State v. Paine

State v. Paine - if .{f ', E” ' r f r JAOIBONI "...

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Unformatted text preview: if .{f ', E” ' r f r JAOIBONI " 3 Meal-uh”; u. would have been orought to have firi- odifl'erontverdiot. ’ rly rong. otiol factor and hod thojury found fir tho ict. 0n theomnrymoithor tho notary unoooetioo with any cortth o! recol- Tho notory apron-1y oong hon ".bmthopmfuhotthoyworoc 'I‘houidooeooooduceotoprove thou Mun-odd not hon disturbed] pohlio-orthoooohiorol thobonk lootioooooo-bot occur-rod inthio any weight to hie evidence for tho! belief is referable solely (to. his knowledg- ol his hohih o! dili‘oooo in such «no. The root‘s-on entitled to ho weighed and eon-Mend y thojury. oooonotltutlu; o cm in; to pron tho foot of dilipnoo. but half was not ouficiout pool. 'l‘trio «id we lo mowhot olrvcrr‘thuood by Mr. [Aloud testimony; who olotoo. notary ilotnwliouo when to ooud notices in th one. But hi0 own hawlodto no the duh-duf- rookie-co ooom to have boon vote and unoortoin. Ho lion“; said about it at thohoord. ond ho nods " pa poovofllco to ndtlrou hin- loovno the matter otill in mm. uncertainty. Mr. Rooo ooo not logo]. the wholth proof loll tho queotiooo upon which the defendant‘s Ii . in doobt and “cod-ill]; no that we nhould bo overt-ruin; our lon‘ liohod undon- Inl- upoothosnlfioogmwoto‘nntonow trial. Mr. the W "‘n--v~,~‘ u were. y“) 1 he.“ u... .‘x «.59 y w m‘sfl- .4 1:1. In» l='_ -, Aiwvfimu i .' “'7 " 1""1 .-, —— . JACKSON: APRIL .. \X" T32 Sun on thRdatiooq/‘Pom wraith; ," I. Tho father. IpOI the principles ofconuroo low. is entitled ‘to a; oxeluoivo outed] of his children; and it he have the custody of thermo court of common low will not deprive him of it, except for on ohnoo of trout. either by improper violence or i.- propor rootroiot.ood such or would justify the iooooooo of I writ of Hon-m for their protection. . _ 2. A court of common low in not bound in o procoeding by Moon can. to dollar tho child to the (other. where ho ho: not the poo-ouion oflt. but may not upon Bull-ero- tion. occordin‘ to the circumstances of tho case. In oll oochcoooo.tho poo! loodio‘ objoct should be. the interest and welfare of the child; and therefore. when tho child in of suficient up to jud‘o for itself. the court should loan it togo where it llooooo. 3. Tho wife has no right by common low to the custody of tho childm‘no tho ' husband. and she cannot be looked to by tho court. except so hr .- rho noy be con- oidored in reference to tho tender up: of tho children and other non-identical. on tho most suitable person to have control of thorn for their benefit.- 0n the let day of March, 1841, William L. Paine presented a petition to William C. Dunlap, one of the Judges of the Cin- cuitCourts of the State of Tennessee, in which he stated that his wife. Eliza Paine, had abandoned him and taken with her his three children, Henry. Sarah. and John, minors. and thot she detained them from the custody and possession of the petition‘ or, and praying the issuance of the State’s writ of Aden our.“ commanding the said Eliza to bring the said children before him at a day and place to be specified. and show canoe, ifnny she" had. why the said children should not be restored to his possession. This writ was issued, and served on the said Elisha”- manding her to appear before the J udge of the Circuit Court. to be held at Sommerville, Fayette county. on the 3d Monday in May, 1841, and have with her the said three children. Hon- ry, Sarah. and John. She filed an answer, in which she ototed.thnt“o long and oontinuodoerieoof acts manifesting oniodMooldnooo a e. “MraMmmwmmmmfiwmmemtmanner ~ {drilli-JALasonfl i 1 fl msfinmmam‘m; ~amt neglect on thepertofhersaid husband.wa was added violent and abusive language, without provocation. and finally inhuman treatment left her no alternative but to drag out a wretched and miserable existence. or abandon a home where she believed it would be neither sail: or prudent to re- main." She admitted that she tool: with her the three chil- dren; Sarah, five years of age; Henry. aged about seven, and John, about three years. She insisted. that the tender years of said children required the constant care of a