361. Custody, Maternal Relatives, Father.—A parent is entitled to the care and custody of his child if he is competent to transact his own business and not otherwise unsuitable. And the mere fact that the maternal relatives who have had the care of the child from its birth have become attached to it and desire to continue to care for it and are able to secure it better advantages than its parent, does not render the parent unsuitable to have its care and custody within the meaning of the statute. Also, the want of a sympathetic nature or cold reserve in a parent or the fact that he is away on business a great deal of the time, is not sufficient to render him unsuitable. But the right of the father may be lost or forfeited by his ill-conduct, gross ill-treatment, cruelty, or abandonment, or when his conduct and life are such as are injurious to the morals and interest of his child. When the father dies or forfeits his right for reasons already given, the mother, if alive, succeeds to all those rights, subject, however, [pg 193] to the same conditions as the father. And in the case of a child of tender years, the good of the child has to be regarded as the predominant consideration.640
362. Mother, Illegitimate, Father.—The mother has a right to the care and custody of her illegitimate child to the same extent that a parent has to his legitimate child.641 The putative father on the mother's death succeeds to the mother's rights as against the maternal relatives and may secure the custody of the child by habeas corpus. This rule is different from the one that prevailed in the Roman law.642 However, when the father has given bond for the care, support, and education of an illegitimate child, his right to the custody of the child may be superior.643
363. Legitimatized.—And when under a statute a child is legitimatized by acknowledgment or subsequent marriage, the father has the better right to its custody.644 Usually there are many provisions in the statutes of the various States which substantially provide [pg 194] for the rights, relative and otherwise, of the parents and child in such cases.
364. Punishment, Instrument, Murder.—A parent or a person in foro domestico or in loco parentis may give reasonable corrective punishment with a fit instrument to a child. But if a parent or master whips a child so that it dies, he is guilty of manslaughter. And if he uses lethal instruments of punishment, he is guilty of murder.645 Where a mother in anger threw a poker at one child and hit and killed another child, she was guilty of manslaughter.646 The punishment always becomes unlawful when it is excessive, and drunkenness is no excuse.647
365. Guardian, Religion, Courts.—In England where a child was taken from the testamentary guardian, who after the death of the testator changed her religion from a Protestant to a Catholic, it was held thereby to be incompetent to continue as guardian.648 And in New York it was held that where the father and mother were Catholics, the guardian must endeavor to bring the children up in that faith, as a guardian will not be permitted to proselyte wards.649 [pg 195] But where a father who was a Catholic allowed his child to be brought up by a maternal aunt who was a Protestant, until the child was fourteen years of age, the father was not then entitled to the child's custody for the purpose of having it instructed in his own faith.650 Courts will not interfere with the religion of a child, but will allow it to be brought up in the religion of its parents; however, the best interests of the child will be considered by the court without conceding everything else to its religion.651
366. Convent, Consent.—A daughter under age who entered a convent to become a nun without the consent of her mother, may, on a writ of habeas corpus on the petition of her mother, be required to leave the convent and return to her home.652
367. Adoption, Rights, Duties.—Persons of suitable age and circumstances to enter the marital relations, may adopt a child. When a married couple do not unite in adopting a child, the consent of the non-adopting spouse must be obtained. Also, if the child's parents are living, their consent is necessary unless they have lost their paternal rights by abandonment or divorce. [pg 196] The decree of adoption may be set aside for good cause. The adopted parent has all the rights over and duties toward the person of the adopted child that a natural parent has, including necessaries and religious training. Usually the child inherits from the adopted parents, but the adopted parents do not inherit from the child. The statutes on adoption are not the same in the several States, but they cover the subject and must be strictly followed.653
368. Infancy, Manumission, Marriage.—At common law a person is an infant until he is twenty-one years of age. Statutes have modified that rule so that girls in some States, and both girls and boys in others, may contract marriage at an earlier age without the parental consent. Generally, an infant can not contract marriage without the consent of the living parent or guardian unless the child has been manumitted. Where the boy was under the age of consent, but he falsely told the priest that he was of full age, his father had the marriage annulled.654
369. Custody, Father.—A husband is entitled to the custody of his wife against her father, and where a son-in-law killed his father-in-law in resisting the latter from taking his daughter out of his (the son-in-law's) house, the court held that it could not be more than manslaughter; and if it were necessary to kill to protect and maintain his wife, the defendant was not guilty.655 But for good cause and without malice a parent may advise his child to leave spouse.656
370. Corrective Authority, Services, Domicile.—In America a husband gains no right to corrective authority over his wife. He can neither whip her nor use abusive language to her. The same rule applies to the wife, as they stand equal before the law.657 However, a husband is entitled to all the services of his wife and a promise to pay her extra for housework can not be [pg 198] enforced.658 Also, the husband has the right to determine their place of domicile, and if the wife unreasonably refuses to accompany her husband, it is desertion, for which he may obtain a divorce.659
371. Indians, Citizens, Wards.—There are a great number of statutory provisions concerning Indians, both in the United States statutes and in the statutes of the several States, most of which are not of great importance at the present time, as the Indians are confined to a few States. When they become citizens of the State in which they reside, their status is the same as other citizens; but so long as they remain in their tribal relations they are taken care of as wards of the Union.
