well known to the petitioner. They existed before her departure from Europe for the United States. But she then hoped that time and reflection would remove them, and she can most truly say, that in leaving Europe for this country she sincerely intended to return to the petitioner, and to endeavour to discharge the duties of a faithful wife. She never entirely lost the hope of being permitted to discharge them, in the expectation of his returning sympathy, until she was shown a letter received from him by her father, after her arrival in the United States, in which the incompatibility which had already most painfully developed itself appeared to be so hopelessly irreconcileable, as to propose to her no alternative but to leave him, or to abandon all her associations of kindred, country, and friendship, to the will and authority of one who was determined to extinguish them all and wholly prevent their revival. On this basis she saw, and she now sees, no hope for the future, of either sensibility on his part or insensibility on hers, to make his conjugal society reconcileable with her happiness, or even with her life. She is prepared to let this part of her case rest upon the approbation of her conduct by her parents, and upon her own declaration of its entire sincerity towards the petitioner. If, however, the court should be of opinion, that the subject of the present custody of her child properly involves an inquiry into the causes of her separation from her husband, she is prepared, as has been already stated, to submit them in detail, and prays that what she may then submit to the court may be received and taken as part of her return to the said writ.

In answer to the petitioner's reproaches of her father and mother, she denies that they have been guilty of clandestine attempts to conceal his child from the petitioner. The petitioner arrived at New York in June or July 1839, under an assumed name as she is informed. He remained for many days, and, as she believes, even for weeks, in New York, without addressing her any letter, or in any other manner advising her of his visit. She was apprized that he had been seen in the streets of New York, by an acquaintance of her family, who had known him in Europe. She was then temporarily residing with her child in a house belonging to her father at Nahant, in the neighbourhood of Boston, for the benefit of country air for her child, who was languishing from disease. Her father and mother were absent from her, and the former was at a distance from Boston. When she learned that the petitioner was thus secretly in New York, prompted by the recollection of an occurrence of the preceding year in Paris, impelled by her fears that force would be used to compel her to return to the petitioner, or to take away her child, without waiting for the counsel of any one, she instantly, about the 22d of July, 1839, departed with her child and a servant, and went to a place of refuge and privacy unknown to both her parents, neither of whom was even aware that the petitioner was then in the United States, or was expected in the country. The petitioner's first visit to Boston was a day or two after this, when her parents were still ignorant of the place of her retirement. She was absent for three months, during the whole of which she never saw her father, and during the first two months did not see her mother, though she made the place of her retirement known to her mother shortly after her departure. Her parents, understanding that the petitioner was in

New York, went there, and after unsuccessful attempts at negotiation through counsel, advised her to come to the city of New York, where the petitioner still was. She came there accordingly with her child, in the latter part of October. She had, in the mean time, become better acquainted with the laws and feelings of this country, than to apprehend force either to her or to her child. She remained in New York, openly, for four months, with her child, with the knowledge of the petitioner. During that time he saw the child with her free consent. No impediment has been or will be placed in the way of his seeing it. In February last, she came with her child to Philadelphia, in which place and its neighbourhood she has since remained, and proposes to continue, for the sake of health and for other reasons. Her residence here has been perfectly well known to him and to all her friends here. In the very first instance in the course of their stay here, in which he has made known a wish again to see his child, it was assented to by her counsel without consultation with her, being apprized of her disposition in this respect. The request has been once repeated, and at once assented to. She and her parents have never concealed themselves or the child from the process of the court. They have never for a moment sought to avoid it, or to conceal the object of it. When the judicial process to which the petitioner refers was issued in Boston against the respondent's father and mother, they were openly dwelling in New York, which fact was known to the petitioner, as she verily believes, and certainly to his counsel in New York, with whom her father had been, through counsel, endeavouring to open an amicable negotiation, as has been already stated. The respondent was also herself, with her child, in New York at that time, living openly with her parents as aforesaid. With regard to the allegations of the petition, concerning the place of the marriage and the laws of the Canton de Vaud, the respondent begs leave to state, that in the year 1837, when she first made the acquaintance of the petitioner, she was a visiter with her parents in Paris, scarcely eighteen years of age, and it was there that he made proposals of marriage. She was not acquainted with the laws of the Canton de Vaud, his domicil, but she supposed that on the subject of marriage, the duties of married persons towards each other, and their respective rights and duties in regard to children of the marriage, they conformed to the laws of her own country and the general usages of the civilized world; and she is informed, believes and avers that they do so conform, and that in point of fact they are the same as the laws of this state and of the state of Massachusetts; and that whether they are so or not is not material to the purpose of the present hearing.

