AT BAY
Unfortunately, matters were not so easily arranged in Washington as
Judge Kirtley had intimated in his telegram they might be. After
learning of the situation, Mrs. Pennybacker had a strong suspicion that
the dispatch was intentionally optimistic. Nor was she far wrong. Judge
Kirtley was convinced from his knowledge of Mr. De Jarnette that his
object was not to bring punishment upon his sister-in-law, but to get
the child. He was equally convinced, however, that when Mr. De Jarnette
found her blocking the way to the accomplishment of his purpose she
would be swept aside regardless of the consequences to herself. He was,
therefore, exceedingly anxious to avoid the possibility of her forcing
his hand.
It was found when the party reached Washington that Richard De Jarnette
was inexorable. And as Judge Kirtley explained to Margaret, the child
was now of such age that his guardian could reasonably claim to be able
to care for him, as he could not have done for an infant. The situation
was grave.
They had gone directly to the Massachusetts Avenue house, which had been
closed since Margaret's flight except for the periodical visits of a
caretaker. It had been Mrs. Kirtley's task to see that it was ready for
the sorrowful home-coming.
"No, I am not going to Maria's," Mrs. Pennybacker had told Bess.
"Margaret needs us. And besides, Maria always rubs my fur the wrong way,
and just now I want it to lie straight."
Several days elapsed after their return before Margaret saw anything of
Richard De Jarnette. When she did he came to make a formal demand for
the child.
She refused absolutely to give him up.
In thinking of that interview when he was gone she felt depressingly
aware that she had done her cause no good, for she had said many bitter
intemperate things, being under great provocation. To them all he
listened without reply until she had spent herself. Then he said,
"My dead brother's will gave me this child. I accept it as a sacred
trust. The courts have sustained that will and my claim. I shall have
the child. I beg that you will not deceive yourself, nor let any one
else deceive you into thinking that my determination is subject to
change."
"You will never get him," she said, "unless you tear him by force from
my arms!"
He bowed gravely then and left her.
The next day an officer appeared at the Massachusetts Avenue house with
a paper to serve upon Mrs. De Jarnette.
Habeas corpus proceedings had been instituted in the District Supreme
Court by Richard De Jarnette to recover the custody of his ward, Philip
Varnum De Jarnette. Margaret Varnum De Jarnette, the mother of the
child, was named as respondent in the suit. The paper was an order duly
signed requiring the respondent to show cause October twelfth at 10 a.
m. why writ of habeas corpus should not be issued.
October twelfth was one week away.
* * * * *
The court-room was crowded to its utmost capacity when the De Jarnette
case was called. A contest for the custody of a child rarely fails to
excite interest, and in this case it was greatly enhanced by the social
position and financial standing of the litigants. Besides this, the case
had attracted much attention because of the legal points involved.
The daily papers had done their best to prepare the public for this
trial. The account of the finding of the child after years of search had
been given in full (with one notable exception) from the Smeltzer point
of view. The details of the sensational will case were revived and the
kidnapping by the mother on the night following the decision which
awarded her child to the guardian under the will. The accident by which
Victor De Jarnette lost his life was recalled and related with much
circumstantiality and some enlargement. It was all discussed in many a
household in Washington during the week preceding the trial, and it
brought to the court-room a good attendance that day. Women were there
in unusual numbers, drawn thither by their sympathies as well as their
curiosity. John Harcourt, looking back of him, thought he had never seen
so many there before.
Margaret, accompanied by Mrs. Pennybacker, Bess and Mrs. Kirtley, sat
beside the old Judge,--Mr. De Jarnette by his counsel. This by a chance
brought the two who were fighting for the child side by side, while
Philip, in childish ignorance of what it all meant, sat between them. Of
course nothing had been said to him about the case, and the arguments of
counsel threw no enlightenment upon the matter to him.
But there was one book that Philip had learned to read if he did not
know anything about the weighty volumes they were quoting from, and that
was his mother's face. He saw from it now that something was wrong, and
climbing up into her lap, he took her cheeks between his chubby hands
and kissed her gravely on lips and eyes. Then, satisfied at the faint
smile his caress evoked, he slid down to the floor, placed his chair
close to hers, and laid his head against her shoulder. The little byplay
was not lost on those in the vicinity, and the clerk, looking up just
then, wondered what it could be that he had lost. The women spectators
and some of the men were wiping their eyes.
There had been a fearful strain upon Margaret in these last few
days,--the journey, the suspense, the constantly-growing fear of how it
would terminate were almost more than she could stand up against. She
had a strange sudden sense of unreality. She looked around to see if it
were really she. Then by one of those quick reversions that the mind
sometimes makes, it seemed to her that she had been in precisely this
place once before, not in that other trial, but in one just like this,
that Mrs. Pennybacker sat beside her then as now, that Philip leaned
against her thus, and that a man was saying this identical thing. She
looked around at the court officers half dazed.
As the trial proceeded she lost hope, Mr. De Jarnette's attorney was
making out such a clear case. But when Judge Kirtley spoke it did not
seem that there was room for doubt as to how it would go. She _must_ get
the child. He closed with a powerful plea for a mother's supreme right.
