76 Ga. 479 | Ga. | 1886
The question in this case is whether, under the facts in' evidence, the judge abused his discretion in takiüg the. minor child, Etta Wallace Miller, from the custody of her’ father, James T. Miller, who was the respondent in this habeas corpus proceeding, and ordering her to be remanded, and delivered, and to remain in custody of petitioners for the writ, William and Caroline Wallace, her maternal grandfather and grandmother. The solution of this question turns upon the point, whether the father, by a voluntary contract, released his legal and parental right to the control of his child to these petitioners, or either of them, or whether he consented to her adoption by them, or either of them, for it is not pretended that he forfeited his right to her custody and control, either by a failure or inability to provide necessaries for her, or by abandoning her, or by cruel treatment, or that, by reason of his bad character and immoral habits, he could not be trusted with her rearing and education without, detriment to her well-being. The defendant and his wife (the father and mother of the infant) lived together in harmony until the death of the mother. There appears to have been no domestic infelicity or jars between them. There was nothing, in short, as long as they lived, that could by any possibility afford a ground of contest as to the control or custody of their infant child by either to the exclusion of the other; neither was there anything tending to show that the dead wife, in her lifetime, distrusted her husband’s ■ capacity or fitness to have control of the rearing and education of their child, or evincing a desire on her part to ■ see him deprived of his power and authority in this re- • spect.
The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Roman praetors, but, as remarked by Lord M ansfield in R. vs. Wilkes, 2 Burr., 25,39, is such a “ discretion as, when applied to a court of justice, means sound discreti on guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.” In Rooke’s case, 5 R., 99(b), it is said:' “ And notwithstanding the woi’ds of the commission give authority to the commissioners to do according to their discretions, yet their proceeding ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to their wills and private affections; for as one saith, tails discretio dis'cretionem confundit.” As is stated by Lord Coke, 4 Inst., 41, “Discretio est discerenere per legem quid sit justum? and by Sir Joseph Jekyll, M. R., in Cowper vs. Earl Cowper, 2 P. Wins., 753: “ Though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked vir •bonus est quis ? the answer is qui consulta patrum qui leges jurague serval/ and as it is said in Rooke’s case, 5 Rep., 99(b), that discretion is a science not to act arbitrarily according to men’s wills and private affections, so the discretion here is to be' governed' by rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion in some cases follows the law im-
“ It is, moreover, a principle consonant to the spirit of our constitution, and which may be traced as pervading the ■whole body of our jurisprudence, that optima est lex quce minimum relinquit arbitrio judiéis, optimus judex qui minim%ims%bi: that system of law-is best which confides as •little as possible to the discretion of the judge; that judge the best who relies as little as possible on his own opinion.” And he emphasizes and enforces this view, by adopting and ■declaring, in the language of Maulé, J., that “ there is no court in England which is entrusted with the power of administering j ustice without restraint. That restraint has been imposed from the earliest times. And, although instances are constantly occurring where the court might profitably be employed in doing simple justice between the parties, unrestrained by precedent or any technical rule, the law has wisely considered it inconvenient to confer such power upon those whose duty it is to preside in courts of justice. The proceedings of all courts must take a defined course, and be administered according to a
The rule of discretion, as applicable to habeas corpus cases, did not originate with the compilers of our Code ; they took it from the common law, and in adopting it, they adopted also the meaning and limitations placed upon it by the venerable sages and authorized expounders of that noble system. Under the u discretion ” vested in him, no judge has authority to. disregard or even to impair any acknowledged or established right of a party by its exercise, and if he does so, it would seem to follow, as a necessary consequence, that he abuses that discretion. As was well remarked by the court, in the matter of Mitchell, R. M. Charlton’s R., 493, “ 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.” Again (Id., 495) it is said that the court will draw no inference to the disadvantage of the father, but will act from positive proof.” The authority of this case has been expressly recognized by this court in Boyd vs. Glass, 34 Ga., 258. It is a well-considered and ably-argued case, is in point with the present case, and decides every question made by it, is sustained by copious references to such authorities, both English and American, as existed at the time it was made, 1836, and by subsequent text-writers and adjudicators.
Prima facie, the right of custody of an infant is in the father, and when this right is resisted, upon the
Tested by these rules, this case seems to fall far short of their requirements. The most favorable light to the petitioned in which these facts can be regarded leaves it more than doubtful whether the defendant ever consented to relinquish the control of his child, or whether he was only making an arrangement in the exigency in which his
It is insisted, however, by the able and learned counsel for the plaintiffs in habeas corpus, that this court has adopted a different rule, as- appears from its later, if not its earlier decisions, and he cites and confidently relies on Janes vs. Cleghorn, 54 Ga., 9,14, (S. C. in a different form of proceeding, and with parties reversed, 68 Id., 87), Bently vs. Terry, 59 Id., 555, and Smith vs. Bragg, 63 Id , 650, as sustaining this position. But the- marked differences between those cases and this will not justify the conclusion he seeks to draw from them. A careful co mparison will show that they are not in conflict either with the earlier decisions of this court, or those relied on by opposing counsel from other courts, or with the principles announcedby the te xt writers. The first of these cases was
In Bently vs. Terry, the contention was between the father and mother of the child and an aunt and her husband, to whom its custody was committed, as they and their witnesses testified, by a contract, but as was denied by the father and mother. According to one set of witnesses, the
Taking the version of the plaintiffs in habeas corpus as true, and without any reference whatever to the respondent’s account, it does not clearly appear that the respondent ever relinquished the cus