Foster v. Alston

7 Miss. 406 | Miss. | 1842

Lead Opinion

Mr. Justice Turner

delivered the opinion of the court.

In cases of this kind, we are bound to consider the interests of the child, as paramount to all other considerations. This is a proceeding under the habeas corpus act, and under the 18th section of that act, Rev. Code, p. 225, which extends the provisions of the act to all cases, “where any person not being convicted for any criminal or supposed criminal matter, nor in execution by legal process, shall be confined, or restrained of his, her or their liberty, under any mesne process in civil actions, or under any color or pretence ■whatsoever.” Are these children restrained of their liberty? Are they under the care and control of improper persons? Are they so situated as to prejudice their health, or to expose them to improper or immoral influence? All these questions must be answered in the negative. They are with their mother, the proper place for all female children, and decidedly to be preferred to any other, whether nursery, or boarding school, unless there be something in the conduct or character of the mother to operate’against the interest of the child.

The law has given to our courts the most unbounded jurisdiction over minors. Fathers may be preferred to mothers — mothers to fathers — relatives to parents — or strangers to either, for the custody and care of minors, where the interests of the child require its exercise. Rev. Code, p. 64, 401, &c.

In cases like the present, proceeding under the writ of habeas corpus, the technical, legal rights of the parties, do not govern. A guardian, whether appointed by the parent, or by the court, has his ordinary civil remedy, if any of his legal rights are violated. The courts and juries of the country will respect those rights, and grant redress according to the circumstances of each particular case, and the rules of law. But in this summary proceeding, these rights cannot be redressed; no damages can be assessed, no restoration of property can be decreed, except in cases of slaves, under our statute.

Referring, generally, to the very able, and ample briefs, of the learned counsel on each side of this cause, but little remains for this court to do in the performance of its duty.

The father and mother of these children married in another state, and lived together in harmony, peace and love during the life of the father, and in his last will, made and executed but few days previous to his death, he manifested his affection for his wife, in express terms, and his confidence by appointing her his executrix jointly with his brother James J. Alston, under whose hospitable roof they then resided, and had resided for some years. The Messrs. Alstons, the brothers, their widowed mother, sister and sister-in-law, together with the three infant children of Mr. and Mrs. Alston, formed a happy, respectable family, and lived together from inclination, in peace and love. It seems that they all had the means of support, in comfort and credit, if not in affluence. James J. Alston and his sister are unmarried persons, the former about forty and the latter about thirty years of age; the mother of the Alstons upwards of fifty. After the death of A. S. J. Alston, the father of these children, his widow and orphans continued to reside with her brother-in-law until her intermarriage with C. A. Foster, and she manifested a wish or a willingness to continue her residence there, but was given to understand, about the time of her marriage, that it would not be agreeable to the family for her to do so. Mr. Foster then settled in the town of Holly Springs, in this state, some sixty or seventy-five miles distant from the place of residence of the Alston family, and Mrs. Foster was not permitted to take her children to her home, and they never visited her thereafter at her residence in Holly Springs. It appears that Mr. Foster was and is a minister of the gospel; had, at the time of his marriage, the care of a church at Randolph, near Mr. Alston’s residence, and actually resided in the Alston family before his marriage and for some time after. The character of all the parties concerned seems to be fair, and Mr. Foster has established a character at Holly Springs which has placed him high in the estimation of the respectable portion of that community, as a moral, religious and literary man; and the character of his wife, for virtue, piety, gentility of deportment, and capacity to raise and instruct her children, is equally good. See the evidence as given by Messrs. Clayton, Huling and others. ■

As it regards the healthiness of the two places, (Holly Springs and the vicinity of Randolph,) the preference is decidedly in favor of the former. One of Mrs. Foster’s children died at the latter place, and another of them left it in feeble health, and was restored to perfect health after a short residence with her mother at Holly Springs. The means of support of Mr. Foster and family is said to be sufficient; and it appears that they live in a comfortable, decent style.

