I believe that, under the law and facts in this case, the appellant has the right to take his little daughter home and treat her as a member of his family. I think he has this right, because the God of nature has given it to enable him to discharge the duty he owes as a father to his child. Where a right emanates from such a source the one to whom it is given, if fit to perform the duty it imposes, cannot be rightfully deprived of it by the courts of any country. The law itself recognizes the right primarily of the parent to the custody of his minor child, and but re-echoes the voice of nature in the duty it imposes. The mother of the child being dead, the presumption is that its father has the right to its custody, and it devolves upon the party claiming adversely to it to show that it has been forfeited by him; that is, it must be proved the father is not a fit person to rear and nurture his own child. This must be shown by facts, and not by ethereal sentiment. State v. Deaton, 93 Tex. 247.
Even if it were proved — which was not — that appellant gave the child to appellees, it would amount to nothing, for the custody of a child is not the subject of gift or barter. A father cannot, by mere gift of his child, release himself from his obligation to support, nurture and educate it, or deprive himself of his right to its custody, which would prevent him from discharging those duties to his offspring that God has commanded him to perform and which the law cannot rightfully compel him to disobey. Washaw v. Gimble, 50 Ark. 351; Chapsky v. Wood, 26 Kan. 650; 40 Am. Rep., 32; Re Scarritt, 76 Mo., 565; 43 Am. Rep., 768; State v. Baldwin, 5 N.J. Eq. 454; 45 Am. Dec., 397; People v. Chegaray, 18 Wend., 637; People v. Mercein, 8 Page, 47; 3 Hill, 399; Mercein v. People, 25 Wend., 64; Brooke v. Logan, 112 Ind. 183; Jones v. Darnall,103 Ind. 569; State v. Nachtwey, 43 Iowa 653. Even the right of a parent's guardianship of the person of his minor child cannot be assigned so as to prevent the parent from revoking such an assignment. Cook v. Bybee, 24 Tex. 278; Byrne v. Love,14 Tex. 81. The law, as enunciated by the Supreme Court in State v. Deaton, 93 Tex. 243, is in perfect accord with the authorities cited from other jurisdictions. Therefore the idea that a gift by the appellant of his child to the appellee militates against his superior right to its custody should be laid out of view entirely, and the case determined by the law as it stands.
Theoretically the State, through its appropriate organs of government, is the guardian of the children within its borders. While this is true, in practice as well as in theory, still the principle that the natural right vests in parents to the custody and control of their children remains, and is only impaired when the welfare of society or of the children themselves come in conflict with it. When there is such a conflict the supreme right of guardianship of the State asserts itself for the protection of society and the promotion of the welfare of the wards of the State. Van Walters v. Board of Guardians, 132 Ind. 567; 32 N.E. 586.
In view of these principles, it seems to me that the question to be determined is, Does the evidence in this case show that the welfare of society or of Elise Peese demand that the State should withhold from the father the custody of his child and give it to the appellee? In considering *Page 44 this question I shall regard the welfare of the State and of the child as the same, for it is to the interest of the State that every girl within its borders should be so cared for as to bring her up as a good and useful woman, and it is best for every girl that she should grow into such a woman. No one can take the place of a good mother in bringing up and fitting a daughter for the duties of life; but the God who gave the appellant this child, in the gift, took from him his wife and her mother. Next to a good mother is a good father, for I believe the strongest, purest, holiest, the most devout and unselfish love that was ever planted in the breast of man is the love of a father for his daughter. It is a love too holy to be blighted and turned into grief by the law's taking her from his arms and placing her in the home of a stranger, where he is only allowed to see her by the courtesy of the court, among those by whom she has been taught to dislike him, and, instead of the endearing name of father, to call him "uncle."
If the evidence tended to show he were a bad man, or by misconduct had forfeited to the State the right which nature has given him to the care and custody of his child, I wouldn't say anything against the judgment of the court. But every syllable of the evidence shows that he is a good man — moral, upright, honest and industrious, and kind and affectionate to the members of his family. He has a farm and a comfortable home, and, from a pecuniary standpoint, is better able to take care of his child than the appellees. I believe, too, that the evidence shows that his present wife is a good woman. It is true — a lamentable fact — that, when she was about eighteen years old she was the victim of a seducer, and bore, as evidence of her love and misplaced confidence in the author of her ruin, a child. And the neighbors talk about her; people will talk. They have talked about Mary Magdalene for nearly nineteen hundred years, though she loved and was beloved by our Savior. Such is "the rarity of Christian charity" that the name of an innocent maiden, torn from her friends and companions and ravished by a Norman prince, is written in King James' translation of the Bible as the word harlot. Yes, people will talk, though few men, if as honest as of yore, can be found to "throw the first stone" at an erring woman. From the way I read the evidence, all the talk about appellant's wife is referable to the misfortune that befell her when she herself was more a child than a woman. Can society never forgive a woman "caught in the very act?" God has; and I think the law, administered by men, if it has any mantle of charity to spread, should spread it over a woman who has been betrayed by a man, and afterwards has lived a virtuous life, has married and made a good wife, and not, as though she were a moral leper, cry out "unclean! unclean" whenever she appears before its courts.
There is nothing in the evidence to indicate that Elise will be contaminated by being brought up in her father's family where she belongs; and I think her welfare requires that he should have the custody of her. As to what the law means by the best interest of the child, see Hibbett v. Bains, 78 Miss. 695; 29 So. Rep., 80.
Affirmed.
Writ of error refused. *Page 45