Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-11-17

condition into lerable and life burdensome. nc
may force her to withdraw from his home and iami-
ly even though he may not have CIR ssed the ds I'm
ed line which divides the Boundaries OF moral from
those Of technical grouads Of separation. . That
the Rsspondent in OF his letters which strikes
it's blows upon the mind till il letters, may rule
with dsspot sway, until the irsa shall as ene;tuaiiy
have entered the soul il the band OF unmaniy vio-
lense had outraged the person Of the vile.
On the part ofthe Rvlaior. it 10 contended that the
custody or the child is the vested and absolute right
OF the father--one Of which he Cannot be deprived,
excepting where il becomes forfeited either by his
untncss to take charge Of its morals and Interests
or by such misconduct would afford good ground
for a divorce az incuio mat,'imonii
We cannot subscribe TO the correctness OF this
doctrine. After an Investigation OF the authorities
and the most careful reflection which have had il
in our power to give this deeply interesting and i'm
portant subject, we have been unable to convince
ourselves Of the justice OF what is thus eontended
for, or to become possessed Of any decision, En-
glish or American, by which il is supported VI il
be the law either Of nsare Of the land, then have
those courts must previously erred, by whose deci-
sions have been repeatedly denied the claims Of
the father supported those Of the mother, in
es in which the moral character of the former was
nevs att. mpted to be iupeached, his fitness to
retain custody called into question.
The latest in date, is that Of Barry Nfer-
cetn, which, in varisus notifications Of shape, has
been, between May 1889, and the 2lst of October
acted apon by NO fewer than four different tr-
bunals Of the City and State of New York 1t APP
pears ts have been originally presented to the Re
eorder Of the City, who decided against the claim
OF Mr.. Barry, because, in his opinion, the mothers
the child. Mr. Barry's next application was to the
Chancellor, who, in . long and elaborate opinion,
refused to interfere with the mothers custody. prin
cipally upon the ground that it was OF An age too
tender to be deprived of the maternal care. The
application renewed TO Judge IngIis, enc of the
Judges Of the Court of Sessions, who also decided
against the Relator, chiefly the ground of res adj
judcata; bat who says expressly in the manuscript
M Iotf cd In Mr. md
which has been read to the Court, that "indepen-
IDENTIFY Of the question Of rec adjudicata, should
have had no hesits ion in deciding the question
did, in favor of the mother. The perseverance or
Affections Of Mr.. Barry directed application to the
Supreme Court for reversal Of the proceedings Of
Judge Ingis-from which tribunal he has be On for.
tunate enough TO obtain, Al length favorable deci
sion, based upon varioas considerations But this
decision Of the Supreme Court Of New York, like
that of every other to which reference has been
made, while il admits the better title Of the father,
denies his absolute right, and refers tho disposition
of the infants custody to the discretion Of the Court
to be exercised b. proper regard for bis welfare
The principle, then, upos which the Addicks
Case was decided--a decision which Of the
counsel for the Relator considered Judicial anom-
ally, and earnestly invoked this Court to disregard
il, to "ride it, and ride it down"-did not ORR
gnate with Chief Justice Tilghman; he but follow.
ed in the tracks which both foreign and AmerieA an
Judges had imprinted; and tie safety and wisd.m
Of the path have been Recognised by all Judges 'shs
have followed ham. Whether undsr the very pc
man exercised his discretion in the manner whtch
was really most likely be for the best interests Of
the children, is not so clear; but certain is that
Notwithstanding the Wife was adultress, divsrc-
ed from her husband, and then living in = state Of
sem-legalised prostitution with her paramour, with
whom she had Contracted marriage in despite Of
the prohibitory statute OF the l7t6 Of September,
17S5-and although one Of the children was ten
them from her, because sit appeared, that, consider
ing their tender age. they stood in need Of that
kind Of assistance which could be afforded by
well a mother" And when, nearly three
years after, the several parties again brought
before him, to hsve ne same question re-dster-
wised, GA SAsgeAnt and Rawle, 174,) he transfer-
red the eustedy Of the children to the father mot
dspelIine the darkness Of the past, and revealing
the absolute paternsl right, but only because the
children did not stand before the Court in the same
at an age when their morals would inevitably be-
come tainted by their mothers evil example In the
latter decision, Chief Justice Tilghman declares
it to be the settled lao Of Pennsylvania, that the
custody Of the child 10 always to be regulated by u
dical discretion, Exercised in accordance with what
nav seem for its best interests. Referring to the
former case, he says, "thc law was. AZ that time,
fully considered and declared by the Court"
Having thus arrived at the conclusion that the
right Of the father is net absolute and that the
DIV Of the infant 10 exclusively referrbe TO sound ju
dicial discretion, proceed TO inquire in what man
ner the circumstances of this and the interests
ercised. l take pleasure in saying, that whatever
NAV be the faults Of temper which the conduct Of
the reator to his wife aad 10 her mother has deve
loped not the shadow Of STAN can be found upon bis
moral reputation. Apart from his somewhat Asia
tic notions Of husbands rights and wfe's duties,
and his eoniueal Misunderstanding and unprovok ed
treatment Of Mrs. Sears, no evidence has been adj
duced or attempted which afiixes the slightest
rrcschto his conduct or character good citizen
ON the contrary, he has been shown be habtually
observant Of all the preprstes Of life, temperate and
domestic in hi. habits, and apparently attached to
ment Of Mrs. D'HsuteviIle and her mother may
have justified her severance or the matrimonial tie.
can find nothing of that kind Of" miscopduct" Of
which the law speaks, which would Justly serve to
deprive him ofthe custody Of his son nor do ques-
ton either his ability or inclination 10 rear il with
proper regard TO Its intellect and morals II must
be on other grounds that an adverse decision can
be framed II is proper TO say, too, that the test
mony upon which we have built the favorable opi-
MON thus expressed Of the reputation and generally
good conduct Of the Relstor, has principally pre-
ceeded from the camp Of the opposing party Mrs.
Sears has not hcsated despite OF ths legally hos.
tile attitude in which unhappy eircamstancss have
placed her. TO pay proper tribute to whatever qua
liies of sxcelcnee he May possess and has answer
toned rankness.
repeat that, IL the fathers right OF custody could
be forfeited only by immoral conduct or character
or by his untness to superintend the moral and in
teIlectual eslture Of his child, there has been
nothing developed in the present case which could
proper interpose 20 take away from him that
Bat I cannot believe that the exceptions 10 such
right are cire so limited eircles
belief which would be in the face Of nearly every
decisios cited well for the Rsator by the oths
side. The reputation Of father may be stainess as
crystal; he may not be afflicted with the slightss,
mental, moral, or physical disqualification from
experimenting the general welfare Of the infant
the mother may have separated from him without
the shadow of prctencc Of Justification and yet
the interests Of the child may imperativsy demand
the denial Of the fathers right and its continual
with the mother. This 10 far less than what was
de ided in the Addieks ease-althcsgh, ss we have
already intimacd, the proper disposition OF custody
there made (apart from the sosndress Of the Prin-
ciple) might possibly be Questioned
Thus, in the case Of the People vs.. Niokerson, IL
Is ASSIGNED a. one Of the fcr delivering the
child TO the father, that nothing appeared which
eoud iust,fv the con iuson that the father not