mother; and de- nies that she had exercised any illegal or unwarrantable oon~ struint over either of them, but had exercised only such con- trol as a parent, anxious to promote the morale of the children, should exercise. She stated, that he was incompetent to have the control and possession of the children, and that she was unwilling that he should have it, for the reason that he was a miserable hypochondriac, petulant, capricious, and violent in his temper, and that, in the event that he should have the pos- session ofthern, they w0uld be thrown chiefly in the keeping of negro slaves, and their mental and moral culture neglected by mason of his absence from home, &c. &c. The relator replied. He denied that he had treated her whl. neglect or insult, or inhumanly, or that he had ever treated her turn riotous-c, except on one occasion, when, many years below, he slanted her on the lace slightly, in a. moment of ir- ritation, caused by her charging him with falsehood. He al- lctlgod that he had been unhappy, but that it was in oonser queued ol‘ the had temper and improper treatment of respond- will. lie denied that he Was from home more than usual, and then only in the ordinary pursuits of business, 80c. doc. and vin- ri.cate.l ins right to his children, and his fitness for the task of [ruining and educating them. He stated that he was not desir- ous of taking the children entirely away from their mother, but was willing that she should have tree, regular and unem‘oar» tune-ed intercourse with them, provided they should be in his coinsnl and where he could enjoy their company at pleasure. Hun; was proof tuken, by which it appeared that W. L. i‘ ow, tn. whit-1r, a widow:;r, having a competent estate, con- sisting of real and personal property, and having three children . 5 l «Psi- .‘ERL. Aral . . [Tulane-tasuhrhaetfshe'uwstdsq'ni'.‘ r. by a deceased wife, intermarried with Elisa Painoi‘? She had some property. They had three children, and were both memv‘ bers of the Methodist church at the time she abandoned him. "I } Some witnesses proved him to be a man of good moral charac- ' ' ter in his public department. The preponderance of the testi- mony is, that he was hypochondriacal, peevish and Capricious. , and instances of coldness and neglect towards his‘wife were proved. Conjugal infidelity, on either side, was not charged or proved, and proof was not wanting to show that both were com- petent and fit to have the custody and control of the children in most respects. The case was tried at the January term, 1842. by Judge Dunlap; and he being of the opinion that the children Henry. Sarah and John were not “unlawfully restrained” by said Eli— za Paine, directed that they “be restored to their mother, the said Eliza3" that “the petition of said relator be dismissed, and that he pay the costs." From this judgment he prayed and obtained an appeal. H. G. Smith, for the relator. The object and eflisct of this writ of bobcat corpus are to discharge persons from unlawful impriSOnment. Every restraint upon liberty is, in the eye of the law, imprisonment, wherever may be the place or in what- ever manner in which the restraint is effected. 2 Kent’s Com. 26. . . . . When the writ is directed to private persons to bring up in. fants, the court is bound as: debitojuuicia to set the infant frag from improper restraint. Re: vs. Dolaoal, 2 Bur. 1481. Detention of the infants by a person against the willof the party entitled to the custody of them, is an unlawful fore an improper restraint. Detention by one against of the other, of two or more persons herring an equal and m right of custody, as where there are me or more or: other guardians of the person, is not an illegal restraint would. be removed by the writ of ltabeas corpse Butthn ap- plies where there is a joint and equal right-of custody—not where the custody is claimed by equal, distinct and rights. There cannot be equal, separate and adverse m w {5 i \ ' it 3 u “."m. "w . “:5‘ —~ .m; 7 " W A ‘IQ gt" " ‘Is. ‘ f 7 {7' r. L t t i mamas-am , ,liviug‘separatemavenotajoint equalrighttothscnstodyofthechildrenofthemardlge. One ortheothsrhasthsbetteraudexclusive righnand thisisthe his children—even against the mother. Shelford