A parent may maintain an action for the seduction of a daughter on the ground of loss of her services, if there is evidence of her acting in the capacity of servant, or living with the parent in such a man ner that the parent had a right to her services. This action has been main tained by a father in the case of his daughter, a married woman above age, living separate from her husband, and with the father; and by an aunt for the seduction of a niece living with her, to whom she stood in the relation of parent. The foundation of the right to maintain such an action is the loss of the services to which the parent is entitled. In al lowing such an action therefore in the case of a child above age or a married woman, the courts have departed from the legal principle which is the founda tion of the right of action.
A father is legally entitled to the care and custody of his children, but he may be deprived of the care of them by the Court of Chancery, if his conduct is such as, in the opinion of the court, endangers the morals of the children. Percy Bysshe Shelley was, among other things, re strained by an order of the Court of Chancery from taking possession of the persons of his infant children, on the round of his professing irreligious and immoral principles, and acting on them. W. P. T. L. Wellesley was also restrained by a like order from removing his child ren from the care and custody of their aunts, on the ground of his immoral con duct, and directions were given by the court for the custody and education of the children. But, except in such cases as these, the children cannot be taken .rom the care of the father and given into the custody of the mother or any other per gou Under a recent act (2 & 3 Viet. c. 54) a mother who is living apart from her husband may obtain by petition an order from a court of equity for access to her child which is in the sole custody of the father, or of any person by his authority, or of any guardian after the death of the father, subject to such regulations as the judge may think convenient and just ; and if such child shall be within the age of seven years, the judge may order the child to be delivered into the custody of the mother until the child attains the age of seven years, subject to such regulations as aforesaid. But no mother is to have the benefit of the act against whom adul tery has been established by judgment in an action at law, or by the sentence of an ecclesiastical court.
The relations between parent and child which are not founded upon the parental power, but arise in respect of gifts by the parent to the child on marriage or any other occasion, and in respect of pur chases by the parent in the name of the child, belong to various heads or titles of the law of property, inasmuch as the rights and claims of other persons besides parent and child are involved in such cases.
A child who is under the parental power owes obedience to his parent, which the parent may enforce by his su perior strength, provided he uses it with moderation. He may beat his child and restrain his liberty, but not in such a way as to injure his health. A child is legally bound to maintain his indigent father and grandfather, mother and grandmo ther, if he is able ; the penalty in case of refusal is 20s. per month.
The Parental Power (petals potestas) among the Romans was a peculiar feature in their institutions. It was founded on a legal marriage, or on a legal adoption ; the children of such marriage and such adopted children were in the power of the father ; the mother had no power over the children. It followed from the principle of the patria potestas, which in volved a right of property, that the child ren of a son, who was not emancipated, were also in the power. oftheir grandfather. By the death of the grandfather the son became aui juris, and his children and grandchildren, if any, fell into his power. The patria potestas was also dissolved by Emancipation. Originally the father's power was absolute over the child, who Lad no independent political existence, at least as a member of his father's family. He was a Roman citizen, but at home he was subject to the domestic tribunal. The notion of a Roman Family (familia) is that of a Unity, which unity among all the members of the family is a conse quence of the paternal power. Within the family the father had originally a power of life and death, and could sell the son as a res mancipi, by way of punishment. The father also originally possessed the jus noxae dandi with respect to his son as well as a slave, a power which was a consequence of the principle of the father being answerable for the delicts of his son, and continued so long as that principle was in full vigour. The son who was in the power of his father could acquire no property for himself; all his acquisitions, like those of a slave, belonged to his father ; but at the death of the father they might become his own property, a circumstance which distin guished the acquisitions of a son from those of a slave. Also, such a son could hot make a testament, nor could there be any in jure cessio made to him. The father could marry his children, divorce them, give them in adoption, and eman cipate them at pleasure. The effect of emancipation was that the son ceased to belong to his father's family; and this principle had many important legal consequences.
The strict notion of the patria potestas lies at the foundation of the Roman polity. Like other institutions however, which in the early history of a state form its essential elements, the strict character of the patria potestas became gradually relaxed and greatly changed. The his ory of such changes is a part of the his tory of Rome.
The patria potestas might be dissolved in other ways besides those mentioned. If a father or son lost his citizenship, the relation between them ceased, for this re lationship could only exist between Ro man citizens. If father or son was made a prisoner by an enemy, the relation was in abeyance (in suspenso), but was not extinct. If the son attained certain high offices in the state, either civil or religi ons, the patria potestas was thereupon dissolved.
Gains, i. 55, 97, 127, &c. ; Marezoll, Lehrbach der Instil. des Rom. Rechtes, 1839 ; Savigny, System des heutigen Rolm Rechts, 1840 ; Nicking, Institutionen, 1. 224, &c.)