:m
BE BARRY.
113
In re (O-trcullt
BARRY. 1
Court, B. D. New York. Hay tIS,1m)
L
&.
..
I.
CORPUS-CUSTODY OJ' INJ'ANT. By t.he co=on law, both of England and tbe UnIted States, In virtue of tbe au· tborityof the sovereign as parens pat'l"'f.(e, the writ of habeas corpus will iSSU8 W determine the right to the cuswdy of an infant as between parents, who are 11,.. Ing apart. CoNSTITUTIONAL OF SoVEREIGNTy-PERSONAL RIGHTS. The government of the United States has no inherent common-law prerogative.. It possesses only such 88 are conferred upon it by the constitution, and therefore has no power W interfere in the personal or social relations of citizens by virtue of authority deducible frotnthe general nature of sovereignty. .JURISDICTION 011' FlIDERAL COURTS. The circuit courts· have not. as incident to their constItution 80Il lIuob, any comjurisdiction. 'fhey possess no other jurisdiction than that concurrently conferred by the constitution and congress of the United States. SAME-CONSTRUCTION OJ' ST.lTUTE. The, judiciary act of 1789,(1 U. S. ,St. at Large, c. 20. § 14,) provides "that all the before-mentioned courtSot· the Umted States shall have power to Issue writa of .Cire !aclas, ha,bet;ls corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of theIr respective jurisdictions, and and nsages of law, and that either of the justices of the , agreeable to the supreme'llourt, 80Il well as judges'of. the district courts, shall have power loP grant writs of habeas corpus for the purpose of inquiring into the cause of commitment: prOvided that writs of habeas corpus shall in no case extend to prisoners in gaol unless ,where they aro In custody under or by color of the authority of the Unit.;i States, or are committed. for trial before some court of the or are necessary to be b\'ought into court to testify. " ' Held, the power of the oircuit oourts to issue writs ofhaQea8 corpus is thereby limited W caS8S of commitment under process or authority Qf the United States; and they derive therefrom no authority to issue tbe writ for tbe purpose of determining, as between parents living apart., the right to the custody ci! an infantohild. SAM,E-STATlI LAW TO GOVERN-CUSTODY OJ' INrANT. If, under section 11 of said act, the oi'011it courts bave jurisdictiou of personal rights and duties because of diverse citizenshIp, or the allen age of a 'partYJ.tben, on appllcation of a citizen ofa foreign country residing without tbe united States for 'a writ of habeas corpua to have awarded to him tbe custody of hIs child, as against its mother and grandmother, who are cItizens of the state of New York, tbe court wlll be governed In its l1ecision by the law of New York as determined by its statutes and decisions. BA.ltE-ALIENAGE 01' PARTY-HABBAS CORPUS-CUSTODY OJ' IlI'II'ANT. Under 2 Rev. at. N. Y. p. 466, 5 23, on habeas corpus, and tbe decIsions of tbe court of errors on the same subject, the fact that a motber, haVing in nurture her femaleehild under seven years of age, keeps it from the father, Who lives apart from her, anllin a foreign country. does not entitle Uie .father to a writ of ha.l/e(U corpus to have its custody awarded to him. BAlllUII
Petition for Wtit of Habeas OJryua.
BETTS, J. On the first day of term the petitioner presented in open court and filed his petition praying that "the people's writ of habeas c0rpus ad BUbjiciendum lDay issue in his behalf, directed to Mary Mercein, relict of the late Thomas R. Mercein, deceased, of the city of New York, and to ,Eliza Anna Barry, wife of the petitioner, commanding them forth1 Published by request of one of tbe justices of tbe supreme rourt of tbe United States In connectIon with Ex parte Burrus, 10 Sup. Ct. Rep. 850. wberein It is cited and approved. T):le case was taken to tbe supreme court by writ ,f error, and in an opinIOn QelIvered by Chief Justice TANEY the judgment of t.hecircuit oourt. was alllrmed. BeeBarJ;'y;v.·M,ercein, 5 How. 108.1111,120.
V.421<'. no. 2-8
vol. 42. with, immediately on the receipt of said writ, to have the body of Mary Mercein Barry, daughter of. th,ll:p(ltitiongr, by them imprisoned or detained, with the time and cause of such imprisonment or detention, before this court, ,to do anq. shall then an4t11ere be considered of the said Mary Mercein Barry." The petitioner alleges that he is a native-born subject of the queen of Great Britain, resident in Nova Scotia, and naturalized, or claimedilaWl'ltlization, under the laws of the United States; that in April, 1835, inAh(l city of New York, he intermarrilld with Eliza Anna, daughter of the late Thomas R. of said city; ,that in the month thereafter he reMercein, a turned to accompanied by his wife, and there resided about where he a year, wherf'he removed his family to the city of resided until April, 1838" when he returned to Nova Scotia with a porand hos: con,tinued to l'eside'there'from that time; that a son and daughter ,were born of said marriage during his residence in the city ,QfNew York, and his removal to N;(jvaScotia he left hig wife and two',cfiildren tempOrarily with her rather in t'b.e city of New YOl'k;that,itFWe month,of May thereafter York, whendifficrilties Alrose ,betweerlhim and his wife respecting her removal she dE;lclareq with him, l'ather;.than ;tli'ink of going',f,Q Nova, Scotia; that he'reoiained inNew with a viE;lw,:t(.> arrange amicably the difl'erenees, between himself and wife, he to allow her ,tocc;>ntinUejn; York, at flltpel"s day of May, 1839, ail<), in her, ing that period, and also their son until such time as the petitioner might think proper to require hill1j to New York, and effort tocon.ciliate his wife, and indu.ce herto',consent to, future time home, in Nova .sheutterlr no hlB son expectatWh of 80 domg, the petItlOner along with him; that these attempts.to conciliate her were frequently repCS;l.ted awaitetl,tb&'expira.tionof the ;time 'he hli.d:' agreed lilie should 'reh1ain and,on' t4e 2d day of May;' 1839,formally"detnanded of the said Thomas R. Mercein the surrender of his said wife which detfiand was not complied with; that his wife, from that time to th,e"present period, has refused to return to his home, and has absented herself therefrom, conto bis, and has and does keep from bim, un'lfawflllly, hIS, IS Mw III the of her that T,homas R.. has late}ydE\ceasE\d, and that tHereby the WIfe of the 'l)etitioner is without any present property, and little or no prospect ,Of:anl in ,'has no of any kind 10 her own tight, and has od'means known to tlie'petItIOner for the a.nd their that she re.present or future Bupport ()f , sides. with;, and" .is harbored iri present viciQUS and. illegal condition 'b)T her mother, Thomas R. :tder.cein. The peti'tioner alleges his abiHty'to provide comfortably for the support and
own
IN RE
115
.education of hi3daughter, and especially daims that she is a British subject, allegiant to the crown of Great Britain, at least during her minority. The petitioner sets forth many other matters of aggravation in the separation from him, persisted in by his wife, and the countenance and support of her by her family in her conduct and refusal to return to her howe. These particulars it is unnecessary to rehearse, and the right to the remedy or relief claimed by the penioner is not, in this stage of the case, to be determined by a consideration of the relative conduct of these parents towards each other or the child, or of the advantages to the infantto be placed with the one ratherthan the other. These matters would be most material if the case had proceeded so far as to require from the court a decision upon the question as to the fit or proper disposal of the infant. The point now to be considered is whether the petitioner has presented a case coming within the jurisdiction of this court, or, if this court has cognizance of the matter, whether the facts stated by the petitioner entitle him to the interference of the court in the mannei prayed for. The same petition, in substance, was presented to the supreme court of the United States, at the last term, and was supported by an elaborate argument on the part of the petitioner. The court observes, (Ez parte Barry, 2 How. 65:) "It is the case oia private individual, who is an alien. seeking redress for a supposed wrong done him by another private individual, who is a citizen of New York. It is plain. therefore. that this court has no jurisdiction to entertain the present petition. ... ... ... Withollt. therefore. entering into the merits of ,the present application; we are compelled. by our duty. to dismiss the petition. leaving the petitioner to seek redress in such other tribunalof the United States as may be entitled to grant it. If the petitioner has any title to redress in thos'.! tribunals. the vacancy in the office judge of this court assigned to that circuit and district creates no legal obstruction to the pursuit. thereof." This instruction of the supreme court seems to be regarded by the petitioner as a declaration of that high tribumJ that the United States circnit court for this district has the power to grant the relief demanded by the petition. The expression of Buch opinion by that court, even in an incidental manner, and not on a point under adjudication, would have the highest influence with this court, and would undoubtedly be adopted here as the rule of decision. But the cautious and reserved phraseology employed by the supreme court in respect to the competency. of any other United States tribunal to take cognizance of the subject, is, in my opinion, to be regarded rather.!lS an admonition to the inferior courts that grave difficulties rested over the matter, than an assurance to them that their original jurisdiction contained the authority to award the commonlaw writ of habeas C0'I7iU8 ad subjiciendum prayed for. That court says of itself: "We cannot issue any writ of habeas corpus, except when it is necessary for the exercise of thejurisdiction, original or appellate, given to it by the constitution or Jaws of the United States,"-language plainly not employed to import that a,circuit court has in this behalf a capacity transcending that. of the supreme court, and can create a jurisdiction to
116
FEDERAL REPORTER ,
vol. 42.
