to dangers or seductions, the court must make an order for his being placed in the proper custody." In re Preston,' Patteson, J., refused an application for a writ of habeas corpus, made on behalf of an infant's mother, then in India (the father being dead), in order to remove her son from the guardianship of the person who had for some time had the custody of him, saying: "In deciding this question it seems to me it is [534 altogether useless to question the child, as to with whom he might wish to be. It is difficult to say at what age a child is capable of exercising a sound discretion, and judging for itself in matters of this kind; but it seems to me that it is but a mockery to ask a child of nine years of age whether he would sooner remain with the person who has brought him up, or go with a stranger." In the case, Rex v. Johnson,' the infant was nine years old, the court said: "this being the case of a young child, who had no judgment of her own, they ought to deliver her to her guardian," and he took possession of her in court. "Very recently," says Forsyth," "an illegitimate child seven years old, about whose custody there was a dispute in the Bail Court, was called up to the bench by Mr. Justice Wightman, and after having been privately questioned by him, found to be very intelligent, she was allowed to choose the person, although neither her father nor mother, with whom she was to reside. It was, however, agreed that the mother should have access to her at all reasonable times."4 In re Lloyd,' the child was between eleven and twelve years of age, and was allowed to choose. And the court intimated that she would have been allowed the privilege had she been only seven years old, for Tindal, 15 Dowl. & L. 247. 21 Stra. 579. Custody of Infants, 106. 4 In re White, Jan'y 25, 1848. Ch. J., said: “Had she been under seven years of age, the court would have said that she could exercise no discretion." In Regina v. Clarke,' an infant of the age of ten years was brought up on habeas corpus upon the application of the mother, who was surviving parent, the father, who was a marine, having died without appointing a guardian. The father was a Protestant, and the child had been baptised under his directions by a clergyman of the Church of England; but he had permitted the mother, who was a Roman Catholic, to give the child 535] such religious instruction as was in *accordance with her religious profession. The child, after the death of the father, had been placed by the mother at the Sailor's Orphan Girl's School, where she would be educated, &c., in the Protestant faith. The object of the mother, in suing out the habeas corpus, was to remove the child to a Roman Catholic school. The Court of Queen's Bench held that the mother, as guardian for nurture, was entitled to the custody of the person of the child; that the court could not examine the infant as to her wishes or religious belief; that the mother was not bound to educate her in the Protestant faith, nor had she lost her right over her by sending her to the Sailor's Orphan Girl's School; and therefore the court was bound to order her to be delivered to her mother." In the United States the courts have generally inquired as to the capacity and intelligence of the child. In The Commonwealth v. Taylor,' Shaw, Ch. J., said: "In point of law, a child of such tender years, seven or eight, has no will, no power of judging or electing; and therefore his will and choice are to be wholly disre 1 21 Jurist, 335; S. C., 5 Am. Law Reg. 537. 2 In In re Connor, 16 Ir. C. L. R. 112, the writ was refused to a father for a boy sixteen years of age on the ground that a male infant at the age of fourteen could select his own abode. 8 3 Met. 72. garded. The natural and strong feelings of a child, which induce him to cling instinctively to those whoni he has been accustomed to regard as his natural protectors, cannot be regarded as the exercise of a legal will or an intelligent choice. "In Commonwealth v. Hammond,' the child was between eleven and twelve, and its wishes were consulted. "In the case of The People ex rel. Ordronaux v. Chegaray,' there were three children, aged respectively fifteen, thirteen and nine years. They were all consulted respecting their wishes. "In the case of McDowles,' the youngest child was not more than nine years old and was consulted.in respect to his wishes, not only by the Chief Justice, but *afterwards on a suggestion that improper means [536 had been used by the master, by three gentlemen of the bar appointed by the court, and his wishes were respected. In the matter of Doyle,' the putative father petitioned for the custody of his bastard child, then only six years. old, alleging in his petition that the mother was of dissolute habits and unfit to have the custody, &c. The case was heard upon affidavits. The Vice Chancellor held that the mother was entitled to the custody, as against the putative father, yet deemed it proper to examine, and accordingly did examine the child privately in respect to its wishes, and says: 'I find she is very well eduacted; that due care has been paid to her morals, her manners and her education; that she loves her mother and prefers to live with her; that she is daily sent to school; and that few girls of her age are better taught, either in mind or heart."" In the case of The State v. Scott and wife,' the child was eleven years old. The court appointed a committee of three members of the bar to interrogate the child, 1 10 Pick. 274. 