THE PEOPLE, ex
rel. BARRY, v. MERCEIN.
3 Hill 399 (N.Y. 1842)
Cowen, J. This is a proceeding by writ of habeas
corpus instituted by Mr. Barry for the purpose of enforcing his rights as
the father of his infant child, detained by his wife, with the sanction of her
father, in the house of the latter.
The relator's
claim, in different aspects, has been examined
[*406] and decided on several
previous writs before different commissioners; the proceedings on one of which
resulted in a writ of certiorari to this court, followed by a writ of
error. Costs were awarded against the relator; and a preliminary objection is,
therefore, taken, that he is not entitled to be again heard till those costs
are paid. The objection is founded on a supposed analogy to the ordinary cases
of repeated and unsuccessful actions for the same cause, where it is generally
allowed as a discouragement to vexatious litigation. (See,
Another objection
is, that Mr. Mercein should not have been made a party; the child not being
detained by him. The detention is by his daughter, at his house, with his
countenance and consent. If that be wrong on her part, it is equally so on his;
for in respect to a civil injury, the law regards everyone who participates in
and promotes it, as a principal wrong doer, and severally responsible to the
party whose rights have been invaded. It is impossible to avoid seeing that, if
Mr. Barry is entitled to the custody of his child, Mr. Mercein [**12] is, in fact, the principal offender. Had his
hand been withdrawn, it is morally certain that the relator would have been put
to encounter no [*407] serious difficulty in re-claiming the custody
of his child without a lawsuit. b
b See as to a return
of non-detention simply, in such cases, Ex parte M'Clellan, 1 Dowl. Pr.
Cas., 81; King v. Winton, 5 T. R., 89; Matter of Stacy, 10 Johns. 328.
The objection that
the application for this writ was irregular, as not being in the form of a
petition signed by the party sought to be relieved or by some person in behalf
of the party, in the words of the statute, 2 R. S., 466, 2d ed., sec. 25,
supposes that the prisoner or person detained must be privy to the proceeding.
This would be impossible in cases where very young children are detained; and
so, perhaps, in many others. If authority from the person detained be
ordinarily necessary, which we do not admit, clearly there is nothing in the
statute taking away the common law right of a parent to bring [**13] the writ, when his child is improperly
detained. See, In re Pearson, 4 J. B.
The defendant
claims that Mrs. Barry was lawfully at his house; and that, in her right, he is
properly accessory to the detention of the child. This brings us to a
consideration of the legal rights and powers of the relator and his wife in
respect to their offspring. These rights and powers, like nearly all others
when the claims of husband and wife come in conflict, depend upon a rule too
elementary to require the adduction of authority; and too obvious to have been
denied in the whole course of this particular controversy, from the hearing
before the Chancellor in the summer of 1839, 8 Paige, 47, through the
several hearings before commissioners, in this court, and the Court for the
Correction of Errors. The principle is thus stated in 1 Bl. Com., 468:
"The very being or legal existence of the woman is suspended during the
marriage, or, at least, is incorporated and consolidated into that of the
husband." Their relative
[*408] power over the person of
the child follows as a consequence,
[**14] and is stated in the same
book, pp. 478, 479, to the following effect: the legal power of the father over
his child is sufficient to keep the latter in order and obedience. The father
is entitled to the benefit of his child's labor while it lives with and is
maintained by him; while the mother, as such, is entitled to no power over it,
but only to reverence and respect. The father's legal power ceases at the age
of twenty-one. The extent of the rule is shown by the exceptions which the book
mentions at page 471. They are such as to shield the wife from corporal abuse,
though "the courts of law will still permit the husband to restrain the
wife of her-liberty in case of any gross misbehavior."
One consequence
necessarily resulting from the legal identity of husband and wife answers Mrs.
