cided that during the age of nurture, which continues until the child arrives at the age of fourteen, no child's wishes shall be consulted against the claim of the guardian by nurture.

In the United States this species of guardianship has no existence, the guardianship by nature, which continues until majority, leaving no room for it. Reeves Dom. Rel., 315; 2 Kent's Com., 221. It would be necessary, therefore, if years are to be the measure of capacity, to adopt some other rule than that adopted in England, or the liberty of choice would be quite gone.

But for reasons already suggested, mental capacity and not any certain number of years is regarded with us as the true criterion of the child's qualification to choose where choice is permitted.

The following cases from the English and American authorities will serve to illustrate the application of these general rules.

In R. v. Greenhill, 4 Ad. & El., 624, Lord DENMAN, Ch. J., said: "When an infant is brought before the court by habeas corpus, if he be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the court must make an order for his being placed in the proper custody."

In re Preston, 5 Dowl. & L., 247, Patteson, J., refused an application for a writ of habeas corpus, made on behalf of an infant's mother, then in India (the father being dead), in order to remove her son from the guardianship of the persons who had for some time had the custody of him, saying:

"In deciding this question it seems to me it is altogether useless to question the child, as to with whom he might wish to be. It is difficult to say at what age a child is capable of exercising a sound discretion, and judging for itself in matters of this kind; but it seems to me that it is but a mockery to ask a child of nine years of age whether he would sooner remain with the person who has brought him up, or go with a stranger."

In the case, Rex v. Johnson, 1 Stra., 579, the infant was nine years old, the court said: "this being the case of a young child, who had no judgment of her own, they ought to deliver her to her guardian," and he took possession of her in court.

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Very recently," says Forsyth, Custody of Infants, 106, "an illegitimate child seven years old, about whose custody there was a dispute in the Bail Court, was called up to the bench by Mr. Justice Wightman, and after having been privately questioned by him, found to be very intelligent, she was allowed to choose the person, although neither her father nor mother, with whom she was to reside. It was, however, agreed that the mother should have access to her at all reasonable times." In re White, Jan'y 25, 1848.

In re Lloyd, 3 Man. & Gr., 547, the child was between eleven and twelve years of age, and was allowed to choose. And the court intimated that she would have been allowed the privilege had she been only seven years old, for Tindal, Ch. J., said: "Had she been under seven years of age, the court would have said that she could exercise no discretion.”

In Regina v. Clarke, 21 Jurist, 335; S. C., 5 Am. Law Reg., 537, an infant of the age of ten years was brought up on habeas corpus upon the application of the mother, who was surviving parent, the father, who was a marine, having died without appointing a guardian. The father was a protestant, and the child had been baptised under his directions by a clergyman of the Church of England; but he had permitted the mother, who was a Roman Catholic, to give the child such religious instruction as was in

accordance with her religious profession. The child, after the death of the father, had been placed by the mother at the Sailor's Orphan Girl's School, where she would be educated, &c., in the Protestant faith. The object of the mother, in suing out the habeas corpus, was to remove the child to a Roman Catholic school. The Court of Queen's Bench held that the mother, as guardian for nurture, was entitled to the custody of the person of the child; that the court could not examine the infant as to her wishes or religious belief; that the mother was not bound to educate her in the protestant faith, nor had she lost her right over her by sending her to the Sailor's Orphan Girl's School; and therefore the court was bound to order her to be delivered to her mother.

In the United States the courts have generally inquired as to the capacity and intelligence of the child. In the Commonwealth v. Taylor, 3 Met., 72, Shaw, Ch. J., said:

"In point of law, a child of such tender years, seven or eight, has no will, no power of judging or electing; and therefore his will and choice are to be wholly disregarded. The natural and strong feelings of a child, which induce him to cling instinctively to those whom he has been accustomed to regard as his natural protectors, cannot be regarded as the exercise of a legal will or an intelligent choice.

"In Commonwealth v. Hammond, 10 Pick., 274, the child was between eleven and twelve, and its wishes were consulted. "In the case of The People, ex rel. Ordronaux v. Chegaray, 18 Wend., 637, there were three children, aged respectively 15, 13 and 9 years. They were all consulted respecting their wishes.

"In the case of McDowles, 8 John, 328, the youngest child was not more than nine years old, and was consulted in respect to his wishes, not only by the Chief Justice, but

afterwards on a suggestion that improper means had been used by the master, by three gentlemen of the bar appointed by the court, and his wishes were respected.

"In the matter of Doyle, Clark's Chy. Rep., 154, the putative father petitioned for the custody of his bastard child, then only six years old, alleging in his petition that the mother was of dissolute habits and unfit to have the custody &c. The case was heard upon affidavits. The Vice Chancellor held that the mother was entitled to the custody, as against the putative father, yet deemed it proper to examine, and accordingly did examine the child privately in respect to its wishes, and says: 'I find she is very well educated; that due care has been paid to her morals, her manners and her education; that she loves her mother and prefers to live with her; that she is daily sent to school; and that few girls of her age are better taught, either in mind or heart.""

In the case of the State v. Scott & wife, 10 Foster, 274, the child was eleven years old. The court appointed a committee of three members of the bar to interrogate the child, who reported that she was of sufficient understanding to choose, and the court suffered her to make her election.

In the case of The People v. Pillow, 1 Sandf. Sup. Ct. Rep., 672, the writ issued at the instance of the master against the father for three children, aged respectively 14, 11 and 9, and they were all privately consulted by the court as to their wishes.

"The eldest elected to go to the master, and the others to remain with their father, and ordered accordingly."

SECTION X.

VOLUNTARY TRANSFER OF CUSTODY.

It has been seen that a parent may emancipate his minor child by voluntarily relinquishing his claim to the services of the child, or by permitting the child to contract marriage or other relations inconsistent with filial subjection, and may also forfeit his right of custody by cruelty or gross neglect of duty.

Why, then, may he not transfer to another this right of custody which he may thus abandon or forfeit, especially where the interests of the child are not prejudiced by the assignment? And how can the court pronounce that custody, which is held under a fair agreement with the parent and not injurious to the welfare of the child, to be an illegal

restraint?

It is true of this as of many other questions, in habeas corpus proceedings, that the authorities do not all speak one opinion.

In Regina v. Edward Smith; In re Boreham, 16 Eng. Law and Eq., 221, on a writ of habeas corpus the return showed Emma Susan Boreham born 1847, daughter of Nathaniel Boreham and Susan his wife, sister of defendant, Edward Smith. In May, 1852, an agreement was entered into between N. Boreham and E. Smith, which recited that the wife, being dangerously ill, with the consent of her husband, requested Smith, her brother, in the event of her death to take charge of and educate and bring up her infant daughter, and by which Smith agreed to