itself by awarding writs of habeas corpus. This opinion of the supreme. court, I think, supplies no authority or suggestion in aid of the jurisdiction now invoked, and, taken most favorably for the petitioner, merely leaves the question as to its power to award the writ to be settled by the circuit court in consonance with the constitution and laws of the United States. The application to the supreme court was supported by an exposition of this case, intended to show that this petitioner's claim had been unjustly'adjudged against in the courts of this state, and that the interposition of that tribunal was necessary to correct these erroneous judgments, and secure the legal rights of the petitioner. That argument, with the decision of the supreme court on this motion, was also submitted to me with the petition when filed. On the perusal of these papers, I at first hesitated as totha course most proper to be pursued preliminarily,..,...-whether to grant a rule against Mrs. Barry and Mrs. Mercein to show cause, why the writ should not issue, or even to. award the writ, with a view to have the entire case spread before the court, or such points presented as would lead to a .definite decision of the case: But, as the adoption of either alternative must involve greilt delay and expense, both in the disposition of the case in the first instance, and in removing it by either party to the supreme.court for revision, and as the right of the petitioner to relief in this court, under any aspe,ct of the case, was doubtful, I ,eonceived it the least/e:ltpensive and more convenient course t<l inquire and deCide whether the petitioner presented a case of which this court should take cognizance. ' When the "cause of imprisonIT)Emt or detentiollshown by the petition satisfies the court that the prisoner would be remanded if brought up, the writ willllOt be awarded. Watkins'Oase, 3 Pet. 201, per MARSHALl., C. J.; Milburn's Case, 9 Pet. 706; 2 Story, Const. p. 207, § 1341; Ex parte Bollman, 4 Cranch, 75. The practkle in the English courts is the same. Bac. Abr. "Habeas Corpus," B 4, cases cited; 4.Com.Dig. (Day's Ed.) 550, and note 3; Hallam's Const. La \V, 20; Penrice's Case, 2 Mod. 306; Slaterv. Slater, 1 Lev. 1; Kingv.Marsh,3 BuIst. 27; Whitev. Wiltsheire,2 Rolle, 138. If, upon the facts:stated by the petitioner, it shall be deter.. mined that the court cannot grant the relief prayed for, either for want of juritldiction, orbecause the law is against his demand, it would be inexpedientand oppressive tocanse the partiesimplicated to be arraigned before this court, and held under its control,' pending the discussion and considera" tion of the sl1bject, and, accordingly ,upon the doubts arising from .a perusal of the papers, I deemed; it proper to invite the petitioner in the first instance to support his petition by arguing these two points: (1) Whether. the United States circuit court has jurisdiction over the matter of his petition. (2}' If such jurisdiction exists, do the facts stated -upon the petition give the petitioner, under the law of the land, a title to the remedy prayed for? The petitioner has read an argument, pre. pared .with great research and ability,in support of the affirmative of both inquiries, bringing into review numerous English and :AD;lerican decisions upon the same question, and has submitted the manuscript to the examination of the court. With the aid of this most ample discus.
IN BE BARRY.
117
sion oHhis subject, I proceed to pronounce the result of my reflections upon this interesting and important case. of awarding proofs, at the instance of husband or wife, The to take away an infant child from the parent having it in nurture and keeping, upon the allegation that such keeping is a wrongful imprisonment, is most palpable and striking. It is a bold figure of speech, or rather fiction, to wh}ch the law ought not to resort, unless indispensably necessary to be employed in preservation of parental rights, or the personal fondness of the child. The courts, however, assume such supposititious imprisonment to exist as the foundation for jurisdiction, to a limited extent, over the detention of infants, even by their parents. on the ground that the writ is rather to be considered a proceeding in the name and behalf of the sovereign than by one named person against the other. Com. v. Briggs, 16 Pick. 203. There is no reason to doubt that originally'the common-law writ was granted solely in cases of arrest and forciblE;' imprisonment under color or claim of warrant of law. As late as 2 James II., the court expressly denied its allowance in !j,caseof detention or restraint by a private person, (Rex v. Drake, Comb. S5; 16 Vin. Abr.213;) and the habeas corpus act of Charles 11., which is clllimed as the Magna Charta of British libel·ty, has relation only to imprison- . ment on criminal charges. ,3 Bac. Abr. 4158, note. It is not important to inquire at what period the writ was. first employed to place infant children, under the disposal of courts oflaw and equity. This ,so in England anterior to our Revolution, (Rex v. Smith, 2 Strange, 982j Rex v. Delaval, 3 Burrows, 1434; Blissets' Case, Lofft, 748,) and the practice has been fnlly confirmed in the continned assertion of the authority by those courts unto the present day, (King v. De Manneville, 5 East, 221; De Manneville v. De Marmeville, 10 Ves. 52; Ball v. BaU, 2 Sim. 35,; Ex parte Skinner, 9 Moore, 278; King v. Greenhill, 4 AdoI. & E. 624;) and this indifferently, whether the interposition of the court is demanded by -the father or mother, (King v. Greenhill, 4 AdoI. & E. 624; Ex parte Skinner, 9 Moore, 278.) The late act of 2 & 3 Viet. c. 54, (1839,) sanciions the principle, and would seem to reinstate the old dictum, that the judgment and discretion of the court is not to be controlled by any supposed legal right of the father in exclusion of that of the mother, if the infant be within the age of seven years. An act of the state of New York passed in 1830 had established the same doctrine within this state by positivelaw; and, independent of this statute, the course of the Ameri.can courts in this respect had been substantially in consonance with the decisions in England antecedent to the Revolution. In re J'[cDmvle, 8 .Johns. 253; In re Waldron, 13 Johns. 4J8; In reWollstonecrnjt, 4 Johns. eh. 80; People v. Mercein, 8 Paige, 47; Corn. v. Adqu;ks, 5 Bin. 520; Corn. v. 16 Pick. 203; State v. Smith, 6 Green!. 462.. The later cases New York are founded upon a principle common to all the decisions .cited. People v. - - - , 19 Wend. 16; Mercein v. People, 25 Wend. 80; People v. Mercein, 3 Hill, 400. But, in so far as they )'nay seem favor -the lateE.t adjudications in England, in re!3pect to th,efixed and Gontrolling right oLthe father, as the true exposition of the common-Iawrulel they
FEDERAL
are'modified, and overruled bythe decisions of the court or errors. Mercein v. People1 25' Wend. 106, and Sittings 1844; MSS. The petitioner in this ca:se asks of the court the award of the common-law writ of habeas CorpU8 ad 8Ubjidiendum, with all of its bOrnman-law attributes ailo efficacy. That is a high mandate, by means ,of which court8 or judges, in protection of the liberty of individuals, exercise functions appertaining to the only in the sovsovereign power, and which, in intendmentoflaw, ereign, and are co-extensive with his dominion. Kendall v. U. S., 12 Pet. 627, 629. The writ is purely one of prerogative, Whether emanating from a king or a state; whether returnable before the king in per. SOll, as it undoubtedly was in its origin, or awarded and acted upon by magistrates as surrogates of the sovereign authority,-it has always been made to bririg the party imprisoned directly, before the supreme power, that, if there be not due CRuse of law for his detent,ion, the sovereign may set him free of his restraint.8Bl.Comm. 131; Bac. Abr. "Habeas Corpus," 421; 2 Story, Const.207; Ex parte Watkin8, 3 Pet. 202; 2 Kent, ConHn. 26, 29. lnrespect to married women or other adults held in detention by private individuals, the sovereign, through this writ, acts as conaervator pacia and morum, nnd, in regard to infant children,asparens patria3, taking, in these high capacities, summary ordel' that the party be forthwith set at liberty, if improperly and wrongfully detained. 'Blissets' Case, Llfft; 748; In re WaldrO'1'l', 13 Johns. 418; People v. Chegaray, 18 Wend. 637;People v. Mercein, 8 Paige, 48; U. S. v. Green,S Mason, 482. The state thus acting upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, takes upon itself the power and right to dispose of the custody ofchilclren as it shall judge best for their welfare. People v. Ohegaray, 18 Wend. 642, 643; Blu8ets' C'ase, Lofft, 748. The cases before the English and American courts act in this behalf solely cited show UpOll the assertion of the right of the sovereign whose power they ad· minister to continue or change the custody of the child at his discretion, as pal'enB patria3, allowing the infant,if of competent uge, to elect for him· self; if not, making the election for him. E\Ten in the extraordinary conclusions drawn from the facts brought to light in Com. v. Addicks, 5 Bin. 520, and King v. GreenhiU, 4 Adol. & E. 624, both courts, in denying that these facts called for any change of the custody of the children, fl:'adjndgeri the principle that it was their province, at common law, authoritatively to decide that question according to their legal discretion. Does this cOlIlmon-lawprerogative in relation to infants vest in the government of the United States,'and has the circuit court competent . authority to exercise it? The argument bearing upon the first branch of this inquiry assumes two propositions as its basis: (1) That the government of the United States 18 supreme over aU subjects within its cognizance jand (2) that the common law of England is embodied with, and has become a measure and, source of authority to, the national government, and is to be enforced in the circuit court whenever persons competent to sue in those couitB prosecute their rights therein. It is believed that neither of these prbpositiol1scan be maintained, and cer-
i
IN BE BARRY.'
