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 [150] 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.
[151] 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 [152] 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 [153] 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 [154] 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, [155] 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.
[156]*1564. 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 [157] 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 [158] 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 [159] 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 [160] 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 [161] 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.