts in the same manner that he would for the acts of any other agent. But for the unauthorized and willful tortious acts of the infant he is not responsible. A father is not liable for the act of his minor daughter, who willfully sets his dog upon a neighbor's hog, which is thereby bitten and killed. Tifft v. Tifft, 4 Denio, 175.

Nor is he liable for an assault committed by his minor son. Baker v. Haldeman, 24 Mo. 219. Nor is he liable for the willful trespasses and torts of his infant children, when he neither assents to nor ratifies them. Paul v. Hummel, 43 Mo. 119.

But an action will lie for an injury committed by his team, when driven by a son with

riage of his child under age is also, as we have seen (f), directed by our law to be obtained. Under ordinary circumstances a father is the guardian of his children, and entitled to the custody of them, so that if they be taken from him when under age, a habeas corpus lies for their restitution, and at any rate till the age of sixteen they cannot leave him against his will, whether they desire to do so or not(g). (166) And the unlawful abduction of a daughter under the age specified is a misdemeanor(h). The father is entitled to the custody of his children as against other persons till they attain the age of twentyone; but they will not be obliged to return to him against their will, if they be of an age to exercise a choice, and this age seems to be sixteen (i). This paternal power applies to the father only, and not to the mother, who has none during her husband's life(k); (167) indeed, until recently the mother might be

(f) Ante, pp. 536, 537.

the custody of the children, unless a testa

(g) Reg. v. Howes, 3 E. & E. 332. See also mentary or other guardian has been appointReg. v. Clarke, 7 E. & B. 186.

(h) 24 & 25 Vict. c. 100, s. 55.
(i) Reg. v. Howes, 3 E. & E. 332.

(k) But after his death she is entitled to

ed, and in the absence of such appointment, her consent to their marriage is available under the marriage acts.

whom he was riding at the time. Strohl v. Levan, 39 Penn. St. 177. Or when using the team in his employment. Wait v. Wait, 30 N. Y. (3 Tiff.) 78; Lashbrook v. Patten, 1 Duval (Ky.), 316.

Without proof of authority from the father, a son has no more right than a stranger to lend his father's goods. Johnson v. Stone, 40 N. H. 197. But, under ordinary circumstances, a young lady living at her father's house may give permission to her friend to drive her out in her father's carriage, and the friend will not be liable for the result of an accident to the horses not arising from negligence on his part. Bennett v. Gillette, 3 Minn. 423.

(166) In this country the general rule is well settled that the father is entitled to the custody and control of his infant children, to the exclusion of all others, if he is a suitable person. Taylor v. Jetor, 33 Ga. 195; Johnson v. Terry, 34 Conn. 259; State v. Baird, 2 Green (N. J.), 194; State v.. Banks, 25 Ind. 495; State v. Richardson, 40 N. H. 272; People v. Olmstead, 27 Barb. 9; People v. Mercein, 3 Hill, 399; State v. Paine, 4 Humph. 523. But this superior right of the father is subject to the control of the courts in some cases; and when the father has abused or forfeited the right by cruelty or misconduct toward his children, or he is of such a character, or has been guilty of such conduct, that their welfare, either physical or moral, requires that they shall be removed from him, the court may interfere for the benefit of the children, and give the custody to some other proper person. Ib.

Where husband and wife are living apart, and especially where the husband is not in fault, he will be entitled to the custody of the children. People v. Olmstead, 27 Barb. 9; People v. Mercein, 3 Hill, 399; People v. 19 Wend. 16; People v. Chegaray, 18 id. 637; People v. Humphreys, 24 Barb. 521; People v. Brooks, 35 id. 85.

Upon a divorce granted in favor of the wife, the custody of children of tender years will be awarded to the mother, when it appears that she is well educated, amiable, and virtuous, and it is shown that the father is habitually rude, profane, vulgar, obscene, insulting to the females of his household, with a tendency to drunkenness. Goodrich v. Goodrich, 44 Ala. 670; McBride v. McBride, 1 Bush (Ky.), 15; Gardenhire v. Hinds, 1 Head (Tenn.), 402. Where a child is unlawfully detained from him, his remedy is by habeas corpus, as no action at law can be maintained for that purpose. Dowling v. Todd, 26 Mo. 267.

(167) Generally, upon the father's death, the mother, as the natural guardian, is entitled to the earnings of her children during their minority. Campbell v. Campbell, 3 Stockt. (N. J.) 268; Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Cain v. Devitt, 8 Clarke (Iowa), 116; Simpson v. Buck, 5 Lans. 337.

excluded by the father from all access to her children; and though the husband thus acted avowedly for extortion or intimidation, the court would not relax the rule(). And even the court of chancery *refused to interfere with [ *557] the legal right of the father to absolute dominion over his infant children, being wards of court, unless upon distinct proof that he was of immoral and irreligious principles, and that his children were likely to be corrupted by him(m). But now, by 2 & 3 Vict. c. 54, a mother (unless an adulteress), may by petition to the court of chancery(n), obtain an order for access to her infant children, at such times and subject to such regulations as the court shall think proper; and if such infant or infants shall be within the age of seven years, she may obtain an order that they be delivered to and remain in her custody until attaining such age, subject to such regulations as aforesaid, and by the divorce acts, the court is allowed to make arrangements for the custody of children, pendente lite, and afterwards, for their permanent custody and maintenance(o).