on Marriage and Divorce, 677, 679; 18 Wend.642; 19 id. 16; 16 Pick.905; 1 Bl. Corn. 665); 6 East, 2211; 31 Common Law Reports, 164. This is a universal principle in civilised nations. It is the natural law—the Christian law. It is founded in the physical, moral and intellectual superiority of the male sex. It results from the duty devolved by law on the father, to maintain, edu- cute and protect his children. To discharge the duty, requires the power and involves the right. The right is a legal right. and it is coupled with an interest and will be enforced at law. The mother, as such, has no authority over her children. Reeves’s Dom. Rel. 296; 1 Bl. Corn. 463; 9 Fun. Eq.612, n. h; 18 Wood. 642. The right of the father being exclusive and legal, the courts will enforce it by the writ of [taboos corpus. The language of the cases is, that the court is bound to do so. Shelford on Mar. and Div. 678; 16 Pink. 205; 31 Cum. Law Rep. 169; 19 Wood. 16; Manny’s 0858 cited, 6 East, 223; Jacobs, 261, (cited Shelf. 680, u.) 31 Corn. Law Rep. 376; 2 Sevy & Rawle, 1'74; Alston vs. Faster, before Chan. Buckner of Miss. in 1841; 19 Wend. 16; 18 Wood. 687. i ' The right will be enforced in favor of the father, against the mother, notwithstanding provisions contained in deeds of sepa- ration for their residing with the mother. Shelf. 680; Jacobs, 2561; ll Ves. 631; Lyaou’r case cited, 6 East, 222, (Shelf. 680.) In no case will the court, on [labour corpus, take the children from the father. 9 I. B. Moore, 978, (17 Eng. Com. Law Rep. 169.) The husband is entitled to the custody of the person of his wife. Reeves’s Dom. Bel. 66; 2 Kent’s Corn. 181; A Petersd. Ab. 91; Show 667; 16 Pick. 306. It being thus clear, that the father has the legal and exolusive' Mohawyofhischildrenagninstallpersonneventhe The as... has the natural and legal right to the custody of (all the cases cited. r 5 3 -r q i ;. i iii 1 . «1,33 ' 6} to 2} years; WuMoatIt’s, female 6 years; Web’s, final- f 7 f ’7. WT" W 7""? 7' W {ii i mother, detaining them contraryte his willrthst L '_ boas corpus is the proper writ to enforce this right. ttrernams _ to notice on what principles the courts act in executing with», v' holding their powers at the instance of the father.. I s, When the children are of years of discretion, the court inva~ g i if -‘ riath places them at entire liberty, and suffers them to go where _j . ~. . they please. Snob were ' the cases, Mr, 3 Bur. _ .1431; ;~ ' Smith’s, 2 Strange, 982; McDowlo’s case, 8 LR. 898. .When the infants are not of years of discretion, the court de- : .1 livers them to the father or not, according to circumstances, re- - ' garding mainly (be interest of the child. See cases See The presumptions are all in favor of the father. The entire burden of proof lies on the party denying the father’s claim. It must be a clear and strong case of unfitness on his part, as being a vagabond. 8w. that will be cause for withholding the children. Bugg‘: case, 16 Piclt. 206. . Open and notorious cohabitation with another woman than his wife, no cause. Grecuhill's case, 31 Com. Law Rep. 164. No cause, though the child was not the offspring of the ap- parent father. Mun'ay’; case, cited 6 East, . No cause, that father has no place of residence of hts own. , Westmcath's case, Jacobs, 261, (Shelf. 680, n.) ' Ill usage of wife, compelling her to withdraw from bun, no ' cause. 19 Wend. 16, and other cases. . No cause, the infancy of the children. 19 Wend. 16—1th 6}, 4} and Qfi years; 81 Gem. Law Rep. 168; 16 Pick. 906, 8 or 4 years; Jacobs, 261, 6 years? months; 8 Berg. & Rawle, 174, 10 and 7 years; 31 Com. Law, 9 and 6 years; We case 6 East, 9322 cited, 6 years. . Ndr is the sex of infants cause. GM: case, females 10 and 'I saw Islcy’s, female 9 years. » Nor is the mother’s fitness. Shelf. 6’19; Jacobs, “1; 81 G. L. Rep. 164; 16 Pick. 906; 2 Berg. as Kevin. 174; Allan’s ease helbre Ch. Buckner. . ‘ ’Nor is the poverty or humble station of the father. V . .. V.|_ . . .rh.’l-’&!-.\§§; t r. 1,9,. V 1,31: ,l M” ,. .. I gangs .1 t . . .nw.-. ., 4..-, . per»... “1.49 ram.