concede such a contract to exist, it can extend.no further than the right granted to the patentee under the patent laws. We have already shown that this is not the original or absolute right to make, but to use, and to sell, which is a right not dependent on the the right to be protected against the' manufacture, use, or sale of this product by others without his permission. When the state of Missouri shall pass a law that everybody may and sell oleomargarine, it will probably',impair the obligation of the Mege patent. If it does not, it will certainly authorize the. infringement of his right under the patent, and will be void for that reason. It will be, then, immaterial whether it impairs the obligation of his contradtor not. 3. We are unable to see that it is a regulation of commerce among the several states. [f it can be ·c.alled a. regulation of commerce at all, it is limited ito the internaLcommerce of the state of .Missouri. Being a criminl1.1 statute,tlrel;e isnQ pretense thai;; it can have any operation outside the boul1dary.ofthe state. The person who manufactures or sells the articleioutside .of the state is not liable to the penaLties of law. The statute.does ndt forbidits importation or exportaiion, the bringing Qf it into the state, or .carrying.it out of the state; nor is its use in the strute forbidden to those who choose to use it:even for food. It is only forbidden to manufacture it· or to sell it for food, to take the place of butter for that purpose. FQr all otller purposes it may be made and sold in .the state, and for that purpose, or auy. other, it may be imported or exported without violating the law. If it could be seen that the law was directed by way of discrimination against the product of a. sister state, while no such prohibition existed against the same product in Missouri, or was intended . to prevent buying and selling between the states, or importation and whereby the citizens or the productions of a neighboring state were placed in a worse po$ition in regard to that article than the citizens or the productions of Missouri, the argument would not be without force. Such is the' .doctrine laid down by the supreme court of the United State,s in WOOd1·uJfV. Parham, 8 Wall. 123; and in Hinson v. Lott, ld. 148; and The State Freight Tax Case, 15 Wall. 232; U. B. v. Dewitt, 9 Wall. 41. . . 4. We are next to inquire whether the statute deprives the owner of this product of his property, within the meaning of the clause of the fourteenth amendment which says: "Nor shall any state deprive any person of life, liberty, or property without due process of law." The statute does not, in direct terms, authorize the seizure or taking of any property, not even that whose manufacture is forbidden. The party is not, in fact, deprived of this property by the statute, or by any proceeding which it authorizes. The personal punishment, by fine and imprisonment, which the statute imposes, must be inflicted according to the law of Missouri; which allows a trial by jury, with all the other forms which from time immemorial
IN BE BROSNAHAN.,
have been held to ,be dne process of and the liberty of which the party ,may be deprived, are undoubtedly imposed by due process of law; If it be urged, lts it has in some cases, that the effectloUbe.statute upon the right to. sell the property is suohas to destroyitsvalllei and therefore to deprive the owner of: it, there a.re several answers to the proposition: First, the value of the property can hardly be so affected that the party may be said to be deprived. oflit, while it '!can readily be transported into some other state, and: 'sold without,' restriction; secondly, and conclusively, that as to the pl'odnct made or imported into the state after the passage of the statute, the statute was and must be taken as part of the due process! of law, and deprived the party of nothing which he owned when it was passed, or which he had a right to make or acquire for sale as.food at the time he did so make or buy it. The law in such case did not deprive him of his property. If he is injured in relation to that :property, it is by his own action in buying or making it, with the statlltebefore his eyes. That statute was, as to him and to this property, due process of law, of which he had due notice. Bartemeyer v. State, 18 Wall. 132. His injury or loss, if any, arises out of his determination to defy the law, and it is by the law and its ,mode of enforoement, which, existing at the time, is due prooess of law, that he must be tried. 