Lead Opinion
The opinion of the court was delivered by
This is a controversy between husband and wife, respecting the custody of their minor children. The proceeding was commenced by the medium of an habeas corpus in the Court of Chancery, and on the preliminary motion already made to dismiss this appeal, this court vindicated its right of jurisdiction in the present form over the subject matter of this suit.
In stating my views and the results to which I have' come, it is not my intention to enter upon any discussion of the voluminous evidence which has been laid before the court. In dissensions of this nature, it is one of the worst
An epitome of the facts of the case is given in the opinion sent up from the Court of Chancery, but 1 do not think it necessary for me to recapitulate even that general ■summary. To the Chancellor’s conclusions upon the matters of fact, in the main, if not altogether, I assent. Of these there are three which are the principal ones, and upon which the ultimate decision of the case, with regard to the rights of the parties, must rest. First, the Chancellor holds that Mrs. Baird was not justified in the desertion of her husband. To this I entirely agree. The act was one which, in the eyes of every legal tribunal, must be regarded as a manifest violation of morals and of law. The distempered state of the respondent’s mind from sickness, and her subjection to advice which, though meant as kindness, was cruel injury, may indeed, in some measure, serve to palliate, but must prove greatly insufficient to vindicate her conduct. In this important particular the wife was conspicuously in the wrong. And yet, notwithstanding this belief, I further agree with the Chancellor, that judging from the testimony as a whole, it is clear that the respondent would be a trustworthy guardian of her children. Upon this subject I have not the least doubt. In that part of her conduct already referred to, I have said she greatly erred, but that act, regarded as an infringement of the moral code, stands single, ■as I am willing to believe, in the history of her married life. I absolve her altogether, in my own mind, from the •other accusation brought against her, although I think her husband, under the circumstances, was naturally and perhaps inevitably led to a belief in her guilt. Throughout the general tenor of the testimony I discover many indications that the respondent is a woman of amiable disposition .and moral worth. It seems to me much to the credit of her husband that this is the estimation in which he held her,
And again, in the third place, my conclusion entirely harmonizes, with that of the Chancellor in this respect, viz'; that the vindication of the character of the appellant, Mr. Baird, is by the evidence completely Triumphant. I refer to his character both as a man and: as a minister of the Gospel. -As to the charges, against him oL'the commission of positive crime, they are so entirely overcome and exploded by the testimony, as to leave neither doubt of his innocence, nor of the indiscretion of those who made the accusation. No candid person can examine this evidence and not be satisfied that there is not the smallest ground for a suspicion that Mr. Baird is not innocent of all and every part of the impure conduct so rashly imputed to him. I believe it is the opinion of every member of this court that he is entitled to come out of this trial without a stain upon him, as a man of morals and as a Christian minister. His character, in its -varied phases of public and domestic life, has been laid open to the severest scrutiny ; his letters, evidently written in moments of unreserve and in the candor of an unsuspicious affection, have revealed, not only h:a professional career with its attendant views, aims, and sentiments, but also the minute details of his feelings, thoughts, and conduct as a husband and father; nothing has been kept back; the developement is perfect; and I think from this entire disclosure the fair result is, that after bating the usual quantum for human infirmity, we have presented to us a man imbued and guided by the purest religious inspirations, and actuated on all occasions by unselfish domestic affection. Much censure was cast on this appellant, on the argument, on the score of his disposition to embroil himself on mere punctilios with his congregations. It would be singular if in these years of arduous life, nothing could be found which would afford a subject for stricture or regret;
Upon these conclusions, then, that both Mr. and Mrs. Baird are proper custodians of these children, and that they were unlawfully abstracted from their homo by their mother, the question arises as to their proper disposition upon tho ground of legal principles. In arranging this legal result tho Chancellor appears to have been embarrassed by tho form of the proceedings; he declared that tho legal right to all the children, except such as were under the age of seven years, was in the husband, but that on a proceeding by habeas corpus he had not the power to awai'd them to him. He felt himself at liberty, however, to establish permanently the position of the children, placing them in the custody of the mother, and permitting the father to visit them on condition that he should not use such privilege to deprive the mother of their custody either by persuasion or force. There is so much confusion in the books, and conflict of judicial sentiment respecting the authority which may he exercised by virtue of this kind of writ, that it is not to be wondered at that there should be perplexity in the practical application of the doctrine, but in tho progress of this cause it has been already decided that in the opinion of this tribunal the present case came before the Court of Chancery in such a guise as to appeal to
