6 Me. 462 | Me. | 1830
This case is stated in the opinion of the Court, delivered by
Previous to the last term a writ of habeas corpus was granted, by one of the justices of this court, directed to the defendant, requiring him to bring up the bodies of Emeline Maria Hall, Solomon Smith Hall, and Aaron Oliver Hall, minors under the age of fourteen years, and children of Jonathan Hall, the petitioner, al-ledged to be wrongfully restrained of their liberty by the defendant.
The children being now in the custody of the mother, and in court by her permission and consent, the petitioner seeks to reclaim them through the interposition of the law, alleging his paramount right to their custody, and that the court is not at liberty, in the exercise of any discretionary power, to deny his petition.
That the father is generally entitled to the custody of his infant children, is a principle resulting from his obligation to maintain, protect and educate them. These are duties thrown upon him by the law of nature, as well as of society, which he is not permitted to disregard, and which he could not conveniently discharge, if the object of those/ duties were withdrawn from his control.
This right is, however, neither unlimited nor unalienable. It continues no longer than it is properly exercised ; and whenever abused, or whenever the parent has become unfit, by immoral or profligate habits, to have the management and instruction of children, courts of appropriate jurisdiction have not hesitated to interfere to restrain the abuse, or remove the subject of such abuáe from the custody of the offending parent. 4 Bro. Parl. Cas. 302; Amb. 301; 2 Bro. Ch. Rep. 500; 10 Ves. 52; 12 Ves. 492; Jacob’s Rep. 267. The existence and origin of this power was elaborately considered in the late case of Wellesley v. The Duke of Beaufort, 2 Russ. 1, wherein Lord Eldon is reported to have said, that “ what he was called upon to do (to deprive the father of the custody of his children) was a strong measure; that the interposition of the court stood upon principles which it ought not to put into operation without keeping in view all the feelings of a parent’s heart, and all the principles of the common law with respect to parents’ rights.” In that case the mother was dead, and there existed no parental feelings adverse to those of ,the father. He was not seeking to withdraw his children from the society of their mother, but from the custody of relatives more remote, and yet his application was denied by the Chancellor, and the decision was confirmed, on appeal, by the House of Lords.
These authorities are not cited as precedents for a common law court, but they do establish the fact, that the right to control paren
The principle of depriving the father or the mother of the guar» dianship of their children, on the ground of notorious misconduct, is also distinctly recognized in tho civil code of France, art. 444, 389; and, in cases of separation between husband and wife, the father’s right to the children is altogether rejected, and the courts entrust the children to him, or to the mother, or to a third person, as the interests of the child render expedient. Pail. 134, note e.
So tho father, under our statute, may waive his parental rights, and transfer his power over, and assign the services of his minor children to another, without their consent, until they arrive at the age of fourteen ; and it has been holder).' by the Supreme Court of Massachusetts, in an opinion delivered by the late learned Chief Justice, that, at common law, he may even transfer this power for a longer period, limited only by the child’s minority and the father’s life ; and that, notwithstanding the statute, all contracts of service, legal at the common law, still remain so. Day v. Everett, 7 Mass. 145, cited by defendant’s counsel. The soundness of this doctrine, to the extent in which it is laid down in the case just cited, has been questioned by Mr. Justice Story in United States v. Bainbridge, 1 Mason, 78, 85; and in another court of high authority it has been decided that the statute must be considered as controlling the common law. 8 Johns. 328, Ex parte McDowle. Be that as it may, there can be no doubt but, under our statute, a father may transfer his right to the custody of his children until they arrive at the age bf fourteen, without their consent. The subjects of this process arc all under that age. From the articles of agreement recited in the return, and which are not controverted, it appears that the petitioner did consent that, upon a certain contingency, his wife should be at liberty to take the children under her own control and custody, and keep them so long as the parents continued to live apart from each other; and that this contingency has happened, manifestly through the misconduct and fault of the petitioner. For it could not be expected that his wife would “ live happily with him,” or that his conduct would fail “ to render her situation unhappy,” whenever it should
Upon this evidence, the decision of the cause might, perhaps, be placed on the voluntary transfer by the father of all his authority over these children to the wife, and that having so transferred his power and waived his parental rights, he ought not to be permitted now to reclaim them against her.
But there is another view of this case which seems to be supported by high and unquestionable authority. The object of the writ of habeas corpus is to remove'illegal or improper restraint, and when that is done, the power of the court in the premises is completely exhausted. From the preamble to the act directing this process, as well as the act itself, it is manifest that its object was merely to afford reljef from every wrongful imprisonment or unlawful restraint of personal liberty. The fifth section provides that if it shall appear that the imprisonment or restraint is without due order of law or sufficient cause, the person imprisoned or restrained “ shall be discharged from such commitment or restraint.” Now the restraint in this case is nothing more than of the parental character, exercised by the mother for the benefit of her children, and such as the law permits or even enjoins to be exercised by all who are clothed with parental authority. It does not appear that the children are dissatisfied with remaining with the mother, or that they have expressed any wish to be returned to the care of their father.
Two of them are not of such age as to render it expedient to consult their wishes. Neither does it appear that the mother is less capable or disposed than the father, properly to govern and instruct them; or that they would be better supported under his control than in their present situation. He, however, claims to have the custody and care of them as of right, and calls upon the court to enforce this right.
In Rex v. Delaval, 3 Burr. 1434, Lord Mansfield said “ in writs of. habeas corpus directed to private persons to bring up infants, the court is bound, ex débito justifies, to set the infant free from an im~
From an examination of these authorities, I consider the law well settled, that it is in the sound discretion of the court to alter the custody of these minor children or not, and that the father cannot claim them as matter of right. In the exercise of that discretion under which I am presumed to act in this case, I cannot forget that the eldest of these children is a daughter, requiring peculiarly the superintendance of a mother ; — that the others, although males, being of tender ages, may probably be as well governed and instructed by her as by the father, especially as if is in evidence, from the petitioner’s witnesses, that she is a “ smart, industrious woman, and a kind, good mother”; — that the parental feelings of the mother toward her children are naturally as strong, and generally stronger than those of the father; — that the separation of the heads of this family has been caused by the imprudent conduct of the petitioner, and that by his voluntary act he consented, in case of such separa