moval of criminal proceedings from the State courts to the Circuit Courts of the United States." The Supreme Court, the Circuit Courts, and the District Courts of the United States have power to issue the writ of habeas corpus. Except in cases affecting ambassadors, other public ministers, or consuls, the Supreme Court can only issue the writ of habeas corpus for a review of the judicial decision of some inferior officer or court. Consequently, the Supreme Court cannot issue the writ to inquire into the legality of an arrest by a municipal police officer under a warrant issued by a State or municipal police judge. 8 A Any justice or judge of any of those courts has power to issue a writ of habeas corpus for the purpose of an inquiry into the cause of a restraint of liberty within his jurisdiction. justice of the Supreme Court may grant the writ and hear argument on the return in any part of the United States.10 No Federal court or judge has power to discharge by a writ of habeas corpus a prisoner in jail, unless such prisoner is in custody under or by color of the authority of the United States; or is committed for trial before some court of the United States; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or a law or treaty of the United States; or, being a revenue officer of the United States, is in custody on account of any act done or omitted under color of his office or under color of any revenue law; or, being a subject or citizen of a foreign State and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order or sanction of any foreign State or under color thereof, the validity and effect of which depend upon the law 75, 97; In re Leo Hem Bow, 47 Fed. R. 302; Ex parte Peck, 3 Blatchf. 123; U. S. v. Tilden, 10 Ben. 566; supra, § 286. 5 U. S. R. S., § 642, 643; Virginia v. Paul, 148 U. S. 107; infra, §§ 388, 389. In certain cases the clerk, and even, it has been held, his deputy, can issue such a writ without an order of the court. State v. Sulli- 6 U. S. R. S., § 751. 7 Ex parte Hung Hang, 108 U. S. 552; Ex parte Barry, 2 How. 65. 8 Ex parte Hung Hang, 108 U. S. 552. 9 U. S. R. S., § 752. 19 Ex parte Clarke, 100 U. S. 399, 401. of nations; or unless the writ is necessary to bring the prisoner into court to testify." The writ of habeas corpus ad subjiciendum cannot be issued in favor of a person unless he is actually restrained of his liberty, or is threatened with such restraint by a person with the present means of enforcing it.1 Merely moral duress is insufficient. 13 The validity of his conviction of crime cannot be thus tested by a person who has been pardoned and is not restrained of his liberty, although he has refused to accept such pardon.14 The writ of habeas corpus cannot be used to correct errors and irregularities, however flagrant, committed within the sphere of the authority of the court.15 But a party imprisoned 11 U. S. R. S., §§ 753, 641, 643. See also 18 St. at L. 157. For the history of this legislation, see In re Burrus, 136 U. S. 586, 589, per Miller, J.; and a note by Ex-Judge S. D. Thompson, 18 Fed. R. 70. It has been held that upon a petition for the writ of habeas corpus to release a United States marshal from custody under State process, the Federal court cannot inquire into the truth or justice of the charges against him, but is limited to the question whether his alleged unlawful acts were done in pursuance of a law of the United States, In re Marsh, 51 Fed. R. 277; and that where deputy marshals are imprisoned by State authorities on a charge of murder, based on the killing of a person while resisting arrest on process from a Federal court, the latter court has jurisdiction to issue a writ of habeas corpus, and on the return to summarily hear evidence and finally dispose of the charges against such deputies. Kelly v. Georgia, 68 Fed. R. 652. It has been held that an act done by an officer of the United States in the discharge of his official duty is done in pursuance of a law of the United States, although there is no express statutory authority for the same. In re Neagle, 135 U. S. 1. An officer of the United States may be released by the writ of habeas corpus when he has been indicted, Ohio v. Thomas, 173 U. S. 276; In re Fair, 100 Fed. R. 149; or convicted in a State court for a violation, in the discharge of his official functions, of a State statute which, so far as it applied to him, the State had no power to enact. In re Waite, 81 Fed. R. 359. 