5. The evidence in favor of the petitioner is abundant, andotthe highest character, to prove that the article which he sells, and which he is forbidden to sell by the statute of Missouri, is a wholesome ar· ticle of food prepared from the same elements in the cow which enable her to yield the milk from which butter is made, and when made By Mege's process is the equal in quality for purposes of food of the best dairy butter. No evidence is offered by counsel for Rucker or for the state to contradiot this, because they say it is wholly immaterial to the issue before the court. A very able argument is made by counsel, whose ability commands our respect, to show that, such being the character of the article whose mannfacture and sale is forbidden by the statute, the legislature of Missouri exceeded its, powers in passing it. It is not so much urged that anything in the con· stitution of Missouri forbids or limits its power in this respect by express language, as that the of such a power in regard to 'a, property shown to be entirely innocent, incapable of any injurious results or damage to public health or safety, is an unwarranted invasion of public and private rights, an assumption of power without authority in the nature of our institutions, and an interference with the natural rights of the citizen and of the public, which does not come within the province of legislation. The proposition has great force, and, in the !lbsence of any presentation of the matters and circumstances whichgoverriedtbe legislature in enacting the law, should have difficulty in is unsound. Fortunately, a8 the case before us stands, we feel very clear that, even if well founded,
this objection to the statute is one which we cannot consider in this case. As already stated, when a writ of habeas corpus is issued by the circuit court in behalf of one in custody of a state officer, under judicial proceedings in state courts and under state laws, the only inquiry we can make is, whether heisheld in "violation of the constitution, or ofll. .law of congress, or·8. treaty of the United States." The act in question may.be in .conflict with the c.onstitutiqn of the state, withou,t .violating the constitution,or any law 0.11 treaty of th e United States. It may be in ex.cess of the powers which. the people (jf Missouri have cOhferred on their legislative body, and therefore void,;without infringing any principle found in the constitution, laws, or treaties of the United States. We have, in the four objections to this statute first considered, examined all the points in which,it is supposed to conflict with the constitution and laws of the United States, and we know of no others, .and no others haye been suggested. The proposition now under consideration, if well taken, is one for the consideration of the state court when this case comes to trial. It is, in a habeas corpus case in the federal courts, ex.cluded by the ex.press language of the ute conferring jurisdiction in such cases. This court does not sit here clothed with full and plenary powers either of· oommon law or of criminal jurisdiction. Its .criminal jurisdiction is still more limited than its jurisdiction .at common law and in chancery. It has, in common with the district court,. jurisdiction of all offenses against· the statutes of the United States. Such is not the case before us. Section 753 goes further, and authorizes. the court to issue writs of habeas corpus in all cases where a. person is incustodyin violation of .the laws of the United States, including its constitution and its treaties. .The prisoner in this case is not prosecuted fora' crime or offense against the United States.. We have, ther&fore, no general jurisdiction of the case. We have enueavored to show that while held under a law of Missouri by Missouri officials, it is not in violation of, it is not forbiilden. by, the constitution, or any law or treaty of the United States; and the act of congress, under which alone. we can exercise the specialpower of issuing writs of habeas corpus, permits us to go no further. The return of the Rucker, to the writ is sufficient, and the prisoner must be remanded to his custody; and it is so ordered.
§ 1. PRET"IUINARY. It is proposed in this note not to discuss what is laid down in the principle case, but to give.an outline of the jUrisdiction and practice of the federal courts in the use of the writ of habeas corpus, and to show the growth of that jurisdiction.
