9. The custody of children. In this coun try, the tribunal hearing a divorce cause is generally authorized by statute to direct, during its pendency and afterwards, with which of the parties, or with what other person, the children shall remain, and to make provision out of the husband's estate for their maintenance. There are few posi tive rules upon the subject, the matter being left to the discretion of the court, to be exer cised according to the circumstances of each case. The general principle is to consult the welfare of the child, rather than any sup posed rights of the parents, and as between the parents to prefer the innocent to the guilty. In the absence of a controlling ne cessity or very strong propriety arising from the circumstances of the case, the father's claim is to be preferred. Reeve, Dom. Rel. 3d ed. 453 ; 40 N.H. 272 ; 16 Pick. Mass. 203 ; 3 Hill, N.Y. 299 ; 24 Barb. N.Y. 521 ; 27 id. 9, and cases cited ; Bishop, Marr. & Div. c. 29. By the civil law, the child of parents di vorced is to be brought up by the innocent party at the expense of the guilty party.
Ridley's View, pt. 1, c. 3, 9, citing 8th Colla tion.
See, generally, Macqueen, Div. & Matr. Jur. ; Brandt, Law of Div.; Pritchard, Marr. & Div.; Swabey, Div.; 1 Blackstone, Comm. 440, 441; 3 id. 94; Bacon, Abr. Marriage; 4 Viner, Abr. 205 ; 1 Brown, Civ. Law, 86 ; Ayliffe, Parerg. 225 ; Comyns, Dig. Baron and Forte, C; Cooper, Justin. 434 et seq.; 6 Toullier, no. 294, p. 308 ; 4 Yeates, Penn. 249 ; 5 Serg. & R. Penn. 375 ; 9 id. 191, 193 ; Gospel of Luke, xvi. 18 ; of Mark, x. 11, 12 ; of Matthew, v. 32, xix. 9 ; 1 Cor. vii. 15 ; Poynter, Marr. & Div. Index; Merlin, Rep.; Clef des Lois Rom. As to the effect of the laws of a foreign state where the divorce was decreed, see Story, Ccnfl. of Laws, c. 7, 20C; and the article CONFLICT OF LAWS. With regard to the ceremony of divorce among the Jews, see 1 Mann. & G. 228. And as to di vorces among the Romans, see Troplong, l'Influence du Christianisme sur le Droit civil des Romans, c. 6. p. 205.