12 Wales v. Whitney, 114 U. S. 564, 572. 18 Thus, when the party seeking the writ was a naval officer in Washington, and the basis of his application was a letter from the Secretary of the Navy inclosing charges against him, together with a notice of the session of a court-martial to consider them, and concluding, "You are hereby placed under arrest, and you will confine yourself to the limits of Washington;" it was held that the petitioner was not under such restraint as to warrant the issue of the writ. Wales v. Whitney, 114 U. S. 564. The court, however, refused to inquire whether the prisoner had been surrendered by collusion with his bail. In re Grice, 79 Fed. R. 627. 14 Re Callicot, 8 Blatchf. 89. 15 Ex parte Terry, 128 U. S. 289, 304; Ex parte Siebold, 100 U. S. 371; Ex parte Parks, 93 U. S. 18; Ex parte Curtis, 106 U. S. 371; Ex parte Bige under an order made by a court of the United States, where it does not possess jurisdiction of either the person or the subjectmatter, can review that order by such a writ.16 A prisoner low, 113 U. S. 328. After judgment of conviction, a prisoner cannot be released by a writ of habeas corpus upon the ground that the facts charged in the indictment do not constitute a crime within the meaning of the statute. Ex parte Parks, 93 U. S. 18; Ex parte Watkins. 3 Pet. 193, 203; Ex parte Yarbrough, 110 U. S. 651, 654. But see In re Mayfield, 141 U. S. 107, 116. Nor because of a slight lack of certainty in the indictment. U. S. v. Pridgeon, 153 U. S. 48. Nor because an improper person sat on the grand jury which indicted him. Ex parte Harding, 120 U. S. 782. See In re Wilson, 140 U. S. 575. Nor because of an error in sustaining or overruling a challenge to a juror. In re Schneider, No. 2, 148 U. S. 162; Ex parte Murray, 66 Fed. R. 297. Nor because the court improperly consolidated indictments. De Bara v. U. S. (C. C. A.), 99 Fed. R. 942; Howard v. U. S. (C. C. A.), 75 Fed. R. 986. Nor because the court refused to assign him counsel and forced him to trial without sufficient time to prepare his defense. In re McKnight, 52 Fed. R. 799. Nor because he was convicted upon insuffi cient evidence. In re Harkell, 52 Fed. R. 195. Nor for errors committed in the course of his trial,even, it has been held, if these errors were infractions of the Constitution, such as a refusal to sustain a plea of a former conviction for the same cause, Ex parte Bigelow, 113 U. S. 328; Ex parte Ulrich, 43 Fed. R. 661; provided the infringement of the Constitution does not clearly appear upon the record. Nielsen, Petitioner, 131 U. S. 176. Nor because he was refused compulsory process for the attendance of witnesses on his be half. Ex parte Harding, 120 U. S. 782. See In re Wilson, 140 U. S. 575. Nor because he was tried by a de facto State judge who had no legal title to the office. Ex parte Ward, 173 U. S. 452. Nor because he was convicted upon an information filed by a de facto State prosecutor who was not an officer de jure. In re Humason, 46 Fed. R. 388. Nor because he was denied bail pending a writ of error in a State court. Ibid. Nor because his petition for a removal was denied. Ex parte Murray, 66 Fed. R. 297. The rule that, unless the contrary appears on the record, a cause is deemed to be without the jurisdiction of a Circuit or District Court of the United States, has no application where the judgment of such a court is attacked collaterally by habeas corpus, Cuddy, Petitioner, 131 U. S. 280, 285; or otherwise, Kempe's Lessee v. Kennedy, 5 Cranch, 173, 185; McCormick v. Sullivant, 10 Wheat. 