Barry's claim to the custody of the child; which, as counsel have insisted,
arises out of the relator's written agreement that she should retain it. That,
upon a proper construction of its words, she could derive any such right as is
now claimed for her, I do not admit. But, for the purposes of the argument,
suppose it an agreement for permanent separation--a complete relinquishment by
the relator of [**15] all claim
whatever, and a transfer of his right to Mrs. Barry. A single passage from the
law shows its futility. "A man cannot grant anything to his wife, or enter
into covenant with her; for the grant would be to suppose her separate
existence; and to covenant with her would be only to covenant with
himself." 1 Bl. Com., 468. As an agreement, therefore, the writing was
void. As a delegation of power, it was revocable in its own nature, and in this
instance has been actually revoked. Whatever latitude may have occasionally
been allowed for the framing of bargains between husband and wife through
trustees, I must be allowed to deny that it stands on any principle which can
with propriety be applied to the case in question. I am aware that a separate
maintenance may be settled by the husband on the wife, and that, incidentally,
they may covenant for the separation of their persons; [*409]
that this may, if you please, be done under such pretexts as the parties
shall choose to allege, whether in consonance or not with the law of divorce;
and that courts both of law and equity have sanctioned such arrangements, by
carrying them into effect. The practice probably started on the principle
[**16] I have mentioned, of protection
against corporal abuse, without its being sought with sufficient care to
distinguish the fact from the mere declaration of the parties. The courts do
not seem to have foreseen that, in doing so much, they empowered the parties to
be their own judges in a matter which may, in the end, vitally effect the
interests of society. The practice is in itself by no means entitled to favor;
and the courts are beginning to regret that they ever allowed it to any extent.
It is at best letting into our system the doctrine of conventional divorce in
its worst form. The advocates of that doctrine carry out their system to its
proportional consequences. They would leave the parties at liberty to marry
again; thus fulfilling the supposed law of nature with comparative decency. Our
law still proclaims the obligations of the marriage contract, while it aids the
parties in measures to evade that obligation, and thus to defraud both the law
and one another. The whole is, indeed, matter of agreement between persons who
are immediately interested; and the consequences, if confined to them, might be
regarded as of little moment. The discouragement to enterprise in
business, [**17] the wreck of private fortune and loss of
character, might be placed to the account of retribution for such wickedness or
weakness as cannot endure the trouble of becoming respectable. But the evil
does not stop there. An innocent family and a wide circle of connections are,
perhaps, brought to share in the misfortune and disgrace, with more or less
intensity, as they may be more nearly or remotely related. The sentiments of
filial reverence are subverted, and the conjugal relation itself distrusted and
traduced. Husbands and wives with feelings and appetites already too violent for
the restraints of duty or of shame, are thrown into the highway of temptation.
It is said that the husband's common law right to [*410]
correct the wife began to be doubted in the politer reign of Charles II.
1 Bl. Com., 471. It has since ceased to exist. In asserting the principle on
which the barbarous practice of correction was abolished, the courts should
beware of the opposite extreme that characterized the same reign. Much as we
may congratulate ourselves on the abolition of unreasonable severity, such an
achievement would but poorly compensate for the general corruption of domestic
morals. [**18]
I make these
remarks because they come into the argument that the doctrine of separate
maintenance cannot be made to bear on the agreement in question; which, as it
seems to me, is neither within the original principle of the rule, nor the
sphere of its most extended practice. If the husband has a right to transfer
the marriage bed to his wife, I deny that he has, therefore, the right still
further to violate his duty by selling his children, with or without it. These
he holds under the duty of a personal trust, inalienable even to another who is
sui juris; a fortiori to his wife, with whom he can make no contract
whatever.
We do not perceive
with counsel, that in Mercein v. People, 25 Wend. 64, the Court
of Errors differed from us upon this question. We understand that court, on the
contrary, to have reversed our former decision upon the sole ground that the
question before us, being res judicata, we had no right to take notice
of the truth. To avoid misapprehension, that court told us so by an express
resolution.