Something is related by the witnesses of Mr. Foster’s son by a former marriage, tending to show that his father is not competent to raise and educate children in a becoming manner. This may be so, and it may be in consequence of this child’s loss of his mother, and not from any want of capacity or attention on the part of the father. This boy is yet of tender years, and may be reclaimed by the kind attention of a worthy step-mother, and of a father now settled down, after leading a migratory life, in full possession and enjoyment of all the comforts and blessings of wife, children and friends, at the flourishing,, healthy town of Holly Springs, remarkable also for the high character of its inhabitants for morals, literature and refinement.

What is this court, under these circumstances, called on to do? It is in proof that these children are fond of then mother; and, after trying both situations — first with their uncle, grand-mother and aunt, and then with their mother and step-father — decidedly prefer remaining with their mother, expressing at the same time an affectionate regard for their grand-mother. Does this show illegal restraint, the very thing or ingredient necessary to give this court the right to change their custody? I think not.

But what are we called on to do with these children, by the petitioner, the testamentary guardian? To tear these tender female children, aged nine and ten years, from the care and custody of a fond, devoted and capable mother, and place them under the care of a bachelor uncle, residing some seventy-five miles from their mother. To state the proposition would seem to decide it. Let every mother, let every father, answer this question.

We respect the rights and the feelings of the guardian. He may yet be the guardian of these infants, and prove himself worthy, as he ño doubt is, of the trust confided to him by a dying brother. Let him manage their estate, if he chooses, in Tennessee, and watch over their personal interests and welfare also; but let him cease to complain that he is, by the highest authority of the state, relieved from a duty he is, in the nature of things, incapable of performing. For, at best, if he were to obtain the custody of these children, he would have to select his mother, or his sister, or some other female, to take charge of and superintend their persons, instead of their mother. /

The first error committed, in relation to these children, was, in not allowing them to go home with their mother when she obtained a home by her intermarriage with her present husband. No one can say that Mrs. Foster did wrong in contracting a second marriage. No person had a right to deny her that right. Then-mother’s home should be the children’s home, until circumstances' occur to establish, before a court of justice, that the interest of. the child requires a separation from their natural protectors. Mrs. Foster, after remaining in widowhood some three or four years, thought proper to take another husband. And who did she take to be her husband, and to be the father of her orphan children ? A minister of the gospel of Christ — the friend, and pastor, and instructor, and the very inmate of the Alston family. If there were any thing wrong or imprudent in this her choice, who should share the blame but the head of that family, by whose authority he was a chosen inmate and daily associate, and the divine instructor of that family? But’ we see nothing wrong, so far, in this second marriage.

From the view, we deem it proper to take of this case, the rights of guardianship, and the force used to obtain the possession of these children by their- mother, are out of the question.

The first act of violence committed in relation to the separation of these children from their mother, was, in Mr. Alston’s informing his sister-in-law, the. mother of these children, that in case she intermarried with Mr. Foster, she could no longer reside under his roof, or in his family, where she had resided for years, and had been invited to remain, with her children, as long as she pleased; and the second was, when she did leave his house to move to her new home, in not permitting her to take her children with her. They never had been separated from their mother; and the separation which then took place, if not by force, was by command of the owner of the house, (according to his own showing, in his answer to the bill filed by Foster and wife, in the state of Tennessee,) and in violation of the sacred feelings of the mother. We leave the petitioner to his civil remedies at law, if he has any, or whatever they may be.

Are we supported in this view of the case, by the authorities?

Without dwelling, or commenting upon the numerous cases cited and commented on so ably at the bar, and which may be seen on reference to the very ample briefs filed by counsel, I will advert to the De Hauteville case, decided recently at Philadelphia, a full report of which has been published in pamphlet form, where the court decided against the claims of the father of the child in favor of the mother, on the principle that the interests of the child required that the mother should have the possession, in preference to the father. If, then, the father’s claims should be rejected, how much weaker must be the claims of a bachelor guardian to the custody of a female child, a man who never stood in the relation of a father, and much less that of a mother.

