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Note. In the Matter of Barry.

law and equity. This was clearly so in England anterior to our Revolution, Rex v. Smith, 2 Strange, 982; Rex v. Delaval, 3 Burrow, 1434; Blisset's Case, Lofft, 748; and the practice has been fully confirmed in the continued assertion of the authority by those courts unto the present day. King v. De Manneville, 5 East, 221; De Manneville v. De Manneville, 10 Ves. 52; Ball v. Ball, 2 Sim. 35; Ex parte Skinner, 9 J. B. Moore, 278; King v. Greenhill, 4 Ad. & El. 624; and this indifferently, whether the interposition of the court is demanded by the father or mother. 4 Ad. & El. 624, ubi sup.; 9 Moore, 278, ubi sup.

The late act of 2 and 3 Vict. c. 54, (1839,) sanctions 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. positive law; and, independently of this statute, the course of the American courts in this respect had been substantially in consonance with the decisions in England, antecedent to the Revolution. In re McDoule, 8 Johns. 332; In re Eliza Waldron, 13 Johns. 418; In re Wollstonecraft, 4 Johns. Ch. 80; People v. Mercein, 8 Paige, 47; Commonwealth v. Addicks, 5 Binney, 520; Commonwealth v. Briggs, 16 Pick. 203; State v. Smith, 6 Greenl. 462.

The later cases in New York are founded upon a principle common to all the decisions cited; People v.--, 19 Wend. 16 ; Mercein v. People, 25 Wend. 63, 80; People v. Mercein, 3 Hill, 399; but in so far as they may seem to favor the latest adjudications in England, in respect to the fixed and controlling right of the father, as the true exposition of the common law rule, they are modified and overruled by the decisions of the Court of Errors. Mercein v. People, 25 Wend. 106; and Sittings 1844, MSS.

The petitioner in this case asks of the court the award of the common law writ of habeas corpus ad subjiciendum, with all of its common law attributes and efficacy.

That is a high mandate, by means of which courts or judges, in protection of the liberty of individuals, exercise functions appertaining to the sovereign power, and which in intendment of law rest only in the sovereign and are coextensive with his dominion. Kendall v. United States, 12 Pet. 524, 627, 629.

Note. In the Matter of Barry.

The writ is purely one of prerogative. Whether emanating from a King or a State, whether returnable before the King in person, (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 bring the party imprisoned directly before the supreme power, that if there be not due cause of law for his detention, the sovereign may set him free of his restraint. 3 Black. Com. 131 ; Bac. Ab. Hab. Corp. 421; 3 Story Const. Law, 207; Ex parte Watkins, 3 Pet. 193, 202; 2 Kent Com. 26, 29.

In respect to married women or other adults, held in detention by private individuals, the sovereign, through this writ, acts as conservator pacis and custos morum, and, in regard to infant children, as parens patrice, taking, in these high capacities, summary order that the party be forth with set at liberty, if improperly and wrongfully detained. Lofft, 748, and 13 Johns. 418, above cited; People v. Chegaray, 18 Wend. 637; 8 Paige, 47, above cited; United States v. Green, 3 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 of children, as it shall judge best for their welfare. People v. Chegaray, 18 Wend. 642–3; Blisset's Case, Lofft, 748.

The cases before cited show that the English and American courts act in this behalf solely upon the assertion of the right of the sovereign whose power they administer, to continue or change the custody of the child at his discretion, as parens patrice, allowing the infant, if of competent age, to elect for himself; if not, making the election for him.

Even in the extraordinary conclusions drawn from the facts brought to light in Commonwealth v. Addicks, 5 Binney, 520, and The King v. Greenhill, 4 Ad. & El. 624, both courts, in denying that these facts called for any change of the custody of the children, readjudged the principle, that it was their province, at common law, authoritatively to decide that question according to their legal discretion.

Does this common law prerogative, in relation to infants, rest 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

Note. In the Matter of Barry.

the United States is supreme over all subjects within its cognizance; and (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 courts prosecute their rights therein. It is believed that neither of these propositions can be maintained, and certainly 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 to parties competent to sue in the national federal courts could be supposed to exist in its absolute sense in the United States government, its exercise has been modified and restricted by Congress in the 11th section of the act of September 24, 1789, which gives the Circuit Courts no more than a concurrent jurisdiction with the state courts, of suits of a civil nature, at common law. 2 Stat. 60.

Nor again do all attributes of sovereignty devolve upon the national government. Whether considered as emanating directly from the people in their aggregate capacity, or as proceeding from the States, in their independent organization and character, the government of the Union is one of special powers, defined or necessarily implied in the terms of the grant. McCulloch 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 in 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 efficient principle of its authority and action, (Du Ponceau on Jurisd. 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. United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415.

There is, accordingly, no sure foundation for the assumption that the federal government possesses common law prerogatives inherent in the sovereign, which can be exercised without authority of positive law. Martin v. Hunter, 1 Wheat. 304, 329. .

Note. In the Matter of Barry.

If any common law prerogative in relation to the administration of justice can be proved to exist in the sovereignty of the United States, it must, upon the same principle, be endowed with all such prerogatives, and can, on the like authority, unless inhibited by positive law, award writs of mandamus, quo warranto, ne exeat, or mandates to citizens abroad to return home on pain of confiscation of their estates, (Comyn's Dig. Prerogatives, D. 34, 35,) or this writ of habeas corpus; they being all common law writs ejusdem generis.

That such attributes or functions of sovereignty cannot be inherent in the United States government necessarily results from the character of the government and the objects of its constitution.

It is not designed, in its organization or aim, to regulate the individual or municipal relations of the citizen. These are left under the dominion of the state government; and there accordingly exists no relation between the nation and 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 the end that such regulations as are of a federal character may be enforced, - as in relation to land and naval forces, and persons in the employ of the United States, the punishment of offences, etc., etc., - but in other respects the national government does not supply the law governing the citizen in his domestic or individual capacity. These 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 corpus 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 respect to the powers of the States.

Note. In the Matter of Barry.

The federal government came into force coördinately with, or as the concomitant of, state governments at the time existing, and in the full exercise of legislative, executive and judicial sovereignty.

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 head, 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 and put in action in the several States, in subordination to this fundamental principle of the Union, and empowered to exercise only such peculiar and special supremacy, 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 possessed or could exercise any inherent jurisdiction countervailing those laws, the act of 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 cases.

It necessarily results, as a consequence of this special character of the United States judiciary, that it can possess no powers other than those specifically conferred by the Constitution or laws of the Union, and such incidents thereto as are necessary to the proper execution of its jurisdiction. All other judicial 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 avljudications of the court. Chisholm v. Georgia, 2 Dall. 419, 432, 435; Ex parte Bollman, 4 Cranch, 75; Ex parte Watkins, 3 Pet. at page 201 ; Kendall v. United States, 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 criminal nor civil cases, resort to the common law as a source of jurisdiction. United States v. IIudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415; Chisholm v. Georgia, 2 Dall. 432; Ex parte Bollman, 4 Cranch, 75; Pavlet v. Clark, 9

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