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habits? What rational distinction could be drawn as to the means of mischief, when the mischief itself was all to which the court had to look ? We leave to casuists the task of adjusting the balance of mischievous tendency, the nice excess of pernicious influence, between the atheism of Mr. Shelley and the impurities of Mr. Long Wellesley. We leave to quibblers to contend that the precedent in Kiffin v. Kiffin, of a drunken father, could not apply to the case of a water-drinking infidel, in Shelley v. Westbrook; nor the decision, in the latter cause, to the instance of a full-blown voluptuary demoralizing his offspring by example and precept, in Wellesley v. the Duke of Beaufort. Lord Eldon, with all his subtlety of understanding, (which those only decry whose shallow legal knowledge and superficial habits of thinking disqualify them for appreciating it,) never suffered himself to be fettered by any such cobwebs, in following up the clear principle of the jurisdiction to cases obviously within its scope. It required but a small portion of his sagacity to see, that, whether the ward of his court was in danger of being educated as an infidel, as a despiser of received moral principles, or as a practical debauchee, it equally became imperative on the court, acting on its own principles, and keeping up the consistency in spirit of its decisions, to rescue the child from the danger.
But this leads us from the consideration of the now firmed authority of the Court of Chancery, as a matter of law, to inquire for a moment into the propriety and policy of admitting a jurisdiction of the nature which is thus established. Whatever may have been the barbarous notions on the subject of paternal authority recognized by the Roman law, and adopted into the moral opinions peculiar to their condition of society, it is clear that, in every civilized Christian state, all idea of paternal power, as existing absolutely for the benefit and as an unqualified right of the parent, is now totally exploded. The maxims which would
* It is worthy of remark, that the modern French law distinctly adopts the principle of depriving the father or the mother of the guardianship of their children, on the ground of notorious misconduct (“ inconduite notoire,') although such conduct does not deprive them of the usufruct of such portion of their children's property as they are entitled to by law.-Code Civil, art. 444, 389. Manuel de Droit Français par Pailliet, p. 137, 151, notes. In 1868, the Cour Royale of Bourdeaux held that a secret correspondence discovered to be carried on by a mother, proving an illicit connexion, did not amount to such evidence of inconduite notoire' as to form a ground for depriv, ing her of the guardianship.-Pailliet, 151. But in 1809, the court of Aix decided, that on clear proof of the facts of pregnancy and delivery of an illegitimate child, a sentence of deprivation must pass against the mother (ibid.); if a father, deprived for misconduct of the guardianship, desires to be replaced, as having changed his conduct, he must address himself to what the French law calls the conseil de famille, who are to decide whether his conduct is changed or not.—Court of Besançon, 1806. Pailliet., &c. 152. In cases of separation between husband and wise, the father's right to the children is altogether rejected, and the courts entrust the children to him or to the mother, or to a third person, exactly as the interests of the child render expedient.-Pailliet, p. 134, note (e).
treat infants as a species of property, to which, by progeneration, a father acquired an indefeasible right and title, are as little congenial to our habits of thinking, as they are countenanced by the jurisprudence of our courts. Christianity and improved morals have alike taught us to regard them as beings capable of acquiring rights; as the objects of the most binding duties; and being the germs from which the good or evil of a future generation must spring, to consider them as creatures of the highest importance to their families and to the state. We know, therefore, in these days, and in this country, nothing of parental power, except as the creature and attendant of parental duties. Paternal authority is with us the mere instrument of paternal obligations—exercised solely and strictly as a trust for the benefit of those to whom it extends. Instead of following the Roman code, in investing the father of a family with a sort of despotic majesty, falsely associated with the character of a creator, we rationally regard him but as the responsible guardian and educator of his children. Let us observe, for a moment, the barbarous and irrational system built up by the Roman jurisprudence upon the sophistical principle of the absolute rights of fathers of a proprietary dominion in parents over their children, wholly independent of duty towards them. By the Roman law, founded on an institute of Romulus, and transplanted into the Twelve Tables, and from thence handed down by the Roman jurists, children begotten in lawful nuptials, and their issue, were in the paternal dominion of the father. The extent of this power, known by the name of the 'dominium juris Quiri-tium,' is declared by Justinian to be unknown to other nations. Alluding to the father's autocratic authority, Quintilian uses the phrase patria majestas ;' and by Ulpian, the father is styled
familia princeps. The distinction of the jurists was, that the Roman infant was, in respect to other men, a
person;-in respect to the state, a citizen ; in respect to the father, a thing. As a mere chattel could not procreate any being of personal rights, it followed that all the children and grandchildren of the son were also the absolute property of the father during his life; and as it was impossible for a thing to acquire property, it followed that all property acquired by the son instantly vested in the father. Not only might the father incarcerate and corporally punish his son at any period of life ; confine him, chained to the most slavish task-work; sell him as a slave; but, in right of his sovereign and judicial authority, as a judex domesticus,' or domesticus magistratus,' in the language of Seneca, he might adjudge him to banishment or to death, and execute the sentence himself. * The dominion of the parent endured for his
* Cassius is said, by Valerius Maximus, to have been thus put to death by his father; the son of Fabius Eburnus, by Quintilian, Declamat. iii. mentioned by Val. Max. ibid. Fulvius is mentioned by Sallust, de Bello Catil., 39.
