Opinion of the Court. this court for a writ of habeas corpus to bring up the body of Thomas W. Dorr, of Rhode Island, on whose behalf it was alleged that he was held under sentence of death in violation. of the Constitution and laws of the United States. The law then existing on the subject of the powers of the court in awarding writs of habeas corpus was the fourteenth section of the Judiciary Act of 1789, which we have already recited. This court, construing that section, said: "The power given to the courts, in this section, to issue writs of scire facias, habeas corpus, etc., as regards the writ of habeas corpus, is restricted by the proviso to cases where a prisoner is 'in custody under or by color of the authority of the United States, or has been committed for trial before some court of the same, or is necessary to be brought into court to testify.' This is so clear, from the language of the section, that any illustration of it would seem to be unnecessary. The words of the proviso are unambiguous. They admit of but one construction; and that they qualify and restrict the preceding provisions of the section is indisputable. Neither this nor any other court of the United States, or judge thereof, can issue a habeas corpus to bring up a prisoner, who is in custody under a sentence or execution of a state court, for any other purpose than to be used as a witness; and it is immaterial whether the imprisonment be under civil or criminal process." The motion for the habeas corpus was overruled. It was on account of this limited power of the federal courts to issue writs of habeas corpus that the various statutes referred to in Ex parte Neagle have since been passed; among the rest, the one construed by this court in Ex parte McCardle, in which it is clear, from the language of Chief Justice Chase, that the original limitation upon the power remains, except as it is extended by the statute of 1867 and others on the same subject. In the case before us there was no pretence that the child was restrained of its liberty, or that the grandfather withheld it from the possession and control of the father, under or by virtue of any authority of the United States, or that his possession of the child was in violation of the Constitution or any law or treaty of the United States. The whole subject of the VOL. CXXXVI-38 Opinion of the Court. domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. As to the right to the control and possession of this child, as it is contested by its father and its grandfather, it is one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction. Whether the one or the other is entitled to the possession does not depend upon any act of Congress, or any treaty of the United States or its Constitution. The case of Barry v. Mercein is very instructive on this subject. Mr. Barry, who was a subject of the Queen of Great Britain, married an American lady, and after the birth of two children they separated, Mr. Barry residing in Nova Scotia and the wife in the State of New York. Mr. Barry made application first to the Court of Chancery of New York, by a writ of habeas corpus, to recover possession of his daughter. In the case of The People v. Mercein, 8 Paige, 47, 55, Chancellor Walworth refused the relief he asked, saying that "a writ of habeas corpus ad subjiciendum is not, either by the common law or under the provisions of the Revised Statutes [of New York], the proper mode of instituting a proceeding to try the legal right of a party to the guardianship of an infant." Mr. Barry then made application to the Circuit Court of the United States for the Southern District of New York, where his case was heard by Judge Betts, who delivered a very careful and a very able opinion, which has been furnished to us, in which he held that his court could not exercise the common law function of parens patriæ, and therefore had no jurisdiction over the matter, nor had it jurisdiction by virtue of any statute of the United States. The petitioner in that case alleged that he was a native born subject of the Queen of Great Britain, residing in Nova Scotia, and that his wife was a daughter of Mary Mercein, then a citizen of the State of New York, and that the mother and daughter held the custody of his child in violation of law. Judge Betts then, in a very able opinion, discusses the jurisdiction of the courts of the United States generally, and especially of the Circuit Court, in regard to a case like this, with the result which we have stated. Opinion of the Court. Prior to this the petitioner had made application to this court, in the exercise of its original jurisdiction, for the writ of habeas corpus, but the court declared that the case was not of that class of which it could assume original jurisdiction, and that no ground for the exercise of appellate jurisdiction was presented; and it therefore refused the application. Ex parte Barry, 2 How. 65. From the judgment of the Circuit Court by Judge Betts, Mr. Barry brought the case to this court by a writ of, error, and a motion was made to dismiss the case for want of jurisdiction in this court. In this case, which was very elaborately argued, the opinion of the court was delivered by Chief Justice Taney, in which he said that "in the argument upon this motion, the power of the Circuit Court to award the writ of habeas corpus, in a case like this, has been very fully discussed at the bar. But this question is not before us, unless we