The Morning herald., 1876-01-11

tender regard for the natural shectiOn ana
rights of the parent, and for the welfare
| and happiness of the child that, If the latter
has reached the age Of discretion, the Court
under Habeas Corpus, in the exercise OF
sound discretion, will remove all restraint
and allow It to make its own choice, ana gc
where it pleases, but will sever order II 1ntc
the custody of an improper person, OF undei
some circums, ances permit 1t to 60 into sucn
| custody. The age Of discretion is ascer'
tanned not only by the years OF the cnlld
| but by its capacity Information, lnteihgence
and Judgment. The Court will look to all
these evidences of capacity and IF " nndi
the child able to reason sensibly, though az
. child, IN regan to It's condition and its
preferences and it's prospects, It viii take lts
| wishes into consideration. In Comm. v.
Tavlor, 8 Met. 70, Chief j. Shaw said, "ln
point of law, q child of such tender years,
seven or eight, has no will, no power OF
Judging or electing; and therefore his Will
and choice are to be wholly disregsrded.
The natural and strong feelings of ciltld,
which induce him to cling instinctively to
those whom he has been accustomed to re-
| gard as his natural protectors, cannot be re-
garded as the exercise of legal will or an
| Intelligent course" In Com. b. Hammond,
10 Pick, 274, the child was between eleven
and twelve, and its wishes were consnlted.
In The People q. Chegaray IS Wend. 6s7
there were three children, aged respectively
| fifteen, thirteen and nine years. They
| were all consulted respecting their wishes.
In NcDowle's case Is John 1928, the youngest
| child was not more than nine anu was con
suited in respect to his wishes not only by
Lsac T.. h,,t ffor
gestion that improper means had been used
| by the master, by three gentlemen OF the
bar appointed by the Court, and his wishes
were respected. In State .. Scott ana wye,
| 10 Foster 274, the child was eleven years
old. The Court appointed a committee OF
three members Of the bar to tnterrogate the
child, who reported that she was OF suffi-
cient understanding to choose, and the
Court suffered her to make her election.
These and other like cases show the stand
ard and mode by which Courts are accus-
toned to ascertain the age OF discretion. IL
was on the application of this rule that, at
the outset of the hearing, the relator through
his counsel withdrew his demand for the
custody of his daughter Mary, upon her ex-
pressing her choice to remain with the re-
spondent. The two younger children are not
quite enough advanced IN age or under
standing to come within the rule of discre-
tionary choice, and their custody must
therefore be decided on the general princi-
Piles already stated, and the particular cir.
cumstances Of the present case. In Rer ..
Dslaval and others, 3, Barr, 1874, decided in
1863, it was held by Lord Mansfield, that
the Court is bound sz dsbito jussitiae to set
the infants free from improper restraint;
but they are not bound to deliver them over
to anybody, nor to give them any privileges.
This must be left to their own discretion
according to the circumstances that shall
appear before them" And In tho same
opinion he said, "the true rule is, the Court
are to Judge upon the circumstances OF the
particular case; and to give their directions
accordingly" Chancellor Walworth, in
Mercisn y. Ths People, 25 Wend, 64, says,
"The American cases show 1t to be the es-
tablished law Of this country that the Court
or officers are authorized to exercise dis
cretion; and that the father was not entitled
to demand delivery of the child to him,
upon habeas corpus as an absolute right"
Chief ]. Shaw in CON- .. Briggs l6 Pick ,203,
where the Cour laid down the stringent
rule of the paramount authority of the fa-
thcr, decides that, "As q general rule the
writ of habeas corpus and all action upon
it are governed by the judicial discretion Of
the Court, in directing which all
the circumstances are to be taken
into consideration. In the case Of
child of tender years, the good of the
child is to be regarded as the prominent
one." In that case the wife had separated
from her husband without lawful cause,
taking with her their only child, and in al
lusion to this circumstance the learned
Chief Justice further remarks, " the Court
ought not to sanction the unauthorized sep
aration of husband and wife by ordering
the child into the custody of the mother
thus separated and out of the custody of
the father. If there be any good cause Of
divorce, either vinculo or nensa, and
proceedings are instituted, the Court will
then make such order as to the custody both
OF the wife and the children as the cirrum
stances of the case may require In th'
D. Hauteville case, heard before tie Court ~
General Sessions, of Philadelp' Ia in $40
it was decided by the Court, and - '''''
by the Counsel of the rels'or "
seeking possession of his child.
right Of the father to the custody
child becomes forfeited either by his !A.i,.
ness to take charge of its morals and in er
ests, or BY such misconduct as would slGoa
good ground for divorce a vinculo matri
monii. There was no authority cited On
the part of the relator in the case now
before me, qualifying, much less contradict
ing any of the doctrines just used. The case
in Coun. 20, related to the settlement of 9
pauper child whose parents had beer
divorced, and was a contest between two
towns as to which of them should be bur
dened with its support, and did not toucl
the question of custody. 1t is the common
practice when divorce has been obtained
either by legislative enactment, or'by a judi
ciaf decree, that the children are takel
from the party for whose fault the divorce
was granted, and given to the innocent
parent. In this respect the case of the re
lator is not an exceptional one.
In view of these principles and of the evi
dence submitted at the hearing 1t is Difficult
| to understand on what ground or pretens