Slack v. Perrine

9 App. D.C. 128 | D.C. | 1896

Lead Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. In our view of this Gase, it is wholly unnecessary to decide whether the statute of 12 Charles 2, Ch. 24, Sec. 8, is in force in the District of Columbia to the full extent claimed for it, viz., that the father of infant children may by deed or will transfer their exclusive custody and control to a guardian, regardless of the fact that their mother, his wife, may be competent, willing and in all respects qualified to maintain, educate and train them properly.

2. The decision of the case as presented on this record turns upon the effect that must be given to the decree of the Chancery Court of New Jersey.

It will be remembered that the litigation began in a petition for a writ of habeas corpus filed by the appellant. The children were then in New Jersey and were produced in court. The appellees, both citizens of New Jersey and domiciled therein, were served with process and appeared in person and by counsel.

Treating the action as a proceeding not to set the children at liberty, but to determine the right to their custody and control, which it really was, the appellees answered fully, setting out their title under the will of the father, and specially charging the unfitness of the mother to have the control of the children. Evidence was taken in accordance with the ordinary practice in chancery cases, and upon petition, answer and proof, the decree was rendered denying the right of the appellees and awarding the permanent custody and control of the children to the appellant.

(1) The first question is, can the doctrine of res judicata be founded on the decree rendered in such a proceeding ?

The great object of the writ of habeas corpus was to obtain the release of all persons illegally restrained of liberty, and its chief application has been in cases of detention for alleged crimes. The judgments in such proceedings, if against the person illegally held, were generally not regarded as precluding inquiry into the facts by other courts of competent jurisdiction. However, in such cases the custom has grown, and in many instances has been sanctioned by statutes to discharge the writ upon a return showing that there has been an adjudication by a competent court, unless there shall have been in the meantime a substantial change in material conditions.

In the case of infants the processes of the writ necessarily become widened and extended.

These were, upon occasion, not only to be released from illegal or improper custody, but also by reason of their helpless condition, to be provided with continued, if not permanent, custody and control. In such cases the contests generally concern the conflicting rights of claimants to the custody and control of the infant rather than the mere question of its right to be discharged from an illegal restraint. As concerns these contestants and the matters at issue between them, we see no reason why the principle of res judicata should not apply to the judgment or decree of a court of record having jurisdiction of the subject-matter and of the parties.

For this view we have the support of abundant authority: Freeman, Judg., Sec. 224; Church, Habeas Corpus, Sec. 387; Tyler, Infancy and Coverture, 291; 1 Van Fleet, Former Adjudication, 93; 9 Am. & Eng. Ency. Law, 238; Mercein v. People, 25 Wend. 64; Perry v. McLendon, 62 Ga. 598, 603; Dubois v. Johnson, 96 Ind. 6, 14; Brooke v. Logan, 112 Ind. 183, 186; State v. Bechdel, 37 Minn. 360; McConologue’s Case, 107 Mass. 154, 171; State v. Baird, 19 N. J. Eq. 481, 486.

In Brooke v. Logan, supra, the Supreme Court of Indiana said: “ The question of the custody of a minor child, once properly and finally adjudicated, whether in a habeas corpus proceeding or otherwise, is settled for all time, unless there be an appeal, and the judgment rendered is impregnable as against a collateral assault. ... A subsequent writ may be awarded, but upon the subsequent hearing evidence will not be heard which goes back of the previous adjudication.”

The Supreme Court of Minnesota enounces the same doctrine in an emphatic manner. State v. Bechdel, supra. Having noted the distinction between cases purely criminal and those where civil rights of the parties are involved, it was said : “ The case is really one of private parties contesting private rights under the form of proceedings on habeas corpus. In our judgment, in such cases both principle and considerations of public policy require the application of the doctrine of estoppel to judicial proceedings. We therefore hold that a former adjudication on the question of the right to the custody of an infant child, brought up on habeas corpus, may be pleaded as res judicata, and is conclusive upon the same parties upon the same state of facts.

In McConologue’s Case, supra, the prisoner, having been once discharged from restraint by an officer of the United States Army as an enlisted soldier, was retaken and compelled to apply for a second writ. He was again discharged, and Mr. Justice Gray, speaking for the court, said: “ Any facts which the respondent deemed material upon that issue should have been proved at the hearing, and any ruling in matter of law with which he was dissatisfied should have been reserved. The judicial discharge of a prisoner upon habeas corpus conclusively settles that he was not liable to be held in custody upon the then existing state of facts.”

The doctrine of res judicata applies with stronger reason to the decree in question here, because the court rendering it had, in adddition to concurrent jurisdiction with the courts of law in habeas corpus, general jurisdiction over infants. If the question is determinable by the law as interpreted in New Jersey ; that is to say, if the decree is to be given such effect as it would have in that State, there can be no question of its conclusiveness. State v. Baird, 19 N. J. Eq. 481, 486. It was said by the Supreme Court of New Jersey in Richards v. Collins, 45 N. J. Eq. 283, that: “ The chancellor in this State exercises a concurrent jurisdiction with law judges on habeas corpus. No doubt it is true that in the ordinary use of the writ the court may content itself, where the subject of the alleged imprisonment is capable of self-protection, with a judgment ox order freeing the person from illegal custody and restoring him to liberty. But it is quite clear that in this use of the writ judges have not refused to exert a larger power, and have quite frequently, in the case of children, taken the subject of illegal restraint from the custody of one and handed it over to another. . . . The court may stop with the mere removal of restraint, or, in its discretion, may go farther and determine for the time being the custody of the subject of the writ. But the court of chancery exercises far more extended control in respect to the custody of children in virtue of an inherent jurisdiction over that subject. In the exercise of this higher authority that court may permanently fix the status of infants, even in disregard of the legal rights of parents, where the welfare of the infant requires it; nor is it material to the exercise of this power in what way the subject is brought into court. ... In my opinion, the pleadings present a controversy such as addresses itself to the general equitable powers of the court. The parties are claiming the right of permanent custody of the child, and they stand in a position to litigate that question. Facts sufficient for its decision are put upon the record. The case throughout has proceeded as one in the equity court.”

What is there said is strictly applicable to the record in this case.

(2) That the decree must be given the same effect in other jurisdictions that it would have in New Jersey is well settled. “ Without doubt,” said Chief Justice Waite, “ the constitutional requirement (Art. IV, Sec. 1) that ‘ full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State/ implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home. This is clearly the logical result of the principles announced as early as 1813 in Mills v. Duryee and steadily adhered to ever since.” Chicago, etc., R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 622; Christmas v. Russel, 5 Wall. 290, 302; R. S., Sec. 905. And the doctrine applies as well to decrees affecting status, as, for instance, decrees for divorce, alimony, &c. Barber v. Barber, 21 How. 582, 596; Cheever v. Wilson, 9 Wall. 108, 123; Cheely v. Clayton, 110 U. S. 701, 705; Laing v. Rigney, 160 U. S. 531; see also Carpenter v. Strange, 141 U. S. 87, 105; Rich. & Danv. R. Co. v. Gorman, 7 App. D. C. 91.

