Note. In the Matter of Barry.

petitioner, commanding them forthwith, immediately on the receipt of said writ, to have the body of Mary Mercein Barry, daughter of the petitioner, by them imprisoned or detained, with the time and cause of such imprisonment or detention, before this court, to do and receive what shall then and there 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 that he has never been naturalized or claimed naturalization under the laws of the United States.

That, in April, 1835, in the city of New York, he intermarried with Eliza Anna, daughter of the late Thomas R. Mercein, a citizen of said city.

That, in the month of May thereafter, he returned to Nova Scotia accompanied by his wife, and there resided about a year, when he removed his family to the city of New York, where he resided until April, 1838, when he returned to Nova Scotia with a portion of his family, and has continued to reside there from that time.

That a son and daughter were born of said marriage during his residence in the city of New York, and on his removal to Nova Scotia he left his wife and two children temporarily with her father in the city of New York. That in the month of May thereafter he returned to New York, when difficulties arose between him and his wife respecting her removal to Nova Scotia, and she declared her determination to part with him rather than think of going to Nova Scotia.

That he remained in New York until the 28th of June, 1838, and with a view to arrange amicably the differences between himself and wife, he finally agreed to allow her to continue in New York at her father's house until the first day of May, 1839, and to retain in her care their said daughter, Mary Mercein, during that period, and also their son until such time as the petitioner might think proper to require him.

That in September following he returned to New York and made every possible effort to conciliate his wife and induce her to consent to go at some future time to her own proper home in Nova Scotia, but she utterly refusing and declaring that she had no expectation of so doing, the petitioner returned himself taking his son along with him.

That these attempts to conciliate her were frequently repeated

Note. In the Matter of Barry.

without avail, and the petitioner awaited the expiration of the time he had agreed she should remain with her father, and on the 2d day of May, 1839, formally demanded of the said Thomas R. Mercein the surrender of his said wife and child, which demand was not complied with.

That his wife, from that time to the present period, has refused to return to his home and has absented herself therefrom, contrary to his desires, and has detained and does still keep from him, unlawfully, his daughter, who is now in the seventh year of her age. That Thomas R. Mercein has lately deceased, and that thereby the wife of the petitioner is left without any present property, and little or no prospect of any in reversion, and that she has no property whatever of any kind in her own right, and has no means known to the petitioner for the present or future support of herself and their daughter, and that she resides with and is harbored in her present vicious and illegal condition by her mother, Mary, relict of the late Thomas R. Mercein.

The petitioner alleges his own ability to provide comfortably for the support and education of his daughter, and especially claims 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 home.

These particulars it is unnecessary to rehearse, and the right to the remedy or relief claimed by the petitioner is not, in this stage of the case, to be determined by a consideration of the relative conduct of these parents toward each other or the child, or of the advantages to the infant, to be placed with the one rather than 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 manner prayed for.

The same petition in substance was presented to the Supreme

Note. In the Matter of Barry.

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, (Ex parte Barry,) 2 How. 65: "It is the case of a 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 original jurisdiction to entertain the present petition. Without, 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 tribunal of the United States as may be entitled to grant it. If the petitioner has any title to redress in those tribunals, the vacancy in the office of 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 tribunal that the United States Circuit Court for this district has the power to grant the relief demanded by the petition.

The expression of such 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 as 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 common law writ of habeas corpus 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 the jurisdiction, original or appellate, given to it by the Constitution or laws 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 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

Note. In the Matter of Barry.

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 to the 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 great 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 aspect of the case, was doubtful, I conceived it the least expensive and more convenient course to inquire and decide whether the petitioner presented a case of which this court should take cognizance.

When the cause of imprisonment or detention shown by the petition satisfies the court that the prisoner would be remanded, if brought up, the writ will not be awarded. Watkins' Case, 3 Pet. 193, 201, per Marshall, C. J.; Milburn's Case, 9 Pet. 704, 706; 2 Story Const. Law, 207, § 1341; Ex parte Bollman, 4 Cranch, 75.

The practice in the English courts is the same. Bac. Ab. Habeas Corpus B. No. 44, case cited; 4 Comyn Dig. (Day's ed.) 550 and note 3; Hallam's Const. Law, 20; Penrice & Wynn's Case, 2 Mod. 306; Slater v. Slater, 1 Levinz, 1; The King v. Marsh, 3 Bulst. 27; Sir William Fish's Case, cited in White v. Wiltsheine, 2 Rolle, 137, 138.

If upon the facts stated by the petitioner it shall be determined that the court cannot grant the relief prayed for, either for want of jurisdiction or because the law is against his demand, it would be inexpedient and oppressive to cause the parties implicated to be arraigned before this court and held under its control, pending

Note. In the Matter of Barry.

the discussion and consideration of the subject, 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 subject 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 prepared with great research and ability in support of the affirmative of both inquiries, bringing into review numerous English and American decisions upon the same question, and has submitted the manuscript to the examination of the court. With the aid of this most ample discussion of this subject, I proceed to pronounce the result of my reflections upon this interesting and important case.

The incongruity of awarding proofs, at the instance of husband. or wife, 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 which 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. Commonwealth 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 a case of detention or restraint by a private person, Rex v. Drake, Comberbach, 35; 16 Viner, 213; and the habeas corpus act of Charles II, which is claimed as the Magna Charta of British liberty, has relation only to imprisonment on criminal charges. 3 Bac. Ab. 438, note.

It is not important to inquire at what period the writ was first employed to place infant children under the disposal of courts of