372. Schools, Cemeteries, Churches.—In Oklahoma there are schools provided for them. When a tribe cedes 160 acres to the United States, it will give it a school for ten years, and as much longer as it deems necessary. Also, the Indians may have their own cemeteries, schools, and churches, where the Indians belong to the tribes, and they are allowed lands therefor.660 In other States, under the general law, the money of Indian [pg 200] minors may be held in the treasury by the Secretary of the Interior and paid to parents and guardians in such sums and at such times as the Secretary in his discretion may determine.661 There is no doubt that out of those moneys, parents might pay for their children at private schools.662
373. Inspectors, Duties.—Under the United States laws, inspectors are appointed to visit Indian agencies and investigate all matters concerning them and to examine all contracts and accounts with the Indians and make report thereon to the Secretary of the Interior. The contracts for support of religion, schools, and charitable institutions, come under their duties.663
374. President, Trades.—The President may cause Indians to be instructed in trades and agriculture and have them taught the elementary branches.664
375. Commissioner, School, Rations, Bible, Sectarian.—Another officer of great importance is the Commissioner of Indian Affairs, who has most to do with the education and schools of the Indians.665 He may require parents and guardians to send children [pg 201] to school and withhold rations from them for failure so to do. Also, there is a fund under the control of the United States as trustee, with which he may make contracts for the education of Indian children at private schools.666 However, the jurisdiction of the commissioner over Indian children does not extend to those off the reservation.667 Among other provisions of the United States statutes is the following: “The Christian Bible may be taught in the native language of the Indians if in the judgment of the persons in charge of the school it may be deemed conducive to the moral welfare and instruction of the pupils in such schools.”668 The Bible continues its position among the Indians, but appropriations for the Church are cut off by the following provision: “It is hereby declared to be the settled policy of the government to hereafter make no appropriations whatever for education in any sectarian school.”669
376. Reformatories, Object, Liberty.—During the past few years juvenile courts have been created for the purpose of committing children to reformatories. The proceedings are not criminal actions, but of an equitable nature.670 However, as the object is to deprive the child of its liberty, the statute must be strictly construed and followed.671 An infant can not waive a right.672 If a child has been wrongfully committed or is wrongfully detained, the proper remedy for his discharge is a writ of habeas corpus.673
377. Confidential, Tribunal, Malice.—The rule is that all confidential statements made to an officer or a tribunal of the church concerning a member in the course of church discipline and for the good of the church, if not made with malice, are privileged, and no action for libel or slander can be maintained therefor.674
378. Member, Officer, Councils.—But slanderous or libelous statements made concerning a person not a member of the church or made concerning a member of the church to another member who is not either an officer or in the councils of the church, are actionable and the person making or publishing such statements is liable for damages. Also, a person who repeats a libel or slander may be liable as though he were the originator.675
[pg 204]379. Official Communication, Privileged.—An official communication between authorities of the church or an authority and a member of the church concerning a church matter or church members and not made in malice, is privileged.676
380. Priest, Pastoral Duties.—Where a priest published from the altar that “Peter Servatius is excommunicated, because he laid hands on the priest to put him out of the church, and he has no more benefit of the prayers of the church. I will not pray for him, and consider him a lost sheep and withdraw all my pastoral blessings from him. If he die, the burial rights of the church will be denied him,” such remarks were held defamatory, unless they were spoken in the proper discharge of the priest's clerical and pastoral duties and without malice; and the case should have been submitted on the evidence to a jury.677
381. Church Record, Excommunication.—An entry of a church record that “A report raised and circulated by A. B. against Brother C., stating that he made him pay a note twice, and proved by A. B. as false,” [pg 205] is libelous.678 But an entry of excommunication of a member made in the record and shown to other members, is not libelous, the latter being properly a part of the record and the former extraneous.679
382. Will, Libel, Action.—The will of a priest contained a statement that a relative had received $300 from him for clothing, maintenance, education, etc., and promised to repay it, but paid no part of it. Then testator bequeathed said $300 to two legatees to collect for their own use. The relative filed a petition asking the estate of the priest to be held liable for a libel in the sum of $50,000 and the court held that as the right of action did not accrue until after the death of the testator, there was a right of action against the estate. As the case never got beyond the probate court, its authority is doubtful.680
