States v. Buford, 3 Peters, 31; United States v. Evans, 5 Cranch, 280; Maryland Insurance Co. v. Hodgson, 6 Cranch, 206.) But a procedure by habeas corpus (says Judge Betts) can in no legal sense be regarded as a suit or controversy between private parSee, also, the case of Boyle v. Zacharie (6 ties. It is an inquisition by the government, Peters, 657), where the object of the writ of at the suggestion and instance of an individual, error was to reverse the decision of the Circuit most probably, but still in the name and capacCourt in refusing to quash a writ of venditioni ity of sovereign, to ascertain whether the infant exponas, and where it was held not to lie. In in this case is wrongfully detained, and in a that case, Mr. Justice Story said: A very way conducing to its prejudice." 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." The case before the court is one of a similar character, and resting equally in the sound discretion of the Circuit Court. 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, &c. 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 issue 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. In the case of Ex-parte Barry (2 Howard, 65), Mr. Justice Story says: "It is plain, there108*] fore, that this court has no original *jurisdiction to entertain the present petition, and 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 and laws of the United States." 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 authority in "thus it is written." They derive no jurisdiction from the common law. The grand 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. "What question (says Judge Betts in this same opinion) can be regarded as in principle more local or introterritorial than those which pertain to the domestic institutions of a State -the social and domestic relations of its citiizens? 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 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: 1. The record in the above cause presents the case of a "final judgment" by the Circuit Court for the Southern District of New York in a "suit," within the meaning of the twentysecond section of the Judiciary Act of 1789; and the plaintiff in error is therefore entitled 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 Is it not equally plain that the Circuit Court writ of habeas corpus ad subjiciendum, and the can issue no writ of habeas corpus, except when record presents a prima facie case for the award it is necessary for the exercise of its jurisdic- of such writ. (United States Laws, Statutes tion, original or appellate, given to it by the at Large, 81: Holmes v. Jennison, 14 Peters, Constitution and laws of the United States? 540; Weston et al. v. City Council of Charles Was this habeas corpus necessary to the exerton, 2 Peters, 449; Kendall v. United States, 12 cise of the jurisdiction of the Circuit Court? Peters, 614; Sto. Com. Abr., 608; Columbian True, the eleventh section of the Judicial Act Ins. Co. v. Wheelwright et al., 7 Wheat., 534; gives the Circuit Court original cognizance with Co. Litt., 288, b) the courts of the several States, of all suits of a civil nature at common law or in equity. 2. The court below had jurisdiction of this case, and authority to issue the writ of habeas 1847 66 BARRY V. MERCEIN ET AL. corpus under the Constitution, at the common | geance 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 Britanic 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 authorof right by the law of the land;" his title rest-ity of law, the writ of habeas corpus ad subjiing, in debito justitie, on probable cause shown ciendum is his appropriate legal remedy for its by affidavit. (36 Edw. III., cap. 9; 42 Edw. restoration to him from its present illegal deIII.; 8 Henry IV.; 8 Henry VI.; 28 Edw. I.; tention and restraint. (Constitution United 3 Car. I.; 16 Car. I., cap. 10; 31 Car. II.; Bac. States, art. 3, sec. 2; Judiciary Act, 1789, sec. Abr., title Hab. Corp.; Greenhill's case, 4 11; Inglis v. Trustees Sailor's Snug Harbor, 3 Adolph. & Ellis, Eng. Com. Law Rep., 624; Peters, 99; 7 Anne, cap. 5; 4 Geo. III., cap. United States v. Green, 3 Mason, 482; Rex v. 21; Warrender v. Warrender, 2 Clar. & Fin., Winton, 5 D. & E., 89; Rex v. Isley, 5 Adolph. Ap. Ca., 523; Story's Confl. Laws, 30, 36, 43, & Ellis, 441; Constitution United States; Yates's 74, 160; Shelford on Marriage, Ferg. Rep., case, 6 Johns., 422,423; Bollman and Swartwout, 397, 398.) 