with whom he cohabited." But according to the report of the case, the court thought that there was no evidence that the children were likely to be brought into contact with the father's mistress. If the fact had been so the decision would probably have been different.""""

SECTION VI.

SPIRIT OF THE AMERICAN CASES ON CONFLICTING CLAIMS OF PARENTS FOR THE CUSTODY OF THEIR CHILDREN.

It is gratifying that the American reports furnish no such case as that of Rex v. Greenhill, to make the judges "ashamed of the law."

Chancellor Walworth in the case of Mercien v. The People,' alluding to the cases in the English courts since the days of Lord Mansfield, says:

1 See Hansard's Parl. Deb., Vol. 49 (3d series), p. 493.

2 Forsyth Custody of Infants, 69, note. In Regina v. Clark, 40 English Law and Eq. 109, the facts were as follows: Alicia Race, a child of ten years and a half, had been placed by her father in the Sailors' Orphan Girls Home. After his death a writ of habeas corpus issued for the child at the instance of the mother to the matron of the Home. The child was asked whether she desired to remain at the Home or not, and she refused to leave. It appeared that the child was of an understanding and judgment beyond her years. The return of the matron was that she did not detain the child against her will. It was held that guardianship for nurture continues until a child has attained the age of fourteen, and the guardian for nurture during that period is entitled to the custody of the child. The law for this purpose recognizes no distinction as regards the discretion of the child, between the ages of seven and fourteen. The court, there fore, will not, where a child between those ages has been brought up under a writ of habeas corpus, obtained by the mother, a widow who was the guardian for nurture, examine the child in order to ascertain whether there is mental capacity sufficient to exercise a choice, and if so the wishes of the child, but will at once restore the child to the custody of the guardian, unless it appears that the guardian, either by past immoral conduct, or a want of bona fides in making the application, or by leaving some illegal intention or purpose in view, has forfeited her right to the custody of the child." The doctrine of the foregoing case is approved in In re Moore, 11 Irish L. 1.

3 25 Wend. 64.

"The American cases show it to be the established law of this country that the court or officer are authorized to exercise a discretion; and that the father was not entitled to demand a delivery of the child to him, upon habeas corpus, as an absolute right. This was also the law of England at the time of the separation from the mother country; though the decisions of the English courts since that period appear to have gone back to the principles of a semi-barbarous age, when the wife was the slave of the *husband be- [475 cause he had the physical power to control her, and when the will of the strongest party constituted the rule of right."

In Ex parte Schumpert,' the English cases are commented on and the American vindicated.

"This was an application by the writ of habeas corpus ad sub. by the father, Peter M. Schumpert, for an order for the delivery to him of his infant daughter, Frances, aged between four and five years, who, it is alleged, was unlawfully detained by the grandfather, Honorius Shepperd, with whom the mother, Mary Schumpert, wife of the petitioner and daughter of Honorius Shepperd, resided. Two similar applications had been made before his honor Judge O. Neall. On the first application, made March 19, 1850, the following order was made: The sheriff having returned the writ of habeas corpus, and the parties appearing before me, and the child being of very tender years, a little more than a year old; it is ordered that for nurture and care the child remain for the present in the possession of the mother; the father to be at liberty to apply hereafter for the custody of the child if he should think proper so to do.''

The second application, January 14, 1851, the order was, for the present the child remain in the custody of the mother.

16 Rich, 344.

On the third application it was ordered that the mother, Mary Schumpert, be permitted to retain the possession of the child, Frances, and that she be responsible for its maintenance, and that Honorius Shepperd, her father, do give to the petitioner, P. M. Schumpert, 476] bond with sufficient surety to indemnify *said P. M. Schumpert for all liability for the support and maintenance of the child. Bond, penalty $5,000.

Motion to reverse this order of the circuit judge heard before the court. The opinion was delivered by Whitner, J.:

"The legal power of the father over his infant child, irrespective of age and the claims of the mother, has been strongly pressed by the counsel for the petitioner. Many cases have been adjudged, principally in England, going far to deny to the common law judge any discretion on the subject; whilst others, in conceding a discretion, have so limited and restrained it as almost to amount to a denial.