“ 1.: . . r, . I f f ' fir f i f l f N 2* “us ' JACKSON: at a ‘ ' mm on the nuns-r run u. my , a Nor divorce or cause of divorce. Manny‘s case cited, 6 East, 999; W: case, 31 C..L. IL; Addich’s case, 3 S. t. R. The mother’s good character is no cause for denying the cus- tody to the father. In no case is such principle alluded to. The facts of this case do not make out such a case against the father as by the authorities will authorise and justify the court in refusing to restore the children to him. 31 C. 8: R. 161; 2 Strange, 982; 8 J. R. 328; Rear vs. Dolasal, 3 Burrow, um; 13 J. R; Shelford,678; 19 Wend. 19516 Pick. sos. ‘ G. D. Scurvy, on the part of the defendapt. We contend ' that the court, in this summary proceeding, cannot inquire into, nor try the right of guardianship. All that can be done, is to see that there is no illegal restraint; and if there is, to deliver the party from it. If the party illegally restrained be an infant of tender years, and incapable of making an election, the court will form an opinion for it: and in making the election, the court ' will not consider, nor adjudicate upon, the rights of the father or the mother, but will begovorned exclusively by the inter-cu of the infant. These principles are well settled both in England and Amer- ica, and it is believed no authority can be found to conflict with them. In the case of The King vs. Ddaoal, 3 Burrow, 1436, which was an application on the part of a father toohtain possession of his daughter, who was restrained for the purpose of prosti- tution. Lord Mansfield delivering the opinion of the court, says: “In cases of writs of lichens corpus, directed to private persons, to bring up infants, the court is bound in dcbilo justicia to set the ‘ intent/inflo- improper restraint; but they arena: bound to deliver (Lain over to any My. This must be left to their discretion, ac- cording to the circumstances that shall appear before them." In this case, the girl, being of sufficient age to judge for herself, was discharged from the illegal restraint, and left to go where also pleased. The cases of Ra: vs. Chit-hon, 1 Strange, 444, and Rex vs. Smith, 2 Str. 712, are to the same point, and cited by the court. The case of Ra vs. quh'ns, 3 P. W. 161, re- cognises the same doctrine. A .matuucscwWWMu-mmm "yr-1 i; K i I? i F" f’ fit ‘t ’ APRIL resumes -' ~ [munflm‘hlfiumml In Bacon, title Habsaa Corpus, b. 13, it is expressly W. ‘3‘ 5 i that on writs of labour corpus to bring up infants, the courtwill not enquire into nor try the right of guardianship. The Ameri‘ ‘ can cases which recognize the principles. above stated, [are numerous. an application by the testamentary guardian to obtain the pos- sesfiun of his ward in the custody of her mother. The applica- tion was refused. The court say, “The course and practice of the court in these cases was only to deliver from illegal re- straint, and not to try the right of guardianship or deliver the infant over to the custody of another.” The case of Walden, 18 Johnson R. 417, was an application by a father to obtain possession of his infant child in thecustody of its grandfather. The application was refused. The court say, “that the child cannot be considered under any illegal re- straint;" that the possession of the child “is not a matter of right which the father can claim at the hands of the court. The at- tention of the court will be directed to the benefit and welfare of the infant.” The case of McDowk, 8 J. R. 328, was an application by the father to obtain possession of his two sons in the custody of the society of Shakers. The court recognize and act upon the principle, that all they can do, is to deliver from illegal re- straint. The case of The Commonwealth vs. Addich and uni/b, 6 Bin. 520, was an application by a father to obtain of two infant daughters in the custody of their mother, an adul- teress, who was then living with her paramour. The applica- tion was refused, upon the ground that the court could not try the right of guardianship: they could only deliver from restraint: that their anxiety would be directed to the children; and they, on account of their tender years, stand in need of the assistance and care of their mother. vs. Smith, 6 Green, 463. the same principles are and acted upon. Inthecase of Tito UnitcdStachVB. Green, 3 Mason 8.488, Judge Story, in delivering the opinion of the court, said: “It is an entire mistake, to suppose the court is at all events bound to deliver over the infant to its lather,“ thattbe latter has II absolute vested right in the custody. V ' 67 i The case of Wollstoncrryt, 4 J. 0.11. 