The opinion of the court was delivered by
The Chief Justice.
This is a controversy between husband and wife, respecting the custody of their minor children. The proceeding was commenced by the medium of an habeas corpus in the Court of Chancery, and on the preliminary motion already made to dismiss this appeal, this court vindicated its right of jurisdiction in the present form over the subject matter of this suit.
In stating my views and the results to which I have' come, it is not my intention to enter upon any discussion of the voluminous evidence which has been laid before the court. In dissensions of this nature, it is one of the worst [385]*385features that the door of the private household must be thrown rudely open, and its most sacred recesses exposed to the public gaze. It is a relief, therefore, to feel that duty will permit the veil to be re-drawn.
An epitome of the facts of the case is given in the opinion sent up from the Court of Chancery, but 1 do not think it necessary for me to recapitulate even that general ■summary. To the Chancellor’s conclusions upon the matters of fact, in the main, if not altogether, I assent. Of these there are three which are the principal ones, and upon which the ultimate decision of the case, with regard to the rights of the parties, must rest. First, the Chancellor holds that Mrs. Baird was not justified in the desertion of her husband. To this I entirely agree. The act was one which, in the eyes of every legal tribunal, must be regarded as a manifest violation of morals and of law. The distempered state of the respondent’s mind from sickness, and her subjection to advice which, though meant as kindness, was cruel injury, may indeed, in some measure, serve to palliate, but must prove greatly insufficient to vindicate her conduct. In this important particular the wife was conspicuously in the wrong. And yet, notwithstanding this belief, I further agree with the Chancellor, that judging from the testimony as a whole, it is clear that the respondent would be a trustworthy guardian of her children. Upon this subject I have not the least doubt. In that part of her conduct already referred to, I have said she greatly erred, but that act, regarded as an infringement of the moral code, stands single, ■as I am willing to believe, in the history of her married life. I absolve her altogether, in my own mind, from the •other accusation brought against her, although I think her husband, under the circumstances, was naturally and perhaps inevitably led to a belief in her guilt. Throughout the general tenor of the testimony I discover many indications that the respondent is a woman of amiable disposition .and moral worth. It seems to me much to the credit of her husband that this is the estimation in which he held her, [386]*386even, after their unfortunate Anal separation. I have no doubt that these children if left with the respondent, would, in the course of their training, be surrounded by 'every proper maternal influence.
And again, in the third place, my conclusion entirely harmonizes, with that of the Chancellor in this respect, viz'; that the vindication of the character of the appellant, Mr. Baird, is by the evidence completely Triumphant. I refer to his character both as a man and: as a minister of the Gospel. -As to the charges, against him oL'the commission of positive crime, they are so entirely overcome and exploded by the testimony, as to leave neither doubt of his innocence, nor of the indiscretion of those who made the accusation. No candid person can examine this evidence and not be satisfied that there is not the smallest ground for a suspicion that Mr. Baird is not innocent of all and every part of the impure conduct so rashly imputed to him. I believe it is the opinion of every member of this court that he is entitled to come out of this trial without a stain upon him, as a man of morals and as a Christian minister. His character, in its -varied phases of public and domestic life, has been laid open to the severest scrutiny ; his letters, evidently written in moments of unreserve and in the candor of an unsuspicious affection, have revealed, not only h:a professional career with its attendant views, aims, and sentiments, but also the minute details of his feelings, thoughts, and conduct as a husband and father; nothing has been kept back; the developement is perfect; and I think from this entire disclosure the fair result is, that after bating the usual quantum for human infirmity, we have presented to us a man imbued and guided by the purest religious inspirations, and actuated on all occasions by unselfish domestic affection. Much censure was cast on this appellant, on the argument, on the score of his disposition to embroil himself on mere punctilios with his congregations. It would be singular if in these years of arduous life, nothing could be found which would afford a subject for stricture or regret; [387]*387but I think it is clear that he must he a blind censor indeed, who could fail to perceive that the same tract of time presents ample materials for praise and admiration. As a signal example of the truth of this last observation, I need only refer to the letter written by Mr. Baird to his wife after she had clandestinely withdrawn her children from his house. In that affair it is impossible not to feel that the appellant was cruelly wronged and outraged, and yet the letter to which I refer is not only silent as to those wrongs, hut runs over with affection, and appeals to the wife, on the ground of all things sacred by laws human and divine, to return to the post of duty by his side. In my estimation, that letter could have been written only by the hand of a Christian gentleman.
