mitting the facts stated in the petition, I should discharge the infant on the ground that this court cannot exercise the common law functions of parens patriæ and has no common law jurisdiction over the matter.

"2. Because the court has not judicial cognizance of the matter by virtue of any statute

of the United States.

105*] **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.

"4. Because by that rule the father is not entitled on the case made by this petition to take this child out of the custody of its mother." It is this decision which the plaintiff in error seeks to reverse, and on this motion to grant this writ of error, it is respectfully submitted— 1. That this is not such a final judgment as is contemplated by the statute of 1789, which a writ of error may be brought to re

verse.

2. That there is no pecuniary value to the subject in controversy, nor any way in which pecuniary value can be ascertained so as to allow a court of error to bring up the matter to this court from the Circuit Court.

an ex-parte application, and where no summons or other process was served upon the defendants in error, or either of them, is not a final judgment in a civil action, or a final decree in a suit in equity.

It is stated that the petition was filed; but it was not served, nor was any original process issued or served; there were, therefore, no parties before the court, there was no action in personam or in rem; there cannot well be an action at law or a suit in equity where there are no parties before the court.

The Act of March 3d, 1803, uses the expres sion, "cases in equity," but they are confined to cases of admiralty and maritime jurisdiction, and to be carried up to the Supreme Court by appeal.

Judge Betts says, in this case: "A procedure by habeas corpus can in no legal sense be regarded as a suit or controversy between private parties." Holmes v. Jennison et al. 14 Peters, 540, refused to discharge under habeas corpus. If a suit not a suit between private parties.

2. There is no pecuniary value to the subject in controversy, nor any way in which pecuniary value can be ascertained. Now, by the twenty-second section of the Judiciary Act, to which I have referred, a writ of error to this court does not lie unless the matter in contro3. That the application was to the discretion versy, exclusive of costs, exceeds the sum of of the Circuit Court, and this court will never two thousand dollars. Now, though in some interfere to control the discretion of the in- cases the court have allowed testimony of ferior court. The parties who are proceeded value to be given by affidavits or viva voce, against are the wife and mother of plaintiff in when the demand is not for money, yet this ap error. The plaintiff in error cannot proceed pears to have been done only in cases where against his wife in this court, her domicil in real value could be readily fixed, and it has althe eye of the law being the same as her hus-lowed the value of an office or its emoluments band's.

5. The Circuit Court possess no other or different powers in relation to habeas corpus under the act, than are possessed by this court, and this court have already passed upon this case by refusing to grant the writ when application was made upon the same state of facts directly to this court. This court have no jurisdiction over the subject matter, and the writ of error should be quashed for want of jurisdiction.

1. This is not such a final judgment as contemplated by the statute.

is

The language of the statute (sec. 22) is, that final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of fifty dollars exclusive of costs, may be re-examined and rendered or affirmed in a circuit court holden in the same district upon a writ of error whereto shall be annexed and returned therewith at the day and place thereby mentioned an authenticated transcript of the record, assignment of errors, prayer for reversal, citation, etc.

"And upon a like process" (that is, writ of error, record, etc.), may final judgments, and decrees in civil actions, and suits in equity in a circuit court, brought there by original process or removed there from State courts, or by appeal from district courts, etc., and "when the matter in dispute exceeds the sum or value of two thousand dollars," etc., be re-examined and reversed or affirmed by the Supreme Court. 106] Now, it is respectfully but confidently submitted to this court that the decision of the Circuit Court in this matter, upon

to be thus established.

I do not see how the value is to be ascertained in this case; and, indeed, it does not seem to be one of the actions at law or suits in equity contemplated by the act to reverse the judgment or decree in which writs of error may be brought.

In the case of Columbian Insurance Co. v. Wheelwright et al. 7 Wheaton, 534, a writ of error was held to lie for this court to the Circuit Court for the District of Columbia, upon a judgment overruling a peremptory mandamus. But it was quashed on account of the matter in controversy not being of the value of one thousand dollars, though in that case the value of the office was allowed to be appraised. But the language of the Act of February 27, 1801, is different from that of the Act of 1789.