In a recent case tried before me, on habeas corpus, at Natchez, where a widowed mother claimed the custody and possession of her infant daughter, over 14 years of age, from the custody of the father of a family, which father was the master, by appointment of the trustees of the poor of Adams county, of the child in question, I decided the case on the same principle, the interest of the child, and refused to give to the mother the custody of her daughter, on proof of some irregularity in the conduct of the mother, unbecoming a virtuous matron, and after consulting her daughter about her wishes, and the restraint imposed upon her, as it had been alleged.

And, in conclusion, I will also refer to the case in 3 Mason’s Rep. 482, which was a habeas corpus, by A. Putnam, to be restored to the possession of his daughter, about ten years old. Judge Story, in delivering the opinion of the court, says:

“As to the question of the right of the father to have the custody of his infant child, in a general sense, it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for its interest to be under the nurture and care of its natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant; and if the infant be of sufficient discretion, it will also consult its personal wishes. It will free it from all undue restraint, and endeavor, as far as possible, to administer a conscientious, parental duty with reference to its welfare. It is an entire mistake to suppose the court is, at all events, bound to deliver over the infant to his father, or that the father has an absolute vested right in the custody. The case of the King v. De Manneville, 5 East Rep. 221, is not inconsistent with this doctrine, but, on the other hand, supposes its existence. The court there thought it for the interest of the child to give the custody to the father. The judges thought there was no reason to suppose the father would abuse his right, or injure the child. Lord Eldon, in De Manneville v. De Manneville, 10 Vesey, 52, avowed his approbation of the doctrine, and said he had, exercising the authority of the King, as parens patrise, removed children from the custody of their father, when he thought such custody unsuitable. The case of M. E. Waldron, 13 Johns. Rep. 419, is directly in point; and to the same effect is the King v. Smith, Strange’s R. 982. My judgment follows these cases without hesitation.”

Judgment reversed.

Judge Trotter, concurred.

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Dissenting Opinion

Mr. Chief Justice Sharkey

dissenting, delivered the following opinion:

The material facts in this case are as follows: A. S. J. Alston died in the state of Tennessee, in 1834, having by his will appointed his brother, the defendant in error, guardian to his children. The guardian qualified, and kept the children until the winter of 1840, when their mother, who had in the mean time intermarried with Foster, the plaintiff in error, went from Holly Springs, in this state, the place of their residence, with an armed force, to the house of the defendant in error, and forcibly took the children, and brought them to this state, where they obtained letters of guardianship. At the time of A. S. J. Alston’s death, he was living with his brother, and his wife continued to live there until she married Foster, and after that event they moved to Holly Springs. Such other facts as may be of any importance I shall notice in the progress of my remarks. On this state of facts a majority of the court have decided that Foster and wife are entitled to the custody of the children. Entertaining a different opinion, I shall endeavor to give my own view of the questions involved, with as much brevity as possible.

The first question which naturally presents itself is, as to the right or power of the father over his children, as contrasted with that of the mother, for I consider the whole question reduced to a naked abstract question of law. Amongst the various authorities introduced, none have gone so fax as to deny the superior claims of the father to the control of his children. We are informed by the first elementary books we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and it prevails even with the Avandering savage, who has received none of the lights of civilization. The father is considered the head and governor of the family. He controls even the mother, and must of necessity control the children. Some writers, I am aware, have contended for the equal authority of the mother, on the ground of her superior affection for her offspring. Their efforts to prove that the laAv should be so, are of themselves evidence that it is otherwise, and the Avarmer attachment of the mother, instead of proving the error in the law, may serve to prove its policy. We are all aware that children must be brought up under a proper state of discipline. Faults must be corrected, and errors avoided. A system of training must be adopted which is often repugnant to the wishes of the child. Which is best calculated to do these things, the doting, partial mother, with whom every fault is a virtue, every wish a command, or the less partial father, who looks to future welfare, rather than the gratification of childish folly? I am sensible that there are kind offices which none can so well discharge as a mother, but these are not inconsistent with the father’s superior authority; and that his authority is superior in controlling the destiny and custody of his children, is manifest from the statute which authorizes him to appoint a guardian by Avill or deed. This he may do, notAvith standing the mother be living. The truth of this position will be found to be fully sustained by the authorities cited by counsel, and I need not refer to them separately. The true rule is explicitly laid down in the case of Nickerson, 19 Wendell, 16, in which the court has used this language: “The father is the natural guardian of his infant children, and in the absence of good and sufficient reasons shown to the court, such as ill usage, grossly immoral principles or habits, want of ability, &c. is entitled to their custody, care and education;” and the court said all the authorities concur on this point, and many were cited to support it.' The opinion of Lord Ellen-borough, in the case of the King v. De Manneville, 5 East, is to the same effect. He held that the father was the person entitled by law to the custody of his child, and having in that case the legal right, which had not been abused, his right was preferred to that of the mother, although the child was but eight months old. I need not, nor do not contend for an absolute right imthe father, nor do I contend for it without exceptions;- for there may be cases in which the one- or the other will be preferred, according to circumstances, and II will presently show how they may exist; but these cases do not shake the general principle of law.

