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pulsory education a realized fact, it will probably be settled in favor of the power of the State to impose this duty.

$ 169. Child's duty to support indigent parents. Blackstone says: “ The duties of children to their parents arise from a principle of natural justice and retribution. For to those who gave us existence, we naturally owe subjection and obedience during our minority, and honor and reverence ever after ; they who protected us in the weakness of infancy are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need of assistance."1 In the support of the claim of a moral duty the reasons assigned by Blackstone are all sufficient, but they cannot constitute the basis of a legal duty. Independently of statute in England and in this country, the child is under no legal duty to support its aged parents. But statutes have been passed in England and in most of of the United States, providing for the legal enforcement of this obligation, at least to the extent of relieving the public from the support of the paupers. The same legal duty has been imposed upon children by the laws of other countries, for example, the Athenians. On what ground can the imposition of these statutory duties be justified? Gratitude is the reason assigned by Blackstone for the exaction of the moral duty. Will the law undertake to compel children to manifest to their parents gratitude for past care and maintenance ? That is clearly not the object of the statutes. Their object is to relieve the community of the necessity to support the aged and indigent. As a protection against an increased public burden, the law compels the child to support his parents. The State has a clear right to compel the parent to maintain his infant child, because the father or mother is responsible for its birth. They brought the child into the world, primarily and, in ordinary cases, chiefly to gratify their own desires ; and it is but just that the State should compel the parents to relieve the community of the necessity of supporting their offspring. But the child has done nothing, which in any legal sense would make him responsible to the public to provide his aged parents with the means of support. The law can never be invoked for the purpose of enforcing pure moral obligations; nor can a law be justified by the fact that its enforcement compels incidentally the performance of a moral or religious duty. Clearly, there is no reason arising out of the relation of parent and child, upon which can be rested a legal duty of the child to support the parent. If it can be justified on constitutional grounds at all, as an exercise of police power, it can only be as a special tax upon the child, and is constitutional or not, according as special taxes are permitted or prohibited by the limitations of the constitution.

11 Bl. Com. 453.

? Rex v. Munder, 1 Stra. 190; Lebanon v. Griffin, 45 N. H. 558; Stone v. Stone, 32 Conn. 142; Edwards v. Davis, 16 Johns. 281; Reeve Dom. Rel. 284.

8 Schouler Dom. Rel. 365; 2 Kept, 208. 4 1 Bl. Com. 453; 2 Kent's Com. 207.

f 170. Relation of guardian and ward altogether subject to State regulation. — Inasmuch as the guardian is ordinarily appointed by a court of the State in which the minor resides, there can be no doubt that the rights, obligations and duties of guardian and ward to each other are subject to the almost unlimited control of the State. The guardianship is instituted for the benefit of the minor, and it is for the legislature to determine what will advance his interests. But there is some doubt involved in determining the limitations of police power in the control and regulation of the powers and duties of

$ 171. Testamentary guardians. — They are those who are appointed by testament by the parent of the minor child. It is permitted by the law of England and of the United States for the father to appoint by testament a guardian by will, and it might very well be urged that if the parent has a natural right to the care and control of his minor child, he would have a right to determine who shall succeed him in the enjoyment of this right. The one position is no more unreasonable than the other. But the argument in favor of the right to appoint testamentary guardians is historically weakened by the fact that it did not exist at common law, the privilege being granted for the first time by statute (12 Charles, II). “ It is clear by the common law a man could not, by any testamentary disposition, affect either his land or the guardianship of his children.”] It is our own opinion that all guardianships are trusts or privileges, and do not confer upon the guardians any absolute rights; and such has been the conclusion of the courts, in the few cases in which the question has been raised.?

1 Lord Alvanley in Ex parte Chester, 7 Ves. 370. But see Coke Lit. 870, in which there are statements calculated to throw doubt upon the correctness of this position, at least so far as the guardianship of the ward's person is concerned.

? Beaufort v. Berty, 1 P. Wms. 703; Gilbert v. Schwenck, 14 M. & W. 488.

§ 171





SECTION 175. Terms “ master and servant" defined.

176. Relation purely voluntary.
177. Apprentices.
178. State regulation of private employments.
179. State regulation of public employments.

§ 175. Terms “master and servant" defined. - Although these terms were originally referable only to the case of menial or domestic servant, making one of the domestic relations, strictly so-called, they have been so extended in their application as now to be synonymous with employer and employee. A servant in the legal sense includes now, not only the menial servants of the household, but every class of persons, who for a compensation obligate themselves to render certain services to another. It may be true that in another age and under an earlier civilization, “the relation of master and servant presupposes two parties who stand on an unequal footing in their mutual dealings ;'' ? but that cannot be said of the relation at the present day, and under the American law. Certain employments denote and compel the recognition of social inferiority. But in the sight of the law the servant stands on a plane of equality with his master, and the constitution guarantees a like protection to the rights of both.

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§ 176. Relation purely voluntary. The relation of master and servant is purely voluntary, resting upon the contract of the parties, and as a general proposition it must ever remain voluntary. The relation ordinarily cannot rest upon compulsion. Every man bas a natural right to hire his services to any one he pleases, or refrain from such hiring; and so, likewise, it is the right of every one to determine whose services he will hire. “ It is a part of every man's civil rights,” says Mr. Cooley,' “ that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with any one with whom he can make contracts; and if he is wrongfully deprived of this right by others, he is entitled to redress." This natural right is not limited simply to the formation of the relation of master and servant. Each party has the right to stipulate the terms and conditions upon which he will enter into the relation and refuse to form it, if the other party declines to yield to his demands. Government, therefore, cannot exert any restraint upon the actions of the parties, nor interfere, except at the call of one of the parties, to enforce his rights under the contract which constitutes the basis of the relation. The law may establish certain presumptions of the intentions of the parties, where they have not expressly agreed otherwise ; but the right to agree upon whatever terms they please cannot be in any way abridged, as long as there is no trespass upon the rights of third parties or of the public.

i See Schouler Dom. Rel. 599. : Schouler Dom. Rel. 599.

§ 177. Apprentices. — But apprenticeships constitute an exception to this general rule; the ground for the exception being the minority of the apprentice when he enters into service. His right to make a valid contract for apprenticeship constitutes a legal exception to his general disability, and is, therefore, subject to whatever regulations

1 Cooley on Torts, p. 278.

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