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and vexation. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters," the act proceeded to make elaborate and careful provisions for the future. The important provisions of the act may be summed up as follows: That the writ of habeas corpus might be issued by any court of record or judge thereof, either in term-time or vacation, on the application of any person confined, or of any person for him; the application to be in writing and on oath, and with a copy of the warrant of commitment attached, if procurable; the writ to be returnable either in court or at chambers; the person detaining the applicant to make return to the writ by bringing up the prisoner with the cause of his detention, and the court or judge to discharge him unless the imprisonment appeared to be legal, and in that case to take bail if the case was bailable; and performance of all these duties was made compulsory, under heavy penalties. Thus the duty which the judge or other officer might evade with impunity before, he must now perform or suffer punishment. The act also provided for punishing severely a second commitment for the same cause, after a party had once been discharged on habeas corpus, and also made the sending of inhabitants of England, Wales, and Berwick-uponTweed abroad for imprisonment illegal, and subject to penalty. Important as this act was,1 it was less broad in its scope than the remedy had been before, being confined to cases of imprisonment for criminal or supposed criminal matters; 2 but the attempt in Parliament nearly a century later to extend its provisions to other cases was defeated by the opposition of Lord Mansfield, on the express ground that it was unnecessary, inasmuch as the commonlaw remedy was sufficient; as perhaps it might have been, had officers been always disposed to perform their duty. Another attempt in 1816 was successful.4

3

The Habeas Corpus Act was not made, in express terms, to extend to the American colonies, but it was in some expressly, and in others by silent acquiescence, adopted and acted upon, and all the subsequent legislation in the American States has been based upon it, and has consisted in little more than a re-enactment of its essential provisions.

1 Mr. Hurd, in the appendix to his excellent treatise on the Writ of Habeas Corpus, gives a complete copy of the act. See also appendix to Lieber, Civil Liberty and Self-Government; Broom, Const. Law, 218.

198; Wilson's Case, 7 Queen's Bench
Rep. 984.

3 Life of Mansfield by Lord Ca
2 Lives of Chief Justices, c.
sard's Debates, 897 et seq.
4 By Stat. 56 Ge

2 See Mayor of London's Case, 3 Wils. Broom, Const. La

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What Courts issue the Writ.

The protection of personal liberty is for the most part confided to the State authorities, and to the State courts the party must apply for relief on habeas corpus when illegally restrained. There are only a few cases in which the federal courts can interfere; and those are cases in which either the illegal imprisonment is under pretence of national authority, or in which this process becomes important or convenient in order to enforce or vindicate some right, or authority under the Constitution or laws of the United States.

The Judiciary Act of 1789 provided that each of the several federal courts should have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law; and that either of the justices of the Supreme Court, as well as the district judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitment; provided that in no case should such writs extend to prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed to trial before some court of the same, or were necessary to be brought into court to testify.1 Under this statute no court of the United States or judge thereof could issue a habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, for any other purpose than to be used as a witness. And this was so whether the imprisonment was under civil or criminal process.2

During what were known as the nullification troubles in South Carolina, the defect of federal jurisdiction in respect to this writ became apparent, and another act was passed, having for its object, among other things, the protection of persons who might be prosecuted under assumed State authority for acts done under the laws of the United States. This act provided that either of the justices of the Supreme Court, or a judge of any District Court of the United States, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of law, for any act done or omitted to be done, in pursuance of a law

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of the United States, or any order, process, or decree of any judge or court thereof.1

In 1842 further legislation seemed to have become a necessity, in order to give to the federal courts authority upon this writ over cases in which questions of international law were involved, and which, consequently, could properly be disposed of only by the jurisdiction to which international concerns were by the Constitution committed. The immediate occasion for this legislation was the arrest of a subject of Great Britain by the authorities of the State of New York, for an act which his government avowed and took the responsibility of, and which was the subject of diplomatic correspondence between the two nations. An act of Congress was consequently passed, which provides that either of the justices of the Supreme Court, or any judge of any District Court of the United States in which a prisoner is confined, in addition to the authority previously conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign State, and domiciled therein, shall be committed, or confined, or in custody, under, or by any authority, or law, or process founded thereon, of the United. States or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, or order, or sanction of any foreign State or sovereignty, the validity or effect whereof depends upon the law of nations, or under color thereof.2

In 1867 a further act was passed, which provided that the

14 Stat. at Large, 634. See Ex parte Robinson, 6 McLean, 355; s. c. 1 Bond, 39. Robinson was United States marshal, and was imprisoned under a warrant issued by a State court for executing process under the Fugitive Slave Law, and was discharged by a justice of the Supreme Court of the United States under this act. See also United States v. Jailer of Fayette Co., 2 Abb. U. S. 265. The relator in that case was in custody of the jailer under a regular commitment charging him under the laws of Kentucky with murder. He averred and offered to show that the act with which he was charged was done by him under the authority of the United States, and in execution of its laws. The federal district judge entered upon an examination of the facts on habeas corpus, and ordered the re

lator discharged. A similar ruling has been made where a marshal was charged in a State court with murder committed while protecting a Justice of the Supreme Court from an attack. In re Neagle, 39 Fed. Rep. 833; affirmed in U. S. Sup. Ct., April, 1890. See also Ex parte Virginia, 100 U. S. 339; Ex parte Siebold, 100 U. S. 371; Ex parte Clark, 100 U. S. 399; Ex parte Bridges, 2 Woods, 428; Ex parte McKean, 3 Hughes, 23; Ex parte Jenkins, 2 Wall. Jr. 521.