80, was _ InthecaseofT‘s . . nu. u. um new“ »-.n,.mw~ mtmmummmm .mxmmsondtigefinsmut-.mmm‘file. . r 47% ‘. 4px t - }.' r i F "raw" r’ »_ ;‘ (mum‘sM-dhhseam] 3"!‘hesnssstMIatelydecidedinPennsylvuia, Walso‘anapplleatimonthepartet‘thefathertoobtainthe custody of his infant child in thepossessionef the mother. In thiseessthecourtgofullyintoanmminationofallthecases enthssnbject. androwgniasaadactuponthoprinciploson whicheerely. Theapplicationwasrefused. Thepossession lefthemetherwasnotconsideredasillegalnndthecourtdn the exercise of their discretion. considered the interest of the infam. This case. together with that of Addich and several others. settles the principle. that in judgingof the interest of the child. pecuniary considerations alone are not to be the govern- ing principle: the health, the morals. and the comfort of the child. are to how great weight. ‘ 'l‘lrecuse in 6 East. 991; in 9 J. B. Moore, 5393; E. C. L. R. and the case of (Jr-scald". 81 E. C. L. R.) all of which are confi- dently relied upon by the other side,) are not in point. There is no principle admitted or settled in either of the above cases in conflict with the principles for which we contend. And so far as these cases can be considered as authority in the case, they go to support the positions assumed by us. The cases of De Menacon and Skinner were applications on the part of the mother to obtain the custody of children in the possession of the father. The applications were refused, for ruinous which we will state presently. The Case of Greatlu'll, though in fact an application by the father. was placed upon the same ground and brought within the same rule which governs when the possession is with the father, and the mother seeks to deprive him of it. The facts of the case are: “That the father had rented lodgings for his wife and children, and during his temporary absence the with aban- doned the house. leaving the children init. Her brother after- wards abducted the children and placed them in the custody of the with." ' Denman, J. in delivering his opinion. says: “There is no doubt. when the father has the custody of his children, he is not to be deprived of it, except under peculiar circumstances. and thew do not appear in this case; for. although misconduct is imputed to Mr. (heenhill. there is nothing proved against him, .-u:,t..c;z..;‘Loathiwwilhkm‘tsdfi‘lw . r VAE““_,'I'_II”-,”l§l,st' [munemdn-mmtf? 9;. which has ever been held sufficient ground for dren frcmtheir father. And Kabobththde this will befoesdomfallisgwitbiuthgsscml misfit-(Mk Mathsde misfits hommud byvtkefathr. audits dis _ p charge qftlwsc whostloshadqqnistadthysbaald bathswbsr’s '1' V ' Admin cath tobamoosfim Intern; than .33: outg'biscauodymad if». ex concessisbshasan'gh locki- M « 51'? day be ram .” Littledale, Judge. in giving his opinion, says: ' “The children were is qfl'oct in the custody of the father. in a place selected by him. and have been removed. and he only soda to bring tires back." It is manifest, that this case was put in the same class, and decided upon the same principles which governed in thecase ostMauwflhand thecaseofSkiusa'. where the possession was with, the father. and the mother or some other person seeks by habeascmpss .to deprive her of i. These cases rest upon the ground. that unless there is illegal restraint. there can be no action of the court; and so far. they are authorities for us. The principles determined in these cases are, that the father is the natural guardian of his child. His custody, therefore, is the legal custody, and the legal cus- tody is by presumption of law the free custody. Now. the custo- dy being by presumption of law the free custody. there is non thing upon which the writ can operate. The court cannot set, because there is no illegal restraint. Remove this presump- tion of ‘ffm custody." (which may be done by proof of corrup- tion, depravity. inability to take care of the child. or just ground to apprehend