State v. Smith

• Decision Date: 01 May 1830
• Citation: 6 Me. 462
• Parties: The STATE v. SMITH
• Court: Maine Supreme Court

6 Me. 462

The STATE v. SMITH

Supreme Judicial Court of Maine, Oxford

May, 1830

Application should not be granted.

Fessenden for the petitioner.

N Emery, for the respondent.

OPINION

PARRIS J.

Previous to the last term a writ of habeas corpus was granted, by one of the justices of this court, directed to the defendant, requiring him to bring up the bodies of Emeline Maria Hall, Solomon Smith Hall, and Aaron Oliver Hall, minors under the age of fourteen years, and children of Jonathan Hall, the petitioner, alleged to be wrongfully restrained of their liberty by the defendant, and by him held in duress, against their will and the will of their father. The writ was returned at the last term holden in this county, and the children were produced in court to await its decision. From the return it appears, that the petitioner married the defendant's daughter, and that the children, described in the writ, are the issue of that marriage; that the eldest is between ten and eleven, and the youngest between four and five years of age; --that sometime in the preceding February, the petitioner brought the eldest child to the defendant's dwelling house and left her there, and that in the afternoon of the same day the petitioner's wife came, bringing with her the two other children named in the writ, and that she, with her three children, have continued to live and dwell in the defendant's family ever since, without any force or restraint on his part against them, the children being under the management and direction of their mother. It further appears that by certain articles of agreement, under seal, entered into by the said petitioner and defendant, the former, some years since, conveyed a moiety of his farm in trust for the use and benefit of his wife; that the defendant was one of the trustees, and that the petitioner, by said articles of agreement, stipulated that " if, in consequence of any ill treatment by him, his wife should be rendered unhappy and unwilling to cohabit with him, and should make affidavit that she is so treated by him as that she cannot live happily with him, then she may live separately from him at her own pleasure, and shall be at liberty to take the children under her own control and custody, and keep them so long as they, the said petitioner and his wife, should live apart; " that the said petitioner's wife did on the seventeenth of March last make affidavit that the " ill treatment she had continually received from him, the said petitioner, is such that she cannot live with him in peace and quietness, and much less in happiness," and that they have ever since continued to live separate and apart from each other. It further appeared in evidence, that, immediately previous to this separation, the petitioner had been charged as the father of an illegitimate child, and had settled for the same, by note with sureties; --that the other moiety of his real estate and all his personal property had been conveyed by deed of mortgage and bill of sale, to indemnify his sureties, and for the payment of his other debts.

The children being now in the custody of the mother, and in court by her permission and consent, the petitioner seeks to reclaim them through the interposition of the law, alleging his paramount right to their custody, and that the court is not at liberty, in the exercise of any discretionary power, to deny his petition.

That the father is generally entitled to the custody of his infant children, is a principle resulting from his obligation to maintain, protect and educate them. These are duties thrown upon him by the law of nature, as well as of society, which he is not permitted to disregard, and which he could not conveniently discharge, if the object of those duties were withdrawn from his control.

This right is, however, neither unlimited nor unalienable. It continues no longer than it is properly exercised; and whenever abused, or whenever the parent has become unfit, by immoral or profligate habits, to have the management and instruction of children, courts of appropriate jurisdiction have not hesitated to interfere to restrain the abuse, or remove the subject of such abuse from the custody of the offending parent. 4 Bro. Parl. Cas. 302; Amb. 301; 2 Brown Ch. 500; 10 Ves. 52; 12 Ves. 492; Jacob's Rep. 267. The existence and origin of this power was elaborately considered in the late case of Wellesley v. The Duke of Beaufort, 2 Russ. 1, wherein Lord Eldon is reported to have said, that " what he was called upon to do (to deprive the father of the custody of his children) was a strong measure; that the interposition of the court stood upon principles which it ought not to put into operation without keeping in view all the feelings of a parent's heart, and all the principles of the common law with respect to parents' rights." In that case the mother was dead, and there existed no parental feelings adverse to those of the father. He was not seeking to withdraw his children from the society of their mother, but from the custody of relatives more remote, and yet his application was denied by the Chancellor, and the decision was confirmed, on appeal, by the House of Lords.

These authorities are not cited as precedents for a common law court, but they do establish the fact, that the right to control parental authority has been claimed and exercised by the appropriate court in England for more than a century.

The principle of depriving the father or the mother of the guardianship of their children, on the ground of notorious misconduct, is also distinctly recognized in the civil code of France, art. 444, 389; and, in cases of separation between husband and wife, the father's right to the children is altogether rejected, and the courts entrust the children to him, or to the mother, or to a third person, as the interests of the child render expedient. Pail. 134, note e.

So the father, under our statute, may waive his parental rights, and transfer his power over, and assign the services of his minor children to another, without their consent, until they arrive at the age of fourteen; and it has been holden by the Supreme Court of Massachusetts, in an opinion delivered by the late learned Chief Justice, that, at common law, he may even transfer this power for a longer period, limited only by the child's minority and the father's life; and that notwithstanding the statute, all contracts of service, legal at the common law, still remain so. Day v. Everett, 7 Mass. 145, cited by defendant's counsel. The soundness of this doctrine, to the extent in which it is laid down in the case just cited, has been questioned by Mr. Justice Story in United States v. Bainbridge, 1 Mason 78,...