The opinion of the court was delivered by

The appeal is from the chancellor’s decree disposing of the custody of two infant children of the parties—Richard W. English, aged about eleven years, and Phebe E. English, aged about nine years. The litigants are husband and wife, and, since November, 1875, have lived separate. The wife, on removing from the domicile of her husband, took with her, to her father’s house, both children, and has since resided there, retaining their possession. The appellant, in January, 1879, filed his petition with the chancellor, setting forth the wife’s removal from his home without just cause; the taking and detention of the children without his consent and against his will; and prayed allowance of a habeas corpus to bring them into court, and the award of their cus-, tody to him. It is not alleged that the children are there *741against their will; that they are not properly cared for; or that the-mother is an unsuitable person to be entrusted with their care, except in respect to her dereliction in duty to her husband and home.

*741The respondent, by her return, admitted their custody, and produced them before the court. She alleges, in justification of her removal, abuse, by the husband, of marital rights, and fear of its repetition, if she returned to him, as her reason for continued separation. She charges him with attempts to regain possession of the children by fraud and force; and that, not through regard for them, but for the purpose of distressing her with fears for their safety, and thereby to coerce her to return to his abode. She alleges that the children are properly cared and provided for by her; that it is their desire and for their welfare to remain with her, and she prays that to her their continued custody may be decreed.

The appellant’s answer to the return denies any effort by deception, force or violence to regain possession of the children. He avers that the acts with which he is charged with respect to them, are greatly exaggerated, their true character being mere indiscretions in conduct arising out of uncontrolled affection for his children; or, that they were *742the result of accident. The answer admits that the children are so young that they require the attentions of the mother, yet he insists that they can be better cared for at his home than where they are.

*742The chancellor, upon the pleadings and proofs, decreed that the mother retain the custody of both children, and from that decree this appeal is taken.

The jurisdiction of the court of chancery to settle and dispose of the care and custody of infants, through a procedure like this, is established. The parties, in their litigation, have, by their pleadings and proofs, presented issues within the cognizance of that court, under its general jurisdiction as public guardian of the rights and interests of infants. Such jurisdiction is not, by the use of the writs of habeas corpus to bring the infants into court, cut down and restricted to those limits which outline and bound a strict proceeding on habeas corpus. The writ serves a purpose merely ancillary to the more general design of the suit, to secure a definite disposition of them, as wards of the court. Baird v. Baird, 4 C. E. Gr. 482.

In considering the grounds which should have weight in deciding controversies of this character, while the rights of parents will not be disregarded or their interests overlooked, *743the court will not be controlled in its decision by the strict rights of either party, but will determine the question of custody mainly upon considerations of advantage to the infant; the cardinal rule of action governing-'the court being regard to the benefits of the minor, holding its welfare superior to the claims of either parent. Schouler’s Dom. Rel. 339; Baird v. Baird, 6 C. E. Gr. 384.

*743This is a rule in courts of equity, and was declared and applied in this court, in the case last cited, before the passage of the supplement of 1871 to the act concerning divorces. In this respect, that act introduces no new rule; but it embodies a clear declaration of the legislative approval of that' which the court had adopted. Under it, in controversies between parents for the custody of their children, there can exist no restraint upon the mind of the court, arising out of the superior rights of the father at common law, but all legitimate force must be accorded to those considerations which touch the well-being of the child.

The right of either party to appeal from the determination of the chancellor, is also established. Baird v. Baird, 4 C. E. Gr. 481. The cause is before us in proper form, and, however delicate or unwelcome the task may be, it must be decided. From every point of view, the cause has *744given to every member of this court an unusual degree of anxiety and concern in its decision. It has its source in, and is the present product of, conjugal difficulties and discords existing between these parties. These dissensions, through want of mutual forbearance and the exercise of a spirit of forgiveness, are prolonged to a degree that promises permanent desolation to a home that was once, and might still be, a happy one; and that bids fair to entail a heritage of humiliation and shame upon these children, whose happiness and welfare both parents claim to be striving for.