The respondent knows of no clandestine attempts at legislation, to prevent the petitioner from having the guardianship of his said child. She has a general knowledge, that in consequence of the painful circumstances of this and other cases, which, besides occasioning the deepest domestic affliction, threatened the expatriation of native citizens of the United States, whose prospects and means of future usefulness to our country would be defeated by their exile, many persons were desirous that a public act of legislation should take place, for the ascertainment of the law, which on this subject was not definitively settled. She believes that her father with others participated in the common desire to pro

mote the passing of such a law. But it was supported, as she is informed and believes, exclusively on public grounds and in a manner which could not be clandestine. Moreover she is informed and believes, that the act of legislation was a general law, which should apply to children of a more advanced age than her child, and of which he would have the benefit hereafter rather than at present. She has never understood that, at his present age, the existing laws are doubtful on the subject of her right to the custody of her child. She is advised, that here she may with reason enter her respectful protest against any attempt to abridge or interfere with the unrestrained liberty of any citizen of the United States, to promote such acts of legislation as may be conducive to the public interest of his fellow-citizens at large, or to the private interest of those who are nearest and dearest to him.

Having stated these things in justification of her parents, the respondent desires to add, that although her conduct has received their sanction, yet the course which she has been reluctantly compelled to adopt in her separation from her husband, has been in all respects exclusively her own, without having been suggested or promoted in any manner by either of them. On the contrary, they have regretted and have endeavoured, as far as it was in their power, to prevent what was unfortunately the unavoidable result of occurrences which they could not controul. Her father's house has been open to her whenever she has asked a refuge within its doors: his protection and assistance there and elsewhere have been freely afforded her, but she has been at all times since her marriage, and now is, as free and as unrestrained to leave his house as to enter it, and so far as her parents are concerned, or their influence has been exercised, as free to return to the petitioner as to remain apart from him.

The respondent concludes by again throwing herself upon the judgment of the court, upon that part of the return which particularly adverts to the age and circumstances of her child.

City of Philadelphia, ss.

ELLEN S. D'HAUTEVILLE.

Before me, an Alderman of said City, comes the above named Ellen Sears Grand d'Hauteville, and being duly sworn declares that the facts in the foregoing return set forth are true.

Cadwalader. The child is here. Its age is stated in the return and is apparent on inspection. It is twenty-one months old.

The child was brought forward.

Reed. Having been favoured with a copy of the returns, we have prepared, and now ask to file, "Suggestions" against the returns. The counsel commenced reading. After he had proceeded a few

sentences

Cadwalader. Is this paper presented in any other light than an opening? If it is an opening we listen to it with pleasure. If in the nature of pleadings, though listening to it might give us pleasure, we

are not prepared to say its introduction is compatible with the rules of practice in such cases.

Reed. It is not meant as an opening. It is such a suggestion as our act of Assembly allows.

Cadwalader. (After consultation.) We withdraw our objection. Reed continued the reading.

RELATOR'S SUGGESTION.

In the matter of the Habeas Corpus issued on the petition of Paul Daniel Gonsalve d'Hauteville.