119
tainly not in respect to the subject-matter of this proceeding. Many of the powers of the general government are unquestionably supreme and exclusive, while others, especially those in relation to remedies afforded by its courts to private suitors, are only concurrent with similar powers possessed by the state governments. If the power, in respect ito parties competent t{) sue in the national federal courts could be supposed to exist,in its absolute !lense, in the United States government, its exercise has been modified and restricted by congress in the eleventh section of the act of September 24, 1789, which gives the circuit courts no more thana concurrent jurisdiction with the state courts of suits of a civil nature at common law. 1 U. S. St. at Large,78. Nor, again, do all attributes of sovereignty devolve upon the national government. Whether considered as emanating directly from the people in their aggregate capaeity, or as proceeding from the states in their independent organization and,ehal'acter, the goverriment of the Union is one of special powers, defined or necessarily implied in the terms of the grant. McOulloch v. Maryland, 4 Wheat. 407; 2 Story, Const. §1907; Rhode Island v. Massachusetts, 12 Pet. 657. Though·,the point has been labored with ability by a late jurist of eminence ih this department of legal learning, to deduce from the circumstances attendant upon the establishment of this government that the common law became embodied in it, as an effinient principleofits authority and action, (Dup. Jur. 85-90,) yet, the doctrine ,has never been declared or sanctioned by our courts. So far as the decisions have gone, they tend to repudiate the principle in toto. U. S. v. Hudson, 7 Cranch,32; U. & v. Coolidge, 1 Wheat. 415. There is, accordingly, noaure foundation for the assumption that the federal government possesses common-lawprerogatives,,jnherent in the sovereign, which can be exercised without authority of positive law. Martin v. Hunter's uAlBee, 1 Wheat. 329. If any common-law prerogative in relation to the administration of justice can be proved to exist in the sovereignty of the Unit.ed. States, it must, upon the same principle, be endowed with all such prerogatives,' and can, on the like authority, unless inhibited by positive la1v, award'writs of'l'OOndamu8, quo 'Warranto, ne exeat, or mandates to citizens a.broadto return home on pain of confiscation of. their estates, (Com. Dig; "Prerogatives" D 34.35,) or this ,writ of halJeas corpua; they being all common-law writs ejuadem generis. That such attributes or functions of sovereignty'cannot be inherent in the United 8tatesgovernment necessarily re!lultsfrom the character of the government, and the objects of its constitution. It iSIlot designed, in' its organization or aim, to regulate the individual or lnunicipal.relations of the citizen. These are left under the dominion of the state government; and'. there accordingly exists no relation between the nation and the individuals which affords foundation for these prerogatives. The social or personal duties or liabilities of the citizens come within the control of the general government only when remitted to its charge by a special cession of authority, and then solely to''theeno. that such regulations as are of a federal character may be enforced, as inrellltion to land and naval forces and persons in the employ of the United States, the punisQment of offenses, etc.; but in otherre-
'120
FEDERAL REPORTER,
specta the national government does not supply the law the citizen in his domestic or individual capacity. 'rhese particulars appertain to the institutions and policy of the respective states. This reasoning, however, may not be supposed to meet fully the case presented by the petitioner; for although, in the abstract, there may be no prerogative authority in the head of the United States government, yet the argument would maintain that its courts of justice, as organized, may possess all the powers exercised by superior courts at common law, and the issuing and acting upon writs of habeas COrpUB ad subjiciendum become ,thereby a branch of jurisdiction necessarily incident to the constitution of such courts. This hypothesis overlooks the peculiar foundation of the United States judiciary, and the allotment of its functions in respectrto the powers of the states. The federal government came into force co-ordinately with, or as the concomitant of, state governments at the- time and in the full exercise of legislative, executive, and judicia:l so\7ereignty. These sovereignties are left entire, under the action of the general government, except in so far only as the powers are transferred ,to the federal hea,d by the constitution, or are by that prohibited to the states, or, in some few instances, are allotted to be exercised concurrently.:by the two governments. The United States judiciary is constituted arid put in action in the several states, in subordination to this ·fundamental principle of the Union, and empowered to exercise only such peculiar and specialsupremacy, and not one in its absolute sense. To render this connection of the United States judiciary with that of the states more intimate and entire, and to take away all implication that it was a paramount power, acting irrespective of state laws, or that it posBessed, or could exercise, any inherent jurisdiction countervailing those laws, the act 6f congress organizing the courts establishes it as an element in their procedure that the laws of the state where the court sits shall be its rule of decision in common-law casell. It necessarily results, as a consequence of this speoial character of the United States judiciary, that ·it can possess no powers other than those specifically conferred by the constitutionol'laws of the Union, and such incidents thereto as are necof its jurisdiction. All other judicial essary to the powers necessary to the complement of supreme authority remain with, and are exercised by, the states. This doctrine is sufficiently indicated in the decision of the supreme court made in this case at the last term, and it has been invariably, recognized from the earliest adjudications of the court. Chislwltm v. Georgia, 2 Dan. 432, 435; Ex parte Bollman, 4 Oranch,75; Ex parte Watkins, 3 Pet. 201; KendaU v. U.S., 12 Pet. 524. ·The jurisdiction of the United States courts depends exclusively on the constitution and laws of the United States, and they can neither in {;riminal 'nor civil cases resort to the common law as a source of jurisdiction. U. S. v.'HoosO'n, 70ranch, 32; U. S. v. Coolidge, 1 Wheat. 415; Chislwlm v. Georgia,2 Dall. 432; Ex parte BoUman, 4 Oranch, 75; of Pawlet v, Olark. 9 Oranch, 333; Ex parte Randolph, 2 Brock. 477; Omig v. Mi8souH, 4 Pet. 444; Wheaton v. Peters, 8 Pet. 658j The Orleans v. PhrebUB, :l.1Pet. 175; Kendall v. U. S., 12 Pet. 524.
IN RE BARRY.
121
It is now argued that this principle is limited to the supreme court, but that, in respect to the circuit courts, they have a common-law jurisdiction incident to their constitution, inasmuch as judicial sovereignty resides in them, rendering the range of their original jurisdiction coextensive with the subjects of litigation arising under the constitution and laws of the United States, and because all remedies not otherwise provided are, in the exercise of that judicial sovereignty, to be in conformity to the common law. Although the speculations of our most eminent jurists may countenance this argument, (Dup. Jur. 85; 1 Kent, Comm. 341,) yet it has not received the sanction of the United States courts. Ohisholm v. Georgia, 2 Dall. 435; KendaU v. U; S., 12 Pet. 616, per curiam, and 626, Chief Justice TANEY; Ex parte Bollman, 4 Oranch, 75; Ohief Justice MARSHALL, Ex parte Randolph, 2 Brock. 477; Lorman v. Clm'ke, 2 McLean, 569. The distinction established by the cases is clear and practical, and embraces all United States courts alike, and is, in effect, that those courts derive no jurisdiction from the common law, but that, in those cases in which jurisdiction is appointed by statute, and attaches, the remedies in these courts are to be according to the principles of the common law. Bains v. The James and Oatheri'Tlj, 1 Baldw. 558; Robinson v. Campbell, 3 Wheat. 223; U. S. v. Hudson, 7 Cranch, 32; Ex parte Kearney, 7 Wheat. 38; Anderson v. Dunn, 6 Wheat. parte Randolph, 2 Brock. 477. It is not, accordingly, conclusive of their right to. take cognizance of the subject-matter, to show that the parties connected therewith are competent to sue or be sued in the United States courts, and that there is a perfect right of action or defense thereupon supplied such parties at common law. The evidence must go further, and prove that the particular subject-matter is one over which the courts are by act of congress appointed to act,or that the question has relation to the remedy alone, and not to the jurisdiction of the court. U. S. v. Bevans, 3 Wheat. 389; McOulloch v. Maryland, 4 Wheat. 407; Rhode Island v. Massachusetts, 12 Pet. 721. The authority to take cognizance of the detention of infants by private persons, not held under claim or color or warrant of law, rests solely, in England, on the common law. It is one of the eminent prerogatives of the crown, which implies in the monarch the guardianship- of infants paramount to that of their natural parents. The royal prerogative, at first exercised personally ad libitum by the king, (Kendall v. U. S., 12 Pet. 630,) and afterwards, for his relief, by special officers, as the lord high constable, the lord high admiral, and the lord chancellor, in process of time devolved upon the high courts of equity and law, and in them this exalted one, of allowing and enforcing the writ of habeas corpus ad subjiciendum, became vested as an elementary branch of tion. In the performance, however, of this high .function in respect to the detention of infants by parents, etc., the court or judge still acts with submission to the original principle out of which it sprang, that infants ought to be left where found, or to be taken from that custody and transferred to some other, at the discretion of the prerogative guardian, and according to its opinion of their best interest and safety. The reference
FEDERAL REPORTER ,'vol.
