dissenting :*
The decree in this proceeding for a divorce, instituted by the appellant against appellee, committed the custody of the child, the subject of this controversy, to appellant, until the further order of the court.
This decree was very proper and just, as the child was then a mere infant, incapable of taking care of herself. The rule of the common law, that the father has the paramount right to the custody of his children, was properly modified by the circumstances. Courts of chancery in this country and in England have often so ruled. The order was not final, but temporary only, and subject to future modification.
As I do not concur in the opinion expressed by a majority of the court, I avail of the scant opportunity afforded me to present, briefly, my views of the case. It need not be said that this is, by no means, an unusual proceeding, very much resting in the discretion of the court, under the circumstances, the dominant question being, what is for the good of the child.
In the section from" 2 Bishop on Marriage and Divorce, quoted in part in the opinion, it is said the courts have not laid down exact rules to guide their discretion concerning which of the parties, on a divorce„shall be intrusted with the custody of the children; probably the subject admits not of such rules. The leading doctrine is, to consult the good of the children rather than the gratification of the parents. Therefore, an agreement on this subject between the parents before the decree of divorce is rendered, can have no controlling influence, for they are not the persons whose interests are primarily to be consulted. Sec. 532. Then follows the quotation in the opinion.
There is nothing in this record to show what the conduct of either party was while the marriage relation existed. The only charge is, appellee abandoned his wife without reasonable cause. There is nothing going to show it was a flagrant desertion, but to the world it may have had the appearance of having been causeless. When the divorce suit was decided, the question for the court was, under the statute, which parent should have the custody of the child, and was properly lodged in the discretion of the court trying the cause. It was discreet and proper the care of the child, being then about two years'of age, should be temporarily committed to the mother.
Years roll round, and the father petitions the same court to recognize his rights, and to act upon the power reserved in the decree to modify the order, and grant the custody of the child to him. In this application, as in the divorce suit, the question is the same, and in disposing of it much is left to the discretion of the circuit judge. He had the parties before him ; he was, so to speak, more of the vicinage than this court, and had a better opportunity of knowing the parties and observing their demeanor and appearance to aid his judgment. It may be, the appearance of appellant and her present husband was not prepossessing or calculated to inspire confidence in the judge, that, though she might be a worthy woman, she was not a fit person to take charge of a girl fourteen years of age and impart to her a good education, fitting her for the active duties of life. I fail to find anything in the record showing she is such a person, though she may be a good mother and wife. There is no proof the girl had received three months’ schooling, and she has reached an age when the foundation should be securely laid. I can not see the circuit judge has abused his discretion, and this court has not, heretofore, reversed a decree in such cases unless it was apparent there had been an abuse of discretion.
That it is a matter of sound legal discretion with the court trying the cause, is affirmed in many cases. Among them are, Commonwealth v. Addicks and wife, 5 Binney (Penn.) 520; State v. Smith, 6 Greenlf. (Maine) 462—the welfare of the child being the leading consideration.
The only question, in my judgment, presented to the circuit judge was, what, under the evidence in the cause, is best for the child—to remain in her step-father’s family with a large number of children, not one member of the family bearing her name, of different lineage, of moderate resources, her education neglected, and whose outlook bounded by a very narrow circle, or permit her father to take her to his home in the neighboring State of Iowa, where, in his house, she would have no rival, a kind and educated woman to care for her, and a father to watch over her, he, himself, possessed of abundant means and of the highest personal character, and with no other child to divide his affections. These were the questions for the judge, and I think he decided them correctly.
It seems appellee, when he left appellant, madé Iowa his home, and some years after, when he was free so to do, married a very reputable and educated woman, of whom it is no shame to say she can master the keys of the piano and the stops of the organ—accomplishments, so considered, which many an indulgent father has impoverished himself to bestow upon a favorite daughter.
