Federal courts; 19 or it seems, if in custody under sentence by a State or Federal court without a trial upon a plea of not guilty; 20 or it seems if, when indicted for one crime, he had pleaded guilty of another, and were held in custody under sentence for either.21 A prisoner who is held in custody under a conviction of a Federal court may, after his pardon by the President of the United States, be released by habeas corpus.22 In one case a Federal court granted a writ of habeas corpus because a State judge had exercised powers not given him by the State statute.23 It has been doubted whether a Circuit Court legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused, for the purposes of extradition such decision of the commissioner cannot be reviewed by a Circuit Court or by this court, on habeas corpus, either originally or upon appeal. In re Cortes, 136 U. S. 330, 334; Ex parte Rickelt, 61 Fed. R. 203. A deserter cannot, after conviction by a court-martial, be discharged by habeas corpus on the ground that at the time when he voluntarily enlisted he was above the legal age, In re Grimley, 137 U. S. 147; nor on the ground that he enlisted when a minor without the consent of his parent or guardian, at least unless the parent or guardian applies for the relief, In re Morris sey, 137 U. S. 157. But a minor who had not deserted, but who was under charges of fraud which had not been acted upon, was discharged by the writ, upon his father's petition, because the enlistment was unlawful under U. S. R. S., § 1117. In re Carver, 103 Fed. R. 624. Cf. In re Roberts, 99 Fed. R. 948; Carter v. M'Caughry, 105 Fed. R. 614; Wolfe Tone's Case, Green Bag, vol. V, p. 662. By the act of August 18, 1894, 128 St. at L. 390: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officer, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury." It has been held that this deprives the courts of the power to determine by the writ of habeas corpus whether the immigrant belonged to one of the excluded classes. U. S. v. Wong Chow (C. C. A.), 108 Fed. R. 376. Cf. Li Sing v. U. S., 180 U. S. 486; Lem Moon Sing v. U. S., 158 U. S. 538; In re Way Tai, 96 Fed. R. 484; In re Ota, 96 Fed. R. 487. For the former rule see Ekiu v. U. S., 142 U. S. 651; Fong Yue Ting v. U. S., 149 U. S. 698. Should the excluded party claim to be a citizen of the United States, a different question would arise. In re Jew Wong Loy, 91 Fed. R. 240; Gee Fooke Sing v. U. S. (C. C. A.), 49 Fed. R. 146; Lem Hing Dun v. U. S., 49 Fed. R. 148. 19 In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1. Cf. Ex parte Thompson, 1 Flippin, 507; U. S. v. McClay, 4 Cent. L. J. 255. 20 In re Converse, 42 Fed. R. 217, 219. 21 In re Converse, 42 Fed. R. 217, 219. But see In re Maldonado, 63 Fed. R. 825. 22 Greathouse's Case, 2 Abb. U. S. 382. 23 In re Monroe, 46 Fed. R. 52. Cf. In 27 has any authority to release by habeas corpus a prisoner held under the judgment of another Circuit Court of the United States.24 It has been held that the Circuit Courts of the United States may take jurisdiction by habeas corpus when there is no controversy arising under the Constitution or laws of the United States, but there is a difference of citizenship between the parties; that they can then inquire into the legality of the imprisonment, but cannot exercise any discretion in the capacity of parens patriæ as to the place or character of the confinement.25 The District Courts of the United States have no such jurisdiction.26 An Indian may obtain the writ in a proper case. A proceeding upon an application for the writ of habeas corpus cannot be removed from a State to a Federal court.28 A State court has not the power to grant a writ of habeas corpus to a person held under color of authority from the United States.29 When such a writ is issued by a State court, the person to whom it is directed should make a return stating that he holds the prisoner under the authority of the United States, but otherwise disregard the writ.30 A State court may by a writ of habeas corpus examine the legality of the detention of a prisoner by a person appointed by the governor of a State in extradition proceedings.31 The existence and extent of the original jurisdiction of the Circuit Courts of Appeals to issue the writ of habeas corpus is unsettled. It has been held that a Circuit Court of Appeals has no jurisdiction to issue a writ of habeas corpus for service outside of the circuit in which it sits, although its jurisdiction re King, 46 Fed. R. 905, 906-911; In re Davenport, 102 Fed. R. 540. But see In re Duncan, 139 U. S. 449; Leeper v. Texas, 139 U. S. 462. 24 In re Eaton, 51 Fed. R. 804, 806. 