for keeping it. If, then, a woman is obliged to separate from her husband, and wishes to retain her children, she must qualify herself by committing adultery.

The case is yet to be found, in which a court either here or in England, has given up a child, born in the country, to be carried out of it. King v. de Manneville. It is avowed that this child, if delivered to the father, is to be taken to Switzerland. Every one owes allegiance to the soil on which he is born: that allegiance he cannot shake off: in return for it he may demand protection. The fact of the marriage's taking place abroad can make no difference. You cannot expatriate the child. The laws of the Canton de Vaud appear to be very much the same as those of Pennsylvania; but here we have nothing to do with them. We are governed by the law of the forum.

The physicians say that Switzerland is not a suituble country for this child, afflicted as it is by peculiar diseases; and that Philadelphia is suitable as its residence.

Let us look at the so-called distinctions between this and the Addicks case, pointed out by Mr. Scott. Though the father had not been able to maintain his children, he was able at the time of the application. They were females, but, at the age of this child, his being a male makes no difference. Who will undertake to say that this is not to be the country of its permanent residence? Doe v. Jones, 4 T. R. 300. 2 Kent's Comm. ch. 1. 2 Viner's Abr. 261-A. 2, pl. 10, Alien. (Ingersoll here asked leave to cite Story's Conflict of Laws, 48.) Calvin's case, 7 Coke, 1. Judge Story's dictum is founded on the opinions of foreign jurists, not on the common law. The father may have access to the child, if he chooses: if it is removed to Switzerland, the mother will be denied access. But the feelings of these parties are not to be considered. Give the child that parent whose company and care are most important to it. There are obstacles to re-union here: this brings me to the causes of separation, which I shall examine, though they can have no influence on your judgment.

Mr. d'H's pressing his suit, at a time when he knew pecuniary negotiations were pending, the respondent supposing that they had been satisfactorily concluded, and that her parents were favourable to the match, was the source of all her subsequent woe. The Grandvilliers letter, written under a mistake, having been shown in hasty indiscretion, his father's pecuniary demands instantly rose. The stipulation that visits to America should be made whenever they pleased, was certainly, considering that he was a suitor, a contract, obliging him to permit visits, unless there were substantial reasons for refusing. Her condition immediately before marriage was most distressing. After marriage, Mr. d'H's conduct showed a concentration of selfishness: having no profession or business, engaging in no manly sports or occupations, he kept her always in his company, excluding her as much as possible from the society of her mother, treating the latter with coldness and selfishness, and omitting, in his intercourse with her, all the little courtesies of life. Who can wonder at the effect-tears, eyes swollen with weeping, and unspeakable wretchedness? You will remember the touching description given by her sister, of her throwing herself down on the stones to weep. Her heart was broken at Hauteville, and at

Geneva, there was no change in his conduct. The remarkable specimen of tactics displayed in the circumstances of his second visit to Paris, and endeavour to force her back to Hauteville, however creditable to his military talents, was the most cruel of all the injuries heaped upon her. After the physician had warned him, that either her mind or body would give way, if she were not indulged with a visit to America, he still continued his opposition, until, at last, she was brought to the borders of the grave, and the verge of madness. Mrs. Sears's conduct throughout, was kind and conciliatory.

Mr. d'H. accompanied his wife to Havre, and condescended to see her shipped-that was all. She arrived in this country broken-hearted, yet tried still to be affectionate; but his letter of the 24th of July com pelled her to resolve on separation; in this, but obeying the first impulse of human nature, for the preservation of her own life. No law, human or divine, can prescribe a return to that condition of mental torture, which must soon end in death or madness. After he comes to this country, she proposes a compromise: his answer is a search warrant sent to her father's house in Boston.

We entreat, that your Honours should not only decide upon the law which governs this case, but also vindicate the characters of Mr. Sears, and the different members of his persecuted family. He asks you to leave the temple of justice, and look upon the broken fragments of his household gods, the dying embers of his domestic hearth.

MONDAY AND TUESDAY, OCTOBER 5th AND 6th.