It should not be urged, as it seems to be, as an objection to this lady, that she can inspire “a concord of sweet sounds,” provided she keeps her' house in good order and everything about it clean and neat, as it is proved she does. These should not detract from her merits. All the witnesses speak very favorably of her, and there is not the shadow of a doubt that she would take good care of her husband’s child, having none of her own. She seems to possess all the attributes of a good wife, and no blemish should rest upon her by reason of her capacity to master musical instruments found in almost every household. '
As to the father, thirteen witnesses who have known him, the most of them more than ten years, give him the .very highest character as a man and as a citizen, and his good qualities are beyond all question. There is nothing in the record to show that he amassed his wealth in “the civil war,” for that event is not even alluded to in the record, but the inference is irresistible he made it by his industry and sagacity as a farmer, owning the best farm in the county of his'residenee, raising fine cattle, and dealing successfully in such stock. That he builds churches and school houses, pays his debts and stands up'to his contracts, might, without violence, be attributed to the possession by him of many of the good qualities that go to make up a good man and a good citizen. That he will be a kind father, is inferrible from the whole record. The small pittance Alice has, is the gift of her father when the divorce was decreed. He paid her guardian, so soon as it was pronounced, two thousand dollars, out of which her grandfather has received one hundred dollars per annum for her support for near nine years, when it is said by appellant that, on her marriage with Hewitt, he agreed to take Alice and support her as one of the family. He has not done so; at least up to the death of her grandparents, by whom she was reared, he has not. The presumption is a fair one, that what little she has will all be dissipated before she reaches her majority; and when she becomes a burden, her step-father may compel her to seek another home, for he is under no legal obligation to provide for her. Bond v. Lockwood, 33 Ill. 215.
All the witnesses concur that appellee is a good man, and his wife a proper person to take charge of his child. He has a large real and personal estate, possesses great energy and integrity of character, has the confidence of his fellow-citizens in an eminent degree, is exemplary in all the walks of life, and with resources at command, in a judicious application of which lies much of human happiness. There is a church which he contributed largely to build on the farm, and a school house also, and near by another seat of learning, and the society in which her father and his wife move is of the most unexceptionable character. He desires the society of his only child, and to bestow upon her an education which shall fit her for that society into which he will introduce her.
It is said, Alice has no affection for her father. Under the pupilage of her grandfather and her mother she has been taught to consider her father as a stranger, and to shun him as a bad man. They have striven to alienate the affections of the child from the father. The grandfather was insane upon this subject, and the whole course of the mother compels the inference that she is actuated by other motives than pure maternal affection. She did not rear Alice. At a critical period of her life she was under the care of doting old grandparents, by whom she was taught to detest her father, and to believe he would, some day, seize her and carry her off to Iowa. This, I understand, is the excuse for failing to send her to a neighboring school. Whilst with her grandparents she saw nothing of the world save as it was exhibited to her within the circumscribed limits of her grandfather’s and stepfather’s humble homes, where her education has been neglected and nine hundred dollars of her small pittance appropriated to her support, notwithstanding the alleged promise of her step-father to take her as one of his own family. Alice is now fast approaching her majority. She is at an age demanding, most imperiously, a father’s care. The question is fairly presented, what is best for the interests of this child, present and prospective, a residence with her father, to be educated by him, and under his control, and be made the heiress of his large estate, or, nominally under the control of her mother, but really under the control of her step-father, destitute of natural affection for her, and whatever element of that nature maybe in his composition, divided between the children of his first wife, and those, four in number, by appellant, with a scanty income ?
Experience and observation alike teach us there is not and can not be, in the very nature of the relation, entire harmony in a family thus composed.
Who shall have the rearing and education of this child now approaching Avomanhood ? Who, in view of the present and the future—for.it is to these Ave must look—should have the care, custody and control ? A misstep now may blast bright hopes forever.
It is, I think, absurd to say, an uneducated child of immature years should decide this question. It can not safely be assumed she has sufficient judgment and discretion to decide for herself. The court must look from a higher stand-point and take a comprehensive aucav of the Avhole ground, and in doing so, I am at a loss to understand how the claim of the father can be so summarily disposed of as it has been.
It is said, it Avould be cruel to separate this child from her mother. Hoav inevitable is the separation, in some form, of parent and child ! The mother’s desires in this respect can not control. What is best for the child, under the proofs, is the dominant question, and I do not think a chancellor should hesitate a moment in decreeing as was decreed by the circuit court.
It is made a prominent point in the opinion, that the father intends to take the child to his home in Iowa, and that is deemed an insuperable objection to his petition. Some English cases are referred to in support of this ground, which have no application to this case.
The case of Dawson v. Jay, 3 DeGex, McNaughton & Gordon, 764, was, where an American maternal aunt, who had been appointed guardian by an American court, sought to take the child, a British subject, from England, out of the control of her paternal aunt, and remove her to the United States, and place her under the control of her maternal aunt there residing. The court would not allow this, as it was against the policy of that country to give any aid to the expatriation of its subjects.
Lord Cottenham, in Campbell v. Mackay, 2 Mylne & Craig, 31, expressed himself strongly on the injurious effects of a permanent residence of English minors abroad, and would not allow an infant ward of the court to be removed out of the jurisdiction of the court, except in a case of imperative necessity.
