certainly go as far in defending his child from harm as in defending himself. The law permits him so to do; but it does not undertake to compel him so to do, or punish him for not so doing. And, lastly, as to education, the same is true. A parent of the most unbounded means may, in spite of the law, bring up his children in the most deplorable ignorance. The truth therefore is, that these are not matters of legal obligation. The law has left them to the strong impulses of natural affection. Whether wisely or not, is a question I need not discuss. The fact is all that I am now concerned with. And, on the other hand, the parent's power over the child is very little aided by law. The father is the natural guardian of the minor children; in which capacity he has the custody of their persons, but not of their property. He may correct them with moderation, bind them out to service, receive their earnings, and forbid their marrying. He may also by will appoint for them a testamentary guardian, with powers extending to their persons and property. This is a singular instance in which a person may delegate a power which he does not possess. The father, unless legally appointed guardian, cannot control the separate property of his minor child, except it be earned by the child's labor; but he may by will confer this power on another. Finally, at majority, or when a daughter marries, all power of the parent over the child ceases; and the child, to all intents and purposes, becomes emancipated from parental control. (a)

doctrine, they still hold that where the parent drives the child out of the house, or refuses to furnish him with support, the authority of the child to contract for necessaries on behalf of the father will be implied. This, it is evident, practically results in holding him bound for its support, one set of cases holding that a direct liability exists on his part, while the others, denying any such direct liability, infer, from the fact that he refuses to support it, an authority to contract for its own support. But a late case in New Hampshire distinctly holds that such authority to the child to contract cannot be implied from the mere failure of the father to furnish necessaries. Kelley v. Davis, 49 N. H. 187. Slight circumstances though will be sufficient. Fowlkes v. Baker, 29 Texas, 35; Wilkes v. McClung, 32 Ga. 507. The mother, according to the authorities, is not entitled to the earnings of a minor child after the death of the father, and is not liable for its support. Raymond v. Loyl, 10 Barb. 483; Pray v. Gorman, 31 Maine, 240; Bartley v. Richtmyer, 4 Comst. 46; E. B. v. E. C. B. 28 Barb. 303. Passenger R. R. Co. v. Stutlen, 54 Penn. St. 375. But in New Jersey it is held that she generally is. Campbell v. Campbell, 3 Stockton, 268; Osborne v. Allen, 2 Dutcher, 388. See also Mathewson v. Perry, 37 Conn. 435; Hammond v. Corbett, 50 N. H. 501; Simpson v. Buck, 5 Lans. (N. Y.) 337. A father-in-law is not bound to support step-children. Whether such support, if furnished, is a gratuity or not, must be determined from circumstances. Bond v. Lockwood, 33 Ill. 312.

(a) In the text, I have purposely abstained from details. The right of custody of a minor child is not absolute, like that of property. The law looks mainly to the good of the child, and if a better custody exists than that of the father, the law will not disturb it. State v. Baird, 3 Green, N. J. 194; s. c. 21 N. J. Eq. 384; McBride v. McBride, 1 Bush, 15; Cole v. Cole, 23 Iowa, 433. But, as a general rule, it belongs to the father. Queen v. Howes, 3 El., B. & E. 322. The usual mode of testing the right of custody is by habeas corpus. Gishwiler v. Dodez, 4 Ohio State, 615; ante, p. 263, note (c); 2 Kent, Com. 194, 205. But the order can only be made on habeas corpus, where it appears that the child is unlawfully restrained of its liberty, as that is the office of the writ. State v. Baird, 3 Green (N. J.), 194. It has even been held that the father's right to the custody of his child is not lost by abandonment. Johnson v. Terry, 34 Conn. 259. The mother has a right to the custody