In the next place, if the father has this undoubted legal right, may he not confer it on another? and when so conferred, has not that other the same right which the father had? This question is fully answered by the statute of Tennessee, in virtue of which the the custody of these, children is claimed by the guardian. The statute confers upon the father the right to dispose of the “custody and tuition” of his children under twenty-one years of age, if they be unmarried. This right of custody and tuition is b,ut a right of guardianship, such guardian having the right to the custody of the person, and the -possession of the property of the ward; and this is an answer to that part of the argument in which a distinction was taken between the right to custody and tuition, and guardianship. James J. Alston haying been appointed guardian by the will, his authority is within the meaning of the statute;

The legal right of the guardian to the custody of these children in the state of Tennessee being undoubted, can he assert that right in the courts of this state? It is contended that the letters of guardianship granted'to Alston under this will, in the state of Tennessee, can have no force in this state. Ex propria, vigore, it is true they are not binding on the courts of this state. Bat in this, as in other states, we adopt the rules of comity, and in a government of confederated states it is peculiarly proper that we should do so, On principles of comity, we are to - judge personal rights which accrued in a sister state according to the laws of that state, provided those laws be not repugnant to our policy or prejudicial to our interest. It is to be regarded as a part of oür law, that rights acquired in another state, are to be interpreted and determined by the law under which they originated. Story’s Confl. of Laws, 31, 32,35,36. Hence we are not called on to give effect to the letters of guardianship granted in Tennessee. If this could be done, the guardian’s accountability would stand upon the same grounds here that it would there; but we are to judge of the rights acquired under that appointment, by the laws of Tennessee. The law under which the guardian claims the children, is neither repugnant to our policy nor to our interests; on the contrary, we have a similar statute; we may therefore with propriety look to the rights of the guardian as they existed in Tennessee.

' - But it is also said that his right has been defeated by the grant of letters of guardianship in this state. These children were forcibly taken from the possession of the guardian, and brought into this state, where guardianship was immediately granted to Foster and wife. There are three objections which operate with great force against this grant of guardianship. First. I strongly incline to the opinion that the children were not so domiciled in the county of Marshall as to give the court jurisdiction. Second. Our probate courts can only appoint guardians of their own accord, where none has been appointed by will or deed. How. &. Hut. Dig. 336, sec. 4, and although the court may hdve been ignorant of the existence of the will, yet Foster and wife were not, and if they concealed it, the appointment was procured By fraud. If they did not conceal it, the court had no power to appoint,, unless the testamentary guardian renounced or failed to give security. The will, for all the purposes of guardianship, was as good here, if properly proven, as it was in Tennessee. Third. We do not regard as valid, acts done under the laws of another state which are intended and executed in fraud of our laws, or in violation of the rights of our citizens; neither should we permit the provisions of our law to be used in fraud of the laws of a sister state, or in fraud of the rights of its citizens. The manner of bringing the children into the state, and the purpose for which they were brought, clearly indicate a fraudulent design, both as to the laws of Tennessee, and as to the rights of one of her citizens. These considerations have induced me to pay no regard whatever to the appointment made in Marshall county.

