
    The State on the Relation of Paine vs. Paine.
    1. The father, upon the principles of common law, is entitled to the exclusive custody of his children; and if he have the custody of them, a court of common law will no t deprive him of it, except for an abuse of trust, either by improper violence or improper restraint, and sucb as would justify the issuance of a writ of habeas corpus for their protection.
    
      2. A court of common law is not bound in a proceeding by habeas corpus to deliver the child to the father, where he has not the possession of it, but may act upon its discretion, according* to the circumstances of the case. In all suchcases,the great leading object should be, the interest and welfare of the child; and therefore, where the child is of sufficient age to judge for itself, the court should leave it to go where it pleases.
    3. The wife has no right by common law to the custody of the children as against the husband, and she cannot be looked to by the court, except so far as she may be considered in reference to the tender age of the children and other considerations, as the most suitable person to have control of them for their benefit.
    On the 1st day of March, 1841, William L. Paine presented a petition to William C. Dunlap, one of the Judges of the Circuit Courts of the State of Tennessee, in which he stated that his wife, Eliza Paine, had abandoned him and taken with her his three children, Henry, Sarah, and John, minors, and that she detained them from the custody and possession of the petitioner, and praying the issuance of the State’s writ of habeas corpus, commanding the said Eliza to bring the said children before him at a day and place to be specified, and show cause, if any she had, why the said children should not be restored to his possession.
    This writ was issued, and served on the said Eliza, commanding her to appear before the Judge of the Circuit Court, to be held at Sommerville, Fayette county, on the 3d Monday in May, 1841, and have with her the said three children, Henry, Sarah, and John.
    She filed an answer, in which she stated, that “a long and continued series of acts manifesting an indifference, coldness and neglect on the part of her said husband, to which was added violent and abusive language, without provocation, and finally inhuman treatment left her no alternative but to drag out a wretched and miserable existence, or abandon a home where she believed it would be neither safe or prudent to remain.” She admitted that she took with her the three children; Sarah, five years of age; Henry, aged about seven, and John, about three years. She insisted, that the tender years of said children required the'constant care of a mother; and denies that she had exercised any illegal or unwarrantable constraint over either of them, but had exercised only such control as a parent, anxious to promote the morals of the children, should exercise. She stated, that he was incompetent to have the control and possession of the children, and that she was unwilling that he should have it, for the reason that he was a miserable hypochondriac, petulant, capricious, and violent in his temper, ¿nd that, in the event that he should have the possession of them, they would be thrown chiefly in the keeping of negro slaves, and their mental and moral culture neglected by reason of his absence from home, &c. &c.
    The relator replied. He denied that he had treated her with neglect or insult, or inhumanly, or that he had ever treated her with violence, except on, one occasion, when, many years before, he slapped her on the face slightly, in a moment of irritation, caused by her charging him with falsehood. He al-ledged that he had been unhappy, but that it was in consequence of the bad temper and improper treatment of respondent. He denied that he was from home more than usual, and then only in the ordinary pursuits of business, &c. &c. and vindicated his right to his children, and his fitness for the task of training and educating them. He stated that he was not desirous of taking the children entirely away from their mother, but was willing that she should have free, regular and unembarrassed intercourse with them, provided they should be in his control and where he could enjoy their company at pleasure.
    There was proof taken, by which it appeared that W. L. Paine, the relator, a widower, having a competent estate, consisting of real and personal property, and having three children by a deceased wife, intermarried with Eliza Paine. She had some property. They had three children, and were both members of the Methodist church at the time she abandoned h im. Some witnesses proved him to be a man of good moral character in his public deportment. The preponderance of the testimony is, that he was hypochondriacal, peevish and capricious, and instances of coldness and neglect towards ‘ his wife were proved. Conjugal infidelity, on either side, was not charged or proved, and proof was not wanting to show that both were competent and fit to have the custody and control of the children in most respects.
    The case was tried at the January term, 1842, by Judge Dunlap; and he being of the opinion that the children Henry, Sarah and John were not “unlawfully restrained” by said Eliza Paine, directed that they “be restored to their mother, the said Eliza;” that “the petition of said relator be dismissed, and that he pay the costs.” From this judgment he prayed and obtained an appeal.
    
