The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1910-02-19
SUMTER. s. c., SATURDAY. FEBRUARY 10 1o1o

io" aoo"e the contrOl or their par
ents, which the courts Of England,
and this country have always en-
forced.
When the parent, in asserting his
claim to the custody Of the child,
disregards the correlative right of the
child to care and maintenance at his
hands. it is universally held that the
right Of the parent is at an end, and
the child for itself, or another on it's
behalf, may assert the custody and
control of the parent to be an illegal
restraint upon it's liberty. This lib
erty Of the child, the right to be free
from such illegal restraint Of the pa
rent, the constitution forbids to be
taken away, except by due process nf
law. Within the protection of this
provision of the constitution fall also
certain rights Of the parents against
each other with respect to the custody
OF their children. The father, being
charged with the support of his chill.
dren ordinarily his right to their Gus
tody Is superior to that OF the moth
er. but when the father relinquishes
his right to the custody, or forfeits
by his conduct, there can be no doubt
that the mother. under her family
right, is entitled to the care and GUS
tody and care OF her child.
I'm other words, as soon as the
fathers right falls away, the moth
er's right Immediately takes its place,
and must be recognized by the court,
unless 1t be relinquished or forfeited
The rights Of the father and mother
are both subject to the still higher
right of the child to have it's welfare
safeguarded. 1t seems perfectly clear
that the general assembly can not en-
power the father, at his own will, to
deprive the mother and child Of these
legal rights so long established as ele-
ments Of personal liberty.
IF these family rights of the moth
er and children were not within the
protection Of the constitution, under
statutes like this, the father could
exercise tyranny revolving to all
sense Of justice and conceptions of
personal liberty. He could at any
moment. capriciously break up his
family, take all his infant children
from their mother without her con-
sent and bestow them upon strang-
ers; and the courts would be power
less to give any relief, though mani
festly such course Of conduct would
itself be plenary proof Of relinquish-
ment Of the duties of the parental
Office.
1.-The argument comes to this: The
guaranty Of personal liberty express
ed in the constitution means, above
all else that no human being under
the protection Of the constitution, can
be placed under subsection to the ar
bitrary power Of disposition and con-
troll Of any other human being. The
legislature can not provide that the
father shall make final disposition of
the child's custody and thus settle
an issue contested with him, in his
own favor.
There Is another provision of the
constitution equally fatal to the stat
ute. regarded as an attempt to confer
upon the father arbitrary power to
grant the custody of his children 10
any other person, he may select, the
constitution requires that the legisla-
tive, executive and judicial depart
ments shall be forever separate and
distinct from each other. The same
provision was in the constitution in
force when the statute under consid-
Grafton was passed. The question Of
the custody of minors or their illegal
restraint has always been recognized
as judicial question to be determin-
ed by the courts.
From these considerations, it fol-
lows that II the act under considera-
ton be construed as an attempt to
give the father the absolute right to
dispose Of the custody Of his children
by deed or will, it must be held un-
constitutional. While the father can
not be empowered to convey away
the rights Of the children, or Of the
rights Of the mother with respect to
their custody, there is no reason why
the general assembly may not pro-
vide that his deed should be binding
on him. The result Of this construc-
ton OF the act would be to give effect,
against the father himself to any deed
made by him In accordance with the
statute, so that after he had made
such deed he cOuld not nc oro;n.+