The pilot and transcript. [volume] (Baltimore, Md.) 1840-1841, 1840-11-17

the casn Of the Co,s;,on,oealth u.s. Briggs, 6th
Pickering 2O3) it is indeed said, that the only
cases " in which the court would not INTERFERE
in favor of father, to take the chlld from any
safe custody to deliver it to HIM." wouio DC
ssvhere he IS yagabond, and apparently unable
"a provide for.the Safety and wants of the child"
And in succeeding sentence 1t IS sald, the
court will feel bound TO restore the Gustouy'
where the la has placed it, with the tathers IN
less in clear and strong case OF unhtness on
his part to have such custody" but, not"th
standing this seemingly unqualified assertion oi
the paternal right, a preceding portion OF the
same decision subscribes to the doctrine so gene
rally received, that III deciding the case OF ~
child of tender years. the good OF the child IS 10
be regarded as the predominant consideration
a consideration in which, surely, are not neces-
sarily involved the misconduct or unhtness OF
the father, we shall have occasion hereafter
to show.
In every case cited by either side, with the
equivocal exception of the King Us. SMITH, "a
Strange, 9S2, in which the judgment OF the court
is pronounced in terms which leave it somewhat
ambiguous whether the rightof disposiHg OF the
custody Of the infant by the court; IS admlttea
or denied) it is expressly laid down, that suSh
custody is always within the discretion oil the
court-a discretion to be exercised BY the Parti-
cular circumstances of every case In the case
of the King vs Deldodl I'D Burrowes, so LORD
Mansfield saws, "that in cases OF writs OF Haoe-
as Corpus, directed to bring up infants, the court
is bound, debto juStitia, to set the infant iree
from improper restraint; but they are NOT
buond to deliver them over to anybody, nor 10
give them any privilege. This must be lett TO
their discretion, according to the circumstances
that shall appear before them"
All the American cases, without single eX-
ception which have been cited for the relator, re-
cognze, to its fullest extent, the principle upon
winch, in the case of the Comm ntcealth os I'D
TIlghman refused to take the children from the
mother, and remove them to the custody OF their
father viz the discretion of the court, TO be re-
cognized according to the particular circumstan-
ces of every case. In New York, where the
decisions are conflicting to this extent, that IN
some cases the CUSTODY is taken trona the motner
and given to the father, and that In others his
claim is denied, they are all based upon the ex-
ercise of such discretion, so regulated. In no
ease has any Court or Judge strained the mark SO
far as to Law down the bald, broad dicttns that
the fathers right of custody is absolute and ina
lienable; but all agree that while, IN general, he
has such right, circumstances may arise by winch
he may be deprived of It. Some of the cases, TO
certain extent, sustain the counsel for the rela-
tor in the very strong ground which they have
assumed that such right can become forfeited on
ly by misconduct, which would afford good ground
for divorce. But the bulk of the cases embraces
broader grounds; and an examination OF even
this doctrine, manfests that they furnish no foun-
datIon upon which to really rest the structure of
| argument attempted to be based upon them.
| Thus, in the of the People as. sMickeTson,
| Q9th Wendell, page l5l) one in which great con-
dence appears to be reposed by the relator, while
the court repeats the principle that the father is
the natural guardian OF his infant Children it
admits its right to transfer the custody to the
mother whenever it would be "for the interests OF
the child, pecuniarily otherwise" In the mat
| ter Of .hitcAeH, (R. M. Cartoons Reports, p
4S9) another case cited for the relator with great
confidence, this principle is again recognized IN
the following farms: -'Ihe cases assert that the
Court is not bound to deliver the infant over to
any particular person; that it is not matter OF
right which the father claim at the hands OF
the Court, but matter resting in the sound dis
erection of the Court to be guided by the interests
Of the child And it is most proper that this dis
| erection should be exercised by the Court, when
the infant is too young TO make selection" And
even in the apparently strongest OF the REALTORS
cases, that of the Commonwealth as. Briggs, 1t
is stated, that Gas general rule, the writ OF ha-
beas corpus, and all action upon it, are governed
by the judicial discretion of the Court, In direct
ing which, all the circumstances are to be taken
into consideration" In other cases, in which
the fathers petition rejected, the language OF
the Court is equally decided. In that OF Mar
garet Elisa Hatdroas, (l3th Johnson's r.. 41S0
1T is said that the delivery of the infant to any
of the Court, according to the circumstances that
shall appear before them. The case of the Com
monwealth VS.. Addicks and Wife, is very much
in point, and strong confederation of the prin-
ciple that it is matter resting in the discretion OF
the Court, and not matter of right which the faith
er can claim at the hands of the Court" That
of The State as. Smith, 9th Greenleaf, 463;) is
precisely to the point; and Ill the case of The
United States os. Green, Sd Mason, 1872 the
language of Judge Story is most unequivocai:-
sit is an entire mistake to suppose that the Court
is at all events bound to deliver over the infant
to its father or that the latter has an absolute
vested right in the custody" The unpublished
South Carolina of the State Us. Nelson and
others, the manuscript of which has been receiv-
ed since the close of the arguments in this, and
which, by the consent of the Respondents coun-
sci, has been placed by the counsel for the Re
lator in our hands, gives the child to the father,
and decides in favor of his right, in the follow
ing exceedingly strong terms :-''tmust say that
l have come to the conclusion that there is no
principle of law or rule of decision which ought
to interfere with the fathers right, iii a case
where there is no dcpravity of character, no gen
eral want of moral principle, no want OF ability
to support with comfort, no incapacity, no I'M
willingness to educate virtuously and properly"
But at the same time the decision clearly recog-
nizes thediscretionary power of ths Court to reg
ulate the custody; and, as it approaches close,
widens the grounds within which, IN the para
graph lust cited are eircumscribed the forfeiture
of the paternal claim, by deduction from the
testimony upon which the decision is based, that
nothing had been shown to prove that il was not
for the interest of the two children to continue
with their father, or that their interests would
be promoted by remaining with their mother
Thus in effect and almost in terms, recognizing
the principle in the case OF .addteks and wye.
Concluded t0-sno770to.