      H. G. Smith, for the relator.
    The object and effect of this writ of habeas corpus are to discharge persons from unlawful imprisonment. Every restraint upon liberty is, in the eye of the law, imprisonment, wherever may be the place or in whatever manner in which the restraint is effected. 2 Kent’s Com. 26.
    When the writ is directed to private persons to bring up infants, the court is bound ex debito justicia to set the infant free from improper restraint, Rex vs. Relaval, 2 Bur. 1431.
    Detention of the infants by a person against the -will of the party entitled to the custody of them, is an unlawful and therefore an improper restraint. t Detention by one against the will of the other, of two or more persons having an equal and joint right of custody, as where there are two or more testamentary or other guardians of the person, is not an illegal restraint which would be removed by the writ of habeas corpus. But this applies where there is a joint and equal right of custody — not where the custody is claimed by equal, distinct and opposite rights. There cannot be equal, separate and adverse rights. The father and mother, living separate, have not a joint and equal right to the custody of the children of the marriage. One or the other has the better and exclusive right, and this is the father.
    The father has the natural and legal right to the custody of his children — even against the mother. Shelford on Marriage and Divorce, 677, 679; 18 Wend. 642; 19 id. 16; 16 Pick.205; 1 Bl. Com. 452; 5 East, 2211; 31 Common Law Reports, 154. This is a universal principle in civilized nations. It is the natural law — the Christian law. It is founded in the physical* moral and intellectual superiority of the male sex. It results from the duty devolved by law on the father, to maintain, educate and protect his children. To discharge the duty, requires the power and involves the right. The right is a legal right, and it is coupled with an interest and will be enforced at law.
    The mother, as such, has no authority over her children. Reeves’s Dom. Rel. 295; 1 Bl. Com. 453; 2 Fon. Eq. 512, n. h; 18 Wend. 642.
    The right of the father being exclusive and legal, the courts will enforce it by the writ of habeas corpus. The language of the cases is, that the court is bound to do so. Shelford on Mar. and Div. 678; 16 Pick. 205; 31 Com. Law Rep. 159; 19 Wend. 16; Murray’s case cited, 5 East, 223; Jacobs, 251, (cited Shelf. 680, n.) 31 Com. Law Rep. 376; 2 Sevy & Rawle, 174; Alston vs. Foster, before Chan. Buckner of Miss, in 1841; 19 Wend. 16; 18 Wend. 637.
    The right will be enforced in favor of the father, against the mother, notwithstanding provisions contained in deeds of separation for their residing with the mother. Shelf. 680; Jacobs, 251; 11 Yes. 531; Lytton’s case cited, 5 East, 222, (Shelf. 680.)
    In no case will the court, on habeas corpus, take the children from the father. 9 I. B. Moore, 278, (17 Eng. Com. Law Rep. 159.)
    The husband is entitled to the custody of the person of his wife. Reeves’s Dom. Rel. 66; 2 Kent’s Com. 181; 4Petersd. Ab. 21; Shelf. 667; 16 Pick. 206.
    It being thus clear, that the father has the legal and exclusive right to the custody of his children against all persons, even the mother, detaining them contrary to his will; that the writ of ha-beas corpus is the proper writ to enforce this right, it remains to notice on what principles the courts act in executing or withholding their powers at the instance of the father.
    When the children are of years of discretion, the court invariably places them at entire liberty, and suffers them to go where they please. Such were the cases, Delaval’s, 3 Bur. 1431; Smith’s, 2 Strange, 982; McDowle’s case, 8 J. R. 328.
    When the infants are not of years of discretion, the court delivers them to the father or not, according to circumstances, regarding mainly the interest of the child. See cases passim. See all the cases cited.
    The presumptions are all in favor of the father. The entire burden of proof lies on the party denying the father’s claim.
    It must be a clear and strong case of unfitness on his part, as being a vagabond, &c. that will be cause for withholding the children. Bugg’s case, 16 Pick. 205.
    Open and notorious cohabitation with another woman than his wife, no cause. Greanhill’s case, 31 Com. Law Rep. 154.
    No cause, though the child was not the offspring of the apparent father. Murray’s case, cited 5 East, 223.
    No cause, that father has no place of residence of his own. Westmeath’s case, Jacobs, 251, (Shelf. 680, n.)
    Ill usage of wife, compelling her to withdraw from him, no cause. 19 Wend. 16, and other cases.
    No cause, the infancy of the children. 19 Wend. 16 — infant 5£, 4£ and 2j years; 31 Com. Law Rep. 153; 16 Pick. 205, 3 or 4 years; Jacobs, 251, 5 years 7 months; 2 Serg. & Rawle, 174, 10 and 7 years; 31 Com. Law, 9 and 6 years; Murray’s case, 5 East, 222 cited, 5 years.
    Nor is the sex of infants cause. Greenhill’s case, females 5£ to 2i years; Westmeath’s, female 5 years; Addicks’s, females 10 and 7 years; Isley’s, female 9 years.
    Nor is the mother’s fitness. Shelf. 679; Jacobs, 251; 31 C. L. Rep. 154; 16 Pick. 205; 2 Serg. & Rawle, 174; Alston’s case before Ch. Buckner.
    Nor is the poverty or humble station of the father.
    