3. The conclusiveness of the decree necessarily depends upon the conditions that the court had jurisdiction of the subject-matter and the parties, and into that we proceed to inquire.

(1) As to the jurisdiction over the appellees there can be no question. They were citizens of New Jersey, found and served with process in that State.

(2) The infants over whose custody the contest raged, were then in the State of New Jersey and subject to the jurisdiction of the Court of Chancery in that State. Conceding that their legal domicile was at the time in the District of Columbia, a question that is not altogether free from doubt, they were nevertheless subject to the jurisdiction of the Court of Chaneery whilst there. Johnston v. Beattie, 10 Cl. & Fin. 42; In the Matter of Hubbard, 82 N. Y. 90; Woodworth v. Spring, 4 Allen, 321. That the power has been or may be abused, is no argument against its existence. On the other hand, where this jurisdiction is well established, courts have often, through comity, taken infants from the custody of domestic guardians and delivered them to the guardian appointed in their legal domicile, for return thereto. Nugent v. Vetzera, L. R. 2 Eq. 704, 712; Woodworth v. Spring, supra.

The denial of this jurisdiction of the chancellor, whether exercised on habeas corpus or otherwise, does not come in very good grace from the appellees, who, by detaining the children in New Jersey, necessarily forced the appellant to seek her rights in the courts of that State. The appellees must reasonably have apprehended that the appellant would seek to recover her children upon the death of their father) and yet, instead of returning them to the District of Columbia, which was also the domicile of that mother, and to the jurisdiction of its court, they compelled her to resort to the courts of their own domicile in the first instance.

The mother began her proceeding with great promptness; but it was not an unreasonable thing to do after she had been denied access to her children; nor was it unreasonable for her to presume that appellees, who had always lived in New Jersey, would remain there with the children.

3. The plea that the children, at the time of the decree rendered, were not in New Jersey, but in the District of Columbia, and therefore the court had lost its jurisdiction, is utterly untenable.

That a litigant, by violating the confidence of the court, and in direct contempt of its authority, can wholly defeat its jurisdiction by absconding with the thing or person that is the subject of contention is an inconceivable proposition. It is true the power of the court to give immediate execution of its decree may be thus rendered nugatory, but the power to decide the questions at issue and to determine the title of the respective parties remains and cannot be taken away-That the court may have rendered an erroneous decision is of no importance whatever. If the appellees by their conduct rendered it impossible for their counsel to appear and represent them at the hearing and thereby failed to have the merits of their cause fully and effectively presented, the fault is their own and they must bear the consequences of their deliberate action. Possibly, had they remained in court, the decision might have been different; or they might have reversed this decree on appeal to the highest court. But, erroneous or not, the decree must be considered equally conclusive of all matters that were or might have been offered on behalf of the defendants therein. Nesbitt v. Riverside Independent District, 144 U. S. 610, 618; Dowell v. Applegate, 152 U. S. 327, 343; Scotland Co. v. Hill, 112 U. S. 183; S. C. 132 U. S. 107, 113; Laing v. Rigney, 160 U. S. 531, 542.

If the contention as regards the loss of jurisdiction, by reason of the removal of the children from New Jersey, was sustained by this court, what assurance have we that our judgment in this case may not be rendered equally vain with that of the Chancery Court of New Jersey?

The children might be spirited away into Maryland or Virginia and the same contention made in the courts of those States as to the effect of the judgment in this jurisdiction. We apprehend that those courts would give effect to the decree herein so far as the rights of the contestants are concerned. We will, at least, furnish them no precedent for different action.

4. The next objection to the jurisdiction is that there is no such judicial officer as the vice chancellor. The constitution of New Jersey makes no provision for such an officer, and it is contended that the statute creating him and regulating proceedings before him is in violation of the constitution. Passing by the argument in respect of the credit to be given to the decrees of de facto tribunals, we are of the opinion that there is nothing in the contention, and that, too, without regard to what may or not be the correct construction of the constitutional provision. The statute has been in force twenty-five years and its constitutionality has been continuously upheld by an universal acquiescence.

Each time that the chancellor gave effect, as he did in this instance, to a decree advised by the vice-chancellor, he necessarily decided that he was a lawfully created officer. This of itself is sufficient. The Supreme Court of the United States itself in such cases will' follow the decisions of the higher courts of the State, on the construction of the constitution and laws of the State, unless, of course, they conflict with some provision of the Federal Constitution. Crowley v. Christensen, 137 U. S. 86; Giozza v. Tiernan, 148 U. S. 657, 661; Pittsburgh, etc., R. Co. v Backus, 154 U. S. 421, 425.

Any other rule in respect of the question here considered would be in violation of interstate comity at least, and would render nugatory the constitutional provisions concerning the effect to be given in one State to the public acts and judicial proceedings of another.

The precise question, we think, however, is covered by the decision of the Supreme Court in a recent case. Laing v. Rigney, 160 U. S. 531, 542. In that case a wife had sued her husband for divorce in the Chancery Court of New Jersey, where both parties lived. Personal service was obtained and the defendant filed an answer, denying the allegations of the bill, on August 4, 1883. He subsequently removed to New York. In May, 1886, plaintiff filed a supplemental bill, alleging new facts, upon which she prayed a decree. Service of a copy of this bill was had upon the defendant in New York, who took no notice of it. Final decree was rendered, upon proof sustaining the allegations of the supplemental bill, for divorce and alimony.

Suit was then instituted upon that decree in a State court of New York, and the Court of Appeals held, when the case came before it, that the suit was properly dismissed, because the defendant had not been served with process in such manner as to give the court jurisdiction over him in respect of the matters alleged in the supplemental bill under the law and usage of New Jersey.

On error to the Supreme Court of the United States this _ judgment was reversed. Mr. Justice Shiras, speaking for the court, said : “ In the absence of any statutory direction on the subject and of any reported decision of the Supreme Court of that State, we are justified in finding the law to be as declared in the very case in hand, where the chancellor of the Chancery Court of New Jersey has entered a final decree based upon an original bill, the process under which was served upon the defendant within the State, and upon a supplemental bill, a copy of which with a rule to plead, was served upon the defendant without the State. So long as this decree stands it must be deemed to express the law of the State. If the defendant deemed himself aggrieved thereby his remedy was by an appeal.”