*744In this wrong condition of things, the court is called upon to decide upon the rival claims of these parents to the custody of their common offspring. Much of the argument addressed to the court, was directed to a discussion of the fitness of the respective parties for the exercise of this trust. The facts spread before us for our guidance were drawn, in a large measure, from testimony taken in other litigations between the parties, much of it exposing to view the penetralia of their connubial life. From each side was urged the unfitness of the other, by reason of the conduct of each toward the other from the beginning of their domestic discord. -

*745It is quite evident that, if the present disposal of these children were made to depend upon our determination as to which of these parties is most at fault in their general controversy, it might be difficult to decide. Neither can be said to be entirely free from fault with respect to the other. The separation of the wife from her husband, and carrying with her his children, prolonged as such separation has been, stands adjudicated as being without sufficient legal justification. She still continues apart, and withdraws her children to another household, where, indeed, their material wants may be cared for and supplied, but where they, in their young years, are likely to lose their affection for their father, if not to learn to look upon him with dislike or even dread. She has made no tender of advances toward accommodation, nor manifested, so far as appears, any willingness to meet the offers and overtures of her husband for reconciliation, when, perhaps, a kindly word from her might restore unity and happiness to this now deserted home. She exposes herself to the inevitable certainty of hearing dispraise of her husband and the father of her children, when, for her and their real interests, his honor and good name should still be as dear to her as her own.

On the other hand, the first fault that caused this wife to *746leave her husband, was his; and this court, in refusing to support a decree of separation, did so, not upon the ground that the causes of complaint against him were untrue, or not of such a character as to plead loudly in excuse of the wife’s withdrawal from his home and society, but because they had faith in his expressions of regret for the past, and believed, on the strength of his promises, that she could, with entire security, return to companionship with him. It was not imagined for a moment that the affection for his wife and children, which he so strongly avowed, could ever permit him to resort to either violence or unfair stratagem, to restore the family unity. Ilis desire for their return to him, unfeigned as I believe it was, resulted in acts on his part bearing a hostile appearance, and which were far more likely to create distrust and alarm in the minds of both wife and children, than to awaken dormant affection or inspire confidence in the sincerity of his promises and professions. .His is the stronger nature, and, however ready others might be, in view of his trying situation, to look with forbearance on his attempts to possess himself of his children by force, it was most natural for his wife to regard them (as in her return to the writ she seems to do), not as the outgrowth of affection for his children, but as the assertion of a mastery, and designed to coerce her to his wishes. It was unwise to forget that the authority which a husband, as head of the household, is permitted to wield, has, in the consideration *747of human and divine law, its better title in the confidence and affection which repose it in his hands, and that when it is asserted by force, the right is exposed to question. He wields, as such head, a scepter of peace, and not of passion and conflict; swayed in mildness, it is far less likely to break in his grasp than when brandished in power and strife.

The faults thus attributed to these litigants, and urged upon the court by the opposite sides, as elements to be considered in reaching a decision, unfortunate as they are in their results upon their own lives and prospects of future happiness, are not of a nature to affect the moral fitness of either of these parents to have the control of the children. The character of the father, in his other relations, appears to be that of a sober, moral aud industrious man, and he has pecuniary ability amply to provide for his children. Nothing is alleged or hinted against the moral character of the mother; it is conceded that she is a suitable person for the trust, and that she has done and is doing everything for the care and comfort of the children that one parent can do. The chancellor adjudged rightly in placing their claims upon an equality; either is suitable for the trust, and the welfare of the children remains the sole criterion for determination.

The true interests of these children unquestionably call for the united care of both their parents, but as in the pos*748ture which they have assumed, and still maintain toward each other, this cannot be had, I am of opinion that the chancellor, in deciding to leave them for the present where they are, is as Trearly right, under all the circumstances, as it is possible to be. In view of their tender years, a mother’s care seems to be necessary to both; this is conceded by the appellant’s answer. It is certainly so as to the daughter, and they are receiving the kindest maternal care at her hands. Their reasonable wants are supplied, clothing and food are furnished, and the advantages of good schools afforded them.

That the children desire to remain with the mother, although not an infallible test of what will best conduce to their true happiness, is, nevertheless, a circumstance entitled to the court’s consideration. I also think it is very desirable that these children should be kept together in personal association, until other and more important considerations shall render a separation necessary. It is neither shown in the case, nor averred, that any influence is exerted over these children by the mother, or others 'about them, to prejudice their minds against their father. The fear that this may be so, introduces one of the most troublesome elements in this case. One of the objects of the law is to foster and encourage mutual affection between parent'and child. An important purpose of education is to train children to the cultivation of filial affection and confidence, and, until it otherwise appears, we must rely upon the good sense and justice of the respondent, that she will not, in this respect, abuse the trust reposed in her, or permit those in whose society these children are, by act or word, to alienate their affections from their father.