§ 2. JURISDICTION OF ..TILE SUPREME COURT.t It is proper to state in the outset that the jurisdiction of the supreme court of the United States to issue this writ, and hear and determine causes of detention thereunder, is not d& rived from the acts of congress, but from 'the constitution itself, the ugh by the terms of the constitution it is subject to regulation by congress. This grant of jurisdiction is found in section 2, article 3, of the constitution, which enumerates the cases to which the jUdicial power of the United States shall extend, pl'Ovides fOI the exercise of an original jurisdiction by the supreme court in certain cases, and then recites that .. in all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress make." Now, the original jurisdiction with which the supreme court clothed by this article did not embrace the use of the writ of habeas corpUs.,' This court nevertl1eless illsues this writ as an incident of, and means of, giving effect to its other jU1'isdictionj, that is to say, in tbHlimited classes of cases where it has original jtti'isdictiqp,.aIl in cases affecting aIllbassadors, other public'ministers, and consuls; 0'; tl1!>se in which a state is a party, it may undoubtedly, if the circumstances it, exercise and effectuate its original jurisdiction by mean!:! of tl1is writ. It is supposed that if aforeign ambassador were un\\lwfully restni.ined of ,his liberty within the limits of the United States, the supreme court of, tile United States could, in the exercise of its original jurisdiction" in all cases affecting amlJassadors," enlarge him upon habeas COlpUS. But of this limited class of cas(js in which it has original jurisdiction, it cannot issue this writ when the issuing of it woutd involve an, exercise of original jurisdiction. ,Thus, it cannot issue it at the suit of an alien to obtain ,the custody of an infant child,2 nor can it, it is supposed, in cases of arbitrary arrests without legal process by military officers of the United States. From this it is seen that this wdt is chiefly used by this court as an incident of its appellate jurisdiction. It is regarded as a writ in the nature of a writ of error, to be used to the regulations prescribed by cOI)gress,and to the, general principles of law, in enlarging persons who are res,traineq of their liberty lJy the inferior federal judicatories, when acting in excess of their Accordingly, it has been held by this court that it has power to issu\l writ in every case where a person is in jail under the warrant or order ofanotl:16r court of the tr rijted States.4 This power was exercised as eal'ly ,as in a case where the jUdge for the district of Pennsylvania had co'mmitted a person to jail on a charge· of treason without any proper The supreme court on habeas corpus admitted him to bai1.6 In a later ,case the same court, by its writ of habeas corpus, aided by its writ of certiorari, reviewed and reversed a jUdgment of the circuit court of the United Sta.tes for the District of Columbia remanding a prisoner on habeas C01P1t8. 6 In a more celebrated case a similar use was made of thfs writ. Two persol1s had been committed 011 a charge of complicity in the treason of Aaron Burr, by order of the circuiteourt of the United States for tne District of Columbia.7 Again, proceeding by habeas corpus and certiorari, the supreme court of the United States discharged the
1 As to the appellate JUrisdiction of the supreme court In habeas clJt'11lU cases commenced In the' Inferior federal conrta, see po.r, lB. 2Ex parte Barry, 2 How. (li. S.) 65. 8Consolt opon this point t;x parte Siebold, 100 U.S.371; Ex parte BolIman,4 Crunch, 100; Ex parte Watkins,3 Pet. 193, 202; S. C. 7 Pet, &6B; Ex parte Wells, IB How. (U.S.)307, 328; Ableman v. Booth, 21 How. (U; S.) 506; Ex parte Yerger, B Wall. B5; Ex parte McCardle, 7 Wall. 506 j Durousson v. U. S. ti Crauch, 31i j WIRcart
v. Dauchy, 3 Dall. 321; Ex parte Hamilton. Id. 17; Ex parte Burford, 3 Cranch, 448; Ex parte Milburn, 9 Pet. 704; Matter of Metzger, 5 How. (U. S.) 176; Matter of Kaine, 14 How. (U. S.) 103. 4 Ex parte Bollman, 4 Cranch, 75; Ex parte Kearney, 7 Wheat. 38; E:I: parte Yerger, 8 Wall.B5. 5U.B. v. Hamilton, 3 Dall.17. 5 Ex pRrte Rurford, 3 Cranch.448. fU. S. Bollman, 1 Crauch, C. C. 373.
