they are their natural protectors, for maintenance and education." 2 Kent, 203.

This power over the person of the child ceases on its arrival at the age of majority, which has been variously established in different countries.

It thus appears that the parent is entitled to the custody of his child for certain important ends chiefly affecting the welfare of the child. When necessary to the discharge of his parental duty he may resort to corporeal discipline. He may and should in proper cases inflict moderate chastisement. He may impose such temporary confinement as may be necessary to secure obedience to his reasonable commands, so that it is not prejudicial to the life, limb or health of the child.

The law prescribes no form of parental discipline. It designates the purposes for which it may be employed, and confers adequate power for its administration; yet while it authorizes confinement or chastisement, it exacts moderation and punishes cruelty as a crime. Fost, 262; 1 East P. C., 261; 1 Hale P. C., 454; Johnson v. The State, 2 Humph., 283.

2. The parent's right of chastisement. It is admitted to be a point of some difficulty to determine with precision when a parent has exceeded the bounds of moderation. An eminent author arrives at the following conclusion: "The true ground on which this ought to be placed is, that the parent ought to be considered as acting in a judicial capacity, when he corrects; and of course not liable for errors of opinion; and although the punishment should appear

to the triers unreasonably severe and in no measure proportioned to the offence, yet if it should also appear that the parent acted conscientiously, and from motives of duty, no verdict ought to be found against him. But when the punishment is in their opinion thus unreasonable, and it appears that the parent acted malo animo, from wicked motives, under the influence of an unsocial heart, he ought to be liable to damages. For error of opinion he ought to be excused; but for malice of heart, he must not be shielded from the just claims of the child. Whether there was malice, may be collected from the circumstances attending the punishment. The instrument used, the time when, the place where, the temper of heart exhibited at the time, may all unite in demonstrating what the motives were which influenced the parent. These obligations are equally applicable to the case of a schoolmaster, or to any one who acts in loco parentis." Reeves' Dom. Rel., 287.

Express malice is justly made the test of parental liability; but is it the true test of the liability of the schoolmaster and others who act in loco parentis? Are there not weighty reasons for holding the schoolmaster, especially, to a stricter accountability than the parent?

There is a material difference in their relations. One has the custody of the child from a natural and undeclinable duty. He is actuated by a peculiar, ever-wakeful solicitude for his offspring. The idea of paternity, which is allied to that of property, suggests a claim of dominion, which, though reduced by law

to a mere right of custody, remains a hidden but active principle in parental government, sometimes prompting to cruel punishment, sometimes to fatal indulgence. The other is a volunteer. He has ample leisure to count the cost before he incurs responsibility, and generally has an eye to the profit. His obligation arises from express contract. He may feel an interest in the welfare of the child, but how unlike that which pervades the parent's breast! Moreover he undertakes the care and custody of the child, whether it be for instruction in some art, in letters, in manners or in general industry, as a special business, for which he claims to be qualified in knowledge, in judgment and the needful art of government-a qualification required by law in some of the domestic relations and to be overlooked in none.

In view of these considerations and others that might be named, ought the substitute of the parent, especially the schoolmaster, to be allowed the full benefit of the parent's plea of infirmity of temper and error of judgment for unreasonable chastisement of the child?

Ought not the substitute in all cases to be held responsible when he inflicts punishment without probable cause—that is, a reasonable ground, under the circumstances of the particular case, for its infliction? At the least should he escape responsibility where he inflicts it wantonly, though there may not be express malice?

3. The parent's right of confinement. Temporary confinement is allowed as a means of enforcing obedience to reasonable commands. But this power

must also be exercised in moderation. The life of the child must not be endangered, nor its health sacrificed or unreasonably exposed; nor its limbs paralyzed or injured; nor can it be imposed to the prejudice of the child from sheer malice of heart.

The right of custody ceases, as we have seen, on the arrival of the child at majority. The rule admits of no exception but that of idiocy or other grievous disability of the child, where, in the absence of the intervention of the state, the custody should remain with the parent while the disability continues. Upton v. Northbridge, 15 Mass., 237; The Town of Oxford v. The Town of Rumney, 3 N. H., 331.

4. The power of emancipation. The child may be emancipated by the express consent of the parent, or by his conduct; as, by sending the child away or suffering it to go forth to shift for itself or to contract matrimony. Chitty Con., 154 note, 9th ed.; 2 Kent, 194, note; Dick v. Grissom, 1 Freem. Ch. R., 428.

It may be emancipated also by the gross neglect of the parent; also by cruel treatment. "A father who turns his daughter out of his house upon the world to shift for herself, thereby relinquishes his paternal right in relation to her person and absolves her from filial allegiance." Stansbury v. Berton, 7 Watts and Serg., 362.

It does not follow, however, that because he may forfeit his right of custody by gross neglect or cruelty he at the same time absolves himself from his obligation of maintenance. Where an infant child escapes from his father for fear of personal violence and abuse and cannot with safety live with him, the father is

liable for necessary support and education furnished to such child by a stranger. Stanton v. Willson, 3 Day, 37; 2 Kent, 193.

Such liability may not arise, perhaps, in such a case, where there are statutory provisions for enforcing the duty of maintenance. Gordon v. Potter, 17 Verm., 348.

Besides the liability to lose the right of custody of their children in the ways above noticed, parents may also for other reasons be deprived of it by "courts of justice, which may in their sound discretion and when the morals 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." 2 Kent, 205.

The jurisdiction of the courts in such cases and the principles upon which it is exercised will be

considered hereafter.

5. The mother's right of correction. Where the father and mother reside together the general custody of the children is vested in him as the head and governor of the family. The mother, however, has a share in that custody; not independently of the father nor of equal extent, but sufficient to demand of her, the father not forbidding, an active part in the discipline of the children.

It has been said that "a mother, as such, is entitled to no power, but only to reverence and respect." 1 Black, 453; Commonwealth v. Murray, 4 Binn., 487.

The Roman law not only enjoined the duty of reverence and respect to the mother but "punished any flagrant instance of the want of it." Cod., viii., tit. 47, § 4; Forsyth on Infants, 5.