"OPINION,
`I have given to this case my most careful
attention; and it is one of great difficulty.
Having regard to the questions put to me, I
think—
"1. Section 56 of the Act of 24 and 25
Vict., c. 100, appears at first sight to be
directed against the stealing and abduction
of children for marriage, or other improper
purposes. It provides that `Whosoever shall
unlawfully, either by force or fraud, lead or
take away, or decoy, or entice away, or
detain any child, &c., with intent to deprive
any parent, &c., of the possession of such
child'—shall be guilty of felony. It is perfectly
clear, that in the case before me, the
infant was not, `by force or fraud, led or
taken away, or decoyed, or enticed away.'
The statute; however, uses the word `detain;'
and this, it appears to me, has much
the same force and intention as the previous
words. It is to be noted, however, that it is
separated from them by the disjunctive `or;'
and, therefore, it might be argued with some
plausibility that any act of forceful or fraudulent
detention, after notice, by persons who
have originally acquired a child's custody in
a lawful way, came within the section. The
point is new, and of great importance;
and if the Protestant Detectoral Association
feel disposed to try it, they would do so under
favorable circumstances in the present case.
Should they decide to do so, a written demand
should be served upon the authorities
of the convent, by the mother, or some
one acting on her behalf, to give up the
infant.
"2. The second question is also involved
in difficulty. Were the father to be joined
in the proceedings, the writ of Habeas Corpus
would be the correct remedy. But his
probable refusal necessitates the inquiry
whether the mother can alone apply for the
writ. The general rule of law is, that the
father is entitled to the custody and
disposition of his children. In Cartlidge and
Cartlidge, 31, L. J., P. M. & D. 85, it was
held that this rule would not be generally
departed from by the Divorce Court; but in
Barnes v. Barnes, L. R. I, P. & D. 463, the
court made an order, giving the custody of
two infant children to the mother, respondent
in a suit for a dissolution of marriage, on the
ground that the mother's health was suffering
from being deprived of their society, and that
they were living with a stranger, and not
with the father. These cases were, however,
in the Divorce Court, and do not apply. But,
as there seems to be much ground in the
peculiar circumstances here, for arguing that
the mother should have the custody of the
child, or, at least, that it should not be left to
that of persons of a different religion from
both parents, an application might be made
to the Queen's Bench to try the question.
"3. Should the common law remedies fail,
resort may perhaps be had to the powers in
Chancery under Talfourd's Act, but on this
point I should like to confer with an equity
counsel before giving a decided opinion. It
has been decided under this Act that the court
has power to give the custody of children
under seven to the mother. (Shillito v.
Collett, 8, W. R. 683-696.) As this infant is
but six weeks old it comes within that case.
"4. I have no general advice to give on
behalf of the infant.
"ADOLPHUS STIGMA,
"9, Plumtree Court.''