After the closing of the arguments the Judge spoke:
"The question to be determined," he said, "is not one of sentiment, but
of law. Briefly stated it is this: Whether the statute of Charles II,
Chapter 24, Section 8, is in force in this District to the extent that
the father of infant children may be deed or will transfer their
exclusive custody and control to a guardian, regardless of the fact that
the mother, his wife, may be competent, willing, and in all respects
qualified to maintain, educate, and train them properly.
"There has been, both in and out of court, a good deal of sentimental
declamation indulged in, in regard to this statute, and it has been
reprobated as being in conflict with the natural rights of the mother,
and in conflict with the present civilization of the people. But while
it is sufficient to say that courts of justice, and especially of common
law, are not at liberty to disregard the statute and act upon any mere
feeling of repugnance to it, we must bear in mind that this statute of
Charles II has been in force in England for more than two centuries, and
that it is still in force there, and has stood the test of English
civilization, with the slight modification," he went on to explain,
"that the chancellor or master of the rolls may, upon petition of the
mother, where the infant is within the age of seven years, order that
such infant shall be delivered to and remain in the custody of the
mother until attaining the age of seven; provided the mother be a fit
and proper person to have the custody of the infant.
"There may be reasons," he continued, "why the wife should not be
selected as the guardian of the child. In the first place the father, as
the head of the family and the responsible one has the right to say who
should have the training of his children."
Mrs. Pennybacker's eyes snapped.
"Who gave him that right?" she asked in a fierce whisper of Bess, who
was the nearest at hand, but Bess, not knowing the answer, could only
look blank.
The Judge went on to say that another reason was the probability of a
second marriage and the consequent introduction of his child to the
treatment of a stranger, possibly hard and unsympathetic. ("Of course
_men_ seldom marry," commented Mrs. Pennybacker satirically.)
"And yet another reason might be in the age or ill health, to say
nothing of the mental or moral unfitness of the mother." He proceeded to
emphasize just here that while no stress had been laid upon the mother's
unfitness in the present case on account of mental or moral
incompetency, it had been clearly shown by counsel for the plaintiff
that she was guilty of wilfully and forcibly kidnapping and abducting
said child after the will devising it to the said De Jarnette had been
admitted to probate, and while it might be argued that this was an
unwitting violation of the law, still it must be admitted that the act
showed the defendant to be deficient in that sound judgment which would
make her a safe guardian for the child.
Margaret sat looking at him with wild startled eyes.
"Like all powers of appointment," he continued, "this power in the
father to appoint by testament a guardian to his children is liable
sometimes to be exercised in what might appear to be an arbitrary
manner, and in disregard of the feelings of the mother. But the history
of the statute does not show this to have been frequently the case in
reality. Many times the act has a most beneficent operation. The
principle of the statute, taking it all in all, appears to have been
beneficial to the family relation, and to have furnished the means of
securing the welfare of the children, which after all is the thing that
the court has always to consider. If not so, it could hardly have been
retained in force in the English and American statute law to the present
day."
Concluding, he said:
"In 1873 this subject was fully discussed before the Court of Queen's
Bench. It was held that a person who had been duly appointed under
Charles II, Chap. 24, Sec. 8, by the will of the father to be guardian
of his child, stands in _loco parentis_, and having, therefore, a legal
right to the custody of the infant, may in order to obtain possession of
such ward, claim a writ of _habeas corpus_ which a common law court has
no discretion to refuse, if the applicant be a fit person and the child
too young to choose for itself.
"The court, therefore, gives the custody of the child to the guardian
under the will, and counsel may draw a decree in accordance with the
decision of the court."
For a full half minute there was silence in the court-room. Then, before
Judge Kirtley could speak or put out a hand to stop her, Margaret De
Jarnette stood up, white as the dead.
"The decision may be according to the law," she said in a low tense
voice--"the law made by men for men. But it will not stand. Mark that!"
her head was thrown back now and her eyes blazed. "For it is against
Nature's law and that is God's very own. This child is mine! I bore
him--through pain of body and anguish of soul. Does that give me no
claim upon him?"
She stretched out her hands in an unconscious gesture of appeal. A
silence like that of the grave was over the room. Men and women bent
forward and held their breath in their eagerness to hear. The Judge did
not stop her. The Probate Court is very patient with women.
"And that is not all," she went on. "Oh, no! _no!_ that is not all.
Through all those weary months--days of pain and sleepless nights--he
lay, part of my body, his very life entwined with mine, his very soul
fashioned by mine, his being absolutely dependent upon mine--he lay
there, I say, close to my heart--_and every throb was for him_! You tell
me that the man who gave him only life and a name and then deserted
him--" the words were pouring out tumultuously now--"that this man has
the right to will that child away from me, his mother, as he would his
horse or his dog? I tell you it is a lie! _a lie!_ He has no such right!
The child is mine! There is no power in earth or heaven or hell that can
take him from me! _I'll have him!_"
She stopped. The world grew black before her. She swayed backward; there
was a sudden stir; and it was Richard De Jarnette springing forward that
caught her as she fell.