I have, therefore,
felt entirely warranted in withholding from the agreement that effect which two
of the members of the Court of Errors [**19] seemed, in the course of their arguments, to
have thought might possibly be due to it. The doctrine of the cases cited by Senator
Paige, I have already conceded in all their force. Rex v. Lister, 1 Str., 478; Rex
v. Mead, 1 Burr., 542. They were both cases of separate maintenance, on
which it was held that the husband had lost his power over the person of his
wife. Children were not in question. I
[*411] have endeavored to show
that such cases form an exception in the law of husband and wife; and have suggested
some reasons why I think the principle should not be extended in its operation.
I know the learning of that Senator, and have great deference for his opinion;
but I have in this instance felt less diffidence in my dissent, because I find
the learned Chancellor had before pronounced the agreement in question
void. People v. Mercein, 8
Paige, 67, 68. Admitting that an agreement for present separation is valid as
between the parties (and I have supposed it to be a kind of divorce which the
courts cannot very well gainsay at this day), I am yet unable to see that, as a
consequence, the husband may contract [**20]
away the custody of his children. It need not be denied that a father
may, even at common law, bind out his child to an apprenticeship, as this court
seem to have thought in Matter of M'Dowle, 8 Johns. 328. Here again is a
narrow exception, the principle of which should never be extended to any other
case. The exception itself was so very doubtful that a statute was deemed
necessary for conferring a right on the parent even to this extent. Those
countries in which the father has a general power to dispose of his children,
have always been considered barbarous. Our own law never has allowed the
exercise of such power except for some specific and temporary purpose, such as
apprenticeship during the father's life, or guardianship after his death. But
was it ever heard that during his lifetime, he could bind out his child to his
own wife, even as an apprentice? The case of the M'Dowles was of persons
competent to contract. The disability of husband and wife was not in question.
In the language of Ld. Kenyon, applied by Chancellor Walworth to the
agreement in question, 8 Paige, 67, I ask: "How can it be in the power of
any persons by their private agreement [**21]
to alter the character and condition which by law results from the state
of marriage while it subsists?"
The rights of the
relator being clearly unimpaired by the alleged bargain between him and his
wife, the case is, on its merits, brought down to the single point on which it
was considered [*412] before the Chancellor, 8 Paige, 47,
viz.: whether, assuming that the wife resolves to continue in her state of
separation, a due regard to the welfare of the child will warrant an order for
its delivery to the relator; or whether we shall allow her and her father
longer to oppose the supposed necessities of nature to the demands of law. I
say, demands of law, because the defendant's case was presented to the Chancellor
in its strongest possible aspect; and no doubt was entertained by him of the
relator's right in legal strictness. This was in the summer of 1839, and could
not have been long after the child was weaned. The Chancellor then said,
if delivered to its father, he had no apprehension it would be treated with
unkindness; adding: "I have no doubt that his elder daughters, to whose
good characters and amiable dispositions Mrs. Barry herself bears full
[**22] and ample testimony, would
endeavor faithfully to discharge the duties of a mother to their infant sister,
as far as they were able to do so, as they have already done to the
brother." After considerable hesitation, he refused an order in favor of
the relator, on the sole ground of the child's then tender age. The case was
again investigated before Judge Inglis, before this court, the Court of
Errors and finally, on a habeas corpus issued in October, 1840,
returnable before Mr. J. Oakley. It is now three years since it was
examined by the Chancellor, and more than a year and a half since the
suit was commenced before Mr. J. Oakley. The case has at no stage
appeared to be any stronger against the relator than it was when before the Chancellor;
and the inquiry seems to come with scarcely a plausible answer: why should his
child be longer withheld? It is at present nearly five years old. The father's
claim, if not stronger, is at least more apparent, for it is by no means
unimportant that he has a right to train up this child as he has his other
daughters, with dispositions to serve him affectionately in the business of his
household, should its health become sufficiently [**23] stable. This may, indeed, be essential to the
