principles upon which it is exercised will be considered hereafter. Where the father and 5. The mother's right of correction. 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. 991 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." 48] *Reeves' says: "Mothers, during coverture, exercise authority over their children; but in a legal point of view they are considered as agents for their husbands, having no legal authority of their own." Whatever may be the exact legal character in which she holds the rod, she generally applies it with as much freedom and spirit as if she were acting upon an inherent right of her own. Indeed, it is one way she has of securing that reverence and respect which are admitted to be her due. On the death of the father, the mother remaining at the head of the family, succeeds to his rights of custody and control over the children.' And this principle applies in case of the civil death 11 Black. 453; Commonwealth v. Murray, 4 Binn. 487. 2 Cod. viii, tit. 47, § 4; Forsyth on Infants, 5. Dom. Rel. 295. 42 Kent, 203; Dedham ". Natick, 16 Mass. 135; Nightingale v. Whittington, 15 Mass. 272; Jones v. Tevis, 4 Litt. 25; Osborn v. Allen, 2 Dutch. 388; People v. Wilcox, 22 Barb. 178. In re North, 11 Jur. 7, custody of minor children was denied to the mother, being Roman catholic, the father who was dead having been a protestant. The children had been taken away from the mother without her consent by their paternal grandmother, and the custody was sought by the mother upon habeas corpus. of the father; as where the father was convicted of felony and in custody under sentence of transportation, a writ of habeas corpus was granted to the mother to take their child from its aunt and deliver it to the mother.' *SECTION IV. [49 LIMITATIONS ARISING FROM THE RELATION OF GUARDIAN AND WARD. 1. General nature of the relation of guardian and ward. 2. Guardianship over idiots and lunatics. 3. Guardianship over infants. 4. The guardian's right to change his ward's domicil. 1. General nature of the relation of guardian and ward. - The relation of guardian and ward usually applies only to infants. The guardian may be invested with authority over the person and not the property, or over the property and not the person, or over both the person and property of his ward. The relation, however, with similar powers, has been extended in some states to idiots and lunatics of whatever age; and in others, to inveterate drunkards, though as to them power has only been given over their estates. There were several kinds of guardianship at common law, but the only one subsisting in this country, independent of statutory provision, is that of guardianship by nature. This denotes nothing more than the relation of parent and child, the nature of which and the reciprocal obligation of the parties under it, have already been sufficiently considered. In all other cases than that of guardianship by nature, the relation is created by judicial or testamentary appointment, under statutes prescribing the mode and conditions of the appointment, and defining, with various 1 Ex parte Bailey, 6 Dowl. Pr. Cas. 311. degrees of particularity in different states, the powers and duties of the guardian. 50] *2. Guardianship over idiots and lunatics. In some of the states these unfortunate persons are committed to the custody of public officers and kept in asylums maintained at the public expense. In such cases there is not, technically speaking, the relation of guardian and ward. There is, however, a power of restraint involved and necessarily conferred. In other states the custody is committed to private persons of suitable qualifications, who are sometimes denominated "committees." The relation being of statutory origin in both cases, reference must be had to the statutes to ascertain what measure of power of personal restraint has been conferred. 3. Guardianship over infants. This too is a relation created by statute; for, as we have seen, the common law guardianship by nature is embraced in the relation of parent and child. But the statutory relation of guardian and ward in the case of infants, where it is not otherwise provided by statute, has some common law incidents which it is proper to notice. Where the guardianship includes the custody of the person, and is not otherwise limited by statute, "the power and reciprocal duty," Blackstone says, "of the guardian and ward are the same, pro tempore, as that of a parent and child." But there are some important distinctions between these relations which deserve notice.' "A guardian," says Mr. Justice Woodbury, in the case of Hancock v. Hamstead," "though in loco parentis as to a few purposes, has no absolute control over the 51] person or services of the *ward." The guardian is under no obligation to maintain the ward with his own 1 Schouler's Domestic Relations, 448. funds; nor is he entitled to the services of the ward; nor can he bind him out to service, unless under particular statutory provisions. The ward is not the servant of the guardian in the same sense that a child is of the parent, or that an apprentice is of the master." Accordingly, Kent, with more caution, says: "The relation of guardian and ward is nearly allied to that of parent and child."* And Swift, in his Commentaries, says: "The power and duty of guardian and ward, in a great measure, correspond to that of parent and child." There is nothing expressly said by Blackstone, Kent or Swift touching the guardian's right to administer moderate corporeal correction to the ward. This right, or rather duty, undoubtedly exists. By the laws of most of the states males of the age of fourteen years and females of the age of twelve, are authorized, their parents being dead, to choose guardians. And at those ages children may be said to have arrived respectively at what is called the "age of discretion." Where the ward is within this "age of discretion" it is plain enough that the guardian possesses the right and that it is clearly his duty, on proper occasions, in a reasonable manner, to correct his ward for misbehavior, with the rod if in his judgment that mode of correction be necessary. And especially is this true where the ward resides in the family of his guardian. In such a case it is important to allow the guardian to employ the usual means of discipline not only for the benefit of the *ward but also to enable him to execute his reason- [52 able plan of family government. For no man fit to be entrusted with the training up of a child, would take the infant stranger under his roof to educate with any 1 Spring v. Woodworth, 4 Allen, 326; Barnum v. Frost, 17 Grattan, 398; Overton v. Beavers, 19 Ark. 623; Schouler's Domestic Relations, 454. * Velde v. Levering, 2 Rawle, 269; Leech v. Agnew, 7 Barr, 21. 32 Kent, 236. 4 Townsend v. Kendall, Min. 418; State v. Alford, 68 N. C. 322. In that case the right was asserted of a person living with a woman as man and wife to chastise reasonably, a son of the woman. privilege to misbehave, or escape the punishment usually inflicted on his own children for misconduct. It would not be safe, perhaps, to deny that in a case of flagrant misbehavior the guardian possesses the right to chastise his ward when of somewhat riper years. But when, by reason of the advanced age of the ward this mode of correction becomes deeply humiliating, as well as painful, it is safe perhaps to say that the right cannot lawfully be exercised unless it appear that there was probable cause for it, and that all other means of correction less severe were inadequate. 4. The guardian's right to change his ward's domicil. The power of the guardian in respect to changing the domicil of his ward is more restricted than that belonging to the parent. Whether the guardian can change it at all out of the general territorial jurisdiction of the court from which he receives his appointment has been a controverted point. It has been held in Massachusetts that he could, and in Pennsylvania that he could not; but it seems to be agreed that he cannot do it wantonly, but must act in good faith and reasonably in his character as guardian.' Viewing the guardianship simply as a personal relation, it would seem difficult to maintain the right of personal control beyond the jurisdiction where it is created, and where, only, the obligations arising under it can be properly enforced.' 1 2 Kent's Com. 227, note; Townsend v. Kendall, 4 Min. 418. In this case the court say "it is quite well settled in England that a guardian may change the residence of his ward from one state or country to another, when that change will be for the benefit of the ward." See also Wood v. Wood, 5 Paige's Ch. 605; Schouler's Domestic Relations, 452, et seq. 2 Leonard v. Putnam, 51 N. H. 252, where it was held that the rights and powers of guardians are considered as strictly local and as not entitling them to exercise any authority over the person or personal property of their wards in other states. In Woodworth v. Sping, 4 Allen (Mass.), 325, the court says: “Nor *** can a guardian appointed by virtue of the statutes of another state exercise any authority here over the person or property of his ward. His rights and powers are strictly local, and circumscribed by the jurisdiction of the government which clothed him with the office. Morril v. Dickey, 1 John. |