26 F. Cas. 30 | U.S. Circuit Court for the District of Rhode Island | 1824
In cases of this nature the court will look into all the facts stated in the return, and ascertain if they contain a satisfactory statement, upon which the party ought to be discharged. It will not discharge the defendant, simply because he declares, that the infant is not “in his power, possession, control, or custody,” if the conscience of the court is not satisfied, that all the material facts are fully disclosed. That would be to listen to mere forms against the claims of substantial justice, and the rights of personal liberty in the citizen. In ordinary cases, indeed, such a declaration is satisfactory, and ought to be decisive, because there is nothing before the court upon which it can ground a doubt of its entire verity, and that in a real and legal sense the import of the words “possession, power, or custody,” is fully understood and met by the party. The cases of Rex v. Winton, 5 Term R. S9, and of In re Stacy, 10 Johns. 32S. show with what jealousy courts watch the terms of returns of this nature. See, also, Ex parte Eden, 2 Maulé & S. 22G. In those cases there was enough on the face of the return to excite suspicions that more was behind, and that the party was really within the constructive control of the defendant. Upon examining the circumstances of this case, I am not satisfied, that the return contains all those facts within the knowledge of the defendant, which are necessary to be brought before the court, to enable it to decide, whether he is entitled to a discharge, or, in other words, whether he has not a power to produce the infant, and control those in whose custody she is. There is no doubt, that an attachment is the proper process to bring the defendant into court. But suppose he were here, the next step would be to require him to purge his supposed contempt, and to answer in-terrogatox-ies. That is the very object of the present motion. But an attachment can be necessary only when the party is not present in court. The defendant is now personally present, and the court may directly make an order, that he shall answer farther interrogatories to be drawn up at the bar. It is wholly unnecessary to go a circuitous route, when thei’e is a direct path open before us. I shall therefore make an order to this effect. Order aceoi-dingly.
Upon this order the defendant answered a series of interrogatories put by leave of the court in writing to him. These, however, being still unsatisfactory to the plaintiff,
E. Williams, in his' behalf, moved for an attachment, which motion was opposed by Cozzens & Hunter, for defendant. Upon this motion, a wide discussion arose as to the right of the father to have the custody of the infant under the circumstances of the case.
STORY, Circuit Justice. 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 his interest to be under the nurture and care of his 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
The cause lay over until the next morning, when the parties entered into a specific-agreement, as to the custody of the infant, which, being sanctioned by the court, was by the consent entered of record. Whereupon further proceedings were stayed.