child's welfare; and, I am strongly inclined to believe, will be better
attended to by the relator, than by the
[*413] wife. It is equally his
right and his duty to see that the child shall also be properly educated in
other respects. The general allegation that a daughter may be well in the hands
of a mother who chooses to leave her husband, would, if allowed, work an entire
subversion of his right. When we are told, in Mr. Mercein's return, that this
child is still in such delicate health as to require a mother's care, the first
answer which strikes the mind is the generality and unsatisfactory nature of
the allegation--an allegation by which, if allowed, the relator may still be
baffled till his child is twenty-one. Let it be taken, however, that evidence
of a propensity on his part willfully to withdraw his child beyond the reach of
maternal care, should form a ground for our refusing to interfere in his favor:
the attempt to make out such a case on the circumstances before us is a very
extraordinary one. We have seen this man for years soliciting the woman to go
with the child, and aid him in its nurture. Bating some matrimonial [**24] bickering, the state of his affections was
not at all impeached before the Chancellor; and there is now nothing
left to impugn the sincerity of his attachment both to the mother and child. He
has manifested an anxiety which nothing could repress, that they should both
come to the home he has prepared and the table he has spread for them; or, if
his wife's better feelings should revive and she were to follow after him and
his child, he would no doubt joyfully receive her at any time, and strive to
forget that she had ever left him. The argument has been urged as if there
were, in the abstract, such an unfitness in a woman returning to the bed and
board of her husband as cannot be endured consistently with a proper sense of
duty. I have listened in vain for a single lisp, even in argument, that there
would be more danger in this woman returning to the relator, than in the return
of any wife to any husband in Christendom. From all we can collect, I am
inclined to think she would stand in as little danger from his temper as from
his morals. That the former has been well balanced and regulated in his
intercourse with society at large, it is not necessary either to affirm or [*414]
[**25] deny. Its general amenity
in his family was expressly conceded by Chancellor Walworth, after a
severe scrutiny. Before us there has been no attempt to impeach it. The Chancellor
was also of opinion that, as between him and his wife, nothing had occurred
which was legally sufficient to authorize a decree of separation; and the
promise of the relator during courtship, that she should continue near her
parents, is not now interposed as a reason for her voluntary separation. To
everything else that was attempted in proof before the Chancellor, we
may well apply the remarks of Sir William Scott, in Evans v. Evans,
1 Hagg. Consist., 35. "Mere turbulence of temper, petulance of manners,
infirmity of mind, are not to be numbered among the causes" of voluntary
separation. No corporal violence, or menace of corporal violence, has, at any
stage of the controversy, that I can see, been pretended; and looking at some
disclosures in the course of it--the pecuniary embarrassment of the relator,
the cause of that embarrassment, the manner in which it was met by the wife,
and the irritating disputes which ensued concerning the rights and duties of
the parties--it is rather a matter [**26]
of surprise that we have not witnessed much greater displays of ill
temper on his side than have as yet been charged. His affections have been unwarrantably
trifled with; and it is by no means the least evidence in his favor, that
during the course of a tedious litigation, he has been the more unwavering in
his suit, from entertaining the hope that success would be tributary to a
restoration of his conjugal rights. That he was habitually unfeeling, or even
rude in language towards his wife during the time when they cohabited together,
is now scarcely pretended. The utmost that can be imputed are occasional
ebullitions of anger and vexation, arising from momentary excitement operating
upon a temper naturally hasty, but by no means unrelenting. The children of his
first marriage, it is still conceded, are intelligent and amiable, and have
uniformly demeaned themselves towards Mrs. Barry with great attention and
respect.
I entertain no
fears, therefore, on what has seemed to me
[*415] the whole stress of the
argument upon the merits against the relator; the alternative between Mrs.
Barry's returning to her husband, and abandoning the care of her child. I see
nothing to furnish either [**27] a legal
or moral excuse on her part for hesitating upon such an alternative.
