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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.2 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. It has been doubted whether a Circuit Court

legal evidence on which to exercise law or treaty now existing or here his judgment as to whether the facts after made, the decision of the apare sufficient to establish the crimi. propriate immigration or customs ofnality of the accused, for the pur- ficer, if adverse to the admission of poses of extradition such decision such alien, shall be final, unless reof the commissioner cannot be reversed on appeal to the Secretary of viewed by a Circuit Court or by this the Treasury.” court, on habeas corpus, either origi- It has been held that this deprives nally or upon appeal. In re Cortes, the courts of the power to determine 136 U. S. 330, 334; Ex parte Rickelt, by the writ of habeas corpus whether 61 Fed. R. 203. A deserter cannot, the immigrant belonged to one of after conviction by a court-martial, the excluded classes. U. S. v. Wong be discharged by habeas corpus on Chow (C. C. A.), 108 Fed. R. 376. Cf. the ground that at the time when Li Sing v. U. S., 180 U. S. 486; Lem he voluntarily enlisted he was above Moon Sing v. U. 8., 158 U. S. 538; In the legal age, In re Grimley, 137 re Way Tai, 96 Fed. R. 484; In re U. S. 147; nor on the ground that he Ota, 96 Fed. R. 487. For the former enlisted when a minor without the rule see Ekiu v. U. S., 142 U. S. 651; consent of his parent or guardian, at Fong Yue Ting v. U. S., 149 U. S. 698. least unless the parent or guardian Should tho excluded party claim to applies for the relief, In re Morris be a citizen of the United States, a sey, 137 U. S. 157. But a minor who different question would arise. In re had not deserted, but who was under Jew Wong Loy, 91 Fed. R. 240; Gee charges of fraud which had not been Fooke Sing v. U. S. (C. C. A.), 49 Fed. acted upon, was discharged by the R. 146; Lem Hing Dun v. U. S., 49 writ, upon his father's petition, be Fed. R. 148. cause the enlistment was unlaw- 19 In re Loney, 134 U. S. 372; In re ful under U. S. R. S., & 1117. In re Neagle, 135 U. S. 1. Cf. Ex parte Carver, 103 Fed. R. 624. Cf. In re Thompson, 1 Flippin, 507; U. S. v. Roberts, 99 Fed. R. 948; Carter v. McClay, 4 Cent. L. J. 255. M'Caughry, 105 Fed. R. 614; Wolfe 20 In re Converse, 42 Fed. R. 217, 219. Tone's Case, Green Bag, vol. V, 21 In re Converse, 42 Fed. R. 217,

219. But see In re Maldonado, 63 Fed. By the act of August 18, 1894, 128 R. 825. St. at L. 390: “In every case where 22 Greathouse's Case, 2 Abb. U. S. an alien is excluded from admission 382. into the United States under any 23 In re Monroe, 46 Fed. R. 52. Cf. In

P. 662.

has any authority to release by habeas corpus a prisoner held under the judgment of another Circuit Court of the United States. 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. 91

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 L. Reg. 5; In re Burrus, 136 U. S. re Davenport, 102 Fed. R. 540. But 586, 593, 597. Contra, Ex parte Evsee In re Duncan, 139 U. S. 419; Lee ert, 1 Bond, 197; In re Barry, 42 Fed. per v. Texas, 139 U. S. 462.

R. 113; S. C., 136 U. S. 507, note; cited 24 In re Eaton, 51 Fed. R. 804, 806. in argument of counsel in Barry v.

25 King v. McLean Asylum of Mercein, 5 How. 103, 104. Mass. Gen. Hospital (C. C. A.), 64 Fed. 26 In re Burrus, 136 U. S. 586. R. 331. It has been held that the 27 U. S. v. Cook, 5 Dillon, 453. right to the custody of a child may 28 Kurtz v. Moffitt, 115 U. S. 487. be thus determined when the neces- 29 Ableman v. Booth, 21 How. 506; sary difference of citizenship exists. Tarble's Case, 13 Wall. 397. Bennett v. Bennett, Deady, 299; U. S. 30 Ableman v. Booth, 21 How. 506. V. Savage, 91 Fed. R. 490. See also 31 Robb v. Connolly, 111 U. S. 624; U. S. v. Green, 3 Mason, 482; U. S. Roberts v. Reilly, 116 U. S. 80, 94. ex rel. Wheeler v. Williamson, 4 Am.

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. A 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.

ary 26, 1807. 8 Benton's Abr. 414. § 366a. 1 Const., art. 1, $ 9.

See also In re Boyle (Idaho, 1899), 2 See, for a highly colored enumera- 57 Pac. R. 706; and Foster's Commention of such arrests, The American taries on the Constitution, vol. II. Bastille, by John A. Marshall, Phila. 4 In re Murphy, 1 Woolw. 141. To In 1871 Governor Holden of North the same effect is McCall v. McDowCarolina was removed by impeach- ell, 1 Abb. U. S. 212. ment for doing this. Foster's Com- 5 Ex parte Merryman, Taney, 246. mentaries on the Constitution, vol. Contra, Ex parte Field, 5 Blatchf. 63; I, p. 676.

