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Note. In the Matter of Barry.

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 plentitude and vigor.

There was a deep-rooted attachment in the States to their own laws and customs, whilst 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.

Accordingly, 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 September 24, 1789, §§ 11 and 34, 1 Stat. 78, 92.

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.

Note. In the Matter of Barry.

This exposition by the Supreme Court, so far as it covers this 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 regard only certain classes of decisions made by the state tribunals as laws of the State within 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 courts as rules of decision, and that the decisions of the state courts are evidence of what the laws of the State are.

The court in the same opinion declares that the decisions of the state courts upon even commercial questions are entitled to and will receive the most deliberate attention and respect of the Supreme Court, though they do not supply positive rules or conclusive authority. Swift v. Tyson, 16 Pet. at p. 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, that 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, to 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 residing in the 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 in this court?

The United States courts cannot take cognizance of matters of

Note. In the Matter of Barry.

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 accordingly unnecessary to consider the question which has been raised in the state courts, whether, under the Revised Statutes, 2 Rev. Stats. N. Y. 477, § 88, (1st ed.,) there exists in this State any common law right or remedy by habeas corpus, because, if the 11th and 14th 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 corpus, 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. Stats. N. Y. (1st ed.) 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 various tribunals of the State. Two of the local judges and the chancellor, on these 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 full discussion, adopted a different conclusion, and, by two solemn decisions, adjudged that the father, under such a state of facts, was by law entitled to the custody of the infant child. 25 Wend. 82, ubi sup. ; 3 Hill, 405, ubi sup. 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. Session 1844, ubi sup.

Note. In the Matter of Barry.

The Supreme Court based their decisions upon the doctrines of the common law, and not upon the terms of the Revised Statutes, 2 Rev. Stats. N. Y. 466, § 23, the language of which certainly comprehends the broadest range ever given the writ by the English courts, and might very plausibly be urged as extending it to matters not before embraced within that remedy. Revisers' notes,

3 Rev. Stats. N. Y. 784.

The substance of the enactment is, that a habeas corpus shall issue on the application of any person (by petition signed by himself, or another in his behalf) "committed, detained, confined, or restrained of his liberty, for any criminal or supposed criminal matter, or under any pretence whatsoever," 2 Rev. Stats. N. Y. 466, (1st ed.) §§ 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 years of age, from its father, by the mother, living separate from him, and who has it in her nurture, is not, in judgment of law, 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 are 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 sharp 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 language 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

Note. In the Matter of Barry.

of the respective courts on 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 and reverses.

Every lawyer, however, is well aware that a decision is not to be estimated merely by the ability or learning displayed in its composition, but essentially by the sanction it obtains.

Of what value toward establishing a principle or fixing a rule of 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 searching for and applying a rule of law, rests upon the dissenting arguments of judges, in the courts of this country or England, whatever be 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.

Every 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 comparison with the 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 that any extraordinary judicial learning or experience exists in that body, or is brought to act on the subject matter.

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

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