Clearly, however,
it should be enough for this part of the argument that the conduct of the
relator has been such as to leave her without excuse. If she still continue in
a state of separation, the consideration of a few facts will be sufficient to
remove all objection against the child being restored to the husband; indeed,
dispel all fear of its welfare in his hands. That he now commands a comfortable
home with adequate means for supporting the child, is no longer denied. He is
at the head of an interesting family, mostly I believe daughters, who have been
bred under his care in the best manner; some of them from childhood to age.
That he is qualified, and eminently so, for the moral and mental instruction of
this child is clear. That in his family the child can and will derive from his
daughters and other means, care and attention fully proportioned to its
physical wants, we have reason to be confident. Besides, the next oldest child
of the marriage with Mrs. Barry has, with her consent and that of her
relatives, been left in the exclusive charge of the relator, from an age, I
believe, still younger than [**28] that
of the child whose custody she claims to withhold. The condition of the older
child has been open to inquiry; and yet we hear not a pretense that its custody
could have been more properly bestowed. In short, we know that the relator
ranks well as a man of intellect and education. We have evidence that, though
not affluent, he is yet a man of business and enterprise; in the prime of life
and health, of sound morals and estimable character, with a comfortable,
indeed, desirable home, and every means and disposition to take proper care of
the child whose custody he sues for.
So far, and while
on the merits, none of the members of this court have ever felt any serious
difficulty. The question of res judicata--for the first time pronounced
applicable by the Court [*416] of Errors to an order made against a parent
suing for the custody of his child--is certainly one which admits of more
dispute. The claim on the side of the defense is, that by the order of the Chancellor,
or by that and the orders made afterwards; for they are all spread before us in
the defendant's return; the relator is estopped to assert his rights, whatever
they may be. Under the decision of the Court [**29] of Errors, this would doubtless be so, were
the case exactly commensurate with what it was at the time when either of the
previous orders were made. The only question is whether an estoppel, for
instance, in virtue of the last order made upon the habeas corpus of
1840, should be expanded and elongated so as to cut off the relator's right
through all future time. I can hardly think the Court of Errors intended to
give it such an effect; and in the absence of authority defining its extent, we
are put to consider the question a priori. It appears to me there are
several cases in the law precisely analogous in principle; and by which we
ought to be governed in considering the present. A man sues for a demand not
yet due, and sues repeatedly, but has a verdict and judgment against him upon
the ground, not that he has no claim, but that it is inchoate. He waits till it
becomes due, and sues again; no one would pretend that his successive defeats,
or any of them, should bar his last action.
Bk. v. Lewis, 8 Pick. 113; Catron, J., in Estill
v. Taul, 10
The short answer,
then, to the alleged estoppel is, that though it be admissible in a case
precisely the same with that adjudged, it has no application to one which is in
its own nature ambulatory, and which has ceased to be the same by progression.
The rule is, Nemo debet bis vexari pro eadem causa. But before we give
it application, we ought to be well assured that the cause is the same. If it
be, the claim should be holden extinguished, or suspended, according to its
nature. Where the entire right has been once litigated and passed upon, it
should not be stirred again. To allow a second trial, would be against public
policy and, therefore, unjust; but it would be monstrously unjust to cut off
substantial rights which have not and never could have been tried, for the
reason that they either did [**37] not
exist, or were disallowed at the moment for some fleeting cause which has
ceased to exist; nay, though it have ceased to exist in the same form or degree
which influenced the mind of the judge on the first trial.
On the right of the
matter now before us, there never has been even an issue. That the relator is
the husband and father, was never denied. The only issue was, on the expediency
of leaving the child for nurture with a mother who had withdrawn from her
husband and bade him defiance. Whether the same morbid excuse for desertion may
continue, it is not necessary to inquire; but only whether the wrong should,
under new circumstances, be allowed longer to suspend the assertion of right.
The claim of the husband has throughout been allowed to be paramount by
everybody except the wife. It has not been denied that he is the legal head of
the whole family, wife and children inclusive; and I have heard it urged from
no quarter that he should be brought under subjection to a household democracy.