prisoner, at} ,the groun(1bhatthe commitment of the circuit court wa.s not warvallted inJaw. 1 It was held by the supreme court of the United States, in 1840, upon an equal division of the justices, which therefore prevented affirmative action, that under, ,the twenty-fifth section of the judiciary act 2 that cOllrt had no jurisdiction QfJ1 writ of error to a state court to revise its decision upon a writ .pf habeas cO'l'pus, remanding a prisoner to the custody of the sherifi', to be delivered under a warrant from the governor of the state to the authorities of a foreign country, thereto. be tried for an alleged murder. 3 In subsequent this court has asserted and beneficially exercised a jurisdictiOn to review, its writ of error, decisions rendered by the highest courts of the states in proceedings by habeas corpus, where federal questions are involvecl.4 HISTORY OF TFIE FEI?ERAL STATUTES. There are four statutes regulatmg the use of the writ,of habeas corpus by the federal courts and judges. 'fhe first is founel in' the fourteenth section of the jUdiciary act of 1789,'; This provides that the writ shall 'lnno case extend to prisoners in jail, unless where they are in custody under or' by color of the authority of the United States, or are committed for trial lJeforesome court of the same, or are necessary to be brought into court to testify. This provision obliged the courts of the United States to stay their hands'in the use of this writ in every case where it should appear that the prisdner was held under state process, although the proceedings um:j.er which he was held were absolutely void. It was intended that the judges of the federal courts should have no snperintending control whatever over state jUdgments or state pl'ocess in the use of this writ. The second statute was the act of 1833, which, at the time of its passage, w3sgenerally known as the "force bill." 6' It was adopted in consequence of the nullification ordinance of South Carolina. Its primary object was to protect the revenue officers of the government from state process while carrying out the acts of congress. It extended the use of the writ to persons in _custody for acts done in pursuance of a lawof the United States or of a jUdgment of any of its courts. Aimed, in the first instance, at . those who sought to nullify the laws of the Union in Sonth Carolina, it came, 20 years lateI', into use in cases where officers of the United were arrested under state process for carrying out the provisions of the fugitive slave law of 1850. .The third statute in this category is the act of 1842.7 'fhis grew out of the complications of the case of McLeod and the Canadian rebellion of 1837.'fhis act extended the writ to foreigners acting under the sanction of their own government. It was called into existence by the necessity of preventing a single state from interfering with our foreign relations, by indicting and trying for murder a British subject for acts done as a belligerent, which indecent usurpation of jurisdiction a court of the state of New York had taken UpOll itself. s 'fhen cam'e our late civil strife, and out of this grew the necessity of protecting those ,Who claimed the benefit of the national laws. Accordingly, congress passed in 1863 an act brietly alluded to hereafter; and later, by the act· of February 5, 1067, extended the writ to "all cases i'here 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," and made the writ issuable by the.' several courts of the United States and the several justices and judges of said courts within their respective jurisdictions." 9 All of these statutes are condensed in section 753 of the Revised Statutes of the United
1Ex parte Bonm3ll'. (commonly cIted ". the' ca.e of Bollmall &i Swartwout,) 4 Crauch, 75. 21 St. at Large, 85. 3 Holme. v. Jen nl.on, 14 Pet. 540. 'Ablemnn v. Booth, 21 How. 506; Ex parte Tal'ble, 13 Wall. 307. 61 St. Rt Lnrj1:e, 82. 6 Act of MRrch 2, 1833, c. 57; 4 st. at Large, 632. 75 St. at large. 539. 8People v. McLeod, 1 Hili, (N. Y.) 377. V14 St. at Large, 385.
