Jones a. Seward. if it is palpably usurpation, if it is plain to the most unlettered citizen, that the statute is an attempt to subvert all the securities which the founders of the government have provided for the preservation of personal liberty, and to invest one man with unlimited dictatorial power, and, therefore, that the appeal was palpably frivolous, I presume the court would hear no argument on such an appeal, and would forthwith affirm the judgment or dismiss the writ. Would they, for instance, hearken to an appeal involving the validity of an Act of Congress giving the President, or any other member of the government, power, by a coup d'état, to extinguish the legislative branch, as Cromwell did the Long Parliament, and substitute a Barebones Legislature in its place? Surely not; if they, too, were not struck down, and were not (if such debasement can be imagined) by force, by fear, or by corrupt appliances or selfish aspirations robbed of independence. So that the consideration, whether the act is not palpably void, must present itself on appeal as it now presents itself to us on this motion; and, if it is palpably void, I repeat, it would not be treated on appeal as worthy of being for a moment entertained. I still consider the defence in this case just as destitute of color as the case which I have imagined. Whether, under the pretext of authority from the President of the United States, any one citizen, at his mere will and pleasure, without any intervention of the judicial tribunals, can incarcerate another citizen not subject to military law, in a loathsome dungeon, for many months, or for a day or an hour, cannot, under any circumstances in which the nation may be placed, be treated as a question constituting a case arising under the Constitution; and any statute which declares the contrary is palpably void. The order at special term should be affirmed with costs. Order reversed. The People on rel. Johnson a. Erbert. THE PEOPLE on rel. JOHNSON a. ERBERT. Supreme Court, First District; General Term, February, 1864. HABEAS CORPUS.-CUSTODY OF CHILD. The Supreme Court of this State, like the former Court of Chancery, exercises a general control over all minors. This power is for the benefit of the child, and is not to be defeated by one having a mere legal title to the custody of the child, whether that title or right arise from a natural relationship or from an act of law.* *The later cases on this subject have gone far to qualify the old rule, by which the father was said to have an absolute right, superior to that of the mother, and all others. The question is ably discussed in the matter of Gregg (5 N. Y. Leg. Obs., 265), and put upon the ground, now more generally recognized, that the interest of the child is the paramount consideration. The following decisions at chambers in the Supreme Court, in the First District, which have not been reported, further illustrate the general subject. THE PEOPLE on rel. FREDERICA M. NEIDLINGER a. MARY LOHMAN, commonly called Madam RESTELL. (April, 1858.) CLERKE, J.-The writ of habeas corpus was issued in this case, requiring the defendant to produce before the court the infant child of the relator, alleged to be unlawfully detained, or to have been unlawfully disposed of by the said defendant. The relator, an unmarried woman, was delivered of a male child on the 30th of August, 1855, at the house of the defendant, who styles herself, in the return to this writ, to be a midwife and female physician. Almost immediately after the delivery the child was taken from the relator by the defendant, and since that time the mother has never seen him. In the return, the defendant denied that she had the child in her custody, or under her power, or that she detains him, or ever did detain him. She also alleges that the relator solicited her to procure some person who would adopt the child, and that accordingly, on the day of the accouchement, the relator freely and voluntarily surrendered him to one Mrs. Wright, with a request that he should be given to the lady who had expressed a desire to adopt him, and that he was soon after disposed of and given away for adoption. The court, in the first instance, on the 8th of January, 1857, after the return, thought proper to send the case to a referee, to report whether the said child was at any time in the possession or under the control of the defendant, and whether the defendant parted with the custody of the child; and if so, to whom, and under what authority she disposed of him; and if the defendant knew, or had any means of knowing, in whose custody the child then was. A subsequent order, bearing date January 24, 1857, was substituted in the place of the order of the 8th of January, somewhat modifying the previous order, The People on rel. Johnson a. Erbert. Where a father has voluntarily suffered the custody of his children to be committed, by indentures, to third persons, upon whom the indentures are binding, the court will not restore them to him unless it is for the benefit of the children to do so. In 1860 the wife of Mr. Johnson, the relator, died, leaving him three children, aged eight, six, and five years. In April, and directing the referee to report whether the child was in the custody of the defendant, or under her power or restraint; or if not, whether he had been transferred to another; and if so, at what time, for what cause, and by what authority the transfer took place, and whether said transfer, if any, was made by the consent of petitioner, and at her request. This order also directed the referee to append to his report the testimony which should be taken before him in this proceeding. The referee now reports, from the proofs and allegations taken and made before him, that the child was in the possession and under the control of the defendant in the month of August, 1855; that, although there was some evidence before him that the relator was willing or was induced to part with the child, yet, he states, there was no evidence to show what really became of him after he had passed into the hands of the defendant, and that she did not show what she had done with the child, or what ultimately became of it. He consequently reports, as his conclusion, that the defendant has not parted with the child, and that the defendant is responsible to this court for the same. I think that this report is plainly justified by the testimony, although the question whether the relator was willing or was induced to part with the child— in other words, whether she consented that any person should adopt him-has no pertinency to the questions properly and legally involved on this inquiry; except, perhaps, so far as to assist the court in determining hereafter, if the child should be produced, whether the mother was a competent person to have the care of him. For, it may with some plausibility be affirmed, that a mother who was willing and even anxious to part with her infant immediately after his birth, must be destitute of that affection without which no person is capable of suitably rearing and bringing up a child. As far as the defendant is concerned, she cannot avail herself of such an allegation. A child cannot be disposed of or alienated like a chattel. A father, even, cannot contract away the custody of his legitimate children. As Mr. Justice Cowen remarks, in The People a. Mercein (3 Hill, 399, 411), "Those countries in which a father has a general power to dispose of his children, have always been considered barbarous. Our own law has never allowed the exercise of such a power, except for some specific and temporary purpose-such as apprenticeship during the father's life, or guardianship after his death." The only questions now to be considered, therefore, are whether the child was at any time in the possession or under the control of the defendant; and if so, whether the defendant has parted with said child. We have seen that the referee has reported that he was in the possession and under the control of the defendant in the month of August, 1855. She has entirely failed to give any satisfactory account of what has become of him since that time. Our statute declares that it is not enough for the person upon whom this writ shall have been duly served (2 Rev. Stat., 566, § 32), to state The People on rel. Johnson a. Erbert. 