lation of parent and child, even after the child has attained majority, but it must be shown, in such cases, that there was intended a contract for wages and services.

Being entitled to the services of his minor child, it follows, the father may recover their value, if rendered by the minor to other persons, and it seems, that he may so recover where the services were performed in an unlawful business, if the father did not know the character of the service.

Kempton, 2 Gray, 257.

Emery vs.

A father may, of course, by agreement with his minor child, relinquish to him the right which he would otherwise have to his services, and thereby authorize those who employ him to pay him his own earnings. An emancipation may be inferred, where a father leaves his child to manage and contract for himself for several years. The father is entitled to the writ of habeas corpus to enable him to obtain the custody of his children, when they are improperly detained from him; but 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. The courts will consult also the inclination of the child, if he be of sufficiently mature age and intelligence to judge for himself, and they will even control the right of the father to the possession and education of his child, in a case in which the best interest of the child seem to warrant it.

The right of the father to the custody of the children is ordinarily held superior to that of the mother, unless where the child is very young, or where it appears that, if in the custody of the father, it would be exposed to cruelty or corruption.

As to protection, a parent may exercise the same means of offense and defense in the protection of his child, that he would be entitled to exercise in the protection of his own person but, while he is permitted so to protect his child, the law does not compel him to do it, nor punish him if he does not do it.

As to education, the duty rests as a moral obligation firmly and persuasively upon the parents, but whether it can be compulsorily enforced, except where there are express statute provisions relating thereto, may be doubted. Walker, in his treatise on American Law, says, a "parent of 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." But the statutes of several of the States make it obligatory upon parents to cause their children to be instructed in certain prescribed elementary branches; and statutes sometimes also provide, that no child, under a limited age, shall be employed to labor in any business, unless he shall have attended a competent school a number of months during the preceding year. Great pains have been taken, and liberal provision made, in this country, to render ordinary instruction accessible to all; and, in many of the States, the maintenance of the public schools is provided for in their constitutions. These provisions for the support of common schools render it easy and inexpensive, in most of the States, for parents to confer upon their children a good and substantial education.

SECTION 2.

Obligations of Children.

Chancellor Kent says, that "the duties enjoined upon children to their parents are, obedience and assistance during their own minority, and gratitude and reverence during the rest of their lives." These duties have been, to some extent, in most of the States, regulated by statute law. It is generally made the duty of children, to support their parents and grand-parents, if they are unable to support themselves; and this obligation is imposed upon all children, male and female alike, if they have the ability.

SECTION 3.

Of Illegitimate Children.

Marriage is the only source of legitimacy; and parents must sustain to each other the relations of husband and wife, to make the offspring legitimate. Neither is it sufficient that they sustain to each other that relation de facto: they must be lawfully married. Where, therefore, marriage has been solemnized between parties, and they have cohabited as husband and wife, supposing themselves to be really such, if it turns out that either of them had, although unknown to them, a former husband or wife living, children born to them during such cohabitation will be illegitimate.

Marriage and cohabitation of parents raises a presumption of legitimacy, which can be rebutted only by showing circumstances rendering it impossible that the husband should. be the father; as absence from the country, impotency, and the like. An illegitimate child has no right of inheritance. at common law; and this is so, even where the father acknowledges him to be his son, or intermarries with the mother after his birth. This rule is reversed, as to the effect of a subsequent intermarriage, by the Civil Code of Louisiana, and by statute in many of the other States. It is also frequently provided, by statute regulation, that an illegitimate child may be heir to his mother and this rule of inheritance is sometimes reciprocal between the mother and such son. In most of the States there are statute provisions for the public indemnity, by charging the support of such children on the real father. If such child is adopted by his reputed father, he may thereby become liable upon implied contracts for the necessary maintenance of such child, without compulsory order and as if he were legitimate. Such adoption must be voluntary, and with the consent of the mother, for she has a right to the custody and control of an illegitimate child, as against the father, and is its natural guardian.

This subject is fully considered by Chancellor Kent, in his 29th Lecture, and by Chief Justice Reeve, in his work on the Domestic Relations.

CHAPTER XXXV.

OF GUARDIAN AND WARD.

THE relation of guardian and ward is not, like that of parent and child, founded in nature, but owes its origin to legal provision. It usually takes place on the death of the father, and the guardian is intended to supply his place. It may also exist during the life of the father, where the minor has separate property which needs care. It, therefore, sometimes happens, that one person is guardian of the person, and another of the estate of the minor, though the same person may properly fill both places. A minor, when under this relation, is denominated a ward, and the guardian is authorized to act for him, in all matters where the law requires action, and where the ward is incapable of acting for himself.

There are two general kinds of guardianships: one by the common law, and the other by statute. And guardianship at common law is again divided into several kinds, as guardians by nature, guardians for nurture, and guardians in socage; of which it will not be necessary for us separately to treat. The father, during his life, and on his death the mother, is guardian by nature, their authority extending over the person only. It was a doubtful question for some time, whether a guardian by nature was entitled to the possession and control of the estate of the infant, and could discharge an executor on account of a legacy due to the child: but it is now generally held that he cannot. If, therefore, a child become vested with personal property, no person is strictly entitled to take it, till a guardian has been duly appointed by proper authority. The law in Connecticut was declared to be differ ent, in a case in the 31 Conn.: but the rule has been changed by statute in that State, and now conforms to the common law doctrine, as generally received. The father has the first

claim to guardianship of the estate of his child, and, if a suitable person, is usually appointed, upon giving proper security for the care and preservation thereof. The mother has the claim next in order.

Guardianship is a personal trust, not transmissible by succession or assignment. They are generally appointed in this country by courts of probate, in pursuance of special statute regulations.

The guardian has the entire control of the personal estate of his ward, so far as its investment, reinvestment, and general management are concerned, subject, however, to the authority appointing him, during the guardianship, and at its closc. He has no further concern with the real estate, than to attend to the leasing thereof and the receipt of the rents and profits. His authority to lease is only during the minority of the ward, and he can never sell real estate without special authorization of the authority appointing him, or of a court of chancery.

The condition of the guardian is one of care, obligation, and duty, and can, in no case, be made one of speculation and profit. He can never act for his own benefit in any contract, purchase, or sale of the estate of his ward, nor derive personal benefit from the use of the ward's money. If a debt be settled by him upon beneficial terms, or purchased at a discount, the benefit results entirely to the ward. If he is guilty of negligence, and loss results therefrom, he must sustain it. He may be called to an account, at common law, by the infant, within a period usually limited by statute, after he comes of age; and the infant may while under age, by his next friend, call him to account by bill in chancery.

If a guardian trades with his ward's money, the ward will be entitled at his majority to elect to take the profits, or the principal sum employed with interest. So, if he negligently omits to invest the ward's money, he will, in all cases, be chargeable with interest, and the court, in a case of gross delinquency, will compound it.

No guardian, as such, is bound to maintain his ward at his own expense; and any expense incurred by him in support