Referring then to the testimony of an attorney of New Jersey concerning the law of that State in such cases, upon which the New York court founded its decision, the learned justice said further; “The opinion of the chancellor differed from that of the witness, and, what is more important, his judgment was that, under the laws and practice of the State of New Jersey, the defendant was in his court, subject to its jurisdiction and bound by its decree.”

5. Assuming that the vice chancellor was a dejwre officer fully authorized to hear causes in equity upon reference of the chancellor, as provided by the statutes and rules of court, it is contended that his power to grant the writ of habeas corpus is a special power conferred on him by statute, and therefore the whole proceeding, from petition to decree, should have been before and by him, without the intervention of the chancellor or the Court of Chancery.

The statute referred to, enacted in 1889, reads thus: “ That the vice chancellors, or either of them, shall have the same jurisdiction, power and authority to grant all writs of habeas corpus, and to hear and determine the same, that the chancellor of this State now has, and he or they shall proceed in the same manner.”

The petition for the writ of habeas corpus was addressed to Hon. John T. Bird, vice chancellor of the State of New Jersey, but was filed in the Court of Chancery, and the writ issued from said court under the hand of the clerk and the seal of said court. All the proceedings are of record in that court and the transcript of the record is certified by the clerk and the chancellor. Whilst the vice chancellor may issue the writ, it appears' that the custom and usage is to conduct the proceeding in the Chancery Court under the rules thereof and the supervision of the chancellor as in ordinary equity causes. So, in accordance with that practice, the decree when rendered was signed by the chancellor as advised by the vice chancellor after the hearing before him. The transcript of the record shows that on November 25,1895, the day before the final hearing, the chancellor by formal order referred the cause to John T. Bird, vice chancellor, “to hear the same for the chancellor and to report to him and advise what order or decree should be made •therein.”

Whilst there are a chancellor and several vice chancellors in New Jersey, there is but one Court of Chancery, and it has been held in that State that an act of the legislature conferring certain power upon the chancellor, meant not him as an individual of that designation, but the Court of Chancery over which he presided. Del. Bay & C. M. R. Co. v. Markley, 45 N. J. Eq. 139, 147.

Whether the statute meant that applications might be made to the vice chancellor for the writ, and that the same might be granted by him without direction of the chancellor, is immaterial, for it seems quite clear that it was intended to be issued out of the Court of Chancery, and, when returned, to be heard therein according to the usual practice of that court. In this case the infants were brought into the Court of Chancery, likewise the parties, and the hearing was had therein.

The decree is the decree of that court and not the order merely of the chancellor or the vice chancellor, and, as we have before said, it must have the same effect here that it has “by law and usage at home.”

Let it be conceded that the writ was irregularly issued; that the order of reference was not made at the proper time, or that it ought not to have been made at all; and that the decree was irregularly made and signed; still these were but irregularities or errors that cannot affect the validity of the decree as a decree of the Court of Chancery upon a collateral inquiry. Del. Bay & C. M. R. Co. v. Markley, 45 N. J. Eq. 139, 148; White v. Crow, 110 U. S. 183, 189.

4. What has been said as regards the conclusive effect of the decree of the Court of Chancery of the State of New Jersey has application only to the parties plaintiff and defendant therein and to the issues between them.

As between Mrs. Slack on the one hand and Mr. and Mrs. Perrine on the other, her right as mother to the custody of the infants was adjudged superior to theirs under the will of William H. Slack, or under any other claim they might have asserted. That will did not require probate to give it efficacy; nor could it acquire efficacy from probate, as regards the right of guardianship claimed thereunder, any more than it could in respect of real estate in this jurisdiction. As the foundation of a right to the custody of the children as against the claim of the mother, it has been destroyed by the decree. Until reversed or set aside, that decree, even if erroneous, must remain a bar to the assertion of any claim under said will by the appellees as against Mrs. Slack.

In so far as the infants themselves are concerned, the right of the mother to their permanent ciistody and control has not been settled by that decree. Their rights cannot be concluded or prejudiced by it. Their welfare is a matter of paramount consideration at all times and under all circumstances. Courts of competent jurisdiction will always extend their arms to protect infants from injury and contamination, to the extent, when necessary, of taking them from the custody of' guardian or parent. Eyre v. Shaftesbury, 2 Lead. Cas. Eq. 1416, 1517, et seq.; Richards v. Collins, 45 N. J. Eq. 283.

As the children are now in the District of Columbia, whether rightfully or wrongfully, they are within the jurisdiction of its courts for the purpose of necessary care and protection. The fitness or unfitness of appellant to have the permanent care and control of the children is not a matter before this court, nor as to them and their rights has it been conclusively adjudicated. If, when these children shall have been delivered to her in accordance with the opinion of this court, it may be made to appear to the satisfaction of a court having jurisdiction in the premises, that she is not a proper person to be entrusted with the care and education of her own children, other provision may be made therefor.

5. In conclusion, it may be remarked that we have not failed to consider the point made, that, by reason of her demurrer to the answer and return of appellees, in which they deny the jurisdiction of the court of New Jersey in the premises, the appellant has admitted the truth of that allegation. The denial was not the equivalent of a plea of nul tiel record. Had it been, it would have put in issue the existence of the record merely. Harper v. Cunningham, 5 App. D. C. 203. And that record was an exhibit to the petition, duly certified in compliance with the act of Congress (R. S., Sec. 905), and proved itself. The real effect of the answer was to deny the jurisdiction of the vice chancellor. That is a conclusion of law from the facts shown in the record and has been disposed of.

6. It follows necessarily from what has been said, that the judgment appealed from must be reversed, with costs to the appellant, and the cause remanded to the court from whence it came, with directions to sustain the demurrer to the respondents' answer and return, and to proceed with the cause in conformity with this opinion. And it is so ordered.

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Dissenting Opinion

Alvey, Ch. J.:

I must dissent in toto from the opinion of the majority of the court in this case. I think the order dismissing the application for the writ of habeas corpus should be affirmed. I will file the reasons for this dissent hereafter.

On June 25,1896, Mr. Chief Justice Alvey filed the following dissenting opinion:

This case is one of great delicacy, as it is of great importance, in a much more extended view than the effect upon the rights of the immediate parties concerned. It involves questions of the gravest character of both State and domestic relations and government; and it is in view of the very serious consequences that will likely result from the opinion of the majority of this court, that I feel compelled to dissent from the conclusions arrived at by them. I shall state the grounds of my dissent in as brief a manner as the nature of the case and the complication of the proceedings will admit of, having reference to reasonable clearness of presentation.

The case is a most unfortunate one, and especially so to the two little children, the subjects of the controversy, now about eleven and nine years of age; and the scandals and the criminations and recriminations, respecting the lives and conduct of the parents, with which the record before me abounds, can have no other effect than to cast a shadow or blight upon the lives of these innocent children. In all proceedings of this nature, however, without respect to parental rights, it is the first and most imperative duty of the court to consider the welfare of the children, and to afford them full protection, so far as that can be done, even though it may involve the necessity of taking them from the custody and control of father or mother, or those into whose care they may have been placed by the selection of either parent.

