The pilot and transcript. [volume] (Baltimore, Md.) 1840-1841, 1840-11-18


and declared by the Court"
Having thus arrived at the conclusion that
the right of the father is not absolute, ana that
the custody of the infant is exclusively refer
rable TO sound judicial discretion, Iproceed TO
inquire in what manner the circumstances OF
this case and the interests OF the child demand
that that discretion shall be exercised. | take
pleasure in saying, that whatever may be inc
faults of temper which the conduct Of the rela
tor TO his wife and TO her mother has develop
ed not the shadow of stain can be found upon
his moral reputation. Apart from his some
what Asiatic notions of a husbands rights and
a wifes duties, and his conJugal misunder-
standings and unprovoked treatment OF Mrs.
Sear3, no evidence has been adduced or at
tempted, which affiXes the slightest reproach
TO his conduct or character as good citizen;
on the contrary, he has been shown TO be ha.
bitually observant of all the prophecies of life,
temperate and domestic in his habits, and APP
parently attached to the requirements of reli-
gion. However his treatment of Mrs. D'Hau-
tenYille and her mother may have justified her
severance Of the matrimonial tie, can find no.
thing of that kind of misconduct of which
the law speaks, which would Justly serve to
deprive him of the custody of his son; nor do
question either his ability OF inclination to rear
it with a proper regard to its intellect and NOR
ais. 1t must be on other grounds that an adj
verse decision can be framed. 1t is proper to
say, too, that the testimony upon which we
have built the favorable opinion thus expressed
o. the reputation and generally good conduct
of the Reiator, has principally proceeded from
the camp of the opposing party. Mrs. Sears
has not hesitated, despite OF the legally hostile
attitude in which unhappy circumstances have
placed her, TO pay proper tribute TO whatever
qualities OF excellence he may possess; and has
answered every question upon the subject
with her accustomed trankness.
repeat that, if the fathers right Of custody
could be forfeited only by immoral conduct or
character, or by his unfitness to superntend the
moral and intellectual culture ofhis child, there
has been nothing developed in the present case
which could properly interpose to take away
from him thatright. But cannot believe that
the exceptions TO such right are circumscribed
within so limited circle-a beliefwhich would
be in the face of nearly every decision cited as
we'll for the Relator as by the other side The
reputation ola father may be stainless as crys-
tai; he may not be afflicted with the slightest
mental, moral, or physical disqualification from
experimenting the general welfare of the in
FAINT, the mother may have separated from him
without the shadow of pretence of justifca-
tion;-and vet the interests of the child may
imppratveiy demand the denial of The fathers
right, and its continuance with the mother.
This is far less than what was decided in the
Addicks case--although, as we have already
intimated, the proper disposition of custody
there made, (apart from the soundness of the
principle) might possibly be questioned.
Thus in the case ofthe People Us. ,NicherSoT,
it is assigned as one ofthe reasons for delivern g
the child to the father, ''that nothing appeared
which could Justify the conclusion that the father
was not fit and proper person to have the care
ard education of the child, or that it fo0lttd be
for the interests of the child, pecuaidgily 9th
cruise to commit ii to the custody Of the mother"
It is unnecessary to say to what conclusions the
testimony in this ease has conducted US in regard
to the snecuniary interests" of the child because
although that consideration might very properly
form am element of decision, and, independ-
emily of the case Just referred to, recognised at
such by other of the Realtors cases, it has nor
been pressed upon US, or even referred to, by
either of the parties here; and it is fortunately in
our power to reach decision framed on more
elevated basis than that which a calculation of
probable future differences as TO dollars andcents
would afford.
The pecuniary means of the Respondent to
properly attend TO the education and interests of
the child, are beyond all doubt; her maternal af-
lection is intensely strong; her moral reputation
is wholly unblemished; and, under these admitted
or established facts, the circumstances of this
case render her custody the only one consistent
with the present welfare of her son.
The tender age and precarious state of its
health, make the vigilance of the mother indis-
pensable to Its proper care: for, not doubling
that paternal anxiety would seek for and obtain
the best substitute which could be procured,
every instinct of humanity unerringly pro-
claims that no substitute can supply the place
of HER whose watchfulness over the sleeping
cradle or waking moments of her oFipring, is
prompted by deeper and holier feel than the
most liberal allowance of 4 nur ages could
possibly stimulate. Not yet two years of age
when the writ of Habeas Corpus was issued,
this child has already been the subject OF several
distressing maladies, and has been apparently
threatened with others of not inferior aggrava-
ton. A portion Of the deposition of DIR. War
rem relates to this matter: and Doctors Meigs
and Chapman, physicians of the most distin-
guished skill anG reputation, and whom we
name in the order in which they have been ex-
amined, have testified in open court.
According to the testimony OF the first named
of these gentlemen, the child has been sicxlv al
most from the period of its birth. He saw it a
few DAYS alters at first, it appeared to be in good
health, but was soon attacked with complaint
which nearly proved fatal-so severely attacked,
that eEthe grandmother had given the child up"
Having recovered from this, il was soon after
attacked with another complaint, (Which proved
very obstinate, and required change Of air and
place, and long continuance ofpowerul rem
edics, which succeeded ultimately in removing
the disease and restoring the child to health"
Doctor Warren adds, sthe child is decidedly not
of age to be separated from its mother" Doctor
Meigs, who called in TO consult with Doctor
Chapman, and who has seen the child since the
institution of this proceeding, gives his opinion,
as a medical man, that 'sthe chances of rearing
the child would be diminished by removing it
from its MOTHER" says that it is at present in bad
health afflicted with distressing and danger
| GUS calculatory disorder-in addition to which,
il is the subject of asthmatc attacks, and that he
has seen it labouring under very dangerous
paroxysm of asthma The latter of these com
plants, the witness estifes, would render Swift
zerland particularly unsuitable as a place ofre
sidence for the child, account of its mountain
I, Gus character and variable temperature, Dr.
| Chapman, who has been its constant medical at
! tendant since its removal to Philadelphia, and
who has visited it repeatedly, fully confirms the
statement of DIR. Meigs, and agrees with him as
to the pernicious and aggravating effect which