The decree settles the present status only of these children, and it invites the father to seek such terms of access to them as may.he reasonable in the judgment of the chancellor. Of these he may avail himself if he desires to visit them. Were the son of an age and condition of health to enter upon a course of business training, I should have *749regarded it as promotive of his interests to be placed under the charge of his father. He is, however, of delicate constitution, and too young, as I think, to have his mind so directed now; yet, the time must soon come when the interests of the son will require that he have the aid and guiding hand of some proper person in fitting him for and directing him in a suitable business pursuit; and this duty no one can so well perform as a father who has experience and possesses, or is worthy of, the affection and confidence of his child. This father, by his own business success, has given the best evidence of his ability and qualification for the discharge of this duty. This office belongs to him as a right as well as a duty. He has done nothing, that I can perceive, to forfeit his right to such control, and when the son arrives at a proper age, if this unfortunate separation continues, it will be difficult, upon any reason that now appears, to offer effectual resistance to his just demand to resume the sole custody of the son. No one can be a safer guide in this respect than a prudent father; no one is likely to feel a stronger interest in the future of his boy than .he; and this father would be unnatural in his feelings and affections, to a degree not proved by anything in this ease, if he did not fully equal all others in the desire for the success and prosperity in life of this his only son. For the present, however, I think the children should remain with the mother, and I shall vote to affirm.

(dissenting).

As I am so unfortunate as to differ with my brethren in regard to the proper result of this cause, I take the liberty of stating the grounds of my dissent.

Upon a bill filed by this respondent for divorce a mensaet thoro, because of cruelty, this court, in June, 1876 (12 C. E. Gr. 579), decreed that she was not entitled to such divorce. The misconduct of her husband, then complained of by her, seemed to the court to be exceptionable, and to *750have grown out of a temporary bodily ailment of the wife, aggravated by her nervous and rather delicate constitution ; and, “looking at the history of the married life of these parties, the affection this husband has always manifested for his wife, and his repentance for his misconduct,” the court concluded that there was no reasonable ground to apprehend any further transgressions.

Upon the making of that decree, it became the legal duty of the respondent to return with her children to the home which she had left, and to replace herself by the side of him to whom she had promised to cleave so long as they both should live. Ever since her departure, up to the present time, that home has been kept ready to receive her, and touching entreaties from her husband have again and again besought her reconciliation. But hitherto she has disregarded this legal and sacred duty, and has, without lawful cause, withheld from this petitioner the society of wife and children, to which he was entitled. This is, I think, misconduct on her part, such misconduct as prevents her from establishing upon the statute, any claim to equality of right with her husband for the possession of her children. To hold the contrary is to put an end to the long-conceded right of the husband to be the head of his family. If a wife may, in the absence of legal justification, remove herself aud her ehildreu from their father’s domicile, and fix their residence in a place where he may not abide, and still stand before the law upon an equal footing with him as to their custody, then is the headship of the husband and father no longer legally recognized. In my judgment that conclusion should not yet be reached, and this controversy should be decided upon the principle that the father is entitled to have his children, unless their welfare requires that they should be otherwise disposed of.

But, waiving any question of superior right, I proceed to consider whether the happiness and welfare of these children are the more likely to be promoted in the custody of the mother or of the father. And by happiness I do not *751mean the pleasure of remaining with the parent whom they love, as compared with the temporary pain of separation from her, but I mean that more permanent enjoyment of life which attends upon and is almost identical with welfare.

As to the girl, I agree that, for the present, she ought to remain with her mother.

The boy is now over eleven years old, not, perhaps, robust, but of average healthful ness, and, as his aunt says, “ seems to be very smart, reads very nicely, ciphers and writes very nicely, better than most children of his age.” He has therefore reached or is close upon that stage of life when the care and nurture of a mother are less indispensable than the authority and control of a father. It will soon be proper to determine what occupation shall engage his manhood, and to guide his youth with that end in view.

The petitioner is a mechanic and tradesman; a person of at least ordinary education and intelligence, of sobriety, industry and probity, of an affectionate disposition, and having a respectable place in society. By prudent management, he has accumulated a moderate fortune, which supports a well-established business in Jersey City, and out of which he provided, and is able to provide, for his family a good home with every reasonable comfort. He, therefore, possesses those qualities of mind and heart which are likely, under favoring conditions, to center his affections upon this only son, and those habits of thinking and living which are calculated to make him a safe guardian for his boy. He has, also, the means of educating his son, and of establishing him either in his own business, or in some other useful calling. Under his control, this child will enjoy far better opportunities for comfortable success than are afforded to most youths.