As a matter of strict law, it cannot be denied 'that in this state, as at common law, the general rule is, that the claim of the father ¡.to the persons of his infant children, is paramount to those of the mother. This rule is so entirely axiomatic that it would be idle to cite authorities in its support. But this rule has only a subordinate application whenever a court of equity is called upon to exercise its authority in that branch of its capacity just referred to. On such an occasion it is not the dry, technical right of the father, but the welfare of the child, which will form the substantial basis of judgment. The legal right of the father will not be passed by, except when, in the opinion of the court, the well-being of the child requires such supersedure. The application under such circumstances is, obviously, an appeal to the discretion of the court; a discretion, which of course is, as far as practicable, to be regulated by settled rules and admitted principles. In the exercise of such a function the circumstances of each case must, of necessity, become important elements entering into the grounds of decision. The character of the respective parents, the age, health, sex, and number of the children, and the pecuniary resources liable to contribution for their maintenance and education, are all considerations which should and must exert more or less influence over the judicial result. In the present case, the duty of arbitrating thus between the claims of these rival parents, in view of the best interests of the children, is felt to be one of painful responsibility. In common with every member of this court, I have felt oppressed with the weight and delicacy of the office, and now, my greatest
In forming these conclusions I have been influenced by a variety of considerations, among which are the following: that the custody of the youngest child belongs to the mother by force of the statute; that the second is still of an age greatly requiring maternal superintendence and care, and can, as yet, be best trained in company with his younger brother ; that the pecuniary means of the father, as shown by the evidence, seem now to be somewhat narrow and precarious, and that these children now are, and have been, well provided for; and that the eldest child is now so near her majority, that to compel her, against her will, to abandon her present home and course of education, and submit to a new and transient control, could not fail to prove highly prejudicial.
The decree should be reversed, and a new one entered conforming to the views above expressed.
Concurrence Opinion
I concur in the views expressed by the Chancellor and the Chief Justice, in regard to the facts of this case. The result in my opinion is, that the father is entitled to the possession and control of his children over the age of seven
As the appellant, when he was deprived of his children, was, and still is domiciled in the city of Philadelphia, I do not think that o.ur statutes necessarily apply to this case. If he had sought only, by means of a habeas corpus, to free his children from illegal restraint, he would have been entitled to such action by the Chancellor or a judge, and should have been protected in taking them to the place from whence they came, leaving their future disposition to be settled by the tribunals of that place. But he has appealed to the special power of the Court of Chancery of this state to regulate the condition of infants, and put his case on our laws. Under these circumstances, I concur in the decisions, that the youngest child shall for the present continue with the mother; and although I do not dissent from the decree ordered by the majority of the court, directing that the next oldest boy remain with her for the present, I think it right to say that I should have been better satisfied if he also had been committed to the custody of his father.
Dissenting Opinion
dissenting.
The prosecutor was married to Adeline T. Baird, on the 20th day of September, in the year 1849, at Princeton, in this state. There are now living six children, the issue of this marriage. The oldest is a daughter, in the 17th year of her age. The others are sons, aged respectively 14, 12, 10, 8, and 5 years. The prosecutor and his wife lived and cohabited together from the time of their marriage till the 11th day of March, in the year 1862, when the wife abandoned the home of her husband in the city of Philadelphia, took with her the five oldest children, and after-wards located herself with them in this , state, under the protection of'her father. The sixth child was born within a few months after the desertion. The wife and children have
On the 18th of June, 1864, more than two years after the separation, the prosecutor filed in the Court of Common Ideas, of the city and county of Philadelphia, a libel for divorce from his wife, notice of which was duly served on her, and such proceedings were thereupon afterwards had, that a decree of-divorce was made dissolving the marriage contract between the parties, on the ground that the wife had willfully and maliciously deserted her husband, and absented herself from his habitation Avithout reasonable cause, and had persisted in, and continued such desertion for the-term of two years and upwards.