cruelty on the part of the father.) and the court will then act. and in the exercise of their discretion may deprive the father of the custody. The distinction is here. that where the father has the possession, the power of the court is limited; and in the language of Judge Denman. “he cannot be deprived of it. unless under peculiar circumstances,” via. inability toteke care of the child, depravity. disqualifying him from . educating the child. or a just ground to apprehend cruelty his part. When these facts are made to appear. the puss-pose that his custody is the free custody is rcbsmd. or rather a coun- ter presumption is raised of illegal restraint, and the court will then proceed to act on the writ, and deliver from that restraint; umemimzamuam nemmmrevzxmmmmmwm ww-gnmmmwé- not» i? 3 i ' nus-u an n- ame-u: has n. my andifthechild heincapebleof formingljudgmcma “1000011 wilhintheeumiseof their discretion. make an election for in In thecue offlkiuer, the court expressly say that they have nopowertoaet. Why had they nosuch power? The an— svmris plain. There was no illegal restraint; there was no proof of depravity or unfitness on the part of the father, rebut- tiagthepresumptionoflaw, thathis custody was the free cus- tody. _ ' The caseofNicl'ason, 19 Wen.R. 16, and the caseofBiggs, 16 Pick. R. 203, are placed precisely upon the same ground of the case of Shaw, Dc Mam-'11: and Grealtill, and belong to that class of cases. It is true, that in these cases the distinc- tion is not so clearly stated: yet both of these cases went ofi‘ex— clusively on the ground, that the wife abandoned the husband without any cause whatever—41s in the case of Grmhill. In the case of Nicbmon, the court use this language: “Unless the case can be materially Varied, Mrs. Nickerson has greatly mis- taken the duties and obligations which devolve upon her by the marriage vow, and she is now living in a state unauthorized by law.” In the case of Riggs, the court say, “that unless there is some justifiable cause of separation, the court ought not to sanction the unauthorized separation of husband and wife, by ordering uh: child into tltc custody tfdw mother, thus separate and out of the custody of the father.” What does the court mean,_by “ordering the child into the custody of the mother?" The child was already in tin: mother’s custody. Is it not manifest, that, like the case of (ireculuill, the court considered the unauthorized abandonment of the husband by the wife, and the taking of the child. as equivalent to depriving her of the possession, and bringing the case within the rule stated by Judge Denman, in the Gremlin case. In the case of Nickenon, the court cite and rely upon the case of [)5 AIqu and the case of Skinner, and the observation of Lord Eldon, in the case of the Duke of Bedford, (in which he states that the father is the natural guardian, and places the right of the court to interfere upon the breach of that trust,) as authority. v v“: é an; .0.” coon-w", wwwr l f'” i {H i l'l‘hlueenthrdethlethmwtnml W. T._'Brows, on the same side. ‘ Timur, J. delivered the opinion of the Among the multiplied duties of a court, there are none the discharge of which is attended with more pain and regret than those which interfere with the domestic relations of husband and wife, parent and child. These relations are of sosacred a character, and involve to so great an extent the peace and hap- piness of mankind in general, that it cannot be otherwise than a source of deep mortification to a well-regulated and~humane mind to be compelled publicly to investigate and determine conflicting rights arising out of feuds existing between them. This difficulty is not lessened, but increased, by the differ- ence of the sources from whence our law is derived; on the one hand, the common law, with its stern and iron-bound prin- ciples based upon the manners, customs and thoughts of our ancestors a rude and undigested people of rough energy and indomitable pride, addicted to arms and considering battle and conquest as the only great and glorious duties of life, making all their institutions civil and domestic subservient to three ends, giving a paramount right to the superior over the services, liberty