383. Language, Insane, Good Faith.—Unless the language is used by the bishop in the line of his duty, a statement that a priest is irresponsible and insane, that he was removed from his position of priest for good reason, and that he has been guilty of ecclesiastical disobedience, is slanderous [pg 206] per se. To make a communication between a bishop and priest privileged it must have been spoken in good faith and in belief that the speaking of it came within the discharge of the bishop's duty.681
384. Rector, Bigamy, Tobacco, Liquor.—In a case where the rector of an Episcopal church called upon a man charged with bigamy and after a private conversation the minister wrote a letter to the district attorney on behalf of the prisoner, it was held not privileged because it was not made in confidence of the relation and was not kept as a secret.682 A letter from a church member of one congregation to the elders of another congregation advising them of the unfitness of a clergyman appointed to the latter parish, and stating that he used tobacco and liquor, that he was an untruthful man, and that his family was no credit to the community, was quasi-privileged; and in the absence of proof that the charges were false and malicious was not actionable.683
385. Newspapers, Criticisms, Priest.—A newspaper has a right to publish criticisms of the conduct of a priest in certain services held in his church if no false statement [pg 207] of facts is given, since such conduct is a proper subject of discussion; and if such article contains a statement that if certain published accounts of the conduct of the priest are true he acted in an improper manner, etc., it is not libelous because such facts are not true, as it is not an affirmation of the truth thereof. Where the alleged libel was published in a foreign language and the correctness of the translation was disputed, it was an error for the judge to instruct the jury that if the translation introduced in evidence was correct, the defendant was liable, since plaintiff's right to recover should not be made to depend on the absolute accuracy of the translation.684
386. Clergyman, Discipline, Tribunals, Testimony, Argument.—What a clergyman says in the administration of the discipline of the church or what is said in tribunals to enforce discipline of the church, including testimony and legitimate argument within the scope of the case, if said in good faith and without malice, is not actionable in the civil courts.685
387. Physical Discipline, Imprisonment, Courts.—A clergyman who claims to have been slandered by a parishioner can not administer [pg 208] physical discipline nor put the offender under restraint without leaving himself liable for damages for assault and battery or false imprisonment. If the clergyman desires to treat the charge as a church matter, he must go into the church tribunal; otherwise, his proper course is to bring an action for slander in the State court.686
388. Sermon, False Statement, Crime.—A clergyman may, by words used in a sermon, slander a member of his congregation. However, if he makes no false statement and does not falsely or maliciously charge a crime, what he says in the way of discipline is privileged.687 The meaning of the words “she is a dirty, vile woman,” can not be extended by innuendo.688
389. Charges, Robbed, Hypocrite.—Charges that a person has robbed a church or has stolen from a church, are actionable.689 Also, charging a person with being a hypocrite and using the cloak of religion for unworthy purposes, is slanderous.690
[pg 209]390. Investigation, Probable Cause.—When a member of a church consents to an investigation on complaint before a person who is not a member, if the complaint was made on probable cause and not under the pretence of exposing the defendant to scorn or obloquy, he could not subsequently bring an action for libel.691
391. Sacraments.—To publish of a person that he has been deprived of the sacraments of the church to which he belongs, is libelous.692
392. Obituary, Tolling Bell.—To falsely and maliciously publish an obituary notice of a person living, is good ground for an action for libel.693 However, a complaint that a church tolled its bell to announce the death of a member, and did report him dead when he was actually living, and that it was all done for the purpose of annoying, harassing, and vexing the person and his family, was held not sufficient to support an action for libel. The latter case is doubtful law.694
393. Newspaper, Profane Swearer.—A newspaper in a notice of the death of a church member has the right to state that [pg 210] he was a profane swearer, if such was the case.695
394. Business or Property, Special Damages.—A company incorporated for the purpose of transacting business which would include hospitals, schools, and industrial institutions, may maintain an action for libel the same as an individual for any words affecting its business or property, if special damages are alleged and proved.696
395. Justification, Repeating.—It is no justification that libelous matter had been previously published by a third person, that the name of such person was disclosed at the time of repeating the libel, and that the person who was repeating it believed all the statements in the libel to be true.697
396. Sins, Crimes, Discipline.—Crimes are offenses against the civil law. The fact that the church organization may try and punish a member for sinning, or acquit him, has nothing whatever to do with the administration of the criminal law of the State. Therefore, a member may be arrested and tried for any offense before or after the ecclesiastical tribunal has taken action in the matter. But there are certain crimes of a religious nature of which the civil law assumes jurisdiction and punishes, such as blasphemy,698 disturbing religious meetings,699 etc. Most of those laws are statutory and depend wholly upon the statute of the State where the crime is committed.