The respondent is, perhaps, possessed of somewhat more culture than her husband, and, but for her disregard of wifely duty, I would have no difficulty in believing that she is endowed with those estimable traits which are so common to her sex. She is without means of her own. Her father, *752with whom she has taken up her abode, is a man of good character and standing, but rapidly approaching the allotted limit of life. Besides the respondent, he has another married daughter with children, two married sons with children, and an unmarried son. He seems to have no settled trade or profession. Mrs. English says: “, He was at one time teaming for Droy’s oakum factory, carting oakum, and rope, and other things.” At present, he is superintendent of chemical works. His pecuniary resources are not shown by the evidence, but enough appears to justify the belief that, among all the objects of his bounty, this grandson will not bo likely to receive from him such aid and advancement as his own father can supply.

This statement of the respective positions of the persons concerned, drawn, in considerable measure, from the former opinion of this court, and in the whole warranted by the proofs, strongly inclines me to the judgment that this boy’s prospects in life will be best promoted by committing him to the affection and control of his father. Nor am I unmindful of the advantages of a mother’s influence, nor would I deprive him entirely of it. For, although the custody of this son should be given to the petitioner, yet, in the order of the court, provision should be made for his being a frequent visitor to his mother’s residence, and thus, as far as practicable, her proper influence may be retained.

But it is said that, in a few years hence, the court may conclude to grant what the petitioner now asks. To this delay, however, there are serious objections. The evidence shows that, during the separation of these parents, the love aud respect of the children for their father have cooled, and, from circumstances not necessary to be discussed, they have imbibed (to use the respondent’s words) “a dread and constant fear of seizure and capture ” by him. A continuance of the present relations cannot but intensify these unhappy sentiments, and soon will preclude the possibility of the petitioner’s instilling' into the mind of his son such filial regard as alone can secure to the son the lasting affec*753tion of his father. Then, too, this petitioner, under the advice of most experienced counsel, has suffered the deprivation of his children for years, awaiting the time when, as they judged, an application to the law would be most likely to succeed. At their permission, and with much anxiety, trouble and expense, doubtless, he has now appealed for relief, only to learn that he must still stand alone in the world, expecting the coming of a day, no'one can tell when. If, under this rebuff, he shall withdraw his parental desires and shut up his heart to selfishness, who shall say that he is worse than nature has made many men ?

“Even here I will put off my hope, and keep it No longer for my flatterer; he is drowned Whom thus we stray to find, and the sea mocks Our frustrate search on land. Well, let him go!”

Such a hazard I am not willing to incur.

Nor do the precedents in this and other courts warrant further delay. In State, Baird pros. v. Baird, 6 C. E. Gr. 384, where, as here, the father was seeking from the mother possession of his children, and where, having regard to the best interests of the children, he certainly stood upon no better vantage ground, as compared with his wife’s position, than does this petitioner in relation to this respondent, this court, while leaving with the mother two boys of the age of five and eight years, gave to the father the custody of three others, ten, twelve and fourteen years old. A similar disposition of still younger boys was made in Com. v. Briggs, 16 Pick. 203, and State v. Paine, 4 Humph. 523. I know of no opposing case.

The statute of our state contemplates that, as a rule, a child of seven years should be with its father. Thus both the legislature and the courts have indicated that ordinarily the welfare of a boy .as old as ten years will be best sub-served under his father’s eye. I can find no fact in the character or circumstances of any of these 'parties which should make this case an exception to this wise and natural rule. And if it be for the good of society that lands and *754chattels shall be secured to us under uniform laws that maybe known, much more should our children—these dearest possessions, the ornaments of middle age and the props of declining years—not be arbitrarily torn away.

. There is another consideration not yet adverted to, one, perhaps, not of controlling moment, but, nevertheless, well worthy to be remembered. When, four years ago, this court reversed the chancellor’s d.ecree for the legal separation of these parents, it was hoped that they would be re-united. The father, stripped of every domestic joy, has earnestly and sincerely sought that re-union. It is even now ui’ged against him, by the advisers of the respondent, that this proceeding aims more at the reeovei-y of his wife with her children thaxx of the children alone. The mother, crushing out her wifely love under a sense of wi’ong endured, consoled for what she has given up by the society of her childi’en and her parents, has silently resisted her husband’s desires. That the best interests of these children depend upon the complete rehabilitation of the petitioner’s home, is unmistakable. If this boy be with his father, and this girl be with her mother, both dwelling respectably in the same city, and thex’e be, as there ought, frequent visitation on the pai’t of these children to both parents, this court’s pui’pose of reconciliation may yet be accomplished. What the husband alone has not been able to secure, the husband and son together may bx'ing to pass—the restoration of this x*espondent to a full sense of her duty as a wife and mother.

The decree below, as to the son, should be reversed.