On the 12th day of April, 1864, two years, one month, • and one day after the prosecutor had been deprived of the custody of his children, he sued out of the Court of Chancery of this state, a writ of habeas corpus against his wife and her father, commanding them to produce the bodies of the said children, together Avitli the day and cause of their being taken and detained. The father of Mrs. Baird made return to the writ, that the children were not detained in his custody, but that they were in the custody, charge, and care, and under the control and direction of their mother, and were living with her in Manchester, in the county of Ocean, in this state, in a dwelling-house occupied by the mother and children, and in which the mother was at housekeeping by herself Avitli her said children. This return has not been traversed. The defendant,'by Avliom it was made, is therefore out of the controversy. Mrs. Baird, by her return, admits the custody of the children, and produces them in obedience to the writ, and alleges two causes for their do- . tention. The first is, that they are her children, and are of a tender and helpless age, and require the nurture and care of a mother; second, that their father has not the means of maintaining and educating them, and had not made the-necessary proAdsion for maintaining his wife and children for a large portion of his married life. For the purpose of
Upon the issue thus formed a mass of evidence has been taken, most of which, in my opinion, throws no light whatever upon the real questions to be determined. It will be perceived that the point to be decided is, not whether the children are illegally restrained of their liberty, but the issue is so framed as to compel the court to decide whether, under the circumstances of this case, the father or mother of these children is entitled to their custody. The father contends that the law gives him the custody of his children; the mother sets up a counter claim; and the court must settle whether the right of the father or mother is paramount. That was the question which the learned Chancellor met and decided. The decree from which the prosecutor appeals is, that the custody of all the children of the prosecutor and his wife is awarded to their mother, that the children-are to be at liberty to remain with their mother, and the father must be allowed to visit his children at proper times, and under proper limitations, on the condition
By the common law, the father is entitled to the custody of all his minor children. That is the rule in this state, except so far forth as it has been altered by the act of March 20th, 1860, and the supplement thereto, of March 15th, ,1861. Nix. Dig. 391. By force of the acts referred to, if husband and -wife live in a state of separation, whether divorced or not, on habeas corpus the wife shall, if not an improper guardian, be entitled to the custody of the children within the age of seven years, until they shall attain that age, unless there is a decree of divorce separating husband and wife, which provides for the custody and disposition of their minor children. The statutes, in effect, declare that the common law' shall remain in force, except as to children under seven years of age. It is not necessary to cite authorities in support of a rule so long and well settled. The law of nature and society concur in giving to the father the custody of his minor children. In the case of Foster v. Alston, 6 Howard (Miss.) Rep. 406, Chief Justice Sharkey, in a dissenting opinion, says: “~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 wandering savage, who has received none of the lights of civilization. The father is considered the head and governor of the family.” In the case of The People v. Mercein, 3 Hill 422, Justice Bronson says: “It may be best that the wife should be declared head of the family, and that she should be at liberty to desert her husband at pleasure, and take the children of the marriage with her. But I will not inquire what the law ought to be; that prerogative belongs to others. I will however venture the remark, even at the hazard of being thought out of fashion, that human laws cannot be very far out of the way when they are in accordance with the law of God.” Justice Elmer, in his chante to.
But there are .exceptions to this rule, which ■ are as well •established as the rule itself. If the child be of tender years, requiring the nurture and. care of -the .mother, or if the father ,for any reason be, in the opinion • of ■ the court, an unfit custodian of his children,- they may be taken from him ■and their custody awarded.to their mother. The welfare of the children is- to be regarded, and the court, in its discretion, is to see to it that they are placed- in the custody of the father or mother, as may be most for their good. The discretion which the- court is to exercise in regard to the custody of- minor children, is not an arbitrary discretion, which has been well said to be the law of tyrants, but a judicial discretion, governed, in each case by fixed rules and principles.- In the well considered opinion of Chief- Justice Sharkey, from which.I have already quoted, he holds the following language, which appears to me to state correctly the law upon- this subject: “ 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, or 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 case's may award. t.he- child to whom it pleases, this would make the will of the cou-rt the law. It is in vain that the law has given the father the right to the - custody of his child, and
It appears by a decree of a court having jurisdiction of the parties and the subject matter, that the desertion of the
The conclusion to which I am forced is, that the decree of divorce in Pennsylvania is founded in fact, and that the'wife had no reasonable cause for her desertion of her husband. For two years and upwards she lived in a state of separation unauthorized by law, though in the meantime her husband addressed to her the most touching letters that husband could write to wife, imploring her for her own sake, for his, and that of their innocent children, to return to the post of duty and honor. To these appeals she turned a deaf ear, and refused even to see the writer, though he had assured her that his arms were wide open to receive her, and that he was willing to forget and forgive. The prosecutor, after waiting over two years, commenced these proceedings. They in no wise alter the wife’s course of conduct; she puts in a return to the writ, which shows that
hi or do I see upon what principle we can make- a division of this group of children, between the hither and mother. Are one-half to bo given to the father, and the other half to the mother ? True, the mother has succeeded in disregard of the rights of the father, in withdrawing the children from a foreign jurisdiction where they belong, to this state. Has she thereby acquired any rights ? Why should the daughter be given to the mother? Because she is a daughter? Is there any principle of law by which the right of the father to the services and society of his daughter, is any less sacred than it is in case of a son ? Suppose the daughter were the only child, would she, under the circumstances of this case, be given to the mother ? Are the rights of the lather in respect to that child in anywise impaired, because he has other children ? I have failed to discern any reason
The decree was reversed by the following vote:
For reversal — Beasley, C. J., Bedle, Clement, Dalrimple, Bepee, Elmer, Kennedy, Ogden, Yatl, Wales, Woodhull. 11.
For affirmance — Yrelenbcrgil