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Note. In the Matter of Barry.

habeas corpus

character decided that, under our statute, a writ lies to inquire into the cause of commitment, though made on civil process. Ex parte Randolph, 2 Brock. 447, 476; see, also, Bank of the United States v. Jenkins, 18 Johns. 303, 309. But it is to be borne in mind that the Supreme Court hesitated as to the soundness of this interpretation of the statute; for, in E.c parte Wilson, Chief Justice Marshall, after consultation with the judges, on a motion for a habeas corpus, stated that the court was not satisfied that a habeas corpus is the proper remedy in a case of arrest under civil process, 6 Cranch, 52, and the writ was denied; and to the same effect was the decision of the Supreme Court of New York. Cable v. Cooper, 15 Johns. 152.

If the more extended interpretation of the term be adopted, and cases of commitment for civil or criminal matters may be brought under review by habeas corpus, yet in view of the qualified character of the federal government, and the special jurisdiction of its judiciary, the more reasonable inference would be that Congress intended the protection of this writ should be interposed by its courts only in cases of imprisonment under color or claim of the authority of the United States.

Rawle, an eminent commentator on the Constitution, says that the writ of habeas corpus is restrained to imprisonments under the authority of the United States. Rawle on Const. 115, 2d ed. 117.

Every adjudicated case in the United States courts, with one exception, has been under writs sued out for relief against an actual arrest of a party under process, or his confinement by claim of authority of the United States. United States v. Hamilton, 3 Dall. 17; United States v. Johns, 4 Dall. 412; Ex parte Burford, 3 Cranch, 448; Ex parte Bollman, 4 Cranch, 75; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193, 201; Ex parte Milburn, 9 Pet. 704; United States v. Bainbridge, 1 Mason, 71; Ex parte Cabrera, 1 Wash. C. C. 232; Ex parte Randolph, 2 Brock. 471, in which a doubt is made whether the writ may not apply in case of imprisonment on civil process.

Judge Washington, on habeas corpus, adjudged the matter not within the cognizance of the Circuit Court, because the prisoner was not in custody by authority of the United States, and was not committed for trial before any of its courts. Ex parte Cabrerlly 1 Wash. C. C. 237.

Note. In the Matter of Barry.

The proviso to the 14th section, above recited, looks to such limitations of the writ. It is palpable that Congress did not intend that an inquiry into the cause of commitment of a person detained should authorize the United States courts to interfere with his custody, unless the subject matter upon which he was confined was to be acted on and decided by the United States tribunals.

This policy of the statute is emphatically indicated by the act of March 2, 1833, c. 57, § 7, in which special powers are conferred on the United States courts to liberate by habeas corpus even persons confined under authority of state law, for any act done or omitted to be done, in pursuance of a law of the United States, or in pursuance of any order, process, or decree of any judge or court thereof. Both clauses denote that it was the violation of a law of the United States or its just authority, in the imprisonment of the citizen, that was intended by Congress to be inquired into and remedied by habeas corpus before the courts of the United States.

My opinion upon this review of this subject is, that there is no foundation for the claim that there is vested in the United States government a common law prerogative, or that the Circuit Court can, upon the footing of common law prerogative, by writ of habeas corpus, assume and exercise this function of parens patriæ in relation to infant children held in detention by private individuals, not acting under color of authority from the laws of the United States.

And it also seems equally clear to me that the authority given by the 14th section of the Judiciary Act, to issue writs of habeas corpus “ for the purpose of an inquiry into the cause of commitment,” necessarily restricts the jurisdiction of the courts to commitments under process or authority of the United States.

I should, upon the conclusions against the competency of the court to take cognizance of the matter, feel constrained to deny the petition, but for the decision of the Circuit Court in the First Circuit, in an analogous case, where the relief now prayed for was granted. United States v. Green, 3 Mason, 482.

The jurisdiction of the court was not brought in question, and was undoubtedly conceded by the parties, but the acquiescence in a legal proposition so important, by a judge of the exact and varied learning of Judge Story, and one whose judicial habit is so cautious and investigating, is an imposing authority in its support.

Note. In the Matter of Barry.

A citizen of New York sued out a habeas corpus against a citizen of Rhode Island, the grandfather of his infant child, to recover possession of the child, which was retained and defended against the demand of the father. The court took cognizance of the subject matter, and, after full hearing, decided the question of rightful custody upon its merits in favor of the father. It was supposed that the Circuit Court possessed such authority under the provisions of the 11th and 14th sections of the Judiciary Act.

The 11th section gives Circuit Courts original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, etc., etc., when one party is a citizen of the State where the suit is brought and the other an 'alien, etc., etc. 2 Bioren's Laws U. S. 60, 61; 1 Stat. 78.

It is well settled that Congress has not, in this section, exhausted the powers vested in them by the 2d section of the 3d article of the Constitution, and imparted to the Circuit Courts cognizance of all cases at common law which might be within the control of the legislative power. Turner v. Bank of North America, 4 Dall. 11; Bank of the United States v. Devaux, 5 Cranch, 61.

