expounded by its highest tribunals. It is a matter of frequent occurrence that this supposed absolute right is made to yield to the mere will of the child. In cases where the child is of sufficient discretion, though still an infant in the eye of the law, to make a choice for itself as to the disposition of its own person, all the court does under the writ of habeas corpus is to see that all restraint is removed and that such choice may be freely made; and this choice may not only be in favor of either parent against the other, but is not unfrequently opposed to the wishes and claims of both, the child preferring to place himself in the care and custody of strangers. The question there as to the alleged superior right of the father can only arise where the child cannot, as in the present case, choose for itself, and here the real point at issue between the parties presents itself; the relator contending that in such case the law determines that the safest place for the child is under the care and custody of the father; and the respondent insisting that the question is left at large to be determined by the court exercising a sound legal discretion and acting solely in reference to the interests of the child under the circumstances of the case.

"It would seem, then, that the real question in these cases is not what are the rights of the father or mother to the custody of the child, or whether the right of one be superior to that of the other, but what are the rights of the child; and I cannot but think that much of the apparent conflict in the various decisions of the courts in these cases and in the reasoning which has been resorted to to sustain them has arisen from loose and undefined notions as to the nature of the questions involved. They have not unfrequently been treated as if they were cases involving the rights of property rather than mere personal rights, and as if the parents were setting up conflicting claims of property in

the child.

"The true view is that the rights of the child are alone to be considered, and those rights clearly are to be protected in the enjoyment of its personal liberty, according to its own choice if arrived at the age of discretion, and if not to have its personal safety and interests guarded and secured by the law acting through the agency of those who are called upon to administer it.

"In all the cases, even in those in which the superior right of the father seems to have been most strongly maintained, the principle is clearly recognized that there may be circumstances irrespective of any personal disqualification of the father which may defeat his claim. The discretion which is thus to guide in the decision of cases, like the present, is not an unregulated or arbitrary discretion of the judge, for that has justly been styled 'the law of tyrants,' but a discretion governed as far as the case will admit by fixed rules and principles. It is certainly somewhat difficult to define these rules and principles with precision, but keeping in mind that the present interests of the child are alone to be consulted, I think they may safely be sought for in considerations connected with its age and health.

"When a child is found in the custody of its mother, of tender years or of feeble and delicate health and when the necessity of maternal care is evident, the law will not interfere to remove it from such custody and could not do it without shocking the common sense and feelings of mankind. But where the child has arrived at an age at which t becomes important to determine upon its course of education and mental training, in reference to future business and establishment in life, it may reasonably be supposed that the superintendence and judgment of the father will better subserve its true interests than those of the mother. While the physical safety of the child and the incipient stages of its education are the chief objects to be regarded, it is quite clear from observation and experience that these

may be safely entrusted to the mother, and that in general, under such circumstances, maternal is more safe and effectual than paternal care and superintendence."

Let the child remain with its mother.

New Jersey. In the State v. Stigall & Turney, 2 Zabr, 286, RANDOLPH, J., said:

"But where the child is of tender years and the father and mother have separated, or the wife has left the abode of her husband, it often becomes necessary for the court or judge, on return of the habeas corpus, to determine as to the custody of the child, without waiting for the slower action of the Chancellor, or referring the matter to him as the parens patriæ in the place of the sovereign.

"Under the general rule of the common law, courts have not felt authorized to take the child from the father and give it to the mother, although some very strong cases have arisen which seemed to demand the interference of the court. 5 East, 00; 9 J. B. Moore, 279; Ball v. Ball, 2 Sim., 35; Wellesley v. Duke of Beaufort, 2 Russ., 9.

"But where the father had asked a court of law or a judge to grant an order to reinvest him with the actual custody of his child, the court before making the order would look into the case and notwithstanding the presumed right of the father, would exercise a discretion in the matter. Such ever was and still is the law, with much less change in the rule than in the mode of exercising the discretion or the extent of its exercise.

"The principle of the action of the court or refusal to act is this: The power and right of the father is allowed for the benefit of the child, and not to enable him to govern with arbitrary caprice or tyrannical control, so as to subvert the very object of the law in giving him the authority. Thus where the children would be exposed to cruelty or gross corruption, immoral principles or habits, or the father

is not of ability to provide for the support, education and future prospects of the child, and the mother or person with whom the child resides is able, the court will make no order granting the custody of the child to the father. And, too, if the child is of tender years and especially if a female or of sickly constitution, in the custody of the mother, against whom there is no charge but inability to live with her husband, the court would make no order of removal.

"The discretion is pretty broad, and perhaps extending with the improvements and refinements of the age, yet it is not arbitrary, but based on sound principles; and yet like all other discretionary proceedings will take its hue from the officer exercisiny it.

"In this case there were three children, Charles, aged 5 years and 3 months; Robert, 3 years and 5 months, and Elizabeth, 13 months.

"The two younger children are too young to be removed for any practical or useful purpose to themselves at least; and as nothing is found against the mother, but her inability to live with her husband, they should, for the present, remain with her; but an order may be entered to deliver the eldest to the father."

SECTION VII.

CUSTODY OF ILLEGITIMATE CHILDREN.

The English cases show a want of unanimity of opinion upon this question also. See Forsyth's Custody of Infants, 77.

In Rex v. Soper, 5 T. R., 278, Lord KENYON, Ch. J., said that the putative father of a bastard child had no right to the custody of it. And when this case was cited in R.

v. Mosely, 5 East, 224; and see R. v. Hopkins, 7 East, 579, and 1 Madd. Ch. Pr., 432, n. z., where a writ of habeas corpus was moved for to bring up the body of a bastard infant, of which the defendant was the father, the same learned judge said: "Where the father has the custody of the child fairly, I do not know that this court would take it away from him, though I do not mean to impeach the propriety of the case cited. But where he has got possession of the child by force or fraud, as is here sugested, we will interfere to put matters in the same situation as before."

Yet the learned judge does not appear to have been consistent in that opinion; for in an anonymous case, cited by Sheppard, Serg't, arguendo, in the case of Strangeways v. Robinson, 4 Taunt., 506, where a writ of habeas corpus was sued out on behalf of the mother to prevent a legitimate child, little more than seven years old, from being carried to the West Indies by his father, though the father had obtained the possession of the child from a school both by fraud and force, he held that as he found it in the possession of the father he must leave it there, though he said he would have preferred to have left the child in the custody of the mother.

In a late case, Ex parte Knee, 1 Bos. & Pul. N. R., 148, the Court of Common Pleas did take away an infant illegitimate child from the custody in which it had been placed by the father, although there was no imputation against him, and ordered it to be delivered to the mother, who was willing and anxious to receive it.

Sir J. MANSFIELD, said: "It is not unlikely, indeed, that by granting this application we may be doing a great prejudice to the child, but still the mother is entitled to the child if she insists upon it."