Upon these conclusions, then, that both Mr. and Mrs. Baird are proper custodians of these children, and that they were unlawfully abstracted from their homo by their mother, the question arises as to their proper disposition upon tho ground of legal principles. In arranging this legal result tho Chancellor appears to have been embarrassed by tho form of the proceedings; he declared that tho legal right to all the children, except such as were under the age of seven years, was in the husband, but that on a proceeding by habeas corpus he had not the power to awai'd them to him. He felt himself at liberty, however, to establish permanently the position of the children, placing them in the custody of the mother, and permitting the father to visit them on condition that he should not use such privilege to deprive the mother of their custody either by persuasion or force. There is so much confusion in the books, and conflict of judicial sentiment respecting the authority which may he exercised by virtue of this kind of writ, that it is not to be wondered at that there should be perplexity in the practical application of the doctrine, but in tho progress of this cause it has been already decided that in the opinion of this tribunal the present case came before the Court of Chancery in such a guise as to appeal to [388]*388its general jurisdiction over the interests of infants. It is upon this principle, therefore, that the case must be determined. Both the parties to this litigation have called upon the Court of Chancery to provide for the permanent custody of these infants, and such custody must be adjudged in accordance with those considerations upon which a court of equity acts in discharge of its responsible duty as the public guardian of minors.
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The opinion of the court was delivered by
The Chief Justice.
This is a controversy between husband and wife, respecting the custody of their minor children. The proceeding was commenced by the medium of an habeas corpus in the Court of Chancery, and on the preliminary motion already made to dismiss this appeal, this court vindicated its right of jurisdiction in the present form over the subject matter of this suit.
In stating my views and the results to which I have' come, it is not my intention to enter upon any discussion of the voluminous evidence which has been laid before the court. In dissensions of this nature, it is one of the worst [385]*385features that the door of the private household must be thrown rudely open, and its most sacred recesses exposed to the public gaze. It is a relief, therefore, to feel that duty will permit the veil to be re-drawn.
An epitome of the facts of the case is given in the opinion sent up from the Court of Chancery, but 1 do not think it necessary for me to recapitulate even that general ■summary. To the Chancellor’s conclusions upon the matters of fact, in the main, if not altogether, I assent. Of these there are three which are the principal ones, and upon which the ultimate decision of the case, with regard to the rights of the parties, must rest. First, the Chancellor holds that Mrs. Baird was not justified in the desertion of her husband. To this I entirely agree. The act was one which, in the eyes of every legal tribunal, must be regarded as a manifest violation of morals and of law. The distempered state of the respondent’s mind from sickness, and her subjection to advice which, though meant as kindness, was cruel injury, may indeed, in some measure, serve to palliate, but must prove greatly insufficient to vindicate her conduct. In this important particular the wife was conspicuously in the wrong. And yet, notwithstanding this belief, I further agree with the Chancellor, that judging from the testimony as a whole, it is clear that the respondent would be a trustworthy guardian of her children. Upon this subject I have not the least doubt. In that part of her conduct already referred to, I have said she greatly erred, but that act, regarded as an infringement of the moral code, stands single, ■as I am willing to believe, in the history of her married life. I absolve her altogether, in my own mind, from the •other accusation brought against her, although I think her husband, under the circumstances, was naturally and perhaps inevitably led to a belief in her guilt. Throughout the general tenor of the testimony I discover many indications that the respondent is a woman of amiable disposition .and moral worth. It seems to me much to the credit of her husband that this is the estimation in which he held her, [386]*386even, after their unfortunate Anal separation. I have no doubt that these children if left with the respondent, would, in the course of their training, be surrounded by 'every proper maternal influence.
And again, in the third place, my conclusion entirely harmonizes, with that of the Chancellor in this respect, viz'; that the vindication of the character of the appellant, Mr. Baird, is by the evidence completely Triumphant. I refer to his character both as a man and: as a minister of the Gospel. -As to the charges, against him oL'the commission of positive crime, they are so entirely overcome and exploded by the testimony, as to leave neither doubt of his innocence, nor of the indiscretion of those who made the accusation. No candid person can examine this evidence and not be satisfied that there is not the smallest ground for a suspicion that Mr. Baird is not innocent of all and every part of the impure conduct so rashly imputed to him. I believe it is the opinion of every member of this court that he is entitled to come out of this trial without a stain upon him, as a man of morals and as a Christian minister. His character, in its -varied phases of public and domestic life, has been laid open to the severest scrutiny ; his letters, evidently written in moments of unreserve and in the candor of an unsuspicious affection, have revealed, not only h:a professional career with its attendant views, aims, and sentiments, but also the minute details of his feelings, thoughts, and conduct as a husband and father; nothing has been kept back; the developement is perfect; and I think from this entire disclosure the fair result is, that after bating the usual quantum for human infirmity, we have presented to us a man imbued and guided by the purest religious inspirations, and actuated on all occasions by unselfish domestic affection. Much censure was cast on this appellant, on the argument, on the score of his disposition to embroil himself on mere punctilios with his congregations. It would be singular if in these years of arduous life, nothing could be found which would afford a subject for stricture or regret; [387]*387but I think it is clear that he must he a blind censor indeed, who could fail to perceive that the same tract of time presents ample materials for praise and admiration. As a signal example of the truth of this last observation, I need only refer to the letter written by Mr. Baird to his wife after she had clandestinely withdrawn her children from his house. In that affair it is impossible not to feel that the appellant was cruelly wronged and outraged, and yet the letter to which I refer is not only silent as to those wrongs, hut runs over with affection, and appeals to the wife, on the ground of all things sacred by laws human and divine, to return to the post of duty by his side. In my estimation, that letter could have been written only by the hand of a Christian gentleman.