25 King v. McLean Asylum of Mass. Gen. Hospital (C. C. A.), 64 Fed. R. 331. It has been held that the right to the custody of a child may be thus determined when the necessary difference of citizenship exists. Bennett v. Bennett, Deady, 299; U. S. v. Savage, 91 Fed. R. 490. See also U. S. v. Green, 3 Mason, 482; U. S. ex rel. Wheeler v. Williamson, 4 Am. L. Reg. 5; In re Burrus, 136 U. S. 586, 593, 597. Contra, Ex parte Evert, 1 Bond, 197; In re Barry, 42 Fed. R. 113; s. c., 136 U. S. 507, note; cited in argument of counsel in Barry v. Mercein, 5 How. 103, 104. 26 In re Burrus, 136 U. S. 586. 27 U. S. v. Cook, 5 Dillon, 453. 28 Kurtz v. Moffitt, 115 U. S. 487. 29 Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397. 30 Ableman v. Booth, 21 How. 506. 31 Robb v. Connolly, 111 U. S. 624; Roberts v. Reilly, 116 U. S. 80, 94. is invoked to thus review the decision of the District Court of a Territory within its circuit.32 § 366a. Suspension of writ of habeas corpus.- The Constitution provides that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." During the civil war the question as to the department of the government in which the right of suspension rests was much debated, but never authoritatively decided. President Lincoln claimed that he had the authority to suspend the writ, and many arrests were made in accordance with this ruling. Subsequently Congress by statute suspended the writ, and sought to validate the arrests previously made. Mr. Justice Miller inclined to the view that so much of the statute as validated an arrest previously made was constitutional, and deprived the party arrested of the right to damages for false imprisonment. number of pamphleteers, amongst them Horace Binney, defended the position of the President. Other pamphleteers, amongst them Ex-Justice B. R. Curtis, claimed that the writ could only be suspended by Congress. Chief Justice Taney held this, in an opinion upon an application for the writ of habeas corpus; but his decision was not obeyed. Judge Hall held that the right to suspend the writ was vested in the courts, and that a necessity for the suspension had arisen when the arrest reviewed by him was made. Judge Smalley held that 32 In re Boles, 48 Fed. R. 75. § 366a. 1 Const., art. 1, § 9. 2 See, for a highly colored enumeration of such arrests, The American Bastille, by John A. Marshall, Phila. In 1871 Governor Holden of North Carolina was removed by impeachment for doing this. Foster's Commentaries on the Constitution, vol. I, p. 676. 312 St. at L. 755; 14 St. at L. 482. See the proclamation of President Lincoln, 14 St. at L. 734. A bill to suspend the writ of habeas corpus passed the Senate January 23, 1807, and was defeated in the House by John Randolph of Roanoke on Janu A ary 26, 1807. 8 Benton's Abr. 414. See also In re Boyle (Idaho, 1899), 57 Pac. R. 706; and Foster's Commentaries on the Constitution, vol. II. 4 In re Murphy, 1 Woolw. 141. To the same effect is McCall v. McDowell, 1 Abb. U. S. 212. 5 Ex parte Merryman, Taney, 246. Contra, Ex parte Field, 5 Blatchf. 63; Ex parte Vallandigham, U. S. D. C., D. Ohio, per Leavitt, J. 6 Judge Hall, in the Matter of the Petition of Oliver P. Thomas, in be half of Joel McKee, U. S. D. C., Ju dicial District of Colorado, Oct. 14, 1861. the War Department had no power to suspend the writ." "The suspension of the privilege of the writ does not bar the writ. The writ issues as a matter of course, and on the return made the court decides whether the party applying is denied the right of proceeding any further with it.”8 § 367. Practice on application for habeas corpus.— The application for a writ of habeas corpus should be made by a written complaint addressed to the court or judge from whom the writ is sought, and sworn to by the complainant, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim. or authority, if known.1 It seems that it is not necessary that the application be made by the prisoner or by some one whom he has authorized to represent him, but that the writ may be granted at the request of a stranger who has no legal interest in the matter; but it is the safer practice for the complaint in 7 Ex parte Field, 5 Blatchf. 63. tradition of a person arrested under 8 Ex parte Milligan, 4 Wall. 2, State civil process, had the right to 131. On the subject treated in this section, see Ex parte Merryman, Taney, 246; In re Benedict, Hall, J., 4 West. L. Month. 449; McCall v. McDowell, 1 Abb. U. S. 212; Ex parte McQuillon, 3 West. L. Month. 440; s. C., 9 Pitts. L. J. 29; Griffin v. Wilcox, 21 Ind. 370; Kemp v. State, 16 Wis. 359; In re Dunn, 25 How. Pr. (N. Y.) 467; Ex parte Field, 5 Blatchf. 