397. Profane Language, Smoking, Disturbance.—Rude behavior or profane language if audible,700 smoking in the church or during services,701 cracking and eating nuts [pg 212] in church,702 and fighting near the church so as to disturb the services, are violations of the law.703 A father's taking his child out of the church with violence is a disturbance of the meeting.704 The disturbance of any member of the congregation assembled for religious worship is a violation of law.705 A sentence of $100 fine or one year's imprisonment in the penitentiary, is not excessive or cruel or unusual punishment on conviction for disturbing a meeting.706
398. Sunday-School, Church.—An ordinary Sunday-school where the Bible and religious precepts are taught, is a church within the law.707
399. Private School.—A person may be punished under the statute for wilfully disturbing a private school kept in a district schoolhouse for instruction in the art of writing.708
400. Disturbing a Religious Meeting.—Under a statute against disturbing a religious meeting, it has been held that it should [pg 213] define what disturbance is punishable.709 Also, mere want of attention or observance of ceremonies, as standing or kneeling at times, is not a violation of the law.710 Neither is singing out of time, unless done purposely,711 nor performing a proper duty, such as objecting to a silenced clergyman's conducting the services.712
401. Common Law, Offense, Statutory Law.—If there is no statutory provision, in those States where the common law prevailed before the admission of the State to the Union the offense is punishable under the common law.713 And even in States where there is a statutory law on the subject, a person may be convicted at common law.714
402. Services, Violation, Time.—The nature of the services and the discipline of the denomination may determine whether there is a violation of the law. Usually the disturbance may occur at any place the congregation is assembled, and at any time when any part of the congregation is assembled for religious services or business.715
[pg 214]403. Force, Priest, Preserve Order.—A congregation may use sufficient force to remove a disturber.716 A Catholic priest who is the conductor of religious services and master of ceremonies within his church has the right to preserve order and to remove by force, if necessary, any person who disturbs his services.717
404. Interrupt, Liquors, Traffic.—There are statutes in most of the States making it a penal offense to interrupt or molest any assembly or meeting of the people for religious worship, or to sell intoxicating liquors or other articles of traffic within a certain distance of any camp-meeting or other religious assembly, except at a place of business regularly established prior to such meeting or assembly and not with intent of evading the provisions of the law.718
405. Theory, Blasphemy, Crime.—On the theory that the United States is a Christian nation, blasphemy is held to be a crime.719 Infidels naturally claim that it interferes with their rights. However, there is no more interference with the private rights of [pg 215] the infidel than there is with the private right of the Mormon who is forbidden to violate the laws of the country by having a plurality of wives; and it has been held that any words importing imprecation for divine vengeance may constitute profane cursing or blasphemy.720
406. Religion, God, Ridicule, Virgin.—Words vilifying the Christian religion,721 denying God or the final judgment,722 and profane ridicule of the Holy Scriptures or of Christ,723 are usually punishable. Also, the use of vile words applied to the Virgin Mary is blasphemy.724
407. Profanity, Proof, Excuse.—The profanity must be in the hearing of some person.725 Every time a person profanely swears by taking the name of God in vain is a separate offense.726 The prisoner's confession is sufficient proof; otherwise the prosecution must show that the offense was committed and some one heard the words.
