it were not that this trial will not be conclusive. To postpone the hearing now, would amount almost to a denial of justice.

Doran, J. The issues were not regularly joined till the 2d instant, and since then, I think, the counsel for the relator have been guilty of no laches. They may have anticipated the admission of their affidavits, either by the court's decision, or by consent. I will not now undertake to decide whether the evidence desired is material. Mr. d'Hauteville is a foreigner, and it is desirable that he should have ample opportunity to maintain his rights, and go home satisfied, as to that point at least. I therefore think further time should be allowed.

Civil Code of the Canton de Vaud.-We here insert all the articles of this code cited on both sides.

The laws touching the condition or capacity of persons, govern the citizens of Vaud, even when resident in a foreign country.

5. Every child born of a Vaudois father, in a foreign country, is a Vaudois.

6. The foreign woman who shall marry a Vaudois, shall follow the condition of her husband.

30. The wife has no domicil other than that of her husband. A minor, yet under parental power, shall be domiciled with his father and mother. That domicil he retains, even after their decease. The person of full age, for whom a committee has been appointed (Le majeur interdit), retains the domicil which he had before the appointment of his committee (avant son interdiction.)

63. Children who have not attained the age of twenty-three years complete, cannot contract marriage without the consent of their parents: in case of difference of opinion, the consent of the father shall suffice.

79. The father, or, for want of a father (à défaut du père), the mother, or, for want of father and mother, the grandfathers and grandmothers, may oppose the marriage of their children and descendants, until they reach the age of twenty-three years.

105. Parents contract, by the very act of marriage, an obligation to nourish, maintain and educate their children.

114. Husband and wife owe mutual fidelity, succour and assistance.

115. The husband is bound to protect his wife, the wife to obey her husband. 116. The wife is obliged to live with her husband, and follow him to every place where he thinks proper to reside: the husband is obliged to receive her, and furnish her with all the necessaries of life, according to his means and station.

129. Either party may demand divorce on account of violence, cruelties, or serious injuries committed by one against the other.

133. Divorce may be granted, if one of the parties abandons the other. The deserted party shall obtain a divorce only after a five years' absence of the other, without prospect of return.

136. The temporary custody of children shall remain to the husband, plaintiff, or defendant, in an action for divorce, at least so long as the court decrees not otherwise, on the demand of the mother, or of other members of the family, or of duty, for the greater advantage of the children.

146. They (persons about to divorce themselves by consent) shall also be obliged to agree, in writing, on the following points:

1st. To whom the children of the marriage shall be entrusted, both while the proceeding is pending, and after divorce is pronounced.

156. * *

4th. The children shall be confided to the party who has obtained the divorce, (where granted on account of adultery, cruelty, or severe injury, condemnation to infamous punishment, or desertion,) at least until the court, on demand of the family, or of duty, shall decree, for the greater advantage of the children, that all or any of them shall be confided to the care of either the other party, or a third person.

159. Whoever the person to whom the children shall be confided, and whichever the parent charged with their maintenance, the mother and father shall respectively retain the right of superintending their maintenance and education.

199. The child, at every age, owes honour and respect to his father and mother. 200. He remains under their authority until his majority or emancipation. 201. The father alone exercises this authority during the marriage.

Petition for the perpetuation of testimony, in the Supreme Judicial Court of Mas

sachusetts, of David Sears, Miriam C. Sears, Ellen S. Grand d'Hauteville, (by D. Sears, her next friend,) and Frederick S. Grand d'Hauteville, (by D. Sears, his next friend,) against Paul Daniel Gonsalve Grand d'Hauteville, March term, 1839.

Cadwalader. The unusual extent of the pleadings will not have made the court forget, that this is the case of an infant, not yet two years old, from its birth in the custody of its mother, who is not denied to have taken proper care of it. Unfortunate differences have separated the parents, and the question is, will you interfere, on account of those differences, or for any other reasons? It is admitted, in terms, that the single inquiry for you to make, regards the infant's present welfare. It is now, in legal denomination, a nurse-child. The time when it ceases to be so is, for some purposes, the age of seven years, while for others it is later, even to fourteen. The term is never applied to a child over fourteen, nor ever denied to one under seven. To this period of nursing peculiar considerations apply. During its continuance, considerations connected with the child's nurture are paramount to all others. It has long been settled, that the residence of a child, for purposes of nurture, may be different from its legal domicil; and it is consistent with paternal power, that a child should be nurtured and educated in a place different from its father's residence and domicil. His right to direct its education is independent of its place of abode, or the person to whom it is confided; but very different considerations apply to controversies for its custody, between a parent and a stranger, and between the two parents, who each have duties to perform and rights respecting it. As against a stranger, a child must reside with a parent, when that parent desires it; but as against one parent, the other's claim rests on different grounds.