Ex parte Vallandighạm, U. S. D. C., 3 12 St. at L. 755; 14 St. at L. 482. D. Ohio, per Leavitt, J. See the proclamation of President 6 Judge Hall, in the Matter of the Lincoln, 14 St. at L. 734. A bill to Petition of Oliver P. Thomas, in be suspend the writ of habeas corpus half of Joel McKee, U. S. D. C., Ju passed the Senate January 23, 1807, dicial District of Colorado, Oct. 14, and was defeated in the House by 1861. John Randolph of Roanoke on Janu

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. 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.

apply for the writ. In re Mineau, 45 On the subject treated in this sec- Fed. R. 188. A father may thus tion, see Ex parte Merryman, Taney, apply when his child is illegally re246; In re Benedict, Hall, J., 4 West. strained. U. S. v. Anderson, Cooke L. Month. 449; McCall v, McDowell, (Tenn.), 143; U. S. v. Green, 3 Mason, 1 Abb. U. S. 212; Ex parte McQuil. 482; Bennett v. Bennett, Deady, 299; lon, 3 West. L. Month. 440; S. C., 9 supra, s 366, note 25. See as to the Pitts. L. J. 29; Griffin v. Wilcox, 21 former right of a master to thus obInd. 370; Kemp v. State, 16 Wis. 359; tain a slave, U. S. ex rel. Wheeler v. In re Dunn, 25 How. Pr. (N. Y.) 467; Williamson, 4 Am. Law Reg. 5. A Ex parte Field, 5 Blatchf. 63; Ex party who had a suit pending in a parte Vallandigham, U. S. D. C., D. court was allowed the writ where Ohio, by Leavitt, J.; In re Fagan, 2 a judge of that court was arrested. Spr. 91: Commonwealth v. Frink, 4 Ex parte Des Rochers, 1 McAll. 68. Am. Law Reg. (N. S.) 700, Phila- 2 Ex parte Des Rochers, 1 McAll. delphia, 1832; opinion of Attorney- 68; In re Hoyle, 12 Chic. L. N. 279; General Cushing on Martial Law, 8 S. C., 9 Am. L. Rec. 65; Re Ferrens, 3 Op. A. G. 365; opinion of Attorney- Ben. 445; The Hottentot Venus, 13 General Speed on the Suspension of East, 194; Wheeler v. Williamson, 14 the Writ of Habeas Corpus; Whit- Am. Law Reg. 5; People v. Mercein, ing's War Powers, and a number of 3 Hill, 399, 407. But see Re Poole, 2 pamphlets by Horace Binney, Joel McA. (D. C.) 583; Ex parte Dorr, 3 Parker, B. R. Curtis and others during How. 103; Mahon v. Justice, 127 U. S. the civil war; a list of which is in 500. The petition was by the Governor the second edition of this book. of West Virginia. There seems to have

$367. 1 U. S. R. S., S 754. It was been no objection taken to this; but held that a deputy United States immediately thereafter another petimarshal, with a warrant for the ex- tion 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 West Virginia, and subsequently the beas Corpus Cases, 12 Crim. Law name of the party restrained was Mag. 193. substituted for that of the petitioner, 3 Harrison's Case, 1 Cranch, C. C. and the proceedings on the petition 159; U. S. v. Bollman, 1 Cranch, C. C. were conducted in his name. At 373. what particular stage of the proceed- * Ex parte Milburn, 9 Pet. 704, note. ings the substitution of the name A general averment that the petiwas made does not appear; but there tioner is detained in violation of the seems to have been no objection Constitution and laws of the United taken to the petition being signed by States, and that the court below had the citizen or by the Governor. See “ no jurisdiction or authority to try Virginia v. Paul, 148 U. S. 107; infra, and sentence him in the manner and $ 388.

form above stated, is an averment of It was held where the proceedings a conclusion of law, and not of facts, had been instituted on behalf of an that would, if found to exist, displace alleged lunatic by his next friend, the presumption the law makes in that the court might supersede his support of the judgment.” Re Cuddy, next friend by the appointment of a 131 U. S. 280, 286, per Mr. Justice guardian ad litem, who should in- Harlan. See Whitten v. Tomlinvestigate the facts and might recom- son, 160 U. S. 231; King v. McLean mend that the proceeding be aban- Asylum of Mass. Gen. Hospital (C. doned. Pending such an investiga- C. A.), 64 Fed. R. 331; Howard v. U.S., tion, the proceeding was stayed. 75 Fed. R. 986. The proceedings King v. McLean Asylum of Mass. under which the petitioner is imGen. Hospital (C. C. A.), 64 Fed. R. prisoned must be set forth with suffi. 331, 353. An appeal in that case was cient detail that their invalidity may entertained although taken by the appear. Andersen v. Treat, 172 U. S. next friend who had been removed. 24; Craemer v. Washington, 168 U. S. Ibid. (C. C. A.), 64 Fed. R. 325. See 124. For the necessary averments learned articles on the subject by in a petition after an order for exTheodore Connoly, Esq., in N. Y. tradition, see In re Count de TouL J. June 5, 1890; Hon. S. D. Thomp louse Lautrec, 102 Fed. R. 878. son, in 18 Fed. R. 68; and The Juris- 5 In re Mayfield, 141 U. S. 107, 116; diction of the Federal Courts in Ha- Re Cuddy, 131 U. S. 280.

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