218 Wend. 637. 3 8 John. 328. 4 Clark's Chy. Rep. 154. 5 10 Foster, 274. who reported that she was of sufficient understanding to choose, and the court suffered her to make her election. In the case of The People v. Pillow,' the writ issued at the instance of the master against the father for three children, aged respectively fourteen, eleven and nine, and they were all privately consulted by the court as to their wishes. "The eldest elected to go to the master, and the others to remain with their father, and ordered accordingly.”” VOLUNTARY TRANSFER OF CUSTODY. It has been seen that a parent may emancipate his minor child by voluntarily relinquishing his claim to the services of the child, or by permitting the child to contract marriage or other relations inconsistent with filial subjection, and may also forfeit his right of custody by cruelty or gross neglect of duty. Why, then, may he not transfer to another this right of custody which he may thus abandon or forfeit, especially where the interests of the child are not prejudiced by the assignment? And how can the court pronounce 1 1 Sandf. Sup. Ct. Rep. 672. 2 In State v. Richardson, 40 N. H. 276, the court held that its action would not be controlled by the wishes of a female child of ten years. In Curtis v. Curtis, 5 Gray, 537, the court said, "In all cases of this description, of the right to the custody and control of a female of an age to have a will, and a capacity to form some judgment for herself, it is the established custom of the court to ascertain the opinion or inclination of the mind. The weight of this depends upon the minor's maturity of mind and capacity to judge." In that case the child was sixteen years old. In re Goodenough, 19 Wis. 296, the court said, "But when the infant is above the age of fourteen he must, it seems, in every case, choose for himself. The court will not compel him upon habeas corpus to submit to parental authority. * *It will be seen from the reported cases that children between the ages of seven and fourteen are often interrogated as to their wishes, and if of sufficient intelligence, allowed to choose for themselves. There are several instances of those between ten and twelve being thus allowed their choice." People v. Wilcox, 22 Barb. 179. * * that custody, which is held under a fair agreement with the parent and not injurious to the welfare of the child, to be an illegal restraint? It is true of this as of many other questions, in habeas corpus proceedings, that the authorities do not all speak one opinion. In Regina o. Edward Smith; In re Boreham,' on a writ of habeas corpus the return showed Emma Susan Boreham, born 1847, daughter of Nathaniel Boreham and Susan his wife, sister of defendant, Edward Smith. In May, 1852, an agreement was entered into between N. Boreham and E. Smith, which recited that the wife, being dangerously ill, with the consent of her husband, requested Smith, her brother, in the event of her death to take charge of and educate and bring up her infant daughter, and by which Smith agreed to *take [538 such charge on condition that the daughter was permitted to remain with him until she was grown up and able to provide for herself. N. Boreham agreed to the condition, that he would in no manner interfere, and that he would pay Smith fourteen shillings per month for the child's support and education. Proviso, that he might visit his daughter at reasonable times. The mother died July, 1852. Smith, by virtue of the agreement, took possession of the daughter and took charge of and maintained her. Erle, J. "I have looked into the cases and it seems to me the arrangement between the father and the uncle. is in the nature of a consent given by the father that the uncle should have the custody of the child, and a contract by the father to pay the uncle for its support. I am of opinion that the father is at liberty to revoke the consent, and I am bound to say that he is entitled, legally, to the custody of his child.” The report is too short to inform us what the court thought was the nature of the undertaking on the part 1 16 Eng. Law and Eq. 221. |