tain his children, the court will order
maintenance out of their own estate ;
EYRE V. COUNTESS OF SHAFTSBURY.
269
and the inability need not depend upon
insolvency ; but inability, from limited
means, to give tbe child an education
suitable to the fortune possessed or
expected ; {Buckworth v. Buckworth,
1 Cox, 80; Jervois v. Silk, Cooper,
52.) The allowance will be made al-
though the devise or settlement under
which the property is held contains
no direction for maintenance, (lb.,)
but even directs the income to accu-
mulate ; (5 Ves. 194, 195, note, 197,
note; 10 Id. 44; 4 Sim. 132; Mac-
pherson, Ch. 21, § 2, p. 223.)
" It is also settled, that where there
are legacies to a class of children,
for whom it would be beneficial
that maintenance should be allowed,
though the will does not authorize
it, but directs an accumulation of the
income, and the principal, with the
accumulation, to be paid over at twen-
ty-one, with survivorship in case any
should die under age, the court will
direct maintenance, (11 Ves. 606;
12 Id. 204 ; 2 Swanst. 436 ;) but if
there is a gift over, it will not be
allowed without the consent of the
ultimate devisee, (11 Ves. 202; 5 Id.
193, note ; Ward on Legacies, 303 ;
Macpherson, 232, 233, 234.)
" So the court will break in upon
the principal where the income is in-
sufficient for maintenance and educa-
tion, (1 Jac. & Walk. 253 ; 1 Russ.
& Mylnes, 499, 575 ;) and will break
in upon it for fast payments, (2 Vern.
137 ; 2 P. Wms. 23 ;) and where the
father is unable to maintain his chil-
dren, and has contracted debts for
this purpose, or for their education,
the court will direct a reimbursement
out of the children's estate, (6 Ves.
424, 454 ; 1 Bro. C. C. 387 ; Mac-
pherson, 9, p. 246 ;) and will, if the
father or mother is in narrow circum-
stances, in fixing the allowance, have
regard to them, increasing it for the
benefit of the family ; (1 Ves. 160 ;
2 Bro. C. C. 251; 1 Beav. 202; 1
Cox, 179.)
" The management and disposition
of the estates of infants, which I have
thus referred to, and briefly stated
with the authorities, are among the
mass of powers upon this subject which
belong to the original and inherent
jurisdiction of the Court of Chancery.
They relate to their personal, and the
income of their real estate, the court
having no inherent power to direct a
sale of the latter for their mainte-
nance or education ; that power rests
with the legislature."
It is evident from what is here said,
that the inherent powers of chancery
do not extend to the sale of an in-
fant's real estate, however essential to
his welfare, or necessary for his sup-
port, and that a sale decreed under
an authority given by the legislature,
will be void if it fall beyond the
limits of the power thus conferred.
The court accordingly held that a
conveyance of the land of children
by their father, in payment of his
own debts, passed no title, although
made under a decree based upon an
act of assembly, which authorized him
to sell and invest the proceeds for
their benefit, under the direction of
the chancellor. Nelson, J., however,
dissented from this decision, on the
ground that although the power given
by the act had been improperly exer-
cised, the sale was within it, and had
been so held by the courts of New
York, in Clarke v. Van Surlay, 15
Wend. 436, and Cochran v. Van
Surlay, 20 Id. 365. It is, however,
270
GUARDIANSHIP OF MINORS.
well settled on the one hand, that a
sale manifestly beyond the jurisdic-
tion of the court which decrees it,
will be void whether the jurisdiction
be general or derived from a special
grant; and on the other, that where
jurisdiction exists, the sale will not
be vitiated by an irregularity in its
exercise ; Grignon's Lessee v. Astor,
2 Howard, 319; Rogers v. Dill, 6
Hill, 415 ; 1 Smith's Leading Cases,
847, 5th Am. ed.
The necessity for a power adequate
to the protection of the persons of in-
fants, and its existeuce as part of the
equitable jurisprudence of this coun-
try, were strikingly illustrated by the
case of Aijmar v. Roff, 3 Johnson,
Ch. 49. The defendant had taken
advantage of the youth and igno-
rance of the plaintiff, who was under
the age of twelve years, to inveigle
her into a marriage, from which she
dissented as soon as she was informed
of the nature of the contract into
which she had entered, and of the
duties and obligations which it im-
posed upon her. The bill which was
filed in her name, and that of her
father for himself, and as her next
friend, set forth these facts, and prayed
that she might be declared a ward of
the court, and that the defendant
might be restrained from having any
intercourse or correspondence with
her. The relief thus prayed for was
granted, and it would seem from a
note of the reporter, that the court
might have been disposed to go fur-
ther in vindication of the outrage on
the rights of the father, as guardian,
had further steps been asked for on
his part or that of his daughter.
