or interests of his children; in every such case the Court of Chancery will interfere and deprive him of the custody of his children, and appoint a suitable person to act as guardian and take care of them, and to superintend their education. Story Eq. Juris., § 1341.

"The Court of Chancery' says Lord Hardwicke in Butler v. Freeman, Ambler, 302, 'has a general right delegated by the crown, as parens patriæ to interfere in particular cases for the benefit of such as are incapable to protect themselves.'

"But there must be a suit depending relative to the infant or his estate, to entitle the court to this jurisdiction.' lb. "In the case of Wellesley v. The Duke of Beaufort, 3 Eng. Con. Ch. Rep., 10, which was a proceeding in chancery, Lord Eldon in discussing the subject of the jurisdiction of a court of chancery in these cases, says: 'So much has passed with reference to this subject as to make it not altogether inexpedient to say something on the nature of the law, as between parent and child, which is administered in this court. I do apprehend that notwithstanding all the doubts that may exist as to the origin of this jurisdiction, it will be found to be absolutely necessary that such a jurisdiction should exist. With respect to the doctrine that this authority belongs to the king as parens patriæ, exercising a jurisdiction by this court, it has been observed at the bar, that the court has not exercised that jurisdiction, unless where there was property belonging to the infant to be taken care of in this court. Now whether that be an accurate view of the law or not; whether it be founded on what Lord Hardwicke says in the case of Butler v. Freeman, Ambler, 303, 'that there must be a suit depending relative to the infant or his estate,' (applying, however, the latter words rather to what the court is to do with respect to the maintenance of infants;) or whether it arises out of a necessity of another kind, namely, that the court must have property in order to exercise this jurisdiction; that is

a question to which perhaps sufficient consideration has not been given. If any one will turn his mind attentively to the subject he must see that this court has not the means of acting, except where it has property to act upon. It is not, however, from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction; because the court cannot take on itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so; that is to say, by its having the means of applying property for the use and maintenance of the infants.

"If this court has not the power to interpose what is the provision of the law that is made for the children? You may go to the Court of King's Bench for a habeas corpus to restore the child to the father; but when you have restored the child to the father, can you go to the Court of King's Bench to compel that father to subscribe even to the amount of five shillings a year for the maintenance of that child? A magistrate may compel a trifling allowance, but I do not believe that there was ever a mandamus from the Court of King's Bench upon such a subject. It is an eligible thing that children of all ranks should be placed in this situation, that they shall be in the custody of the father; although, looking at the quantum of allowance which the law can compel the father to provide for them, they may be regarded as in a state little better than that of starvation.

"The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father. Those duties have been acknowledged in this his Majesty's court for centuries past.”

No judge or court in a simple habeas corpus proceeding assumes any such amplitude of jurisdiction. They do, however, act upon some of the grounds upon which the Court of Chancery proceeds. But it is not to be forgotten that their proceeding is empha

tically a a summary one, and that its chief end and aim is to relieve from illegal restraint. It acts upon the present actual condition of the parties and for the present. It does not undertake to prescribe what their future relations shall be. It takes care that the infant shall not leave the court under injurious custody, and expects that the custody to which it is committed will continue while the circumstances shown in evidence remain unaltered, but it does not command that it shall thus continue. Orders have sometimes been made, it is true, of a somewhat more mandatory and prospective character, but they do not appear to rest upon very satisfactory ground

The true idea was very nearly expressed by the court In the matter of Kottman, 2 Hill C. R., 363:

"Perhaps it might be more correctly said that the office of the court," on habeas corpus, "is to discharge the infant from illegal restraint, and the discretion is to protect the infant in returning."

The distinction between the powers of a court of common law and a court of equity is stated by Lord Redesdale, in Wellesley v. Wellesley, 2 Bligh, N. S., 126, thus:

"The care of the person to protect from violence belongs to the Court of King's Bench, but the care of the person with respect to education, does not belong to the Court of King's Bench, and the Court of King's Bench disclaims any such right; therefore as to the care and protection for the purpose of education, it belongs to this court (of Chancery) which has exercised the jurisdiction. The same view of the matter was taken in Ex parte Skinner, 9 Moore, 278, in the Common Pleas by Best, Ch. J., who said: 'In cases of

similar applications to the Court of King's Bench they generally refer the parties to a master in chancery who may ascertain whether there is sufficient property to provide for the support of the child, or whether it might be made a ward of that court or he might appoint a guardian to take care of it; and that, therefore, appears to me to be the wisest course, at all events our authority can only be coequal with that of the Court of King's Bench. But the Court of Chancery has a jurisdiction as representing the King parens patriæ, and that court may accordingly, under circumstances, control the right of the father to the possession of his child and appoint a proper person to watch over its morals and see that it receives a proper education; and if a sum equivalent to its maintenance can be obtained the Lord Chancellor will order it to be done without inquiring where the funds are to come from.'

"Lord ELDON also said, Jac., 254, that where the infant was a ward of the court there were many circumstances to which he could give attention, which could not weigh with him on a habeas corpus alone, without any cause in court. He said also that he apprehended that the jurisdiction which he had upon a habeas corpus was exactly the same as if it was before a judge, and that a judge attended to nothing but cruelty or personal ill-usage to the child as a ground for taking it from its father. But where there was a cause in court there were many other considerations to be attended to, as in the case then under discussion, where an aunt of the children made an appointment in their favor, which she would not continue if they resided with their father. The Lord Chancellor proceeded to say that he could not attend to that circumstance on a writ of habeas corpus, but in a cause it might have some weight.

"Lord ELDON here states that a judge at common law in considering the question, whether an infant shall be taken from the custody of its father or not, does not attend to anything as a ground for such removal except cruelty or

personal ill-usage to the child. But we shall find that this is too limited a rule unless we give the words 'cruelty or personal ill-usage' a wider sense than that which they usually bear, and make them embrace cases of moral contamination; for a well founded apprehension that a female infant, for instance, will by residence with its father be exposed to moral pollution, is sufficient to deprive him, at common law, of the right to the custody of the child." Forsyth on Custody of Infants, 56.

SECTION IV.

GENERAL RULES AS TO CUSTODY OF LEGITIMATE CHILDREN.

In exercising the jurisdiction in habeas corpus the following principles deduced from the cases are of general application:

1st. The court is in no case bound to deliver the child into the custody of any claimant, or of any other person; but but may leave it in such custody as the welfare of the child at the time, appears to require. 2d. In controversies between parents for the custody of their legitimate children, the right of the father is held to be paramount to that of the mother; but the welfare of the child and not the technical legal right is the criterion by which to determine to whom the custody of the child shall be awarded.

3d. In controversies between parents for the custody of their illegitimate children, the right of the mother is paramount; but, as in the last case, the welfare of the child and not the technical legal right determines the custody.

4th. In all cases, if the child has arrived at the age of discretion it will be permitted to elect in whose