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properly arise in an action between husband and wife for an absolute or limited divorce.”
It will thus be seen that the learned Judge concedes to this Court the powers which he did not deem himself to possess, and which are now invoked and necessary to afford the relief prayed for. The argument of res adjudicata, therefore, falls to the ground. For it would be idle to talk of a previous adjudication being a bar, when the former tribunal had no right to adjudicate the point in controversy. It will also be seen that we in no manner conflict with the decision of Judge Duer. This Court, being clothed with full legal and equitable power, entertains no doubt of its authority to make a final disposition of this matter.
IV. We will now proceed to examine the case upon its merits. Charles Trainer, the relator, claims that Jane Trainer, an infant nine years of age, is his legitimate child; and that the respondent, without authority, detains her at a house of illfame, No. 101 Mercer street, in the city of New-York. The respondent admits that the relator is the father of Jane, but denies that he was lawfully married to her mother-the latter being a slavemand denies that the child is under any restraint; and avers that she voluntarily remains with the respondent. These are the substantial facts upon which the decision depends, although numerous irrelevant matters have been brought into the case, and quite an unnecessary amount of ill-feeling excited and displayed. These matters relate to the facts that Jane was born a slave, belonging to the respondent—that she was made free by the respondent moving into the State of Ohio before she came to New-York, and that the relator is, and always has been, a free black man.
It is hardly necessary to remind the parties and their counsel that, upon a question of this kind, the law in this State recognizes no distinction of color or race; and that all fathers, whatever may be their standing in society, have precisely the same legal authority and control over their children. The relator stands before the Court simply as a man prosecuting his paternal rights; while the respondent appears as a woman having no claim upon the child by agreement or consanguinity, but only through the affections. It is wholly unnecessary, therefore, to inquire into the complexion of the one, or the reputation of the other. If she were the most exalted lady in the land, and he the most humble of its inhabitants, their rights, in the eye of the law, and their consideration in the view of this Court, would be the same.
In regard to the legitimacy of the child, I have been somewhat embarrassed, because there is no direct evidence of the fact, except the testimony of the relator himself; for, although such testimony has been usually admitted, I am not quite sure that it stands upon any solid foundation. In the view, however, which I take of the case, the legitimacy of the child is not a fact of vital importance.
The relator swears that he was married in Mobile, by a black Methodist preacher, his wife being a slave, and both members of the denomination. Upon this it is claimed by respondent's counsel that the marriage is void, by reason of a statute of the State of Alabama, forbidding slaves to marry. Whether it be true, as the argument tends to show, that all the slaves in that State are illegitimate, it is not necessary more particularly to inquire. It is sufficient for us that the marriage being by words, de presenti, and followed by cohabitation, is good, as a marriage at common law.
Assuming, then, that the child is legitimate, how stands the question between the father and the respondent, as to its custody? To this question but one answer can be given. That the father has a title superior to any stranger is not less the doctrine of the authorities than it is a principle of human nature. The father's rights are paramount even to the mother's, until he forfeits his claims by misconduct or ill-usage.
People in re Wickerson, 19 Wen., 16. He is bound to support and maintain it. He is, therefore, "the natural guardian, and entitled to its custody, care, and education." He has the natural right to bring it up in his own faith, and give it such instructions and discipline as he may deem best for its present and future welfare. In the language of Judge Bronson, in Mercein vs. the People, 25 Wen., 72: “The law regards him as the head of the family, obliges him to provide for its wants, and commits the children to his charge, in preference to the claims of the mother or any other person.”
Even if we lay aside the relator's testimony, and adopt as true the statement in the return, that Jane is his illegitimate child, still his claim would be superior to that of the respondent, or any other stranger, although inferior to that of the mother.-1 Clarke Ch. Rep.
In every aspect, therefore, in which this can be received, we are compelled to admit that the father's right to the possession of the child is superior to that of the respondent; and I may be pardoned for saying that, if he moved in the higher walks of life, if he were a white man of standing and influence in the community, the truth of this proposition would be universally acknowledged ; and any tribunal that, having authority, should hesitate to afford him relief, would subject itself to great reproach. The public voice, as well as common sense, would declare, that if our Courts permit children of such an age to leave their parents and take up their abode as they please, a most valuable social relation would be subverted, and the foundations of domestic peace and enjoyment broken up and destroyed.