Scaurus is also
life, and even the attainment by the son of the highest offices and honours in the state had only the effect of suspending the father's power, which revived when the official dignity ceased. This rigour of the ancient law was only tardily mitigated by milder institutions. It was not till the time of Trajan, that the father's right of taking his son's life was restrained. Hadrian, following him, sentenced to deportation a father who slew his son in hunting, on account of a suspicion of adultery. In the reign of Alexander Severus, it became customary for sons heinously offending, to be taken before the magistrate, though still the father often dictated the sentence to be inflicted. The power of life and death was finally taken away by Constantine, and transferred to the judicial authorities by a constitution of Valentinian. The inhuman power of thrice selling was abolished by an edict of Diocletian-while Constantine solely permitted the sale of infants just born, inopie causa,' in order to check the frequent occurrence of a greater evilchild-murder, and exposure in the streets. The right of acquiring property was also gradually obtained by infants under the empe
At first the acquisition of the peculium castrense, or property gained in open warfare, was permitted; next other peculia were recognized, -as, that acquired in a liberal profession; next the mother's property was allowed by Constantine to descend to the child ; then property gained by marriage was secured; and Justinian, at last, allowed the child to retain and enjoy property acquired in any manner, except from the possessions of the father.* The paternal authority at last began to be subjected to some slight modification with regard to the father's conduct; and even the Roman code, unnatural as it was on this subject, could not, in times of civilization, reject the principle, that there were bounds beyond which a father's immorality could not be carried without depriving him of the lawful dominion over his offspring. “Si lenones, patres, et domini suis filiabus, vel ancillis peccandi necessitatem imposuerint, liceat filiabus et ancillis, et, episcoporum implorato suffragio, omni miseriarum necessitate absolvi,' is the language of a constitution of the Emperors Theodosius and Valentiniant. By a law found among The Novels of Justinian, it is provided 'ut liberi legitimi incestuosorum (that is, legitimate children by a marriage before the incestuous nuptials) supplicio patris, sui juris fiant, et res patris accipiant;'and by another law in the Codex, any severity of treatment contrary to the natural affection of a parent, seems to have been at last admitted as a ground for an emancipation from the paternal power.* Thus did the latter Romans repudiate the barbarous footsteps of their ancestors, who had followed up to its full extent a false principle unknown in other countries, and especially in this, that the father acquired an absolute right-a property in the offspring of his loins. Thus did even the Roman code at last sanction the principle that the law ought to prevent the paternal authority from being abused to the demoralization of the child.
Pothier, Pandect. Just., lib. i. tit. 6. Heineccius, lib. i. tit. 9. Heinec. Syntag. Antiq. Roman., lib. i. tit. 9, de patria potestate. Heinecc. Element. Jur. Ciy, lib. 9. tit. 6. Muller, Promptuarium Juris, tit. patria potestas. of Cod. tit. iv, 12,
# Just. Novell. xii. cap. 2,
It follows, therefore, from the principle of our religion and our morality, which reject every species of incontrollable authority of man over man, that the parental authority ought to be measured and bounded strictly by the interests and welfare of the child that it is to be regarded as a means, and never as an end-to be rendered, as far as institutions can accomplish, efficacious for the good, powerless for the evil of the infant.
