The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-02-24

parent, yet these respondents insist that he was
placed there improperly, because they were legally
entitled to the custody of him at the time aud did
not give their consent to the act.
Now their rights if they have any must be estab-
lished by the proofs in the cause No evidence
whatever has been offered to sustain some of the
allegations IN their answer. From the testimony
then it appears that the child has been livino prin
cpally with its aunt one of these RESPONDENTS and
her daughters, for about four wears past having
been with its mother during frequent intervals of
that period That it was sent to the aunt at first
that it might learn to talk because the parents be-
ing mutes, could not teach it language: that the
father so long he lived paid board for it to the
aunt, and supplied it with clothing; that the moth
ef, since the fathers death, has clothed it. No act
OF language OF his, has been offered in evidence,
showing that he committed this child to its aunt to
be kept by her, that he relinqushed his parental
rights or charge over it, but the contrary it is
In proof, that so long as he lived he paid the chds
expenses at his aunts that he declared that he and
ms wife had not given it to its aunt that he did not
wish 1T to stay with her altogether; that on several
he endeavored to get other persons take
charge OF It, stating at the time, that he did not
wish it to remain with its aunt: and that this
anxiety to transfer the custody of his child to
different person was expressed short time be
lore ne ded to one Of the witnesses his language to
her being that he wanted the child somewhere
where it would be taught right"
nave carefully examined the testimony and |
ind no evidence offered by the respondents to con-
troyert the above facts, or to weaken their force,
whole evidence proves nothing more than this
that the father placed this child with the aunt to be
boarded by her, and that he permitted it to remain
WIN ner from necessity, rather than from choice,
ana that he died some two years since with all his
parental rights unimpared. Upon his death, the
mother became entitled to the custody and guard
ianshp OF her child and there nothing in the evil
dence to show that she relinquishes her rights to
these parties. The proof is that she is affection
ate parent, and in character and deportment above
reproach One OF the witnesses, the husbands sis
ter; says, .'that the mother had the child when the
lather dled that he went backwards and forwards
10 learn to talk. The mother says that they the
aunt and nelces) took him from her when his father
died. THAT she often wanted to take him, but he
would come; that her husband never requested his
sister TO take the boy that she has asked his aunt
to let him come back: "that she often went to see
him: that he has staid with her for a short period,
but, would not remain, that they did not send
him to school, but let him run around the streets
ragged" No evidence has been adduced to rebut
| these statements. am clearly of opinion then, that
as the father in his lifetime; did not so the mother,
since his death, has not relinqushed the custody of
TINS child to these respondents, given them any
! legal right whatever to claim it; and | am further
| OF opinion, that at the time he placed in the
| Asylum, the mother, as his natural guardian, had
the right to the custody land control of his person,
to the exclusion of all other PERSONS to the full ex-
tent that they recognised by our statutory law
and judicial decisions. Nd. 476.
Ii the mother by virtue of her legal rights, had
presented her petition to this court for the transfer
of the custody of this child from the respondents to
herself the action of this court might in that case
have been influenced by the question as to her abil
ity to maintain him, and to furnish him with the
means OF proper education and moral culture But
no such question can arise in reference to this Asy
lum, which succeeds to the rights of the parent
both by reason of her consent that the child should
be and remain in this Institution and BY the opera
ton of the laws by which its chartered powers and
rights are granted. For | am satisfied after care
full examination of the laws that the theory and
them substitute inSti tutiO
OF like character in the place of the parent, in re
gard to those classes of children that are intended tc
be benefited by them. They are to maintain, edu
cate and bind them out-duties especially to be per
formed by the parent, according to the circumstan
ces OF each particular The State, as ''paren
Patr'd delegated this power to them; and in reply
to the argument at the bar that there is mutnal
ty IN this transaction as shown by the instrument
writing between these parties have to say that il
my Judgment 1t creates most sacred trust, and i'm
poses most solemn obligation, which the courts
OF this State would enforce against the Institution
to the utmost extent of their powers.
This Institution, then, standing in loco parent
and entitled in that character to this writ for thu
recovery of this child and asking that the cusod,
OF him be restored to it, Should their petition b.
granted?
W hist this Court respects the mutual feelings o
affection and attachment which have grown up be
tween these relatives and this child during thei
most intimate intercourse, and which may bepainet
by separation, yet it has duties perhaps stern du
ties, to perform in the discharge of which it canno
be influenced by any regard to feelings and senti
ment only. The community at large, the State il
deeply interested in of this character, and the
Court in deciding between conflicting claims to the
custody of an infant is in many constrained
to award ii to that custody which can best provide
for its physical comfort and moral and intellectual
training and afford the certain guarantee thai
IT will not become burthen to the community
Nothing has been said i'll the testimony in regard
to these respondents, personally, that casts any re
proachHupon their character the proof that their 10
has been cast amongst that class of females wht
derive their livelihood from the needle certainly ha
no such effect but Prospects their ability to
the augmented expenditures that will be required
to provide for the maintenance and education
OF this boy he advances in years, and to con
troll his conduct, measuring that ability by the ex
perience of the past, it would seem their means ant
influence will be altogether inadequate for that pur
pose The fact stated by the mother upon her ey
animation, p" that they themselves wanted to pac
him at an Asylum" is an acknowledgment that the
did not expect to have the means of supporting an
educating him themselves.
The condition in which he was found by these Ia
dies, when, by accident it appears, he first cam
under their notice, and it has been described b
the mother, shows that these relations, though the
might have had the will to manage and provide 70
him, as they were bound to do, if he was unde
their charge and custody they alege he was We
they could not have had the ability to discharg
these duties. Much of the story of his boysh day:
so far they have been passed. is told in his smpl
words in reply to the inquiries of one of the benevC
ntc ladies. He said che didn't wish to go to schools
would rather run in the street than 90 to school
When asked where he had been during an interva
of six days, he said she had been at Mrs Simmons
had slept there, afraid to go to his mothers afrai
that boy would beat him; hadn't been at hi
aunts" Afraid of the assaults of unruly boys b
seeks protection under the roof of stranger. II
certainly should have been taught to flee from dar
ger to the home, which they say, they have provide
for him. that he preferred the idleness and royin
habits of the streets to the confinement of til
: school room, shows that he had been permitted
contract fondn5ss for that worst of all juvenil
propensites, running in the streets of large city
where there is always a tainted atmosphere, i
which youth is certain to imbibe the seeds of d
sease, which will break out at some future day in
moral leprosy that will render him oathsome an
dangerous to all aronnd him. This little boy wa
accidentally met by of the ladies connecte
with the Asylum several days after the first arrange
ment was made with his mother to place him ther,
rambling in the street in the condition that TIL
lady described in her remarks to the aunt when b
c came to complain of his having been placed ther
dirty, squallid and neglected; to which she made Il
: other reply, except, that 'she did not know wher
e the child was" Without any further comments o
/ these facts, constrained to say that. in m
opinion, the welfare and best interests of this BIO
: will be promoted by restoring him to this ASYLUM
where he was under the lawful custody and contr,
OF that institution when carried away bv these re
atives and SHALL therefore, pass an order in con
e formity Herewith.