The Supreme Court say there is manifestly some limitation to the authority of the Circuit Courts in respect to the cases therein brought within the purview of their jurisdiction, and that those courts have not jurisdiction, under the 11th section, of all suits or cases of a civil nature at common law. Kendall v. United States, 12 Pet. at p. 616.

Two particulars must concur as the foundation of a suit in a Circuit Court — that the litigant parties be competent to sue and be sued, and that the subject matter be one over which the court has cognizance. Voorhees v. United States Bank, 10 Pet. 449, 474.

A procedure by habeas corpus can in no legal sense be regarded as a suit or controversy between private parties. It is an inquisi. tion by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign, to ascertain whether the infant in this case is wrongfully detained, and in a way conducive to its prejudice.

Neither in England or the States in this country does the court regard this as a suit in which the right of guardianship is to be discussed or decided. Rex v. Smith, 2 Strange, 982; People v. Mercein, 8 Paige, 47; In re Wollstonecraft, 4 Johns. Ch. 80; In re McDoule, 8 Johns. 328, 332.

Note. In the Matter of Barry.

Judge Story, in the case cited, manifestly took the same view of the subject. 3 Mason, 482, ubi sup.

There would, moreover, be a technical objection to this proceeding, if a suit, which the court might not be permitted to overlook.

Neither in this country nor in England can an action be prosecuted by an individual in the name of the government, without express authority of the court, or the officer appointed by law to represent the public. And no distinction is made between actions popular in their nature and those in which the private suitor is solely the party in interest.

The authority of the Circuit Court to take cognizance of the case must, probably, then, be deduced from the provisions of the 14th section, in conjunction with those of the 11th; and the first clause or branch of the 14th section must be accepted as giving the courts of the United States power to issue the writ of habeas corpus, without the restriction of the subsequent clause, to “ the purpose of an inquiry into the cause of commitment.” And the 11th section must be regarded as supplying the parties in whose behalf such general power may be exercised.

The argument was pressed with great earnestness before the Supreme Court in Bollman and Swartwout's Case, that the first clause of this section was to be interpreted as a positive and absolute grant of power, 4 Cranch, 82; but the court does not seem to have yielded to that construction, for, in reference to that point they say that “the true sense of the words is to be determined by the nature of the provision and by the context.” 4 Cranch, 94. And they evidently regard the whole section as having relation to one and the same matter.

The principles established by the Supreme Court and brought in review in that case, would seem to militate so strongly against the doctrine involved in the case of United States v. Green, as to prevent this court adopting the latter as its guide in determining this point; but without asserting that such diversity exists in the judgments of the Supreme and Circuit Courts, and admitting that the decision in 3 Mason stands unimpaired as an authority, I proceed to consider the remaining general inquiry, whether by the law of the land the petitioner is entitled to the relief asked for.

What, then, is the law which this court administers? For that will be the law of the land in respect to these parties and the subject matter of this petition.

Note. In the Matter of Barry.

The argument assumes it to be the common law of England as declared and enforced by her courts, and that the most recent adjudications in those tribunals is the highest and most important evidence of what the law is, and must supply the rule of decision to the United States courts. This view of the subject disregards the special organization of the United States Circuit Courts and the limited purposes they were designed to subserve.

They are distributed amongst the States to exercise that special jurisdiction bestowed upon the federal government, or shared with it by the state sovereignties, and not to carry with them an inherent power to resort to or employ any other law than that given them by express and written grant. Chisholm v. Green, 2 Dall. 432, 435; Ex parte Barry, 2 How. 65. Although the people brought with them, on their emigration to this country, the essential principles of the common law, and embodied them in their institutions, yet this was not done by them in a national capacity, (at the time no such character or capacity was contemplated,) but as distinct communities independent of each other. Chisholm v. Georgia, 2 Dall. 419, 435; Bains v. Schooner James, 2 Bald. 544, 557.

Nor has the common law been adopted by the United States as a system applicable to the States generally and to be administered as such in the national courts. Kendall v. United States, 12 Pet. 621.

This has been done specifically by act of Congress in relation to the District of Columbia, Kendall v. United States, 12 Pet. 621; but in respect to the States the common law is regarded in force only as adopted or modified by the Constitution, statutes, or usages of the States respectively. It came to them and was appropriated by them, and became an integral portion of the laws of the particular States, before the United States government had existence. 1 Story Com. Const. c. 16, 17; 1 Kent, 471, and notes ; Pawlet v. Clark, 9 Cranch, 292, 333; Southwick v. Postmaster General, 2 Pet. 446.

In bringing this new government into action amidst sovereignties already organized and established, it would be a cardinal object to have the limited share of judicial authority possessed by the national judiciary administered, as far as practicable, in consonance with the laws and usages of the State where the court was placed.

Political considerations of the highest moment would exact this. The disquietude and jealousy in relation to this new power would

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