"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.