§ 109. Rights and Duties of Children. These may be inferred from the foregoing statements. Like those of parents, they are chiefly of moral obligation, and not a subject for these lectures. We have no legal provision for compelling even an affluent child, after majority, to support an indigent parent. In some places, there is such provision, extending even to grandchildren; and it might, perhaps, be well if we had it; but as our law stands, the child or grandchild cannot be compelled to support the parent or grandparent, even to save them from the poor-house. Thus filial, like parental, duty, is left by the legislature to depend upon natural affection. (a) The parent may invite the love, respect, obedience, and support of the child; but the law will not help him to command them. During minority, if the child live with the parent, and there be no agreement to the contrary, the parent is entitled to his labor and earnings; but, by statute, if the child be bound out as an apprentice, any money stipulated for in the indenture must be secured to the child. If an adult child continue to reside with his parents, and live and labor in common with the family, there is no implied contract to pay him wages, and he can

of an illegitimate child. Alfred v. McKay, 36 Ga. 440. The father's right to the custody of the child cannot be transferred by parol. State v. Libbey, 44 N. H. 321. An agreement between the husband and wife that she shall have the custody of their child is not binding at law. Johnson v. Terry, 34 Conn. 259. The father's right to the earnings of the child is founded upon the fact of support and protection. If, therefore, the father agree with the child that he shall have his time, or send him out into the world to provide for himself, he cannot claim his earnings. 2 Kent, Com. 193, 191; 1 Black. Com. 453; Woodell v. Coggeshall, 2 Met. 89; Stiles v. Granville, 6 Cush. 458; Bray v. Wheeler, 29 Vt. 514. Rush v. Vought, 55 Penn. St. 437. And the property so acquired by the son is not liable for the debts of the father. McCloskey v. Cyphert, 27 Penn. State, 220. Even though the child continue to reside with the parent and perform some services for him. Johnson v. Silsbee, 49 N. H. 543. The father is not bound by the contract of the child, even for necessaries, nor liable for his torts, unless an actual authority be proved, or implied from circumstances. Baker v. Keen, 2 Starkie, 501; Van Valkinburg v. Watson, 13 Johns. 480. But in this last case, the court say, "The parent is under a natural obligation to furnish necessaries for an infant child, and if the parent neglect that duty, any other person who supplies such necessaries is deemed to have conferred upon the delinquent parent a benefit, from which the law raises an implied promise to pay, on the part of the parent." See remarks in preceding note. On the ground of a right to the services of a minor child, the father may sue for a tort committed upon such child. Hall v. Hollander, 4 B. & C. 660. And in case of the seduction of a daughter, the slightest proof of service will be sufficient. 2 Leigh's Nisi Prius, 1462. The father may maintain an action for the seduction of his daughter effected during her minority, after she has attained her majority. Stevenson v. Belknap, 6 Clarke (Iowa), 97. When a minor daughter marries, the rights of the parent are transferred to her husband; and the parent would be liable to damages for wrongfully depriving the husband of such rights. Friend v. Thompson, Wright's Rep. 636. In New York it has been held that an action for the seduction of a daughter may be maintained by a widowed mother. Gray v. Durland, 50 Barb. 100. If a law of Congress authorizes the enlistment of minors over eighteen, such enlistment will be valid and binding. In the Matter of Disinger, 12 Ohio State, 256.

(a) Reeves's Dom. Rel. 283; Rex v. Munden, 1 Strange, 190; Edwards v. Davis, 16 Johnson, 281. It has even been held, that furnishing necessary provisions to a parent is not a sufficient consideration to support a subsequent written promise by the child to pay for them. Cook v. Bradley, 7 Conn. 57. But a promise to pay will be implied where there is a previous request. Stone v. Stone, 32 Conn. 142. In New Hampshire an express request by the child to furnish the necessaries must be proved. Lebanon v. Griffin, 45 N. H. 558.