* The rights of parents,' says Paley,' result from their duties. If it be the duty of a parent to educate his children, to form them for a life of industry and virtue, to provide for them situations needful for their subsistence and suited to their circumstances, and to prepare them for those situations, he has a right to such authority, and, in support of that authority, to exercise such discipline as may be necessary for such purposes. The law of nature acknowledges no other foundation of a parent's right over his children besides his duty towards them. This relation confers no property in their persons, or natural dominion over them, as is generally supposed.'t
· The power, then,' says Locke, that parents have over their children, arises from that duty which is incumbent on them, to take care of their offspring during the imperfect state of childhood.' If, then, the authority and rights of fathers are thus dependent on their duties, or, in other words, conditional on the performance of them, it is manifest that the father's rights cease when his duties are unperformed. Few persons would talk of the right of a father to starve his child : to injure his health—to debar him of liberty—such a strain, from the Twelve Tables, would meet with little regard even in ancient or modern Constantinople; and yet we hesitate not to say, that it is precisely as reasonable and as logical to talk of the natural right of a father to teach his son blaspheming and profligate habits. If such example and instruction are contrary to the duty of a parent, it is absurd to talk of his possessing a natural right to give them. A right to commit a breach of duty is a solecism in language. “Proprie enim loquendo parentes non habent ezoucíay sive potestatem, sed authoritatem habent jus jubendi aut prohibendi sed non irritum faciendi,atque etiam ista authoritas exercenda est secundum
et bonum. All question, therefore, as to absolute natural rights of fathers is wholly excluded by the rational morals and the benign religion of * Vinn, Comm, lib. I. tit. 12. † Moral and Political Philosophy, c. x
the present age, which recognize only a qualified right, an authority enjoyed solely for the benefit of the child, and necessarily forfeited when the condition annexed to it is disregarded. Children being thus regarded, not as chattels but as beings, and parents being treated, not as proprietors but as trustees, the question is, whether it is expedient that the rights of infants should be recognized in their full extent by the municipal law of the country, and the duties of parents enforced, and the mischief of their gross transgressions restrained, by the authority of a civil tribunal. Some states have, indeed, in the infancy of their institutions, regarded the education of children as of too high importance to be trusted at all to parents. Considering the state to have an higher interest than the parent in the child's virtue and usefulness, the state has undertaken the education. Such an institution undoubtedly involves too great a sacrifice of paternal feelings and domestic attachments, to be ever reconcilable with the principles or the feelings of Christian communities : while, looking to the mere objects of attaining the best education, and guarding the most surely against pernicious influence and example, a general system, which altogether rejects the influence of parental and filial affection as a means of education, is open to unanswerable objections. But since experience unhappily proves, that even the security of paternal affection occasionally fails—that vicious and irreligious habits, and corrupted principles, will sometimes stifle affection, and still oftener prostrate the moral judgment, and will thus disqualify fathers for the office of useful instructors or safe protectors of their children, ought the state, in wisdom, to provide the means of controlling the authority of parents when directed to the palpable prejudice of their offspring ? Without admitting the Spartan severity, of depriving them of the care of their children altogether, is it wise that any provision should be made for controlling the extreme abuses of their power? Now, if the importance of the objects—the most precious interests of the child, and the incidental advantage of society—are alone considered, no doubt can for a moment be entertained, that such a judicial authority is of the highest advantage, nay, of unquestionable necessity. That the duty of the parent to confer a moral and religious education on his offspring is one of the highest degrees of obligation, and that it is accompanied by a clear unquestionable right in the child to claim such an education at the hands of his parent, no one can possibly deny. For what reason, then, are such sacred duties to be placed beyond the pale of legal enforcement ? why are such precious and incontestable rights to be refused the protection of law? It cannot be contended that the law should be passive on such matters, on the same principle on which it refuses to control the violation of some of the minor obligations of morality, to punish intemperance, de