Ingersoll, for Relator.-The counsel for the relator are the advocates of peace: we desire to reconcile, not to separate. It is a fundamental principle of law, that a father has a right to the custody of his child. By virtue of that right this writ was obtained, at the earliest moment possible. What has been called a search warrant, issued in Boston, was in fact a writ of habeas corpus. The universal feeling of mankind is in accordance with the law governing this point. That the respondent was satisfied that existing laws were against her, appears from the efforts made in three states, to procure special legislation. Considerations of gallantry, or accusations of barbarity, not in evidence, but merely in argument, are not to work a deprivation of a father's right. The respondent herself, in her letters, has admitted that right. It is recognized by the laws of Massachusetts: 3 Mason, 485: 16 Pickering, 203. It is necessary to paternal responsibility; Rutherforth, 81, ch. 11. Corp. Jur. Civ. Inst. Lib. 1. Tit. 9. 3. Civil Code, 63. 201; (Ante, p. 232.) The general rule of law establishes the right of the father: there are indeed, exceptions to that rule: the court exercises a discretionary power to control the father's right: on the other side, an effort is made to turn the exception into the rule.

The age of the child is no reason for making an exception. Here, too, the mother's care is not incompatible with the father's custody: we desire re-union. If the law perpetuates this separation, it perpetuates crime. The "present interests" of the child are not to be regarded, but only its present condition, as bearing on its future interests. Com. v.

Addicks. This case is the only authority cited in opposition to the many referred to by us: it was the ground of the respondent's determination to come to Pennsylvania. If the case, as decided in 5 Binney, contains any thing adverse to us, it is overruled in 2 Serg. & R. for the younger of the two children, when delivered to the father, was younger than the eldest had been when denied to him; and the excuse made for this is wholly insufficient. However, the case there was essentially different from the present. That father, no matter what his means at the time of the application, had previously refused to support his daughters. He had a son in his custody. Not merely the adultery, but the second marriage of the mother was a bar to re-union. The point of law decided in the Addicks case is merely that the court have a discretion-that the father cannot demand his child ex debito justitiæ. It is said that the mother may retain her child till it is seven years old: then the Addicks case proves too much: in fact, as applied here, it would establish the mother's custody forever, until she could be convicted of crime. The only regularly reported decision in the Common Pleas is that in 1 Browne, 143, which is favourable to the relator: the manuscript and newspaper reports referred to, are not to be depended on. The case of People v. Mercein is still sub judice:* it is, besides, a peculiar case. Debates in the British Parliament have been read: there we have Sugden against Talfourd, Brougham against Lyndhurst. In the cases referred to, arising under the English Poor Laws, the fathers were all dead and buried. The stat. 2 & 3 Victoria, c. 54, merely gives the English courts that discretion, which ours are admitted to have.

In the last Addicks case, the children were given up to be taken out of the state. In the King v. de Manneville, there was a marriage contract, which governed the decision in regard to removal from England. The place of the child's birth does not of itself make a difference. This child is a Swiss citizen. Marriage Contract, Art. 1, Ante, p. 201. Civil Code, Arts, 6, 30, 116, 5. The birth-place is only prima facie of importance. Story's Confl. of L. 48; 2 Kent's Comm. 33; 2 Vin. Abr. Alien, A. 2, pl. 1, 2, 3. 6, 7. 16. 20, 21, &c. A child cannot be a citizen of two countries. The citation from 4 T. R. was only an obiter dictum, opposed to all the other authorities.

The relator here is of exemplary character, intelligent, moral and religious. His establishment at Hauteville is the seat of hospitality and taste. Picot's Statistics of Switzerland, 489. 468. The respondent's marrying a foreigner was the fatal step which has cost her so much misery. I hope it may be a lesson against, not only foreign marriages, but also foreign tours. If she married Mr. d'H. without affection, certainly she can live with him without affection; but there was affection on her part-the evidence of this is clear. The struggle in her feelings at Vevay does not prove the contrary: an agitated ceremony is usually the prelude to a happy wedlock. As to Mr. d'H's subsequent conduct, Mrs. Sears's testimony is conclusive: she told Dr. Warren, in Paris, that she had no fault to find with Gonzalve: she invariably gave

*This case, carried by certiorari to the Supreme Court of New York, was decided Oct. 21st, 1840. Judge Bronson read the opinion of the court, that the father Mr. Barry, was entitled to the custody of his child, though he could obtain it only by means of a new writ of habeas corpus.

him the highest applause. She was affected by home-sickness-her disease was not the result of cruelty.

It is said the child is more likely to live, if it remain with its mother. So is an old man. The physicians say Philadelphia is the healthiest place in the world: many persons would join issue with them on that point. From all that appears the climate and health of Switzerland is excellent.

