viously requires that it should be done. Such we regard as being the case in the present instance as relates to the daughter. Those strong ties arising from nature and nurture between her and her grandmother, must not be broken. With respect to the son, his home at the death of his father was with the complainant, and he was taken to the defendants under promise to be returned. The legal right is with the complainant, and we are not satisfied that such circumstances exist as to control that legal right. It would be wished, indeed, that the children should be much together; and we hope that when the feelings, unfortunately engendered by this contest shall somewhat abate, that the complainant will permit his male ward to pass much of his time with his sister. "Our decree is, that the daughter remain with her maternal grandfather; and that the son be restored to the custody of his guardian, the complainant."

Mississippi. In the following case, the petitioner was a testamentary guardian and the powers of the court appear to be made very ample by statute, yet as the questions under notice now were discussed, the case is given as one of interest.

Foster and wife, appellants, v. Alston.' This was a proceeding by habeas corpus by a testamentary guardian to recover possession of his infant wards. A. J. Alston 493] died in the state of *Tennessee in 1834, having by will appointed his brother, Jas. J. Alston, guardian of his children. The guardian qualified, and the children with their mother resided with him until the winter of 1840, when their mother, who had in the mean time married Foster, the plaintiff in error, and removed to Holly Springs, in the state of Mississippi, went with an armed force and forcibly took possession of the children and brought them to the residence of the mother, in this state, where Foster and wife obtained letters of guardianship. Mr. Justice Turner. "In cases of this kind we are

16 How. Miss. 406.

bound to consider the interests of the child as paramount to all other considerations. Are these children. restrained of their liberty? Are they under the care and control of improper persons? Are they so situated as to prejudice their health or to expose them to improper or immoral influences? All these questions must be answered in the negative. They are with their mother, the proper place for all female children, and decidedly to be preferred to any other, whether nursery or boarding-school, unless there be something in the conduct or character of the mother to operate against the interest of the child. The law has given to our courts the most unbounded jurisdiction over minors. Fathers may be preferred to mothers, mothers to fathers, relatives to parents, or strangers to either, for the custody and care of infants where the interests of the child require its exercise.'

"In cases like the present proceeding under the writ of habeas corpus, the technical legal rights of the parties do not govern. A guardian, whether appointed by the parent or the court, has his ordinary civil remedy if any of his legal rights are violated. The courts and juries of the country will respect those rights and grant redress according to the circumstances of each particular case and the *rules of law. But in this summary [494 proceeding these rights cannot be redressed; no damages can be assessed, no restoration of property can be decreed, except in cases of slaves under our statutes." After reviewing the evidence the judge proceeds: "What is this court under these circumstances called on to do? It is in proof that these children are fond of their mother; and after trying both situations, first with their uncle, grandmother and aunt, and then with their mother and stepfather, decidedly prefer remaining with their mother, expressing at the same time an affectionate regard for their grandmother. Does this show illegal restraint,

1 Rev. Code, p. 64, sec. 401.

the very thing necessary to give this court the right to change their custody? I think not.

"But what are we called on to do with these children by the petitioner, the testamentary guardian? To tear these tender female children aged nine and ten years from the care and custody of a fond, devoted and capable mother and place them under the care of a bachelor uncle, residing some seventy-five miles from their mother. To state the proposition would seem to decide it. Let every mother, let every father answer this question!" Judge Trotter concurred.

Chief Justice Sharkey dissented, however, and, in this general survey of the grounds of judicial discretion, his observations are worthy of notice.

"The first question," said he, "is as to the right or power of the father over his children, as contrasted with that of the mother. Amongst the various authorities introduced, none have gone so far as to deny the superior claims of the father to the control of his children. We are informed by the first elementary books we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and 495] it prevails even *with the wandering savage who has received none of the lights of civilization. The father is considered the head and governor of the family. He controls even the mother, and must, of necessity, control the children. Some writers, I am aware, have contended for the equal authority of the mother on the ground of her superior affection for her offspring. Their efforts to prove that the law should be so, are of themselves evidence that it is otherwise, and the warmer attachment of the mother, instead of proving the error of the law may serve to prove its policy. We are all aware that children must be brought up under a proper state of discipline, faults must be corrected and errors avoided. "A system of training must be adopted which is often

repugnant to the wishes of the child. Which is best calculated to do these things, the doting, partial mother with whom every fault is virtue, every wish a command, or the less partial father who looks to future welfare rather than the gratification of any childish folly? I am sensible that there are kind offices which none can so well discharge as the mother, but these are not inconsistent with the father's superior authority; and that his authority is superior in controlling the destiny and custody of his children, is manifest from the statute which authorizes him to appoint a guardian by will or deed. The true rule is laid down in Nickeson's case. Georgia. In Ex parte Rosetta Ralston,' Charlton, J., said:

"This is an application (Hab. Corp.) by the guardian of the infant, for the possession of her person, for the purpose of better care and education than she can now receive from her grandmother, Mrs. Drake, to whom the writ was directed. The infant is only seven years old, and cannot make a free and unbiassed election between her guardian *and grandmother. Upon different [496 circumstances, this court upon the authorities adduced, would permit the infant to go where she pleased.

"The grandmother is to have access to the infant on her own request, and at convenient periods.

"It is ordered that the infant Rosetta Ralston, be delivered to the custody of her guardian, John Shellman." The State v. Nathan S. King.'

"In this case the writ of habeas corpus was obtained by Anna King, the wife of the defendant, to produce the body of their infant child about two and a half years old, called Emily. In the petition she complains that her husband has taken possession of said infant and detains it, when the tender years of said infant require the constant care of its mother. Upon this application the court granted the writ, and the same being served on the

defendant, he produced the child and made his return, in which he admits he went to another state and took the child with him, and claims the custody of it by virtue of his parental rights, that the mother is not a fit person to take care of the child, that she neglected it, and is not qualified to attend to its morals and personal comfort, and that he and his wife have separated, and that he has brought a libel for a divorce in this country, and that the mother still retains her youngest child, a boy, and that he has a sister with him who will take charge of the child. And thus stands the case by the pleadings between the parties.

"When the cause came to a hearing a mass of evidence was produced relating to the various causes which produced their separation; and evidence was also adduced, in relation to their capability as parents to discharge their duties to their children.

*

*

"In the first place, the conduct and character of the father is that of a good moral man, and no objection can be raised against him as a father.

"On the part of the mother, there has been a mass of evidence showing some improper conduct about their 497] money *matters, and some imprudent expressions at times when laboring under feelings of despondence, which, and the appearance of the wife, the court believes that she is at times subject to feelings of great despondence, and was induced to make imprudent expressions, which she never executed, and never intended to execute, and which she has not attempted to fufil; and so far as relates to her fondness for her children, and her anxious care about them, and her industry to maintain them, the evidence is ample in her favor, as well as for chastity; and that by her labor she can support them; and that both father and mother have to live by their labor; and it further appears that the father assisted the mother to depart for Charleston with both their children, and that one a boy, is now about nine or twelve months old, and the child Emily is about two