and even life ofthe inferior, embracing in this view the relations of landlord and tenant, husband and wife, parent and child, guardian and ward; and fixing their duties and rights, without regard to justice or humanity, upon the principles of concentrated power upon which the feudal system rested; on the other hand, the jurisprudence of a refined race, one (bu had emerged from its barbarism, and after having subdued m. world,'had been for centuries polished by philosophy, poetry, eloquence and art, even to enervation. . By the one, women, and children of Immature you", hold as they always have been by uncivilized people as the m ty of the husband and father, having no Will of their own, no rights in contradiction to his power and authority, and only considered through Iain as a portion of the community in which they lived. By theother, with more regard to the harmony of nature. looked upon as beings created not only by the m b F " 5”“‘(Wf’wi [j ., [Venues thrush-«rates ankles.) power, buhwith exceptions resulting'fmm the suhmdinate po- sition in which the laws of nature place them, as having equal rights to all the enjoyments‘of life, and as safe and adequate protection for them, as the husband and father. «These variant principles have for a length of time been an- tagonist to each other in England, and to a greatextent in this country—the common law courts giving protection to the one, and the courts of Chancery to the other. It would be desirable to have these relations placed upon a wise and humane basis by podtive enactment, and not leavetbem as they are at pre- sent to emnddenhh extent, is stabilise. In the case before the court, we are only called upon to ex- pound what is the common law relation between the father, the wife and the child, and to enforce the rights as thus recognised. Unflirtunately for all the parties to this controversy, the husband and wifi: have not found it to their happiness to comply with their mutual promise so solemnly made to each other, to live together until God should part them. There seems to be no want of integrity on the part of either—he is proved to be peevish and fretful, and she is no doubt high-spirited and re- spectful. But we will not‘undertalte to determine upon whom the greater blame rests. Be this as it may, the wife has left the husband and taken his children with her, and he is now. asking the aid of this court to restore them to his posseasitm. And the only question for us to determine, is whether the relief thus sought can be given. That the father is entitled upon the principles of the common law to the exclusive custody of his children is not. and cannot be contravened; and that ifhe have it, a court of common law will not deprive him of it but for an abuse of his trust nflbcting their persons either by improper violence, or improper restraint, and which would justify the issuance of a writ of Itobeas corpus 12:: their protection. Shelfortl in Marriage and Divorce, 409, an), and the authorities there cited. But in thiscase he has lost their Winn, and the question as here presented is un— der a dilhuent phusis. The probability is, that the rigid prin- civics of the common law Would have restored the possession efamimehiidtothetitther unduthan in, r r" “N,” 1W ‘ imwsawémn ' as has been observed, this would have been'in the social principle. But if it ever were so, it Is so tin-longer, and perhaps the mitigation so far as it has extended ts adopted ; from the civilians. The mitigation of the principle is. “thatthe . court is not bound in a proceeding upon Magneto deliver its discretion according ' to the circumstances of the particular case." The first, and the child to the father, but may act upon m:- far as we at present know, the earliest case referred to in support of this position, is the case of Tits King vs. Deleon! and (than, decided by Lord Mansfield, in 3 Burrow, 1484. Tho predilections of that jurist for the civil code and his strong dis- position to engratl its principles upon the rude stern of the common law, are Well known. However, the principle thus laid down has been so repeatedly recognised both in England and the United States, that it is now at all events a part of common law. Shelford