5. If the laws of the proper domicil of the 4 Cranch, 75; Ex-parte Randolph, 2 Brock. C. C. R., 447; 3 Bl. Com., 132; 3 Bac. Abr., 421; plaintiff (and by necessary consequence that of Judiciary Act, 1789, sec. 14; United States his family), applicable to the case on the record, Stat., 2 Mar., 1831, sec. 38; Kearney's case, 7 be not repugnant to the laws or policy of this Wheat., 38; Crosby's case, 3 Wilson, 172; 1 country, and this be proved to the court, the Kent's Com., 301; Wood's case, 3 Wilson; 3 case is one proper for the exercise of the comBac. Abr., 3; In re Pearson, 4 Moore, 366; ity of the American nation-not of the court, Mag. Char., cap. 29; United States v. Bain- but of the nation; and the court below will exbridge, 1 Mason, 71; 1 Kent's Com., 220; tend that comity to the plaintiff, not only by United States Supreme Court, Ex-parte Barry, awarding him the writ of habeas corpus ad sub2 How., 65; 19 Wendell, 16, and cases cited; jiciendum, the appropriate legal remedy sought, Vernon v. Vernon, MS. case, New York Chan- but also by deciding the case on its merits, at cery, 11th June, 1839; Ahrenfeldt's case, Ch. the hearing, agreeably to the law of his domi(In re Wilkes, 1 Ken., 279; Dartmouth New York, July, 1840; Commonwealth v. cil. Briggs, 16 Pick., 204; In re Mitchell, Charl- College v. Woodward, Con. Rep., United States, ton's Rep., 489; State of South Carolina v. Nel-577; Warrender v. Warrender, 2 Clar. & Fin. son, MS. case, 1840; Prather's case, 4 Desaus., 33: 25 Wendell, 72, 73; Gov. Seward's Mess, to Senate, Albany, 20th March, 1840; 5 East, 221; 12 Vesey, 492; 2 Russell, 1; Review of 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.) N. S., 110; Par. Rep., 529; 9 Bligh., *Bill for Protection of Minors, Senate [*111 of New York, 1840; Gov. Seward's Message to Senate, 20th March, 1840.) Mr. Rockwell, for the motion to dismiss, in reply and conclusion: King v. Hobhouse (2 Chitty, K. B. Rep., 207, The writ of habeas corpus. marg. note). must be 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 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.) 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 adtion by implication, committed error in assum-dressed to the discretion of the court, and may ing that the Court for the Correction of Errors, be refused if upon the application itself it ap by its decisions on the case of the plaintiff on pears that, if admitted to be true, the applicant two former writs of habeas corpus, in 1840 and is not entitled to relief. (2 Bl. Com., 132, 133, 1842, had either "supplied the rule of law," orn. 16; 3 Bulstr., 27; 2 Roll. Rep., 138.) 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 noro-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 its 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 making any present election, follows the le King v. Barnard Schiever (2 Burr., 765). IIabeas 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 à 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). Petition denied in the first instance. 2. A writ of error does not lie to review 78 Boyle v. Zacharie et al. (6 Peters, 648, marg. note). "A writ of error will not lie to a Circuit Court of the United States, to revise its decision in refusing to grant a writ of venditioni exponas, issued on a judgment obtained in that court." Per Story, J. (p. 657): "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. (3 Bro. Parl. Cas., 505.) 112*] *The Dean and Chapter of Dublin v. King (1 Bro. Parl. Cas., 73). Application to the King's Bench for mandamus to admit Robert Dugdale to his office as clerk, upon which there was an award of a peremptory mandamus; held, writ of error not to lie, there being no plea and judgment. (Weston v. Peters, 449.) City Council of Charleston, 2 Holmes v. Jennison (14 Peters, 540). "I do not intend to examine the question whether proceeding upon a habeas corpus is a 'suit,' within the meaning of the twenty-fifth section: or whether writ of error will lie to review proceedings upon a habeas corpus, although the case on these points is not free from doubts," &c. (Per Thomson, J., 550; Judge Baldwin's opinion, 622, 625.) Columbian Insurance Co. v. Wheelwright (7 Wheat., 534). Mandamus valuation of office. II. The Circuit Court had no jurisdiction of the subject matter. 1. That court derives all its jurisdiction from the Constitution of the United States and the acts of Congress, and is strictly confined to the acts of Congress conferring jurisdiction, and defining the powers of the court. 1 Kent's Com., 294. "With judicial power, it may be generally observed, as the Supreme Court declared in the case of Turner v. Bank of North America (4 Dall., 8), that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the Constitution might warrant. (McIntyre v. Wood, 7 Cranch, 504, to the same effect; United States v. More, 3 Cranch, 159; 6 Cranch, 305; 3 Dall., 321; 1 Cranch, 212.) Mr. Barry. The Circuit Court must enlarge their jurisdiction, as the Circuit Court has the residuum of authority inherent, and incidental powers at common law as a high court of record. 