the appellate powers of the Supreme Court must be subject to the regulations made by Congress; that a military commission was not a Court under the fourteenth section of the Judiciary Act of 1790; that the Supreme Court had not original jurisdiction in an application for the writ of habeas corpus; that a writ of certiorari could only be addressed to an inferior Court, and, therefore, that the petition must be dismissed.

§ 255. If Vallandigham had made his petition to the District or Circuit Court of Ohio, the question of jurisdiction might have been avoided. (Ex parte Reed, 100 U. S. 13.) In the latter case the petition was filed in the Circuit Court at Massachusetts, and upon the refusal of that Court to grant the writ, the Supreme Court, upon petition and prayer for the writ of certiorari, took jurisdiction of the case. The consideration of the question whether a court-martial was a Court inferior to the Supreme Court was thus avoided, the prayer being for the record of the Circuit Court.

§ 256. In the opinion given by Mr. Justice Swayne, the extent of the authority of the Supreme Court over courtsmartial is set forth. It can inquire whether the court-martial had jurisdiction over the case as set forth in the charges and specifications, and also whether it had jurisdiction over the person of the accused; and, then, whether the sentence was one which the Court could pronounce as due punishment for the offences charged.

As to the intermediate proceedings their legality must be presumed.

In fine, that the Court could not inquire whether the proceedings might or might not be voidable, they must be absolutely void upon the face of the record, or the prayer of the petition must be denied.

§ 257. "The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the Court decides whether the party applying is denied the right

of proceeding any further with it." (Ex parte Milligan, 4 Wall. 2, 131.)

§ 258. Upon a petition for the writ of habeas corpus in behalf of one Tobias Watkins who was in prison under a sentence pronounced upon him by the Circuit Court of Washington, the Supreme Court said: "Without looking into the indictments under which the prosecution against the petitioner was conducted, we are unanimously of the opinion that the judgment of a Court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded." (Ex parte Watkins, 3 Pet. 193.)

§ 259. At the January term, 1840, the Court divided upon the question of granting the writ of habeas corpus upon the petition of George Holmes, who was held in custody upon the order of the governor of Vermont. Holmes had been indicted for murder in Canada, and upon a requisition from the Canadian authorities he had been arrested in Vermont, and his surrender had been ordered by the governor. Thereupon Holmes made application to the Supreme Court of the State for a writ of habeas corpus. The Court refused to grant the writ, and thereupon, by writ of error, the case was brought to the Supreme Court. The Court was divided, but Justices Story, M'Lean, and Wayne concurred in the opinion that was delivered by Chief Justice Taney, in which these propositions were maintained, viz. :(1.) That the proceeding was a suit:

(2.) That the power to decide whether a fugitive from

a foreign nation should be surrendered was a power vested by the Constitution in the general government exclusively:

(3.) That it was one of the powers which the States were forbidden to exercise without the consent of Congress:(4.) That the authority exercised by the governor had been drawn in question in the highest Court of law of the State, upon the ground that it was repugnant to the

Constitution of the United States; and the decision being in favor of the authority exercised, the case was within the jurisdiction of the Supreme Court of the United States by virtue of the twenty-fifth section of the Judiciary Act of 1789.

§ 260. As a conclusion the four justices were of opinion that the judgment of the Supreme Court of Vermont should be reversed, and that Holmes was entitled to his discharge.

These propositions, with the exception of the first, did not receive the support of the other members of the Court, and the writ of error was dismissed for want of jurisdiction. (14 Pet. 540.)

§ 261. The history of this case is instructive, chiefly, as having led the way to the legal conclusion, and the practical result, as a public policy, that a State cannot of its own. motion surrender fugitives upon requisitions from foreign nations. (Wharton's International Law, Chap. XI. 275.)

CHAPTER XXIII.

BILLS OF ATTAINDER AND EXPOST FACTO LAWS.

ART. 1, SEC. 9, CL. 3.

"No Bill of Attainder or expost facto laws shall be passed."

§ 262. In a few cases State statutes have been treated by the Court as bills of attainder, and in some cases as expost facto laws, although they were not so regarded by the States when the laws were passed.

§ 263. An early case is that of Fletcher against Peck (6 Cranch, 87).

The State of Georgia made a grant of certain Indian lands, by virtue of a statute in which, as the Court found, the State had such a title as to furnish a basis for a grant. Peck, it seems, although not an original grantee, had become an owner, without knowledge of any cloud upon the title.

§ 264. He sold to Fletcher with a covenant that the Legislature at the time of passing the act authorizing the grant "had good right to sell and dispose of the same in the manner pointed out in the act.”

§ 265. After the grant was made and in consequence, as was alleged, of the charge that members of the Legislature that passed the act, had been influenced by promises of interests in the granted premises, the Legislature repealed the law and annulled the grant.

§ 266. These proceedings gave rise to several important rulings and decisions by the Court. Among them these may be cited, viz.:

"The Legislature of Georgia was a party to the transaction; and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power which must find its vindi

cation in a train of reasoning not often heard in courts of justice":

66

That the question of fact whether the Legislature which passed the original act was corrupted could not be brought 'collaterally and incidentally' before the Court;

"That the lands in controversy vested absolutely in the original grantees, by the conveyance of the governor, in pursuance of an act of the assembly to which the Legislature was fully competent;

"That the grant was a contract, the obligation of which still continued;

"That the rescinding act had the effect of an expost facto law. Said the Court, it forfeits the estates of Fletcher for a crime not committed by himself, but by those from whom he purchased. This cannot be effected in the form of an expost facto law, or bill of attainder; why then is it allowable in the form of a law annulling the original grant?""

§ 267. Again, the provision of the Constitution was more fully considered in the case of Cummings against the State of Missouri (4 Wall. 277). The plaintiff in error was a Catholic priest who had been convicted of preaching without having first taken the oath prescribed by the Constitution of the State which required every minister, and many other persons engaged in certain pursuits and professions, to take an oath that in none of many ways specified had they given aid and comfort to the Rebellion or sympathized with those engaged in the Rebellion. For this neglect he was fined five hundred dollars, and for non-payment he was imprisoned.

§ 268. The provisions of the State Constitution were declared to be in conflict with the Constitution of the United States, and void, consequently, and upon the grounds following, viz. :

(1.) As imposing a penalty upon acts which were not punishable when the acts were committed.