Majority
p. 80In the Matter of Jane N. Wollstonecraft, an Infant. July 26th, and August 3d.
Headnote
Where an infant is brought up on habeas corpus, the court will inquire whether he is under any illegal restraint, and if he is so restrained, will set him at liberty; but if there is no improper restraint, the court will not, in this summary way, decide upon the right of guardianship, or deliver over the infant to the custody of another.If the infant is competent to form a judgment, and declare his election, the court will, after examination, allow him to go where he pleases; otherwise, the court will exercise its judgment for him.
HENRY moved for the allowance of a habeas corpus to bring up the body of the infant, alleged to be detained wrongfully by Henry Garrison, of Philipstoum, in Putnam, county, or by Sally Wollstonecraft, the mother of the said infant, or by Joseph T. Jackson, of Fishkill, in Dutchess county, or by one of them. In support of the motion, he read the following papers :
1. An affidavit of Richard Hall, of JYew-Ipswich, in the state of New-Hampshire, stating, _that on the 21 tti of May, 1818, the infant was placed in his family, and under his care, by Nancy K. Wollstonecraft, the widow of Major Charles Wollstonecraft, late of the city of JYewOrleans, deceased, father of the infant. That the infant was then in the twelfth year of her age, and was placed with him in pursuance of the instructions of Alfred Hennen, of New-Orleans, a counsellor at law. That the infant was a daughter of Charles Wollstonecraft, by Sally Garrison, his former xvife, and from whom, after the birth of the infant, he was legally divorced, by the competent authority, in Louisiania, where they were domiciled, and lived, at the time of the birth of the infant, and until the time of the divorce. That the divorce was on the 28th ' / of February, 1811, and Charles Wollstonecraft died in Sep
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tejnber, 1817. The divorce was granted at the instance of the said Charles Wollstonecraft, for the cause of adultery com-mi tied by his wife, Sally W., with one Harris, and with divers other persons. That the said Sally, since her divorce, and for about tivp years before, bad no intercourse with the said infant. That since the decease of Charles W. she has made divers attempts to obtain possession of the infant. That Charles W. and Nancy K. W. were married in 1812, or 1813, and lived together until his death, and the infant lived with them. That the said Nancy had the care of the infant, from the time of her marriage with Charles W. until the infant was placed under the care of the deponent. That Charles W., by his will, ga%re one half of his estate to the infant, and appointed his wife Nancy her testamentary guardian, and enjoined her to secure the infant from any intercourse with her mother. That Nancy K. W. resigned her trust, as guardian, and procured Alfred Hennen, to be appointed guardian, by the competent authority in Louisiana. That she brought the infant to New-Hampshire, and by virtue of the authority of Hennen, placed her under the care of the deponent. That on the 28th of August, 1818, Sally W., with the assistance of Joseph T. Jackson, forcibly took away the infant, and brought her into this state, and that she is now detained by the said Joseph, at his dwelling house, in Fishkill, or by the said Sally, or her father, Henry Garrison, at his dwelling house, in Putnam county. That the defendant was the agent of Alfred Hennen, the legally appointed guardian, who seeks possession of his ward.
(2.) A letter of Alfred Hennen, dated New-Orleans, 8th of May, 1819, .directed to R. H. the above deponent, instructing him to apply personally, for the possession of the infant, and sending him 1,000 dollars, of which 600 dollars were to be applied agreeably to the instructions of Nancy if. Wollstonecraft, the second widow, and the other 400 dollars, to be applied by him for the expenses of the infant.
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(3.) The instructions- of Alfred Hennen, dated New-Or-' leans, 28th of April, 1818, by which he put his ward, the said infant, under the charge and protection of the said Nancy, and directed her to proceed with the infant to New-England, and place her under the care of a clergyman, in s$me healthy, pleasant, and cheap residence in the interior, near an academy, where she might receive an education; and he thereby invested her with all his authority and control in respect to the infant.
(4.) The proceedings before the Judge of Probates, for the city and parish of New-Orleans, on the application of Mary Kingsbury, the said Nancy K. W., widow and executrix of Charles W. praying that a tutor and sub-tutor, to the infant might be appointed, and under which Alfred Hennen was appointed tutor to the infant, in April, 1818.
Let the writ issue.
On this day, Joseph T. Jackson, on whom the habeas corpus was served, brought up the infant, and returned that the infant was placed in his family, and under his protection, by her mother and guardian, Sally Wollstonecraft, and with the approbation of her grandfather, Henry Garrison and it appeared by a document accompanying the return, that Sally W. had been appointed guardian of the person and estate of the infant, by the surrogate of the county of Putnam,, on the 19th of March last. The return being read and filed;
examined the infant touching her situation and wishes ; and thereupon observed, that the object of the court was to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another. That the course and practice of the courts in these cases was only to deliver the party from illegal re
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straint; and if competent to form and declare an election, then to allow the infant to go where she pleased, and if the . ° 1 . infant be too young to form a judgment, then the court is to exercise its judgment for the infant. That in the case of Rex v. Johnson, (1 Str. 579. 2 Ld. Raym. 1333. S. C. and 3 Burr. 1436. S. C.) the infant was so young as to have no judgment of her own, and the court delivered the child over to the party suing out the writ; but that case was afterwards overruled in Rex v. Smith, (2 Str. 982. 3 P. Wm. 155 note.) The practice sufficiently appeared from the cases of Rex v. Clarkson, (1 Str. 444.) Ex parte Hopkins, (3 P. Wms. 151.) Rex v. Delaval, (3 Burr. 1434. 2 Cox, 242.) Matter of M‘Dowles, ( 8 Johns. Rep. 328 .) and Matter of Waldron, ( 13 Johns. Rep. 418 .)
The following order was, thereupon, entered:
“ The above named J. JY. W. being brought up before the Chancellor, by Joseph T. Jackson, upon a writ of habeas corpus, heretofore awarded in this case, and being examined, and appearing to be of the age of thirteen years, or thereabouts, and declaring herself to be of that age, and that she was unwilling to be delivered up to Richard Hall, on whose behalf the writ of habeas corpus was awarded, and that she wished to remain under the care, and in the custody of, her ; mother and Joseph T. Jackson, who married her aunt, and under whom she was placed by her mother, and she appearing to be of competent judgment to make a choice, Order ed, that she be restored to the custody of Joseph T. Jackson, and of her mother Sally W.v-