have power by writ of error to reexamine the judgment given by the Circuit Court, and to affirm or reverse it, as we may find it to be correct or otherwise." He then proceeds to say that the appellate jurisdiction of the Supreme Court is governed by the amount or value in controversy, and adds: "In the case before us, the controversy is between the father and mother of an infant daughter. They are living separate from each other, and each claiming the right to the custody, care and society of their child. This is the matter in dispute; and it is evidently utterly incapable of being reduced to any standard of pecuniary value, as it rises superior to money considerations." Barry v. Mercein, 5 How. 103, 119, 120. So far as the question whether the custody of a child can be brought into litigation in a Circuit Court of the United States, even where the citizenship of the opposing parties is such as ordinarily confers jurisdiction on that court, the matter was left undecided in the case of Barry v. Mercein. Obviously, although the statutes of the United States have since enlarged the jurisdiction of the Circuit Courts by declaring that they shall have original cognizance, concurrent with the courts of the several States, of all civil suits arising under the Constitution or laws of the United States, or treaties made, or Opinion of the Court. which shall be made, under their authority, the difficulty is not removed by this provision, for, as we have already said, the custody and guardianship by the parent of his child does not arise under the Constitution, laws or treaties of the United States and is not dependent on them. But whether the diverse citizenship of parties contesting this right to the custody of the child, could, in the courts of the United States, give jurisdiction to those courts to determine that question, has never been decided by this court that we are aware of. Nor is it necessary to decide it in this case, for the order for a violation of which the petitioner is imprisoned for contempt is not a judgment of the Circuit Court of the United States, but a judgment of the District Court of the same District. There is apparently a studied effort in the record before us to treat the proceeding as one in the District Court of the United States for the District of Nebraska, and also as one before the judge of that court, but we apprehend that it must be considered for what it is worth, as the judgment of the District Court, both the order for the delivery of the child to its father and the order for the imprisonment of the present petitioner for contempt being made in that court. The jurisdiction of that court is not founded upon citizenship of the parties; and though the original petition of Miller, the father of the child, was amended after the judgment was rendered, so as to show that he was a citizen of the State of Ohio, and the defendants, Burrus, and wife, were citizens of Nebraska, it is not perceived how that averment aids the parties in the present case, for the District Courts of the United States have not jurisdiction by reason of the citizenship of the parties. If, therefore, there was no other ground of jurisdiction of that court in the habeas corpus case, by which the child was delivered to its father, it was entirely without jurisdiction. We have already said that the relations of the father and child are not matters governed by the laws of the United States, and that the writ of habeas corpus is not to be used by the judges or justices or courts of the United States except in cases where it is appropriate to their jurisdiction. Of course Note. In the Matter of Barry. this does not mean that they have jurisdiction in all cases to issue the writ of habeas corpus, but that they have such jurisdiction when, by reason of some other matter or thing in the case, the court has jurisdiction which it can enforce by means of this writ. Whatever, therefore, may be held to be the powers of the Circuit Courts in cases of this kind, where necessary citizenship exists between the contestants, which gives the court jurisdiction of all matters between such parties, both in law and equity, where the matter exceeds two thousand dollars in value, we know of no statute, no provision of law, no authority intended to be conferred upon the District Court of the United States to take cognizance of a case of this kind, either on the ground of citizenship, or on any other ground found in this case. According to this view of the subject, the whole proceeding before the District Judge in the District Court was coram non judice and void, and the attempt to enforce the judgment by attachment and imprisonment of Burrus for contempt of that order is equally void. Ex parte Rowland, 104 U. S. 604. The petitioner is, therefore, entitled to his discharge, and the rule against Slaughter, the marshal, is made absolute, and the writ of habeas corpus will issue, if that be necessary to his release. MR. JUSTICE BREWER dissented. The opinion of Judge Betts in In the matter of John A. Barry, referred to by Mr. Justice Miller, ante, 594, was given in the Circuit Court of the United States for the Southern District of New York on the 25th of May, 1844. A very brief summary of it was printed in 7 Law Reporter, 374. At the request of members of this court it is here printed in full. 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 corpus ad subjiciendum may 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 |