[pg 216]Drunkenness is no excuse.727 Punishment by fine or imprisonment is not in violation of the constitution of the State or of the United States.728
408. Sunday, Business, Fishing.—The offenses against the Sunday law are so numerous that it would be almost impossible to review them within the limits of this work. Of course, the carrying on of a man's ordinary business is a violation of the Sabbath laws. But in some States selling cigars,729 a butcher selling meat,730 and even selling soda water,731 and ice cream,732 as well as fishing, traveling, driving, using a slot machine,733 and almost every other imaginable act excepting going to church, has at some time and in some State been declared a violation of the law, and a penalty imposed therefor.
In California,734 Tennessee,735 and Washington,736 men may be shaved on Sunday. In [pg 217] some other States it has been held that running a barber shop on Sunday is a violation of the law.737
409. Charity, Necessity, Benefit, Pleasure.—However, doing works of charity and works of necessity usually are exempt. What is a work of necessity is a question of law. Charity includes whatever proceeds from the sense of moral duty or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one's benefit or pleasure.738
410. Contracts, Marriage, Notice.—The common law made no distinction between Sunday and any other day as to making contracts, but it prohibited holding court. In this country the statutory law invariably prohibits any but works of necessity or charity to be done on Sunday. But marriage settlements,739 publication of statutory notices on Sunday,740 and promises to marry, have been held legal.741
[pg 218]411. Funeral, Physician, Subscriptions.—To attend a funeral, to employ an undertaker, or a physician, on Sunday, has been tested in the courts, and finally decided to be works of necessity or charity and not a violation of the Sunday law. Also, subscriptions made for church purposes and in works of charity on Sunday have been held legal and binding.742
412. Jews, Seventh-Day Observers.—In several of the States it has been held that Jews and Seventh-Day observers of the Sabbath must obey the Sunday law.743 However, in many States there is a statute expressly exempting people who keep the seventh day of the week; but still they sometimes have a provision, unless “he shall wilfully disturb thereby some other person or some religious assembly on said day.”
413. Societies, Secular Work.—Business meetings of benevolent and church societies for benevolent or church work may be held on Sunday. Even the constitution of such societies may be amended on Sunday. However, secular work that does not come strictly [pg 219] under the functions of such societies would be unlawful.744
414. Sunday, Begins, Ends.—Usually people believe they know what the word Sunday means, when it begins, and when it ends. Christianity usually recognizes the time from midnight to midnight as Sunday, and that is the usual time recognized by law.745 But the solar day only,746 or from midnight to sunset,747 give us a variety which may not be complete. Also, we have the further anomaly of a note made at 2 o'clock on Saturday night, being held valid.748
415. Religious Liberty, Law.—The constitutional guarantee of religious liberty is not violated by enforcing the Sunday law.749
416. Necessaries, Doctor.—As a parent or husband is obliged to furnish necessaries for his children and wife, when medical treatment becomes necessary, he is liable for manslaughter for failure to do his duty, even in case of religious disbelief in the efficacy of medicine. Courts are not inclined to [pg 220] make any distinction as to religious belief, and the prevailing rule in this country is that the parent is liable if he negligently allows his child to die when it might have been saved by the services of a doctor.750
417. Christian Healer, Consent.—A Christian healer can not be held liable except under a State law. One who consents to treatment has no action for damages unless there is a failure to exercise the care and skill of a Christian Scientist. This rule might not apply to one incompetent to consent to a contract.751
418. Politics.—A minister who had been expelled by his congregation for voting the Democratic ticket, had some of the members of the church arrested under the election laws for intimidating a voter. The court held that as he “suffered no pecuniary loss, personal injury, or physical restraint,” no crime was committed.752
419. Mail, Obscene Language.—Under the United States postal laws against sending “obscene, lewd or lascivious” books or papers through the mail, a person can not be convicted without proof that the matter is [pg 221] obscene, lewd, and lascivious, as the word “or” should be construed to mean “and.” Also, the court held that a newspaper article on the doctrine of the Immaculate Conception written in coarse and obscene language that offended the religious sentiments of the people, but had no tendency to induce sexual immorality, did not render the newspaper unmailable nor the publisher guilty under the United States statutes. The court says: “Those parts of the article most relied upon to sustain the charge, though ostensibly a discussion of a religious subject, are couched in language not quite suitable for insertion in a judicial opinion, however well adjusted to such applause as might be expected from taste of a certain degree of degradation.”753
420. “Fair,” Chances, Gambling.—A church “fair” at which chances are sold, drawings had, or any game of chance permitted, is illegal and may be punished as gambling.754