2. The only power conferred on the Circuit Court is in the Judicial Act of 1789: Sec. 14. That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of them, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of inquiring into the cause of commitment. "Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless when they are in custody under or by order of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." *1. This statute provides that "all [*113 the before mentioned courts," &c., referring to the supreme, circuit, and district courts, and conferring like powers on all. The original jurisdiction of all these courts, and the appellate jurisdiction of the supreme and circuit courts had been all defined. The court derives all its power from this statute, and the limitations of it are to be precisely followed, expressio unius exclusio est alterius. Ex-parte Ballard; Ex-parte Swartwout (4 Cranch, 75, per Marshall, Ch. J., 93). "Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, but the courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend their jurisdiction." "The power to award the writ by any of the courts of the United States must be given by written law." Page 95. If the power be denied to this court, it is denied to every other court of the United States." Ex parte Tobias Watkins (3 Peters, 193, by Marshall, Ch. J., p. 201). "The judicial act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ for the purpose of inquiring into the cause of commitment. Ex-parte Barry (2 Howard, 65, marg. note.) "The original jurisdiction of this court does not extend to the case of a petition by a private individual for a habeas corpus to bring up the body of his infant daughter, alleged to be unlawfully obtained from him." Why not? If not conferred on the Supreme Court it is not conferred on the circuit or district courts by this statute. 2. The object of this section was not to confer upon any of these courts a general authority to issue this writ. It was designed as auxiliary -"Which may be necessary for the exercise of their respective jurisdictions." The scire facias is a writ of execution, in all cases founded upon a record, and is a necessary incidental power to the exercise of the jurisdiction of any court. So of habeas corpus, without which power the court would not be able even to protect suitors or witnesses attending court from a writ, &c., &c. 3. That part of the section conferring the power upon the judges in vacation to issue the 1847 BARRY V. MERCEIN ET AL. writ for the purpose of inquiring into the cause of commitment," as does the proviso, indicates that reference was only had to confinement under a United States process, or “under color of authority of the United States." 31 Car. I., ch. 2, provides, "That on complaint and request in writing by or on behalf of any person committed and charged with any crime (unless," &c.), "the Chancellor, &c., shall award a writ of habeas corpus," &c. The powers of the section had doubtless reference to the English statute, and to confer a limited and not general authority. 114*] *The decisions of the United States courts in relation to writs of mandamus are entirely analogous. They are both prerogative writs, and the defining and limiting the power to issue writs of habeas corpus by statute restricts them more than the others. 1 Kent's Com., 294. "It has been decided that Congress has not delegated the exercise of judicial power to the Circuit Court but in The eleventh section certain specified cases. of the Judicial Act of 1789, giving jurisdiction to the Circuit Court, has not covered the whole ground of the Constitution, and these courts cannot, for instance, issue a mandamus but in those cases in which it may be necessary to the exercise of their jurisdiction.") (McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheaton, 598; Kendall v. United States, 12 Pet., 524-618.) If this is considered one of "the other writs not specified by statute" (sec. 14, Judiciary Act), the term is very properly used-" neces sary for the exercise of their respective jurisdictions"-giving a judicial construction to the meaning of the latter term. them the court proceed upon the assumption 3. Although in numerous decisions infants are doubtless under the control of courts of law as to their custody, and courts having jurisdiction may issue writs of habeas corpus, yet the courts, representing the sovereign power of the State, adopt the course which they may deem for the benefit of the child at their discretion. It is an extension of the original purposes of the writ, and not contemplated by the powers of the Judicial Act, nor consistent with the limited authority of the general government. De Manneville v. De Manneville (10 Ves.. 52-66, Ld. Chan, in conclusion, p. 66). "I must either give the child to the