192, 199; Galpin v. Page, 18 Wall. 350, 365. A person imprisoned for contempt of an order of a Federal court, where the record shows no Federal jurisdiction, is not entitled to discharge. In re Eaton, 51 Fed. R. 804; In re Lennon, 166 U. S. 548. Cf. In re Swan, 150 U. S. 637; In re Debs, 158 U. S. 564; In re Tyler, 149 U. S. 164. 16 Ex parte Lange, 18 Wall. 163; Ex parte Siebold, 100 U. S. 371; Ex parte Rowland, 104 U. S. 604; In re Ayers, 123 U. S. 443, 485; In re Sawyer, 124 U. S. 200, 221; Ex parte Fisk, 113 U.S. 713; Ex parte Wilson, 114 U. S. 417. It has been said that "if a judgment or any part thereof is void, either because the court that renders it is not competent to do so for want of jurisdiction or because it is rendered under a law clearly unconstitutional, or because it is senseless, and with may be discharged by habeas corpus when he is held by any court, State or Federal, under process based upon a city ordi out meaning, and cannot be corrected, or for any other cause, then a party imprisoned by virtue of such void judgment may be discharged on habeas corpus. Bradley, J., in U. S. v. Patterson, 29 Fed. R. 775, 778. A prisoner was discharged by a writ of habeas corpus, when he had been convicted in a court of the United States of a capital or infamous crime upon an information without an indictment. Ex parte Wilson, 114 U. S. 417. A crime is considered infamous when punishable by imprisonment in a State prison or penitentiary with or without hard labor. Ex parte Wilson, 114 U. S. 417; Mackin v. U. S., 117 U. S. 348. A prisoner may be discharged by habeas corpus when his conviction was in a court of the United States, under an indictment, the body of which was amended by the court. Ex parte Bain, 121 U. S. 1. Or under an indictment found by a grand jury unauthorized by law. Ex parte Farley, 40 Fed. R. 66. But see In re Wilson, 140 U. S. 575; Ex parte Harding, 120 U. S. 782. Or under a statute, State or Federal, which is repugnant to the Federal Constitution. Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, 100 U. S. 399; Ex parte Curtis, 106 U. S. 371. Or under a judgment imposing a second penalty or different penalty from that previously imposed upon the same party for the same offense, although the former judgment was entered at the same term as the latter. Ex parte Lange, 18 Wall. 163; Nielsen, Petitioner, 131 U. S. 176. Or under a judgment entered upon a conviction under several indictments, and imposing more than one punishment for a continuous offense. In re Snow, 120 U. S. 274. Or under a judgment confining him in a penitentiary for a crime punishable by imprison ment in a jail only. In re Bonner, 151 U. S. 242. Or even, it has been held, when sentenced to imprisonment without hard labor in a house of correction for a crime punishable by imprisonment with hard labor in the same place of confinement. In re Christian, 82 Fed. R. 199. Or for contempt of a court of the United States by disobedience to an order beyond the power of such court. Ex parte Rowland, 104 U. S. 604; Ex parte Fisk, 113 U. S. 713; Re Ayres, 123 U. S. 443; In re Sawyer, 124 U. S. 200; Cuddy, Petitioner, 131 U. S. 280. Or for contempt of a court of the United States for an act not committed in the presence of the court, when the prisoner has been given no hearing. Ex parte Terry, 128 U. S. 289. Or for disobedience to an order when the prisoner was not a party to the suit nor named in the order. In re Reese (C. C. A.), 107 Fed. R. 942. Or for contempt of such a court because of his refusal to answer a question that might tend to criminate him. Ex parte Irvine, 74 Fed. R. 954. See In re Counselman v. Hitchcock, 142 U. S. 547; Butler v. Fayerweather (C. C. A.), 91 Fed. R. 458. Or, before conviction, when held under a warrant issued by a United States judge or commissioner, under a complaint which does not state an offense under a statute of the United States. Ex parte Bollman and Ex parte Swartwout, 4 Cranch, 75; Ex parte Watkins, 3 Pet. 201; Ex parte Jenkins, 2 Wall. C. C. 521, 528; In re Martin, 5 Blatchf. 