This power of a father over the person of his child ceases at the age of twentyone, when he is supposed to have arrived at years of discretion, unless the father, by consenting to his child's marriage previously to attaining that age, has impliedly emancipated him. And this authority of the father may continue even after his death, for he may by his will appoint a guardian to his children. He may also, during his lifetime, delegate part of his parental authority to the tutor or schoolmaster of his child, who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of

(1) R. v. Greenhill, 4 A. & E. 624.

(m) Wellesley v. Duke of Beaufort, 2 Russ. 1; Ball v. Ball, 2 Sim. 35.

(n) Re Taylor, 10 Sim. 291.

(0) 20 & 21 Vict. c. 85, s. 35; 22 & 23 Vict. c. 61, s. 4.

Upon the death of the father, the mother, all other things being equal, has the preferable claim of being intrusted with the custody of her children. People v. Wilcox, 22 Barb. 178; S. C. affirmed, 14 N. Y. (4 Kern.) 575.

And in case of the death of the father, it is the duty of the mother to exercise proper authority over her children. Osborn v. Allen, 2 Dutch. (N. J.) 388

Where the father is dead, and the children are living with the mother and her second husband, the children will not be removed from her care and custody, even though the morals of such husband are exceptionable, and he is given to profanity in the presence of the family, where there is no danger that they will be abused, and they are well fed and clothed, and sent to school without charge by the stepfather. Striplin v. Ware, 36 Ala. 87. After the father's death the mother has a right to change the domicile of the child during its infancy, if it has no guardian, and where there is no fraudulent intent in doing Carlisle v. Tuttle, 30 Ala. 613.

SO.

After the death of the father the mother is entitled to the earnings of her infant children, and she may maintain an action for the seduction of her infant daughter. Gray v. Durland, 50 Barb. 100, 211; Damon v. Moore, 5 Lans. 454.

So where a daughter remains in the service of her mother after arriving at the age of twenty-one years, the mother may maintain an action for the seduction of such daughter and servant. Badgeley v. Decker, 44 Barb. 577. See Vassel v. Cole, 10 Mo. 634. But where the infant daughter was seduced during the life-time of her father, and where the child was not born until after his death, the mother cannot maintain the action. Heinrichs v. Kerchner, 35 Mo. 378; Vassel v. Cole, 10 id. 634; Logan v. Murray, 6 Serg. & Rawle, 175. But where a widow bound her infant daughter an apprentice, who was afterward seduced, and the indenture then canceled, and the infant returned to the mother's, where she was supported, and delivered of her child, the mother was held entitled to recover. Sargent v. Denniston, 5 Cow. 106.

restraint and correction, as may be necessary to answer the purposes for which he is employed (168).

3. The duties of children to their parents arise from a principle of natural justice and gratitude. For to those who gave us existence, we naturally owe 3. Duties of chil- subjection and obedience during our minority, and honour and dren to parents. reverence ever after: they, who protected the weakness of our *infancy, are entitled to our protection in the infirmity of their age; [ *558] they, who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents which are enjoined by positive laws. And the Athenian laws (p) carried this principle most strictly into practice; obliging children to provide for their father, when fallen into poverty; with an exception in the case of spurious children, of those whose chastity had been prostituted by consent of the father, and of those whom he had not put in any way of gaining a livelihood. The legislature, says Montesquieu (g), considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that in the third case he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence.

Our laws agree with those of Athens with regard to the first only of these particulars, the case of spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person of a bad parent as a good one; and is compellable, if of sufficient ability, to maintain a parent in distress and unable to work, whatever his conduct may have been(r).(169)

(p) Potter's Antiq. bk. 4, c. 15. (g) Sp. L. bk. 26, c. 5.

(r) Stat. 43 Eliz. c. 2.

This liability may also be enforced under 4 & 5 Will. 4, c. 76, s. 78.

(168) A schoolmaster has the legal power or authority to enforce obedience to his rules, and to use the rod when necessary, but he cannot chastise wantonly and without just cause; and his chastisement must be proportionate to the offense of the pupil, and within the bounds of moderation; for if it be excessive, or without cause, he will be guilty of an assault and battery. Anderson v. State, 3 Head (Tenn.), 455; Commonwealth v. Randall, 4 Gray (Mass.), 36; Cooper v. McJunkin, 4 Ind. 290; State v. Pendergrass, 2 Dev. & Bat. 365. The legal presumption will be that the punishment was proper; and to warrant a conviction, that presumption must be rebutted by showing that the punishment was excessive or without any proper cause. Anderson v. State, 3 Head (Tenn.), 455. And whether the punishment was excessive or without just cause, is a question of fact for the jury. Commonwealth v. Randall, 4 Gray (Mass.), 36.

(169) At common law a child is not bound to support its parents, but, where one son, at the request of his brothers, furnishes support to a parent, they will be liable upon an implied promise to pay Stone v. Stone, 32 Conn. 149. Although a parent is bound to support his child until he arrives at majority, the obligation of the child to support the father rests entirely upon the statute. Edwards v. Davis, 16 Johns. 281; Dawson v. Dawson, 12 Iowa, 512. And to charge a son with necessaries furnished to his parent, an express request from the son must be proved. Lebanon v. Griffin, 45 N. H. 558. But the law does not imply any promise on the part of a mother to pay for board and necessaries furnished to her while living with her child. Lynn v. Lynn, 29 Penn. St. 369. There are statutes in many of the states providing for the support of poor relatives, and the statutes and decisions of such states will furnish such information as may be desired, in reference to any particular state.