The following case was decided in Pennsylvania, in 1851, by the District Court of Alleghany county, and the decision was afterwards brought up before the Supreme Court in banc and the same order made.

The Commonwealth at the instance of Mary Gilkeson v. James Gilkeson.' - This was a habeas corpus by a daughter to be discharged from the custody of her father. It *appeared that about six years before the granting [544 of the writ the father and mother of the petitioner by contract under seal transferred the custody of her to her uncle and aunt, who by the same writing agreed to adopt her as their child. The contract, though of such a character as could not be enforced against the child, was performed by the uncle and aunt and sanctioned by the father until the child had grown from nine to fifteen years of age. Her mother and uncle having died the father obtained possession of her and insisted on retaining the custody though she preferred remaining with her aunt.

Lowrie, J., said: "We have never in this state held that the courts are bound to a strict adherence to the old common law rules as to the right of the custody of children; and this writ being used as a remedy for the improper interference with that right we must treat it as a Pennsylvania remedy, governed by the principles of the common law of Pennsylvania, of which equitable principles constitute an illustrious part.

* * *

"In this case the parental authority has been solemnly renounced for six years, and the child has grown to the age of fifteen years. She has been estranged from the customs and government of her father's house. She formed new habits and views, and become accustomed to different associations and modes of living. And now the father disregarding his own contract and the wishes and comfort of his child, seeks to re-establish the parental authority. We should be glad he could effect it

1 Wallace Phila. Rep. 194.

by the influence of parental kindness, and consistently with honesty. We dislike to see the parental and filial relation severed, and should love to see the broken bond reunited. But it cannot well be done by the enforcement of it as a legal right.

"The father himself broke the bond, and the law will not help him now to mend it. He emancipated his 545] *daughter by his own solemn act, and all restraint upon her by him is now improper.

"We must, therefore, discharge her from restraint, and leave her to elect with whom she will remain."

1 In Massachusetts, in Dumain v. Gwynne, 10 Allen, 270, it was held if a married woman who has been compelled to live separate from her husband by reason of his intemperance and crime, is unable to provide for her children, and thereupon voluntarily gives them up to a charitable institution established for the purpose of furnishing homes to destitute children, under a written contract, by which the children are to be placed out or adopted in a good family, and she is not to seek or discover them, or deprive such family of them, the contract is valid; but the court, on a habeas corpus afterwards brought by the parents to recover their children, will inquire whether the welfare of the chil dren is properly attended to.

In New Hampshire, in State v. Libbey, 44 N. H. 321, it was held that the parental rights and duties could not be permanently assigned or transferred by a parol agreement, and therefore such agreement may be revoked by the parent on refunding the sum of money expended thereon. In that case the evidence showed that the father had placed the child in the custody of the respondent with an agreement that it should be his and brought up by him. The child had remained with the respondent for nearly four years, during which time it appeared to have been properly cared for.

In State v. Barrett et ux., 45 N. H. 15, an application was made by relator for a writ of habeas corpus directed to respondents, to bring up the daughter of relator, about three years of age. On the part of the respondents it appeared that the child when about two months old had been placed in the care of the respondents, by her mother, and to this the father assented; that the child remained with the respondents until the death of the mother, when the relator made with them an agreement in writing and under seal, by which it was stipulated that in consideration of the engagement of the respondents to maintain and educate the child, the father relinquished and surrendered to them the control and custody of the child until eighteen years of age. It was admitted that the agreement was not in the form required by the statute for indenture of ap prenticeship. It was held that the father parted with his parental right to the custody and service of the infant child, although the child was not bound. The custody of the child was denied to the father.

In Indiana a case arose in which the father applied for a writ of habeas cor

SECTION XI.

MASTER FOR HIS APPRENTICE.

It is sometimes said that a master is entitled to the writ of habeas corpus to enable him to obtain the custody of his apprentice; and some cases have gone upon this

pus, for his child which was in the custody of its maternal grandfather. It appeared upon the death-bed of the mother she with the consent of the father, the relator, gave the child to the respondent and his wife to be reared as their own child until it had attained the age of twenty-one years, they to have the entire care, custody and control of the child and to raise and educate it without charge. In pursuance of said agreement the child was delivered to the respondent. At the time of the issuing of the writ the child was three years and five months old, and had been in the custody of the respondents for three years. The court ordered that the child should be delivered to the father. State v. Banks, 25 Ind. 495.

In Young v. State, 15 Ind. 480, proceedings were had by habeas corpus to recover the custody of an infant child alleged to be the child of the relator. The respondent returned to the writ that some months previous the child was left at his door in a basket, in a sick and almost dying condition; that he and his wife had nursed it into health; had become attached to it and desired to keep it; that they were suitable persons to have the custody of the child while the relator was unfit to have such custody. The evidence as to the identity of the child was conflicting; but it was clearly shown that the relator was of abandoned habits and unfit to have the care of the child; while the defendant was a suitable and proper person to have the charge of it. Held that considering the conflicting and uncertain testimony as to the identity of the child, in connection with the relative fitness of the parties to have the custody of it, the respondent should have been permitted to retain it.

