
    Ex parte Albert Williams.
    
      Parent and Child-Infant, Custody of — Habeas Corpus —Practice.
    "Where a father seeks by habeas corpus to obtain possession of his infant son, the discretion of the Oourt in discharging the infant from illegal restraint, is not limited to protecting him in returning, but it may, even whore the infant is of the age of choice, order that he be delivered to the father.
    BEFORE WHITNER, J., AT RIOHLAND, OCTOBER, 1857.
    Petition for a writ of habeas corpus to be directed to Jobn W. Clark, the grand-father, commanding him to have the body of Alpha Irving Williams, the infants on of the petitioner, before the Court.
    The writ was made returnable on the 16th October, on which day, the said John W. Clark having failed and neglected to comply with the requisitions of the writ, it was “ordered, that the said John W. Clark, do forthwith surrender and deliver the body of the said Alpha Irving Williams to the petitioner, Albert Williams, and that in case of his neglect or refusal to do so, the said John W. Clark be attached for contempt in disobeying the order of this Court, and that the sheriff of Richland district do take the body of the said John W. Clark, and commit him to the jail of Richland district, and detain him there until he shall comply with the order of this Court, or be otherwise discharged by competent authority.”
    The sheriff having made return to the above order, that upon repairing to the house of Mr. Clark, in company with his family physician, he found him in such condition of bodily health, that his removal and confinement would endanger his life, and therefore he had not acted on the order; it was, on the 21st October, 1857, ordered that the sheriff be excused; and further, that the order be suspended until the 5th December, on which day, Mr. Clark was directed to make his return, with leave to submit such showing as he might then have; and also, with leave to the petitioner to submit a counter showing.
    On the 5th December, 1857, the matter was again heard by his Honor, on the return of Mr. Clark, and affidavits submitted on both sides.
    His Honor afterwards made the following order:
    
      11 At Chambers, Columbia, Dea. 14fA, 1857.”
    “It is not necessary to recite the proceedings had heretofore before me. The further hearing on the day assigned was at the earnest solicitation of the counsel representing John W. Clark, and authorised, as I conceived, by the special circumstances. It appearing, by the further showing of the said John W. Clark, that the infant boy, Alpha Irving Williams, is now in his custody, the parties being before me, by their counsel, additional affidavits were read- and counsel fully heard. I availed myself also of the opportunity of a free conference with the son, touching the circumstances 'leading to this unpleasant controversy, and the views or wishes he might entertain as to his future disposition. The case was then adjourned over for further time to consider and deliver a judgment when the parties might be present.
    “I regret that the pressing engagements by which I am surrounded, deny me the opportunity of setting forth in detail the views I entertain of the facts and law of the case, the more especially, if perchance-, I might thereby render that judgment more acceptable to the parties.
    “To the last hour I had hoped an amicable .arrangement might be effected, so that I might be spared the painful necessity of determining the claims set up, or passing upon the rights involved.
    
      “ The youthful subject of this controversy constitutes a remaining link which, should serve to bind these contestants in closer friendship. I am oppressed with the reflection that when, as the organ of the law, I make to each party according to its mandates, whether I shall give or withhold, the tie is likely to be severed, and a deeper bitterness may ensue as a consequence of disappointment.
    “ This is not a controversy between parents standing in equal relation to the subject. The superior right of the father to the custody and control of the son as against any claim to be set up by the grandfather, is beyond question. Why, then, should the claim of the father not be accorded in the present instance ?
    “ I am no.t affected by any fact made to appear that the trust reppsed by law in the father has been or is likely to be abused. I cannot assume that, because discipline has been used that it was cruelly or wántonly administered. . The instrument used on a single occasion was unusual, and I would not say strictly defensible. Its use, and to the extent shown, cannot of itself sanction the conclusion sought. The allegiance of the child is due to the parent — obedience to just authority is a duty to be enjoined and enforced, looking to the interest of the child —unless demanded by a sense of humanity, in a clear case, inference by others is indiscreet and pernicious. Weakness in a parent, or mistaken kindness by others, may often prove the greatest cruelty in the end.
    ¡i general character of the parent, as well as his conduct to the boy, as shown by the evidence, is altogether satisfactory. The petitioner is represented as a man of piety, education prudence, and of sufficient pecuniary resources to maintain creditably, and secure efficiently, the comfort and future education of the son. The sense of responsibility he manifests, I trust, is a guarantee that confidence may be rightfully reposed in him.
    “It has been urged, that at most a law judge only has power to free tbe child, baying attained the age of choice, from any improper restraint on the part of Mr. Clark; but that according to his choice he should be left free from all restraint by any order now made in the premises. I shall certainly not assume to appoint a guardian, but by law, human and divine, the parent is entitled to the control of the child, which implies his possession, and no restraint will be imposed upon its exercise in the present case. When these proceedings shall have closed, I trust there will be no further interference with the exercise of parental authority by Mr. Clark, or any one acting as his agent, or by his authority, unless^the proper sanction of law be first had, or at least untií:a'''.^|VnáíitLwell-founded case may arise. ,f ' \
    