The right of chancery to exert a
superintending care for the protection
of infants, was carried still further in
Cowls v. Coicls, 3 Oilman, 435, and
exercised by removing them from the
custody of the father, and delivering
them to the care of the mother, on
the ground that his course of life was
so grossly immoral, that a residence
in his house would expose them to
vitiating and contaminating influ-
ences. In this case, the father had
been divorced from his wife, for adul-
tery with a woman whom he continued
to cohabit with as a mistress, and the
court went beyond the English pre-
cedents, by making their jurisdiction
on behalf of the infants available, not-
withstanding their want of fortune,
through the medium of an order, re-
quiring the father to pay a small sum
annually for their maintenance. The
reasons in favor of having a power
adequate to protect those who are
peculiarly unable to protect them-
selves, are too obvious for comment,
whatever may be thought of its lia-
bility to abuse, and of the difficulty
of applying it with delicacy and dis-
crimination ; and in Cowls v. <'<>wh,
it was held to form an integral part
of the original jurisdiction of chan-
cery. " The power," said the court,
"of the Court of Chancery to inter-
fere with and control, not only the
estates, but the persons and custody
of all minors within the limits of its
jurisdicton, is of ver}- ancient origin,
and cannot now be questioned. This
is a power which must necessarily
exist somewhere, in every well regu-
lated society, and more especially in
a republican government, where each
man should be reared and educated
under such influences that he may be
qualified to exercise the right of a
freeman, and take part in the govern-
EYRE V. COUNTESS OF SHAFTSBURY.
271
ment of the country. It is a duty,
then, which the country owes as well
to itself, as to the infant, to see that
he is not abused, defrauded or ne-
glected, and the infant has a right to
this protection. While a father so
conducts himself as not to violate this
right, the court will not, ordinarily,
interfere with his parental control.
If, however, by his neglect or his
abuse, he shows himself devoid of that
affection, which is supposed to qualify
him better than any other to take
charge of his own offspring, the court
may interfere, and take the infant
under its own charge, and remove it
from the control of the parent, and
place it in the custody of a proper per-
son, to act as guardian, who may be
a stranger.
" The powers and the duty of the
court, on this branch of the subject,
are very satisfactorily laid down by
Story. He says: 'The jurisdiction
of the Court of Chancery extends to
the case of the person of the. infant,
so far as is necessary for his protec-
tion and education, and to the care of
the property of the infant, for its due
management and preservation, and
proper application for his maintenance.
It is upon the former ground princi-
pally, that is to say, for the due pro-
tection and education of the infant,
that the court interferes with the or-
dinary rights of parents, as guardians
by nature or by nurture, in regard to
the custody and care of their children.
For although, in general, parents are
entrusted with the custody of the per-
sons and education of their children,
yet this is done upon the natural pre-
sumption that the children will be
properly taken care of, and will be
well brought up, with a due education
in literature, and morals, and religion,
and that they will be treated with
kindness and affection. But when-
ever this presumption is removed;
whenever (for example) it is found
that a father is guilty of gross ill-
treatment or cruelty towards his in-
fant children ; or that he is in con-
stant habits of drunkenness, and blas-
phemy, or low and gross debauchery ;
or that he professes atheistical and
irreligious principles ; or that his do-
mestic associations are such as to tend
to the corruption and contamination
of his children ; or that he otherwise
acts in a manner injurious to the
morals or interests of his children ; in
every such case, the Court of Chan-
cery will interfere, and deprive him
of the custody of his children, and
appoint a suitable person to act as
guardian, and to take care of them,
and superintend their education f 2
Story, Eq. Jur. § 1341.
w Infants thus taken under the
charge of the Court of Chancery for
the protection of their persons or pro-
perty, are called wards of the court,
and the guardian, or person appointed
by the court to act as guardian, is an
officer of the court, and is entirely
under its direction and control, and
entitled to its aid in enforcing a pro-
per obedience and submission on the
part of the ward, and to prevent the
improper interference of third persons.