In the Act of 1801, writs of error may be brought to reverse or affirm final judgments, orders, or decrees in said Circuit Court. But, as in the Act of 1789, final judgments in civil actions and suits in equity. Act of 27 February, 1801, sec. 8, 2 Stat. at Large, 106, contains the provision in relation to writs of error to Circuit Court for the District of Columbia.

3. The application was to the dis- [*107 cretion of the Circuit Court, and this court will not interfere to control the discretion of an inferior court.

It has been repeatedly decided in this court that the exercise of the discretion of the court below in refusing or granting amendments of pleadings on motions for new trials, and refusing to re-instate cases after nonsuit, affords no ground for writ of error. See United

States v. Buford, 3 Peters, 31; United States v. Evans, 5 Cranch, 280; Maryland Insurance Co. v. Hodgson, 6 Cranch, 206.

See, also, the case of Boyle v. Zacharie, 6 Peters, 657, where the object of the writ of error was to reverse the decision of the Circuit Court in refusing to quash a writ of venditioni exponas, and where it was held not to lie. In that case, Mr. Justice Story said: "A very strong case illustrating the general doctrine is, that error will not lie to the refusal of a court to grant a peremptory mandamus upon a return made to a prior mandamus which the court

allowed as sufficient."

But "a procedure by habeas corpus (says Judge Betts) can in no legal sense be regarded as a suit or controversy between private parties. It is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of sovereign, to ascertain whether the infant in this case is wrongfully detained, and in a way conducing to its prejudice."

It has been well and often remarked, that the power of the courts of the United States is given to them by express and written grant; and where they exercise the power of issuing writs of habeas corpus, they find their authorThe case before the court is one of a similarity in "thus it is written." They derive no jucharacter, and resting equally in the sound dis- risdiction from the common law. The grand cretion of the Circuit Court. inquisition of the sovereignty of the United States is not to be invoked unless in cases where the written law gives the power to invoke it. Certainly, this is not one of the cases. It is a case for the grand inquisition of the State of New York. That grand inquest has repeatedly decided this matter.

4. The plaintiff in error cannot proceed in this court against his wife; her domicil being in law the same as his. If the proceeding in the Circuit Court can be annulled as an action at law or a suit in equity, then clearly the plaintiff in error could not carry on such action or suit in any of the courts of the United States against his wife, as one of the defend

ants.

5. The Circuit Court possesses no other or different power than this court in relation to a writ of habeas corpus, and this court have already passed upon this case and refused the writ for want of jurisdiction. The writ of error should therefore be quashed for want of jurisdiction.

The language of the fourteenth section is, "that all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, etc. The power of this court to issue writs of habeas corpus has never been doubted by the court, and has repeatedly been exercised; but its power to is sue a writ in the present case has been doubted and the writ refused. The court, after hearing the plaintiff in error on original application to this court on the same state of facts as were presented to the Circuit Court, refused to grant the writ. It is respectfully submitted that the application to a circuit court has in no respect changed the aspect of the matter, and if this court had no jurisdiction over the subject matter when the original petition was presented, neither can it have jurisdiction now, when the subject comes up for its decision from the judgment of an inferior court.

"What question (says Judge Betts in this same opinion) 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 ruies or principles, because found in the ancient common law, which should trample down and abrogate the policy and cherished usages of a State, authenticated and sanctified as a part of her laws by the judgment of her highest tribunals."

I submit this question of jurisdiction, with entire confidence, to this court. I know its practice has been in conformity with the language of its late eminent Chief Justice. "We must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so it never will, we trust, shrink from that which is conferred upon it."

I submit, therefore, with great deference, the motion that this writ of error should be quashed, as irregular, and for want of jurisdiction.

*Mr. Barry, in opposition to the mo- [*109 tion, made the following points, which he maintained at great length:

In the case of Ex-parte Barry, 2 Howard, 65, Mr. Justice Story says: "It is plain, there- 1. The record in the above cause presents 108] fore, that this court has no original *ju- the case of a "final judgment" by the Circuit risdiction to entertain the present petition, and Court for the Southern District of New York we cannot issue any writ of habeas corpus, ex-in a "suit," within the meaning of the twentycept when it is necessary for the exercise of second section of the Judiciary Act of 1789; the jurisdiction, original or appellate, given to and the plaintiff in error is therefore entitled it by the Constitution and laws of the United States."

