
    
      Chambers,
    
    
      October 26th, 1836.
    In the matter of Joshua Toulmin, Mitchell, otherwise called Edward Coppee, Mitchell.
    
      Habeas Corpus.
    
    On a habeas corpus at common law, the Court, (or Judge presiding) on Return, has the power to change the custody of an infant child, if its interests require it.
    And this discretion is more properly to be exercised, when the infant is too young to make a proper election»
    The writ of habeas corpus at common law, applies as well to cases of illegal detention as ille* gal confinement or restraint.
    The father has the legal right to the custody of his children*
    But Courts of justice may control this right, when the safety or interests of the child imperiously require it.
   asy Ei.OS33Sg.ar M. CHAKXTOW, JTraclge.

IN delivering my opinion orally in this application, I intimated that I would reduce the substance of it to writing, in order that it might be spread upon the minutes and preface the order that I granted, relative to the custody of the child, the subject matter of the habeas corpus. In questions of general importance to the community at large, most particularly in matters that affect the nearest and dearest rights, the opinions of those who adjudicate, in the last resoit, upon those rights, and the grounds of those opinions, should be known, or at least should be open to the inspection of all, whose interests may be affected by them.

The/ja5eas Corpus in this case, was issued at the instance of Dr. John J. Mitchell, and directed to Dr. Edward Coppee, requiring him to bring up the body of Joshua Toulmin, Mitchell, alias Edward Coppee, Mitchell, the son of Dr. Mitchell, the applicant, and the grandson of Dr. Coppee. It appears that the child is only three months old, and that its mother (the wife of applicant, and daughter of Dr. Coppee,) died in childbed, at the house of her father and mother, where the child was born, and has remained evei since, with the consent of its father, until a few days ago, when becoming dissatisfied, as he alleges, with the treatment it was receiving, and anxious to obtain it, that it might be under bis own charge, he demanded it, and the grand parents refused to deliver it up. Sundry affidavits are exhibited on the part of the grandfather, going to shew the kind and judicious manner in which ft has been treated, and expressing an opinion that a change of nurses, residence, and treatment, might be attended with danger to the infant. The fact is also stated in- these affidavits, that the father of this child promised his wife, the daughter of respondent, (on her death bed, and in answer to her request,) that it should remain with her parents during its infancy, and that the applicant has since admitted that he made such a promise On the other hand, he denies under oath evei having done so, and without asseiting that there is any want of kind treatment, to the child on the part of the grand parents, he yet declares, that their treatment of it is in his opinion injudicious, calculated to make its constitution too delicate, and to pre-dispose it to-a disease hereditary in the family of its deceased' mother. The morals of the father are not impeached, nor is- his' pecuniary ability to maintain the child denied. The return admits the custody, but denies that the infant is under any illegal restraint.

It is contended on behalf of the grandfather, that this is not a case in which the writ of HaSeas corpus will apply; that there is-here no illegal restraint, and that all a Court will do on such applications, will be, to relieve the infant from improper restraint, but that it will not determine in this summary manner, any rights of guardianship inter partes, when these are contested. The cases cited by the counsel do declare this doctrine. But neither these cases, nor any other that I am apprised of, (except perhaps, Rex vs. Smith, 2 Strange 982,) deny that the Court, or Judge presiding, on the return of the habeas corpus, has the discretion vested in it, to place the custody of the child into the hands of any one, by ■whom its interests and health would be best promoted. The cases ■assert, that the Court is not bound to deliver the infant over to any ■particular person ; that it is not a matter of right which the father can claim at the hands of the Court, but a matter resting in the ■sound discretion of the Court, to be guided by the interests of the child. (Rex vs. Delaval, et. al. 3 Bur. 1436. Commonwealth vs. Adicks and wife, 5 Binney 520. Matter of Waldron, 13 John 420. United States vs. Green, 3 Mason 482.) And it is most proper that this discretion should 'be exercised by the Court, when fantis too young to make a proper selection. It was ■d.ccp^ir^p’ exercised in the case of the King vs. Johnson. (1 Strange 579. L. Raym. 1334.) And though the authority of this case ha^5Bje||)U impugned, (King vs. Smith, 2 Str. 982,) yet Lord Mansfield, in the case of the King vs. Delaval, et. al. (1 Blackstone’s Rep. remarks, in reference to this case, “It is said in the next case, that"' Lord Raymond repented of what was done in this. His Lordship was latterly a very scrupulous man. But we are clear his first judgment was the right one.” And in a case which occurred in this Circuit and County, one of my .predecessors, (my father. Judge Thomas U. P, Charlton,) on an application like this, took the infant from her grandmother, and gave to her legal guardian the custody of her person, upon the ground, that the child w.ho was only seven years old, was unable to make a free and unbiassed .election between her grandmother and guardian, and adding “that upon different circumstances, this Court, upon the authority adduced, would permit the infant to go where sh ■ pleased.” (Matter of Ralston. ) The precedent established by these authorities, negatives both positions of the counsel for the grandfather, for these cases shew, that the writ of habeas corpus at common law, will apply, though there he, strictly speaking, no illegal restraint and confinement of the infant, and that the Court wil^ determine under this application, and under circumstances similar to the present, the right of custody. To confine the writ of habeas corpus at common law, exclusively to cases of illegal confinement, would he destructive of the ends of justice. It would enable a kidnapper to maintain possession of a child of tender years, (taken by him by fraud or force from the bosom of its family,) merely because its want of legal discretion would preclude the idea of its being confined against its will. I apprehend that it is not going too far to say, that the interests and welfare of society require, that under peculiar circumstances, thfe fact that the child of tender years is detained, improperly from the custody of the person entitled to its possession, is sufficient to ground and maintain the writ of habeas corpus.

