Ingersoll. Yes. (The writ was produced.")

Ingersoll. The only objection made against the act of 1837, is, that it is too strong. With that your Honours have nothing to do. It certainly gives you the power, and it is for the other courts to decide whether it takes away their jurisdiction: so far only as it does the latter, is it, if at all, unconstitutional: the word "exclusive," merely, is to be struck out. Utile per inutile non vitatur. But that word evidently applies to the Quarter Sessions alone. One of the opposite counsel asserts, that the courts of Pennsylvania have no common law jurisdiction in cases of habeas corpus.

Cadwalader. As to the form of proceeding.

Ingersoll. The other considers the jurisdiction to rest altogether on the common law. It certainly is of common law: our act merely prescribes the manner of proceeding. The course of authorities and decisions in this state, the other states, and England, establishes its common law character beyond dispute. Magna Charta contains no allusion to the writ of habeas corpus, yet provides against illegal constraint, and the subject might always avail himself of that provision by a habeas corpus. Comm. v. Robinson, 1 Serg. & R. Rep. 353: Comm. v. Lecky, 1 Watts's Rep. 68: Hecker v. Jarett, 2 Smith's L. 281, n: Ex parte Watkins, 3 Pet. Rep. 193: Holmes v. Jennison, 14 Pet. Rep. 540: Bk. of U. S. v. Jenkins, 18 John. Rep. 305: Yates v. Lansing, 4 John. Rep. 364, 5 John. Rep. 282, 6 John. Rep. 337, 9 John. Rep. 395: Jacob's Law Dict. Tit. Hab. Corp. 2 Instit. 45, 55, 6: 4 Instit. 182, 289, 290: 2 Hale's Pl. of Cr. 144: Croke J. 543: Vaughan, 157. What is the meaning of the clause in the Constitution of the United States, providing that the privilege of this writ shall not be suspended, unless it is a common law writ? Some of the states had no statute on the subject when that constitution was framed. Our act was passed only in 1785.

The heading to the writ, "By act of Assembly, 1785," is to indicate the penalties consequent on disobedience, but does not take away its common law ingredients. The Statute of 31 Charles II, requires the same thing. There must have been cases of habeas corpus in Pennsylvania prior to 1785: they of course were at common law. In England the courts finding the right clear, have enlarged their mode of proceeding, and assumed jurisdiction, to make the remedy commensurate with the right. Here the right existing at common law, and being inseparable from the existence of freemen, there was only necessary some prescribed mode of proceeding, to prevent dispute. Our act was intended only to secure the right: See its preamble. In criminal cases, the court is to bail, remand, or discharge, and certain penalties are provided for violating the law. In civil cases, the court makes an order or decree according to discretion, and disobedience thereto is punished by process for contempt. Act of 1785, Purd. Dig. 485: Hecker v. Jarett, 2 Smith's L. 281, n.

To the judges of this court are given all the powers incident to courts of record. Act of 1840, Sect. 3. One of these is the power now contended for. They have all the jurisdiction of the Criminal Sessions, by

* See Ante, p. 7.

Sect. 4. The judges of that court had severally the power, consequently, the court had it. Ex parte Bollman, 4 Cranch's Rep. 75.

FRIDAY, SEPTEMBER 4th.

Barton, P. J. The court decide that they have the jurisdiction, which indeed a majority of us have never doubted. It is not necessary to give an opinion at length now: that may be done hereafter.

Doran, J. While concurring with my brother judges, I should state, that I still think a single judge has not the power. The latter point I decided some weeks ago, after full argument.

Conrad, J. It must not be understood, that a majority of the court have decided against the jurisdiction of the individual judges.

OPENING FOR RELATOR.

Reed. It is unnecessary to speak of the importance of this case: in your Honours' wide jurisdiction you could hardly meet with one more worthy of your time and careful attention. It is a cause on which momentous results depend; the influence of which on society no one can appreciate. The deep interest that the parties feel, and its issue as to them, are of comparatively little moment. Bereavements more hopeless and agonizing than any which can occur here, take place every day, but leave no mark, except upon the recollection of relatives and friends. This question involves the whole law of parental controul and conjugal relations: your Honours are to decide what that law is-to decide whether a wife and mother may, without any cause known to the laws of God or man-none such is pretended here-desert her husband, and deprive him of his only child.

The question thus presented is not only great and important, but also quite new, at least in Pennsylvania. In every case where, in this state, an infant child has been awarded to the mother, there has been some insuperable obstacle to her living with the father; either a divorce, or legal grounds for it. Such is not the present case. Mrs. d'Hauteville has never sought a divorce, and certainly could not obtain one.