Again: It is insisted that there is no restraint, because the child remains with the respondent of her own free will. This brings up the important inquiry, What is legal restraint, as applied to an infant of this tender age? The position of the counsel would undoubtedly hold true of an adult, who, when delivered from the detention, becomes his own master, and is presumed to know where to go, and how to take care of himself. But it is by no means true of a young, ignorant child. In such cases there may be legal restraint, without the exercise of any force or coercion. It is enough that the accused interferes to prevent the father from forcibly taking possession of the child. The person having the custody of such an infant, without any claim of right, is bound to deliver it over into the hands of the father whenever he presents himself to receive it; and is not permitted to retain possession of it under the pretense, however true it may be, that the child desires to remain. Thus, if a child go to a neighbor's house and conclude to abide there, when the father demands it of that neighbor, it is not sufficient for the latter to say to him, “You may come in and persuade it to go home, and if you can succeed in gaining its consent, you may take it, but you shall not compel it to go.” He is bound to permit tħe father to exercise his parental authority of coercion; and if he prevents that, he is guilty of restraint, within the fair meaning of the term. Any other rule would work monstrous evils. Hundreds of children could be taken from their parents by the childish affections which they have towards their nurses.
In Mercein vs. The People, 25 Wen. 80, Justice Bronson observes: “The question here is not whether the child is actually suffering under duress of imprisonment, but whether there is that kind of restraint which defeats the rights of the father. The respondent, having the child under his roof, positively forbids the father to enter the house, except upon terms which a proper self-respect made inadmissible; but, if he could submit to the terms, he only had a license to enter the house 'to see Jane,' not for the purpose of taking her under his care and protection. It is impossible to deny that this is such a restraint as defeats the rights of the father, and lays the proper foundation for asking redress by habeas corpus."
In the case before us, it is clear that the child is studiously guarded and kept beyond the reach of the father. The next that is pretended is, in the language of the return, that “she has enjoyed, and, so far as the respondent is concerned, shall enjoy, entire and undisturbed liberty to go where she pleases.” In other words—and this fact is sustained by the proof-she is prepared and resolved, knowing the child's partiality for herself, to maintain Jane in her determination not to go to her father, and to repel all attempts on his part to obtain possession of the child against her will. We have no hesitation in determining that the conduct of the respondent amounts in law to restraint.
V. Having arrived at the conclusion that the relator is legally entitled to the care and custody of his daughter, and that she is held under improper restraint by the respondent, the only remaining inquiry is, as to the remedy.
The former demands a delivery, while the latter insists that the powers of the Court are exhausted when we shall have removed the restraint and set the child free. The one claims that some results should follow the decision; the other purposes to return in statu quo ante bellum.
It has already been substantially admitted that, in regard to adults delivered by the statute writ, the propositions of the respondent's course are tenable. And that it was properly so held by Judge Duer, sitting as a commissioner under the statute, is not controverted. But that it is correct as applied to the case in this Court, of ample jurisdiction independent of the habeas corpus act, is most confidently denied.
We are aware that some of the cases speak of children exercising their own choice and discretion. This may be well enough, when we are assured that they possess what may fairly be called discretion. Whether this can ever be predicated of children under fourteen years of age, in whom the law, in numerous respects, declares there is no discretion, we need not now determine. It is sufficient for us that this child does not manifest that degree of judgment which, in the opinion of the Court, would qualify her to select her own domicile and guardian. That she is old enough to feel a preference, and that such feeling is towards the respondent, is quite apparent. But that such preference is wise and discreet cannot be admitted. Indeed, it can hardly be contended that a house of ill-fame is a proper place, or one of its inmates a suitable person, for the education of any child. But, independent of this overwhelming proof of actual indiscretion, we cannot sanction and give countenance to the doctrine that such children are to control their own movements, and select their own places of residence. It has no foundation in reason or justice, and is plainly opposed to the laws of the land as well as the law of God.