The record shows that William H. Slack, the late husband of the appellant Mary Kemble Slack, and the father of the two infant children, Mary J. G. Slack and Catharine A. Slack, the subjects of this bitter contest, on the 12th of July, 1895, made and executed his last will and testament, whereby he devised and bequeathed to his sister, Mrs. Addie Slack Perrine, his entire estate in trust for his two infant children, and thereby appointed his sister, Mrs. Perrine, the sole executrix of his will, and the sole guardian of the persons and estate of his two minor children, until they should arrive at the age of twenty-one years. This last will and testament was made here in the city of Washington, where the testator, his wife, and his children, all resided, and had their lawful domicile; though the husband and wife, owing to domestic dissensions, were living separate and apart from each other. William H. Slack, the husband and father, died on the 2d of October, 1895, at a watering place in New Jersey, where he had been spending some months for the benefit of his health, though still retaining his domicile in the city of Washington. • It appears that during his sojourn in New Jersey, the father requested that his two children should be sent to him, and they were accordingly sent, and they were in the care of Mrs. Perrine at the time of the death of their father, and they remained in her care thereafter up to the present time.

It also appears, that a few days after the death of William H. Slack, his will was produced and offered for probate by the sister, Mrs. Perrine, in the Supreme Court of the District of Columbia, and to which will there was a caveat entered by the widow, Mrs. Mary Kemble Slack; and after issues framed and trial had, the will was adjudged to be good and valid, and was thereupon duly admitted to probate, and letters testamentary were granted to the executrix named in the will.

It also appears, that in October, 1895, a petition was filed in New Jersey, addressed to Vice Chancellor Bird of that State, to which Mrs. Slack afterwards became a party, praying that a writ of habeas corpus should issue, to bring before the vice chancellor the two infant children, then in the State of New. Jersey, alleged to be unduly and illegally restrained, and detained from their mother, by Mr. Perrine and Mrs. Perrine, his wife; and in that petition it was averred that William H. Slack had abandoned his wife in March, 1894, at Washington City. That in October of that year, in accordance with his request, Mrs. Slack had sent the two children to Trenton to visit their aunt and father at Mr. Perrine’s house. That since that time they had been detained from their mother, who had made diligent efforts to regain possession of them, and to that end had instituted a suit in September, 1895, for their custody and for their maintenance, in Washington City. That, although demand had been made for the children, Perrine and wife had refused to deliver them to the mother, and denied the latter access to her children, pretending that their father had constituted Mrs. Perrine guardian to said children. The petition prayed that the vice chancellor, upon return of the writ, would direct the children to be released from their illegal restraint and detention, and that they be delivered to their mother. By an indorsement upon the petition, it was ordered that the writ be “ allowed by the statute,” and which direction was signed by the vice chancellor. To the writ, thus ordered to be issued, Perrine and his wife made separate returns. By their separate returns they alleged that the domicile of the children was the city of Washington ; and that they had no property in New Jersey; and that, by the laws in force in the District of Columbia, a father had and still has the right to appoint a testamentary guardian of his children, which right, the father, William H. Slack, had exercised by his will, which had been filed for probate* and that the matter of the probate of the will was then pending in the Supreme Court for the District of Columbia, and which court had exclusive jurisdiction in the premises. That Mrs. Perrine was entitled, by virtue of the will and appointment thereunder, to the sole care and custody of said children who desired to remain with her. The returns then set out various matters going to show the moral unfitness of the mother to have the care and control of her infant children.

The petitioners, Buckley and Mrs. Slack, traversed the allegations of the returns to the writ. They insisted that the domicile of the children was in New Jersey, though they expressly admitted under oath, that William H. Slack and his wife, at the time of the death of the former, were both domiciled in the city of Washington; but they denied that the question of the legal right to the custody of the children depended upon the laws of the United States in force in the District of Columbia; and denied that the father had, by last will and testament, appointed a guardian for his children.

Before any final order was passed in the case, the children were brought to this District, the place of their domicile, where they have remained ever since, in the care and custody of their guardian, Mrs. Perrine. Their mother has since taken up her residence in the State of New York. And after the children were withdrawn from New Jersey and brought to this District by their guardian, (whether justifiably or not I shall not stop to inquire, as I do not deem it material in my view of the case) the vice chancellor of New Jersey, with the approval of the chancellor, in the habeas corpus proceedings pending in that State, placed the respondents in contempt for failure to produce the children in court, in accordance with a previous interlocutory order, and then proceeded to declare “ that the said minor children were illegally restrained from the custody of their mother, by the respondents, and that the petitioner, Mary Kemble Slack, was a fit and proper person to have the custody of her said minor children, the subjects of the habeas corpus proceeding therein, and that the interest of the said minor children require that they be committed to the care, custody and control of their said mother, during their minority ; and that she was by the law of the land entitled to such custody against said respondents or either of them>;” and then proceeded to adjudge and determine that said infant children “ be, and they are hereby, relieved and discharged from the illegal detention and restraint in which they are held by the respondents, and hereby are committed to the care, custody and control of the petitioner, Mary Kemble Slack, for the reasons and causes aforesaid; ” and it was further “ ordered, adjudged, &c., that the care, custody and control of said infant children be committed and given to the petitioner, Mary Kemble Slack, their mother, for and during the minority of each of them, respectively, as against the respondents, or either of them, for the reasons aforesaid.” This decree was advised by the vice chancellor and signed by the chancellor.

A few days after this decree in New Jersey, a petition was filed in the Supreme Court of the District of Columbia, as a court of law, by Mrs. Slack, the mother, against the present appellees, for a writ of habeas corpus to compel the production and delivery to her of the two minor children; and in her petition she repeats substantially the same allegations made in the petition for habeas corpus in New Jersey. She states and sets forth the decree of the Chancery Court of New Jersey, of the 26th of November, 1895, as having adjudged and determined her right to the custody and control of the children, and that, therefore, they should be delivered to her; she alleges that the children are illegally and unjustly detained from her in this District. She alleges that the decree of the New Jersey Chancery Court is final and conclusive upon the parties to those proceedings, and she exhibits with her petition a copy of the New Jersey proceedings and decree. The present application, therefore, is in the nature of an action upon and to enforce the order or decree of the chancellor or vice chancellor of New Jersey, made under a statute of that State, conferring special jurisdiction upon the vice chancellor in matters of habeas corpus. Upon the petition filed in the court in this District, the writ of habeas corpus was at once issued, and the defendants therein, the present appellees, made return thereto; and among other things set forth in the return, they set up and insisted upon the right of Mrs. Perrine as testamentary guardian of the children, under the will of their father, and utterly denied that the order or decree of the chancellor or vice chancellor of New Jersey, set up and relied upon by the petition of Mrs. Slack, has any force or effect in this District of jurisdiction whatever.