A jurisdiction thus extensive, and
liable as we have seen, to enter into
the domestic relations of every family
in the community, is necessarily of a
very delicate, and often of a very em-
barrassing nature; and yet its exercise
is indispensable in every well governed
society. It is indispensably necessary
to protect the persons and preserve
272
GUARDIANSHIP OF MINORS.
the property of those who are unable
to pretect and take care of them-
selves."
In 31' Cord v. Ochiltree, 8 Black-
ford, 15, it was again said, that the
necessity for the existence of a power
adequate to the protection of minors
was obvious, and that it was embraced
in every general legislative or consti-
tutional grant of chancery powers.
In Maguire v. Maguire, 7 Dana, 181,
the court incidentally remarked, that
the protection of infants from brutal
treatment by their parents, formed a
part of the judicial jurisdiction of
chancery, and, as such, might be ex-
ercised in this country as well as in
England. In The State v. Stigall, 2
New Jersey, 286, the court cited and
relied upon 2 Story's Equity, sect.
1341, as sustaining the same proposi-
tion; and the right of chancery to in-
terfere for the protection of infants
against the abuse of parental authority,
or the influences of parental authority,
by removing them from the custody
of the parents, has been authoritative-
ly asserted in several other instances,
and said to result from, and be a part
of the control and supervision which
equity is extitled to exercise over all
guardians, whether they derive their
authority from nature, from the dele-
gation of the father, or from the ap-
pointment of a court of probate, or
other competent tribunal; Wood v.
Wood, 5 Paige, 596, 605 ; The People
v. Wilcox, 22 Barbour, 178; In the
matter of Wolstonecraft, 4 Johnson,
Ch. 80; Miner v. Miner, 11 Illinois,
43. The , common law right of the
father to regain possession of his chil-
dren by recaption, or to maintain an
action on the case against those who
seduce or inveigle them away, may be
and probably is indisputable, even if
the old writ of trespass for the abduc-
tion of a son or daughter, was confined
solely to those children who were also
heirs ; 3 Blackstone, Com. 140 ; In
the matter of Kotman, 2 Hill, S. C.
363, 366 ; but the existence of a right
at law, is obviously no reason why its
use should not be controlled, or its
abuse prevented by equity.
But whatever the powers and duties
of the tribunals may be, when the
right of a father is brought directly
before them for adjudication, either
in the form of a suit at common law,
against those who have removed or
withheld his children, or in that of an
application to chancery to restrain or
supersede the exercise of the parental
office, they may, unquestionably, ex-
ercise a sound judicial discretion,
when their aid is sought through the
medium of a writ of habeas corpus,
which issues not for the benefit of the
relator, but for that of the party in
whoso- behalf he makes the applica-
tion, and when the good of the child,
rather than of the parent, is conse-
quently the first, if not the only mat-
ter for consideration. In the matter
of Waldron, 13 Johnson, 419; Gish-
wilerY. Dodez,\ Ohio, N. S. 615;
The People v. Ghegaray, 18 Wend.
637 ; The United States v. Green, 3
Mason, 482 ; The State v. Smith, 6
Greenleaf, 462. Strictly speaking,
indeed, the intervention of the court,
under a habeas corpus, is limited to
removing the unlawful restraint, if
any, which has been put on the in-
fant, and then leaving the father free
to take possession of it by virtue of
his parental authority, unless he has
shown himself unfit to be entrusted
with the care of his child, when the
EYRE V. COUNTESS OF SHAFTSBITRY.
273
latter will be protected, until it is
again in the safe keeping of those by
whom it has been produced in obedi-
ence to the mandate of the court. In the
matter of Kottman, 2 Hill, S. C. 363;
In the matter of Wolstonecraft, 4 John-
son, Ch. 80; The State v. Smith, 6
Greenleaf, 462. And although the
court may, if it think fit, go further and
promote the true 'welfare of children,
who are too young to decide for them-
selves, by actually delivering them to
the father; yet the whole matter lies
absolutely in its discretion, and it will
do nothing which can tend to preju-
dice the minor in whose behalf it is
acting; The United States v. Green,
3 Mason, 4«2; The State v. Steyel ;
Armstrong v. Stone, 9 Grattan, 102 ;
The State v. Paine, 4 Humphreys,
523. In The Commonwealth v. Ad-
dicks, 5 Binney, 520, the court re-
fused to remove children of tender age
from the mother, on a habeas corpus
issued by the father, although she had
been divorced from him, for adultery
committed with a man whom she had
since married, on the ground, that her
conduct and character were good in
other respects, and that the youth of
the children rendered maternal care
necessary. But, on the renewal of
the application, at a subsequent period,
the court delivered the children to the
father, as having reached a time of
life, at which the mother's superin-
tendence was less essential to their
physical welfare, and when it might
be presumed that their principles
would be exposed to injury from her
character and example; The Com-
monwealth v. Addicks, 2 S. & R. 174.