on Marriage and Divorce, 410; 8Johus. Rep. 328; 13 do. 418; 6 Binney, 520; R. M. Charlton’s 489; 6 Greenleaf, 463; 8 Mason, 882; and the celebrated case of D'Haurcville. where all the authorities are Well examined. The principle being thus established,that the court is not bound by a fixed principle of right to restore a torts father, but may at its discretion withhold it. the qyestson occurs, Under whatcircumstances may that discretion be exercised? This must of necessity in many instances be a thing difficult for ya- dicial determination, as no fired and determinate be established upon the subject-+every case resting upon us own peculiar circumstances. It ism be observed, that 10.!“ cases the interest and welfare of the child is the object to be attained, and therefore if it of an sediment.- ly matured to judge for itself, the court will free Itself the responsibility of determining the controversy, by leavtng tt at liberty to go where it pleases. Res vs. Said, 8 flange. .89; 8 John. 328. But ifit be notofsucb an age,the 1- for it. There are certain principles upon the subject mend ‘ I .all the authorities. and contravened bynone; suchas. if the father he unworthy, or incapable morally or physically, b care of the child,ifthere be apprehensions of reds“. the court will notrestore the possession to hint. E‘j ' - 4,: ,, » \ l l _ f" ’mLeeezeneetet IntbscnesofDMitwashelthatit‘ti-ehealthmd suchastomake the vigilanoeandatten- tine olthe mother necessary for its care. it would not be taken from her and given to the father. In the case of TM Con-toa- was thuds'ch and eye, 6 Binney. 6530, Chief Justice Tilgh— man says, it is the interest of the children to which the anxiety ofthe court isdirecttxl, and he refused in that case to take them from the mother. on the ground of their tender age, one of the children being tea, and the other seven years of age. They were both daughters. - ' We deem it useless to enter into an investigation of the pan tieular circumstances upon which the dilierentcases rest. with a View to teooncile them. They completely establish the prin- ciple. that the court has a discretion upon the subject. and a conflict of judgment is under such circumstances to be expectJ ed. But the principle. that it is the interest of the child which is to be looked to, without regard to the right of others, being established, relieves us to a great extent from the difficulty re- sulting from a want of certainty in the exercise of the right of discretion. We will not, as we ought not, attempt to establish any general rule upon the subject, but confine ourselves to the inquiry as to the rights of those interested in the case under consideration. The wife, by the common law. has no right to the children against the husband. Therefore .she cannot be looked to in this case except so far as she may be considered by the court the most suitable person under the circumstances to have their control. for their benefit. The father is not shown to be disqualified either morally or physically for their care and culture; and the only question left for consideration is, in whose possession will the interest of the children be best pro- vided Eur-the father’s or the mother’s. Them are three. the oldest a boy aged neu'eigbtyears, the second agirl agednear sixyears, thethird aboy aged near fouryears. We think, examining our discretion from the best light: that ourltnowledge ot‘society gives us. that theoldest boy can be better raised by the W than the mother under the existing circumstances. but tlinttheotbartwomoftootender ansge toberemoved flWfimtbeanoamofthemhmmhpmw "hi; ,l i ‘ r I army ’l'littsrt. new. [ l ' numuh-umennonm1 I - to be worthy and well qualified fix their protection. “ fore direct, that the eldest son be restored to the father. and that r the daughter and youngest son remain with the motheruntil upon a change of circumstances it may be otherwise directed. We do this the more readily because the subJoct u m berm it” ,_ _ the Chancellor, who has more power over it than we have by ‘ .y- this proceeding. ...
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State v. Paine - if .{f ', E” ' r f r JAOIBONI "...

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