The Hawaiian gazette., 1883-01-24


HABEAs CoRPus.
Before ne chief Justice. Opinion Of ~, Court.
1t appears, that in Dec 1879, on the arrival
Of number of Gilbert Islanders 10 the Board
of Immigration, married couple among them,
Ii Tau and Toaua from Apaiang gave their
daughter to Hawaiian woman, Kealoha and
her husband, Makanui. The Gilbert Islanders
understood that they were binding their child
for three years, or until their indenture of la
Dor here should expire, and it was so inter
preted to them by Hawaiian named Kaikala
who bad learned the language.
The Hawaiian foster-parents understood
that the child was given to them absolutely.
The Secretary Of the Board of immigration so
understood the bargain and had it SO inter
preted to the people through Mr.. Holland,
who is not now in this Kingdom, and cannot
give his evidence
The parents left soon after for residence
on the Kilauea Plantation on Kauai, and only
returned 10 Honolulu week ago. On going
to where their child was, they found that the
Hawaiian foster-parents would not surrender
her, and also that the child was unwilling TO
10 back to them The Hawaiians demanded to
be paid back $500, as their expense for main
tanning the child during these three years.
The father, Ii Tau then applied to this Court
for Writ of Habeas Corpus, and the child was
produced in Court and hearing was had. The
child appears to have been well cared for,
clothed and educated by her foster-pareuts, is
happy with them, speaks the Hawaiian Ian
gusge fuently, and assumed to have forgotten
her native tongue, but it was evident that she
still understood it. Her long residence with
her foster-parents, having had no communi-
cation with her own parents meanwhile, has
caused the child's affections to be thoroughly
alienated from her parents, who, however,
profess strong love for their child, which is
apparently sincere, and are very DESTROYS that
she return with them to their native land
1t is the custom among the Gilbert Islanders
to lend their children to friends but not TO give
them by adoption of other parents, and on
marriage, however young, the parents cease
to have control over their daughter. No articles
Of adoption were made in this case.
/ am clear that in the absence of an adop-
ton in writing according TO our law, the pa
rents have not parted with their right of Gus
tody over their child.
Should / then grant the Writ and remand
the child TO the custody of her parents to be
taken back to the Gilbert Islands,
Chancellor Kent says, 1.-THE father may OBJ
tain the custody of his children by the Writ of
Habeas Corpus, when they are improperly
detained from him; but the Courts, both Of law
and equity, will investigate the circumstances
and according to sound discretion, and will
not always and of course interfere upon Ha-
beas Corpus and take child, though under
IA years Of age, from the possession Of third
person and deliver it over to the father against
the will Of the child" They will consult the
inclination of an infant, if it be of sufficiently
mature age to judge for itself and and even
control the right of the father TO the possession
and education of his child, when the nature of
the case appears to warrant it," Kent's
Com. 1874.
1t is general principle also, that the Court
is not bound to deliver the child into the Gus
tody of a claimant, or of any other person; bat
may leave it in such custody as the welfare of
the child at the time, appears 10 require; and
in all cases if the child has arrived at the age
of discretion, it will he permitted to elect in
whose custody it will remain, provided its
choice, under the circumstances, does not, in
the opinion of the Court, lead to an improper
custody" Hurd Habeas Corpus, p. 46i.
1t has been well said that the Welfare of
the infant is the polar star by which the dis
erection Of the Court is TO be guided" Id. 632.
When the parent has voluntarily parted with
the custody and seeks to recoverft, if his right
claim would be inequitable to others or iniu-
rious to the child, or if no legal right to the
custody be preferred by any one, the reason
able wishes of the child should be allowed
controlling influence. Id. 533.
In Rexvs Delaval g Burr. l436) Lord Mans
field said, " The Court is bound &c debito jusii-
tids to set the infants free from an improper re-
straint; but they are not bound to deliver them
ove- to anybody or give them any privilege"
The Court must Judge for itself as to whether
the child is capable Of exercising a sound dis
erection and there is no arbitrary and fixed age
at which child's inclination is TO be consult
ed, and find that infants have been allowed
10 exercise their. discretion from nine years
old and upwards. Chief Justice Shaw said in
Pool vs.. Colt, II Law Reports 269, "There is
no doubt that the father is p1iDld fdcie entitled
to the custody of his child. But this is not an
absolute right. 1t may be controlled by other
considerations. If unable or unfit to take
charge of the child and educate il in a suitable
manner, the Court will not interfere TO take
the child from the care of persons who are fit
and able to maintain and educate it properly"
This was a case in which the child was a
girl OF 10 years, and the Court declined to
order her from the custody of her grand-par-
ents, with whom she had been living nearly
all her life, to that of her own father, though
IN good situation, pecuniary, domestic and
social and of good character, on the ground
that he had permitted by his acquiescence in
the child's long residence away from him, the
affections on both sides to.be engaged, and
state of things to arise which could not be
altered without risking the happiness aud in-
terest of the child"
This case bears SO close an analogy to the
one at bar and is from SO high an authority
that | regard it as conclusive.
am Of opinion that the infant in this case
has reached the age when she is capable Of
exercising a sound discretion and she has
shswn strong desire not to return TO the
Gilbert Islands. Therefore to compel her to
do SO would be at the risk of her happiness
and it is manifestly not to her advantage to
do so.
| therefore decline to order her to the Gus
tody Of her father. She may 60 free.
W r. Castle for petitioner
Ia