"Lord Mansfield in 1763, in Delaval's case,' laid down a safe rule which has been recognized by our own case of Kottman: That in cases of writs of habeas corpus directed to bring up infants the court is bound ex debito justicia to set the infant free from an improper restraint, but they are not bound to deliver them over to anybody, nor to give them any privilege. This must be left to their discretion, according to the circumstances that shall appear before them.' And again, some ten years after, in Blissett's case,' he held that if the parties disagreed, the court will do what shall appear best for the child.' Yet, as above stated, the principle and practice became more stringent. Those who choose to consult the authorities will find, in order of succession, the courts proceed from De Mandeville's case, where the paramount title of the father became the favorite doctrine, although

1 3 Burr. 1434.

2 72 Hill's C. R. 363.

3 Loft, 748.

45 East, 221.

the welfare of the child might require the mother's custody, decided, I think, in 1804, down to the celebrated case of Greenhill,' which so shocked public sentiment, that, under the lead of distinguished jurists of that day, an act of Parliament was adopted more in consonance with the dictates of humanity and sound reason, whereby the rights and feelings of the injured mother were taken into the account.

'It is a matter of congratulation that but little [477 additional weight has been given to this class of cases by American judges. In this state we are committed to no such extreme doctrine, and the day of danger I trust has passed. Pursuing the rule of Lord Mansfield, we have heretofore sought to free the infant from improper restraint; hence at the age of choice the infant is instructed and advised, and if need be protected, in his choice. Judge Strong says, in 3 Mason, 382: It is an entire mistake to suppose that the court is bound to deliver over the infant to its father, or that the latter has an absolute vested right in the custody.'

"The wise principles of the earlier English cases have been liberally incorporated into our American cases in the several states, that 'it is the benefit and welfare of the infant to which the attention of the court ought principally to be directed."

"In these delicate and difficult questions, what safer principle can be adopted? What parent can object that the welfare of the child shall be deemed paramount to the claims of either? This is the proposition made by each parent, and neither should condemn the practical operation of the rule. D'Hauteville v. Sears. Motion to reverse order of circuit judge dismissed."

The order actually made in the foregoing case appears more prospective and absolute than is usual in such cases, and approaches so nearly an order in chancery,

1 4 Ad. & El. 624.

2 13 Johns. 418.

that it is not so easy to approve of all that was done as of all that was said.

Pennsylvania. The case of the Commonwealth v. Nutt,' was decided in the Court of Common Pleas, Philadelphia county, in 1810:

"This case arose upon a habeas corpus taken out by Levi Nutt, the father, and directed to Rhoda Nutt, the mother, commanding her to bring Acha B. Nutt, his 478] daughter, before the court, together with the cause of detention. Rhoda Nutt returned, &c., 'that Levi Nutt, the father, was an immoral man, and neg lected to maintain his family.'

"Per Curiam. The general opinion is correct, that the father has a right to the custody of his children. But exceptions have been very properly admitted. In the case now before us the court have been furnished with the most disgusting evidence of the immoral character and conduct of both parties. They have quarrelled, broken up housekeeping and separated. The children have been separated and dispersed into different places. The mother at this time keeps house for Amos Howell, a tavern keeper and married man, who has also parted from his wife. There is too much reason to believe they live in constant habits of adultery, and that acts of the grossest indecency have been exhibited in the presence and view of the daughter. Fiddling, dancing and frolicking are frequent at the house. This certainly is not a scene in which virtue and innocence can be trusted with safety.

"With respect to the father, his general neglect to provide for his children is but too apparent and he is at this time destitute of a settled habitation; his profligate language, in the presence of his wife and daughter, is too indelicate to be repeated.

666 As the court cannot deliver Acha B. Nutt either to the father or the mother, they are precisely in the situa

11 P. A. Browne, 143.