42.
already made to the origin and object of our Federal Union demonstrates that n()prerogative of this character could be exercised as an incident to its qualifiEld and peculiar sovereignty; and I think it equally clear that the inqerent authority of no branch of the judiciary' can transcend that in this behalf,and that it has no capacity to issue of act upon it, exooptunder appointment by positive law. Ex this parte BoWrtwn. 4 Oranch, 93. lt remains, then, only to consider whether such jurisdiction is con· ferred upon the circuit courts by stJatllte; for, even if the language of the constitution might import such authority to be within the competency of the judiciary l it is authoritatively' established that the circuit courts, at exercise jurisdiction as to individual rights, because author. ized bt the constitution, unless congress has specifically assigned it to them. They possess no jurisdiction other than that which both the con· stitution' and acts of congress concur in conferring upon them. Turner v. Bank,' '4 Dall. 10; Bank v. Deveaux, 5 Oranch,61; Livingston v. Van Ingen, IPlline, 45; Braume v. Strode, 5 Oranch, 303; Kendall v. U. S., 12 Pet. 524; Ex parte Bollman, 4 Oranch, 93; McClung v. Silliman, 6 Wheat;. 59&. The ninth of the first article of the constitution, declaring that "the ptivilege of the writ of habeas corpus shall not be snspepded unless, when incases of rebellion or invasion, the public safety may're,quire it," does not purport to convey power or jurisdiction to the judiciary', It is in restraint of executive and legislative powers, and no further affects the judiciary than to impose on them the necessity, if the privilege of habeas corpus is suspended by any authority, to decide whethetthe' exigency demanded by the constitution exists to sanction the act.' So, although the second section of the third article gives the United States judiciary jurisdiction over all cases in law and equity betweeri'our9wn citizens and the citizens or subjects of foreign states, yet, as already shown, the circuit court cannot, under that provision, act on one of the subjects without an express authorization by statute. McClung v.Silliman,6 Wheat. 598. In our government the judiciary power acts only to give effect to the voice of the legislature. 08born v. Bank, 9 Wheat. 866. The materialr question in the case must, accordingly, be, whether congress has given to the circuit courts the special jurisdiction appealed to by the petitioner.·. Judge Story bolds that the courts of the United States are vested with full authority to issue the, gl'eat writ of habeas eotpus in cases properly within the jurisdiction .of the national government. 2 Story,Oonst. § 1341. The general doctrine the commentator is discussing, and the authorities supporting it, have relation to the law as it exists in England and in the respective states of the Union. The only case referred to as giving application of the generaldoctrine to the United States courts is that Of Ex parte Bollman, 4 Cranch, 75. That was a case of imprisonment on a criminal charge, uIiderahd by color of the authority of the United States, the prisoners having been committed by the circuit court of thelYistrlct· of Oolumbia on· a charge of treason against the United Statesj and the supreme court held that, though it could not take cog-
123
nizance of the matter under any common-law jurisdiction, yet the act of congress of September 24,,1789, bad conferred the jurisdiction,and they proceeded, by virtue of the statute, to exercise it in the case. The court nowhere advert to an implied power in the circuit courts broader than that vested in the supreme court,which would empower a circuit court to grant the writ upon the footing of a general jurisdiction in respect to the parties to be affected by it. The positions adopted as the basis of the decision would seem to look to an entirely opposite conclusion. Chief Justice MARSHALL says: "Courts which originate in the common law possess a jurisdiction which must be regulated by the cOmmon until some statute shaH change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. * * * It extends/in case of United States courts, "only to the power of taking cognizance of any question between individuals, or between the government and individuals. To enable the court to decide on such question, the power to determine it must be given by written law." This language of the chief justice is explicit against the theory that the United States courts have necessarily cognizance of all subjects of litigation arising between parties over whom they have jurisdiction. So in respect to another prerogative writ, that of mandamu8, the supreme court, in disavowing in itself the power to issue it in the common-law sense, holds, in terms not less definite and decisive, that the circuit courts cannot award it but by virtue of express authority from statute, (Kendall v. U. S., 12 Pet. 524;) and this conclusion has no exclusive connection with the particular writ of mandamus, but flows from the doctrine definitely announced by the court, that the United States judiciary has no authority to award prerogative writs of any character further than the power is specifically given by statute. The relntor refers to the argument of counsel in the case of Ex parts Bollman, as demonstrating that the fourteenth section of the act of congress of September 24, 1789, imparts to the United Sb!,tes courts authority as ample as exists in the supreme courts of judicature at common law in the application and enforcement of the writ of habea8 corpus. No judicial decision, unless it be that of U. S. v. Green, 3 Mason, 482, is found which sanctions that exposition of the statute; and it accordingly becomes necessary to examine with attention the foundation of the construction contended for. The terms of the statute are.. That all the before-mentioned courts of the United States shall bave power to issue writs of 8cirefacias, habeas C01'PUS. and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions. and agreeable to the principles and usages of law, and that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inqUiry into the cause of commitment: provided. that writs of habeas corpus shall in no case extend to prisoners in gaol, unless when they are in custody under or by color of the authority of the United States, 01' are committed for trial before som" court of the same, or are necessary to be brought into court to' testify."
124
FEDERAL REPOR.TER, vol. 42.
The scope and purport of this enactment were very oarefully considered by the supreme court. Ex pa1'te Bollman, 4 Cmnch, 75; Ex parte WatHns, 3 Pet. 201. The courts being authorized to issue the writ "for the purpose of an inquiry into the cause of commitment," the supreme court regarded the provisions of the act as incorporating in a considerable degree the English law on the subject, and that the statute of 31 Charles II. had· defined the cases in England in which relief could be had under the writ by persons detained in custody, and was an enforcement of the common law in that respect. The argument of the court tends clearly t4:> the conclusion that our act was to be construed as applicable to the· cases embraced within the English habeas corpus act, and as framed in reference to the law established by that statute. If the term "commitment" in our act is used in its common acceptation, it would have reference to the forcible confinement of a person under color of legal protest or authority. In its common-law sense, it imports an imprisonment under a warrant or order on a criminal charge. and no other, (4 Bl. Comm. 296; 2 Hawk. P. C. c. 10, §§ 1-3, 13-15;) and, under the statute, all the judges of decided that the act of Charles did not extend to any. cases of imprisonment, detainer, or restraint whatsoever, except cases of commitment for criminal, or supposed criminal, matters. 3 Bac. Abr. 438, note. As our statute uses the term "commitment," and drops the limitation of it in the English act, "for any criminal or supposed criminal matter," it may be reasonable, in favor of liberty, to understand it in its broadest signification. A court of deservedly high character decided that under our statute a writ of habeas corpus lies to inquire into the cause of commitment, though made on civil process. Erc parte Randolph, 2 Brock. 476. See, also, Bank v. Jenkins, 18 Johns. 309. But it is to be borne in mind that the supreme court hesitated as to the soundness of this interpretation of the statute, for in Ex parte Wil8mi, ChIef Justice MARElHAI,L,after consultation with the judges, on a motion for a habeas corptUJ, stated that the court was not satisfied that a habeas corpus is the proper remedy in a case of arrest under civil process, (6 Cranch, 52,) and the writ was denied; and to the same effect was the decision of the supreme court of New York. Cable v. Cooper, 15 Johns. 152. Ifthe more extended interpretation of the term be adopted, and cases 'of commitment for civil or criminal matters may be brought under review by habeas corpus, yet, -in view of the qualified character of the iederal government, and the special jurisdiction of its judiciary, the more reasonable inference would be that cOngress intended the protection of this writ should be interposed by its courts only in eases of imprison. ment under color or claim of the authority of the United States. Rawle, an emipent cornmentatoron the constitution, says that the writ of habeas corpus is restrained to imprisonments under the authority of the United States. Rawle, Const. U5. Every adjudicated ease in the United States courts, with one exception, has been under writs sued out for relief against an actual arrest of a party under process, or his confinement by claim of authority of the United States. U. S. v. Hamilton, 3 Dall. 17; U. S. v. Johns, 4 Dall. 412; Ex parte Burford, 3 Cranch, 447; Ex
125
parte Bollman, 4 Cranch, 75; Ex parte Kearney, 7 Wheat. 38; Ex parte Watki1l8, 3 Pet. 201; Exparte Milburn, 9 Pet. 704; U. S. v. Bainbridge, 1 Mason, 71; Ex parte Cabrera, 1 Wash. C. C. 232; &parte Randolph, 2 Brock. 447, in which a doubt is made whether the writ may not apply in case of imprisonment on civil process. Judge WASHINGTON, on habeas CorpUB, adjudged the matter not within the cognizance of the circuit court because tbe prisoner was not in custody by authority of the United States, and was not committed for trial before any of its courts. Ex parte Cabrera, 1 Wash. C. C. 237. The proviso to the fourteenth section, above recited, looks to such limitations of the writ. It is palpable tbat congress did not intend tbat an inquiry into tbe cause of commitment of a person detained sbould authorize the United States courts to interfere with his custody unless the subject-matter upon which he was confined was to be acted on and decided by tbe United States tribunals. This policy of the statute is emphatically indicated by the act of March 2, 1833, c. 57, § 7, in which special powers are conferred on the United States courts to liberate by habeas CorpUB even persons confined under authority of state law, for any act done, or omitted to be done, in pursuance of a law of the United States, or in pursuance of any order, process, or decree of any judge or court thereof. Both clauses denote that it was the violation of a law of the United States, or its just authority, in the imprisonment of the citizen, that was intended by congress to be inquired into and remedied by habeas corpus before the courts of tbe United States. My opiIlion upon this review of this subject is that there is no foundation for the claim tbat there is vested in the United States government a common-law prerogative, or that the circuit court can, upon the footingof common-law prerogative, by writ of habeas corpus, assume and exercise this function of parens patrite in relation to infant children held in detention by private individuals, not acting under color of authority from tbe laws of the United States. And it also seems equally clear to llle that the authority given by tbe fourteenth section of the judiciary act to issue writs of habeas corpus" for the purpose of an inquiry into the cause of commitment" necessarily restricts the jurisdiction of the courts ·to commitments under process or authority of tbe United States. I ·should, upon the conclusions against the competency of the court to take cognizance of the matter, feel constrained to deny the petition, but for tbe decision of the circuit court in tbe firflt circuit, in an analogous case, where the relief now prayed for was granted. U. S. v.Green, 3 Mason, 482. The jurisdiction of tbe court was not brought in question, and was undoubtedly conceded by the parties; but tbe acquiescence in a legal proposition so important by a judge of the exact and varied learning of Judge STORY, and one whose judicial habit is so cautious and investigating, is an imposing authority in its support. A citizen ('if New York sued out a habeas corpus against a citizen of Rhode Island, the grandfather of his infant child, to recover possession of the child, which was retainedand defended against the demand of the father. The court took cognizance of the and after full hearing decided the ques-
FEDERAL REPORTER,vol.