I have thus, as I conceive, shown, first, the right of the father to the custody of his children; second, that he may confer that right on another by will or deed; third, that the right so conferred by the laws of Tennessee may be asserted here; and fourth, that the grant of guardianship in Marshall county presents no legal impediment to the determination of the right as it stood under the laws of Tennessee. But I have also said that there were exceptions to the general rule, and I am now to inquire wrhat will constitute an exception, and whether the facts in this case entitle it to be so considered. The only case in which an exception can exist, is, where the father or guardian is obviously an improper person to have the custody of the child, either from his. incapacity to manage it and take care of it, his inability to support it, his bad habits or associations, or other circumstance from which he is manifestly an improper person to have the care and management of the child. In all such cases the court may exercise a discretion for the benefit of the child, and place it where its interests would be best promoted. But this must be determined by a judicial discretion, not captious or unrestrained and arbitrary. And this discretion can only be exercised on a sufficient showing. But if on the other hand the father or guardian be a suitable person to have the child, then there is no discretion with the court. The court must in such cases regard the legal right. They are as much bound by it as by the law on any other subject. A different rule is destructive of the law, for if the court in all cases may award the child to whom it pleases, this would make the will of the court the law.— It is in vain that the law has given the father the right to the custody of his child, and has also given him the power to appoint a guardian, if a court or judge on habeas corpus, may of a mere arbitrary will defeat these laws. This is the doctrine of all the well adjudged cases which have been cited; it is the dictate of reason. Nor does the law deprive the father of his right on slight grounds; there must be an obvious reason for preferring the mother, otherwise there is no room for the exercise of discretion.

A majority of the court have thought it right to decide this case in favor of the mother; I think differently, and I appeal to the proof. If from that, no objection appears to the guardian, then I would ask how his right can be denied?

I will in the first place remark, that the counsel for the plaintiffs in error have admitted that the guardian is eminently qualified for the care and custody of the children. The deposition of P. W. Alston is the first evidence in the cause. He is evidently an intelligent man, and although he does not speak directly as to the qualifications of his brother James J. Alston for the custody and management of the children, yet he relates facts which make this matter entirely apparent. The children were greatly attached to their guardian, and at the' time they were taken away, a negotiation had been opened for the purpose of procuring a suitable teacher from the north, free of charge to the infants. That they had made a very remarkable progress in the acquisition of knowledge, and were treated with kindness and affection by their guardian, and also by his mother and sister, who resided with him, he being a single man. It was the opinion of the witness that the welfare of the children “both bodily, intellectual and moral,” would be promoted by their restoration to their guardian. By the depositions of George Anderson, and John Anderson, the character of James J. Alston is placed above reproach, and he is said to be independent in his circumstances.

With the deposition of Samuel G. Litton, it seems to me the inquiry might well end. He speaks from an intimate acquaintance with the whole Alston family, and places their characters in a truly enviable light. He says “that they are regarded by their acquaintances as in the highest degree worthy of esteem and respect, founded upon their individual, moral, and religious worth.” All of the family are said to be exemplary members of the Episcopal church. The witness has so beautifully and forcibly expressed himself in relation to the treatment of the children, that I will give his own language. He says:

“ During my acquaintance with the family, I have had ample opportunity to witness the treatment which these children received from their relatives, and from all I have seen, I must say that never were children treated more kindly or affectionately, nor was that treatment misplaced, were we to judge from the attachment evinced on the part of the children. No opportunity was omitted to strengthen their youthful minds, or to instil those sound moral and religious principles which must be their only stay through life. Their education, which was conducted altogether by their aunt, Miss Mary H. Alston, even now is such that few children of their age have advanced as far, for the reason that few have had the same amount of untiring attention devoted to them. In fine, the aforesaid relations of the said Mary H. and Anne Alston, being blessed with a competency, never permitted them to lack for any thing necessary to their comfort Qr happiness. Every reasonable wish was anticipated, and every reasonable desire gratified.”

Next follows the depositions of Edward Reed, Erasmus T. Rose, and John Postlethwaite. These witnesses all testify, in the most ample and conclusive manner, to the pre-eminent fitness of James J. Alston for the custody of these children. Indeed, his character seems to be a remarkable one. His intelligence, integrity, and morality seem to be the themes of admiration with all who have spoken. His affection and kindness to the children have literally fulfilled the confident prediction of his dying brother, when he said, “I know you will be a father to them.”

