(dissenting). If this were a mere difference of opinion on questions of fact legitimately in issue before us, I should probably not care to do more than indicate that I did not agree with the majority of the Court. But the case is one where the doctrine on which the majority opinion rests is, in my opinion; not in conformity with the fundamental principle that personal rights and liberties cannot rest on the uncontrolled discretion of courts or magistrates, and that legal rights cannot be lawfully disregarded. The only facts legitimately in issue are not, I think, open to any very serious difference of opinion. Laying aside irrelevant matters, upon which, however, I do not think respondents stand in any superior position upon the burden or results of the testimony, I cannot think there should’ be any doubt on relators''rights before us. And to reach any result favorable to the defense, we must disregard our own previous action, which I will briefly refer to.
The father of this child, who is still of tender years, and legally incapable of being entitled to choose her own guardians or custodians, applied to the circuit court for the county of St. Clair, and was granted a halms corpus. That court allowed respondents to introduce whatever testimony they chose,' and they got in a large ■ mass of what was treated as testimony, and the court, instead of *195exercising its own duty in deciding upon the question of custody, left the whole to be dealt with by a jury, and the jury finally decided in favor of respondents. This ■Court issued a habeas corpus as, an act of original jurisdiction, and, holding the circuit proceedings as having no effect here on the inquiry, directed the parties to take testimony, and confined the issues within certain limits. These were not allowed to include the scandalous aspersions on the husband and his dead wife concerning their marriage. The record shows just how far the issues were alloAved to be made up, and they did not include a very large share of the matters included in the circuit stenographer’s minutes, which are not evidence here, and could only be made so to the extent agreed on by the parties. Much of it is irrelevant, and all of it is inadmissible, except as made so in this Court.
Some testimony was taken, and on the final hearing the then Judges of this Court divided in opinion, but in so doing ordered that nothing in the record should prejudice any future application in any way whatever. It is unfortunate that, as was then usual, nothing was filed to indicate on what we differed. But there could not at any rate properly be differences on issues not before us.
The father died, and in his will appointed his father ■and mother testamentary guardians. The will was proved in the District of Columbia, where both parents had resided, and which Avas in law the infant’s domicile. Those guardians noAv seek to recover the Child, and are opposed by the maternal grandfather and grandmother, who have got out letters from the probate court of St. ■Clair county, which is the county in which they detained the child against the will of the father, and in fraud of the agreement by which they got possession of her.
When this Court issued the present writ of habeas corpus, the only issue which we ordered to be passed upon was *196the fitness of the testamentary guardians to have custody of the infant. I do not understand on what principle any other issue is before us. Neither do I see that any other inquiry was legitimate in any legal point of view.
I do not propose to consider the wishes of this child in the matter. She is too young to have any intelligent judgment, and is not entitled in law or in common sense to select her custodians. That she is prejudiced as far as. so young a child can be against her father and his parents,, is the necessary result of the sedulous efforts of her present keepers; and it could not be otherwise. To allow feelings thus cultivated any respect in such a controversy is to encourage what ought to be reprobated.
If we had any right to appoint guardians for this child, which is not a power the law has given us, and if the two sets of grandparents were candidates for that position, I am not prepared to say that, so far as social and personal respectability is concerned, the Michigan grandparents are not in perfectly good standing, and able to bring up the child, and kindly disposed to do so. There is nothing against their personal character.
On the other hand, the testimony is equally clear from witnesses of* as high a character as a^body in Washington, where they have lived and been known a great many years, that the grandparents there stand just as well as respondents, are socially thoroughly reputable, and identified with religious associations of the best kind, and are-in all respects'worthy and esteemed members, of society. The witnesses who know them are themselves well known, and beyond reproach. The place-where they live is not. a new domicile. The idea that their witnesses cannot be supposed to know what they swear to is not one which we-have any reason or right to assume. Unless these persons are affirmatively shown to be unfit to have charge of such a child, they have prevailed on the only issue which he *197■ordered to be tried, and should recover possession of her. That they are fit is clearly established, unless we disregard unimpeached testimony, which stands unshaken. Respondents, in their answer, have set up calumnious charges, which they have neither proved nor attempted to prove. We have no right to let the fair fame of any one be impeached by our decision without satisfactory proof. The proof is* the other way.
I cannot conceive any legal justification, under such circumstances, for refusing to put this child’s custody where it belongs, both by the laws of Michigan, if they apply, and by the laws of the United States, which are “to the same purport, namely, that the surviving father may appoint testamentary guardians for his children.
There is and there can be no rule which leaves any •court unqualified power, at its own will, to abolish the rights and incidents legally springing out of the family relation, and to disregard the positive rules of the statutes. No rule is better settled than that the domicile of a child must always be where the father’s domicile is; and our laws recognize the father’s absolute right to .appoint a guardian.