tion of rightfdl'custody, upon ihhnerits, in favor of-the father. It is supposedthat·the circuit court possessed such authority utIder the pro.. visions ofthe eleventh arid fourteenth. sections of the judiciary act. The eleventh section gives 'circuitcourts original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, ll.tcommon law or inequitY,'eto.,:whenone:party is'a·citizen of the state where the suit is brought,l1nd the other an alien, etc. 1 St. at Large, 78. It is well settled that congress has not in this section exhausted the powers vested in them by the second section of' 'the third article oithe constitution, and imparted to the· circuit courts· cognizance of all cases at common law which might be within the:cQntrol of the legislative power. Turner v. Bank, 4 11; Bank v. Deveaux, 5 Cranch,61. The supreme court Bay there is,manifestly,some limitation to the authority of the circuit courts in respect to the'cases therein brought within the purview of their jurisdiction, and that' those courts have not jurisdiction, under the eleventh section, of all suits or cases of a civil nature at common law.' Kendall v. U. S., 12 Pet. 616. Two particulars must concur as the foundation of It ·suit in a circuit court,-that the litigant parties be competent to sue and be sued, and that the subject-matter be one over which the court has cognizance. Voorhees v. Bank, 10 Pet. 474. A procedure by habeas corpus can in no legal sense be regarded as a suit or controvtJrsy between private parties. It is an inquisition by the ment--'-at the suggestion and instance of an individualiffiost probably, but still in the name and capacity of the sovereign-to ascertain whether the infant in this case is wrongfully detained, and in a way conducive to its prejudice. Neither in England or the states in this country does the court regard this as a suit in which the rightof guardianship is to be discussed or decided. &xv. Smith,2 Strange, 982; Peoplev. JI.[ercein, ·8 Paige, 48; In re Wollstonecraft, 4 Johns. Ch. 8.0; Inre McDowle, 8 Johns. 253. Judge STORY, in the case cited, manifestly took the same view of the subject. U. S. v. GreeJn, 3 Mason, 482. There would, moreover, be a technical objection to this proceeding, if a suit, which the court might not be permitted to overlook. Neither in this country nor in· England can an action be prosecuted by an individual in the name of the government without express authority of the court, or the officer appointed by law "to represent the public. And no distinction is made between actions popular in their nature, and those in which the private suitor is solely the party in interest. The authority of the circuit court to take cognizance of the case must, probably, then, be deduced from the provisions of the fourteenth section, in conjunction with those of the eleventh; and the first clause or branch of the fourteenth section must be acceptea as giving the courts of the United States power to issue the writ of habeas corpus, without thtJ restriction of the subsequent clause, to II the purpose of an inquiry into the cause of commitment." And the eleventh section must be regarded as supplying the parties in whose behalf such general power may be exercised. The argument was pressed with great earnestness before the supreme court, in BoUman and Swartwout's Caoo, that the first clause of this section was to
IN REBABRY.
. 117
be interpreted as a positive and absolute grant of power, (4 Cranch, 82;) but the court does not seem to have yielded to that construction, for in 'reference to that point they say that "the true sense of the words.is to be determined by the nature of the provision and by the context." Ex parte BoUman, 4 Cranch, 94. And they evidently regard the whole section as having relation to one and the same matter. The principles established by the supreme court, and brought in review in that case, would seem to militate so strongly against the doctrine involved in the case of U. S. v. Green as to prevent this court adopting the latter as its guide in determining this point; but, without asserting that such diversity exists in the judgments of the supreme and circuit courts, and admitting that the decision in 3 Mason stands unimpaired as an authority, I proceed to consider the remaining general inquiry,-whether, by the law of the land, the petitioner is entitled to the relief asked for. What, then, is the law which this court administers? For that will be the law of the" land in respect to these parties and the subject-matter of this petition. The argument assumes it to be the common law of England, as declared and enforced by her courts, and that the most recent adjudications in those tribunals are the highest and most important evidence of whatthe law is, and must supply the rule of decision to the United States courts. This view of the subject disregards the special organization of the United States circuit courts, and the limited purposes they were designed to subserve. They are distributed among the states, to exercise that special jurisdiction bestowed upon the federal government, or shared with it by the state sovereignties, and not to carry with them an inherent power to resort to or employ any other law than that given them by express and written grant. Chisholmv. Georgia, 2 Dall. 432-435; Ex parte Barry, 2 How. 65. Although the people brought with them, on their emigration to this country, the essential principles of the common law, and embodied them in their institutions, yetthis was not done by them in a national capacity, (at the time no such character or capacity was contemplated,) but as distinct communities independent of each other. Chisholm v. Georgia, 2 Dall. 435; BairtB v. The James and Oatherine, 1 Baldw. 557. Nor has the comnion law been adopted by the United States as a system applicable to the states generally, and to be administered as such in the national courts. Kendall v. U. S., 12 Pet. 621. This has been done specifically by act of congress in relation to the District of Columbia, (Id.;) but in respect to the states the common law is regarded in force only as adopted or modified by the constitution, statutes, or usages of the states, respectively. It came to them ,and was appropriated by them, and became an integral portion of the laws of the particular states, before the United States government had existence. 1 Story, Comm. cc. 16, 17; 1 Kent, Comm. 471, and notes; Tcrwn of Pawlet v. Olark,9 Cranch, 333; Southwick v. Postmaster General, 2 Pet. 446. In bringing this new government into action amid sovereignties already organized and'established, it would bea cardinal object to have the limited share of judicial authority possessed by the national judiciary administered, as far as practicable, in consonance with the laws and usages
DDERAL REl'ORTER,
ofthe where the court was placed. Political considerations of the highest moment would this. The disquietude and jealousy in relation to this new power would be aggravated tenfold, if,in addition to its authority under appointment of .positive law, it could by its inherent jurisdiction supplant local customs and usages, and substitute in their place the commOn law of England in its primitive plenitude and vigor. There was a deep-rooted attachment in the states to their own laws amI customs, while every influence acting on the public mind at that day would tend to induce alarm and distrust of English law, except only in so far as it had already been modified and adopted by· express authority of the states. All the early legislation of congress manifests the purpose'to affiliate the new system with that of the state, and, especially in the jurisprudence as between individuals, to have the writs of the one government or the other organs of the same law, and controlled by a common rule of decision. This principle was varied only when the constitution of the United States, treaties, or acts of congress provided a specific law for the case. Acccordingly, when congress assigned to the circuit courts sitting within the states "original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law," it was careful to direct" that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide. shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." Act ,Sept. 24,1789, §§ 11,34. The supreme court has recently decided that the decisions of the state courts are not laws of the state, within the purview of this section of the act of congress, in questions of a commercial character, and that such questions are to be determined according to general principles of mercantile law recognized by American and English authorities. Swift v. Tyson, 16 Pet. 1. The argument upon which the decision is founded insists that only the statutes of the state, or long-established local customs having the force of laws, are embraced within the language of the clause, and that the court has always understood the section to apply solely to state laws, strictly local,-positive statutes,-and their construction by the state tribunals, and to rights and titles to things having a permanent locality, immovable,and.intraterritorial in their nature or character. This exposition by the supreme court,so far as it covers ihis question, is the law of the land, to the same extent and with equal force with the statute itself; and,although a state statute which should declare the laws of the United States a rule of decision in commercial questions would scarcely be understood to exclude this decision as appertaining to that character, yet under the authority of that adjudication, this court is bound to re.only certain of ma?e by. th.e.state tribunals as laws of the state, wIthm contemplatIOn of the. JudICiary act, whatever may be their authority within the state itself. But it would seem, from the opinion of the supreme court, that long-established local customs, having the form of laws, come within the terms of the section, and must be followed by the. United States. cpurtsas rules of decision, and
129
that the decisions of the state courts are evidence of what the laws of the state are. The court in the same opinion declare that the decisions of the state courts upon even commercial questions are entitled to, and willrMeive, the most deliberate attention and respect of the supreme court, though they do not supply positive rules or conclusive authority. Swift v. Tysr.m, 16 Pet. 19. This decision confirms the general doctrine, before stated, that the circuit court is bound to administer the laws of the state. It perhaps renders indefinite and ambiguous, to some degree, the methods by which the United States court is to ascertain and determine what that law is,-whether, if it is not found on the statute-book, it is to be authenticated by the dicta and decisions of English jurists, or by the adjudications of the local judicatories. The proposition on which the petition rests is thai a subject of the queen of Great Britain, resident in Nova Scotia, is entitled, as father of a female child under the age of seven years, born within this state, t< have that child taken by writ of habeas corpus from the keeping of its mother, and transferred by the judgment of this court to his custody; the mother being a native and resident of this state, but in thl"' family of her parents, separate from her husband, and without his consent, and refusing to cohabit with him. Do the laws of the state of New York give him that right; and, if they do, can they be enforced III this court? The United States courts cannot take cognizance of matteI'S of right created or conferred by local statutes. It is to be presupposed that a case at common law exists, of which the United States court acquires jurisdiction under an act of congress; and the determination of that right is then to be made in conformity with the state law. It is ae.cordingly unnecessary to consider the question which has been raised in the state courts, whether, under the Revised Statutes, (2 Rev. St. p. 477, § 88,) there exists in this state any common-law right or remedy by habeas CoryU8, because, if the eleventh and fourteenth sections of the judiciary act bring the case within the jurisdiction of this court, it must proceed to adjudicate on it conformably to the general principles of the common law of England, (Ex parte Watkins, 3 Pet. 201,) unless that rule is varied by the local laws. Nor need the point be discussed, whether, if an infant is brought before this court on habeas coryus, on the application of its father or guardian, the court can act on the matter as if the writ were presented at the instance of the mother, and accordingly regard the provisions in the Revised Statutes as the rule of decision for governing the case. 2 Rev. St. p. 82, §§ 1, 2. The question now is whether the petitioner can demand as his legal right the writ prayed for, on the facts stated in his petition. The present posture of the case does not raise the point whether the individual cause of action has been adjudicated and settled by the state courts, so as to bar the party from again prosecuting it; but the proposition to be determined is one general in its nature,-whether the facts stated, in this petition entitle any party, as matter of right, to relief by a habeas corpus. This subject has undergone a most searching discussion before varioll.':l tribunals of the state. Two of the local judges and the chancellor, on; v.42F.no.2-9
180:
FEDERAL REPORTEB,· vol.