1861, he left the children with Mr. Erbert, the defendant, promising to pay him $12 per month for the support of the two boys, and allowing him to adopt the third one, Anna, till such time as he could obtain the means to support them him "whether he have or have not the party in his custody, or under his power or restraint." "If he shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause, and by what authority such transfer took place." Assuming, therefore, as I do, that the defendant had this child in her power and custody on the 30th day of August, 1855, which I hold to be a fact fully established in this case, and which she can no longer gainsay, she must make a further return under oath, full and explicit; and if she still insist that she has not the child now in her power and custody, and if she has transferred him to some other person, as is alleged, for adoption, she must specify particularly to whom, at what time, for what cause, and by what authority such transfer took place. I will give her ten days from the service of the order to be entered on this decision to make this further return, in failure of which it will be my duty, pursuant to section 36 of the statute already mentioned (2 Rev. Stat., 566), to issue an attachment against her, commanding the sheriff to apprehend her, and bring her before this court. In the MATTER OF THE PETITION OF CATHARINE LESSLIER. (September, 1858.) INGRAHAM, J.-The evidence in this case discloses a state of facts in regard to the child of the petitioner which has rendered it extremely difficult to arrive at a satisfactory conclusion and decision. The petitioner, while unmarried, became the mother of the child, and at the age of six months she agreed to bind the child to the respondents, for the purpose of carrying out an agreement entered into by her to give the child to them. An instrument was executed by which the child was bound to one of the respondents, to be adopted by them as their child. The child was placed in their possession, and has since been supported, and clothed, and educated by the defendants in a suitable manner as their own child, and, the evidence shows, in a manner calculated to give him a good education. From that time the mother has in no way aided in the support or care of the child, not even so much as seeing him or inquiring as to his welfare. For eleven years the respondents have acted towards the child as his parents, and claim now to be attached to him as an adopted child to whom they propose to give their property. During the greater part of this time the mother was leading an abandoned life. From her own statement, and that of her husband, she has reformed, and during the last five years she has been a member of a church. The mother of a child having no known father is undoubtedly entitled to the custody of it. She is its only parent, and is alone bound for its support, and if this was the only question in the case I should have no hesitation in ordering the child to be delivered to its parent. The indenture signed on behalf of the child, so far as it purports to come from the commissioners of the almshouse, is not The People on rel. Johnson a. Erbert. self. In March, 1862, at the instance of Erbert, who claimed that the father had neglected to perform his agreement, Justice Welsh, a police justice of the city of New York, committed the children to the care of the commissioners of charities and valid, inasmuch as it is not executed in conformity to the provisions of the statute. Nor is it binding upon the infant as indentures of apprenticeship. It purports to be a binding for the purpose of adoption of a child; no such binding is authorized by our laws, and if the infant sought to avoid it, I am of the opinion that it would give the respondents no right to reclaim him against his will. In addition to the binding by the almshouse commissioners, is the consent of the mother to this contract with the respondents, for the clothing, board, and education of the child until he arrives at the age of twenty-one years. Under such circumstances there is no hardship in saying that the interest of the infant should be the first consideration in the decision of this case. The abstract right of the mother to the child may be thus waived by her own agreement; and unless it appears manifestly for the interest of the infant to take the child from the respondents and deliver it to the mother, the duty of the court would be discharged by merely inquiring whether there was any improper restraint, and if there was any, by discharging the child therefrom. I have less hesitation in such a conclusion, when I consider that the mother has never shown any regard or affection for the child since it was six months old, but has left the whole burden and expense of its support and education to the respondent. A case similar to the present was that of the McDowles, (8 Johns., 328), where the children, aged eight and eleven years, were bound to one of the society of Shakers, to be brought up in their faith. The court there says: "The infant is not bound by the indenture, but the question is as to the relief which ought to be granted. There is nothing to show any improper treatment of the infants, and that the party to whom the father intended to bind them has not faithfully performed the stipulations in the indenture. This is not a case in which the father has any equity or any right to complain. He may be bound by the indenture though the infant is not." These remarks may very appropriately be applied to the present case, so as to leave the disposition of it to rest entirely upon what shall be deemed most for the welfare of the child. Upon this question, however, there is some considerable difficulty. If the respondents continue in the same course of life that the evidence shows to have existed for years past, their house is not a proper place to bring up this child. The statements made on their behalf, like those on the part of the mother, are that they have abandoned such immoral courses, and have also reformed. It appears that the suggestion of the respondents' counsel would, under all the circumstances, be most for the benefit of the infant, if any satisfactory arrangement can be made to secure that result. That suggestion is, to place the child in a suitable boarding-school at the expense of the respondents. In the Matter of Waldron (13 Johns., 418), Chief-justice Thompson says: "In cases of writs of habeas corpus directed to private persons to bring up infants, the court is bound to set the infant free from an improper restraint, but they are not bound to deliver the infants over to any particular person. This must be left to their discretion, according to circumstances that shall appear before them." From the examination of the child it is apparent that he is under no restraint from which he desires to be relieved; but that he wishes to remain with the respondent. It is proper to add that this application was returnable before me, and not before |