The Clergyman's Hand-book of Law Part 10

*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 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) 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 ent.i.tled 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 pet.i.tion of her mother, be required to leave the convent and return to her home.(652)

*367.* _Adoption, Rights, Duties._-Persons of suitable age and circ.u.mstances 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. 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)

CHAPTER XXVIII. HUSBAND AND WIFE

*369.* _Custody, Father._-A husband is ent.i.tled 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 ent.i.tled to all the services of his wife and a promise to pay her extra for housework can not be 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)

CHAPTER XXIX. INDIANS

*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 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 inst.i.tutions, 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 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)

CHAPTER x.x.x. JUVENILE COURTS

*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)

CHAPTER x.x.xI. LIBEL AND SLANDER

*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 publis.h.i.+ng 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)

*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," 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 pet.i.tion 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 _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 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 paris.h.i.+oner can not administer physical discipline nor put the offender under restraint without leaving himself liable for damages for a.s.sault 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)

*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, hara.s.sing, 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 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 inst.i.tutions, 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)