only claim them under an express contract. (a) The child can only bind the parent by his contracts, or make him liable for his torts, (b) when acting under his authority. The mere relation involves no such liability. Nor do the legal relations of parent and child extend to those of step-parent and step-child, unless by statute. The course of our observations upon this relation of parent and child, naturally suggests a remark or two upon the proper scope of legislation. We have seen that the law interferes very little between parents and children; much less, in fact, than it formerly did. And why is this? Is it not because the world is learning to estimate more truly the nature and value of personal liberty? The complaint has always been, that the world was too much governed; that the law interfered too much in matters which did not concern the public, and ought therefore to be optional. This complaint has been well founded. Perchance it would not be without some foundation even now; but the tendency of legislation is certainly encouraging in this respect. Men are more and more permitted by government to manage their own affairs in their own. way. This is strikingly manifested in the absence of legislation with respect to parent and child; and therefore I have remarked upon it here. it here. But we shall have frequent occasion, in the course of our inquiries, to notice the same tendency in other matters; and it is a happy tendency. The true light in which to regard government, is that of a necessary evil. Some degree of government we must have, to preserve social order; but the less we have of it the better, provided individuals will keep themselves in order. That is the happiest condition of society in which the operations of government are the least felt in private affairs. Like the atmosphere which supports us, we are the best off with respect to it when we have the least reason to be conscious of its existence.

(a) Wright's Rep. 89, 133, 547, 751; Andrus v. Foster, 17 Vt. 556; Fitch v. Peckham, 16 id. 150; Ridgway v. English, 2 New Jersey, 409; Steel v. Steel, 12 Penn. State, 64; Hertzog v. Hertzog, 29 id. 465; Zerbe v. Miller, 16 id. 488; Weir v. Weir, 3 B. Monr. 647; Seavey v. Seavey, 37 N. H. 125; Munger v. Munger, 33 id. 581. Updike v. Ten Broeck, 3 Vroom, 105; Prickett v. Prickett, 20 N. J. Eq. 478; Haywood v. Brooks, 47 N. H. 231; Titman v. Titman, 64 Penn. St. 480; Luney v. Vantyne, 40 Vt. 501; Hart v. Hart's Adm. 41 Mo. 441; Butler v. Slam, 50 Penn. St. 456. But see Guild v. Guild, 15 Pick. 130. This rule applies to other near relatives adopted into the family. Hudson v. Lutz, 5 Jones (N. C.), 217. A parent who goes to live with a child is under no implied obligation to pay for board. Lynn ». Lynn, 29 Penn. State, 369; and where a married daughter lives or stays at her father's house, the husband is not under an implied contract to pay for her board. Cantine v. Phillips, 5 Harring. 428. When parental relations exist between or are assumed by individuals, neither an agreement to pay for services rendered, nor for the maintenance furnished, will be implied from the mere fact that the services were rendered, or the maintenance furnished. Duffey v. Duffey, 44 Penn. State, 899; Oxford v. McFarland, 3 Ind. 156; Brush v. Blanchard, 18 Ill. 46; Gillet v. Camp, 27 Mo. 511; Brown v. Lockwell, 26 Ga. 380; Putnam v. Town, 34 Vt. 429; Seidig v. Coover's Ex'rs, 47 Penn. State, 534; Adams v. Adams's Adm'rs, 23 Ind. 50.

(b) Paul v. Hummel, 43 Mo. 119.

LECTURE XVI.

GUARDIAN AND WARD. (a)

§ 110. Appointment of Guardians. The relation of guardian and ward is not founded in nature, like that of parent and child; but owes its origin to legal provision. When a person is not in a condition to take proper care of himself or his property, the law provides that some other person shall act for him in this behalf. The person thus designated is guardian, and the person placed under his care ward. And all the provisions of law which govern the relation thus created flow naturally from this general object of creating it. The guardian is authorized to act for his ward, only in those matters where the law requires that there should be action, and the ward is incapable of acting for himself. Beyond these limits he cannot act at all; and even within them his action is carefully controlled by law, so as to leave as little latitude as possible for the exercise of discretion. There are three classes of persons whom the law presumes to be incapable of taking care of themselves, and therefore places under guardianship; namely, infants, idiots, and lunatics. To these may sometimes be added a fourth class: namely, deaf and dumb persons; and in some of the States, but not here, there is still another class; namely, spendthrifts. For these classes, therefore, the law appoints guardians, or provides for their appointment. A father, in contemplation of death, is permitted to appoint by will a guardian for his minor children; and such guardian is thence called a testamentary guardian. But in all other cases, under our law, guardians are appointed by the court of common pleas, and may be called statutory guardians. In the books of common law, we find three sorts of guardians spoken of; namely, guardians by nature, for nurture, and in socage. But here, these distinctions are entirely useless; for though we speak of the father as the natural guardian of his minor children, yet, until he becomes a statutory guardian, his authority reaches only to their persons, and not to their property. (b) The relation of guardian and ward, therefore, cannot be said to exist, until a testamentary or statutory guardian has been appointed. The other descriptions of guardians belong to the feudal system, with which happily we have very little concern. I proceed, therefore, to speak of the legal condition of the persons