And the power to determine the right of custody on applications of this natuie, ought more properly to be exercised by this tribunal, (unless those peculiar circumstances intervene which would justify it in refusing to interfere in determining the rights of the parties,) because there is no other tribunal vn this State, in which the question can so appropriately be decided. The peculiar jurisdiction over infants which is claimed by the Chancellor in England, as representing the King, the parens patria:, and the doctrine of wards in Chancery, is not claimed or recognized by the Courts of Chancery in this State, to any extent that will bear a comparison with the claim and doctrine as established in England. Our Courts of Ordinary are clothed with the power of appointing guardians, and that power is exercised in the cases of orphans. (Prince 157, 168,) illegitimate children, (Foster 114,) and in cases where property has descended to a child whose father or mother is in life, and such natural guardian refuses to give bond and security for the performance of the trust. (Foster 110.) Without Rt all intending to decide the question, I may observe, that under these statutes of Georgia, our Courts of Ordinary have never pretended to claim the right to appoint a guardian to a legitimate child, whose father was in life, and capable in all respects to maintain it, unless property had descended to the child, and the father refused to give security for the performance of the trust. If then this Court, the highest judicial tribunal in the State, has the power to determine the right of custody of an infant of tender years, and there is no other Court where such right can be so appropriately decided, the power ought to be exercised in favor of the party having the legal right, unless the circumstances of the case and the precedents established, would justify it, acting for the welfare of the child, in refusing its aid.

It becomes important then to enquire, who has the legal right to the custody of this infant, and it seems to me, that the answer that would rise to the lips of any one, however unskilled he might be in the science of the law, would be, that such right resides in the father. The law of nature, the feelings which God has implanted both in the man and the brute, alike demand, that he who js nearest to it, who is the author of its being—who is bound to ¡ts maintenance and protection, and answerable to God for the manner in which it is reared, should have its custody, and the law of man which is founded upon reason, is not hostile to the assertion of this claim. Lord Ellenbonmgh, in the ease of the King vs. De. Manneville, (5 East. 22d,) speaking of the father, says, “he is the person entitled by law to the custody of his child. If he abuse that right, the Court will protect the child.” Lawrence, J. concurred, and added, that “Lord Kenyon, had no doubt but that the father was entitled to have the custody of the infant, unless the Court saw reason to believe, that the father intended to abuse his right by sacrificing the child.” In both these cases the child was given to the father, (and in the latter the custody of the mother was divested for that purpose,) although in De Manneville’s case, the father was an alien, the mother a subject, and the infant only eight months old, and at the breast of its mother; and in the other case mentioned by Lawrence, J. as having been determined by Lord Kenyon, Sir W. Murray had been divorced from the mother, and though the child was born before the divorce, there was not any reason to think the child his. But the Court did not think that a sufficient ground to deny him the custody of it, he being the legal father. And in Lytton’s case, mentioned in De Manneville'a case, it is stated, that Lord Mansfield said, that the Court could not at any age take a child from its father. Lord Eldon, when this case came before him as Chancellor, (10 Vesey Jr, 61,) speaks of the right of the father to have the custody of his child as “ the legal, natural right of the father.” Chancellor Kent, (2 vol. Com. 192, 3d edit.) says, that the right of the father is perfect while the child is under the age of fourteen years. And indeed Mr. Chitty affirms, that the Court of King’s Bench cannot directly control this right, (Notes to 1 Bl. Com. 360—see also ex parte Skinner, 9 Moore’s Rep. 278.) And Lord Chancellor Eldon, (in Lyons vs. Blenkin, 1 Jacob 245,) seems to draw a distinction where the Chancellor is acting on a habeas corpus, and when there is a cause in Court, and to hold that in the former case, he is bound to decide on the same principles as a common law judge, and could only then divest the legal right of the father to the custody, by proof of personal ill usage, or other circumstances shewing that he was an improper person to haye charge of his child. When there is a cause in Coqrt, his powers are more ample. But it is unnecessary to multiply authorities on a point that cannot be contested.