    “ It is ordered that .the said Alpha<^r^|bg Willi^S^é^ur-rendered forthwith by his present cusWign:,! ¿féfar "Wl Chfjk, or by such person as may represent más'as his .ag^^bn Jthe present occasion, and that the petitioned A^fiSI Wiliiamíí, be permitted and have full authority to t^^^ggsgs^On of his son, and the same to retain according to the powers and privileges which attach to him as father.
    “ It is further ordered, that if this mandate be not obeyed, or if the said J. W. Clark, or any one acting as Ms agent, or by his instructions, should attempt to possess himself of the said Alpha Irving Williams, against the will of his father Albert Williams, he may apply to me or another judge of this State, for an attachment against such person for contempt.
    “It is further ordered that the original papers in these entire proceedings, be filed by the Clerk of Sessions and Common Pleas, for Bichland district.”
    And on the same day his Honor made the following supplemental order:
    “ It being suggested and satisfactorily appearing, that the petitioner, Albert Williams, is absent, in consequence of indisposition, but has procured to be present his friend, Judge H. W. Watson, a gentleman known to me of character, as bis agent in tbe event of a judgment being given in favor of tbe present application, by way of avoiding any misunderstanding, I have thought proper thus to recognize bis agency as a part of this proceeding, and declare that in my view be may properly represent tbe father in receiving and retaining the possession of tbe son, Alpha Irving Williams, for all tbe purposes of tbe present proceeding, and this I append to my judgment at tbe time of announcing it.”
    John W. Clark appealed, and now moved this Court to reverse tbe order granted, requiring him to deliver up Alpha Irving Williams, on tbe grounds:
    1. Because under tbe facts and circumstances as presented, tbe father was not entitled to tbe custody of the child.
    2. Because there was nothing shown in tbe case to bring,it within tbe exception made by tbe decided eases to tbe well-settled rule, that tbe father is not entitled, as a matter of right, to an order on tbe return to a writ of habeas corpus, that the possession of tbe child be delivered to him, but on tbe contrary, there was everything to show, that while tbe Court was bound ex debito justicies, to set the infant free from improper restraint, it ought in its discretion, and looking only to tbe benefit and welfare of tbe infant, to have instructed and advised, in tbe choice be" should and would have made, namely: to remain with bis grandfather.
    
      Hoadly, for appellant, submitted.
    1. That there was no evidence whatever, that Mr. Clark detained Alpha Irving Williams against his will, or that be was unlawfully detained by Mr. Clark, or that be was detained at all.
    2. That if tbe order of the court amounts to a mandate to Mr. Clark to deliver up Alpha I. Williams to bis father, it bas not the sanction of law or precedent upon the trial of a habeas corpus.
    
    
      3. That if, upon an application for a habeas corpus, such order may be lawfully made, the case made by the applicant does not require the interposition of the court; and is especially unfit where the infant is of the age of choice, and is unwilling to be delivered up to his father, the applicant.
    4. That if the court is satisfied upon the case made, that the infant is detained by Mr. Clark, and that it is proper some order should be made, it is respectfully submitted that the order should only be to the effect that the infant be allowed to go where he pleases.
    And cited the following authorities to sustain them:
    In the matter of Wolf stonecr aft, an infant, 4 Johns. Ch. 80; The People vs. Porter, 1 Duer., 709; 18 Johns. 417; The People ex rel., Barry vs. Mereim, 8 Paige, Ch. 47; Bex vs. Smith, 2 Stra. 982 ; King vs. Clarkson, 1 Stra. 444; Bex vs. . Johnson, 1 Stra. 579 ; People vs. Pillons, 1 Sandf. Sup. Ct. R., 672 ; People vs. Frazer, 1 Dudley, Geo. R., 42 ; Pool vs. James Qoot and wife, 4th vol. Monthly Law Reporter, No. 5, page 269; In the matter of Kottman, 2 Hill, 363 ; Ex parte, Schum-pert, 6 Rich. 344.
    
      Tally, contra.
    The only question is, had the Court authority to make an order for the custody of the infant. That the Court was bound to discharge him from unlawful restraint, is clear and unquestioned law. This is not a matter of discretion but of duty, of clear legal right; but the Court is not bound to stop at that, it may go further, and in its discretion make an order for the custody of the infant. Co. Litt. 88 b., Harg. n. 69 ; McP. on Inf. 61. The Court will be guided in the exercise of its discretion by the interests of the infant.
    