(a) See 2 Kent, Com. lec. 30, 31; 1 Black. Com. ch. 17; 1 Swift, ch. 7; Reeves's Domestic Relations. Schouler's Domestic Relations. It is singular that we have no treatise expressly on this subject. Since the new constitution, jurisdiction in matters of guardianship has been vested exclusively in the probate court, instead of the common pleas.

(b) Shanks v. Seamonds, 24 Iowa, 131.

who may be placed under guardianship; of the persons who may be appointed guardians; and of their powers and duties. (a)

§ 111. Infants. (b) In this State all males under twenty-one years of age, and all females under eighteen, are called infants or minors. In England, and in most of the States, the age of majority is the same for both sexes; namely, twenty-one. In other countries, it varies from this to twenty-five, and perhaps more. It is necessary to fix upon some age of legal emancipation, and perhaps twenty-one is as suitable as any. No period of minority could be selected, which would be adapted legally to all; because some arrive at maturity much sooner than others. But taking the average, at the present day, twenty-one years is at least long enough. During this period of minority, the law places infants under various disabilities, founded on their presumed want of judgment or discretion. They have no political rights; that is, they cannot vote, nor hold office, nor act as jurors. They cannot make deeds or wills. They cannot marry without the consent of their parents or guardians; and under the ages of eighteen for males, and fourteen for females, they cannot marry at all. They cannot appoint attorneys, and therefore can neither sue nor defend suits in their own names. If they have no guardian, they may sue by their next friend, technically called prochein ami; but they can only defend by guardian. Minority is here no ground for delaying suit; and the court at once appoint a guardian ad litem to defend for them. (c) The contracts of minors are not absolutely void, like those of married women, but only voidable. During minority, a court will not uphold such contracts, unless clearly beneficial to them; and after majority, such contracts may be disaffirmed and avoided, unless they were for necessaries honestly furnished. This rule is designed to protect infants against imposition; and contracts for necessaries are therefore excepted, because the reason of the rule does not embrace them. But as to all other contracts, they have the option to affirm or disaffirm them on becoming of age. The only acts of minors, with respect to which they are placed on the same footing as adults, are crimes. From the moment they are able to discern between right and wrong, infancy ceases to form an excuse for crimes; at least this is the general rule; and the few exceptions will be stated when we come to treat of criminal law. (d) When testamentary guardians

(a) The marriage of a female ward determines the guardianship as to her person, but not as to her estate; and on the marriage of a female guardian, the probate court is to appoint a new guardian. Act of April 12, 1858, § 12, 34.

(b) See Bingham on Infancy; McPherson on Infancy.

(c) Where a statutory guardian appears and defends a suit for his ward, it has the same effect under 1 S. & C. 673, as if he had been expressly appointed guardian ad litem by the court. Rankin v. Kemp, 21 Ohio St. 651.

(d)" The capacity of infants to commit crimes, their punishableness for criminal offences, their liability civilly for various wrongs not connected in any sense with contracts, as, for instance, for battery or slander, to say nothing of the clear right in some circumstances to maintain trover against them, are of universal recognition. But questions which have not been considered free from difficulty; whether, or how