25 Stat. at Large, 539. McLeod's Case, which was the immediate occasion of the passage of this act, will be found reported in 25 Wend. 482, and 1 Hill, 377; s. c. 37 Am. Dec. 328. It was reviewed by Judge Talmadge in 26 Wend. 663, and a reply to the review appears in 3 Hill, 635.

several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.1

These are the cases in which the national courts and judges have jurisdiction of this writ: in other cases the party must seek his remedy in the proper State tribunal.2 And although the State courts formerly claimed and exercised the right to inquire into the lawfulness of restraint under the national authority, it is now settled by the decision of the Supreme Court of the United States, that the question of the legality of the detention in such cases is one for the determination, exclusively, of the federal judiciary, so that, although a State court or judge may issue this process in any case where illegal restraint upon liberty is alleged, yet when it is served upon any officer or person who detains another in custody under the national authority, it is his duty, by proper return, to make known to the State court or judge the authority by which he holds such person, but not further to obey the process; and that as the State judiciary have no authority within the limits of the sovereignty assigned by the Constitution to the United States, the State court or judge can proceed no further with the case.1

1 R. S. U. S. § 751 et seq. See In re Brosnahan, 18 Fed. Rep. 62; In re Ah Jow, 29 Fed. Rep. 181; In re Chow Goo Pooi, 25 Fed. Rep. 77. While in advance of trial in a State court for an offence against a State law which is void under the federal Constitution, a federal court may discharge a defendant, yet ordinarily when bail is granted it will not do so. Ex parte Royall, 117 U. S. 241.

2 Ex parte Dorr, 3 How. 103; Barry v. Mercein, 5 How. 103; De Krafft v. Barney, 2 Black, 704. See United States v. French, 1 Gall. 1; Ex parte Barry, 2 How. 65.

8 See the cases collected in Hurd on Habeas Corpus, B. 2, c. 1, § 5, and in Abb. Nat. Dig. 609, note.

Ableman v. Booth, 21 How. 506. See Norris v. Newton, 5 McLean, 92; United States v. Rector, 5 McLean, 174; Spangler's Case, 11 Mich. 298; In re Hopson, 40 Barb. 34; Ex parte Hill, 5 Nev. 154; Ex parte Bur, 49 Cal. 159 Notwithstanding the decision of Ableman v.

Booth, the State courts have frequently since assumed to pass definitely upon cases of alleged illegal restraint under federal authority, and this, too, by the acquiescence of the federal officers. As the remedy in the State courts is generally more expeditious and easy than can be afforded in the national tribunals, it is possible that the federal authorities may still continue to acquiesce in such action of the State courts, in cases where there can be no reason to fear that they will take different views of the questions involved from those likely to be held by the federal courts. Nevertheless, while the case of Ableman v. Booth stands unreversed, the law must be held to be as there declared. It has been approved in Tarble's Case, 13 Wall. 397, Chief Justice Chase dissenting.

An agent of a State to receive from another State a person under extradition proceedings is not an officer of the United States, nor is his detention of the prisoner so far under national authority that a

The State constitutions recognize the writ of habeas corpus as an existing remedy in the cases to which it is properly applicable, and designate the courts or officers which may issue it; but they do not point out the cases in which it may be employed. Upon this subject the common law and the statutes must be our guide; and although the statutes will be found to make specific provision for particular cases, it is believed that in no instance which has fallen under our observation has there been any intention to restrict the remedy, and make it less broad and effectual than it Iwas at the common law.1

We have elsewhere referred to certain rules regarding the validity of judicial proceedings.2 In the great anxiety on the part of our legislatures to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse.3

State court may not compel him to bring in the prisoner for an inquiry into the legality of his detention; that is, whether the warrant and the delivery to the agent were in conformity to the federal statutes. In summing up the discussion Harlan, J., says: "Subject, then, to the exclusive and paramount authority of the national government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States, or by the commissioners of such courts, or by officers in the general government, acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to inquire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal; and this, notwithstanding such illegality may arise from a violation of the Constitution or the laws of the United States." Robb v. Connolly, 111 U. S. 624.

1 See Matter of Jackson, 15 Mich. 417, where this whole subject is fully considered. The application for the writ is not necessarily made by the party in person, but may be made by any other person on his behalf, if a sufficient reason is stated

for its not being made by him personally. The Hottentot Venus Case, 13 East, 195; Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the application. Cobbett's Case, 15 Q. B. 181, note; Cobbett v. Hudson, 10 Eng. L. & Eq. 318; s. c. 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when in prison.

2 See post, p. 489 et seq.

8 Ex parte Clay, 98 Mo. 578; State v. Hayden, 35 Minn. 283; Willis v. Bayles, 105 Ind. 363; State v. Orton, 67 Iowa, 554; People v. Liscomb, 60 N. Y. 559, 574; Petition of Crandall, 34 Wis. 177; Ex parte Van Hagan, 25 Ohio St. 426; Ex parte Shaw, 7 Ohio St. 81; Ex parte Parks, 93 U. S. 18, 23; Perry v. State, 41 Tex. 488; Matter of Underwood, 30 Mich. 502; Matter of Eaton, 27 Mich. 1; In re Burger, 39 Mich. 203; Ex parte Simmons, 62 Ala. 416; Re Stupp, 12 Blatch. 501; Ex parte Winslow, 9 Nev. 71; Ex parte Hartman, 44 Cal. 32; In re Falvey, 7 Wis. 630; Petition of Semler, 41 Wis. 517; In re Stokes, 5 Sup. Ct. (N. Y.) 71; Prohibitory Amendment Cases, 24 Kan. 700; Ex parte Thompson, 93 Ill. 89; Ex parte Fernandez, 10 C. B. N. s. 2, 37. This

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