The abstract right of the father to the custody of his children is undoubted, incontestible, in both England and America. The enforcement of that right has sometimes been postponed, in the exercise of judicial discretion, during a tender age; but never where no reason existed to prevent the parents from nurturing it together.

This case is peculiar in other aspects. The cases previously adjudicated have been cases of American marriage, where no conflict of laws arose. This marriage was solemnized in Switzerland: the laws of that country on the subject will be put in evidence.

Another peculiarity is, that the father is a citizen of a foreign state, and claims his child to take it home with him-to that home where, hereafter, as is conceded, it must be educated and pass its life.

In every adjudicated case, it has been ordered that the father should have free access to his child, while in its mother's custody. Here this is impossible. The relator must soon return to his own country: he

cannot remain to watch over the health, the intellect, and the character of his child.

In every aspect, then, whether you look at the deep interest of the parties, the important social principles involved, or the novelty of the case, it is specially commended to your Honours' attentive consideration. It is the case of an innocent father seeking the possession of his only child-a son, kept from him through no fault of his, but by the perverse and misguided conduct of his wife and her friends. The child is in the custody and under the controul of a young mother, who has causelessly deserted her husband, or of the mother's parents, who justify that desertion.

The court is invested with a high discretion, to which the relator confidently addresses his claim. It is no loose discretion, no caprice or whim; not a discretion to be warped by sympathy with either parent; but a high, judicial discretion, fixed and limited by well settled principles. It is to be exercised with regard to the child's best interests: not fleeting, transient interests, but permanent ones: its interests as a Swiss citizen and resident, which it must hereafter be; its interests as an accountable being, in this world and the world to come. Perhaps, though I hardly dare to indicate this reason-perhaps giving up the child might induce a re-union of its parents: would not such a re-union be for its best interests?

We propose to show that its true interests can be promoted only by awarding it to the father, to be educated in Switzerland, where it must hereafter live; to learn the language of that country, and become familiar with its institutions, influenced by the example of one who has to reproach himself with no violation of the marriage vow.

It is due to my client to say, that it is with sincere pain he resorts to legal process. The evidence will satisfy your Honours, that he comes before you reluctantly; only after every friendly endeavour was exhausted; only after following the respondents through five states of the Union, and narrowly escaping the divestment of his rights by special legislation.

We shall submit evidence of various kinds, embracing all the correspondence between the parties and their parents, within our controul. To that correspondence, as the best guide, we shall mainly direct your attention. From the whole evidence will appear the following state of facts:

[The statement here made is omitted, because the facts of the case, as alleged by the relator, have already appeared, in more minute detail, in his petition and suggestions.]

Such, briefly, is my client's case; the history of his wrongs, his sufferings, and his hitherto fruitless efforts to obtain redress. At last he is before your Honours, and is now met by the charge of having arraigned his young wife" with an unusual parade of publicity." Let it, at least, be remembered, he has never sought a private hearing. He did, indeed, ask secrecy until the writ was served, lest those who had before eluded the process of the law, might escape from your jurisdiction too: he has since made no such request. Your Honours have already said,*

*See Ante, p. 52.

that a private hearing would have resulted in gross injustice to one party, if not both. In an English case, where delicate private matters came into consideration, (Wellesley v. The Duke of Beaufort, 2 Russell's Rep. 1,) Lord Eldon said, "In most cases, certainly, it has been thought expedient that matters of this kind should be heard in private; but if the parties choose to have matters of so much delicacy, but of such mighty importance, discussed and argued in public, I know that it is one of the best securities for the honest exercise of a judge's duty, that he is to discharge that duty in public."

A single word of respectful caution to the court. There is an influence against which every tribunal, called on to decide such a cause, must resolutely brace itself. There is apt to be an exaggerated sympathy with one of the parties to such a controversy. No one can pretend to say, however, with whose affections a child is most closely entwined, and whether the manly fibres of a father's heart endure more or less agony in his bereavement, than do the tender cords which bind an infant to a mother's breast. In cases of bereavement by the hand of Providence,-more agonizing, because more hopeless than this will be, the father and the mother follow their infant to its grave, and there they mourn together. Here, one or the other will mourn in solitary desolation, and who shall say whose tears will flow most freely, whose sorrow will be most desolate? It is not my intention to derogate from the intensity of a mother's love. It is a feeling not easy to analyze, but still less easy is it to believe in the theory here advanced, that a mother can so abhor a father, and so love that father's child. It is an idle, it is a wicked doctrine; it is an insult to a mother's love. The main ingredient of this and every mother's affection, is the lingering recollection of the lover of her youth, of him who sought and won her, of him who, in the little church in Switzerland, led her a bride to the altar. She never looks in that child's face without a thought of that child's father; and every look of inquiry and solicitude which beams from that child's eyes; every time it stretches out its little hands towards her, she must think, and think with sadness, of the husband who, for one long year, has sought her in kindness, and, till hope was wearied out, has begged her to return to him.