father, when I know not what he proposes to do if it remain with him; or to the mother, to which, upon some principles, there is great objection; or I must take some middle course; and I shall take care that the intercourse of both father and mother with the child, so far as is consistent with its happiness, shall be unrestrained." Ordered that the child should not be removed out of jurisdiction. King v. Grenhill (4 Adol. & Ellis, 624). "Nor will this rule be departed from on the ground that the father has formed an adulterous connection, which still continues, if it appear that he has never brought the adulteress to his house, or into contact with his children, and does not intend to do so." (Marg. note.) Ex parte Colura (1 Wash. C. C. R., 232, The courts of the United States marg. note). and the justices thereof are only authorized to issue writs of habeas corpus to prisoners in jail under color of the authority of the United The general government is one of defined and States, or committed by courts of the United It is the design of the ConstiStates, or required to testify in a case depend- limited powers. tution that the judicial should be co extensive ing in a court of the United States.' The jurisdiction of the courts of the United with the legislative authority, but not to exceed States is limited; and the inferior courts can ex-it. These powers are comparatively free and ercise it only in cases in which it is conferred well defined, and are exceptions to the authority residing in the State, and subject to their by act of Congress.' judicial authority. The great mass of authority remains in the States, and is governed by and dependent upon State authority. United States v. French (1 Gallison, 1 marg. note). "The Circuit Court has no authority to issue a habeas corpus for the purpose of surrendering a principal in discharge of his bail, when the principal is confined in jail merely under process of a State court. Per Curiam," We have no authority in this case to issue a habeas corpus. The authority given by the Judicial Act of 1789, chap. 20, sec. 14, is confined to cases where the party is in custody under color of process under authority of the United States, or is committed for trial before some court of the United States, or is necessary to be brought into court to testify. N. B.-The party in this case was confined under a penal law of Congress (2 Statutes at Large, 506), in which State courts have, by repeated decisions, no jurisdiction. In all the following cases habeas corpus was issued, where the party was confined under color of process of the United States, and although any other exercise of the power was not in express terms denied, yet in a number of All questions arising out of the domestic relations are peculiarly and appropriately within the province of the State governments; and the court will be slow in countenancing any principle, or giving any construction of the Constitution and laws that shall decree to itself this branch of local authority. 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 jurisdiction. The court exercising that jurisdiction cannot dispose of the various questions involved, as in ordinary questions of pecuniary value, by a judgment and execution. They must enter the nursery and inquire as to the character and habits of the respective parents the wishes of the child-and make such or ders from time to time as may be required by 75 the ever changing circumstances of all the parties concerned. What portion of these ques116*] tions *would this court have to take charge of, and what new set of rules or officers for these wards of the court? If the writ of error is sustained, and the case remanded, and the Circuit Court ordered to is sue the writ, it will be the duty of the Circuit Court to make such orders as will be for the benefit of the child, and vary them from time to time. Can these be reviewed by this court? This proceeding is really a question as to the custody of an infant child, and of guardianship on the part of the courts of the United States; and although called habeas corpus ad subjiciendum, it is so by fiction of law. It is not a question of the personal liberty of the child, but of its custody and nurture. It is not in substance at all that great writ of English or American liberty, but a great extension, if not entire perversion, of its object. Master and Servant.-Are the relative rights and duties of the master and servant a matter of local or national jurisdiction? Suppose a servant from Kentucky flies to Ohio. His master pursues him and takes him. He is ordered to bring his writ of habeas corpus before the Circuit Court. The court denies the application. He brings his writ of error to this court. Has the court jurisdiction? Will it or der the Circuit Court to issue the writ? If not, why not? If in obedience to the order the Circuit Court | issues the writ, and refuses to discharge the person, a writ of error lies to this court. Petition for Divorce.