All will agree, I apprehend, that such a measure would extend the right of
suffrage quite too far. Yet I do not see how this defense can be sustained
unless we are prepared [*421] [**38]
to go that length. Marriage is, indeed, regarded by our law as a mere
civil contract; but not such an one as is capable of repudiation by a majority
of the family, or even the assent of the whole. Bating some slight
amelioration, its obligations should be maintained in all their ancient rigor.
There is scarcely a doubt that matrimony, in the severe form of monogamy, with
the prerogatives of the husband as they are announced by the common law, are no
less according to the order of nature and providence, than of positive
institution.
Where the child is
of such tender years as to be incapable of election, it should be delivered to
the father on his attending to receive it. That is this case.
CONCURBY: BRONSON
CONCUR:
Bronson, J. After these
parties were before us on a former occasion, a writ of habeas corpus,
returnable before Mr. J. Oakley, was issued in October, 1840, and
the final decision of the judge against the relator was made on the first day
of March following. As that order has not been reversed, the relator is
estopped from asserting that he was entitled to the custody of the child at the
time the writ issued, and it may be that the estoppel extends down to the
[**39] time of the final decision of the
judge. Mercein v. People,
25 Wend. 64. But that case decides nothing in relation to the rights of the
parties at the present time.
On the former
occasion, the case was before us by way of review. It is now presented as an
original proceeding, disembarrassed of all collateral questions, and the only
inquiry is, which of these parties has at this time the best title to the
custody of the child.
Although we have a
volume of papers, the merits of the case lie within a narrow compass. The
relator is the father of the child, which is now about four years and a half
old. Mrs. Barry, who had before deserted her husband, persists in the purpose
of continuing the separation and claims the right to detain the child from the
custody of its father. In this she is seconded and maintained by the defendant,
with whom she [*422] lives, and to whom the writ was directed.
There has been no impeachment of the moral character of the relator, nor is
there anything to show a want of capacity on his part for the proper care and
training of the child. He is in all respects as well qualified as the mother
for the proper discharge of parental duties [**40] and, so far as relates to a just sense of the
obligation of marriage vows, he stands most decidedly on the vantage ground.
The question, then, is, which of these parties, the father or the mother, has
the best title to the custody of the child? The opinion of this court has been
repeatedly expressed, that by the law of the land the claims of the father are
superior to those of the mother. The subject was considered and some of the
cases were noticed in the opinion delivered by me as the organ of the court in
a former stage of this controversy. 25
Wend. 72, 83. It cannot be necessary to go a second time over the same ground.
It is sufficient to say that my opinion remains unchanged.
We have been
referred to a late English statute touching this question. But the British Parliament
has long since ceased to give laws to this country, and our Legislature has not
yet spoken. This statute proves, however, that in
It is possible that
our laws relating to the rights and duties of husband and wife, have not kept
pace with the progress of civilization. It may be best that the wife should be
declared [*423] head of the family, and that she should be at
liberty to desert her husband at pleasure and take the children of the marriage
with her. But I will not inquire what the law ought to be. That prerogative
belongs to others. I will however venture the remark, even at the hazard of
being thought out of fashion, that human laws cannot be very far out of the way
when they are in accordance with the law of God.
I think an order
should be made that the child be delivered to the relator.
DISSENTBY: NELSON
DISSENT:
Nelson, Ch. J., dissenting.
The present writ of habeas corpus [**42]
is the fifth that has been issued by different courts and officers in
this State, at the instance of the relator, for the purpose of testing the
question whether he is entitled to the custody of his infant daughter, Mary
Mercein Barry. The third writ resulted in an adjudication by Judge
Inglis that the order of the Chancellor upon the habeas corpus
granted by him, was a valid and conclusive bar to the rehearing of all matters then
or previously existing, and which might have been litigated in that proceeding.
Judge Inglis' decision was finally reviewed in the Court for the
Correction of Errors, where it was affirmed; and this has narrowed very much
the range of investigation in respect to the present case.