tRese-faCts, allowed a writ, but refused:to award the custody of the child to the father. People v. Mercein, 8 Paige, 47,. The supreme court, on fuU discussion, adopted It different coaclusion, and by two solemn decisions: adjudged that the father, under such a state of facts, was by law Mercein v. People, 25 Wend. entitled to the custody of the infant 82; People v. Mercein, 3 Hill, 405. These judgments of the supreme court were reviewed on error in the court of errors, and both reversed by that· tribunal. Mercein v. People,25 Wend. 106; MSS.Ops. Sess. 1844. The supreme court based their decisiona upon the doctrines of the comnot upon the terms of the Revised Statutes, (2 Rev. St. p. mon 466, §23,) the language of which certainly comprehends. the broadest range ever given the writ by the English courts, and might very plausiblybe urged Rsextending it to matters not before embraced within that Revisers' notes, 3 Rev. St. The substance of the enactment iethat a habeaa corpus shall issue on the application of any person (by petitions signed by himself,oranother in his behalf}"committed, detained, confined, or restrained of·his liberty, for any criminal or supposed criminal matter, or under any pretense whatsoever," (2 Rev. St. p.466, §§ 23, 25,) with some exceptions that need not now be noticed·. It must, therefore, be regarded as the settled law of this state, so far forth as the decision of the court of errors, twice rendered on this point, can furnish the law, that the keeping of an infant female child under .seven yaarsof age, from its father, by the mother, living separate from him, and who has it in her nurture, is not, in judgment oOaw, a detention or restraint of the liberty of the child, and that the father is not entitled 'by writ of habeas corpus to have such possession of the mother adjudged illegal, nor to have the custody of the child awarded him. These decisions have' been stigmatized on the argument as outrages upon'the common-law doctrine on this subject, and as devoid of all claims to' professional consideration and respect. Most earnest efforts were made to place them in disparaging contrast with .the opinions of the individual judges of the supreme court, whose judgments upon the point ate overruled by the court of errors; and this, not by weighing the arguments of one tribunal against those of the other on the subject, but by sbarp invectives against the constitution of that high court, and the competency of its individual members. This court was solicitous to allow: the petitioner the opportunity to discuss his case in all its bearings, and" as his Janguage was decorous in terms, did not feel called upon to check the course of remarks conducing, and palpably intended, to impute ignorance or disregard of the law, in this respect, to that high tribunal; but I should do injustice to my own convictions if I omitted to observe' that; on a careful perusal of the opinions leading to the decisions of the respective courts OD this subject,· I discover· nothing in the ultimate judgments of the court of errors which places that judicatory in disadvantageous contrast with the one'whose opinion it reviews a.nd reverses. Evety'1a.wyer, however, is well aware that a decision is not to be estimated merely by the ability or leaming displayed in its composition,but, essebtially, by the sanction it obtains. Of what value towards
131
establishing 'a principle, or fixingarrileor law, is the most erudite opinion of a high judge, when the full bench to whom it is submitted adopts a different conclusion, although sub silentio? What court or lawyer, in searcbingfor and applying a rule of law, rests upon the dissenting arguments of judges in the courts of this country or England, whatever btl their grade· or reputation? The judgment sanctioned by the court can alone answer, .the exigencies, and meet the inquiry. The more elevated the rank of the court may be, the higher becomes the sanction of its judgments. :rEvery system of jurisprudence imports in its organization that, upon questions mooted from tribunal to tribunal, the judgment of the one of last resort is conclusive proof of what the law is upon the points in dispute; and this entirely irrespective of the qualifications of the members 'of such dernier court. A barrister would not be permitted to argue in Westminster Hall that a decision of the house of lords on a writ of error weighed nothing, in settling the law of the case, in comparisonwiththe reasonings of the,individual judges on the case in the courts below. A decision by the house of lords ends all question before every tribunal of the kingdom as to the point adjudicated, and this is certainly not founded upon the fact thl1t any extraordinary judicial learning or experience exists in that body, or is brought to act on the subjectmatter. That court is lauded by Sir William Blackstone, and English writers generally, as one of the eminently excellent features of the British constitution, and as the most august tribunal in the world. Its judgments of reversal annihilate the decisions of the courts of Ireland and Scotland, rendered unanimously by all the judges, and also of the lord chancellor, and all the judges, barons, and lords of English courts of law and equity; and no party, subject or foreigper, can be permitted to gainsay the efficiency and wisdom of such final determination. And yet, in that court, on the decision of appeals from Ireland and Scotland, in admiraltyand in equity, the lord chancellor almost invariably sits and acts as sole judge. Lord BROUGHAM asserts that he rarely or ever, when lord chancellor,. could obtain the assistance of any other member of the court to sit with him on review of his own decisions, and that he, solely, had to decide questions brought from the Irish and Scotch courts, where all the members of those tribunals had concurred in judgment upon points resting on local and peculiar laws. When the house of lords sits on writs of error, only three lords need be in attendance. No more, in fact, do attend; and these three may change daily. And it results, in practice, that the three noble lords who ultimately decide that the 12judges of England have erred in their opinion of the law were neither of them present at the argument on the writ of error. These facts are asserted by Lord BROUGtlAM, in the face of the house of lords, and stand uncontradicted. 2 Chit. Pro p. 587, note h. Whatever obloquy may be aimed at the construction of the court of errors in this state, there are features in its constitution which elevate it most honorably, in comparison with that oithe house of lords. At least 21 members must be present at the hearing and decision of every case in the court of errors, and those members alone who hear the argument take part in the decision; and it is
DDERAL REPORTER,
doubted whether any period can be referred to in the history of these two exalted tribunals, since they have had co-existence. in which the professional learning and experience in the· New York court of errors was not at least equal in amount to that contained in the English house of lords. The decisions oUhe court of errors are, within the state of New York, obligatory to the same extent as enactments by positive law. It no Illore diminishes their efficiency the judgment of one court may be modified or varied by that of its successor, than the vitality of a statute is impaired because it is liable to repeal at the will of the legislature. Such judgrr..ents are absolute rules of decision in all cases to which they apply in the state tribunals, (Hanford v. Artcher. 4 Hill. 271; Butler v. Van Wyck, 1 Hill, 438 ;}atldalthough, within the doctrines declared by the supreme court in Swift v: Tyson, 16 Pet. 19, they are not laws, in a technical sense, and as such obligatory upon this court, still, on the inquiry as to what the law of the :state is, such decisions must supply evidence of great weight and cogency. Indeed, what particulars can be regarded as in principle more local or intraterritorial than those which pertain to the domestic institutions of a state,-the social and domestic relations of its citizens,-or what could probably be less within the meaning of congress, than that, in regard to these interesting matters, the courts of the United 8tates should be empowered to introduce rules and ;principles, because found in the ancient common law, which should extinguish or supersede the policy and cherished usages ora state, authenticated and sanctified as part of her laws by. the judgments of her highest tribunals? In my opinion, the rule indicated by the supreme court in Swift v. Tyson, if not limited strictly to questions of commerical law, does not embrade the present case, and that the adjudications of the court of errors, prescribing the laws of its Citizens in respect to the custody of infant children, resident in the state, and the relative rights of parents in respect to such children. are rules of decision in this court in all common-law cases touching :these questions. But, if not so, and the United States court is to act independently of all control by the decisions of the local courts, and is to determine: for itself what the common-law rule is in relation to suoh matters, th.e judgment of the local tribun'tl cannot but be of most imposing weight and significancy as a matter of evidence. I do not discQver that that judgment stands opposed to any authentic evidence of the common-law rule as it existed in England anterior to our Revolution, or which has ever existed in this state; and, if even a doubt might be raised 011 that point, the inclimition of this court, most assuredly, must be to yield to thedotl:1estic, and not to the foreign, interpretation of the rule. If it be conceded that the more recent decisions in England establish the law of that country now to be as claimed by the petitioner, they supply no authority here, further than they correspond with the law as clearly existing antecedent to 1775. I am not aware the doetrine has ever been countenanced in the supreme court of the United States that modern decisions in the English courts, ullsanctioned by ancient tradition; are entitled to outweigh those ofstatecourts in fixing the final
133