Upon these conclusions, then, that both Mr. and Mrs. Baird are proper custodians of these children, and that they were unlawfully abstracted from their homo by their mother, the question arises as to their proper disposition upon tho ground of legal principles. In arranging this legal result tho Chancellor appears to have been embarrassed by tho form of the proceedings; he declared that tho legal right to all the children, except such as were under the age of seven years, was in the husband, but that on a proceeding by habeas corpus he had not the power to awai'd them to him. He felt himself at liberty, however, to establish permanently the position of the children, placing them in the custody of the mother, and permitting the father to visit them on condition that he should not use such privilege to deprive the mother of their custody either by persuasion or force. There is so much confusion in the books, and conflict of judicial sentiment respecting the authority which may he exercised by virtue of this kind of writ, that it is not to be wondered at that there should be perplexity in the practical application of the doctrine, but in tho progress of this cause it has been already decided that in the opinion of this tribunal the present case came before the Court of Chancery in such a guise as to appeal to [388]*388its general jurisdiction over the interests of infants. It is upon this principle, therefore, that the case must be determined. Both the parties to this litigation have called upon the Court of Chancery to provide for the permanent custody of these infants, and such custody must be adjudged in accordance with those considerations upon which a court of equity acts in discharge of its responsible duty as the public guardian of minors.
As a matter of strict law, it cannot be denied 'that in this state, as at common law, the general rule is, that the claim of the father ¡.to the persons of his infant children, is paramount to those of the mother. This rule is so entirely axiomatic that it would be idle to cite authorities in its support. But this rule has only a subordinate application whenever a court of equity is called upon to exercise its authority in that branch of its capacity just referred to. On such an occasion it is not the dry, technical right of the father, but the welfare of the child, which will form the substantial basis of judgment. The legal right of the father will not be passed by, except when, in the opinion of the court, the well-being of the child requires such supersedure. The application under such circumstances is, obviously, an appeal to the discretion of the court; a discretion, which of course is, as far as practicable, to be regulated by settled rules and admitted principles. In the exercise of such a function the circumstances of each case must, of necessity, become important elements entering into the grounds of decision. The character of the respective parents, the age, health, sex, and number of the children, and the pecuniary resources liable to contribution for their maintenance and education, are all considerations which should and must exert more or less influence over the judicial result. In the present case, the duty of arbitrating thus between the claims of these rival parents, in view of the best interests of the children, is felt to be one of painful responsibility. In common with every member of this court, I have felt oppressed with the weight and delicacy of the office, and now, my greatest [389]*389satisfaction is, the consciousness that if I have erred in my conclusions, such error has not occurred, at least, from want of a careful consideration of the subject. The judgment which I have formed is this : that the eldest child, the daughter, who is now nearly of age, should remain in the care of the mother, if she so desire; that the same disposition should, for the present, be made of the two youngest children; and that the remaining three, children should be delivered over to their father. Provision should be made in the decree for the reasonable access of the parents, respectively, to the children, and a privilege should likewise be reserved, that either party, in case of any material change of circumstances, should be permitted to come into court for further directions or assistance.
In forming these conclusions I have been influenced by a variety of considerations, among which are the following: that the custody of the youngest child belongs to the mother by force of the statute; that the second is still of an age greatly requiring maternal superintendence and care, and can, as yet, be best trained in company with his younger brother ; that the pecuniary means of the father, as shown by the evidence, seem now to be somewhat narrow and precarious, and that these children now are, and have been, well provided for; and that the eldest child is now so near her majority, that to compel her, against her will, to abandon her present home and course of education, and submit to a new and transient control, could not fail to prove highly prejudicial.
The decree should be reversed, and a new one entered conforming to the views above expressed.