States. It may be said of them gen'eriiIIy; and especially of tJle last, that U;llY have the effect greatly to enlarge the jurisdiction: of the ,courts 'and jUdges of the United States in the use of the writ of habeas corpua..Tb;ey'have removed the impediment to its use which formerly existedalld whlch wasJmposed by the act of 1789, where a prisoner was,committedunderstate authority, provided his imprisonment is contra,ry to the constitutiQn of, ,the United States or treaties with foreigll' nations, or, the laws,of congress.! § 4. UNDERTHE'JUDICIARY' ACT OF 1789. The jUdiciary act of 1789, after prescribing the jurisdiction of the district andeircuit courts of the United States, and that of the supreme court, contains' the follOWing section: "That the before-mentioned courts of the United States shall have power to issue writs ofscil'ej'acias,habeas carpus, 'and all other writs not specially provided for by whicbthaybe necessary forthe exerciseo! their respective jurisdictions :ilM,llgreeabletothe principles and of lawi 'And that either. cjf .the j-qstices of the su!:,reme'court, as well as the jUdges of the district courts, shall have power to'gT.trit writs of habeas C01-pUS (or the pur-' pose of an inqulryil'1to the cause otcommitment: provided, that writs of habeas, COl'pus shall In no to ptisollers' in jaB, unless where they are in custody under or :t>r.colOi' ofthe'authprity of the, "United States, or are committed for trial before sonie court of the same, 01' are ttecessliry to be brought into court to testify,'12 For more thaI} 40year8 the jurisdiction of the federal courts in tbe use of the writ of 'habeanJ01'pus was' regulated solely by this statute. Under it, not only dr<mit courts of the United' States, but also the judges thereof, were authorIzed t<;dsst}e this writ for the purpose of inq,uiring into causes of cOmniitment, and, except in 'cases where the privilege of the writ suspended, to hear and determine the question whether the<patty was entitle!! to be disCharged.s Theus!! of the writ given by this statute exof the authority of the tends to all cases of an illegal detention under United States.4 It enables a cirCUit court 01 the United; States to inquire into the juriSdiction of a court martial tlonvened undertlie"authority of the United States, by which a: person hasbeen tried for an alleged miI'itary offense,5 Where it appears on return toll. ltabeas corpus thus issued bya judge of a federal court, that the prisoner :is held under an execu'tion of one of the national courts, under, a valid judgment, the court nevertheless has power to discharge him, fot any matter 'arising subsequently to tbe jUdgment, which may inlaw entitle him to his discharge. Theoourt may; therefore, discharge him if it appear that he has been pardoned by the president.6
certiora7'i, is used by the circuit courts of the United States to review the proceedings of commissioners of those courts when acting as examining ,magistrates,? and also when acting by special appointment of a court 'of the United States, in a proceeding for the extradition of a fugitive from the justice of a foreign country, under the act of August 12, 1848, § 8. 8 This:IJractice is an1 Ex parte Bridges, 2 Woods, 428. 89 St. at Large,302 et seg,; Rev. St. § 5270 et 2Act of September 14, 1789, (1 St. at Large, 81.) seq". The following are some ofth"eeaResln which 8 Ex parte Milligan,4 Wall. 2, 110; Ex parte the writ bas been thos used: Re Veremaltre, 9 N. y, Leg. .129; Re Kaine, 10 JIf. Y. Leg. Qbs, Bollman, 4 Crancll, 76. 'ReWlnder,2 Clllf. 89; parte Merryman, 267; Re Hellbronn,12 N. Y. Leg. Obs, 65; Ex Tnney" Dec. 246; lIfatter of McDonald, 9 Amer., ' parte Kaine. 3 Blatchf. 1; Ex parte Van Aernam, Law Re(/;. (0. S.) 661. 3 Blatchf. 160; Re Henrich, 6 Blatchf. 414; He 5Barrett v. Hopkins, 7 Fed. Rep. 312. Com· Farez,7 Blntchf. '34; S. 0, Id. 346; Re MaeDon. pare Wise v. Witllers, 3 Cranch, 331; Dynes v. nelI,l1 Hlatchf. 79; S. C. Id. 170; Ex parte Van Hoven, 4 Dill. 414 ; Ex parte Lane, 6 Fed, Rep, Hoover, 20 HoW. (U, 1'1) 82, SGreathouse's Case, 2 Abb. (U. S,) 382, before 34; Re Fowler, 4 It'ed, Rep. 303; 8. C. IS Blatchf. HOFFMAN, J. 430; He Stopp, 12 Blatch!. 601. 7Re Leszynsky, 26 Int. Rev. Rec. 71.
§ 5. REVIEW UNDlllRTIUSAoT OF PROOEEDINGS trNITED STATES COMMISSIONERS. The writ of habeas corpus, in connection with the writ of