Foster and Wife, Appellants, v. Alston, 6 Howard 406

Mr. Justice Turner delivered the opinion of the court. In cases of this kind, we are bound to consider the interests of the child, as paramount to all other considerations. This is a proceeding under the habeas corpus act, and under the 18th

section of that act, Rev. Code, p. 225, which extends the provisions of the act to all cases, “where any person not being convicted for any criminal or supposed criminal matter, nor in execution by legal process, shall be confined, or restrained of his, her or their liberty, under any mesne process in civil actions, or under any color or pretence ■whatsoever.” Are these children restrained of their liberty? Are they under the care and control of improper persons? Are they so situated as to prejudice their health, or to expose them to improper or immoral influence?

All these questions must be answered in the negative. They are with their mother, the proper place for all female children, and decidedly to be preferred to any other, whether nursery, or boarding school, unless there be something in the conduct or character of the mother to operate’against the interest of the child. The law has given to our courts the most unbounded jurisdiction over minors. Fathers may be preferred to mothers — mothers to fathers — relatives to parents — or strangers to either, for the custody and care of minors, where the interests of the child require its exercise. Rev. Code, p. 64, 401, &c.

In cases like the present, proceeding under the writ of habeas corpus, the technical, legal rights of the parties, do not govern. A guardian, whether appointed by the parent, or by the court, has his ordinary civil remedy, if any of his legal rights are violated. The courts and juries of the country will respect those rights, and grant redress according to the circumstances of each particular case, and the rules of law. But in this

summary proceeding, these rights cannot be redressed; no damages can be assessed, no restoration of property can be decreed, except in cases of slaves, under our statute. Referring, generally, to the very able, and ample briefs, of the learned counsel on each side of this cause, but little remains for this court to do in the performance of its duty.

The father and mother of these children married in another state, and lived together in harmony, peace and love during the life of the father, and in his last will, made and executed but few days previous to his death, he manifested his affection for his wife, in express terms, and his confidence by appointing her his executrix jointly with his brother James J. Alston, under whose hospitable roof they then resided, and had resided for some years. The Messrs. Alstons, the brothers, their widowed mother, sister and sister-in-law, together with the three infant children of Mr. and Mrs.

Alston, formed a happy, respectable family, and lived together from inclination, in peace and love. It seems that they all had the means of support, in comfort and credit, if not in affluence. James J. Alston and his sister are unmarried persons, the former about forty and the latter about thirty years of age; the mother of the Alstons upwards of fifty. After the death of A. S. J. Alston, the father of these children, his widow and orphans continued to reside with her brother-in-law until her intermarriage with C. A.

Foster, and she manifested a wish or a willingness to continue her residence there, but was given to understand, about the time of her marriage, that it would not be agreeable to the family for her to do so. Mr. Foster then settled in the town of Holly Springs, in this state, some sixty or seventy-five miles distant from the place of residence of the Alston family, and Mrs. Foster was not permitted to take her children to her home, and they never visited her thereafter at her residence in Holly Springs. It appears that Mr.

Foster was and is a minister of the gospel; had, at the time of his marriage, the care of a church at Randolph, near Mr. Alston’s residence, and actually resided in the Alston family before his marriage and for some time after. The character of all the parties concerned seems to be fair, and Mr. Foster has established a character at Holly Springs which has placed him high in the estimation of the respectable portion of that community, as a moral, religious and literary man; and the character of his wife, for virtue, piety, gentility of deportment, and capacity to raise and instruct her children, is equally good.

See the evidence as given by Messrs. Clayton, Huling and others. ■ As it regards the healthiness of the two places, (Holly Springs and the vicinity of Randolph,) the preference is decidedly in favor of the former. One of Mrs. Foster’s children died at the latter place, and another of them left it in feeble health, and was restored to perfect health after a short residence with her mother at Holly Springs. The means of support of Mr. Foster and family is said to be sufficient; and it appears that they live in a comfortable, decent style. Something is related by the witnesses of Mr.

Foster’s son by a former marriage, tending to show that his father is not competent to raise and educate children in a becoming manner. This may be so, and it may be in consequence of this child’s loss of his mother, and not from any want of capacity or attention on the part of the father.

This boy is yet of tender years, and may be reclaimed by the kind attention of a worthy step-mother, and of a father now settled down, after leading a migratory life, in full possession and enjoyment of all the comforts and blessings of wife, children and friends, at the flourishing,, healthy town of Holly Springs, remarkable also for the high character of its inhabitants for morals, literature and refinement. What is this court, under these circumstances, called on to do?

It is in proof that these children are fond of then mother; and, after trying both situations — first with their uncle, grand-mother and aunt, and then with their mother and step-father — decidedly prefer remaining with their mother, expressing at the same time an affectionate regard for their grand-mother. Does this show illegal restraint, the very thing or ingredient necessary to give this court the right to change their custody? I think not. But what are we called on to do with these children, by the petitioner, the testamentary guardian?

