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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.6 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. S
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. A justice of the Supreme Court may grant the writ and hear argument on the return in any part of the United States. 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. order of the court. State v. Sulli. R. 302; Ex parte Peck, 3 Blatchf. van, 50 Fed. R. 593. 123; U. S. v. Tilden, 10 Ben. 566; 6 U, S. R. S., S 751. supra, S 286.
7 Ex parte Hung Hang, 108 U. S. 5 U. S. R. S., SS 642, 643; Virginia 552; Ex parte Barry, 2 How. 65. v. Paul, 148 U. S. 107; infra, SS 388, 8 Ex parte Hung Hang, 108 U. S. 389. In certain cases the clerk, and 552. even, it has been held, his deputy, 9 U. S. R. S., 8 752. can issue such a writ without an 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.ll
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." 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.''
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., SS 753, 641, 643. See be released by the writ of habeas also 18 St. at L. 157.
corpus when he has been indicted, For the history of this legislation, Ohio v. Thomas, 173 U. S. 276; In re see In re Burrus, 136 U. S. 586, 589, Fair, 100 Fed. R. 149; or convicted per Miller, J.; and a note by Ex-Judge in a State court for a violation, in the S. D. Thompson, 18 Fed. R. 70. It has discharge of his official functions, of been held that upon a petition for a State statute which, so far as it the writ of habeas corpus to release applied to him, the State had no a United States marshal from cus- power to enact. In re Waite, 81 tody under State process, the Federal Fed. R. 359. court cannot inquire into the truth 12 Wales v. Whitney, 114 U. S. 564, or justice of the charges against him, 572. but is limited to the question 13 Thus, when the party seeking whether his alleged unlawful acts the writ was a naval officer in Wash. were done in pursuance of a law of ington, and the basis of his applicathe United States, In re Marsh, 51 tion was a letter from the Secretary Fed. R. 277; and that where deputy of the Navy inclosing charges against marshals are imprisoned by State him, together with a notice of the authorities on a charge of murder, session of a court-martial to consider based on the killing of a person while them, and concluding, “You are resisting arrest on process from a hereby placed under arrest, and you Federal court, the latter court has will confine yourself to the limits of jurisdiction to issue a writ of habeas Washington;” it was held that the corpus, and on the return to sum- petitioner was not under such remarily hear evidence and finally dis- straint as to warrant the issue of the pose of the charges against such dep. writ. Wales v. Whitney, 114 U. S. uties. Kelly v. Georgia, 68 Fed. R. 564. The court, however, refused to 652. It has been held that an act inquire whether the prisoner had done by an officer of the United been surrendered by collusion with States in the discharge of his official his bail. In re Grice, 79 Fed. R. 627. duty is done in pursuance of a law 14 Re Callicot, 8 Blatchf. 89. of the United States, although there 15 Ex parte Terry, 128 U. S. 289, 301; is no express statutory authority for Ex parte Siebold, 100 U. S. 371; Ex the same. In re Neagle, 135 U. S. 1. parte Parks, 93 U. S. 18; Ex parte An officer of the United States may Curtis, 106 U. S. 371; Ex parte Bige
under an order made by a court on 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 782. See In re Wilson, 140 U. S. 575. of conviction, a prisoner cannot be Nor because he was tried by a de released by a writ of habeas corpus facto State judge who had no legal upon the ground that the facts title to the office. Ex parte Ward, charged in the indictment do not 173 U. S. 452. Nor because he was constitute a crime within the mean- convicted upon an information filed ing of the statute. Ex parte Parks, by a de facto State prosecutor who 93 U. S. 18; Ex parte Watkins. 3 was not an officer de jure. In re Pet. 193, 203; Ex parte Yarbrough, Humason, 46 Fed. R. 388. Nor because 110 U. S. 651, 654. But see In re May- he was denied bail pending a writ field, 141 U. S. 107, 116. Nor because of error in a State court. Ibid. of a slight lack of certainty in the Nor because his petition for a reindictment. U. S. v. Pridgeon, 153 moval was denied. Ex parte Murray, U. S. 48. Nor because an improper 66 Fed. R. 297. The rule that, unless person sat on the grand jury which the contrary appears on the record, indicied him. Ex parte Harding, 120 a cause is deemed to be without the U. S. 782. See In re Wilson, 140 U. S. jurisdiction of a Circuit or District 575. Nor because of an error in sus- Court of the United States, has no taining or overruling a challenge to application where the judgment of a juror. In re Schneider, No. 2, 148 such a court is attacked collaterally U. S. 162; Ex parte Murray, 66 Fed. by habeas corpus, Cuddy, Petitioner, R. 297. Nor because the court im- 131 U. S. 280, 285; or otherwise, properly consolidated indictments. Kempe's Lessee v. Kennedy, 5 Cranch, De Bara v. U. S. (C. C. A.), 99 Fed. R. 173, 185; McCormick v. Sullivant, 10 942; Howard v. U. S. (C. C. A.), 75 Wheat. 