Chancellor Kent says, a court of chancery will not remit an infant, too young to choose for itself, and being a natural-born citizen, to be taken from a mother without her consent, to be delivered to an alien father to be carried abroad out of the country. 2 Com. 5 Ed. 210, note d.
It was held by the Supreme Court of New York, in Meroein v. The People, 25 Wend. 64, as the father had a better title to the custody of his minor children, in the absence of any positive disqualification on his part for the discharge of his parental duties, his alienism would not be a disqualification, and his right would be recognized.
It has been held, a court of chancery may make an order to restrain any of its wards from being taken out of its jurisdiction, if the court shall think it would not be safe to trust the ward beyond its jurisdiction. The court will always act for the benefit of the infant. This is the paramount consideration.
As was said by Lord Mansfield, in Rex v. Delaval, 3 Burrow, 1434, the court must judge upon the circumstances of the particular case, and give their directions accordingly. There is no.rule of the British chancery, or of the law courts, which prohibits a guardian by nature from taking his infant children when he pleases, nor does such a.rule prevail in any country.
Miner v. Miner, 11 Ill. 43, is cited and relied on to sustain the proposition that, in no case, will a court of chancery permit a parent to take his child, who may be a ward in chancery, out of the jurisdiction of the court. The reason given for the ground assumed by the court, does not exist in this case. The court say, while the custody of the child is given to the mother, the father must not be wholly deprived of its society, but must be allowed access to it on all reasonable occasions. In that case, decided in 1849, it was the intention of the mother to take the child to her father, in the State of New York, distant a thousand miles from the court, and no facilities for intercourse, there not being any railroad communication with the West. The father was virtually denied access to his child should the intention be carried out. This was a right of which he should not be deprived. It was on this ground, the court said, a removal from the State could not be permitted. Nothing is said or intimated that, by so doing, the court would “abdicate its' functions,” but it is placed on the ground the father would be deprived of free access to his child.
I do not see why Iowa should be called “a foreign State,” in the sense of the English cases. It technically may be so, but it is contiguous to this State and of hourly access by railroads, affording to the mother such opportunities of seeing her child as her new and enlarged and paramount duties to her husband and his children will permit.
In Cummins v. Cummins, 29 Ill. 452, it appeared the father, residing in this State, by his last will and testament, appointed his brother, permanently residing in Indiana, the guardian of his infant child. This court allowed such guardian his expenses incurred in taking his ward to Indiana, there to be reared. Here was a tacit admission of the right of the guardian. If a testamentary guardian can do this, I can not see why the guardian by nature and for nurture should be prohibited from so doing.
To render appellee still responsible to the court, he has executed a bond with security, in a heavy penalty, to produce the child whenever demanded by the court, and to obey all orders of the court in regard to'her—which bond, if not'sufficient, can be increased by the order of this court. Should there be misconduct by the father towards the child, should he neglect her education or condemn her to servile employment, or permit his wife to tyrannize over her or misuse her, he is amenable, through this bond, to the court, and can not escape its judgment. It is said the laws and institutions of this State are the child’s birthright, and that her allegiance is due to this State. This idea has proved fatal to the prosperity of our southern sister States, and has deluged the land with blood, and piled up hecatombs of victims. It was supposed the blood poured out, and the thousand millions expended on this idea, had expunged it, for the present at least, from all our legal and political codes, as having no foundation. There is nothing in the institutions or laws of Iowa especially differing from our own, and in both States a female is of age at eighteen'. We ought not to be considered foreign States, in the sense in which that term is .used by the English judges and text writers. We are sister States, in close and friendly communion. The doctrine of the English chancery springs, in no small degree, from motives of public policy. It is well known the young heirs to large possessions and princely incomes were accustomed to be taken by their guardians to the continent, to France especially, there to indulge in all the extravagances of that country, expending yearly large sums of money, and imbibing ideas and forming habits unfitting them for their home duties. The courts were unwilling to lend their aid to such an object, but even then, in a case of necessity, they would grant the order. Campbell v. Mackay, supra. The rulings of the English chancery on this point have but little application to this case, our State being in close connection with Iowa, whose policies, institutions and pursuits are homogeneous with our own.
Alice owes no allegiance to this State, nor would she owe any to the State of Iowa. Allegiance is incompatible with the right of expatriation, a right of which no citizen can be deprived. Whilst residing in a State, all are bound to obey the behests of its constitution, and conform to the requirements of its laws, and this is the extent of the political obligation.
