Commonwealth v. Addicks , 5 Binn. 520 ( 1813 )

Tilghman C. J.

We have considered the law, and are of opinion, that although we are bound to free the person from all illegal restraints, we are not bound to decide who is entitled to the guardianship, or to deliver infants to the custody of any particular person. But we may in our discretion do so, if we think that, under the circumstances of the case, it ought to be done. For this we refer to the cases of The King v. Smith, 2 Stra. 982, and The King v. Delaval, 3 Burr. 1436. The .present case is attended with peculiar and unfortunate circumstances. We cannot avoid expressing our disapprobation of the mother’s conduct, although so far as regards her treatment of the children, she is in no fault. They appear to have been well taken care of in all respects. It is to them, that our anxiety is principally directed; and it appears to us, that considering their tender ,sige, they stand in need of that kind of assistance, which can .fee ¡afforded by none so well as a mother. It is on their account, therefore, that exercising the discretion with which the ^aw has invested us, we think it best, at present, not to take them from her. At the same time, we desire it to be distinctly understood, that the father is not to be prevented from seeing them. If he does not choose to go to the house of their mother, she ought to send them to him, when he desires it, taking it for granted that he will not wish to carry them abroad, so much as to interfere with their education.