Instead of answering or traversing the return, if facts were denied, or if the return was deemed insufficient, of moving for a better return to the writ, and in default of such sufficient return, for an attachment against the respondents, the petitioner demurred to the return;—a method of testing the sufficiency of the return not recognized as proper hv the common law. The King v. Winton, 5 T. R. 89; Matter of Stacey, 10 John. 328; Cunningham v. Thomas, 25 Ind. 171. The proper mode of procedure on the return to the writ is prescribed by Section 760, Rev. Stats. U. S. All denials or allegations by the petitioner, in reply to the return, should be made under oath, as required by the statute. But treating the demurrer as having the effect only of setting down the case for hearing on the petition and return to the writ, in such case the petitioner must be considered as conceding the truth of all material facts stated in the sworn return; for otherwise their truth could not be established, and it is not allowable to the petitioner, by demurring, to preclude the respondents from the right of establishing the facts alleged by them. Richards v. Collins, 45 N. J. Eq. 283.

But, in the view I have of this case, not intending to discuss the evidence relating to the fitness of the petitioner to have charge of her children, it is not very material whether we treat the case as set down on demurrer proper, or on petition and sworn return to the writ. In either mode of considering the case, the result is substantially the same.

The court below overruled the demurrer, and discharged the writ; and it is from that order that this appeal is taken

The record contains a large mass of matter, but upon the pleadings in the habeas corpus proceedings, but two principal questions are presented.

1st. Whether the statute of 12 Car. 2, Ch. 24, Sec. 8, is in force in this District, as part of the statute law, adopted by act of Congress ?

2d. Whether the order or decree in the habeas corpus proceeding in New Jersey, adjudging and decreeing the care and control of the children to the mother, until they attained the age of twenty-one years, is such a judicial record and proceeding of that State as to be entitled to full faith and credit, and therefore to be enforced in this District, under the Constitution and act of Congress of the United States ?

1. In regard to the first of these questions, we must ascertain whether the statute of 12 Car. 2, Ch. 24, Sec. 8, was adopted and in force in Maryland prior to the act of Congress of 1801, adopting the laws and statutes then in force in that State, for this District. That question is not of doubtful solution.

By Article 3 of the Declaration of Rights of Maryland, of 1776, it was declared “That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which by experience have been found •applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used and practiced by the courts of law or equity.” Among the English statutes thus introduced and adopted was the statute of 12 Car. 2, Ch. 24, Sec. 8. Of this there never has been a serious question in the courts of Maryland; and the 8th section of the statute is expressly recognized as in full force and operation by Subch. 12, Sec. 1, of the Testamentary Act of that State of 1798, Ch. 101, adopted and in force in this District. Section 8 of 12 Car. 2, Ch. 24, has been by a recent case held by the Court of Appeals of that State to be in full force and operation there, under the Declaration of Rights. Hill v. Hill, 49 Md. 450; Dorsey v. Sheppard, 12 G. & J. 192, 199. Sections 8 and 9 are the only parts of the statute in force in Maryland, according to the Report of Kilty, p. 238; Alex. Brit. Stats. 466; and of course, no other parts of the statute are in force here. The British statutes thus adopted have the same force and effect as if enacted by the legislature of the State, and they form a part of the statute law of the State, to the same extent as if enacted in totidem verbis.

By the Act of Congress of February 27,1801 (2 Stat. 103, 104, Ch. 15, Sec. 1), it was enacted that the laws of the State of Maryland, then in force, not inconsistent with the laws of the United States applicable to the District of Columbia, except as they might thereafter be modified or repealed, should continue in force in said District; and this adoption included the common law and the British statutes then in force in the State of Maryland. And as showing how the British statutes thus adopted and continued in force, have been treated and considered by the Supreme Court of the United States, I will merely refer to the cases of United States v. Simms, 1 Cr. 258, and Cathcart v. Robinson, 5 Pet. 264—both cases going into that court from, the District of Columbia. In the last of the cases just mentioned Mr. Chief Justice Marshall, in considering the question of the applicability of the statute of 27 Elizabeth in regard to fraudulent conveyances, said : “ The statute of Elizabeth is in force in this District. The rule, which has been uniformly observed by this court in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted. This rule may be susceptible of some modification, when applied tp British statutes which are adopted in any of these States. By adopting them they become our own as entirely as if they had been enacted by the legislature of the State. The received construction in England at the time they are admitted to operate in this country, indeed to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them.” There is, therefore, no modified or qualified sense or meaning to be attached to a statute thus introduced, but such statutes are our own, and made so by an act of Congress, and are therefore to be considered as if enacted by Congress, and are to be so construed.

That Section 8 of the statute of 12 Car. 2, Ch. 24, is in force in this District is as certain as that it is in force in the State of Maryland; and that, too, by virtue and operation of a comparatively recent act of Congress. The statute of 12 Car. 2, Ch. 24, Sec. 8, is not only referred to as an existing law by the Maryland Testamentary Act of 1798, Ch. 101, in force here, but, by the act of Congress of February 20, 1846, Ch. 8 (now Secs. 937 and 938 Rev. Stats. D. C.), there is express recognition of this statute of 12 Car. 2, as in force in this District; for by that act of Congress of 1846, it is provided that the Orphans’ Court, now the Supreme Court of the District, shall have power to appoint a guardian to any infant orphan being entitled to property in this District, or who may reside herein, except when, such orphan may have a testamentary guardian; and the court may require guardians, either testamentary or otherwise appointed, to give bond. There is no other statute than that of 12 Car. 2, Ch. 24, in force here, authorizing the appointment of testamentary guardians, and no other statute defining the rights and duties of such guardians, to which the act of Congress could have referred.

By the eighth section of statute 12 Car. 2, Ch. 24, it is declared, “ that such disposition of the custody of such child or children shall be good and effectual against all and every person or persons claiming the custody or tuition of such child or children as guardians in socage or otherwise; and that such person or persons to whom the custody of such child or children hath been or shall be so disposed or devised as aforesaid, shall and may maintain an action of ravishment of ward or trespass against any person or persons which shall wrongfully take away or detain such child, &c., for the recovery of such child, and shall .and may recover damages,” &c. The statute places the guardian appointed in loco parentis to the child, and enables such guardian to apply to the courts to obtain control of the ward. This right of appointment of guardian is in recognition of the common law right of the father, as head of the family, and as being responsible for the support and education of his children.

