In labor-scarce America the services or wages of a child over ten was one of the most valuable assets a man could have. Thus fathers, without dispute, had almost unlimited authority of custody and control over their natural, legitimate children, leaving almost no room for maternal authority, at least during the fathers’ lifetime. This authority was enshrined in the common law. For example, a father’s right to custody was firmly established in English common law as the right to the association and services of his legitimate children. Association was defined as physical custody as against all parties, including the mother, and services included not only the labor of the children for his own use, but their wages, if they worked for another. A father had the right to maintain an action for the seduction of his daughter or the enticement of a son who left home, since this deprived him of services or earnings. The existence of these common law rights have led some contemporary legal historians to conclude that the law regarded children as a property right, to be treated as chattel.
Yet, as indicated by the Massachusetts Bay Colony statute, the relationship between fathers and children was far more complex than these legal historians might have us believe. While fathers had almost absolute control over their children, fathers also had considerable responsibilities, both to their own children and to children legally bound to them as apprentices. In that sense the relationship between father and child was more that of master and servant than of owner and chattel. A master-servant relationship, although not equal, required that master give something to servant in exchange for the servant’s labor. In addition, a master could not injure the servant, while an owner theoretically might dispose of his chattel in any manner, including extermination.
Commentary writer James Kent, frequently cited by early nineteenth-century jurists, emphasized the mutuality of the relationship. Kent wrote that because of the father’s “obligation…to provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons, and to the value of their labour and services.” The right to a child’s labor therefore was seen as recompense for the father’s obligation of support. This mutuality was a relatively recent development in the father-child relationship. Ancient English tradition initially required only that the father control the child’s education and religious training. The Elizabethan poor laws and, later on, common law and statutes, added the duty of maintenance and support.’ Mutuality was contrary to Roman law, where the father enjoyed absolute power, and in the early Roman republic, according to the historian Dionysius, “the atrocious power of putting his children to death, and of selling them three times in an open market, was vested in the father.”