192, 199; Galpin v. Page, 18 Fed. R. 986. Nor because the court Wall 350, 365. A person imprisoned refused to assign him counsel and for contempt of an order of a Fedforced him to trial without sufficient eral court, where the record shows time to prepare his defense. In re no Federal jurisdiction, is not enMcKnight, 52 Fed. R. 799. Nor be- titled to discharge. In re Eaton, cause he was convicted upon insuffi. 51 Fed. R. 804; In re Lennon, 166 cient evidence. In re Harkell, 52 U. S. 548. Cf. In re Swan, 150 U. S. Fed. R. 195. Nor for errors com- 637; In re Debs, 158 U. S. 564; In re mitted in the course of his trial,— Tyler, 149 U. S. 164. even, it has been held, if these errors 16 Ex parte Lange, 18 Wall. 163; Ex were infractions of the Constitution, parte Siebold, 100 U.S. 371; Ex parte such as a refusal to sustain a plea of Rowland, 104 U. S. 604; In re Ayers, a former conviction for the same 123 U. S. 443, 485; In re Sawyer, 124 cause, Ex parte Bigelow, 113 U. S. U. S. 200, 221; Ex parte Fisk, 113 U.S. 328; Ex parte Ulrich, 43 Fed. R. 661; 713; Ex parte Wilson, 114 U. S. 417. provided the infringement of the It has been said that “if a judgment Constitution does not clearly appear or any part thereof is void, either upon the record. Nielsen, Petitioner, because the court that renders it is 131 U. S. 176. Nor because he was not competent to do so for want of refused compulsory process for the jurisdiction or because it is rendered attendance of witnesses on his be- under a law clearly unconstitutional, half. Ex parte Harding, 120 U. S. 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 cor- ment in a jail only. In re Bonner, rected, or for any other cause, then a 151 U. S. 242. Or even, it has been party imprisoned by virtue of such held, when sentenced to imprisonvoid judgment may be discharged on ment without hard labor in a house habeas corpus. Bradley, J., in U. S. of correction for a crime punishable v. Patterson, 29 Fed. R. 775, 778. A by imprisonment with hard labor in prisoner was discharged by a writ of the same place of confinement. In re habeas corpus, when he had been Christian, 82 Fed. R. 199. Or for conconvicted in a court of the United tempt of a court of the United States States of a capital or infamous crime by disobedience to an order beyond upon an information without an in- the power of such court. Ex parte dictment. Ex parte Wilson, 114 U.S. Rowland, 104 U. S. 604; Ex parte Fisk, 417. A crime is considered infamous 113 U. S. 713; Re Ayres, 123 U. S. 443; when punishable by imprisonment In re Sawyer, 124 U. S. 200; Cuddy, in a State prison or penitentiary with Petitioner, 131 U. S. 280. Or for conor without hard labor. Ex parte tempt of a court of the United States Wilson, 114 U. S. 417; Mackin v. U.S., for an act not committed in the 117 U. S. 348. A prisoner may be dis- presence of the court, when the prischarged by habeas corpus when his oner has been given no hearing. Ex conviction was in a court of the parte Terry, 128 U. S. 289. Or for United States, under an indictment, disobedience to an order when the the body of which was amended by prisoner was not a party to the suit the court. Ex parte Bain, 121 U. S. 1. nor named in the order. In re Reese Or under an indictment found by a (C. C. A.), 107 Fed. R. 942. Or for grand jury unauthorized by law. Ex contempt of such a court because of parte Farley, 40 Fed. R. 66. But see his refusal to answer a question that In re Wilson, 140 U. S. 575; Ex parte might tend to criminate him. Ex Harding, 120 U. S. 782. Or under a parte Irvine, 74 Fed. R. 954. See In re statute, State or Federal, which is Counselman v. Hitchcock, 142 U. S. repugnant to the Federal Constitu- 547; Butler v. Fayerweather(C. C. A.), tion. Ex parte Siebold, 100 U. S. 371; 91 Fed. R. 458. Or, before conviction, Ex parte Clarke, 100 U. S. 399; Ex when held under a warrant issued by parte Curtis, 106 U. S. 371. Or under a United States judge or commisa judgment imposing a second pen- sioner, under a complaint which does alty or different penalty from that not state an offense under a statute previously imposed upon the same of the United States. Ex parte Bollparty for the same offense, although man and Ex parte Swartwout, 4 the former judgment was entered at Cranch, 75; Ex parte Watkins, 3 Pet. the same term as the latter. Ex parte 201; Ex parte Jenkins, 2 Wall. C. C. Lange, 18 Wall. 163; Nielsen, Peti- 521, 528; In re Martin, 5 Blatchf. 303. tioner, 131 U. S. 176. Or under a judg. See Ex parte Carll, 106 U. S. 521. But ment entered upon a conviction see Price v. M'Carty, 89 Fed. R. 84. under several indictments, and im- Or an offense of which such judge or posing more than one punishment commissioner has jurisdiction. In re for a continuous offense. In re Snow, Ferez, 7 Blatchf. 34; In re Cross, 20 120 U. S. 274. Or under a judgment Fed. R. 824; U. S. v. Rogers, 23 Fed. confining him in a penitentiary R. 658; In re Kelly, 25 Fed. R. 268. for a crime punishable by imprison. Even after indictment in another
nance, 17 or a statute, 18 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 bus, 136 U. S. 330; Ex parte Bryant, which the warrant is issued. In re 167 U. S. 104; Ornelas v. Ruiz, 161 Terrell, 51 Fed. R. 213; In re Greene, U. S. 502; Ex parte Reggel, 114 U. S. 52 Fed. R. 104.
