State v. Scott

30 N.H. 274 | Superior Court of New Hampshire | 1855

Woods, C. J.

The petitioning party, in this case, makes no claim in his own behalf, or in behalf of others, to the legal custody, tuition or services of the infant John W. Gray. If the persons who, in 1853, committed him to the care of the United Society of Shakers, had any power to bind him as an apprentice to the society, or to any of its members, there is no suggestion that such power was legally exerted. And it is well settled that the natural right of the parent to the custody of the child yields to those cases in which the real and permanent interests of the child demand a different disposition. And it is wholly lost and disappears, where the mother surviving, has, by a second marriage, surrendered that legal discretion which is necessary to render the parental control of benefit to the child. Worcester v. Marchant, 14 Pick. 510, and cases there cited. Such js the condition of Mrs. Scott, the mother of Gray.

The court have, therefore, nothing to do upon this proceeding but to inquire if the child is restrained of his liberty, and if so, to set him free. There is no evidence that he did not receive suitable treatment, in every particular, at the hands of the United Society, to whose care he had been intrusted by his mother. All the proof we have, indeed, goes to show that she was herself satisfied, after a year’s experiment, with what had been done. Nor are any grounds afforded for us to presume that the intentions or the abilities of the parties who have brought him into court, may not be fully trusted, and that the infant may not, with a just regard to his own interests, be permitted to choose for himself either of the two parties, or any third party for a protector. The petitioner and respondents, in short, stand without prejudice before the court.

But we do not consider the return of the writ as conclusive as to all the particular facts contained in it. The object of the writ is inquiry whether the party be in fact under restraint, and if so, the reasons and warrant for the same ; an object which might often fail to be secured, if the court had no power to look beyond the return, and inquire into the truth as well as the sufficiency of its averments. Such return has been declared to be of inconclusive effect in cases where the party, charged with being in custody, is not produced in court, and the return merely denies that the respondent has him in custody. United States v. Green, 3 Mason 482, cited in the argument. The case is certainly stronger, where, by producing the party, the custody is in a sense admitted, and the effect of the return is to justify it. Although the decisions are not uniform upon the question of the effect of the return, yet we think the better opinion is that it is not, in all cases, conclusive.

To ascertain, therefore, whether there be, in fact, restraint or duress, we think we may properly receive any evidence that may be regularly adduced to controvert the effect of the' return in this particular. And among other things, the examination of the infant himself, who may state his own wishes. This examination may be made by the court, or by a committee appointed by them. We think it the better course to refer the question to a committee.

Note. ' At this term, a committee, consisting of three members of the bar, was appointed for the purpose indicated in the opinion, who, upon examination, reported that the infant exhibited capacity to choose for himself, and that his choice was to remain with the respondents, and not to return to reside with the United Society of Shakers. He was accordingly permitted to do so, the only object of the court being to set the child at liberty.