laws of the state. The value of the latest decision, the most relied on, that of King v. Greenhill, 4 Ado!. & E. 624, when brought in competition with those of the American courts, upon an inquiry into the reason of the law, is essentially impaired by the declaration of Lord DENMAN in the house of lords, (the judge who pronounced the decision below,) that he was ashamed of the necessity which exacted a decision of that character from a British court, and of a late lord chancellor, on the same occasion, that the rule of law announced by that decision was a disgrace to the English character. But I do not feel that it is imposed on this court to revise the subject at large, and determine what is the true rule of the common law in this respect. The United States court in no way acts in supervision of the state courts. The decisions of these tribunals are independent of the United States judiciary, and absolute in themselves, in all cases not subject to review in the method pointed out by the judiciary acts. Ex parte BoUman, 4 Cranch, 96, 97. This case is not in that predicament. The extent of the authority of this court, on the principle of its organization, is no more than to act concurrently with the state court upon the subject-matter of this petition. If that concurrence does not import and exact an entire coincidence; if each tribunal acting within its sphere may examine and declare for itself, independently of the other, what rule of law shall govern the decisions,-that comity at least due between co-ordinate courts, if not that intimate and special relation of both to a common source and standard of law, would demand that neither should rigorously insist upon a principle which would bring it in collision with the other; the more especially that the United States courts should avoid, upon a balanced question, adopting conclusions which, carried into execution, must violate the domestic policy of the state, settled by the most solemn adjudications of its own judiciary. The alienage of the petitioner would not vary this principle, even if it be conceded that, by the laws of his domicile, he is entitled as absolutely to the custody of his infant children as to that of his estate. No interest, not even one resting in contract, is enforced by a court when it is repugnant to the laws or policy of the place where the action is prosecuted. Pearsall v.. Dwight, 2 Mass. 89; Bank v. Porter, 5 Day, 320; Bank v. Earle, 13 Pet. 589. It by no means is an indisputable doctrine of public law, or of the law of this country, that the father of this infant can have here the same legal rights and dominion over it as if born within the country of his allegiance; for, if so, it might impart to him a power abhorrent to the civilization and Christianity of our age, giving him a dominion no less absolute than one over his chattels, animate or mate. I do not, however, go into this topic, nor regard it as having any important bearing upon the decision now made. I apprehend it has been sufficiently shown that neither in England, before our Revolution, nor in this state since, has judgment been rendered under a habeas corpus in regard to infants, on the acceptation that the right of the father to their custody was anything in the nature of property, or so fixed in law as to aff'ord·a controlling rule of decision to the court. In the use of the remedy afforded by means of this writ the CQurts have regarded
'1'34
FEDERAl, 'REPORTER,
vol.
the 'father as that guardian first to be looked to, in case a change of custodyshouhl.he deemed proper, and the infant was not of competent age to l1llake its o\V<nchoice of guardian; but it has been purely iri the ,application of the remedy, and for the protection and interest of the infant; and not insubordination to the legal right of the father, that such award is ever made. Nothing is clearer in international law than that a party prosecuting upon the clearest right, under the laws of his country,must still take his remedy in accordance with the law of the courbhe invokes, without regard to the law of his allegiance, and that his of this 'particular relief is no way aided by the consideration that it would be awarded him in Englaild or Nova Scotia. I close this protracted discussion by saying that I deny the writ of habea8 corp'U8 prayed for because (1) if granted, and a return was made admitting the facts stated in the petition, I should discharge the infant on the ground that this court cannot exercise the common-law function -of par8tt8 pam, and has no common·law jurisdiction over the matter; (2) because the court has not judicial cognizance of the matter by virtue of any statute of the United States; or (3) if such jurisdiction is to be implied, that then the decisions of the court of errors of New York supplies the rule of law, or furnishes the highest evidence of the common-law rule;W:hich is to be theru1e of decision in the case; and (4) because by that rule the father is not entitled, on the case made by this petitioner, 'to take this child out of the custody of its mother. Petition denied.
UNITED STATES 'IJ.' RIED.
(Disfn'lct L
Oourt, W. D. MichiiJan,
s. D.
April 5, 1890.)
It.
was indicted for using the mails in furtherance of a scheme to defraud, by soliciting money upon the representation that by an unknown power he was able to answer sealed letters'addressed to spirit friends. The government, to show the fra1.Jdubjntcharacter of tM defendant's business, introduced admissions of defendant tllatthe business was fraudulent. HeW., not competent for defendant to show by the testim,ony Of, persons sending him such letters that in particular instances he had an· them satisfactorily, and that the questions were of such a character that he not, have by supernatural pOWElr. ' BAXB'-DBMONSTRATIONS op' OCOULT POWIIR.
Oll' MAILS TO DEFRAUn'-SPIRITUALISM-EVIDENCB.
In such a' case the defendant will not be permitted to give a test or exhibition of ,his v,nknown power in open court. ,
8, SAlim-FRAuDULENT INTENT-EVIDENCE-BE;LIIIps.
Th8belief of the defendant as to his capacity or power to get answers to questi<lnll in sealed letwrs from the spirits of the departed is one of the questions oUact bearin/;\, upon intent. . ,
.. BDlII-CoNDtrCT..,...EFpEC'l'.
·A man may believe what he wlll, and the right of association for the pl'omulgation of hilllool)ef is, compl!ltej but he will not be allowed to carry hiB belief into conduct whioh is injurious to the public, and contrary to law. This is the difference between belief and action, of opinion and conduct, in practical matters. ,
6.
SAME-FRAUDULIINT INTIINT.
Upon the question whether there is an intent to devise a scheme to defraud, the rule is this: If the scheme be adapted in its plan to work a fraud upon others, and
UNITED STATES tl. RIED.
135
the defendant knew that a material representation therein contained, and calulated to deceive, was not true, or if he did not believe that it was true, then the intent is made out. 6. No man has a right to emb8l,"k in a business, and insist the legality of it shall be tested by principles beyond the understanding of others, and not by the apprehension of the courts and 'juries of the countrYJ if when tried and tested by common human understanding the purpose is founa mischievGus and unlawful. 'rhe jury are not to disregard their own convictions by reason of a cloud of mysteries which they cannot penetrate. (SyU,ab,u8 lru the Court.) BAllE-PROVINOE OF HUMAN UNDERSTANDING.
At Law. Defendant was indicted for a violation of section 5480 of the Revised Statutes. The testimony on the part of the government showed that defendant had for some time made use of the mails in sending out circulars and advertisements, of which the following is a sample: "Dr. W. E. Ried, the Spirit Postmaster; or, how to obtain a sealed letter from your spirit friends. In the first place, take a moment's time to under· stand fully what a sealed letter consists of. If you are troubled about financial matters, sickness of any description, family troubles, or are undecided what to do a.bout any special matter, think your matters over carefully, and then follow the directions given below implicitly, and your letter will receive prompt attention: Fi1'st. Write the full name or names of your spirit friends on slips of paper. Second. Address them by terms of relationship orfriendship. I'hird. Ask your question. Fourth. Sign your own name in full. When this is done, place your question in an ordinary envelope, and seal it. Write a few lines on another sheet of paper, giving instructions to whom the l'eplias should be sent, and place your sealed letter and note of instructions in a larger one, and address, Dr. W. E. Ried, 28 Canal St., Grand Rapids; ·Per. sonal' in one cornel'. Dr. Ried has answered several thousand letters during the past two years, and has been uniformly successful. Of' course, there-are cases where nothing can be obtained, and invariably the money will be refunded if no answer can be given. Fee for answering sealed letter, $1.00. if above directions are followed, and 6 cents extra for postage. If sewed in any manner, $5.00. If sealed with wax, $5.00." The government showed that in answer to such circulars and advertisements the defendant had received a large number of letters with the required fee inclosed. As bearing on the fraudulent character of the business, numerous statements of the defendant were shown tending to prove the business to be a fraud, as also evidence tending to show that some time previous to the dates alleged in the indictment defendant had acquired· a knowledge of the "trick" of opening a sealed letter by an exchange of "tricks" with another person. The defense offered to show that in particular instances the defendant had satisfactorily answered sealed letters, by the testimony of persons sending them, and that the questions answered were of such a character that defendant could not have answered them except by supernatural power. This testimony was excluded, as not meeting the case made by the government, and as amounting merely to evidence of the opinions of others upon the merits of particular performances. The defendant's counsel also asked the privilege of allowing the defendant to give an exhibition or test of his power in open court. This was denied. The defendant was not sworn as a witness.