      Nor divorce or cause of divorce. Murray's case cited, 5 East, 222; GreenhilVs case, 31 C. L. R.; Addiclcs's case, 3 S. &. R.
    The mother’s good character is no cause for denying the custody to the father. In no case is such principle alluded to.
    The facts of this case do not make out such a case against the father as by the authorities will authorize and justify the court in refusing to restore the children to him. 31 C. & R. 161; 2 Strange, 982; 8 J. R. 328; Rex vs. Delaval, 3 Burrow, 1421; 13 J. R; Shelford, 678; 19 Wend. 19; 16 Pick. 205.
    
      G. D. Searcy, on . the part of the defendant.
    We contend that the court, in this summary proceeding, cannot inquire into, nor try the right of guardianship. All that can be done, is to see that there is no illegal restraint; and if there is, to deliver the party from it. If the party illegally restrained be an infant of tender years, and incapable of making an election, the court will form an opinion for it: and in making the election, the court will not consider, nor adjudicate upon, the rights of the father or the mother, but will be governed exclusively by the interest of the infant.
    These principles are well settled both in England and America, and it is believed no authority can be found to conflict with them.
    In the case of The King vs. Delaval, 3 Burrow, 1436, which was an application on the part of a father to obtain possession of his daughter, who was restrained for the purpose of prostitution, Lord Mansfield delivering the opinion of the court, says: “In cases of writs of habeas corpus, directed to private persons, to bring up infants, the court is bound in debito justicies to set the infant free from improper restraint; but they are not bound to deliver them over to any body. This must be left to their discretion, according to the circumstances that shall appear before them.” In this case, the girl, being of sufficient age to judge for herself, was discharged from the illegal restraint, and left to go where she pleased. The cases of Rex vs. Claclcson, 1 Strange, 444, and Rex vs. Smith, 2 Str. 712, are to the same point, and cited by the court. The case of Rex vs. Hopldns, 3 P. W. 151, recognizes the same doctrine.
    
      In Bacon, title Habeas Corpus, b. 13, it is expressly stated, that on writs of habeas corpus to bring up infants, the court will not enquire into nor try the right of guardianship. The American cases which recognize the principles above stated, are numerous. The case of Wo'llstoncraft, 4 J. C. R. 80, was an application by the testamentary guardian to obtain the possession of his ward in the custody of her mother. The application was refused. The court say, “The course and practice of the court in these cases was only to deliver from illegal restraint, and not to try the right of guardianship or deliver the infant over to the custody of another.”
    The case of Waldon, 13 Johnson R. 417, was an application by a father to obtain possession of his infant child in the custody of its grandfather. The application was refused. The court say, “that the child cannot be considered under any illegal restraint;” that the possession of the child “is not a matter of right which the father can claim at the hands of the court. The attention of the court will be directed to the benefit and welfare of the infant.”
    The case of McDowle, 8 J. R. 328, was an application by the father to obtain possession of his two sons in the custody of the society of Shakers. The court recognize and act upon the principle, that all they can do, is to deliver from illegal restraint. The case of The Commonwealth vs. Addicks and wife, 5 Bin. 520, was an application by a father to obtain possession of two infant daughters in the custody of their mother, an adulteress, who was then living with her paramour. The application was refused, upon the ground that the court could not try the right of guardianship: they could only deliver from illegal restraint: that their anxiety would be directed to the children; and they, on account of their tender years, stand in need of the assistance and care of their mother. In the case of The State vs. Smith, 6 Green, 463, the same principles are recognized and acted upon.
    In the case of The United States vs. Green, 3 Mason R. 482, Judge Story, in delivering the opinion of the court, said: “It is an entire mistake, to suppose the court is at all events bound to deliver over the infant to its father, or that the latter has an absolute vested right in the custody.
    