The term paternal power is improper: instead of it should be used parental power. It is a power conferred merely to facilitate the performance of a duty. The father's power is given, not for his own sake, but for the public good-the good of the child. When he cannot bestow proper care, his power ceases, even as against strangers. As between father and mother, higher considerations are involved. The latter is the child's appropriate nurse, to whom the health and safety of its early years are committed. During those years her custody is by law preferred. Every one feels that to deprive her of it would be an abuse of paternal authority, and in accordance with this feeling is the rule of law in Pennsylvania. Such being the rule, there should be no deviation from it; this case requires certainty beyond most others; that the advice of counsel, in their chambers, may prevent perplexity, doubt, and litigation, about subjects affecting such tender interests. In regard to this point our law has been firmly settled for a quarter of a century. The question is, then, are we to have a jurisprudence of our own? As settled, that law has been generally approved, because founded on nature and humanity, and in accordance with all philosophy. It is immaterial what the rule of other countries may be. We have been told of

infants, but a few months old, being torn from their mother's breast, to be given to unfeeling fathers. I do not believe these accounts. I am very happy that in Pennsylvania, at least, no such case has ever been. known.

The age at which an infant no longer needs a mother's nursing care is not settled: suffice it to say, that age is much more advanced than the age of this child. Every one knows, that a father is unfit to take care of an infant-physically unfit, and unfit by reason of his avocations. A mother will do for her babe what, not only no male, but no other female will do. She has watched it, and knows all the peculiarities of its constitution-all its symptoms. There is a perception in the eye of maternal affection, to which nothing can approach-a perception, distinct from experience, implanted in none but the mother.

Innumerable cases have occurred in the courts of this county, where plausible suggestions, such as there being a sister, or a grandmother, to whom the father might confide his infant, have been made; but the courts have always said, the rule is settled; to depart from it would be to invert the order of nature. There has been no case of exception. This infant possesses the peculiar advantage of a double birth-right: You will not deprive him of it. There has, besides, been no case, in which an American citizen, as he undoubtedly is, has been forcibly expatriated, under colour of law.

The law is settled, that you will not decide, on habeas corpus, a question of mere guardianship-only whether there is illegal restraint. The presumption of law is, that the custody of a parent is never illegal, and the party alleging the wrong must show it-something positively detrimental to the child-not in time past, or for the future, but for the present. How then can the past conduct of either parent be brought into question? The relator is highly respectable, is entitled to our hospitality, and to all the sympathy asked for him. But there is another party, though, if we are to believe the allegations on the opposite side, a party without a hand to do, a head to understand, or a conscience to approve or disapprove-entirely under the control of others. That wife whom the relator, in his letters, has spoken of as gentle and lovely, he has not scrupled to charge here with putting her oath to misstatements, and mutilating documents; but we shall not be forced into recriminations. Her character properly comes into consideration, only as affecting the present welfare of this child; and she is blameless. It is said she has deserted her husband without cause, and, therefore, is to be punished, while he should be rewarded; but this is not a suit either for divorce, or restitution of marital rights. You certainly will not, to punish the mother, overlook the child's interests.

After what the relator has put on the record, there can be no doubt that good cause for separation did exist. The misery of his wife is admitted, though paradoxically attributed to her not being separated from her mother. Her love for her mother and her country were so strong as to make her wretched, yet, if separated from both, we are told, she would have found her husband sufficient for her! It is alleged that Mrs. Sears brought about the marriage, hoping to make him live in this country; but no particular fact is relied on as proof of the assertion: we shall disprove it by her own testimony. That she should have

favoured the marriage so warmly, as is alleged, and yet been so reluctant to part with her daughter, as to prefer separating her from her husband, is a paradox, to which the mind can give but a reluctant assent. But the relator, admitting his wife to have been miserable while with him, and attributing this to her mother's influence, admits, also, that she was almost equally miserable before marriage, when that mother is said to have been so favourable to his suit. The only error committed by either of her parents was their permitting the marriage to take place. The court are spared the necessity of inquiring as to the reality of the respondent's sufferings-that is admitted. The relator's suggestions describe her as labouring, both before and after marriage, under a specific moral disease-nostalgia, or home sickness. Her misery being real, the question as to the sufficiency of its cause is immaterial, unless you resolve yourselves into an ecclesiastical court. Therefore we should say nothing of that cause, but for the injurious assertions which have been made on the other side.

[Here the counsel went into a review of the history of the case, which we omit, because that history has been before so fully exhibited, in the different documents put on record.]

If the theory of conspiracy is not supported by the proof, the relator's case must fail. Were the doors of a father to be shut against the respondent, when she besought the shelter of his roof? Are we to be told that his reception of her was a violation of a fundamental law of morals?

There is only one question between these parties, depending on foreign law-that is the question of divorce. By statute, in Massachusetts, and by a decision of our Supreme Court, divorce cannot be granted in either state, for causes occurring without their jurisdiction. But this, involving the causes of separation, is a wholly collateral question. Whatever those causes may have been, it is clear, that they in no way affect the moral character of the respondent, or her parents, so as to render her an unfit nurse for her child. With them it has been well taken care of, and they disclaim any authority preventing the father from giving the necessary directions for its education.

THURSDAY, SEPTEMBER 17th.