642; Sternaman v. Peck (C. C. A.), 80 The writ will issue in proceedings Fed. R. 883; nor discharge a prisoner for extradition to another State or for errors in the admission or excluto a foreign country where the pris- sion of evidence, Benson v. McMaoner is held under a complaint or an hon, 127 U. S. 457, 461; In re Cortes, indictment which does not charge 136 U. S. 330; nor for irregularities an extraditable offense, In re Ferez, or errors not affecting the jurisdic7 Blatchf. 34; In re Kelly, 25 Fed. tion, Savin, Petitioner, 131 U. S. 267, R. 268; Ex parte Lane, 6 Fed. R. 34; 279; Stevens vi Fuller, 136 U. S. 468, In re Fitton, 45 Fed. R. 471; but see 478; In re Tyler, 149 U. S. 164; In re Ex parte Whitten, 67 Fed. R. 230; or Adutt, 55 Fed. R. 376; por because which is founded upon a State stat- he was illegally brought within the ute that is unconstitutional, In re United States and there regularly Murphy, 87 Fed. R. 549; but see arrested, Ex parte Ker, 18 Fed. R. Pearce v. Texas, 155 U. S. 311; or 167; Ker v. Illinois, 119 U. S. 437; because after extradition in the Mahon V. Justices, 127 U. S. 700; United States from a foreign coun- Cook v. Hart, 146 U. S. 183; nor, it try the prisoner is held in violation seems, because the extradition was of a treaty under a different charge obtained through the use of false affrom that upon which the extradi- fidavits, In re Moore, 75 Fed. R. 821. tion was based. Cosgrove v. Win- Contra, Tennessee V. Jackson, 36 ney, 174 U. S. 64; U. S. v. Runscher, Fed. R. 258. 119 U. S. 407. Cf. In re Rowe (C. C. “A writ of habeas corpus in a case A.), 77 Fed. R. 161; In re Miller, 23 of extradition cannot perform the Fed. R. 32. But in neither case will office of a writ of error. If the comthe court, on habeas corpus, review missioner has jurisdiction of the subthe decision of a disputed question ject-matter and of the person of the of fact, Benson v. McMahon, 127 accused, and the offense charged is U. S. 457; In re Fowler, 4 Fed. R. within the terms of a treaty of ex303; In re Byron, 18 Fed. R. 722; In tradition, and the commissioner, in re Roberts, 24 Fed. R. 132; In re Mor- arriving at a decision to hold the riss, 40 Fed. R. 824; Orteiza v. Jaco- accused, has before him competent
17 Stockton Laundry Case, 26 Fed. tution.” Yick Wo v. Hopkins, 118 R. 611. “Though the law itself be U. S. 356, 368. For a case where an fair on its face and impartial in ap- application for the writ to review a pearance, yet if it is administered by commitment by a State senate for public authority with an evil eye and contempt was denied, see In re an unequal hand, so as practically to Lawrence, 80 Fed. R. 99. make unjust and illegal discrimina- 18 Ex parte Siebold, 100 U. S. 371; tions between persons in similar cir- Ex parte Clarke, 100 U. S. 399; Ex cumstances, material to their rights, parte Curtis, 106 U. S. 371; Medley, the denial of equal justice is still Petitioner, 134 U. S. 160. within the prohibition of the Consti