It is said, the child has an aversion to her father. Who has inspired and encouraged this sentiment in her bosom ? She is young, credulous and ignorant—the spoiled child of a foolish old grandfather. It is apparent no act of the father toward her has inspired it. Before he ever saw her he settled two thousand dollars upon her, for it is manifest the decree of the court was, in this respect, a matter of arrangement, and he desires now to lavish upon her, in the most profuse prodigality, all a father’s love, to pour out upon her not only that treasure, but make her the heir to his vast possessions. Were she not under the influence of her mother, aggravated by the teachings of her grandfather, and had a competent judgment, can it be doubted how she. would decide? Ho argument should be urged against appellee, drawn from the fact, whilst she was unborn, he, without any explained cause, separated himself forever from her mother, and thus became a stranger to his child. It may have been the most meritorious act he could have performed. It is not shown or pretended, he, at any time, treated the mother with the slightest unkindness, that he ever spoke to her an angry word, that he has violated any of the commandments or strayed from the path of sobriety and decency, or that he has wanted in due respect to her, other tha'n his voluntary separation ; and who will tell the cause for that separation ? He has lisped no word of blame or censure upon the mother of his child, proclaimed to none his suspicions, pointing not to her as the one “who wing’d the shaft that quiver’d in his heart,” but, confining his secret to his own bosom, having no tongue to express his own feelings, he has proceeded calmly and resolutely on his way, built up a high and enviable reputation, gained the confidence and esteem of all who know him, amassed large wealth, and now comes, with no charges against any one, with no recriminations, and prays the court he may be permitted to lavish his parental love and his wealth upon this his only child, and bécome, in act and deed, her father and her friend. If he has wronged the mother—and who shall say ?—he earnestly desires to make full reparation through the offspring, and brings with him a precious offering.
The majority óf the court are of opinion, the best interests of the child demand she should remain where she is, and this is the mother’s wish. Is there no selfishness in this? Can the mother really love the child whom she forbids the acceptance of such an offering? Should she not deem herself fortunate in being the instrument in such a cause to bring father and child together, loving and to love each other? Would not the act be in full accord with Christian precepts, and greatly redound -to the future happiness of all? Appellant has, at no time, accused appellee of any other wrong than abandonment—a fine theme for rhetoric—but he did not abandon her to want; and if it was wrong—and who shall say?—he now desires to right the wrong, by taking to his heart and home a child for whom he has the strongest parental affection.
That appellant has capacity to teach this child to cook, to wash, to scrub the floor, and nurse her younger half-brothers and sisters, not one bearing her name, may be true; but are these the height of woman’s aspiration ? She may manage her children and step-children, and bring them up' as Alice has been : ignorant and uneducated; but does that prove her family is the best place for this child ? The very fact that different sets of children compose the family, is a strong fact against her being compelled to be a member of it, even if it be her choice. She has not sense or discretion enough to know any better. In view of all the circumstances, may it not be asked if some unworthy sentiment does not prompt this unreasonable opposition of appellant? Is she unwilling her daughter shall move upon a plane more elevated than she herself occupies, or hold a higher social position ?
But it is not pecuniary considerations alone which influence my judgment. There are others, more weighty. Placed under her father’s care and protection, at her age, there will be bestowed upon her a finished education, in which “playing the piano and organ” will doubtless be included, and be surrounded by all the good influences which aid so much in the formation of the female character, fitting her for the sphere in which she will move, and of which, under his auspices, she may become a distinguished ornament.
Mo one has breathed a breath against appellee or against his present wife. They are both shown to be eminently qualified to discharge the duty the father beseeches the court to impose upon them, and as security, if such were necessary beyond the love of a father, that he will not abuse the trust, a bond in a heavy penalty has been executed, which, if not deemed sufficient, can be increased by this court.
In looking over the record, I do not think any prejudice should be excited against appellee, because of the efforts he made in the company of her guardian, and with the consent of the mother, to see the child, when she was with her grand-i parents. He only desired to see her and talk with her, (she having before that time said to him, she would go to him when she became of age,) to convince her that the time had come when she should be educated. He protests in his examination that he never thought of using force to take her away, but to take her only with her free consent to go. Force was not dreamed of, and none ivas applied. The insatie grandfather was much excited, and prevented appellee from exercising a right fully guaranteed to him, the divorce notwithstanding. Miner v. Miner, supra.
The doting old grandfather was apprehensive he was to be robbed of his child, and opposed every effort made by the father to see his child. During the years she was most impressible, she had been under the unfortunate influence of this old man, and when asked in court, her mother, her step-father and appellee present, whom she had been taught to dread, what other reply is it to be supposed she would make than the one she did make: that she did not wish to go to her father—that he was a stranger to her. She had just heard her mother testify she had not seen or heard from him since the separation. Well might she say he was a stranger, though undeniably he was her father, and sought to be her protector and friend, lavishing upon her one of the dearest of all gifts: a father’s love.
