The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-14

work unonstrous evils HuAdrssds Of ohidssa could b
tahsn from their parents BY the chish s6soon which
they have towards their nurses In Asresin VI. the
question here Is not whether the child Is actually
suffering under duress Of Imprisonment, bat whsth-
there that kind Of rsstraint which defeat. the
rights Of the father The respondent having the child
his roof positively orbids the father 20 enter the
house except upon terms which proper self respect
he only had license TO entsr the houss to - A.ry
not for the purpose Of taking her under his care and
Amt a. defeat. the right Of the father and lays tho
proper foundation Of Askpg redress by haoeus corpus
In the before II is clear that the child stu
diously guarded and kept beyond the reach Of the
father The that is pretended 10 In the language
Of the returns that she has enjoyed, and SO far
as the respondent is concerned shall enjoy. entire
aud undisturbed liberty to go where che pleases In
other the fact is sustained by this pr0Oshe
is red and resolved kzowng the chds Partially
for herr elf maintain Jane in her determination to
go her father and TO repel all attempts his part to
obtain possession of the child against her will We have
hesitation in determining that the conduct OF the
spondent am gusts in law to restraint.
g. Having arrived at the conclusion that the reator Ia
legally entitled 70 the care and cus.gdy Of his daughter,
spondent the only remaining inquiry to the remedy
The former demands delivery while the latter insists
that the of the Court exhausted when shall
bave removed the esran and set the child free. The
claims that results should follow the decision;
the other purposes to return N statu quo a,to beu
has already been substantially admitted that in regard
10 &C ults deliver ny the statute writ the proposition Of
the respondents is tenabe and that proper
the statute is not contradcted But that it is
applied to the in this Court of ample uris-
dieton independent of the habeas corpus act most
confidently denied. We that of the
speak of children exercising their choice aud dscre
ton This may be well enough when We assured that
they possess what may be fairly called discretion Whe
ther this be predcated of children under four
of age in whom the law in respects,
declares there il discretion we need not nov deter
mine. 1t is sufficient for that this child does not
manifest that degree of judgment which in the opinion
of the Court would qualify her to select her domcil
ard guardian That che is old enough to feel prefer
ence and that such feeling is toward the respondent
is quite apparent; but that such preference is
wise and discreet cannot be admitted. Indeed it
hardly be commended that house OF i'll fame is
proper place. of its inmates suitable person. for
the education of any child. But Independent of this
overwhelming proof of actual indiscreton, cannot
sanction give to the doctrine that such
children to control their movements and seec
their own places Of residence 1t has no foundation in
justice and plainly opposed to the laws of the
land well the laws of God The Court must go fur
Their therefore than merely remove the restraint BY
dering judgment which shall dispose of the custody of
the child conclude this controversy. 1t would be
idle ceremony for the Court to try without
could be reaped We have multitude Of pecedents for
guidance in this particular In the matter OF Dowes
John Rep the Supreme Court ordered the boys to
be delivered to their master and directed officer to
tend and protect them in their return. In the People
Mercein Hill $780, Chief Justice Nelson concludes
his opinion in these words AN order must therefore,
be entered that the child be delivered to the reator "
That where, after two tn years Of itiga
ton the Court ordered the child to be taken from ts
mother and grandfather and given to the husband and
father although the child under five years of age.
And in former stage Of that case, rs Wen 81 the Chan
cellor. in commenting the powers of the Supreme
Court award the custody Of the child reversing the
proceedings, to Judge Ings declared that If he was
wrong the Supreme Court should not only have reversed
his decision but should also have proceeded to make
final disposition of the custody of the chid and in
the People rel. Nickerson 19 Wen 10, order
made that he child be delivered to the father and that
the and custody of her be committed to him. Guided
by these lights shall direct order to be entered ad
judging that the said Charles Trainer is entitled to the
and custody of said Jane Trainer and directing her
to be delivered TO him, her father leaving him, like
the u.s. responsible his and his God
for the in which he shall fulfil the trust thus
stored TO him.
The Court then ordered the Sheriff to deliver the child
the custody Of the father and directed the officers in
attendance TO npany them, and that the diec
ton of the Court Observed The chli cried bitterly
she was taken away.