The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-05-30
THE SMALL HABEAS CORPUS CASE.

Judge Fanchcr Experimentation Writ
Necessary 10 Secure the Father His
Child.
The decision Of Judge Fancher in the case OF
Small Vs. st. Barnabas House, growing out OF
writ Of habeas corpus obtained by Small for the de-
livery Of his daughter TO his custody, has elected
much comment both outside and among the legal
fraternity. The excuse offered by Judge Fancner
that he believed the Episcopal minister to have
been Catholic priest is regarded as totally rree-
want to the question ct issue-namely, whether the
father to have the custody OF his own child or
not. Although there seems to be question OF
veracity regarding the presentation Of afidavits
going to show the good character Of the man, this
is also regarded as out OF the question. The
father was to be regarded as worthy person
until charged or proved otherwise, and, SO far as
can be ascertaIned, no charges Of the kind were
made. In conversation with Judge Fancher yes
terday q HERALD reporter elected the following
iniOrmatiOn:-
REPoRTER-what is to be done with the child
Is her father to get her or not
Judge FANCHER-She Will probably stay where
she is, unless the father takes out another writ OF
nabeas CORPUS found myself poweri Ea TO 70 40
the st. Barnabas House. She was out at service in
respectable family. The father can readily get
be served upon the woman VINO has the child In
custody. il gave Mr.. Small's lawyer the name and
REpoRTER-I have heard that afidavits testifying
to Mr.. Smals good character were presented
Judge FANCHER-Not at all. THIS Is q mistake.
did not know anything about him. When the case
was called heard the testimony from the minister
whom took to be priest and the priests are
ga fg M,n ese secR 70 % eT e hae
said that the girl had been brought to st. Barnabas
House by the mother; that she had been kept for
some time and that good home had been found
for her. was also given to understand that the
establishment v0uched Tor the family with whom
the girl haa been placed. asked the girl herself
q
that she did not AZ she went out Of the court
room, furthermore, I saw her turn around ana
make q face at her father IL was not question
OF religion. 1t was merely legal formaty which
prevented the father from having the custody or
woman in whose house she was, the parent
could have taken her. The fault existed in the fact
that the writ was served upon an establishment
which no longer had possession OF the child
The Common Sense Legal View OF the
Case.
To THE EDITOR OF THE HBRALD:-
We are at q loss to understand the letter OF Mr.
Justice Fancher, which appears in your issue OF
this morning, relative to the Small habeas corpus
case. in which we were counsel for the petitioner.
The sworn petition OF the father and the anil
davits Of the mothers brother, upon which Judge
Fancher allowed the writ show the mother to be o
confirmed drunkard and the father to be sober,
industrious man. capable OF properly caring for his
children and the father expressly swore in his
petition ''that on or about the Gath day
OF April 1873, his said wife sent
your petitioner two Of his said children,
and placed one child, named Elizabeth Mary
Small Of the age OF thirteen years, in the care and
custody Of that branch Of the New York City
Protestant Episcopal Mission known as the ST.
Barnabas House, 304 Mulberry street, New YORK
city; that your petitioner and his said
wife are members Of the kSmn Canac Gh1rc
in the Roman Catholic faith, and that said child has
been educated in that faith and no other, and 10
tuition is not Catholic institution, but 49, as your
petitioner Is informed and believes, Protestant
facts, enforced by counses remarks in open Court,
and after his own declaration in answer thereto,
as correctly reported In the newspapers, that ne
would not consider the religious question at all,
Judge Fancher can have fallen into any sucn deti-
sion as his letter Will suggest, Is matter which
But does Judge Fancher mean to say that bcliev-
ing that Catholic institution had taken away
Catholic fathers child, he thought the law gave
tant institution take away any Catholic Or Protes,
tant chlld from its parents control and be allowed
was Protestant, and did he intend to faysr what
he considered Catholic institution Or, finally,
apart from the religious question entirely, has not
any sober, industrious, welbehaved father, VINO Is
able and willing to support his minor children
right to have them as against all institutions and
all personsY is not this the foundation law or so
cety and OF the domestic relations and ought this
not to have been enough to have guided Judge Fam
cher in his decision or at least to have led MIN to
order an investgatonf All these questions lead
TO but one answer and the pubic, we think, have
already given IL.
The father has, since the decision, availed HIM
self or natures law, and has taken his child into
his custody, as he had right TO do, and Judge
Fanchers good intentions are too late and no Ion.
ger necessary. BREEN Il SPELLISSY.
MAY Is, 1873.
The judicial Disposal OF Chf1dren-Let-
ter from the Ex.surrogate.
To THE EDITOR OF THE HERALD