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Note. In the Matter of Barry.

or foreigner, 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 admiralty and 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 twelve judges 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 Brougham, in the face of the House of Lords, and stand uncontradicted. 2 Chitty's Practice, 587, note 4.

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 of the House of Lords.

At least twenty-one 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 doubted whether any period can be referred to in the history of these two exalted tribunals, since they have had coëxistence, 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 of the Court of Errors are, within the State of New York, obligatory to the same extent as enactments by positive law. It no more diminishes their efficiency that 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 judgments 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, and although, within the doctrines declared by the Supreme Court

Note. In the Matter of Barry.

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 eridence 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 States 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 of a 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 commercial law, does not embrace 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 such matters, the judgment of the local tribunal cannot but be of most imposing weight and significancy as a matter of evidence.

I do not discover 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 on that point, the inclination of this court most assuredly must be to yield to the domestic 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 doctrine has ever been countenanced in the Supreme Court of the United States that modern decisions in the English courts, unsanctioned by ancient tradition, are entitled to outweigh those of state courts in fixing the final laws of the State.

Note. In the Matter of Barry.

The value of the latest decision, the most relied on, that of King v. Greenhill, 4 Ad. & El. 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. 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 coördinate 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 domicil 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. Wright, 2 Mass. 84, 89; Vermont Bank v. Porter, 5 Day, 316, 320; Bank of Augusta v. Earle, 13 Pet. 519, 589.

VOL. CXXXVI-40

Note. In the Matter of Barry.

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 inanimate.

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 afford a controlling rule of decision to the court. In the use of the remedy afforded by means of this writ, the courts have regarded the father as that guardian first to be looked to, in case a change of custody should be deemed proper, and the infant was not of competent age to make its own choice of guardian; but it has been purely in the application of the remedy and for the protection and interest of the infant, and not in subordination 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 court he invokes, without regard to the law of his allegiance, and that his demand of this particular relief is no way aided by the consideration that it would be awarded him in England or Nova Scotia.

I close this protracted discussion by saying that I deny the writ of habeas corpus 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 parens patrice; and has no common law jurisdiction over the matter;

(2) Because the court has not judicial cognizance in the matter by virtue of any statute of the United States ; or,

(3) If such jurisdiction is to be implied, that then the decision of the Court of Errors of New York supplies the rule of law, or furnishes the highest evidence of the common law rule, which is to be the rule of decision in the case; and,

Note. In the Matter of Barry.

(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.

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