63; Ex parte Vallandigham, U. S. D. C., D. Ohio, by Leavitt, J.; In re Fagan, 2 Spr. 91: Commonwealth v. Frink, 4 Am. Law Reg. (N. S.) 700, Philadelphia, 1882; opinion of AttorneyGeneral Cushing on Martial Law, 8 Op. A. G. 365; opinion of AttorneyGeneral Speed on the Suspension of the Writ of Habeas Corpus; Whiting's War Powers, and a number of pamphlets by Horace Binney, Joel Parker, B. R. Curtis and others during the civil war; a list of which is in the second edition of this book. § 367. U. S. R. S., § 754. It was held that a deputy United States marshal, with a warrant for the ex apply for the writ. In re Mineau, 45 Fed. R. 188. A father may thus apply when his child is illegally restrained. U. S. v. Anderson, Cooke (Tenn.), 143; U. S. v. Green, 3 Mason, 482; Bennett v. Bennett, Deady, 299; supra, § 366, note 25. See as to the former right of a master to thus obtain a slave, U. S. ex rel. Wheeler v. Williamson, 4 Am. Law Reg. 5. A party who had a suit pending in a court was allowed the writ where a judge of that court was arrested. Ex parte Des Rochers, 1 McAll. 68. 2 Ex parte Des Rochers, 1 McAll. 68; In re Hoyle, 12 Chic. L. N. 279; s. c., 9 Am. L. Rec. 65; Re Ferrens, 3 Ben. 445; The Hottentot Venus, 13 East, 194; Wheeler v. Williamson, 14 Am. Law Reg. 5; People v. Mercein, 3 Hill, 399, 407. But see Re Poole, 2 McA. (D. C.) 583; Ex parte Dorr, 3 How. 103; Mahon v. Justice, 127 U. S. 700. The petition was by the Governor of West Virginia. There seems to have been no objection taken to this; but immediately thereafter another petition was presented by a citizen of such a case to show some good reason for not obtaining the consent of the party detained. An early case holds that when the prisoner has been committed to jail by a public officer, the complaint should be accompanied by a copy of the commitment, or an affidavit that the jailer has refused a copy. The petition must show the jurisdiction of the court or judge to grant the writ. The petitioner may state facts outside of and not inconsistent with the record, showing that the court under the process of which the prisoner is held has no jurisdiction over his person, or in respect to the subject with which he is charged." When the proceedings of an inferior tribunal are reviewed by a writ of habeas corpus, a writ of certiorari issues with it At West Virginia, and subsequently the name of the party restrained was substituted for that of the petitioner, and the proceedings on the petition were conducted in his name. what particular stage of the proceedings the substitution of the name was made does not appear; but there seems to have been no objection taken to the petition being signed by the citizen or by the Governor. See Virginia v. Paul, 148 U. S. 107; infra, § 388. It was held where the proceedings had been instituted on behalf of an alleged lunatic by his next friend, that the court might supersede his next friend by the appointment of a guardian ad litem, who should investigate the facts and might recommend that the proceeding be abandoned. Pending such an investigation, the proceeding was stayed. King v. McLean Asylum of Mass. Gen. Hospital (C. C. A.), 64 Fed. R. 331, 353. An appeal in that case was entertained although taken by the next friend who had been removed. Ibid. (C. C. A.), 64 Fed. R. 325. See learned articles on the subject by Theodore Connoly, Esq., in N. Y. L. J. June 5, 1890; Hon. S. D. Thompson, in 18 Fed. R. 68; and The Jurisdiction of the Federal Courts in Ha beas Corpus Cases, 12 Crim. Law Mag. 193. 3 Harrison's Case, 1 Cranch, C. C. 159; U. S. v. Bollman, 1 Cranch, C. C. 373. 4 Ex parte Milburn, 9 Pet. 704, note. A general averment that the petitioner is detained in violation of the Constitution and laws of the United States, and that the court below had "no jurisdiction or authority to try and sentence him in the manner and form above stated, is an averment of a conclusion of law, and not of facts, that would, if found to exist, displace the presumption the law makes in support of the judgment." Re Cuddy, 131 U. S. 280, 286, per Mr. Justice Harlan. See Whitten v. Tomlinson, 160 U. S. 231; King v. McLean Asylum of Mass. Gen. Hospital (C. C. A.), 64 Fed. R. 331; Howard v. U. S., 75 Fed. R. 986. The proceedings under which the petitioner is imprisoned must be set forth with sufficient detail that their invalidity may appear. Andersen v. Treat, 172 U. S. 24; Craemer v. Washington, 168 U. S. 124. For the necessary averments in a petition after an order for extradition, see In re Count de Toulouse Lautrec, 102 Fed. R. 878. 5 In re Mayfield, 141 U. S. 107, 116; Re Cuddy, 131 U. S. 280. |