The Court must go farther, therefore, than merely to remove the restraint, by rendering a judgment which shall dispose of the custody of the child and conclude this controversy. It would be an idle ceremony for the Court to try a cause without making a decision by which the fruits of the litigation could be reaped. We have a multitude of precedents for our guidance in this particular. In the matter of Dowles, 8 John Rep. 3, 28, the Supreme Court “ordered the boys to be delivered to their master, and directed an officer to attend and protect them in their return.” In the People vs. Mercein, 3 Hill, 399, Chief Justice Nelson concludes his opinion in these words: “An order must therefore be entered that the child be delivered to the relator.” That was a case where, after two or three years of litigation, the Court ordered the child to be taken from its mother and grandfather and given to the husband and father, although the child was under five years of age. And in a former stage of that case, 25 Wen. 97, the Chancellor, in commenting on the powers of the Supreme Court to award the custody of the child, on reversing the proceedings of Judge Inglis, declared "that if he was wrong, the Supreme Court should not only have reversed his decision, but should also have proceeded to make a final disposition of the custody of the child." And in the People ex rel. Rickerson, 19 Wen. 16, an order was made that “the child be delivered to the father, and that the care and custody of her be committed to him.”
Guided by these lights, we shall direct an order to be entered, adjudging that the said Charles Trainer is entitled to the care and custody of said Jane Trainer, and directing her to be delivered to him as her father, leaving him, like the rest of us, responsible to his conscience and his God for the manner in which he shall fulfil the trust thus restored to him.
The Court then directed the child to be delivered up to the father by the Sheriff, which was done. The child was taken screaming out of court; but when she was alone with her friends in a private room, she appeared to be perfectly satisfied with her fate.
BOUNDARIES OF NEW TERRITORIES. The following, from the National Era, is inserted here as a memorandum of the boundaries of the new Territories of the United States :
The House, last Thursday, passed two bills for the organization of new Territories; one for the division of Oregon, and the formation of a Territory south of 49 deg. north latitude, and north of the Columbia river, from its mouth to where the 46th deg. of north latitude crosses said river at Fort Walla, thence with the said 46th deg. to the summit of the Rocky Mountains: the other for the organization of a Territory with the name of Nebraska, bounded on the west by the summit of the Rocky Mountains, on the east by Missouri and Iowa, on the south by 36 deg. 30 min. north latitude, on the north by the 43d deg. These Territories lie north of the Missouri Compromise line.
DR. PLUMER'S DISCOURSE BEFORE THE N. Y. BIBLE SOCIETY.
Dr. Plumer, of Baltimore, delivered a very able discourse at the Reformed Dutch church on Washington Square, before the New-York Bible Society, from Luke xi. 52: “Woe unto you, lawyers ! for ye have taken away the key of knowledge.” The lawyers whom Christ here speaks of, were those professing to be the authorized interpreters of the Mosaic law.
The proper application of the text to the circumstances and wants of the country, especially in his own State, would have led the preacher into as severe a denunciation of pro-slavery and slaveholding “interpreters of the law” as was, perhaps, ever uttered by the “fanatics of the North.” Quite remarkable is it, that neither priest nor politician, of the pro-slavery stripe, can deliver an eloquent sermon or oration, without condemning himself.
GERMAN PAPER AT WASHINGTON. The Executive Committee of the American and Foreign Anti-slavery Society have recently made an appeal for funds to establish a weekly family paper in the city of Washington, in which the Anti-slavery cause will be ably sustained. A prospectus has been issued, and letters published from Hon. S. P. Chase, Charles Sumner, and Charles Francis Adams, highly recommending the undertaking. The following, from the Lutheran Observer at Baltimore, will show the estimation in which the paper and the editor are held by the well-principled German population of this country.
“ DER NATIONAL DEMOKRAT.”-—This is the title of a new German weekly paper, a large quarto, printed on fine white paper, and in the best typographical style. It is edited in Washington, D. C., at $2 per annum, by Frederick Schmidt, formerly editor of the Kirchenzeitung, in Pittsburg. As Mr. Schmidt is known to be a gentleman of superior abilities, thoroughly educated, and withal a fearless advocate of revealed religion and sound morals, and is pledged to oppose the licentious and infidel character of too many of the German papers of our country, we should rejoice to hear of the success of this great enterprise, though we may not endorse all the “stand-points" assumed in his paper." Romanism and infidelity, with their consequent tendency to disorganization and distraction in politics and morals, are the great and most threatening evils in our country, and if we are not mistaken, the National Demokrat will be a formidable opponent of these alarming evils, and a skilful advocate of rational freedom and sound virtue. Under these impressions, we have no hesitancy in warmly recommending the paper in question. “The principal design,” says Mr. S., "of this publication, is to circulate among our vast German population a family newspaper, adyocating Christian and Free Democratic principles, fully discussed in our prospectus, which has been freely circulated among the friends of genuine liberty and of the rights of man.”
TABLE OF CONTENTS.