      The case of IP Hauteville, lately decided in Pennsylvania? was also an application on the part of the father to obtain the custody of his infant child in the possession of the mother. In this case the court go fully into an examination of all the cases on the subject, and recognize and act upon the principles on which’ we rely. The application was refused. The possession of the mother was not considered as illegal, and the court, in the exercise of their discretion, considered' the interest of the infant. This case, together with that of Addiclcs and several others, settles the principle, that in judging of the interest of the child, pecuniary considerations alone are not to be the governing principle: the health, the morals, and the comfort of the child, are to have great weight.
    The case in 5 East, 221;. in 9 J. B. Moore, 298; E. C. L. R. and the case of Greenhill, 31 E. C. L. R.) all of which are confidently relied upon by the other side,} are not in point. There is no principle admitted or settled in either of the above cases in conflict with the principles for which we contend. And so far as these cases can be considered as authority in the case, they go to support the positions assumed by us.
    The cases of De Manneville and Skinner were applications on the part of the mother to obtain the custody of children in the possession of the father. The applications were refused, for reasons which we will state presently.
    The case of Greenhill, though in fact an application by the father, was placed upon the same ground and brought within the same rule which governs when the possession is with the father, and the mother seeks to deprive him of it. The facts of the case are: “That the father had rented lodgings for his wife and children, and during his temporary absence the wife abandoned the house, leaving the children in it. Her brother after-wards abducted the children and placed them in the custody of the wife.”
    Denman, J. in delivering his opinion, says: “There is no doubt, when the father has the custody of his children, he is not to be deprived of it, except under peculiar circumstances, and these do not appear in this case; for, although misconduct is imputed to Mr. Greenhill, there is nothing proved against him, which has ever been held sufficient ground for removing children from their father. And if we loolc strictly at the evidence, this will he found a case falling within the general rule just stated; for when the children were in the’ house rented by the father, and in the charge of those whom he had appointed they should be, the mother's conduct in causing them to be removed, was equivalent to taking them out of his custody; and if so, ex concessis he has a right to claim that they be restored.'” Littledale, Judge, in giving his opinion, says: “The children were in effect in the custody of the father, in a place selected by him, and have been removed, and he only seeks to bring them hack.” It is manifest, that this case was put in the same class, and decided upon the same principles which governed in the case of De Manneville, and the case of Skinner, where the possession was with the father, and the mother or some other person seeks by habeas corpus to deprive her of it. These cases rest upon the ground, that unless there is illegal restraint, there can be no action of the court: and so far they are authorities for us. The principles determined in these cases are, that the father is the natural guardian of his child. His custody, therefore, is the legal custody, and the legal custody is by presumption of law the free custody. Now, the custody being by presumption of law the free custody, there is nothing upon which the writ can operate. The court cannot act, because there is no illegal restraint. Remove this presumption of ‘free custody,” (which may be done by proof of corruption, depravity, inability to take care of the child, or just ground to apprehend cruelty on the part of the father,) and the court will then act, and in the exercise of their discretion may deprive the father of the custody. The distinction is here, that where the father has the possession, the power of the court is limited; and in the language of Judge Denman, “he cannot be deprived of it, unless under peculiar circumstances,” viz. inability to take care of the child, depravity, disqualifying him from properly educating the child, or a just ground to apprehend cruelty on his part. When these facts are made to appear, the presumption that his custody is the free custody is rebutted, or rather a counter presumption is raised of illegal restraint, and the court will then proceed to act on the writ, and deliver from that restraint; and if the child be incapable of forming a judgment, the court will, in the exercise of their discretion, make an election for it. In the case of Skinner, the court expressly say that they have no power to act. Why had they no such power? The answer is plain. There was no illegal restraint; there was no proof of depravity or unfitness on the part of the father, rebutting the presumption of law, that his custody was the free custody.
    The case of NicJcerson, 19 Wen.R. 16, and the case of Biggs-, 16 Pick. R. 203, are placed precisely upon the same ground of the case of Simmer, Be Manneville and Greenhill, and belong to that class of cases. It is true, that in these cases the distinction is not so clearly stated: yet both of these cases went oif exclusively on the ground, that the wife abandoned the husband without any cause whatever — as in the case of Greenhill. In the case oí Nickerson, the court use this language: “Unless the case can be materially varied, Mrs. Nickerson has greatly mistaken the duties and obligations which devolve upon her by the marriage vow, and she is now living in a state unauthorized by law.”
    In the case of Biggs, the court say, “that unless there is some justifiable cause of separation, the court ought not to sanction the unauthorized separation of husband and wife, by ordering the child into the custody of the mother, thus separate and out of the custody of the father.” What does the court mean, by “ordering the child into, the custody of the mother?” The child was already in the mother’s custody. Is it not manifest, that, like the case of Greenhill, the court considered the unauthorized abandonment of the husband by the wife, and the taking of the child, as equivalent to depriving her of the possession, and bringing the case within the rule stated by Judge Denman, in the Greenhill case.
    In the case of Nickerson, the court cite and rely upon the case of Be Manneville and the case of Skinner, and the observation of Lord Eldon, in the case of the Buke of Bedford, (in which he states that the father is the natural guardian, and places the right of the court to interfere upon the breach of that trust,) as authority.
    