The court will be told of hardship—that it is hard to take the child from the mother now: leave it, you are told, for a season, and the agony will be less. Will that decree be kind? Far, very far from it. If there be one true pleasure in a parent's heart, it is to watch the growth and progress of the child, its budding intelligence, its ripening mind, its first step, its first word. But if your Honours' decree be such as the respondents ask, will these be signs of joy to this young mother? Just the reverse: they will tell of the lapse of time, of the sure flight of the few years the child can be hers; they will count the moments of protracted agony-of agony from which there can be no relief. In kindness, spare her this delay. It is not for the "best interest" of any to perpetuate such feelings and such sufferings as these. Give this child to its father, and you pronounce the most just and gentle judgment your Honours ever gave.

SATURDAY, SEPTEMBER 5th.

RELATOR'S TESTIMONY.*

Reed commenced giving the evidence for the relator.

LETTERS.

April 26th, 1837. Mrs. Sears to relator. Paris. Merely accepting his offer o procure tickets for her for a concert.

May 23d, 1837. Same to same. Paris. See Ante, p. 150.

June 15th, 1837. Mr. Sears to M. le Ray de Chaumont. Paris. Ante, p. 68. This letter, as were a few others, some from design, some from inadvertence, &c., was not read in this place; but as the general plan of the counsel was to follow the order of time, and as this will be most intelligible to the reader, we shall arrange all the letters according to their dates. From what follows, it will be seen that, at first, the counsel for the relator did not intend to offer, in evidence, the correspondence with Mr. le Ray de Chaumont. Subsequently, however, they changed their purpose, and submitted all the letters within their power, including a large number, at their call, produced by the respondents.

June 16th, 1837. Mr. le Ray de Chaumont to Mr. Sears. Paris. Merely agreeing to the proposal contained in the last letter, (Mr. Sears's,) and appointing a time for an interview.

June 20th, 1837. Mr. d'Hauteville, senior, to Mr. Sears. Paris. Ante, p. 18, third line from bottom, insert" You obtained information respecting us, and every day, Gonsalve," &c. P. 19, fifteenth line, for "Nevertheless,” read “In the mean time you objected," &c. Middle of page, for " Mr. D. Sears," read "Mrs. Sears." Same date. Mr. Sears's answer to the above. Paris. Ante, p. 71.

June 21st, 1837. Mr. Sears, at Grandvilliers, to Mrs. Sears, at Paris. Ante, p. 20. Again, p. 74. The latter a correct copy: the former re-translated from a French translation.

Cadwalader. We are willing that the whole correspondence should be read, but here a discrimination is made; that with Mr. de Chaumont, for example, being omitted. Not wishing, by silence, to sanction the disregard of rules of evidence, which may hereafter be enforced against us, we object to this letter, unless offered merely to verify the copies put on record. It is not evidence against Mrs. d'Hauteville, no privity having been shown; and her parents are no longer parties, having put in a disclaimer.

The counsel for the relator stated, that they offered the letter for general purposes; as evidence of the res gesta, as well against the two respondents said to have disclaimed, who were undoubtedly still parties, or, at least, this not being the proper stage to determine whether they were or not, as against Mrs. d'Hauteville.

Cadwalader. The letter is inadmissible, unless merely to verify the pleadings. Mrs. d'Hauteville not only was not privy to the writing of the letter, but declares its statements erroneous;† and Mr. and Mrs. Sears are not parties. As to this latter point you must decide now, because this question of evidence depends on it. A disclaimer is conclusive, as the Supreme Court has decided in the case of a quo warranto. The court said they did not desire to hear the counsel for the relator. Meredith. The offer is put on two grounds: 1st, as evidence against Mrs. d'Haute

*The petition, returns and suggestions, filed by the parties, have already been given in full. They contain the most important parts of the correspondence; and, not to swell this volume beyond reasonable limits, we shall not here give the whole testimony, but merely referring to that before spread on the record, abridge the rest, in such a way, however, that nothing of importance shall be omitted. Some of the copies of letters thus to be referred to, were taken from imperfect drafts, and the translations of others are incorrect. Not feeling at liberty to alter records, we have made literal transcripts from them; but shall here, wherever necessary, point out corrections and supply their defects, on a careful comparison with the originals or accurate copies.

† Ante, pp. 73, 4.