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a2 - A Burns Conrus Bussz-rs Cass Lag 7‘13 785.3.QP3774N...

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Unformatted text preview: A. Burns Conrus. Bussz-rs Cass. Lag? 7‘13, 785.3..QP3774N) ( K 6 i77.Lf\ [Doubted a: parts M‘O‘ldlan, 1831, 1 Dowl. 34.] (K. a 177-!) On a return to an habeas corpus issued at the suit of the father of the child. Cause was shewn that the detainure of the child was at the desire of herself who wm about six years old, and with the mother who lived separate from her husband. At chambers before Mr. Justice Aston—the father insisted upon the child’s being » delivered up to him or he would take her by force. The Judge on this told him he would commit him. It appeared that the husband was become a bankrupt, and that the mother was forced to live separate from him on account of ill treatment: and that the child was likely to receive an improper education with her father, and was not well used. Lord Mansfield—The Court, if the parties are agreed, will make no determination. [749] If the parties are disagreed, the Court will do what shall appear best for the child ; fix on a boarding school and the Court will have no objection : let the child in the mean time stay, so that the rule may be made with the concurrence of the family. The natural right is with the father; but if the father is a bankrupt, if he con- tributed nothing for the child or family, and if he be improper, for such conduct as was suggested at the Judge’s chambers, the Court will not think it right that the child should he with him. [It appeared to be held in a late remarkable cause of Gz'j'arri and Gifl'anl before the Lord Chancellor, that the paternal authority as to its civil force was founded in nature, and the care presumed which he would take for the education of the child ; but if he would not provide for its support, he abandoned his right to the custody of the child's manner forbidden by the laws of the State, the public right of the community to superintend the education of its members, and disallow what for its Own security and welfare it should see good to disallow, went beyond the right and authority of the father.’ And this perhaps, is the meaning of that passage in the famous cpistle of Brutus to Cicero. ”Sed dominum ne parentem person, or if he would educate it in a quidem majores nostri voluerunt esse." That the power of a father over a child, however despotic the law allowed it to be in other respects as to the child, itself, was yet subordinate to the power and constitution of the State, so as not to justify any thing contra rempublicam. Upon this construction, I think the argument drawn from this very passage to prove those epistles not genuine will have little weight] ...
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