There has been, both in and out of court, a good deal of sentimental declamation indulged in in regard to this statute of 12 Car. 2, and it has been reprobated as being in violation of the natural rights of the mother, and in conflict with the present civilization of the people. .But while it is sufficient to say that courts of justice, and especially courts of common law, are not at liberty to disregard the statute, and act upon any mere feeling of repugnance to it, we must bear in mind that this statute of Charles has been in force in England for more than two centuries, and that it is still in force there, and has stood the test of English civilization, with the slight modification, if modification it can be called, produced by what is known as Justice Talfourd’s Act, passed in 1839, whereby it is provided that the chancellor or master of the rolls may, upon the petition of the mother, where the infant is within the age of seven years, order that such infant shall be delivered to and remain in the custody of the mother until attaining such age of seven years, subject to such regulations as the chancellor or master of the rolls shall deem convenient and just; provided the mother be a fit and proper person to have the custody of the infant. The act of Charles, says Chancellor Kent, “ has been pretty extensively adopted in this country.” 2 Kent Com. 224. The act has been adopted in several of the States of the Union; and in many others it has been the foundation of express legislation, adopting in substance its main provisions. This is fully shown in the very full and learned opinion of Mr. Justice Hagner, delivered in the equity cause forming a part of the present record. The reason and policy of such legislation are well understood. The father, the head of the family, and responsible for the tuition and support of his children, is allowed to delegate his authority to his surviving wife, or to his selected relation or friend, to be exercised after his death. And there may be many reasons why the wife should not be selected. The prospect of a second marriage of the wife, and the introduction of his children into the household of, and to be made subject to the control and, possibly, to harsh and unsympathizing treatment of a stranger to his blood; then the age or ill health of the wife; or worse still, her mental or moral unfitness to train and take proper care of the children, are all matters that would likely influence, and may well justify a father? solicitous for the welfare of his children, in making the selection of a relative or friend to be their guardian, rather than the mother. Indeed, in many cases, the act has a most beneficial operation; and this very case, if the allegations and depositions be true (a question that I do not intend in any manner to decide), would furnish an instance of such beneficial operation of the act. Like all powers of appointment, this power in the father to appoint by testament a guardian to his children is liable sometimes to be exercised in what would appear to be an arbitrary manner, and in disregard of the feelings of the mother. But the history of the statute does not show this to have been frequently the case in reality. The principle of the statute, taking it all in all, appears to have been beneficial in the family relations, and as furnishing the means of securing the welfare of children. If not so, it could hardly have been retained in force as part of the English and American statute law to the present day.

The statute still being in force, let us see what has been decided to be the construction and effect of that statute. In the Matter of Mary Ellen Andrews, L. R. 8 Q. B. 153, in 1873, the subject of the statute of 12 Car. 2, Ch. 24, Sec. 8, was fully discussed before the Court of Queen's Bench, composed of Cockburn, C. J., Mellor, Lush, and Archibald, Justices; and after time to consider of the opinion, it was held, that a person, who has been duly appointed under 12 Car. 2, Ch. 24, Sec. 8, by the will of a father to be guardian of his child, stands in loco parentis, and having, therefore, a legal right to the custody of the infant, may, in order to obtain possession of such ward, claim a writ of habeas corpus, which a common law court has no discretion to refuse, if the applicant be a fit person and the child too young to choose for itself. And if a court of common law, as is the court to which the present application was made, has no discretion to refuse the writ at the instance of the testamentary guardian to obtain the possession of the infant, it would seem, a fortiori, that such guardian can successfully defend his or her possession of such infant against the claim of any other person; and especially so, in the absence of any charge or proof that the guardian was an improper person to have charge or control of the infant. In this case, there is no ground whatever, either alleged or shown in proof, for imputing to the testamentary guardian, any unfitness whatever to have charge of the children.

But while such is the right of the testamentary guardian as defined and enforced by the courts of the common law, a court of chancery, in dealing with questions of this nature, in the exercise of the sovereign right of parens patriae, assumes a more extensive authority than that exercised by the common law eourts ; and in the view of a court of chancery, a guardian appointed by will under the statute of 12 Car. 2, Ch. 24, Sec. 8, has no more power than guardians in socage, and is but a trustee on whose misbehavior, or giving occasion of suspicion, the court of chancery will interpose for restraint of abuse. Beaufort v. Berty, 1 P. Wms. 702. And in the great and leading case of Wellesley v. Beaufort, 2 Russ. 1, 11, where Lord Eldon examined the whole question of the power of chancery over infants, and whose opinion was unanimously affirmed by the House of Lords, (2 Bligh, N. S. 124), the Lord Chancellor said: “An act of Parliament has given the father the power of appointing a testamentary guardian for his children. One should think that the guardian so appointed must have all the authority that Parliament could give him; and his authority is, perhaps, as strong as any authority that any law could give. But it is above a century ago, since, in the case of Beaufort v. Berty, it was determined, that the statute guardian was subject to all the jurisdiction of this court. The Lord Chancellor, in effect, said, ‘I will not place the statute guardian in a situation more free from the jurisdiction of this court than the father is in; ’ so that he applied the acknowledged jurisdiction over the father, as a justification for interfering with the testamentary guardian. And he went further, for he added, ‘ that if he had a reasonable ground to believe that the children would not be properly treated, he would interfere upon the principle that preventing justice was preferable to punishing justice; and that he ought rather to prevent the mischief and misbehavior of guardians, than to punish it when done.’ ”

There is, therefore, no ground whatever for the denunciation of the statute because of any possible wrong or injustice that might be done the infant, as the court of chancery is always ready to afford protection.

2. I come now to the second principal question presented, and that is, as to the force and effect of the order of the vice chancellor of New Jersey, taking the children from the testamentary guardian and adjudging them to the mother, in this District. We have seen from the statement of facts, and the allegations of the pleadings in the habeas corpus case before the vice chancellor, that the father of the children had his legal domicile in this District up to and for many years prior to his death, though he died in New Jersey; and that the mother and children were all domiciled in this District, at the time of the death of the father of the children, and were so at the time of the application to the vice chancellor for the writ of habeas corpus. It was distinctly shown and urged as a defence in the return to the writ that, by virtue of the statute law of the domicile of the deceased father, and of his wife and children, the father had, by his will, duly appointed his sister, Mrs. Perrine, guardian to his children, and that such will had been duly filed for probate in the Probate Court of the District of Columbia. The vice chancellor, acting under special statutory and limited authority of the State, which, at most, and under the most favorable construction of the authority, only authorized him to relieve from illegal restraint, if such illegal restraint was found to exist, the children then in the care and custody of their guardian, and if the children were found to be too young to elect for themselves into whose care they would remain, to determine for them until the question of rightful guardianship (if that were really a question of dispute),. should be determined by a proper tribunal, and in a proper proceeding. But, instead of so proceeding, the vice chancellor, by his order of the 26th of November, 1895, regardless of his special power in the premises, and of the scope of the allegations of the applicant for the writ, proceeded, it appears, to declare that the minor children were illegally restrained from the custody of their mother by the respondents, and that the mother is, by the law of the land, entitled to such custody as against the respondents, or either of them, and thereupon ordered and decreed that the children be discharged from all illegal restraint and detention in which they were held by the respondents, or either of them, and that the care, custody and control of said children be, and they were thereby, committed and given to the petitioner, their mother, for and during their minority, and for and during the minority of each of them, respectively, as against the respondents, or either of them. Thus making and constituting the mother the permanent guardian of the persons of the children, until they respectively attain the age of 21 years, notwithstanding the fact that there had been a legal testamentary guardian appointed at the domicile of the children, and which appointment had been, by express allegation, brought to the attention of the vice chancellor, as a defence to the writ. And this appointment of permanent guardianship by the vice chancellor, was to have effect and operation in this District, though made by a tribunal of special and limited jurisdiction in the State of New Jersey, regardless of the positive statute law here in force, and under which an appointment of guardian had been duly made. A clearer case of the conflict of law and jurisdiction could not be presented, if we assume that the order of the vice chancellor could have any force and operation beyond the limits of the State of New Jersey.