I need examine the testimony no further. The testimony of all the other witnesses is alike creditable to the whole Alston family.

The testimony on the other side, in relation to the fitness of Mr. Foster and wife for the custody of these children, is creditable to them. They have, however, shown no qualifications superior to those of the guardian; that, indeed, would seem to be impossible. But let it be supposed that both parties stand on equal grounds, and this is granting perhaps more than the testimony will justify; then I would ask, how can a preference be given to Foster or to his wife? Is there no legal principle involved in the case? Can it be, that, in the face of this statute which authorizes the father to appoint a guardian to his children, his appointment can be treated lightly, or disregarded entirely? If the parties be equally fit and proper persons to have the custody of the children, how can the court have any judicial discretion? What reason is it that justifies a decision in favor of Foster and wife? I can perceive none whatever. That parental affection which the mother is supposed to possess, can furnish no reason. The law was made in full view of that, and still can it be regarded as sufficient to overshadow the law? I have asked what reason could justify a decision in favor of Foster and wife — I should have said in favor of Foster, for it is emphatically a suit between James J. Alston and 0. A. Foster. The wife is, in reality, no party. She is under the entire control of her husband. From the foregoing facts disclosed by the testimony, I am led to conclude that there is no room for the exercise of discretion, that such a case has not been made out, and that in truth the true question to be decided, is the mere legal question of which has a superior right, the guardian appointed by the father, or the guardian chosen by the mother, Foster being but a guardian chosen by the mother.

But I am free to confess, that even if the testimony shows a case for the exercise of discretion, the preponderance of the evidence would induce me to exercise it in favor of the guardian. Some of the witnesses have spoken in rattier harsh terms of Mr. Foster. He is said to be austere in his character, and his own son is made an example of his unfitness to have the government of children. If he has not checked the follies and vices of his own child, what are we to expect in regard to his step-children? He has thus far had no permanent location, and whether from his profession or otherwise, he may be again indjiced to make frequent removes.

But there are other considerations which have their weight in this branch of the subject. The will is a remarkable one; it contains but few words, and its peculiar structure, connected with the conversations of the deceased, leave abundant play for the imagination. In one sentence the deceased divided his property between his “ affectionate” wife and his children, and made his wife and his brother executors. In the next sentence he appointed his brother the guardian of his children. Why was this? A second marriage was mentioned, but the subject was hushed by a relative, in tenderness to the feelings of a wife. The thought, however, was deeply impressed upon the dying man’s mind. The provision in the will was no doubt the result of his apprehensions. What were his remarks to his brother? “I give you my children; you have been a father to me; I know you will be a father to them.” In addition to all this, he enjoined it on his wife not to take them away. All this was not for want of affection for his wife. He spoke of her affectionately, and requested her to continue to live with his brother and his mother, where they were then living. Even in the lifetime of the father, the children or some of them were placed entirely under the control of the present guardian, his mother and his sister, and if they were then thought worthy of such a confidence, why are they not so now?

