whom she wished to remain. In delivering the judg ment, Tindal, Ch. J., said: "This is a case of some difficulty, and we cannot help feeling distressed at being obliged to come to a decision upon it. The writ of habeas corpus has been obtained by the mother of an illegitimate child, for the purpose of bringing her up from the custody of a party with whom she had been placed by her putative father. The child is now in court in obedience to the writ, and appears as she had been sworn to be, between eleven and twelve years old. Had she been under seven years of age, the court would have said that she could exercise no discretion; but she is old enough to choose for herself, and, therefore, we do not feel called upon to exercise a discretion for her. *If she is willing to go with her mother, she may, [524 but if she does so it must be her own free will, for no force shall be used.'

"His lordship then asked the child if she would go with her mother, but she expressed a strong disinclination to do so. He then told her she was at liberty to go where she would; whereupon she left the court with a female who had accompanied her there. Upon quitting the court the mother attempted to take forcible possession of the child; but upon this being made known to the Chief Justice, one of the officers of the court was sent with her for her protection.""

The same difficulty has not embarrassed the American courts. They hold the putative father to have no right to the custody of his illegitimate child as against its mother.'

The bastard, however, is entitled when brought before the court upon a habeas corpus, to the same liberty of election when of proper age, and to the exercise on the part of the court of the same considerate discretion when

1 In In re Darcy, 11 Ir. C. L. R. 298, it was held that the mother is entitled to the guardianship of her illegitimate children.

2 Wright v. Wright, 12 Mass. 109; Robalina v. Armstrong, 15 Barb. 247.

too young to choose, as is accorded to the child of lawful wedlock.

The People, ex rel. Davenport, v. Kling: On certiorari. The relator was the mother of a bastard child, named Martin Kling, born in November, 1844. The defendant was the putative father of the child. In October, 1847, relator presented a petition to the Hon. Demosthenes Lawyer, County Judge of Schoharie, stating that on the 2d day of that month, the defendant had illegally and forcibly taken the child from her custody and carried it away, and that he still illegally detained the child. A writ of habeas corpus was thereupon allowed, commanding the defendant to bring the child before the judge, &c.

525] *The defendant, among other things, returned to the writ that the relator was in very indigent circumstances; that she was of weak and imbecile mind, and was not a proper or fit person to have the care and custody of the child; that while with her, the child had suffered greatly for the want of sufficient and proper food and clothing; that at the time mentioned in the petition for the writ, he had applied to the relator for leave to take and bring up the child; that no objection or opposition having been made by her, he took the child and delivered him to his father, Henry Kling, who took the child into his family and adopted him as his own child.

Witnesses were examined, and after hearing the parties the judge dismissed the habeas corpus. Relator obtained a certiorari removing the proceedings to the Supreme Court.

Harris, J. "Were this a controversy between the mother of the child and the putative father, as to which had the better right to the custody and guardianship of the child, as the relator's counsel seemed to suppose

1 6 Barb. Sup. Ct. 366.

it

to be, there could be no doubt that the decision of the county judge was erroneous.

"As against the mother of a bastard child, the putative father has no legal right to the custody. The mother as its natural guardian is bound to maintain it, and is entitled to the control of it. But the difficulty with the relator's case is, that this is not a question to be determined upon habeas corpus.

"This writ is, by eminence the writ of liberty. Its office is, to inquire into the ground upon which any person is restrained of his liberty and, when it is found that the restraint is illegal, to deliver him from such illegal restraint. Ordinarily this end is attained by allowing the person improperly detained the free exercise of his volition. But in the case of a child too young to be capable of determining for itself, the court or officer assumes to determine for it. In making such election for the child, its welfare is chiefly if not exclusively to be had in view.

* *

"I admit that this discretion is not to be arbi- [528 trarily exercised. Nor are the rights of the parent to be wholly disregarded. In this case although a matter addressed to the discretion of the court, if it had appeared that the relator had possessed the capacity and the means of maintaining and educating the child as well as the grandfather, who had received it into his family, I think a judicious exercise of his power would have required the judge to deliver the child into the custody of the mother. But such a state of facts was not presented. * * I am entirely satisfied with the determination of the county judge to leave the child with its grandfather."

In the case of The People v. Landt,' a writ of habeas. corpus was sued out by the putative father of a bastard child, directed to the defendant who had married the mother. It was claimed by the relator that the child

1 2 John. 375.

had been illtreated by the defendant, and several affidavits read on both sides.

Per Curiam. "The only question before the court is, who has the legal right to the custody of the child. In the case of illegitimate children, and especially as to females, the mother appears to us to be the best entitled to the custody of them; but this right is not of such a nature as to prevent the court from interfering to take the infant from the custody of its mother, under special circumstances of ill treatment. In the present case, the evidence of ill treatment has been so far obviated by the affidavits which have been read on the part of the defendant, that we do not think it necessary to interfere at this time, to take the child from the custody of the defendant and his wife. But we think proper to admonish the defendant that he be careful to restrain his passions in future; and that, if hereafter, it should be made to appear that the child is illtreated, the court will interfere for her protection, and remove her from his custody." 527] *In the matter of Doyle,' the Vice Chancellor held that the father of an illegitimate child had no right to its care and custody, as against the rights of the mother. He said:

"The paternal and filial relation, in all its endearing and legal consequences, does not exist between such a father and such a child. The law looks coldly upon this relation, and takes no further care of it than to see that the community is not put to expense. In such a case there seems to be more than a legal doubt who is actually the father, the sworn father being termed merely the putative father, while there can be no doubt who is the mother. As the mother is the only parent such a child can have with legal certainty, she is the parent to whom the custody of such a child seems properly to belong."

1 Clark Ch. Rep. 154.

2 Schouler's Domestic Relations, 384. In Dalton v. The State, 6 Blackf

SECTION VIII.

INFANT'S LIBERTY OF CHOICE.

In cases of any doubt or difficulty, a practice prevails, both in England and the United States, of consulting the wishes of the infant, when of sufficient age and discretion, as to its custody. And so common is the practice, that it has come to be supposed, by some, that the infant possesses a controlling right of choice. But this is an error. An infant has no controlling legal right of election as to its custody. It was never designed to subject the legal right of custody to the caprice of infant children, nor to emancipate them from the rightful custody.

It was said by Starkey, Ch. J., in his dissenting opinion in the case of Foster and wife v. Alston,' *that: "An infant is not entitled to his freedom, [528 an adult is. When a habeas corpus is granted to an adult the object is to inquire whether he is legally restrained of his liberty, because if he is not he must be set free for the plain reason that by law he is entitled to his freedom. But if the court is also to set the infant free they give him a right to which he is not entitled; and deprive the parent or guardian of a right to which he is entitled, to wit; the custody of the infant. The law, it seems to me, does not clothe the infant with power to say whether he will be set free or not; it does

(Ind.) 357, it was held that the mother of an illegitimate child is its natural guardian, and has a right to its custody. Alfred v. McKay, 36 Ga. 440. In People v. Mitchell, 44 Barb. 245, it was held that the common law never gave the putative father of a bastard child any right to its custody, and that no provision of the New York statute secures to him any such right.

In Texas, in Byrne v. Love, 14 Texas, 81, it was held that after an illegiti mate child attains the age of seven years, the father has an equal claim with the mother to the guardianship.

16 How. Miss. 472.