The fourth writ was
issued by this court during the General Term in October, 1840, and was made
returnable before Judge Oakley, of the Superior Court of the City of
So far as respects
the unhappy differences that have sprung up between the relator and his wife,
and which have existed for the last three or four years without abatement or
approach to reconciliation, no change can be said to have taken place since Judge
Oakley's decision, except perhaps an increased manifestation of alienated
feelings and sentiments. I speak now simply of the fact; not intending to
express an opinion upon the merits of the controversy one way or the other.
These differences have been spread with painful circumstantiality (I do not say
unnecessarily) before each of the four tribunals which have heretofore taken
cognizance of the case; and they have failed to command a determination in
favor of the relator. Nor have the personal character or circumstances in life
of [**44] either of these parents
materially changed since the hearing before Judge Oakley. The mother is,
for aught I see, as competent and well qualified now, to have the care and
nurture of the child, as she was then; and the relator is in no better
condition. The case, moreover, does not disclose any present or prospective
advantages likely to accrue to the child from the proposed change of custody,
beyond those heretofore exhibited and urged on the side of the relator. The
only new features ascribed to the case as now presented, or which can with any
sort of plausibility be deemed to have varied its legal aspect, are those
mainly relied on in argument by the learned counsel for the relator, viz.: the
advanced age of the child, and its alleged improvement in point of health and
constitution. The condition of the child in these respects has always entered
more or less into the consideration of the several tribunals before whom the
case has undergone investigation; and, doubtless, in the exercise of a sound
judicial discretion in controversies relating to the custody of infants, such
circumstances ought to have their due share of influence. As to the child's
health, however, it appears [**45] from
the return, and the fact is not particularly denied or questioned by the
relator, [*425] that no material alteration has taken place;
especially none more favorable or encouraging. It is stated by the mother, that
the same reasons for her continued care and nurture of the child still exist in
as great force as at the former hearing; and that it has suffered from six
several attacks of dangerous illness since that period. The whole question,
therefore, as it seems to me, turns upon the effect due to the circumstances
that a year and six months has been added to the former age of the child.
When the parties
were before this court on certiorari, we entertained a different opinion
from that pronounced by Judge Inglis and the other officers who have
severally passed upon this case. 25
Wend. 72, 83. Our opinion, we then believed, was in accordance with the well
considered and well settled principles of the common law as understood and
acted upon in this State for a series of years. We supposed that, in yielding
assent to these principles, we were acting with a just and becoming regard to
the relation of husband and wife; and not only so, but in subserviency, [**46]
also, to the permanent interests of society. Much of the elevated tone
of public and private morality which exists in a community, and much of its
refinement, prosperity and happiness, must ever depend upon the sacredness with
which the marriage vow is regarded, and the inviolability of the rights and
duties resulting from it. I do not believe that the general doctrine on this
subject was intended to be impugned, much less overruled, in the opinions
delivered in the Court for the Correction of Errors. On the contrary, the
determination of that court should, I think, be regarded as maintaining only
that the facts and circumstances then disclosed were not such as to call for
judicial interposition in the relator's behalf; and that the case, therefore,
fell within some of the exceptions to the general rule. They differed from us
in the application of the law.
Be this as it may,
however, it is quite certain that the facts and circumstances which appeared
before Judge Oakley, and which were by him held insufficient to entitle the
relator to the custody of his child, should be so regarded by us also; [*426]
that decision, while unreversed, being conclusive upon the parties and
[**47] subject-matter. I am of opinion
that the case has not been materially varied on the present occasion. The
circumstance of a year and a half having been added to the age of the child
since the former hearing, seems to me too unimportant to afford ground for
changing the legal judgment of a court. It appears affirmatively, moreover,
that the personal care and nurture of the mother were as necessary to the well
being of the child at the period of the former hearing, as they are now. The
subject-matter, therefore, remains essentially the same; and if so, the same
result should follow. My brethren, however, have arrived at a different
conclusion, and an order must, therefore, be entered that the child be
delivered to the relator.
Ordered
accordingly.