To tear these tender female children, aged nine and ten years, from the care and custody of a fond, devoted and capable mother, and place them under the care of a bachelor uncle, residing some seventy-five miles from their mother. To state the proposition would seem to decide it. Let every mother, let every father, answer this question. We respect the rights and the feelings of the guardian. He may yet be the guardian of these infants, and prove himself worthy, as he ño doubt is, of the trust confided to him by a dying brother.

Let him manage their estate, if he chooses, in Tennessee, and watch over their personal interests and welfare also; but let him cease to complain that he is, by the highest authority of the state, relieved from a duty he is, in the nature of things, incapable of performing.

For, at best, if he were to obtain the custody of these children, he would have to select his mother, or his sister, or some other female, to take charge of and superintend their persons, instead of their mother. / The first error committed, in relation to these children, was, in not allowing them to go home with their mother when she obtained a home by her intermarriage with her present husband. No one can say that Mrs. Foster did wrong in contracting a second marriage. No person had a right to deny her that right.

Then-mother’s home should be the children’s home, until circumstances' occur to establish, before a court of justice, that the interest of. the child requires a separation from their natural protectors. Mrs. Foster, after remaining in widowhood some three or four years, thought proper to take another husband. And who did she take to be her husband, and to be the father of her orphan children ? A minister of the gospel of Christ — the friend, and pastor, and instructor, and the very inmate of the Alston family.

If there were any thing wrong or imprudent in this her choice, who should share the blame but the head of that family, by whose authority he was a chosen inmate and daily associate, and the divine instructor of that family? But’ we see nothing wrong, so far, in this second marriage. From the view, we deem it proper to take of this case, the rights of guardianship, and the force used to obtain the possession of these children by their- mother, are out of the question. The first act of violence committed in relation to the separation of these children from their mother, was, in Mr.

Alston’s informing his sister-in-law, the. mother of these children, that in case she intermarried with Mr. Foster, she could no longer reside under his roof, or in his family, where she had resided for years, and had been invited to remain, with her children, as long as she pleased; and the second was, when she did leave his house to move to her new home, in not permitting her to take her children with her.

They never had been separated from their mother; and the separation which then took place, if not by force, was by command of the owner of the house, (according to his own showing, in his answer to the bill filed by Foster and wife, in the state of Tennessee,) and in violation of the sacred feelings of the mother. We leave the petitioner to his civil remedies at law, if he has any, or whatever they may be. Are we supported in this view of the case, by the authorities?

Without dwelling, or commenting upon the numerous cases cited and commented on so ably at the bar, and which may be seen on reference to the very ample briefs filed by counsel, I will advert to the De Hauteville case, decided recently at Philadelphia, a full report of which has been published in pamphlet form, where the court decided against the claims of the father of the child in favor of the mother, on the principle that the interests of the child required that the mother should have the possession, in preference to the father.

If, then, the father’s claims should be rejected, how much weaker must be the claims of a bachelor guardian to the custody of a female child, a man who never stood in the relation of a father, and much less that of a mother.

In a recent case tried before me, on habeas corpus, at Natchez, where a widowed mother claimed the custody and possession of her infant daughter, over 14 years of age, from the custody of the father of a family, which father was the master, by appointment of the trustees of the poor of Adams county, of the child in question, I decided the case on the same principle, the interest of the child, and refused to give to the mother the custody of her daughter, on proof of some irregularity in the conduct of the mother, unbecoming a virtuous matron, and after consulting her daughter about her wishes, and the restraint imposed upon her, as it had been alleged.

And, in conclusion, I will also refer to the case in 3 Mason’s Rep. 482, which was a habeas corpus, by A. Putnam, to be restored to the possession of his daughter, about ten years old. Judge Story, in delivering the opinion of the court, says: “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 its interest to be under the nurture and care of its 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 consult its personal wishes. It will free it from all undue restraint, and endeavor, as far as possible, to administer a conscientious, parental duty with reference to its welfare.

It is an entire mistake to suppose the court is, at all events, bound to deliver over the infant to his father, or that the father has an absolute vested right in the custody. The case of the King v. De Manneville, 5 East Rep. 221, is not inconsistent with this doctrine, but, on the other hand, supposes its existence. The court there thought it for the interest of the child to give the custody to the father. The judges thought there was no reason to suppose the father would abuse his right, or injure the child. Lord Eldon, in De Manneville v.

De Manneville, 10 Vesey, 52, avowed his approbation of the doctrine, and said he had, exercising the authority of the King, as parens patrise, removed children from the custody of their father, when he thought such custody unsuitable. The case of M. E. Waldron, 13 Johns. Rep. 419, is directly in point; and to the same effect is the King v. Smith, Strange’s R. 982. My judgment follows these cases without hesitation.” Judgment reversed. Judge Trotter, concurred.