cal courts have no authority to determine whether the wife is or is not to have the custody of her children.(a) The jurisdiction as to the care and custody of children belongs exclusively to the courts of common law and equity. The courts of common law do not possess any of that species of delegated authority that exists in the sovereign as parens patriæ, and resides in the court of chancery as representing the sovereign.(b) But the care and protection of infants for the purpose of education belongs exclusively to the court of chancery, although the courts of common law have jurisdiction to protect infants from violence or ill treatment.(c) Father entitled to Custody of Children.]-Upon general principles of law, the father is entitled to the custody of his children. If they be of an age to judge for themselves when brought before the court upon habeas corpus, they have a right to determine where they will go; but if they have not arrived at years of discretion, the court is bound to make such order as will place the children in the proper legal custody. In cases of habeas corpus, directed to private persons to bring up infants," the court is bound ex debito justitiæ to set the infant free from any improper restraint; and it seems the court are to judge upon the circumstances of the particular case, and to give their directions accordingly.(d) 66 In Blisset's case(e) it was considered that the court had a discretionary power in assigning the custody of a child brought before the court where the father and mother living separate disagreed about the custody, and the child was not of sufficient age to determine for itself, and there were objections to the father's being trusted with the custody. It seems that when a parent applies to a common law court for a writ of habeas corpus to recover his children, who have been *taken from him, the court will not grant the writ if the lord chancellor has previously interfered in the [ *678 ] matter.(f) But notwithstanding a bill had been filed in the court of chancery, whilst the writ of habeas corpus was depending, for the purpose of placing the children and their property under the protection of that court, in which there was no prospect of a speedy decision, the court of King's Bench enforced the legal right of the testamentary guardians by ordering the children, with whose care they were entrusted, to be delivered to them on their application on a writ of habeas corpus.(g) The custody of the father is the proper legal custody; but when there is danger to the infant in entrusting it to the care of the father, the court will not act upon the jurisdiction which they possess. Therefore, if there are well founded apprehensions of the father's acting with extreme harshness or cruelty, or with gross profligacy or immoral conduct, so that the child would be in danger of contamination,, the court would not order the child to be delivered (a) Greenhill v. Greenhill, 1 Curteis, 467. See 1 Hagg. Eccl. R. 535. (b) De Manneville v. De Manneville, 10 Ves. 59; Ex parte Skinner, 9 Moore, 278. (c) 2 Bligh, N. S. 136, 137. (d) 3 Burr. 1436, 1437. Per Lord Mans. SEPTEMBER, 1841.-2 K field. (e) Lofft, 748. See 9 Moore, 281. (f) Sce 1 Dow & Clark, 161; 2 Bligh, N. S. 124. (g) Rex v. Isley, 5 Ad. & Ell. 441. to him.(h) The court refused to deliver the infant, who wanted but six weeks of fourteen, to the father, of whose design in applying for the custody of his child they had a bad opinion, but informed the child that he was at liberty to go where he pleased.(i) A writ of habeas corpus was granted in the first instance to bring up an infant who had absconded from his father, and was detained by a third person without his consent.(j) The Father entitled to the exclusive Custody of his Children.]-A father is entitled to the custody of his children, to the exclusion of their mother, although they be within the age of nurture. And when the children are in the custody of the mother, the court will compel her to deliver them into the custody of the father, unless it appear to the court that the child will be improperly restrained or its morals contaminated by being placed in the father's custody. The fact *of the father's having formed an adulterous connection [ *679 ] is not of itself sufficient to warrant the court in refusing to enforce his right to the custody of his children.(k) There must be some force or improper restraint on the part of the father to deprive him of his right to the custody of the child, and the court will remove a child from the custody of the mother to that of the father, although there is no suggestion that the child is subjected to any improper confinement or restraint by the mother, where nothing is shown to prove that the custody of the father is improper.(1) So when a father and his infant child, six years of age, were brought up under a writ of habeas corpus in order that the child might be placed under the care of its mother, the Court of Common Pleas refused to interfere, although the husband and wife had separated in consequence of his cruelty towards her, and the father at the time of the application was confined in gaol, and cohabiting there with another woman, who took the child to him daily.(m) So, although the father had been divorced from the mother, and it was alleged that the child, though born before the divorce, was not his, yet the court ordered the mother to deliver the child to the father, it not appearing that he intended to abuse his right by sacrificing the child.(n) The father of a child is entitled to the custody of it, though an infant at the breast of its mother, if the court see no ground to impute any motive to the father injurious to the health or liberty of such a child, as by sending it out of the kingdom, the father being at the time an alien enemy, domiciled in this kingdom; and the mother being an Englishwoman and apprehensive only that he meant to send the child abroad, but assigning no sufficient reason for such an apprehension.