Now, in the first place, the question of the right of guardianship .of the children was not the ground of the application for the writ of habeas corpus; the question, therefore, of the mother’s right to guardianship of the children was not presented, and therefore not involved; and the vice chancellor was not called upon to decide any such question, as against the respondents. He, therefore, deciding as he did, decided in respect to a right that was not involved in the pleadings, and his order was, consequently, simply void, and not entitled to full faith and credit in any other jurisdiction. A judgment or order of one State, to be conclusive upon the parties to the litigation in another State, must be responsive to the matter involved in the issue made by the pleadings in the first case. Any mere extra-judicial opinion or order will not bind. In the habeas corpus case in New Jersey, the respondents were not in court, and were not notified as to the day,";when the order declaring and adjudging the rights of the petitioner was made. The effect of such order made without the presence of the defendants, and without the issue made by the pleading, was fully considered by the Supreme Court, in the case of Reynolds v. Stockton, 140 U. S. 254, 266-270, where it was held, that a decree or judgment so rendered was without legal effect or binding force. See, also, the case of. Monday v. Vail, 34 N. J. Law, 419, in support of the same principle.

Then, in the second place, the application for the writ of habeas corpus was made to the vice chancellor for the exercise of a mere statutory power with which he was invested, and not the general chancery powers vested in the chancellor by the constitution of the State; and the vice chancellor transcended his jurisdiction, by undertaking to exercise general chancery jurisdiction, by appointing the mother permanent guardian of the persons of the children, until they should attain the age of twenty-one years, respectively. This order or decree' of the vice chancellor has been, by the chancellor of the State, since the filing of the opinion of the majority of the court in this case, and before the time for sending down the mandate to the court below, .set aside and vacated, upon the ground that the vice chancellor had exceeded his authority or jurisdiction under the statute, in assuming general chancery powers in making the mother the permanent guardian of the persons of the children. 24 Wash. Law Rep. 381. The very foundation, therefore, upon which the judgment of the majority of this court is based has been taken away and entirely destroyed; and the judgment of this court gives effect to a judgment that has now no existence.

Indeed, it is clear, upon settled principle, that in an application for habeas corpus, like that made to the vice chancellor, the question whether the petitioner should be appointed guardian of the infant is not a proper subject of consideration; nor is it proper that such a question, in a summary way, in a habeas corpus proceeding, should be tried and determined. This has been expressly held in many cases (Matter of Wollstonecraft, 4 John. Ch. 80, 82; People v. Mercein, 8 Paige, 55; Opinion of Judge Betts, In matter of Barry, referred to with approval, and directed to be published by the Justices of the Supreme Court, as an appendix to case In re Burrus, 136 U. S. 586, 594, 597, 615); and nowhere has this principle been more explicitly asserted than by the courts of New Jersey. In the case of Baird v. Baird, 4 C. E. Green, 370, the chief justice of that State, in delivering the opinion of the court, said : “ If the simple purpose was to free from illegal restraint, the proceeding was either in the law courts, or in chancery by the instrumentality of the habeas corpus; and in such proceedings a court of equity had no power to make any order which was not within the competency of a law judge. But, on the other hand* where the object was to fix the status of a minor with regard to permanent custody or guardianship, and to settle for any course of time the rights of contending parties to such custody, then the application was to the chancellor by virtue of his general superintendency over the concerns of infants.” But this principle was wholly disregarded by the vice chancellor, and notwithstanding he was in the exercise of a special and limited authority given him by statute, he proceeded to exercise to the fullest extent the authority that belonged alone to the chancellor. And in doing so, the rights of the legally constituted guardian by virtue of the statute law of the United States for this District, were utterly ignored and refused all recognition. The aunt was and is still the legally appointed guardian by the law of the domicile of the deceased father, and of his children ; and by refusing to give effect to that appointment, made under the statute law of this District, the law and authority of the United States were denied all force and effect by the order of the vice chancellor. And this is the order that this court is appealed to to give it full faith and credit, and to declare that it is binding and conclusive as to all rights professed to be determined by it ; and this has been done by the opinion and judgment of the majority of the court.

But if it were conceded that the order of the vice chancellor was valid and enforceable in the State of New Jersey, does it necessarily follow that the order is within the meaning and contemplation of Art. 4, Sec. 1, of the Constitution cf the United States, and therefore entitled to full faith and credit in this District, and to be enforced here, as it could or might be enforced in the State of New Jersey ? I am clearly of opinion, it is not.

It is not every order or judgment of a court of one State that is entitled to be enforced in every other State or district of the United States. There are many orders and judgments of State courts that, from their peculiar character or local operation, are not entitled to be enforced in an extra-territorial jurisdiction. This may be affirmed of orders passed under State insolvent laws; judgments and orders of probate courts; judgments in States where imprisonment for the debt recovered may be made a part of the judgment, that the defendant be imprisoned until the debt be paid; judgments rendered for penalties; and many other cases that might be enumerated.

In the case of Cole v. Cunningham, 133 U. S. 107, 112, it is said that the constitutional provision, and the act of Congress declaring the effects of judgments, do not prevent an inquiry into the jurisdiction of the court to render the judgment, nor into the right of the State to exercise authority over the parties or the subject matter. It is also declared that the Constitution did not mean to confer any new power on the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. “ It did not make judgments of the States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy, not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws, in their character of foreign judgments.” It is certainly clear, if this order of the vice chancellor of New Jersey stood upon the footing of a foreign judgment strictly, it could have no extra-territorial operation or effect; and I think it clear that neither the Constitution nor the act of Congress gives it any extra-territorial operation or effect in addition to that it would otherwise have, whatever might have been its effect and operation in New Jersey.