-It is not embraced in the tenth section of the Judicial Act of 1789. 1. The power of the court to issue the writ at all is given by statute, in the fourteenth sec- | tion, and must be limited to the purposes, and by the restrictions in the act. 2. It is not a "suit of a civil nature at common law or in equity, when the matter in dis pute exceeds the sum or value of $500." 3. The phraseology in the twenty-fifth section is different-in any suit." The object is different, to have the power of the United States, in relations to treaties, Constitution, laws, or authority of United States. The term is used in its most general sense-civil, criminal, equity, and all others. The object is to control the decisions of State courts on national questions. (See Holmes v. Jennison, 14 Peters, 2.) III. The court has not jurisdiction of the parties. One of the defendants in error. Mrs. Barry, has no domicil in the United States, but follows that of her husband. 1. In order to give the court jurisdiction all the defendants must be liable to be sued before the United States court. (1 Kent's Com., 324; Strawbridge v. Curtiss, 3 Cranch, 267.) 2. "A married women follows the domicil of her husband. This results from the general principle, that a person who is under the power 117*] and authority of another possesses no right to choose a domicil." (Story on Conflict of Laws, 45, and authorities there cited.) Greene v. Greene (11 Pick., 410). The domicil of the wife follows that of the husband." (14 Pick.. 181.) So in settlement cases. A wife and minor child can have no settlement separate from the husband and father." (Shirley v. Watertown; | Sears v. City of Boston, 1 Met., 242, absent a number of years, &c.) The petitioner himself declares (p. 4), That the said Eliza Ann, by her intermarriage with your petitioner, became a derizen of the British empire, and entitled to inherit within the said realm as though she were a British subject. All the privileges, advantages, and immunities, being supervenient upon those of her domicilium originis as an American citizen." If so, can anything but a divorce or death deprive her of these rights? He speaks of her going to her own proper home at Liverpool"; and (p. 6) that his wife should “return to her own proper home and duties." 3. The Supreme Court have their appellate jurisdiction only in those cases in which it is affirmatively given by the acts of Congress, and no such appellate jurisdiction is given in this case. (Wiscart v. Ďauchy, 3 Dall., 321; Clarke v. Bazadone, 1 Cranch, 212; Court of United States Territory northwest of the Ohio, United States v. More, 3 Cranch, 159, criminal case from Circuit Court of District of Columbia; Ex parte Kearney, 7 Wheat., 38.) No appeal from Circuit Court in criminal cases. IV. The Supreme Court has not jurisdiction, as the matter in dispute does not amount to $2,000. (Ex-parte Bradstreet, 7 Pet., 634.) In cases where the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of this court and of the courts of the United States has been to allow the value to be given in evidence.” In this case evidence was offered in the court below between Martha Bradstreet and Apollos Cooper, a writ of right of the value of the land in dispute; but that value not appearing on the record the court dismissed the proceedings. Mandamus issued to re-instate the case. Per Marshall, Ch. J., p. 647: "Every party has a right to the judgment of this court in a suit brought by him in one of the inferior courts of the United States, provided the matter in dispute exceeds the sum or value of two thousand dollars. In "In cases where the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of this court and of the courts of the United States is to allow the value to be given in evidence. pursuance of this practice, the demandant in the suits dismissed by order of the judge of the District Court had a right to give the value of *the property demanded in evidence at [*118 or before the trial of the cause," &c. United States v. More (3 Cranch, 172, per Marshall, Ch. J., p. 172). "But as the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its powers must be understood as a regulation under the Constitution, prohibiting the exercise of other powers than those described." Thus the appellate jurisdiction of this court from the judgments of the Circuit Court is described affirmatively; no restrictive words are used. Yet it has never been supposed that a decision of a curcuit court could be reviewed, unless the matter in dispute should exceed the value of two thousand dollars. There are no words in the act restraining the |