      
      W. T. Brown, on the same side.
   Tueley, J.

delivered the opinion of the court.

Among the multiplied duties of a court, there are none the discharge of which is attended with more pain and regret than those which interfere with the domestic relations of husband and wife, parent and child. These relations are of so sacred a character, and involve to so great an extent the peace and happiness of mankind in general, that it cannot be otherwise than a source of deep mortification to a well-regulated and humane mind to be compelled publicly to investigate and determine conflicting rights arising out of feuds existing between them.

This difficulty is not lessened, but increased, by the difference of the sources from whence our law is derived; on the one hand, the common law, with its stern and iron-bound principles based upon the manners, customs and thoughts of our ancestors a rude and undigested people of rough energy and indomitable pride, addicted to arms and considering battle and conquest as the only great and glorious duties of life, making all their institutions civil and domestic subservient to these ends, giving a paramount right to the superior over the services, liberty and even life of the inferior, embracing in this view the relations of landlord and tenant, husband and wife, parent and child, guardian and ward; and fixing their duties and rights, without regard to justice or humanity, upon the principles of concentrated power upon which the feudal system rested; on the other hand, the jurisprudence of a refined race, one that had emerged from its barbarism, and after having-subdued the world, had been for centuries polished by philosophy, poetry, eloquence and art, even to enervation.

By the one, women, and children of immature years, held as they always have been by uncivilized people as the property of the husband and father, having no will of their own, no rights in contradiction to his power and authority, and only considered through him as a portion of the community in which they lived. By the other, with more regard to the harmony of nature, looked upon as beings created not only by the same power, but, with exceptions resulting frorn the subordinate position in which the laws of nature place them, as having equal rights to all the enjoyments of life, and as safe and adequate protection for them, as the husband and father.

These variant principles have for a length of time been antagonist to each other in England, and to a great extent in this country — the common law courts giving protection to the one, and the courts of chancery to the other. It would be desirable to have these relations placed upon a wise and humane basis by positive enactment, and not leave them as they are at present to a considerable extent, in nubibus.

In the case before the court, we are' only called upon to expound what is the common law relation between the father, the wife and the child, and to enforce the rights as thus recognized. Unfortunately for all the parties to this controversy, the husband and wife have not found it to their happiness to comply with their mutual promise so solemnly made to each other, to live together until God should part them. There seems to be no want of integrity on the part of either — he is proved to be peevish and fretful, and she is no doubt high-spirited and respectful. But we will not undertake to determine upon whom the greater blame rests. Be this as it may, the wife has left the husband and taken his children with her, and he is now asking the aid of this court to restore them to his possession. And the only question for us to determine, is whether the relief thus sought can be given.

