Herald of the times. [volume] (Newport, R.I.) 1830-1846, 1841-01-07

the M. The case of tho Comnonwea ealtl
vs.. Addicks and Wife, is very much u
poi nj, aud strong Confederation of th,
pri nciplo that il is "A matter resting in th
dis cretion ot The Court, and not matte
of right which the father can clnin n
the hsuds Of the Court.n Iha, Of Tn
STATE rs. Smith, 10Th Greenleaf, IG3.
Is precisely TO the same point and il
case Of The United States as. Green
(3d Mason, 482, } The language of judy,
Story IL most unequivocnl:-'lt it al
entire mistake TO suppose that the Cour
Is ut all events bound to deliver over The
infant TO liz father, or that the latter ha'
an absolute vested right ia the custody
The unpublished South Carolina case 0l
the Siote RS Nelson and others the manu-
Sript Of which has been received since
The close Of the arguments IN this, and
which, by the cOpsert Of the Respuu.
dents counsel, has been placed by the
cOunsrl Of the Relator in our hands,
gives the child 10 the father, aud decides
IN favor ol his right, IN the follow ing
exceedingly strong terms: 81 must say
that have come To the conclusion that
there is no principle Of law or rule Of de-
clslon which ought to interfere with the
fathers right, ia case where there is no
depraviiy Of character, no general want
"i moral principle, 10 want OF ability t.
support wiih comfort, no iDcapacIty, no
un"lllingncss 10 educate yiruously and
properly" But at the same time, the
decision clearly recognizes lhe dlScre
iionary power Of the Court 10 regulate
the custody and, as II approaches II
close, widens the grounds within which,
IN the paragraph just cited, are crcum.
scrImbed the forfeiture OF the patcrnaI
claim, by u deduction from the tesllrno
ny upon which the decision is based. that
nothing had been shown TO prove that il
was not for the interest of the two chill.
dren to continue with their father, OF
that their interests would be promoted
by remaining with their mother thus |
~ effect, and almost IN terms, rccognz-
ing the principle III the case OF .4ddicks
and Hye.
The latest case in date, is that OF /
Harry Us. .Usrcein, which, in various
notifications Of shape, has been, be-
tween May 1899, and the 2lst Of Octo-
ber 1910, acted upon by no fewer than
Iour different tribunals Of the City and
State ot New ioIk. 1t appears To have /
been originally presented to the Recor.
der OF the CITY, who decided againt the
clain OF MIR. Barry, because, in his
opinion, the mothers custody was the II
most beneficial for the interests of th,
child. Mr.. Bary's next application was
10 The Chancellor, who, in a long and
elaborate opinion, refused to interfere \
with the mothers custody Y, principally Il
upon the ground that it was Of an az,
loo tender 10 be deprived Of the mater
nal care. The application was renewed
Ia JudIe lnglis, one Of the Judges OF
The Court Of Sessions, who also decid cd |
against the Rcla,or, chiefly on The
ground Of res ddjudicaia but who says
expressly IN the manuscript opinion OF
letter addressed 10 Mr. M'Keon, and
which has been read TO the Court, that
Independently Of the question of res
adJudicaia, | should have had no hcsita-
ton IN deciding The question as did, IN
favor Of the mohor. The perseverance
or aft. ct'on of Mr. Barry directed an ap.
plIcalIon To the Supreme Court ioi a re
versal OF the proceedings OF Judge Ing Il
lIs-irom which tribunal he has been
fortunate enough 10 obtain, at length, l.
favorable decision, based upon variou.
considerations. But this decision Of the Il
Supreme Court of New York, like thall
oi every other TO which reference has III
been made, while It admits the brtler
A Ia nI fb. f,fltn 81.
right, and refers the disposition of the il
infants custody TO the discretion of tn, Il ,
Court, to be exercised by proper re-.
gard for ITS welfare. l..
The principle, then, upon which In, /,
.fddicks Case was decided-a decisonII
" hlch one OF the counsel for the Rela- d
Tor considered Judicial anomaly, and u
Earnestly invoked this Court to Disregard il
II, TO "rlde over It, and TO ride 1t down Il
did not originate with { hief Justice "
lIghman he bul followed in the track. II Il
which both foreign and America all Judgcs Il
Iad imprinted and The safety and wis Il tt
ion ol the path have been recognized "
~ all Judges who have followed him Il
y heiher, under the very peculiar SER. H oi
Of that case, Judge Tilgh IN
nan exercised his "discrrtluun i'm III, 1 To-
manner which was really most likely t, ",
~ Tor the best interests Of the children. ti
; not so clear but certain it is, that. M
Notwithstanding the Wife was an adu! eli
ress, divorced from her husband, and II pli
hen living IN state OF semi-egal. lh
scd prostitution with her paramour, with Of
hom che had contracted marriage IN an
espltc of the Prohiblory statute of the all
1th of September, l785-and although sll
nc oi the children was ten aud the 9th az
+ seven years oId-he relused to take W,
lem from her, because at appeared rh
lat, considering their tender age, they dr
"od IN need ol that kind of assistance wi
h'ch could be afforded by none so well 4
; ho'her." And when, nearly three W
ears alter, the several parties were tor
gam brought before HIM, to have ia. the
''nr question Predetermined, ed Ser. uoI
cant and RaNlc, ia, he transferred Nh
'c Cu-luuy Ul the children to tho Iatbr, iIt.s