RESPONDENT'S TESTIMONY.

Deposition of Dr. John C. Warren, of Boston, taken, on behalf of the respondents, at Philadelphia, July 30th, 1840.

I have known the respondent ever since her birth. I have been her physician and the physician of her father's family, while she has been in America, from the period of her birth. I am connected in the family, by the marriage of Mr. Sears with my wife's sister. I have always been on terms of intimacy with all the members of the family. I was, also, at one period, her physician in Europe, for a very short time. I was in England at the time of her marriage. She had always remarkably good health previous to her marriage, and good spirits, though of a quiet, even temper of mind. She was naturally intelligent and of good capacity. There was nothing, that I know of, defective in her constitution, bodily or mental. After her marriage, the first time I saw her was in December, 1837, for a few days. The second time I saw her, subsequently to her marriage, was in the month of April, 1838. I saw her in Paris at that time-on both those occasions. I remained the last of those occasions at

Paris, until Mrs. d'H. sailed, and some time afterwards. During that period, I saw her, and was consulted for medical advice. Twice, particularly, I was consulted in regard to her. Mr. and Mrs. d'H. were then living with Mrs. Sears, at her hotel, in the Rue-de-Rivoli. Mrs. Sears's family consisted, besides Mr. and Mrs. d'H., of two unmarried daughters, and, I think, her youngest son. My family lived quite near, in the same street. I think there was daily intercourse between the families. In the course of that intercourse, I saw Mrs. d'H. but rarely. She went out very little. I visited there myself, perhaps, once in three or four days. I usually, on those occasions, saw Mrs. Sears, and one of her unmarried daughters. Mrs. d'H. was not usually present on those occasions: I believe that she was in her own room. I had frequent and full conversations with Mrs. Sears, at that time, concerning the health of her daughter. I saw Mrs. d'H., for medical advice, at the request of Mrs. Sears and Mr. d'H. She was very much altered, both in external appearance, and in her state of body and mind. She had, naturally, a fine, florid complexion. At the period I speak of, she had very little remains of it. My first visit to her, professionally, was at the request of Mr. d'H., the relator. She was much emaciated in body: in mind I found her materially changed; more materially, perhaps, than even in person. She appeared abstracted, melancholy, and commanding her intellectual faculties slowly. I think that is the amount of her symptoms. I examined as to the state of her health, physically, in the first place. After many questions, I satisfied myself that she was not affected with an bodily disease; that the appearances which I have mentioned, of the changes in the state of her intellect, arose from anxiety; namely, from a strong wish to revisit her own country, and from an apprehension that she should not be allowed to do so. She had, as I have stated, no bodily disease. Her mind was in a morbid state. She appeared to me like a person approaching a state of mental alienation. During my visit to Mrs. d'H., Mr. d'H. entered the room. I informed him that my examination had resulted in satisfying me, that Mrs. d'H. had no bodily disease, that her disease was in the mind. I then checked the conversation-but I have omitted a fact. On making the statement to Mr. d'H. he immediately expressed his gratification at the information. This led me to apprehend, that, in consequence of my statement to him being imperfect, from the presence of the patient, he had not understood me. I interrupted the conversation, and requested of him an interview, the following day. On the following morning he called on me. In the mean time, from an apprehension that he might misunderstand me, I thought it best to put the most important facts, relating to the state of Mrs. d'H., in writing, which I hastily did, previous to Mr. d'H's visit. I did this of my own accord. On Mr. d'H's entering, I handed him the letter. The original letter, now shown to me, dated Paris, April 13th, 1838, is the same. * I then explained to him, more fully, the nature of the disease with which Mrs. d'H. was affected; and, in order to satisfy him, more fully of its character, I stated that his countrymen, as he probably knew, were frequently affected, in foreign climes, with so strong a desire to revisit. their native soil, as sometimes to produce insanity and suicide. He expressed himself as understanding the character of the disease. I terminated with advising him to take such measures to satisfy Mrs. d'H., that no impediment would be offered to the proposed voyage to America. I did so, as much from the desire to serve him, as to serve his wife and her family. I have stated all the facts. My belief is, that her situation was as aggravated as stated in that letter. I have no question that it would have terminated in mental alienation, provided her wish had remained ungratified. I saw her, again, about three weeks after, professionally. Her condition was then worse than on the previous occasion. Her countenance was more pallid. Her state of mental disease appeared to be aggravated, and the danger of insanity to be sensibly increased. I saw Mr. d'H. soon afterwards. I represented to him that her condition was not improved, but that I had found her worse than on my first report to him; that this deterioration of her state seemed to me to have arisen from renewed apprehensions of opposition to her wish to go home, to America. Further, I stated to him, in that conversation, that I would advise him, not only not to oppose her going to America, but to endeavour to satisfy her that he did not wish to oppose her. I believe that was the amount of the conversation. Mr. d'H. asked me a number of questions, which I replied to. Nothing was said about demeanor on his part. I endeavoured to convey to his mind, as I think I have already stated, that her state of mind arose from constant opposition 206.

* See Ante, p.