But again: if the legal right is to be laid entirely aside, the manner of taking the children would seem to me to be decisive of the question. They were in the lawful custody of their guardian in Tennessee. An armed force accompanied Mrs. Foster from this state to the house of Mr. Alston, who was then from home. Mrs. Foster drove up to the gate, where she was met in a friendly manner by the grand-mother with the children. She was pressed to alight; this, however, she refused, but requested that the children should be permitted to go with her to a neighbor’s house, as she wished to talk to them. The grand-mother refused her assent to this, but stated to her that there was a private room in the house entirely at her service. The reply was, that she never would again set her foot in that house. Mrs. Alston wished to know the reason why, stating to her that she had spent many happy days there, and should be again welcome; but she persisted in her refusal, and requested that the children might be placed in the carriage with her. The artifice became apparent; Mrs. Alston, however, permitted them to be handed in, allowing but one to bo in the carriage at a time. Whilst one was placed in the carriage, the driver forced the other from its grandmother’s grasp and put it in also, and then drove off in great haste. The old lady was bruised by the carriage wheel in her efforts to retain the child. As the children were thus forcibly taken, it is but right that the parties should be placed in the situation they were before the children were taken; and if there be another remedy, it would seem to be right that Foster and wife should be compelled to resort to it, if they have a right to the children. They should not be allowed to shield themselves under their tortuios and forcible act. This was the course adopted in the King v. Moseley, cited in 5 East, 224, and in the case of the King v. Hopkins and wife, 7 East, 779. In the last case Lord Ellenborough said, “Without touching therefore the question of guardianship, we think that this is a proper occasion for the court, by means of this remedial writ, to restore the child to the same quiet custody; in which it was before the transactions happened which are the subject of complaint; leaving to the proper forum the decision of any question touching the right of custody and guardianship of this child.” As an answer to this, however, it is said that the guardian committed the first aggression, by endeavoring to suppress and remove the affection which the children had towards the mother, and by informing her that she need not visit the house, as they had no bed for her. These charges are made against him in the return to the writ, which by our statute is not conclusive, but what is the proof on the subject? It is, that proper means were taken to cherish their affection for their mother. A proper intercourse between the mother and her children never was discountenanced; but a few months before they were taken away one of the children wrote to her mother that her guardian would take his horses to Holly Springs for the purpose of enabling her to visit them, if she could get a carriage. The answer to this was couched in passionate and intemperate terms, and contained a declaration that she never would set her foot in the house where the children were. A correspondence, it seems, had been carried on between Mrs. Foster and James J. Alston, and it is stated by a witness, that the tone of Mrs. Foster’s letters was so intemperate and exciting that Mr. Alston could not in prudence have replied to them, and thus it ended. The mother must therefore still be regarded as the first aggressor. She provoked the ill feeling towards herself, even if it existed, of which there is no proof, and cannot justify the forcible taking on this ground. I have thus endeavored to show from the evidence, that in the exercise of a judicial discretion, as well as on the score of legal right, the case is with the guardian, and there is but one point more which I shall notice.

It is insisted that this being a mere inquiry under a habeas corpus, that all that the court can do is to relieve the children from improper restraint, that rights cannot be tried. Authorities are cited which do tend to establish this doctrine, but no such decision was ever made, except in cases where the children are of sufficient age to act with discretion. It may be true that in this way it cannot be determined who is entitled to guardianship, but it is surely not meant that the guardianship or parentage being admitted, the right of custody of the parent or guardian cannot be true. Much reliance is placed on the remark of Lord Mansfield in Rex v. Delaval, 3 Burrow, 1434, where he says “the court is bound ex debito justitix to set Has infant free from, improper restraint; but they are not bound to deliver them over to any body, nor to give them any privilege; this must be left to rheir discretion, according to the circumstances which shall appear before them.” I understand these remarks in this way; the custody of the parent or guardian is not an improper restraint, unless he be an unfit person to have the custody. If he be a fit and proper person, he has a legal right to that custody, and the court is bound to give it to him. An infant is not entitled to his freedom; an adult is. When a habeas corpus is granted to an adult, the object is to inquire whether he is legally restrained of his liberty, because if he is not, he must be set free, for the plain reason that by law he is entitled to his freedom. But if the court is also to set the infant free, they give him a right to which he is not entitled, and deprive the parent or guardian of a right to which he is entitled; to wit, the custody of the infant. The law, it seems to me, does not clothe the infant with power to say whether he will be set free or not; it does not give the infant a discretion on this subject. If it did, the habeas corpus would cease to be a remedy for the father. Remedies enforce or restore legal rights, and the father has as much right to the custody of an infant eighteen years old, as he has of one that is but eighteen months old, unless indeed he be manifestly an improper person to have such custody, consistently with the interests of the infant, in which case the court may exercise a discretion. But it has not been said in any case that infants who are incapable of judging should be set free, and these children are manifestly too young to exercise any judgment. I therefore think that under any view of the case, the children should be delivered to the guardian.