In D’Arcy v. Ketchum, 11 How. 165, a statute of the State of New York provided, that, where joint debtors were sued and one was brought into court on process, if judgment should pass for the plaintiff, he should have judgment and execution not only against the party brought into court, but also against the other joint debtor or debtors named in the original process, in the 'same manner as if they had all been taken and brought into court on the process; but that it should not be lawful to issue or execute an execution against the body, or against the sole property of any person not brought into court. The judgments so rendered under the statute, against & joint debtor, though not brought into court, had always been treated and regarded in the State of New York as entirely valid, and that the joint property of the defendants named in the process could be seized in satisfaction of the execution on the judgment. But a suit on one of these judgments was brought in a sister State against a joint debtor not served by process before recovery of the original judgment, and the question was, what effect or faith and credit, was such judgment entitled to have given it in another State than that where it was rendered. The Supreme Court held that such judgment was not entitled to any faith and credit whatever, beyond the limits of the State of New York, under the Constitution. The Supreme Court said r “ No faith and credit, or force and effect, has ever been given to such judgments by any'State of this Union, so far as we know; the State courts have uniformly, and in many instances, held them to be void, and resisted their execution by a second judgment thereon; and in so holding they have altogether disregarded, as inapplicable, the Constitution and laws of the United States. We deem it to be free from controversy that these adjudications are in conformity to the well established rules of international law, regulating governments foreign to each other; and this raises the question, whether our Federal Constitution and the act of Congress founded on it have altered the rule ? ” And the court declared that when they looked to the previous law, and the evil intended to be remedied by the framers of the Constitution and by Congress, they could not bring their minds to doubt, that the act of 1790 did not operate on or give additional force to the judgment under consideration; that they concurred with the various decisions made by the State courts, holding that Congress did not intend to embrace judicial records of the description of that before the court.

I am clearly of opinion, therefore, that the order of the vice chancellor of the 26th of November, 1895, and signed by the chancellor, derived no additional force or operation from the Constitution and laws of the United States; and from the very nature of that order, and the circumstances under which it was made, it could have no extra-territorial operation and effect as a binding judgment to override the laws in force, and to defeat the rights of the testamentary guardian, at the domicile of the minor children.

But in any view of the case, upon the plainest and best settled principles of international or interstate comity, the courts of New Jersey were bound to recognize the right of the testamentary guardian appointed by the father of the children, under and by virtue of the statute law of the United States in force in this District. It was not necessary that the will should have been admitted to probate at the time to, give effect to the appointment (2 Kent Com. 224, 225) ’ though it has since been duly admitted to probate in th.ia District. The appointment was good and effectual without probate of the instrument by which it was made.

In 4 Phillimore International Law, p. 377, the author says: “ Whatever may be the difference in the positive laws of different States with respect to the mode of constituting a guardian, the rule of international comity imperatively demands that a guardian duly constituted according to the laws of the domicile of the ward should be recognized as such by all other countries.” The same principle is laid down by Wharton, in his work on the Conflict of Laws, Secs. 259, 260. See, also, Harding v. Weld, 128 Mass. 591.

That great international principle, however, as we have' seen, was wholly ignored by the court in New Jersey; and I regret to say my brothers of this court, by their opinion and judgment, have given full faith and credit, and full force and effect, to the order of the New Jersey court, as a binding and conclusive judgment, to the entire exclusion and denial of all force and effect of the statute of 12 Car. 2, Ch. 24, Sec. 8, and of the acts of Congress adopting and incorpor ting that statute into the statute law of this District. It was not a question of the mere construction of the statutes in force here, and which governed the mother and her children, but it was the entire displacement and complete disregard of those statutes, as if they did not exist, in order to give full force and effect to the order passed in New Jersey. Indeed, in the causes assigned for the demurrer to the return to the writ of habeas corpus in this case, it is alleged that the will of the father, appointing his sister testamentary guardian to his children, is immaterial and irrelevant in the cause,” “first, because of the proceedings in New Jersey, and, second, because there is not now, and never has been, any law in force in this District which gives to a father the right by his will to deprive the mother of his children of their custody and society.” If this contention be true, (and the opinion of the majority of the court would seem to give effect to it), then a father, no matter how improper or unfit the mother may be to have the custody and care of the children, whether from moral or mental defects of character, could have no power by will to protect his children against the demoralizing and vicious influence of such a mother, or to secure to his children proper tuition and training for life. Without reference to the facts contained in the record in this case, but in view alone of the statute law in force in this District, I cannot for a moment assent to such a proposition as that here asserted.

There is nothing in the record to impeach in the slightest manner the entire fitness and competency of Mrs. Perrine to discharge, in the most faithful and beneficial manner, the duties of guardian to these children. And there is nothing to show that the children are not entirely happy and contented in her care and custody; and under such circumstances, it is my judgment that they ought to be allowed to remain in the custody of their duly appointed guardian— and to whose custody and tuition they stand committed by a still subsisting order of the court of equity of this District.

In conclusion, I may adopt the appropriate language of Senator Paige, used in delivering one of the majority opinions in the celebrated case of Mercein v. The People, 25 Wend. 100, in the Court of Errors of New York—that it is the benefit and welfare of the infant to which the attention of the court ought principally to be directed. And, as a necessary result of this principle, it follows that the custody of infant children must always be regulated by judicial discretion, exercised in reference to their best interest. Where an infant is brought up on habeas, corpus, the court will not decide upon the right of guardianship, and if there is no improper restraint, the court will not deliver over the infant to the custody of another. If the infant is competent to form a judgment and declare his election, the court will, after examination, allow him to go where he pleases, otherwise will exercise its judgment for him ; and this judgment is to be exercised (being in lieu of the judgment of the infant) with reference to the interest and welfare of the infant. The interest of the infant is deemed. paramount to the claim of both parents. This is the predominant question which is to be considered by the court or tribunal before whom the infant is brought. The rights of the parents must in all cases yield to the interest and welfare of the infant. These principles are fully supported by the authorities referred to by the learned judge.

This opinion has been extended much beyond the limits originally intended for it; but appreciating the seeming importance of the subject, I could not well restrain myself in expressing fully, however imperfectly, the views that I entertain in regard to the case. I regret exceedingly the necessity of dissenting from the opinion of my brothers; but, with the convictions that I have in regard to this case, I could not do otherwise than dissent from the opinion of the majority. In my judgment, the order appealed from ought to be affirmed.

A writ of error to the Supreme Court of the United States was allowed; and in that court the writ was, on November 30,1896, dismissed for want of jurisdiction. Perrine v. Slack, 164 U. S. 452.