(0) On a petition being afterwards presented to the lord chancellor on behalf of the mother and child, his lordship made an order restraining the father from removing the child, or doing any act for the purpose (h) Rex v. Greenhill, 5 Nev. & M. 255, 4 Ad. & Ell. 624. 256; 4 Ad. & Ell. 624. (i) Rex v. Smith, 2 Str. 982. See Rex v. Delaval, W. Bl. 410. The parental authority is determined by binding the child an apprentice. (j) In Re Pearson, 4 Moore, 366. 81. (1) Ex parte M'Clellan, 1 Dowl. P. C. (in) Ex parte Skinner, 9 Moore, 278. 223. (0) Rex v. De Manneville, 5 East, 221;1 (k) Rex v. Greenhill, 6 Nev. & Man. 244; Smith, 356. of removing it out of the jurisdiction of that court, but he would not allow the mother to have the possession of [*680 ] it, because she had withdrawn herself from the protection of her husband.(p) Provision in Deeds of Separation.]-Deeds of separation sometimes contain a covenant on the part of the husband to resign the children of the marriage, or some of them, to the care of the wife; but Lord Eldon doubted whether a court of law would be justified upon a mere contract by the husband with the wife only in taking from him the custody and control of his children imposed upon him by law.(q) Since that case children have been ordered to be delivered up by their mother to their father on habeas corpus, notwithstanding provisions contained in deeds of separation for their residing with their mother.(r) *In a case which came before the court of King's Bench, on an application for a habeas corpus in 1781, by [ *681 ] the mother, to bring up the body of the child, who had been placed at school, from whence it had been taken by the father; it appeared that there had been articles of separation, by which the father had bound himself to let the mother have access to the child. And then Lord Mansfield said that the court could not take a child from the father. But that, as he had constrained himself by the articles to let the (p) De Manneville v. De Manneville, 10 Ves. 52. (9) Lord St. John v. Lady St. John, 11 Ves. 531. (r) Westmeath v. Westmeath, Jac. 251, 253, note. In this case an application was made by the Earl of Westmeath on the 16th June, 1819, by petition, stating his marriage, and that he had two children, one aged five years and another aged seven months; that he and his wife had been living together in the same house and the children with them until the 14th June, when the wife, without his knowledge or consent, took the care and custody of the children, and sent them from his house, and caused them to be taken to 'the wife's father, and placed them under the care and protection of the wife; and that she also, without sufficient cause or motive, absented herself and had not returned, though he was willing to receive her and support her and the children; upon this petition the lord chancellor ordered a writ of habeas corpus to issue, returnable immediately, for bringing before him the bodies of the infants; Reg Lib. A. 1818, fol. 1359. By the wife's return to the writ it was stated, that she lived separate and apart from her husband; that the infants were not under imprisonment, restraint or duress of any kind, and that they were infants of tender years, and incapable of managing and taking care of themselves; and that she had the care and custody of their persons under the authority of a deed, dated 17th December, 1817, executed by the husband, their father, and that she paid the costs of their maintenance and education by means of another deed, dated the 30th May, 1818, also executed by the husband; that the infants always had been and then were tenderly and properly nurtured and taken care of by her; and that it was for their benefit and advantage that they should remain in her care and under her custody; and that the said Earl of Westmeath had no place of residence of his own to receive and place the infants in, he being then resident in the house taken by her for her separate use, and under a contract made by her own name with the owner, and paid for by her out of her separate income, and which she had only quitted to avoid altercation with the said earl until she could be restored to the exclusive enjoyment thereof by a court of equity. The deed of the 17th December, 1817, contained a clause by which, in the event of a separation between the earl and countess, the former covenanted to permit their daughter, and such other children as they might have between them, to be and reside with the latter, and to be educated under her care and superintendence. By the deed of December, 1818, a provision was made for the separate maintenance of the countess, and an annual allowance was agreed to be raised and paid to her for the maintenance of the infants. Reg. lib. A. 1818, fol. 1534; Jac. 251, 252, n. mother have access to the child, if he chose to take the child home he must provide for the access of the mother to it there.(s) Where the father had been convicted of felony, and was under sentence of transportation, the court granted a habeas corpus in order to give the mother the custody of her child of the age of fifteen, who was residing with her aunt.(t) Proceeding where the Child had been taken Abroad against the Father's Consent.]