Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1839-07-09

Gus document, to- morrow.
Sir-In this free country, as well as in that Of
which am subject, believe II is admitted 10 be
an axiom that public men, and their measures are
public property; and that, such, the former NAV
be spoken OF, and the latter discussed and re wed
without reserve save that of the imputstion of inn
proper motive. Ii in this be correct, as appre-
hend am, surely l. being the party most deeply in
terested in the late decision of His Honor the Recor-
der, in the case Barry Us. Mercen,' may well be
allowed privilege which is open to the exercise of
any and every citizen, that Of commenting thereon
As to the iaD Of Ike matter elected from the cases
quoted by His Honor, deem il of little importance
to discuss tor to say much in reference to his as
sumption of the discretionary power which he has
thought proper to exercise. On these points it
is sufficient for to know, and to say, il be cor
recty informed, as believe am, that there is an
almost unanimous opinion throughout the legal pro-
tession IN this city, that his decision not war
ranted by the iormer and, that In the latter he
scended his powers judge sitting the bench Of
Court Oh Common Law. 1T IS rather, the propriety
/ or improprety-the righteousness inudiciousness
Of his decision, in awarding my child to the custody
Of its mother, while living separate from me in
violation OF the marriage contract, anc of the duties
which she 10 society,", and this without suffi-
cent cause, (admittng that he did possess the
discretion claimed by him. with which have to do,
and on which shall take the liberty to remark par
ticuary keeping in view his Honor's assertion that
his determination would not have been altered by
the establishment of different state of facts by Wit
nesses."
With this acknow gment before me- il is yerv
evident could have had, under any circumstances,
but little to hope for from the tribunal of his Honor
He states that the mother is the natural nurse and
protectress of the child but admits that am its
legal guardian and protector But did his Honor
mean TO assert that also not much the natu-
raj proyider for, and protector of my child its
mother! Would he say, that the law of nature as
well as the law OF the land, does recognize in
and fasten upon me, the father obligations even
paramount TO those of the mother, to maintain and
provide for my offspring! This was admitted, by
even the petite and learned counsel of Mrs Barry,
as the source whence was derived the abstract par
amount, legal right Of the father guardian and
protector OF his children. His Honor, however,
would not risk such assertion as the above in
broad language; but yet he would 10 have so
decided, from his having overlooked my claims,
both natural and legal and awarded my child to the
care Of the mother, who, 10 say the most by their
statements, had tut class of these claims in
common with ne. lfin this his Honor have not yirtu-
ally merged his official character of Admin strator
Of Justice according 10 law,'' lin the known and
usual accepation Of these terms) into that Of Ex-
dounder of the law of Nature and enforcer of onlv
half Of its enactments,' / am at a loss dis
tnctly q comprehend the nature and character Of
his judgment seat. Having, however, decided that
by law he had the power TO select, in its mother or
myself, protector for nv child (but which dscis-
Y ion, am informed, Is considered by some compc-
tent Judges. 10 have been gratuious and unauikor-
led his Honor says, that, " in making that selec-
ton, he was TO be governed only by what his jndg
ment informed him would be best for the infant
Let a nowsee in what manner that judgment was
made mp
day Of the irialaDd had the appearance If scily.
\ feeble child. Here | would digress a moment ia
ask the question, " Is Il any wonder!'' In AUGUST
\ last, when had been absent considerable time,
Mrs. Barry wrote me, saying Of the health Of nv
children : Neither have had a sick dav since Won
left" Now, however, 70 prove the great deiicacy
~ my chds health, IL is testified BY DR.. Reese 10
be necessary inat IL should be fed arrow root
and milk, prepared in peculiar way.'CiD This
idea, however. i exploded BY other medical men, of
equal y not superior attainments, to whom. a. the
child's father, have submitted the question ~ tit
II of he LIST ~ nr
Recess celebrated humbugs."
When, on enquiry BY the mother what had been
the chd's food while IN my possession. the article
Of bread was named among others her exclamation
was " My child must indeed have been badly off
j If il could eat piece Of bread - No wonder then,
admit, that il had TO His Honor the appearance ofa
sickly, feeble child" Bat to proceed His Honor
says, the facts in this case presented by the pe
ttion and return satisfy me that IN the absence or
death OF either q her parents, the remaining one
would be fully competent and would probably 2is-
charge the duty Of parent toward the child" VERY
much thank His Honor for this admission ina Smuch
as in Il we have the proof that tae atcsted false
hoods the other side had failed To impress him
with a belief oi my incompetency, wheih-r arising
frcm "habis of confirmed drunk enne or any other
cause Yet nc adds, under the circumstan Of
this case, exercising nv Judgment for the benefit of
the child | cannot hut believe during her tender
years and what period Of time is meant by This ex-
preston His Honor does not explain, that the natt-
raj care and watchiulness Of the mother is likely 10
be Of greater benefit "a the infant than the legal pro-
lection and guardianship Of the father and snail
therefore make order accordingly" Now let Us
| carefully examine what the . circumstances of
this case = L. not OF them most material and
important, viz-ihat Mrs. Barry H. living in situa-
tion lar.from being sanctioned that il j. cordemed
by the law as "a vicious condtion'-apar from her
husband and the proper discharge of her duties 10
him and his family and this contrary his most anx
ious wishes and IN the face Of his oft repeated and
reiterated-nay, almost Immune cradle efforts fortified
BY most solemn and sacred appeals 10 every feeling
which might be supposed cxcitabe in the MIND Of any
woman, wife, or mother, whose heart was not a. inn
peryions TO any tender emotion as adamant itself T.
l. il not also another Circumstance somewhat impor-
tant, that Mrs Barry shoald have made a statement
Of alleged facts and that too most indelcattly by
which she had hoped but had most signallv failed 10
PROSTATE the Characteristic reputaion-a the pros
poets in life Of whom J OF her husband-;he father
ofhcr chidren-and must Of course m his establish
ed iniamy, had she succeeded have involved the en-
tire interests Of his family and of her own innocent
offspring who ought 10 be dear to hersefa AS well
as TO him Are these some of the circumstances Of
this case" which induced His Honor 20 believe the
mother to be the more III custos Of the child than the
father whom she had thus attempted TO destroy but
in doing which she had succeeded only in overwhelm-
ing herself and family, in the opinion Of almost
ry delicate mind whether male female, with dis
grace thousand fold than she bad hoped to in
fict on him On him--be IL remembered, without
his having had the opportunity Of producing the
slightest particle Of testimony in his own favor
whom His Honor declared 10 be "fully competent to