      De Saussure, in reply.
   The opinion of the Court was delivered by

Wardlaw, J.

In this case it is not denied that the father is a person.in every way fit to take charge of his son, the infant in question. Circumstances render the separation of the infant from his aged and respectable grandfather very painful: but the affidavits, which were exhibited to the Judge below and have been read here, satisfy this Court as they did him, that the interest of the infant will not suffer from the separation.

The father lives in Alabama, and now has his son with him there. His right to retain him is unquestionable; and notwithstanding the grounds of the appeal taken by the grandfather seem to deny that under the circumstances the father was entitled to the custody of his child, the argument has gone only to the extent of objecting to so much of the proceedings had below, as has been construed into an order that the body of the infant boy, now fifteen years old, should be delivered by the grandfather into the possession of thefather. A decision in favor of the appellant, of the abstract question which has been made, would not restore the boy to the grandfather, nor affect the legal rights of the father: and although we are not able to perceive what other good is expected from it, we are unwilling to believe that it is sought in anticipation of further strife, which might ensue, if possession were again acquired and maintained in opposition to the •will of the father.

If delivery to the father of the body of the infant was finally ordered below, (as it had been under the order of ■October 16, which was suspended October 21,) and was a matter within the discretion of the Judge below, then this Court perceives no reason for dissatisfaction with the exercise of discretion which was made. /

According to the oft-recited expressions of Lord Mansfield,;’ in Rex vs. Delaval, 3 Burr. 1436, the delivery to the father was within the discretion of the Judge to whom the habeas corpus was returned. In our case of Kottman, 2 Hill 364, Chancellor Harper seems to give more weight to the dicta in the case of Rex vs. Smith, 2 Stra. 982, than Lord Mansfield had done, and, perhaps, to hold that “ the office of the Court is to discharge the infant from, illegal restraint, and the discretion is to protect the infant in returning” — . The difference is extremely slight. A Judge, before whom the writ of habeas corpus has been returned, finding that the body of an infant has been brought up by a person who does not show a legal right to retain it, is bound to discharge all unlawful restraint. Having done so, he may stop, where the infant has sufficient understanding to choose a protector. If a question as to the validity of a marriage (1 Stra. 444), or the right of guardianship (1 Stra. 579), or the like is involved in the dispute about the possession of such infant, such question will not ordinarily be decided in a summary way by affidavits (2 Stra. 982), but the infant will be left free to exercise a choice, and be protected redeundo according to that choice. Even where one party is the father, and his legal right to the possession would, without special circumstances, be clear, if circumstances show that restitution of possession to him would be disadvantageous to the infant, or that his purpose in seeking the possession is in any way evil, the Judge in the exercise of his discretion, may protect the infant redeundo in freedom (Kottman’s case, and others above cited). But where nothing’ appears to oppose the father’s clear right, and the Judge stops after simply discharging the illegal restraint which another had imposed, the order of discharge, •as Chancellor Harper has said, amounts only to this, that the father being present may take possession and government of the infant.

It has been urged here that the Judge should inform an infant that is of the age of choice, that he is at liberty to go where he pleases, and that this information, if nothing else be said, is contained in the simple order of discharge. This is true, if by liberty of locomotion is meant no more tban freedom from illegal restraint. But if by tbis liberty is meant a protection from lawful control, then the granting of it is an exercise of discretion, wbicb must be warranted by circumstances. An infant is subject to tutelage, and even where possessed of a strong will, is not considered by the law to have discretion for the unrestrained direction of his conduct. A Judge would greatly mislead, and might seriously injure a youth of fifteen, by telling him that he was free to go where he pleased, if room was left for the misconstruction that he was not bound to obey his father. An infant so told might, if nothing else was said, be seized by the father in the presence of the Judge, and be subjected to such restraint and chastisement as would be necessary for the maintenance of parental authority. A struggle between parties might ensue, and the very illegal restraint from which the infant had just been discharged might be re-established. It is wise and better then for the Judge, when no reason for interfering with the father’s right appears, to express what would be implied by the simple order of discharge. That, and no more was done in this case. A full conference between the Judge and the infant took place — the yielding of possession by Mr. Clark was directed and upon that, the right of the father to take and retain possession, which would have followed by law, was declared, to prevent misapprehension and indecent struggle. The inhibition of 'attempt on the part of Mr. Clark to regain possession against the will of the father, was no more than the declaration of a purpose to enforce the order, which had been made, discharging the illegal custody and presumed restraint to which the infant had been subjected.

The motion is dismissed.

"WhitNer, Glover and Muwro, JJ., concurred.

Motion dismissed. .  