of seven years, to make an order that it be delivered to and ramain in the custody of the mother until attaining such age.

A similar statute was soon after passed in New York, in reference to which Bronson, J., in the case of The People v. Chegaray, 18 Wend., 542, said: "it conferred a power upon the Supreme Court which it did not before possess; and that it was not the object of the common law writ of habeas corpus to try the rights of parents or guardians to the custody of infants, but merely to deliver them from unjust imprisonment, and all illegal or improper restraint."

The provisions of the statute in New York on this point are as follows:

Sec. 1. "When any husband and wife shall live in a state of separation without being divorced, and shall have any minor child of the marriage, the wife, if she be an inhabitant of this state, may apply to the Supreme Court for a habeas corpus, to have such minor child brought before it.

Sec. 2. "On the return of such writ the court, on due consideration, may award the charge and custody of the child, so brought before it, to the mother, for such time, under such regulations and restrictions, and with such provisions and directions as the case may require.

Sec. 3. "At any time after the making of such order the Supreme Court may annul, vary or modify the same." 2 R. S., 1852, p. 332.

Mr. FORSYTH observes that: "During the debate in the House of Lords (July 18, 1839,) on the Custody of Infants bill, Lord DENMAM, Ch. J., said: In the case of The King v. Greenhill, which had been decided in 1836, before himself and the rest of the judges of the Court of King's Bench, he believed that there was not one judge who had not felt

ashamed of the state of the law, and that it was such as to render it odious in the eyes of the country. The effect in that case was to enable the father to take his children from his young and blameless wife and place them in charge of a woman with whom he cohabited.' See Hansard's Parl. Deb., Vol. 49, (3d series,) p. 493. But according to the report of the case, the court thought that there was no evidence that the children were likely to be brought into contact with the father's mistress. If the fact had been so the decision would probably have been different.'" Forsyth Custody of Infants, 69, note.

SECTION VI.

SPIRIT OF THE AMERICAN CASES ON CONFLICTING CLAIMS OF PARENTS FOR THE CUSTODY OF THEIR CHILDREN.

It is gratifying that the American reports furnish no such case as that of Rex v. Greenhill, to make the judges "ashamed of the law."

Chancellor Walworth in the case of Mercien v. The People, 25 Wend., 64, alluding to the cases in the English courts since the days of Lord Mansfield, says:

"The American cases show it to be the established law of this country that the court or officer are authorized to exercise a discretion; and that the father was not entitled to demand a delivery of the child to him, upon habeas corpus, as an absolute right. This was also the law of England at the time of the separation from the mother country; though the decisions of the English courts since that period appear to have gone back to the principles of a semi-barbarous age, when the wife was the slave of the

husband because he had the physical power to control her, and when the will of the strongest party constituted the rule of right."

In Ex parte Schumpert, 6 Rich., 344, the English cases are commented on and the American vindicated.

"This was an application by the writ of habeas corpus ad sub. by the father, Peter M. Schumpert, for an order for the delivery to him of his infant daughter, Frances, aged between four and five years, who, it is alleged, was unlawfully detained by the grandfather, Honorius Shepperd, with whom the mother, Mary Schumpert, wife of the petitioner and daughter of Honorius Shepperd, resided. Two similar applications had been made before his Honor Judge O. Neall. On the first application, made March 19, 1850, the following order was made: The sheriff having returned the writ of habeas corpus, and the parties appearing before me, and the child being of very tender years, a little more than a year old; it is ordered that for nurture and care the child remain for the present in the possession of the mother; the father to be at liberty to apply hereafter for the custody of the child if he should think proper so to do.'"

The second application, January 14, 1851, the order was, for the present the child remain in the custody of the mother.

On the third application it was ordered that the mother, Mary Schumpert, be permitted to retain the possession of the child, Frances, and that she be responsible for its maintenance, and that Honorius Shepperd, her father, do give to the petitioner, P. M. Schumpert, bond with sufficient surety to indemnify

said P. M. Schumpert for all liability for the support and maintenance of the child. Bond, penalty $5,000. Motion to reverse this order of the circuit judge heard before the court. The opinion was delivered

by Whitner, J.:

"The legal power of the father over his infant child, irrespective of age and the claims of the mother, has been strongly pressed by the counsel for the petitioner. Many cases have been adjudged, principally in England, going far to deny to the common law judge any discretion on the subject; whilst others, in conceding a discretion, have so limited and restrained it as almost to amount to a denial.

"Lord Mansfield in 1763, in Delaval's case, 3 Burr., 1434, laid down a safe rule which has been recognized by our own case of Kottman, 2 Hill's C. R., 363: That in cases of writs of habeas corpus directed to bring up infants the court is bound ex debito justicia to set the infant free from an improper restraint, but they are not bound to deliver them over to anybody, nor to give them any privilege. This must be left to their discretion, according to the circumstances that shall appear before them.' And again, some ten years after, in Blissett's case, Loft., 748, he held that if the parties disagreed, the court will do what shall appear best for the child.' Yet, as above stated, the principle and practice became more stringent. Those who choose to consult the authorities will find, in order of succession, the courts proceed from De Mundeville's case, 5 East, 221, where the paramount title of the father became the favorite doctrine, although the welfare of the child might require the mother's custody, decided, I think, in 1804, down to the celebrated case of Greenhill, 4 Ad. & El., 624, which so shocked public sentiment, that, under the lead of distinguished jurists of that day, an act of Parliament was adopted more in consonance with the dictates of humanity and sound reason, whereby the rights and feelings of the injured mother were taken into the account.

"It is a matter of congratulation that but little additional weight has been given to this class of cases by American judges. In this state we are committed to no such extreme doctrine, and the day of danger I trust has passed. Pursuing the rule of Lord Mansfield, we have heretofore sought to free the infant from improper restraint; hence at the age of choice the infant is instructed and advised, and if need be protected, in his choice. Judge Strony says, in 3 Mason, 382: 'It is an entire mistake to suppose that the court is bound to deliver over the infant to its father, or that the latter has an absolute vested right in the custody.'

"The wise principles of the earlier English cases have been liberally incorporated into our American cases in the several states, that it is the benefit and welfare of the infant to which the attention of the court ought principally to be directed.' 13 Johns., 418.

"In these delicate and difficult questions, what safer principle can be adopted? What parent can object that the welfare of the child shall be deemed paramount to the claims of either? This is the proposition made by each parent, and neither should condemn the practical operation of the rule. D'Hauteville v. Sears. Motion to reverse order of circuit judge dismissed."

The order actually made in the foregoing case appears more prospective and absolute than is usual in such cases, and approaches so nearly an order in chancery, that it is not so easy to approve of all that was done as of all that was said.

Pennsylvania. The case of the Commonwealth v. Nutt, 1 P. A. Browne, 143, was decided in the Court of Common Pleas, Philadelphia county, in 1810:

"This case arose upon a habeas corpus taken out by Levi Nutt, the father, and directed to Rhoda Nutt, the mother, commanding her to bring Acha B. Nutt, his daughter, before