That the father is entitled upon the principles of the common law to the exclusive custody of his children is not and cannot be controverted; and that if he have it, a court of common law will not deprive him of it but for an abuse of his trust affecting their persons either by improper violence, or improper restraint, and which would justify the issuance of a writ of habeas corpus for their protection. Shelford in Marriage and Divorce, 409, 410, and the authorities there cited. But in this case he has lost their possession, and the question as here presented is under a different phasis. The probability is, that the rigid principles of the common law would have restored the possession of a minor child to the father under all the circumstances; for, as has been observed, this would have been in conformity with the social principle. But if it ever were so, it is so no longer, and perhaps the mitigation so far as it has extended is adopted from the civilians. The mitigation of the principle is, “that the coart is not bound in a proceeding upon habeas corpus, to deliver the child to the father, but may act upon its discretion according to the circumstances of the particular case.” The first, and so far as we at present know, the earliest case referred to in support of this position, is the case of The King vs. Delaval and others, decided by Lord Mansfield, in 3 Burrow, 1434. The predilections of that jurist for the civil code and his strong disposition to engraft its principles upon the rude stem of the common law, are well known. However, the principle thus laid down has been so repeatedly recognized both in England and the United States, that it is now at all events a part of the common law. Shelford on Marriage and Divorce, 410; 8 Johns. Rep. 328; 13 do. 418; 5 Binney, 520; R. M. Charlton’s Rep. 489; 6 Greenleaf, 463; 3 Mason, 382; and the celebrated case of D’Hauteville, where all the authorities are well examined. The principle being thus established, that the court is not bound by a fixed principle of right to restore a child to its father, but may at its discretion withhold it, the question occurs, Under what circumstances may that discretion be exercised? This must of necessity in many instances be a thing difficult for judicial determination, as no fixed and determinate principles can be established upon the subject — every case resting upon its own peculiar circumstances. It is to be observed, that in all cases the interest and welfare of the child is the great leading object to be attained, and therefore if it be of an age sufficiently matured to judge for itself, the court will free itself from the responsibility of determining the controversy, by leaving it at liberty to go where it pleases. Rex vs. Smith, 2 Strange, 982; 8 John. 328. But if it be not of such an age, the court will judge for it. There, are certain principles upon the subject recognized by all the authorities, and controverted by none; such as, if the father be vmworthy, or incapable morally or physically, to take care of the child, if there be apprehensions of improper restraint, the court will not restore the possession to him.

In the case of D'Hautevillc it was held, that if the health and age of the child were such as to make the vigilance and attention of the mother necessary for its care, it would not be taken from her and given to the father. In the case of The Commonwealth vs. Addicks and wife, 5 Binney, 520, Chief Justice Tilgh-man says, it is the interest of the children to which the anxiety of the court is directed, and he refused in that case to take them from the mother, on the ground of their tender age, one of the children being ten, and the other seven years of age. They were both daughters.

We deem it useless to enter into an investigation of the particular circumstances upon which the different cases rest, with a view to reconcile them. They completely establish the principle, that the court has a discretion upon the subject, and a conflict of judgment is under such circumstances tobe expected. But the principle, that it is the interest of the child which is to be looked to, without regard to the right of others, being established, relieves us to a great extent from the difficulty resulting frem a want of certainty in the exercise of the right of discretion. We will not, as we ought not, attempt to establish any general rule upon the subject, but confine ourselves to the inquiry as to the rights of those interested in the case under consideration. The wife, by the common law, has no right to the children against the husband. Therefore she cannot be looked to in this case except so far as she may be considered by the court the most suitable person under the circumstances to have their control, for their benefit. The father is not shown to be disqualified either morally or physically for their care and culture; and the only question left for consideration is, in whose possession will the interest of the children be best provided for, — the father’s or the mother’s. There are three, the oldest a boy aged near eight years, the second a girl aged near six years, the third a boy aged near four years. We think, exercising our discretion from the best lights that our knowledge of society gives us, that the oldest boy can be better raised by the father than the mother under the existing circumstances, but that the other two are of too tender an age to be removed at present from the fostering care of the mother, who is proved to be worthy and well qualified for their protection. We therefore direct, that the eldest son be restored to the father, and that the daughter and youngest son remain with the mother until upon a change of circumstances it may be otherwise directed. We do this the more readily because the subject is now before the Chancellor, who has more power over it than we have by this proceeding.  