Is it not equally plain that the Circuit Court can issue no writ of habeas corpus, except when it is necessary for the exercise of its jurisdiction, original or appellate, given to it by the Constitution and laws of the United States? Was this habeas corpus necessary to the exercise of the jurisdiction of the Circuit Court? True, the eleventh section of the Judicial Act gives the Circuit Court original cognizance with the courts of the several States, of all suits of civil nature at common law or in equity.

to have such judgment re-examined in this court by writ of error, provided the court below had jurisdiction of the case, authority to issue the writ of habeas corpus ad subjiciendum, and the record presents a prima facie case for the award of such writ. United States Laws, Statutes at Large, 81; Holmes v. Jennison, 14 Peters, 540; Weston et al. v. City Council of Charleston, 2 Peters, 449; Kendall v. United States, 12 Peters, 614; Sto. Com. Abr. 608; Columbian Ins. Co. v. Wheelwright et al. 7 Wheat. 534; Co. Litt. 288, b.

2. The court below had jurisdiction of this

case, and authority to issue the writ of habeas | making any present election, follows the corpus under the Constitution, at the common legeance of its father, partus sequitur patrem, law, by implication, and by statute; and con- and is a British subject. The father being sequently committed error in deciding that it domiciled and resident within the dominions of had not such jurisdiction and authority. The Her Britannic Majesty, such is also the proper petition on the record presents a prima facie and rightful domicil of his wife and child, and case for the award of such writ, and the court he has a legal right to remove them thither. below committed error in denying it to the The child being detained from the father, its plaintiff in error, to whom it belonged as a writ natural guardian and protector, without auof right by the "law of the land;" his title rest-thority of law, the writ of habeas corpus ad ing, in debito justitiæ, on probable cause shown subjiciendum is his appropriate legal remedy by affidavit. 36 Edw. III. cap. 9; 42 Edw. for its restoration to him from its present ilIII.; 8 Henry IV.; 8 Henry VI.; 28 Edw. I.; legal detention and restraint. Constitution 3 Car. I.; 16 Car. I. cap. 10; 31 Car. II.; Bac. United States, art. 3, sec. 2; Judiciary Act, Abr., title Hab. Corp.; Greenhill's case, 4 1789, sec. 11; Inglis v. Trustees Sailor's Snug Adolph. & Ellis, Eng. Com. Law Rep. 624; Harbor, 3 Peters, 99; 7 Anne, cap. 5; 4 Geo. III. United States v. Green, 3 Mason, 482; Rex v. cap. 21; Warrender v. Warrender, 2 Clar. & Winton, 5 D. & E. 89; Rex v. Isley, 5 Adolph. Fin. Ap. Ca. 523; Story's Confl. Laws, 30, 36, 43, & Ellis, 441; Constitution United States; 74, 160; Shelford on Marriage, Ferg. Rep. 397, Yates's case, 6 Johns. 422, 423; Bollman and 398. Swartwout, 4 Cranch, 75; Ex-parte Randolph, 5. If the laws of the proper domicil of the 2 Brock. C. C. R. 447; 3 Bl. Com. 132; 3 Bac. plaintiff (and by necessary consequence that of Abr. 421; Judiciary Act, 1789, sec. 14; United his family), applicable to the case on the recStates Stat. 2 Mar. 1831, sec. 39; Kearney's ord, be not repugnant to the laws or policy of case, 7 Wheat. 38; Crosby's case, 3 Wilson, this country, and this be proved to the court, 172; 1 Kent's Com. 301; Wood's case, 3 Wilson; the case is one proper for the exercise of the 3 Bac. Abr. 3; In re Pearson, 4 Moore, 366; comity of the American nation-not of the Mag. Char. cap. 29; United States v. Bain- court, but of the nation; and the court below bridge, 1 Mason, 71; 1 Kent's Com. 220; Unit- will extend that comity to the plaintiff, not ed States Supreme Court, Ex-parte Barry, 2 only by awarding him the writ of habeas corpus How. 65; 19 Wendell, 16, and cases cited; ad subjiciendum, the appropriate legal remedy Vernon v. Vernon, MS. case, New York Chan- sought, but also by deciding the case on its cery, 11th June, 1839; Ahrenfeldt's case, Ch. merits, at the hearing, agreeably to the law of New York, July, 1840; Commonwealth v. his domicil. In re Wilkes, 1 Ken. 279; DartBriggs, 16 Pick. 204; In re Mitchell, Charl-mouth College v. Woodward, Con. Rep. United ton's Rep. 489; State of South Carolina v. Nel-States, 577; Warrender v. Warrender, 2 Clar. & son, MS. case, 1840; Prather's case, 4 Desaus. Fin. Par. Rep. 529; 9 Bligh. N. S. 110; 33; 25 Wendell, 72, 73; Gov. Seward's Mess. to *Bill for Protection of Minors, Senate [*111 Senate, Albany, 20th March, 1840; 5 East, of New York, 1840; Gov. Seward's Message to 221; 12 Vesey, 492; 2 Russell, 1; Review of Senate, 20th March, 1840. D'Hauteville's case, 30; 2 and 3 Victoria, cap. 54; 11 Vesey, 531; People v. Mercein, 3 Hill, 399; Ex-parte Burford, 3 Cranch, 449.