" The case," said Tilghman, C. J.,
in delivering his opinion on this oc-
casion, " was brought before the court
VOL. III. — 18
between two and three years ago, when
on account of the tender age of the
infants, it was judged improper to
take them from the mother. The law
was at that time fully considered and
declared by the court. We are not
confined to an abstract question on the
rights of guardianship, but are deter-
mined according to our discretion, on
the expediency of delivering the in-
fants to the custody of the father.
The great object of the habeas corpus
is to free the person from illegal re-
straint. That being done, the court
may proceed farther or not as circum-
stances require. These children do
not stand before us in the same situa-
tion as formerly. The eldest has now
arrived at a critical age ; every moment
is important; and the education of
the next three years will probably be
decisive of her fate. The case of the
youngest is not so urgent. But it is
important that the sisters should not
be separated. When we decide for
one, therefore, we must decide for
both. I wish not to wound the feel-
ings of the mother by unnecessary
censure, but the case being brought
before the court, it is impossible to
shut our eyes on the impropriety of
her conduct. She was divorced from
her first husband for a great crime,
and whatever may be her opinion of
her second marriage, we know that it
is void by the law of this state. Yet
I view her not as a vulgar prostitute.
Far from it. She may have been
ignorant of the law, which rendered
her marriage void, and it has not been
suggested, that she has been unfaith-
ful to the man whom she now calls
her husband. She is said to have re-
ceived a good education in a convent
in Canada, and having been married
274
GUARDIANSHIP OF MINORS.
by her mother's command, at too early
an ao-e, to a man with whom she had
no previous acquaintance, she dis-
covered, too late, that neither her
years, her habits, her education, nor
her disposition, accorded with those
of her husband. Hence her guilt, and
her misfortunes. She may be pitied,
but cannot be justified. But what is
to be said to the claim of the father,
who demands the custody of his chil-
dren; who expresses his anxiety for
their future welfare ; who asserts his
ability to protect and support them ;
and declares his intention of placing
them under the immediate superin-
tendence of the mother of Mrs. Lee,
or of her brother, who is married to
a respectable woman, and now resides
at New York ? What effect will the
decision of this court have on the
morals of these children, from whom
the unfortunate history of their pa-
rents can be no longer concealed ? If
they are permitted to remain with
their mother, will they not conclude
that her conduct is approved ? There
is one circumstance which has great
weight with me. I am satisfied, that
either from books, from conversation,
or from the unfortunate speculation of
her own mind, the mother has fallen
into a fatal error, on a fundamental
point of morals — the obligation of the
marriage contract. It is the more in-
cumbent on us, therefore, to guard the
children against the consequences of
this pernicious mistake, and to fortify
their minds, by inspiring them with
fixed principles on this essential arti-
cle. At the present moment they
may not reflect on the subject, but
they soon will ; and when they in-
quire, why it was that they were sepa-
rated from their mother, they will be
taught, as far as our'opinions can teach
them, that in good fortune or in bad,
in sickness or in health, in happiness
or in misery, the marriage contract,
unless dissolved by the law of the
country, is sacred and inviolable. For
these reasons, and many others which
it is unnecessary to mention, I am of
opinion, that the children should be
delivered to their father."
In the matter of Waldron, 13 John-
son, 418, the court pushed this course
of decision still further, by refusing
to remove a child at the instance of
the father, from the custody of its
maternal grandfather, by whom it had
been educated; the pecuniary cir-
cumstances of the grandfather being
good, and those of the father much
embarrassed ; and this case was cited
with approbation, by Story, in The
United States v. Green, 3 Mason,
482, and said to present the rule
which should be followed under simi-
lar circumstances. In Tlie People v.