The suggestion of the said petitioner, protesting as he does against the sufficiency in law of the said returns, now showeth to your Ho

nours,

That he has heard the returns of the said David Sears, Miriam C. Sears, and Ellen Sears Grand d'Hauteville to the said writ read; that they contain many matters which are untrue in point of fact, and in relation to which he is advised he should make such suggestions, as well in denial as avoidance, as may enable your Honours to ascertain the facts of the case and to decide the same, as to justice may appertain. The petitioner, protesting, as he earnestly does, against the conclusions of law contained in said return, and claiming on the part of your Honours the full exercise of the discretion with which your Honours are intrusted, to determine whether, even at a tender age, a child's best interests will not be subserved by delivering it to its father, now suggests,

That as to so much of the said return as avers that the said child is in no respect "detained illegally," he says, that the custody and guardianship of the said child, at any age, belonging of right, and, as he is advised, according to the laws of the land, to his father, in being withheld from said custody and guardianship by its mother, it is "detained illegally." By the laws of this and every christian land, the wife is bound to adhere to her husband, to remain with him, to make his home her home, and his country her country; and if a wife, causelessly, (as your petitioner avers is the case here) abandons her husband and refuses to live with him, she forfeits all those privileges which the law so largely bestows on a faithful wife. She ceases to be exclusive guardian of the children even for nurture, and has no reason to complain of the hardship of a separation, which she has the ready means of removing, by herself returning to her duty.

Your petitioner further suggests, that the custody of a child should be given by your Honours, in the exercise of that discretion with which you are invested, to that one of the parents who is willing and anxious to discharge his conjugal duties, and to give to his child lessons and an example of parental rectitude; all of which your petitioner is and always has been willing and anxious to do. If the said child be allowed. to remain under the guardianship of its mother, now living, and designing, according to her said return, to live, in a state of wilful and causeless separation from her husband, your petitioner suggests, that "the moral and religious education of the said child cannot be suitably attended to;" and inasmuch as the said Ellen is now living, and intends

to live, under the protection of the said David Sears and Miriam C. Sears, by whom, according to the returns, her desertion of her husband is fully approved and sanctioned; your petitioner earnestly suggests, that "the associations of his said child cannot and will not be exclusively with persons of upright character and moral and religious habits;" but, on the contrary, must be and will be with those who have fallen into a fatal error, on at least one fundamental point of morals-the obligation of the marriage contract; which, in good fortune or bad, in sickness or health, in happiness or misery, binds a wife to her husband, a mother to the father of her children. Such precepts and such example, your petitioner suggests, must exercise a pernicious influence on the child he now seeks to reclaim.

Without denying or admitting that portion of the said return, in which the said respondent claims to be in possession, in her own separate right, of ample means to support and educate the said child, in a manner befitting his station and suitable to his expectations, your petitioner suggests, that his pecuniary means and position in his native country, are such as to enable him to afford to his said child every facility of support and education; and that by the laws of Switzerland, the said child will be entitled to an inheritance, which will secure to him perfect independence.

In relation to that part of the said return, in which the respondent claims the custody of the said child, in order to prevent your said petitioner from removing the said child from the jurisdiction of the United States to Switzerland, and in which the said respondent expresses her firm belief, that the interests of the said child will be prejudiced by a removal at this time and for some years to come-in the language of the said return, "his (the said child's) personal expectations in this country, as well as the relation he bears to it by birth, securing to him advantages, hereafter, of the highest value, if his earlier years are permitted to pass here"-your petitioner suggests, that, as a citizen of Switzerland, he is from education, habit and feeling attached to the country of his nativity, of his early and mature years, and can never consent to abandon or abjure it. That his family, his position and pursuits of life, are such in his own country as indissolubly to bind him to it. That these ties were well known and appreciated by the said respondent when she married him, and when by her marriage, she made his domicil her domicil and that of her children. The birth of his said child in the United States does not divest its rights and interests as a citizen of Switzerland, and no relation can arise from the accidental birth in the United States, other than that which the known domicil of the father created. What personal expectations the said child can have in the United States your petitioner has no knowledge. He will learn a language different from that of the country where he is to pass his life—a language different from that of the father whose name he bears, and whose property and honours he will inherit. The years of infancy, when the mind is most susceptible, will be spent, not only among those whose manifest intention it is to alienate him from his father, but under institutions and forms of society widely different from those under which he is destined to live, and which as a member of society he may be called on to support. He will carry home with him an accent which