But notwithstanding this legal right of the father, circumstances may exist which would justify a Court in this proceeding, in refusing to lend its aid to him in procuring the custody of his child, or even withdrawing the infant from his custody, when its morals, its safety, or its interests seem to require it. All legal rights, even those of personal security and liberty may be forfeited by improper conduct, and so this legal right of the father to the possession of his child, must be made' subservient to the true interests or safety of the child, and to the ditty of the Slate to protect its citizens of whatever age. A host of authorities might be adduced1 to maintain this position, and I do not doubt its justice or correctness for a moment. (See 2 Kent’s Com. 3d edit. 193, 205. 4 John. Ch. Rep. 80. 5 Binney’s Rep. 520. 3 Mason’s Rep. 482, and various other American and English authorities cited in note (c) 2d Kent’s Com. 193, note (b) ibid. 205.)

But do these circumstances exist in this case? Ts the father brought within the range of those authorities? He is not alleged lobe of bad morals, of unsound mind, or of pecuniary inability to'1 maintain his child. He is an intelligent physician, who disagrees to the mode in which his child is treated in a medical point of view, and expresses under oath his apprehension, that both the body and mind of his offspring will suffer under such treatment. He is an. xious to obtain its custody, that he may guard it against the consequences of this treatment, and that he may shield it from a disease, which he alleges to be. hereditary in the maternal line, and which the manner in which it is reared, is fast driving it into. He is competent to determine whether its removal at the present time would endanger its safety, and a Court (which will draw no inference to the disadvantage of the father, but will act from positive proof,) will presume, ''that his natural feelings will prevent his sacrificing his child by such removal, if it be improper, and that he will not immolate it on...the altar of his resentment to its other relatives. To a father thus able to maintain and preserve his infant, unimpeached in morals, and asking from this tribunal, that his legal, natural right should be awarded to him, shall a denial be given?

But it is urged that this legal right has been abandoned by the father, and that the affidavits accompanying the return, disclose the fact, that he promised his wife on her death lied,-that the child should remain with its maternal relatives during infancy. This promise is distinctly denied by the father under oath. The counsel for the.grandfarther objects to any weight being given to such denial, as it is a contradiction to the return to the habeas corpus* which may not be controverted. Without intending to decide the disputed point whether the facts set forth in the return to a habeas Corpus at common law, may be controverted by proof of their falsity,--made apparent by conli'ariant affidavits, I may observe, that it is put every fact, however irrelevant, which an individual may1 choose to incorporate in his return, that is to conclude the. Court. But assuming th't this fact eartnot be controverted or denied, I presume that no one contests my right to determine if it is sufficient in law to justify the restraint or detention. This is a promise then, made to the wife of the applicant, on her death bed, pnd at her instan-e, under circumstances, when perhaps no request, however unreasonable, would have been denied. This case differs very widely from Listor's case, (13 East 172, note,) where the husband had abandoned his marital rights by formal articles of separation, and the Court therefore refused to give him the custody of the wife. And it also differs from the case of Rex vs. Delaval, where the parent had by indenture parted with his parental authority. (1 Black. Rep. 413.) In the case before me, the promise was made to the wife of the applicant without a <y legal consideration, and I cannot hold it to be an entire surrender of his 1 gal or parental right. It might with great propriety be called nudum pactum.

M. Sheftall, Senr., for father—L. S. D’Lyon, contra.

From all these considerations, I feel it to be my duty to deliver the custody of this child to its father. I do so with the expression of a hope, that he will not deny to its maternal relatives, their natural (though not their legal) right to have access fir it, at proper times and under proper circumstances.

It is ordered, that the infant Joshua Toulmin, Mitchell, otherwise called Edward Coppee, Mitchell, be delivered to the custody of its father, Dr. John J. Mitchell. 
      
      
        Supra, 119.—(Ed.)
     