The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-14

Supssuns Court, Kings Cow. Special Tern.
TH rsANxs CASE coscLuDED-nscIsIoN OF JsDos
DAR0ULo, GIVING rHR CUSTODY OF THE CHILD
JANE, TO HKk FATHER.
Yesterday morning, the Governors room in the City
Han, Brooklyn in which the Supreme Court has been
sttng in special term crowded TO in
qusnss Of N expectation that the final decision Of this
case would b made. At IL O'Clock the Judge sgaded
his readiness render his decision. Charles A. May
Esq appeared for Mr. Brady stating that he (Mr B }
was unavoidably detained in New York. professional
busas and asked that the decision be postponed until
Tomorrow, (ruesdAy) The Justice, however, did no.
deem the presence of counsel absolutely necessary and
after defesrng the case of Deputy Sheriff Crombie ono
day gave his decision rs follows
hs case came before the court the return OF the
spo.dent to writ of habeas corpus sued out by the
lator to obtain the custody of his infant child Upon
its merits when Invested Of the extraneous crcumstan
ces which have given unnatural interest and noto
riety the matter, it is very plain and simple But
been presented and argued by the learned counsel which
il win be proper first 10 consider.
that the power of amending writ Of habeas corpus by
this court be exercised only ata general term Ne
lance Ii had the statute wnicn requires the hPPn
l. Is the Supreme Court, during its sitting; or.
2 During any term vacation OF the Supreme Court,
to the chAsceor any of the justices of the su
preune Court any officers VINO may be authorized TO
form
chambers, being residing within the county wherein
the prisosor Is detained ,
This precise question came before the court under our
former systen, when special terms held for the
Transaction OF certain enumerated business, and
Chief Justice Savage expressly decided th.t the writ could
be issued by the court at special term-Ex Beatty
zwen 29. 1t is hardly necessary to add that under
present system, much greater powers given to
the special term possess not only the general
powers Of the old Supreme Court but sso the entire
of the former Court of Chancery either of which
courts hs without the aid Of any statute at the common
la tr,vts tet haha
H. Again. it is insisted that single Justice, sitting in
Kings county has authority to send the writ into the
position that the writ was issued BY the Justice and
not by the Court which is unounded in fact But IL the
s a.
bers award writ Of habeas corpus that shall run into
any part OF the State This point was before Justice
Harris in The People Samuel Hanna, Howe, Pr.
Rep 49, He then held that the limitation contained in
the words beiDg residing within the county" in the
piled to tho last preceding of officers to
perform the duties of Justice Of the Supreme Court
leaving the Justices Of the Court the
jurisdiction they der the
viouely existing statutes In that writ allowed
by Judge Harris, sitting in Albany to bring up person
detained in Columbia county. So also the People VS..
Woodrsf. Howe Pr Rep 50, Justice Willard allowed
before the county Judge Of washington, to bring up
prisoner the latter county So in the familiar Of
The People MeIcen, Is Paige 49, The Chancellor sit
HlE at Saratoga Springs, brought before him . child
from the city Of New York 1t may be added that these
decisions entire conformity to the general practice
III II is commended that the matter is ddjdicata
the question having recently been heard before
Judge Duer, Of the Supreme Court c.ty OF New YORK
the does not stand upon the same state OF facts for
the restor has given evidence of restraint having been
exercised since the former proceeding Second, that
learned and accomplished Judge doubted his authority
to make order dsposing of the custody Of the child
That doubt probably controlled his decision, and may
have we'll founded applied the Judge of court
of limited jurisdiction, snd clothed with no gen.
eral equity powers. Upon this point l quote
from the mir of uupe Duer VII 81
certainly concur with the learned counsel for the
spondent that not sitting here Judge in equity,
clothed with their large Discretionary powers in relation
to the disposition and custody Of infants which the Lord
Chancellor in England, the representative of the
ereign competent and has long since been accustomed
to exercise Powers Just as extensive, doubt not
vested in late Court of Chancery and by
and now vested in the Supreme Court Of the State
But they do not belong TO either Supreme Court
Commissioner or as q Judge OF the supreme Court |
exercise the discretion which they
fer would be justified in acting at the time,
ana In the same proceeding, in double capacity The
Of Chance,oz ffess 70 the entire a
as SUCH has exclusive right determine ali
in relation to their disposition and custody when
the questions properly aiie in action between hus
bALd ana wife for an absolute or limited dvorcen
1t will thus be that the LEAF ned ige concede TO
this Court the which he did hin self
Possess and which invoked, and necessary to
AFFORD the relief prayed for The argument Of udi-
cad therefore falls to the ground for would be id
to talk of previous adjudication being bar when the
former tribunal had rieh. adjudclte the point in
controversy 1t will also be that in
conflict with the decision of Judge Dusr Tus Court be-
ing clothed with uu legal equitable power, enter
tafns doubt of its authority make final DISPOSE.
ton Of this matter.
Nv We will now proceed to examine the case upon
its merits Charles Trainer the relstor claims that Jane
Trainer infant years Of age is his legitimate child,
and that the respondent without authority deans her
at house of fame No 10l Mercer street in the city Of
New York The respondent admits that the reator Is the
father Of Jane but denies that he lawfully married to
her mother, the latter being a slave and denies
that thechid is under any restraint and that
she voluntarily remains with the respondent The
ponds, although numerous irrelevant matters have
been brought into the case, and quite an un.
These matters relate to the fact that Jane has been
slave belonging TO the respondent that she was made
free BY respondent moving into tho State Of Ohio before
she came to New York and that the relator is and al
ways has been free black 1t is hardly necessary
to remind the parties, and their counsel that upon
question of this Kind the law in this State recognizes
distinction of color race; and that all fathers what
be their standing in society have precisely the
The re asor stands before the Court simply as as man
prosecuting his patefIa rights while the respon
dent appears as woman having ne claims upon the child
by agreement coDsanguinity but only through her a
fectous. 1t wholly unnecessary, therefore, inquire
into the complexion Of the the reputation Of the
other If she the most exalted lady in the land,
and he the most humble of its inhabitants their rights
in the of the law and their consideration 10 the view
tDacy OF the child have been what emb sed,
because there direct evidence of the fact except the
Testimony of the reator himself For although such tes
timony has been usually admitted am not quite sure
that It stands upon any sod foundation. In the view
however which take of the caee the legitimacy of the
child is not fact of vital importance The relator
swears that he married in Mobile by black Neho-
dist preacher his wife being slave, and both members
Of the denomination Upon this it is claimed by
respondents counsel that the marriage is void by
Of statute Of the State of Alabama forbiddpg slaves to
marry Whether it be true, as the argument tends TO
show that all the slaves in that State ilegitimate
IT not necessary more particularly to inquire 1t is
sufficient for that the marriage being BY words de
pressnh, and followed by cohabitaton is good
marriage At common Law. Assumir 8, then, that the
child is legitimate, how stands the question be-
tween the father and the respondent to its
todyS To this question but one answer can
be given. That the father has title superior to any
stranger not less doctrine Of the authorities than It
is principle Of human nature The fathers rights
paramount to the mothers until he forfeits his
claims by misconduct ilusage. people Ncker
son 10 Wen. 49, BE is bound TO support and msntsin
it. He is therefore, the natural guardian, and entitled
to ts custody care and education He has the natural
right to bring up his faith, and give such in
structons and discipline as he deem best for its
sent and future welfare In the language Of Judge
Bronson, in Merceins The People, rs Wen ~, THE
law regards him the head Of the family obges him
for ita md TIA