The sun., 1892-08-26
The Rights of Incorporate Parents.

A curious question from Canada, on the
law of parent and child. has recently been
decided in London by the judicial Commit
tee of the Privy Council. which is the court
for the hearing and determination Of APP
peals in colonial cases.
The parties to the litigation were Mr..
and Mrs. SMART OF the province Of Ontario.
Mr.. SMART was addicted to the use OF strong
drink. and 30 much so that Mrs. SMART
found itimpracticable 1t to live with him. She
therefore left him, and took with her the
children of the marriage. whcrcupon the
husband endeavored to regain their custody
by means Of hdbtus corpus proceedings. All
the courts before which the case came in
the Dominion Of Canada decided in favor of
tho wife. Under the laws Of Ontario tho
courts have express power to dispose of the
custody OF minors under IL years OF age,
with exclusive reference to the welfare OF
the children themselves: but the question
was whether this authority extended to
children over tho age Of l2. The Canadian
tribunals decided that it did. and that Mr..
SMART was an unfit custodian.
The same view has been taken by the
Judges who constitute the Judicial Com
mittce OF the Privy Council of Great
Britain. They hold that 1.-THE modern feel
ing as to drunkenness renders habitual in
temperance an offence important enough
to be made the ground for disregardng the
pntria potestas." or parental power. Under
tho law as thus laid down. therefore. q
father who becomes an habitual drunkard
is liable to lose the right to the custody Of
his children.
This result is In accordance with the ten
dency Of judicial decision in this State and
the United States generally.
A case which well illustrates the doctrine
of the Now York courts in this branch OF
the law. is tho matter Of WATSON, which
came before Mr.. Justice DANIELS Of the
Supreme Court at a special term in Buffalo
ten years ago. The parties were a physi-
clan and his wife. who had been married in
1865 and lived together until 1876. when. by
the husbands direction, the wife took their
two children and went to live with her
own relatives in the western part OF
the State. while he continued to prac-
tise medicine in tho eastern part, en-
ploying housckeepcr to look after his
household. having determined to live no
longer with his wife, In 1899 he applied to
WIG ,ouAo w oNulu " MN thc CuSlOoy VI
the children. upon proofs showing that he
was able to support and caro- for them. and
that his general moral character was good.
One child was boy. fourteen years OF age.
the other girl of sixteen. The mother had
acquired such knowledge Of medicine her
sell as to earn an income by her practice as
physician. sufficient to provide them with
q comfortable maintenance and a good edu-
cation. Tho boy was not in robust health.
and the girl needed mothers care. Under
these circumstances Judge DANIELS de-
clincd to transfer them to the custody OF
the father. He had sent them away from
his homo when they werc comparatively
helpless. without being justified or excused
by any misconduct Oh the part OF his wife.
and the court declared TINT it would be
doing wrong to give them back to him.
Every well-considcrrd decision on this
subject emphasizes the welfare OF the child
as the test by which to determine to whom
its custody should be awarded.