In Speer v. Davis, 38 Ind. 271, it was held where, by the return to a writ of habeas corpus for a child, issued at the instance of its father, it appeared that the petitioner had left the child in the custody of the respondent, that a demand for the custody of the child was necessary before legal proceedings could be instituted; and they could be instituted then, only if the respondent having the power to do so, had refused to return the child. Return showed that the child was out of the jurisdiction of the state.

Where a mother had committed her child to a charitable institution, by an instrument of writing reciting that she had surrendered it to the care and guardianship of the trustees of the institution, to do with as they might think best for the child without specifying any time during which the child should so

ground; thereby converting the proceeding into a species of personal replevin.

But the true principle seems rather to be that the writ

remain; it was held that in the absence of anything showing that the mother was not a suitable person to have the custody of the person of the minor, she was entitled to regain such custody at any time. Wishard . Medaris, 34 Ind. 168.

Where a child had been left by its mother in the poor-house (the father being in the state prison), and had been bound by the superintendent of the poor by an indenture to the respondent, upon application by the father for a writ of habeas corpus, the court held that the respondent was not entitled to the custody because the indentures were void, but that it might properly refuse to deliver the child to the father. In re Goodenough, 19 Wis. 292.

In Connecticut, in Johnson v. Terry, 34 Conn. 259, it was held that the father was entitle to the custody and control of his minor children, even to the exclusion of the mother. This right is incident to his duty to maintain, protect and educate them. And he cannot divest himself of the right by an agreemen. with the mother. And he does not lose it by permitting them, after they have been taken away from the house by the mother to remain away with her for several years, undisturbed. And such a neglect of the children by the father does not constitute an emancipation of them. A statute which provides a mode by which a parent may give away his child for adoption, implies that it cannot be done in any other way. See also Torrington v. Norwich, 21 Conn. 543, The following extract from Schouler's Domestic Relations, 343, seems to state the law upon this subject correctly: "The general doctrine appears to us, on the whole, to be this: that public policy is against the permanent transfer of the natural rights of a parent; and that such contracts are not to be specifically enforced, unless in the admitted exception of master and apprentice, to constitute which relation requires, both in England and America, certain formalities; and excepting too in some parts of the United States, where the principle of legal adoption is part of the public policy. American courts hold fast, nevertheless, to the true interests and welfare of the child." See Byrne v. Love, 14 Texas, 81. In Pennsylvania it was held that a parent might relinquish the right of custody of his child by parol. Where a father gave care of his infant daughter to a sister of its deceased mother, and afterwards only visited it about once a year, and never contributed to its support, and after lapse of eight years claimed custody of the child, such facts were held to establish the abandonment of the father's right. Cone v. Dougherty, 1 (Pa.) Leg. Gaz. R. 63.

In England by 36 Vict. c. 12, sec. 1, it was provided that from and after the 24th April, 1873, it shall be lawful for the high Court of Chancery in England or in Ireland respectively, upon hearing the petition, by her next friend, of the mother of an infant, or infants under sixteen years of age, to order that the mother shall have access to such infant or infants at such times and subject to such regulations as the court shall deem proper, or to order that such infant or infants shall be delivered to the mother, and remain in or under her

may issue on behalf of the apprentice at the suggestion of the master.

It has indeed been held that it could not issue at the instance of the master. In The King o. Reynolds,' a writ had been granted at the instance of the master to recover his impressed apprentice. On motion to quash the writ, Lord Kenyon, Ch. J., said:

"I think the writ of habeas corpus was improperly issued. The writ ought not to be issued at the instance of the master: but the apprentice, who is of sufficient age to judge for himself, should have applied for it if he had wished it. * *Suppose this apprentice had been taken into the service of any other master, we should not have granted a habeas corpus at the instance of his first master, but should have left him to his action for seducing his apprentice."

2

The same doctrine was held in the case of The King v. Edwards, where the master *moved for a habeas [546 corpus to bring up his apprentice, who had entered into the sea service, in order that he might be restored to him.

The court, referring to the case of The King v. Reynolds, above cited, said: "The distinction was properly taken in the case cited; that though the apprentice might obtain the writ the master could not, for that its object was the protection of the liberty of the party. That the master was not without his remedy, for that he might

custody or control, or shall if already in her custody or under her control, remain therein until such infant or infants shall attain such age, not exceeding sixteen, as the court shall direct; and further, to order that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant or infants and otherwise as the said court shall deem proper. Sec. 2, provided that no agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid, by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother; provided always, that no court shall enforce any such agreement, if the court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto. 16 T. R. 497.

97 T. R. 741.