herself most deeply affected by the injury done to his daughter. The law does not allow that the parent, as such, is interested in his child to that extent, nor even, if he were, would it allow him to bring an action merely for the injured feelings of himself and family, that species of injury forming no legal cause of action. But treating the parent as the master, and the seduced daughter as his servant, the law gives him a right of action for the loss of her services on precisely the same ground as a master is entitled to sue for a corporal injury done to his servant. "The foundation of the action by a father to recover damages against the wrongdoer for the seduction of his daughter has been uniformly placed, from the earliest time hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest. It has, therefore, always been held that the loss of service must be alleged in the declaration, and that loss of service must be proved at the trial, or the plaintiff must fail. It is the invasion of the legal right of the master to the services of his servant that gives him the right of action for beating his servant, and it is the invasion of the same legal right, and no other, which gives the father the right of action against the seducer of his daughter.'

* Judgment of Tindal, C.J., in Grinnell v. Wells, 7 Manning & Granger's Reports, p. 1041.

Proceeding upon this principle it is necessary, in order to support this action, that the girl should be to a certain extent in the service of the parent; and the courts of law have been frequently called upon to decide what acts of service are a sufficient foundation for the action.

On the other hand, as the right of action is founded on the relationship of master and servant, it follows that the party bringing the action need not necessarily be the father or mother, or even a relation of the seduced girl, for it may be maintained for the seduction of an adopted child, or, on the other hand, the action may be brought by any master, although not standing in the relation of a parent. The age of the servant is also immaterial. As, however, an action cannot be maintained by a father for the seduction of his daughter, though under age, while she was in the service of another person, no person is in the position to bring the action if the seducer was the master or person in whose service the girl was.

*

Formerly, by the common law, a parent was entitled to an action for marrying his heir without his consent, because he lost the value of his marriage, to which, under the military tenures, he was entitled. The statute 12 Charles II. cap. 24., abolishing the then existing remnants of military tenures, contains a clause (sec. 8.) which, after giving a farther power to dispose by deed

* See the law and cases cited in Selwyn's Nisi Prius, 11th edit. p. 1112.

or will of the custody of his children under twentyone years of age, gives the guardians power to maintain "an action of ravishment of ward, or trespass, against any person or persons who shall wrongfully take away or detain such child or children, and shall and may recover damages for the same in the said action for the use and benefit of such child or children."

This provision was passed to meet cases where wards are carried off, on account of their property, and applies to boys as well as girls. It may be observed, moreover, that the provision is obsolete in practice, application in such cases being generally made to the court of chancery, the guardian of all infants. Blackstone intimated his opinion that, independently of the above right in respect of his heir's marriage, a parent was entitled to maintain an action for the abduction of any of his children, having an interest in them all, and that this right, being independent of all question as to abolished tenures, still exists. Numerous cases of a recent date, however, are inconsistent with the recognition by our courts of any such right, and the opinion of Blackstone must be considered as overruled.†

Although the principle on which the right of action in a parent, in case of seduction, is founded by our law, has been confirmed by a series of decisions from

*See Commentaries, vol. iii. p. 140, 141.

† Stephen's Commentaries, 1st edit. vol. iii. p. 538.

which it is now impossible to escape, it may be doubted whether the courts would arrive at the same result if the whole question were allowed to be re-opened, and whether they would not hesitate to violate the law of nature so far as to declare that the seduction of a daughter is no injury to a parent.

From the consideration of the low tone and false principle on which the decisions of our courts are based in this respect, it is refreshing to turn to the law of Scotland, where higher considerations have been permitted to prevail. By the laws of that country the woman herself may maintain an action for seduction under certain circumstances. Thus where the seduction was accomplished under a promise of marriage, when the seduction amounts to a stuprum fraudulentum; so also if the seducer allured the woman to his embraces with the hope of marriage, though without an explicit promise, he is liable in a sum to her by way of damages.*

Considerable difference of opinion has existed as to what particular circumstances entitle the woman to the action. It seems clear that seduction accompanied by pregnancy does not of itself give the right, and that

"He

*M'Douall's Institutes of the Laws of Scotland, book i. tit. 5. § 64. The right of action in this case is in accordance with the spirit of the civil law, which required the man to marry the girl. who shall entice a virgin to prostitute herself on the promise of marriage, shall be bound to make good that engagement." Puffendorf, lib. 3. c. 1. § 10.; Grotius, de Jure Belli et Pacis, lib. ii. c. 17.

there must be some design and fraud or unfair advantage taken on the part of the seducer.*

In a recent case it was contended that to constitute seduction it was necessary that the woman should prove not merely that she had surrendered her person and had received marks of attention, but that the illicit intercourse had been occasioned by the man having practised such treacherous devices as were calculated to eradicate virtuous principles from the bosom of a modest and pureminded woman. On the other side, it was answered that it was sufficient to constitute seduction that the virtue of the woman had been overcome by false pretences, and that in the case before the court it being proved that the defendant had been paying his addresses to the girl ostensibly with a view to marriage, and was received by her friends on that footing, and had expressed himself to that effect in her and their presence, and having taken advantage of the impression upon her mind that his intentions were honourable, to deprive her of her virtue, he was guilty of a stuprum fraudulentum ; and the court of session decided in accordance with that view. "The doctrine maintained by the advocator," said Lord Hermand, "is not only contrary to the law of Scotland, but is contrary to every moral principle. His conduct here has been most disgraceful. He did every thing in his power to gain the affections of

Hislop v Ker, July 15. 1696; Decisions of the Court of Session, 13,908.