303. See Ex parte Carll, 106 U. S. 521. But see Price v. M'Carty, 89 Fed. R. 84. Or an offense of which such judge or commissioner has jurisdiction. In re Ferez, 7 Blatchf. 34; In re Cross, 20 Fed. R. 824; U. S. v. Rogers, 23 Fed. R. 658; In re Kelly, 25 Fed. R. 268. Even after indictment in another 18 nance," or a statute, State or Federal, which is repugnant to the Federal Constitution; or when held by a State court under a charge of a crime exclusively within the jurisdiction of the district to remove the prisoner to which the warrant is issued. In re Terrell, 51 Fed. R. 213; In re Greene, 52 Fed. R. 104. The writ will issue in proceedings for extradition to another State or to a foreign country where the prisoner is held under a complaint or an indictment which does not charge an extraditable offense, In re Ferez, 7 Blatchf. 34; In re Kelly, 25 Fed. R. 268; Ex parte Lane, 6 Fed. R. 34; In re Fitton, 45 Fed. R. 471; but see Ex parte Whitten, 67 Fed. R. 230; or which is founded upon a State statute that is unconstitutional, In re Murphy, 87 Fed. R. 549; but see Pearce v. Texas, 155 U. S. 311; or because after extradition in the United States from a foreign country the prisoner is held in violation of a treaty under a different charge from that upon which the extradition was based. Cosgrove v. Winney, 174 U. S. 64; U. S. v. Runscher, 119 U. S. 407. Cf. In re Rowe (C. C. A.), 77 Fed. R. 161; In re Miller, 23 Fed. R. 32. But in neither case will the court, on habeas corpus, review the decision of a disputed question of fact, Benson v. McMahon, 127 U. S. 457; In re Fowler, 4 Fed. R. 303; In re Byron, 18 Fed. R. 722; In re Roberts, 24 Fed. R. 132; In re Morriss, 40 Fed. R. 824; Orteiza v. Jaco 17 Stockton Laundry Case, 26 Fed. R. 611. "Though the law itself be fair on its face and impartial in appearance, yet if it is administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Consti bus, 136 U. S. 330; Ex parte Bryant, 167 U. S. 104; Ornelas v. Ruiz, 161 U. S. 502; Ex parte Reggel, 114 U. S. 642; Sternaman v. Peck (C. C. A.), 80 Fed. R. 883; nor discharge a prisoner for errors in the admission or exclusion of evidence, Benson v. McMahon, 127 U. S. 457, 461; In re Cortes, 136 U. S. 330; nor for irregularities or errors not affecting the jurisdiction, Savin, Petitioner, 131 U. S. 267, 279; Stevens v. Fuller, 136 U. S. 468, 478; In re Tyler, 149 U. S. 164; In re Adutt, 55 Fed. R. 376; nor because he was illegally brought within the United States and there regularly arrested, Ex parte Ker, 18 Fed. R. 167; Ker v. Illinois, 119 U. S. 437; Mahon v. Justices, 127 U. S. 700; Cook v. Hart, 146 U. S. 183; nor, it seems, because the extradition was obtained through the use of false affidavits, In re Moore, 75 Fed. R. 821. Contra, Tennessee v. Jackson, 36 Fed. R. 258. "A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error. If the commissioner has jurisdiction of the subject-matter and of the person of the accused, and the offense charged is within the terms of a treaty of extradition, and the commissioner, in arriving at a decision to hold the accused, has before him competent tution." Yick Wo v. Hopkins, 118 U. S. 356, 368. For a case where an application for the writ to review a commitment by a State senate for contempt was denied, see In re Lawrence, 80 Fed. R. 99. 18 Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, 100 U. S. 399; Ex parte Curtis, 106 U. S. 371; Medley, Petitioner, 134 U. S. 160. |