-Where a writ of habeas corpus has been served on a party in France, and which has not been obeyed, the court of Queen's Bench will not grant a rule absolute in the first instance for an attachment, on the ground of his disobedience, although the English proceeding has been recognised, and ordered to be obeyed by the French tribunals. In this case the defendant had eloped into France with the applicant's wife, with whom he was then living there in adultery, and had taken the applicant's son, and for a long time kept him from his father, who, on applying for the restoration of his son, was refused, unless a sum of 1000l. was paid for his support. An application was then made for a writ of habeas corpus to bring up the body of the child, and that writ was served personally on the defendant in Paris. An application had been made previous to this service to the French authorities, and the writ of habeas corpus had been recognized and declared proper to be executed. In the service *of the writ the French forms had been adopted.(u) [ *682 ] Under these circumstances it was submitted, that the proceeding of the French tribunal would be recognised in this country by the English courts on general principles of international law, and therefore that the court would grant a rule absolute in the first instance for an attachment, on the ground of the defendant's disobedience to the writ of habeas corpus. Patteson, J. said, "The only effect which the proceedings of the French tribunal can have upon the service of the writ of habeas corpus is to render it equivalent to personal service of that writ. The French law cannot give any greater effect than is attached to it by the English law; nor can the law of France give me more authority with respect to my writ than I have without that law. The present case is different from one in which it is sought to give effect to a foreign judgment.(x) Here it is sought to give effect to a proceeding commenced in England. I cannot grant a rule absolute in the first instance for an attachment, as the defendant would have a right to be heard before the writ of attachment could go. I can only grant you a rule nisi in the first instance."(y) It was then suggested that the court might issue its warrant for disobedience to the writ under the statute 56 Geo. 3, c. 100, s. 2, which makes non-obedience to such writ to be a contempt of court. But Patteson, J. said, "that act only applies to persons confined or restrained of their liberty within England, Wales, Berwick-upon-Tweed, Jersey, Guernsey, Man and Ireland. Here the applicant's child is in no one of those places; I cannot therefore grant a warrant. All I can do is to grant a rule nisi for an attachment for disobedience to the writ (8) Lytton's case, cited 5 East, 222. (x) See Hopcraft v. Farmer, 1 Bing. 378; Weatherhead v. Landles, 5 Dowl. P. Č. 189. (y) Ex parte Wyatt, 5 Dowl. P. C. 389. of habeas corpus, or a new writ of habeas corpus." The counsel in the case elected to take the new writ.(z) Delivery to Guardian.]—Where the father is dead, and has appointed a legal guardian of his child, the court will order the child to be delivered to such guardian, if it be too young to exercise its own judgment. (a) A father appointed two per[ *683 ] sons executors of his will, and also guardians of the persons and estates of his children, and requested them, according to their discretion, to cause his children to be brought up and educated; it was held that this appointment gave the guardians the right to the custody of the children, and the court of King's Bench therefore took them out of the custody of the grandfather and grandmother, against whom there was no objection whatever, and who at the desire of the father, had come over from America to take care of them, and directed that they should be given up to the guardians.(b) In Rex v. Clarkson,(c) the infant was a marriageable young lady, who lived with her guardian. A man claimed her as his wife; she denied the marriage. The court would not try the marriage by affidavit, and they would not deliver to the man without allowing the marriage. She chose to remain with her guardian, and the court, upon being informed "that the man had a design to seize her," sent a tipstaff home with her to protect her. Illegitimate Children.]—A putative father has no right to the custody of an illegitimate child; and if the father after an order of filiation obtain possession of the child from the mother by fraud or force, the court will order the child to be restored to the mother.(d) But it seems that where the father has the custody of the child fairly, the court of King's Bench will not take it from him.(e) The court of King's Bench granted a habeas corpus to bring up the body of a bastard child within the age of nurture, for the purpose of restoring it to the custody of the mother, from whose quiet possession it was taken at one time by fraud and afterwards by force; and this without prejudice to the question of guardianship, belonging to the lord chancellor representing the crown in chancery.(f) In Strangeways v. Robin-. son (g) the court *gave no opinion upon the grand point [ *684 ] raised, whether, after the child was out of the age of nurture, the father could claim the custody of the child from the mother. In a case in the court of chancery, the infants were the natural. daughters of the testator, who had bequeathed them considerable fortunes. The master had approved of a guardian of them, and an allowance for their maintenance. Their mother, who was desirous that they should be permitted to reside with her, presented a petition, objecting to the master's report, and praying that it might be reviewed. The lord chancellor confirmed the appointment of the guardian, but directed the master to consider what intercourse between the (z) S. C. 5 Dowl. P. C. 391. 393. (a) Rex v. Johnson, 1 Stra. 597; 2 Ld. Raym. 1334; cited 3 Burr. 1436. (b) Rex v. Isley, 5 Ad. & Ell. 414; 2 Harr. & Woll. 196; see ante, 678. (c) 1 Stra. 444; 3 Burr. 1436. (d) Rex v. Soper, 5 T. R. 278; see New |