(concurring specially). Four years ago at the maternity hospital in Fargo a poor young woman found herself the mother of an infant for which she had no father. It weighed 4 pounds. The mother being destitute and having to earn .her own living by working' as a domestic, she arranged with the matron of the hospital to find somo good family to adopt the infant. A good motherly woman was found, who went from Wilton to Fargo, took the infant of two months, cuddled it to her bosom as her own child, and returned with it to her good home in Wilton. The foster mother being childless, the infant at once became the pet and idol of herself and her husband, and, under the best of care and nursing, it grew to be a bright and beauteous and happy child. Of course it was with grief and tears that the natural mother gave away her infant and signed a paper releasing her claim to it, but she did it for the good oi the infant and to preserve its life because she was unable to care for it.
Now she has married the father of the child and lives with him somewhere in Idaho, and another infant has come to her, and now she asks to regain the first child and to carry it out of the state and beyond the jurisdiction of the court, and to rend the ties of love and affection which bind the little girl to the mother who has preserved its life. There is nothing to show that the plaintiff has any means or any home, or that she is prepaired to give the child the care and comforts to which she has been accustomed. There is a showing of poverty and improvidence which indicates that an exchange of homes and a transportation to Idaho would bode ill for the child. Two years ago, when this action was commenced, the plaintiff and her husband had no home. She was a domestic ; he a hired man. At present they may have a homestead with a little shack on the plains in some valley in Idaho.
The primary and controlling question is the welfare of society and the welfare of the child. She is not a chattel to which any party can assert a. legal title, and the superior right is with the mo-ther who has preserved the life of the child, and not with her who abandoned it. Yet, strange to say, on this question the judges are divided and they talk of common law and legal rights and the scrap of paper which the mother gave with her infant to show that she released and abandoned it. And it is true the scrap of paper is but a link in the chain of evidence showing how the mother gave away and abandoned her infant the same as if *30she had wrapped it in a basket and left it at the door of some house. One judge says there is no common-law adoption; says there can be no adoption of a child unless in the manner provided by statute; but children were adopted long- before people knew anything of laws and statutes. In the legends of ancient Rome we read how a good motherly wolf adopted and nursed Romulus and Remus and how the boys grow up and always loved and cherished their wolf mother. The law of natural adoption has always prevailed among the human species and among the inferior animals,' and it has saved millions of helpless infants. If we repeal the law of natural adoption by deciding that a motherly woman cannot safely adopt an abandoned infant, then we doom such infants to perish by neglect, because the motherly instinct will not impel a woman to adopt an infant waif and to cherish it as her own if she knoAvs that the law may rend her heart and her dearest affections by tearing the child away from her. I cannot well imagine a scene more tearful and distressing than the tearing apart the little happy child and her foster mother. IIoav can such tearing be voted for by any judge who has at heart the welfare of the child and the welfare of humanity and of other children that may need a foster parent ?