Mr. Rockwell, for the motion to dismiss, in reply and conclusion:

addressed to the discretion of the court, and may be refused if upon the application itself it appears that, if admitted to be true, the applicant is not entitled to relief. 2 Bl. Com. 132, 133, n. 16; 3 Bulstr. 27; 2 Roll. Rep. 138.

1. The writ of habeas corpus is not issued as 110] 3. The court below, if it had jurisdic-matter of course, upon the application, but is tion by implication, committed error in assuming that the Court for the Correction of Errors, by its decision on the case of the plaintiff on two former writs of habeas corpus, in 1840 and 1842, had either "supplied the rule of law," or given "evidence of the common law rule" which was to be the rule of decision in the case on this record, two years after-a case entirely de novo-in 1844. And the court below committed further error in deciding, that by such assumed rule of law or evidence of the common law rule, the plaintiff in this cause was not entitled, on the case made by him, to the custody of his child-the same being a prejudication on the merits-no argument being had before the court in respect of either such assumed rule, or the evidence thereof, or on the merits. No such rule existed in point of fact, and consequently no evidence thereof could exist. Decision Supreme Court New York, 1842, 3 Hill, 399; MS. Opinion, Chan. New York, April,

1844.

4. The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during his father's temporary residence therein-twenty-two months and twenty days-notwithstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitated by its infancy from

King v. Hobhouse, 2 Chitty, K. B. Rep. 207, marg. note. "The writ of habeas corpus, whether at common law or under the 3 Car. II., does not issue as a matter of course in the first instance, upon application, but must be grounded on affidavit, upon which the court are to exercise their discretion whether the suit shall issue or not." See, also, The Spanish Sailors, 2 Sir W. Blackstone, 1324.

King v. Barnard Schiever, 2 Burr. 765. Habeas corpus for a prisoner of war taken on board an enemy's prize ship denied in the first instance.

Ex-parte Kearney, 7 Wheat. 38. In this case the application was ex-parte, and in the first instance denied by the court, and in subsequent

cases.

Commonwealth v. Robinson, 1 Serg. & Rawle, 353. The court declared it a matter of discretion whether to grant or refuse a writ of habeas corpus to discharge an apprentice from military service on application of the master.

Ex-parte Tobias Watkins, 3 Peters, 193. Pe. tition denied in the first instance.

3. That part of the section conferring the power upon the judges in vacation to issue the writ "for the purpose of inquiring into the cause of commitment," as does the proviso, indicates that reference was only had to confine-a contrary opinion: Ex-parte Wilson, 6 Cranch, ment under a United States process, or "under color of authority of the United States."

In relation to husband and wife, parent and child, the various and diversified and vexed questions that arise concerning the custody of children, the court will not be anxious by any doubtful construction to enlarge their jurisdic tion. The court exercising that jurisdiction cannot dispose of the various questions involved, as in ordinary questions of pecuniary In all the following cases habeas corpus was value, by a judgment and execution. They issued, where the party was confined under must enter the nursery and inquire as to the color of process of the United States, and al-'character and habits of the respective parents