Tuesday, October 20, 2009

The Law of Persons and of Domestic Relations

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Epaphroditus Peck
Of the Connecticut Bar (LL. B., Yale), Instructor in Domestic Relations in the Yale Law School, 1903-1912.

Callaghan and Company

§ 125. The father's duty to protect and to educate the child.
The father has the rights, and owes to his minor child the duty, of personally protecting him. Such force as one might exert in self-defense he may exert in defense of a child,25 and injuries to a child are recognized as a provocation which may reduce even an unjustifiable homicide from murder to manslaughter .26 This of course applies particularly to carnal abuse of a daughter.

But, as Blackstone says, this duty of protection is assured by a natural impulse, which the law needs to check rather than spur.

The duty of affording to the child an education suited to his needs and capacities, which has always been recognized as a moral duty in so far as it was within the father's power, but with no definite standard fixed and enforced by positive law, has become definite and capable of exact enforcement by our modern school laws by which the state, itself assuming the cost of education of all its children, compels the parent to use these privileges, and to send his children to the public school or to some private school of adequate standard.

The length of time during which the father is compelled to send his children to school varies widely in the different states; even in the most advanced states the legal duty extends only to very elementary education.27

25- 1 Black. Com. 850; Com. v. Malone, 114 Mass. 295.
The right extends to members of a family generally. Patten . People, 18 Mich. 314, 100 Am. Dec. 173; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370.
And a son has the same right in defense of his father. Foster v. State, 102 Tenn., 22, 73 Am. St. Rep. 855.

26- 1 Black. Com. 450; 2 Swift's Dig. (273); Campbell v. Commonwealth, 88 Ky. 402, 21 Am. St. rep. 348; State v. Grugin, 147 Mo. 39, 71 Am. St. Rep. 563, 42 L. R. A. 774; McWhirt's case, 3 Gratt. (Va.) 394, 46 Am. Dec. 96.

27- In Cory v. Cook, 24 R. I. 421, it was sought to hold a father liable for the education of his children beyond that furnished by the public schools as a part of their necessary support: but the court did not decide that question. Such a claim would hardly seem supportable in view of the narrow limits which the courts have usually given to the necessary support which is chargeable to the father. Se also Re Ryder, 11 Paige Ch. (N.Y.) 185, 42 Am. Dec. 109.