There is nothing in the condition of the wife to make this case an exception. It can only be said she did not live happily. Suppose there were differences between her and the relator: there was no cause of divorce. It is for cases of difference that the rule of law contended for is established. Mrs. d'H. says she intended, when she bid her husband farewell, to return; and afterwards she declared her willingness to live with him, any where but at Hauteville. It is admitted that the acts complained of were in themselves trifling: most of them were connected with the difficulty in regard to America-the very source of her disease. That disease required peculiar treatment. At least, there is no evidence that he ever acted maliciously. All the instances of illconduct adduced, admit of a satisfactory explanation. His conduct in Paris may have been ill-judged; nothing worse can be said of it; and we do not know enough of the circumstances to say even that safely. It is plain that no force was ever intended. His father was extremely ill: a distressing disease was wearing him to the grave.

Nothing has occurred since the respondent's arrival in this country to justify separation: a single letter from the relator is the only cause alleged. Her conduct in regard to the child's name and baptism show clearly what is to be expected in case it remains with her. The excuse made proves just what we allege-that the father's wishes were postponed to those of others to the feelings of the god-father and clergy

man.

The right decision of this case demands great courage and nerve. Give the father his child, and you set an example of practical morality. I must hope that the counsels of discord will not prevail.

SATURDAY, NOVEMBER 14, 1840.

OPINION OF THE COURT.

Barton, P. J., delivered the opinion of the court.

In this case, the writ of Habeas Corpus was issued at the instance of Gonzalve Grand d'Hauteville, directed to Ellen his wife, and to David and Miriam C. Sears, her parents, commanding them to have before the court the body of Frederick, the infant son of petitioner and the said Ellen.

In the petition upon which the writ was issued, Mr. d'Hauteville set forth that he was a citizen of the Canton de Vaud, in Switzerland, and that he was married in the church of Montreux, in the said Canton, and according to its laws, on the 22d of August 1837, to Ellen Sears, whose father was then a citizen of Massachusetts in the United States. That

in the early part of 1838, his wife, with his consent, came to Boston, on a temporary visit; and has since, without any just cause known to the petitioner, refused to return to him, or has been prevented from doing so; and that, on the 27th of September following, she gave birth to the child whose custody he now claims. Mr. d'Hauteville adds, that he arrived in the United States in July, 1839, and has ever since been engaged in a fruitless attempt to recover his wife and child, the latter of whom has been restrained of its liberty by its mother and her parents, and detained by them in this country against his consent and permission. To the writ of Habeas Corpus, Mr. and Mr. Sears severally returned, that the said child was not in their custody, which they did not claim, and never had claimed. That the child and its mother were, and for some time had been, living with them, or one of them, for comfort and protection, which she (their daughter,) entirely merited, and would continue to receive, while it should be in their power to give it.

Mrs. d'Hauteville makes return, that she is possessed of the custody of her child; that, as its mother, she claims and is entitled to such custody, for the proper and necessary purposes of its care and guardianship, and for no other purpose; and that he is in no respect restrained of his liberty, or detained illegally; that his moral and religious educa-tion is, and will continue to be, suitably attended to; that, in her own separate right, she is possessed of ample means for its suitable support and education; and that its age does not admit of its separation from her without the greatest danger to its health, and even its life, which has been more than once severely threatened by attacks of illness. Mrs. d'Hauteville further avers, that she has left her husband, and is compelled to continue in a state of separation from him, in consequence of "a variety of circumstances," some of which are specified in her return, and others more particularly detailed in her further return-but all based upon an alleged total failure of the husband to realize the expectations of sympathy and affection, which he had excited previous to obtaining her consent of marriage, and a course of conduct towards herself and mother which had rendered her "inexpressibly wretched," and finally induced the conviction "that there was to be no mitigation of her sufferings while she continued in his society, and under his constraint." Mrs. d'Hauteville adds, that "her parents have, at her request, considered the causes of this separation, and given it their entire sanction and approval."

In the suggestion and further suggestion filed by Mr. d'Hauteville, "he denies, utterly and unreservedly, any just cause for separation, and any consciousness on his part of any matter or design other than an affectionate husband should conceive; nor is he aware, nor has he ever been aware, of any reason other than such as arises from the course his misguided wife has, by unhappy counsels, been led to pursue, which could exist for the interruption of their peace and comfort." Throughout the whole of the voluminous writings filed by the relator, in reply to those submitted by his wife, he breathes the most anxious desire for her return to his home and society.

In the delicate and unhappy issue thus presented for our decision, whatever fault or blame may attach to the separation, is visited by