Mother Makes Habeas Corpus Petition for Custody. Judge Unable To Rest on His Pillow

From the New York Times, August 31, 1865

A case of considerable interest, involving the care and custody of a child, was yesterday brought before Mr. Justice SUTHERLAND, sitting at Chambers and Special Term of the Supreme Court. The matter came up by way of the usual petition, and a writ of habeas corpus, which was granted thereon. …The following is a brief [report].

Between five and six years ago an unmarried woman named Martha Brady made application at the house of one Andrew Leckler, in the upper part of this city, for relief. The weather was inclement, night was at hand, the applicant appeared almost famished, was poorly clad, and, moreover, she had in her arms a female child, aged about five months, which seemed to be suffering for want of the necessaries of life.

Mr. Leckler and his wife took them in and fed them. Their first idea was to give the mother and child a little temporary relief. Upon inquiring more particularly into the condition of the unfortunates, they learned that Martha was desirous to get a situation in a respectable family where she could keep her child with her.

An arrangement was accordingly made whereby the mother was to perform service for Mr. Leckler’s family, and the child was to be cared for and supported by them.

Soon after, it seems, Martha voluntarily resigned to Mr. Leckler all right and claim whatever to the child, and the latter was adopted and taken into the family. From that time she was treated the same as Mr. Leckler’s own children. She received the name of Theresa, and the son and daughter of Leckler regarded the child as their little sister.

She is an interesting girl, and all the family have become very much attached to her. Things went on smoothly enough until quite recently. Some Catholic priests have visited the mother of the child, and urged upon her the importance of having her placed under Catholic influence, so that she may be educated in that faith.

The mother is a Catholic, but Mr. Leckler and family are not of that religious faith. The foster parents being unwilling to surrender the child when application for that purpose was made to them, the next step was to employ counsel to obtain a writ of habeas corpus, have the child brought into court, and the rights of the respective parties ascertained.

Mr. and Mrs. Leckler, their two children — a son and daughter somewhere in the “teens” — and the little girl in question, were all in court, and excited no little attention. From their appearance and conversation, we judge them to be a well-educated family.

The little one was very neatly dressed, is highly intelligent and interesting for one of her years, and seems sincerely attached to her foster parents.

After the reading of the petition and the answer thereto of the respondents. Mr. Justice SUTHERLAND, in order to better inform himself as to the facts of the case, called the mother, Martha Brady, to take a seat on the stand. She was not sworn, but in answer to questions put to her by the court, she stated substantially as follows:

The child is about five years old; it has been with Mr. Leckler since it was five months old; I have resided a long time in that family; they have always treated my child the same as they did their own; they dressed it well and took good care of it; it could not be better taken care of; I was never married; I have been in the asylum for several months; I do not want the child myself — I cannot take care of it; but I want it placed in the Catholic Orphan Asylum where it can be educated in my own religious faith.

Mr. Leckler and family are not Catholics. I do not take into consideration the temporal welfare of the child when I ask to have it removed from its present home; its temporal prospects are all that could be desired; but it is the spiritual welfare of my child that I am looking out for. I regard it as a religious duty to take it away from Mr. Leckler’s influence; the child is there taught things which she ought not to be taught.

After the above statement was concluded, the court called Mr Leckler who, being sworn, testified that Miss Brady came to his house something over five years ago, in a destitute condition; she had her child with her, and asked for some relief; his family took her in, supplied her wants temporarily, and inasmuch as she seemed steady and disposed to earn her living, they subsequently employed her, with the understanding that witness was to have the child, and bring it up and educate it as one of his own children; after a while the mother became insane, and, with great reluctance, he had to solicit a place for her in the asylum.

The court asked witness where he lived, what his occupation is, and if he had abundant means to support and educate the child. Witness said he lived in West Twenty-eighth-street, this city; that he was a produce merchant; he had two children of his own, who were then in court; and that he was abundantly able to rear and educate the child.

He further said that it was true he was not a Catholic, nor were any of his family, but that for some time past he had sent the child to the Catholic Church with his servant, so that the Catholics could not say that he was inculcating notions of the Protestant faith in the child’s mind.

A Catholic priest had visited him upon two occasions in reference to the surrender of the child. He was willing the girl should go and be taken care of and educated in any good and respectable family, notwithstanding the fact that the little one regarded himself and wife as her real parents; was very much attached to them and they were to her.

She was in fact the daughter of nobody so far as the father was concerned — she was an unfortunate waif thrown out on the world, and he and his wife had claimed her as their child with the consent of the real mother.

Mr. Brown, counsel for the petitioner, then undertook to make an appeal to the sympathies of the court. He said here was a case of a mother coming into court and asking to have the care and custody of her own offspring; asking to have that to which she was entitled by the laws of nature, of God, and by the laws of all civilized nations — yea, and by the customs of nations the most rude and barbarous. Counsel was going on to enlarge upon this point, when the Judge cut him off by saying:

This was not a case where an appeal to one’s sympathy could properly be made. If the mother of this child wished to have it, in order that she might train, educate and support it herself, he would not hesitate a moment; he would order it into her custody at once, and he would feel that he could not rest on his pillow at night if he made any other or different order.

But the mother did not want the child; in fact, she was not in a condition to support and educate it if she had it. The Judge said he had been careful to inform himself on these points; it was for these reasons that he had called the mother to the stand. In her examination she had stated that she did not make the application to have the child taken from its present home on account of its temporal welfare, but that her solicitude was purely and wholly with regard to its spiritual education and welfare.

She wished to have it placed in a Catholic institution, to the end that it might be brought up in that faith. The court said that these institutions were the means of great and permanent good; he would not say a word against them, and their beneficence was not called in question here. By the Constitution of the United States, and also of the State of New York, the religious faith of persons could not be called in question.

The court had no right to take cognizance of anything beyond the temporal [worldly] welfare of the child. Under all the circumstances of the case, he thought that, for the present, the child must continue where it is; the mother to be allowed to visit it, at least as often as once a week; he therefore directed that an order be entered accordingly.

A version of this appears in print on August 31, 1865, on Page 2 of the New York edition.