Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1841-01-07
[WHoLE No. 565.

CATION of the authorities, and the most
careful reflection which we have had Il
IN our pow or TO give 10 this deeply inie-
resting and Important subject, we have
been unable To convince ourselves Of
the Justice Of what Is thus contended
Tor, "r TO become possessed Oi any de-
clslon, English or American, by which
II Is supported. Ii il be the raw either
oi nature or Of the land, then have those
courts most griovously erred, by whose
decisions have been so Repeatedly de-
~ d the claims of the father, or support
CD those OF the mother, IN cases in which
the moral character of the former was
never attempted 10 be mpeached, nor
hls Illness To retain the custody called
Inlo question. In the case OF The Com
mo"wealM Us. Briggs, och Pickering,
2U3) It Is indeed SAID, that Lhe only cases
'm winch the Court would not interfere
IN favor OF father, to take the child
from any safe custody to deliver il TO
hIm," would be "whcre lie is a vdga-
bond, aud apparently unable TO provide
Tor the safety and wants OF the child"
And III II succeeding sentence il is said,
''ihe Court viii leel bound to restore the
custody, where the law has placed II,
with the father, unless IN cleaf and
strong case Of uni,ness on his part to
have such custody" But notwilhsland-
lns thus seemingly unqualified assertion
oi the paicrnal ngh,,a preceding pot-
ton OF the same decision subscrlbcs 10
the doctrine so generally, received, that
III deciding the case Of "echild OF icn-
der years, the good OF the child is to-
be regarded as the predominant consid-
eraII"n'-a consideration in which, sure.
Iy, are not necessarily involved the ms
conduct or untitness Of the father, as
we shall have occasion hereafter 10
show.
Ia every case cited by either side,
(wIth the equlvocal exception Of the
King rs. Smith, % Strange, 982, in
which The Judgment Of the Court Is pro-
nounccd III terms which leave i, somc-
what ambiguous whether the right uf
dlsposing G the custody of the m,an, by
the Court, is admitted or denied /. IS
expressly laid down, that such custody
IL always within the discretion of tbs
Court-a discretion 10 he exercised ty
the particular circumstances Of every
case. la the case ot the King Us. De-
idrGl, sd Burrows 3G) Lord Mansfield
says, "1bat IN cases OF Wrils ol4i abeas
Corpus, directed TO bring up ,n(anls, tbs
Court is bound, deLiio justtita, 10 .e.
the infant free from an improper ro.
straInt but they are not bound to dcliv-
er them over TO any body, nor 10 gigo
them any privilege. This must be ielt
To their discretion, according to the CIR
cumstances that shall appear bcio's
them.
All the American cases, without q sim
gle exception, which have been cited
ior. the Relator, recognize, TO its fullest
extent, the principle upon which, in the
case OF The Commonwealth rs. .fddick,
aud wlIc, 10Th Binuey, 520.l Chief
Justice TIIghman 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 rocog-
n'zed according TO the particular CIR
cum'lanccs of every case. In New
\ ork, where the decisions are conflict
Ing To this extent, that IN some cases tire
custody is taken from tho mother and
gwen TO the father, and ,Eat in others
hts salm is dcnied, they are all based
upon the exercise of such discretion, so
regulated. In no case has any Court
or Judge strained the mark SO far as To-
lay down the bald, broad d7citun that the
fathers right Of custody is absolute and
lnallenabIe but all agree that while, in
general, he has such right, circunstan-
ces may arise by which he may be de-
prved OF II. Some cf the cases, 10 n
certain extent, sustain the counsel for the
Relator in the very strong ground which
they have assumed, that such rIeIt can
become forfeited only by misconduct,
which would afford good ground for d-
vorce. But the bulk OF the cases eni.
braces broader grounds aud an exani-
nation of even those which al the FIRST
blush seem TO support this doctrine,
maniies,s that they furnish no founda-
ton upon which TO really rest the stree
ture OF argument attempted to be based
upon them Thus, in the case OF the
Peopie as .EckerS0n, ooh Wendell,
page lOl, one ~ "HWh \ Itdl ''h'pSbNO
appears to be- rcposed 10y the Rrla,or,
wflle the count repeats the principle
'that the father Is the natural euardiap
of his infant Children" 1t admits It's rigGF
to transfer the custody 10 the molhcr
whenever It would be "for the iniesesis
of the child, prcunIarily ~ otherwise"
In the matter Of Mitchell (R. NJ. Carl
toms Reports, =. 189, another case cited
Tor the rcla,or with great Confidence,
thus principle - again recognized ~ The
following ierns:-"Ihe cases asset that
the CouIl Is no, bound Ia deliver The in
{ nj over to any particular person that
i, is rh matter OF right which The Ia
thpI can clam at the hands Of The enHi,
but matter resting ~ The sound dl
creiinn of the Couit, to be pn'dtd Wy
the interests of the chlld. Aud 1t 10
ma.a proper that ibis discretion should
bc exercised by tho Court, VIXEN the III
ant Is too Young TO make n proper Sc
l.,t,,n - Aud even ~ the apparently
s,r,nocs, of the Rratur's cases, that of
the Commonwealth rs. Briggs, y Is stated,