138
FEDEnAL REPORTER, Y01.
:L'.G.Palmer, U. S. Atty., and F. W. Stevens, Asst. U. S. Atty. F. S.' Donaldson, L. V. Moulton, and Dennis L. Rogers, for defendant.
J., (charging jury.) indictment in this case, in several counts charges what, for practical purposes, may be regarded as substantially the same offense. The sl,tbstance of the charge is that the defendant, having contrived a scheme to defraud the public, employed the mails of the United States in the prosecution of that scheme. That, shortly stated, is the substance of the offense with which the defendant is charged. There is a statute of the United States upon which this indictltlent is framed, whi<ib, in effect, makes the use of the United States !?lalla in furtherance of a scheme to defraud, previously formed by the party so using the mails, an offense; the policy being to prevent the iacilities afforded by our postal arrangements from being employed in uses which are prejudicial to the of the public. The defendant in this case founds his defense upon the claim, as urged by his counsel. that this was not a scheme ,to defraud. In order to lay the foundation, and establish the first ground of the accusation contained in this indictment, as the jury will see from what the' court has just said, it is necessary that the scheme should be fraudulent; and, secondly, that the ))lail should be used in the prosecution of that scheme. The question of fact is, upon this first head, what Vl;as the intention, or, more precisely, what was the belief, of the defendant as to his capacity or power 'to get answers to questions contained in sealed letters from the spirits of the departed? Now, gentlemen, every man has an absClluteright to belieye what he will. It is a phase of religious privilege wb,ich 1s guarantied by the fundamental law of the land to every citizen. ThiS right of belief, and the right of association for its promulgation, is complete, and the party holding any belief may engage in any practice founded upon it, unless he thereby injures the peace and welfare of the public. A man may not carry his belief into conduct which is injurious to the public, and contrary to law. This is a distinction of great im:portance, in view of the guaranty of religious freedom and of opinion in.all matters of belief which is secured by the constitutions of the seyeralstates, and in large measure by the constitution of the United States. ,It is the difference between belief and action, of opinion and conduct,. in' practical matters. If a man carries his belief into a practice or business involving a fraud,and known by him to be such, lle is liable to be dealt with by the law; and if he also uses the mails to promote such business, he is liable to indictment and punishment in the courts of the United States. The interests of society require that every man's conduct should conform to the law; and while it protects him in bis freedom of opinion and belief in all religious or spiritual matters, it will not permit him, under the guise of that belief, to do a thing whioh the laws of the country condemn. To permit this (to employ the language of the supreme court of the United States in dealing with an analogous question) would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to per-
UNI'fED STATES V. RIED.
137
mit every citizen to become a law unto himself. There could be no government under such circumstances, and it could not be tolerated. Upon the question whether there is an intent to devise a scheme to defraud, the rule is this: If the scheme be adapted in its plan to work a fraud upon others, and the deftmdant knew that a material representation therein contained, and calculated to deceive, was not true, or if he did not believe that it was true, then the intent is made out. So that the material question here is, did the defendant devise his scheme of business in good faith? Did he believe that he could obtain answers to sealed letters from the spirits of the departed relatives and friends oftb'e inquirers? Evidence has been laid before you bearing upon this question, and you are the sole judges of its weight, credit, and the effect to be given to it. You are to look at this proof, and determine the issue by the exercise of your own sound sense. You must not abandon the search of truth upon the suggestion that the elements of inquiry arc not open to your pursuit, if your reason seemS to you sufficient to see the facts. In other words, you are not to disregard or .fajl to give effect to your own convictions upon the testimony facts by reason of a cloud of mysteries which you cannot penetrate. the purpose of administering the law, we must adhere to what is practical, and solve all questions by the best practical means at hand. No has a rigpt to embark in a business, and insist thll.t the legality of it shall be tested by principles beyond the understanding of others,· and not by the apprehension of the courts and juries of the country, if,wpen tried and tested by common human understanding, the purpose is found mischievous and unlawful. .In order to convict this respondent, you must befind upon the evidence, beyond a reasonable doubt, that he did lieve that he could do what he pretended he could do. All the other questions in the case are eliminated by concessions, so that the whole .case is resolved into the questions of the defendant's good faith in the conception and prosecution of his scheme. If he acted in good faith, then there was nothing criminal in what he did; because the law looks, in determining this question of fraud, to the intent with which the act charged to have been dorie was done. The oourt does not feel called upon to elaborate any more fully in these instructions to the jury in this case, for the reason that, as already stated, the point is simple. There is but one question of fact for .you to determine in view of the mony in the case: and that is, to repeat it again, did the defendant believe that what he pretended he could do he could do? It is a question of actual good faith .. If this was a scheme gotten up by him, without any belief Oll his part that he could get answers to sealed letters from the spirits. of the dead, and if, without regard to the question of his ability to do this, he devised this scheme for the purpose of imposing upon and gulling the public, and getting money through that means, it was a fraud, and should be denounced as such. If, on other hand, he hObestly believed that he could do this which he advertised hoe could do, then there is no fraud.
not
'138
J'EDEBAL REPORTER,
Nblt'/gent1(lmen, you must apply your own sound discretion and commonsense to the case, and detetmine it, in view ofwhat is conceded, upon the'tffi'ect'which 'you give the: testimony in the case upon the point 'which has 'been presented as the issue. Atlofficer :rnay be sworn. 'The'juryhaving found the defeMl\nt gUilty, a motion for a new trial was sUbsequently argued before the diStriet jUdge, the circuit judge sitting with him.upontberequl'st of thedefendant,upon alleged errors in tbe rejection of tt¥i,tiJP.pnYi,the rr.fusal to permit a test, and in the charge to the juC1. After full :the Illotion was denied.
(1)(Btrict
UNiTED STATES II. WHITE. Court, W, D. MicMgcm, S. D. ¥arcb9S,l890.)
'L
, to him by tJ.1e druggist, or the ,anthority which may fairly bepr8sumed from the bIstiiicttonsot tl:ie druggillt, or the COUI'lle Of dealing byhUIl.,with reference to suqh mat!'efll.,! ," ';, i · I ,L I!lAH8..... MBDI9INBS. " ', "' ' ' . , . In 'dlrt.ei'mlnmg' Whether sale. come within' that provit!lion of the
; PlOalea JIladebytbe ol,erk were madewitbin tbe scope ot
, 'A druggist is llable criminally tor-linautborized sales of'Uquor ,by bis clerk, if
It..v'BNUB-BALII
BY DRUGGIST-SPBCIAL TAL
delegated
SAHm-:-YBOJUN'IOAL
statut\jwblch,'allowl the use,of intOxicants in the ,oOIllPouncUllg of medioines, he is b,ia tested, bl hisgo!>Uaith. , , , ,
A druggist bu the l'ig'lit toulle alcohol1l1'the malrlngof a toilet preparation moh as,cologne;W!:l1he can 8uplogne toilet purpos,es; to put into alcohol IOmethlng 'else. for the mere purpose of modifying its 8S by placing 8 ,,&'Ib, lift,le!b&"r g ot,,:or som,e" ,Of the 'i,"gredi,e,nta 0" f oologne, into ',alO,OhOl, and selling " forW41Obanioal,purposes, illsmake-.hift wbtob the law,will not tolerate.
"
;""68, '{not a general question of good andll,.Pright.Ull8l!,'',in the tra,nsaotioP, of ,Ii., "man's Pllt. whllther the def,endant m!lke the sale or under circumstances whioh are probtbited by , ",' ':: .. ,
(SuU4bUa ''btl the: Oourt.)
'Indictment for Retailing,Liquors,without Paying the Special Tax. at Eaiton Rapids. " The -indictment charged ,Defendllnt: was ,sales of liquOr at various tiDies JromAprill, 1,887, to January, The evidence ,on the part of the government tended to show that, for a peritxi two yearSi been selling to a' dentist, ,aHrequentmtetvals, alcohol forjbtltning in a lamp, ;usedby the dentist . in :his business; The defense introduced testimony wndingto show ,tbattheiarticle sold to the dentist ,was cologne,or rather aloohol 'into "which bergamot,or some of the .ingredients of cologne, had been placed. , There was also testimony on the part of the govermoent'tending to show aales' of liquortnixed with small, ,quantities of glycerine, oil of cloves, 1 aDd> quinine., ' , i 1&:.9. P't:dmer,U·. S. Atty., MId P.W. Steven., Asst. U. B. 'Atty_ H. S. Maynard and F. A. Dean, for defendant.