When such a power has been exercised, those courts which have gone furthest in assuming a very doubtful ■discretionary power in violation of the rights at law have limited interferences with legal guardians to cases where they cannot safely be trusted. The courts thus far have not ventured to hold that their rights can be held subject to the unlimited discretion of judges, or interfered with unless their own conduct has forfeited them. And Lord Eldon, who is notorious for having stretched' this power to extreme limits, and acted on very peculiar notions of what were proper conduct and opinions, himself declared it was no part of the function of courts as such to use it. In De Manneville v. De Manneville, 10 *198Ves. 52, a case which has not met with much respect for its stretch of power, he expressly decided that the court of king’s bench, which is the highest of the ordinary common-law courts, could not interfere to deprive a father of his child’s custody by the exercise of—
“Any of that species of delegated authority that exists in the king, as parens patrim, and resides in this,court as representing his majesty.” Page 59.
He himself did not treat this power as one which could be exercised except on an original chancery proceeding, and such is the view of the best writers on the subject. 2 Story, Eq. jur. § 1351; 3 Pom. Eq. Jur. § 1304. But that peculiar discretionary power, whatever it may have been, that belonged to the king, and was exercised by an implied legal deputation, as in the case of charities, has never been, regarded in America as a part of the judicial power properly so called or vested in any court, except where it has been done directly by the action of the legislature. It is very certain that we have no original chancery jurisdiction. We have only such powers as the Constitution gives us. Neither Constitution nor statute has given us this; Neither have we any power to determine by our discretion that the custody of a child may be placed where we see fit to place it. Any such power, as pointed out by Judge Bronson, in Mercein’s Case, 3 Hill, 399, would destroy the family relations entirely. There are many childless people who might very possibly be better parents than those who have children, and any doctrine which would sustain the views of my brethren in this -case would authorize us to make a new distribution of children, and deprive them of their homes. The children of our State are not in the position of children of the people, and this Court is not the arbiter of their destines as such, and it will be a sad day for our civilization *199when they are so treated. If the family is not respected, there will be no hope for the State.
Respondents, among other things, set up that just after the child’s mother died the father turned over the infant to the maternal grandmother, and relinquished his own rights. I do not think there is any foundation for this claim.' That he allowed her temporary charge is not disputed. But he always insisted on keeping her, and Mrs. Shaw gave him a positive agreement to return her before he would let her take the child back. This she now claims she resorted to as a subterfuge to get possession. There could have been no need of deceit if there was any valid agreement. Courts in Washington have full power over all matters arising there, and if such an agreement was made, and was valid, it is not presumable they' would not do justice. But I think that if the agreement was made, which I do not believe, it was utterly void. Mrs. Shaw, as a married woman, had no power to make such a. bargain, and it could not be enforced against her. But,, further than this, the relations between parents and children cannot be changed without legal authority. The father’s duty to his child and to the public is fixed by public policy as indissoluble, except in the few cases provided by statute. An agreement, with or without consideration, to give up a child to any third person, even a. near relation, cannot hind any one. The child cannot consent to it. The parents’ duty cannot be shaken off. It has been recognized as void on plain grounds of public policy. See Reg. v. Smith, 16 Eng. Law & Eq. 221. Also Kennedy v. May, 7 Law T. (N. S.) 819, cited 2 Story, Eq. Jur. § 1317 (c). In this latter case there was a written agreement between competent parties, a father and a, widowed grandmother, but it was held void and illegal.
In cases of adoption, when allowed by law, the infant’s rights are carefully protected, and so in apprenticeship. *200But in such a case as tbe present, had the father lived, and Mrs. Shaw died, it is manifest that the infant must either go back to a father whom she has been taught to hate, or be without any responsible protection. The relation would be as effectually broken' up for all the usual family ties as if it had never existed.
There is one feature of the controversy which cannot be ignored. From the beginning of this dispute until now respondents have done all that was in their power, not only to keep the child, but to blacken the character of its father and his parents, and in doing so have made atrocious charges, affecting to some extent the mother also. I think the testimony of this man's character where he was best known, and the proof of his official as well as personal standing, indicate that the whole charge against his life in Washington is unfounded, and a cruel slander. But whatever may have been the imagined policy of it when he was living, it ceased when he died, and left representatives who are certainly good people. 'If this infant remains where she is, the result of this proceeding and the broadcast and unproved imputations set out in the record cannot fail hereafter to fix a stain on the child herself, and make her ashamed of her parentage. I do not think such conduct is excusable, even in the desire of these persons to retain-a child whom they love, and no doubt wish to befriend. The consequences are cruel, and, if the child grows up with the natural feelings of humanity, will give her very bitter memories.
In the present case the guardians appointed by the District of Columbia court applied to the proper department for the money due the estate from the government, and after a careful investigation the Interior Department sustained their claim as against respondents. I do not regard the property question as one of primary importance, but it is after all the only estate which this child is at all *201sure of having. But when we attempt to practically annul an appointment depending on the laws made by Congress to govern the District, not because it is- illegal, but because we think we can make a wiser arrangement than that which the will and the law made, we, in my opinion, are usurping authority, and doing injustice.