The facts do not show he is a rude and an unfeeling man. The only charge against him is, that he separated from appellant without assigning any cause, and was therefore subject to the provisions of our law of divorce, of which appellant availed so soon as the two years elapsed. Who can tell how much anguish he may have suffered when impelled to leave the mother ? Who knows the cause ? Who will ever know ? He does not recriminate, if he has reason. Do we not all remember the history of one of the greatest and best men this country has ever produced, who, when Governor of a great and flourishing State of this Union, just united in marriage to one of her fairest daughters, left his home, his honors, his office and his friends, and sought refuge in the wilderness of the South-west, leaving the world to wonder"? He never disclosed the cause—the secret died with him. Is his reputation less dear, less highly appreciated on this account? Was the cause known, his abandonment might be regarded as the noblest act of his life.
Appellee has shown he has a feeling heart, for when the divorce suit was pending, he consented to a decree which gave appellant one thousand dollars in cash, and to the child two thousand dollars, and he not then rich, which, with the interest thereon, is all the means she has, as I understand the case. Out of this, or the interest on it, her grandfather received for her maintenance one hundred dollars a year, notwithstanding the alleged promise of the step-father to take her into his family as one of them.
The chief matter to be regarded by the court, all the authorities say, is the good of the child. 2 Bish. on Mar. and Div. 633. The books are full of this doctrine. How is it possible for a girl of the age of Alice, reared as she has been, to know what is most for her good ? She decides without judgment, and has no capacity to consider- the effect of her decision. It is a question in which her present and future welfare is deeply involved, and to say that an ignorant girl of fourteen ought to decide it for herself, is saying too much.
Here is presented a case, where the father, whose right at common law overrides that of the mother, a man of most unquestionable morals and conduct, of high standing in society, of great wealth, achieved, not in “'the civil war” by thievery and fat contracts, but by his own talents and industry, with no child but this, entreating the court tó be permitted to have her in his custody and control, to educate her, to introduce her into that society he will fit her to adorn, with the certain prospect, if she is filial and dutiful, of making her the sole heiress of his large possessions. In opposition, we find the mother again married, to a widower with three children by a former marriage, with four more by appellant, and the prospect of an increase, possessed altogether of a bare competence, and the step-father under no legal obligation to give her house room, to educate or to provide for her, whose education has been sadly neglected, and whose mother’s sole ambition seems to be to make this child a convenient household drudge. Looking upon this picture, then upon that, should a court hesitate to say that it will be for the good of this child she should be placed with her father ? If the mother has a natural right to the custody, it has been held by respectable courts that it is lost and disappears when she has, by a second marriage, surrendered that legal discretion which is necessary to render the parental control of any benefit to the child. The State v. Scott, 10 Foster (N. H.) 274; Worcester v. Marchara, 14 Pick. 510.
In the case of this child, parental control is lost in the superior authority of appellant’s husband, who is the head of the family, and who may subject her to all the indignities a rude step-father is so potent to inflict.
In the exercise of a sound legal discretion, the circuit judge, knowing the parties, having them and witnesses before him, modified the original order, and committed the child to the care of her natural guardian, one in every way well qualified for the trust, and I agree with him, believing, from all that is shown in this record, that appellee is fully competent and willing to develop the virtues and promote the happiness of his restored child, relying for those purposes more upon the efficiency of parental love than upon the power of parental authority.
It seems to be objected, that the father did not come into court and make an irrevocable provision for the child. Should this be required ? Her present guardian, Mr. Prunty, testifies she will inherit from her father eighty or one hundred thousand dollars. This is to be understood, if she survives him and is filial and dutiful. Is this expectancy unworthy the consideration of a chancellor ? All courts regard this as of value, and so should we. This expectancy might soon become reality, as the father is advanced in years.
Stress is laid on the relation in which this child is supposed to stand as a ward in chancery, and it is said to permit her to be carried beyond the jurisdiction of the court would be an abdication of the functions of the court. I have read of such a relation, but in all my experience I have never known it to be practically enforced in this country. Nothing of this kind was intimated in Miner v. Miner, supra.
But the case is closed. By the edict of this court, the doom of this child is forever sealed. The mother and the child may live to regret this blighting of a prospect so replete with all the elements conducive to human happiness, and which dawns upon very few. Both may weep bitter tears of regret, the more bitter and the more agonizing because they will be unheeded and unavailing.
My judgment is, the decree of the circuit court committing this child to the care of her father was correct, and should be affirmed.
'This case properly belongs to the January Term, 1874, at which time Mr. Justice Breese was Chief Justice.