Merr'ein, 8 Paige, 47, the proper course
to be adopted, with reference to mi-
nors, when the question arises on a
writ of habeas corpus, was again held
to depend on a sound judicial discre-
tion, exercised with a view to their
benefit, rather than the technical or
legal right of the party who sues out
the writ. The chancellor, conse-
quently, refused to take children of
tender years from their mother, for
the purpose of delivering them to
their father, although she had sepa-
rated herself from him, and returned
to her father's house without suffici-
ent cause. The course thus taken,
was subsequently approved by the
Court of Errors, in Mercein v. The
People, 25 Wend. 64. But when the
case was brought before the Supreme
EYRE V. COUNTESS OF SHAFTSBURY.
275
Court, eighteen months afterwards,
the right of the father was said to be
paramount in every case, where no im-
perative reason is shown against it,
and the child which had been the in-
nocent cause of this long and pro-
tracted litigation, was withdrawn from
the care of the mother and delivered to
the father, although not yet five years
old, and of feeble constitution ; 8 Hill,
399. The result of the authorities as
a whole, would seem to be, that the
right of the father is superior to that
of every other person, and can only be
made to yield when it is manifestly in-
consistent with the health and welfare
of the child; The State v. Stigal, 2
New Jersey, 286 ; Wood v. Wood, 3
Alabama, 756 ; The People v. Chegary,
18 Wend. 637 ; The State v. Paine,
4 Humphreys, 523 j In the matter of
Kottman, 2 Hill, S. C. 363; Spear
v. Spear, 9 Richardson, Equity, 188,
195; Gishioiler v. Dodez, 4 Ohio,
N. S. 615. Hence, in a contest be-
tween husband and wife, for the pos-
session of their children, the prefer-
ence should be given to the husband,
unless there is something in their age
or condition, or in his character or
position, as compared with hers, to
warrant the belief that a continuance
with the mother is essential to their
moral and physical well being ; The
People v. Mercein, 3 Hill, 399 ; The
People v. Humphreys, 24 Barbour,
521; The State v. Paine, 4 Hum-
phreys, 523 ; The United States v.
Green, 3 Mason, 482; Tarkington v.
The State, 1 Carter, 171. The inves-
tigation must, therefore, necessarily
take a wide range, and embrace an
examination of the age and health of
the children, of the character and
habits of both parents, and even of
the origin and merits of the dispute
which has led to their separation, so
far, at least, as these tend to throw
light on character and habits; The
People v. Merlin, 8 Paige, 48 ; The
People v. Humphreys ; Gishioiler v.
Dodez ; a wife who has embittered
her husband's life, and rendered his
home unhappy by ill temper or con-
duct, being prima facie unfit to have
the charge and education of those,
whose age and position renders them
wholly dependent upon her care and
good feeling; The People v. Hum-
phreys, 24 Barbour, 521. And in
Gishwiler v. Dodez, Banney, J., went
so far as to express an opinion in op-
position to the view taken by the ma-
jority of the court, that the father and
mother stand on an equal footing, and
that the law should not take an infant
from the custody of the one, for the
purpose of giving it to another, un-
less it is apparent that the welfare of
the child will be promoted by the
transfer. But, although this is un-
doubtedly the rule, as between two
tenants in common, of a house or
other chattel, it is obviously objec-
tionable, when a relation so sacred as
that of parent and child is in ques-
tion, from its tendency to relax the
bonds of parental authority, and in-
troduce discord into families, by de-
livering that which should be deter-
mined by law, to the sport of chance,
or leaving it as a prey to force or
artifice. It would, however, ap-
pear to be well settled, that when a
child has arrived at the years of dis-
cretion, although not of age, the court
will not use a habeas corpus, as the
means of controlling its freedom of
choice, either by delivering it over to
its father directly, or by allowing him
276
GUARDIANSHIP OF MINORS.
to seize it while returning to its place
of residence; The State v. Paine;
In the matter of Wohtonecraft ; In
the matter of Kottman ; The People
v. Chegary.
The necessary result of the principle,
which makes the welfare of the child-
ren the primary object, in an investiga-
tion under a writ of habeas corpus, is,
that the refusal of one tribunal to in-
terfere, at the suit of the father, or of
any other person, cannot operate either
as a technical or constructive estop-
pel, after the age or situation of the
infant has so far altered, as to vary
the aspect of the question, and ren-
der that expedient on a new hearing,
which was not so when it was de-
cided in the first instance; The Peo-
ple v. Mercein, 3 Hill, 399.