Walrond, U. S. Atty., for the Indian country, in opposition.
PARKER, J., (after stating the}actB as above.) This court has no jurisdiction, by writ of error or appeal, to pass even on the of the court at Muskogee. By such means it would have no right to inquire into the cause of imprisonment of a party restrained of his liberty, no matter how illegal such restraint might be. But if the illegality of restraint grows out of a sentence imposed, or any order of imprisonment which the court could not make for want of jurisdiction, the want of jurisdiction may be inc!uired into by this court by a habeas corpus proceeding; and:upon the hearing of such a case the court, or any judge thereof, may make such inquiry as is necessary to enable it to see whether the jurisdiction of the court has been exceeded, or that there is no ,authority to hold the petitioner under sentence. The court may grant this great "writ of right" in every case where a party is restrained of his liberty anywhere in the territorial jurisdiction of the court, against the constitution and laws of the United States, or the petitioner is deprived of his liberty without due process of. law. This may be so done 1>y an order or proceeding of a state court, or any United States court, or_ a person outside of a court; and if so done in the territorial jurisby diction of a United States circuit or district court, such courts, or any j1,1dge thereof,may', upon proper application, issue a writ of habeas corpus to inquire into the jurisdiction of a court, or the want of authority in such court, to restrain a party of his liberty. The jurisdiction of the circuit and district courts within their territorial jurisdictions to issue this writ is the same as the supreme court of the United States within its territorial jurisdiction, which is the whole United States. When the supreme court will review the proceedings of an inferior court by habeas corpuS, a United States circuit or district court has the pdwer,within their territorialjilrisdictions, to inquire, in a case where a . party is restrained of liberty by the order of a court, whether that court had jurisdiction to make the order, or had authority to restrain the party Of his liberty. The state of case which must exist to warrant the invocation of this writ is clearly settled in Ex parte WilBon; 114 U. S. 421, 5 Sup. 935, and the numerous authorities there cited. All these authorities give to the courts having jurisdiction the right bj habeas corpus to inquire whether the court restraining the party of his liberty has jurisdiction to do so. The court, in its inquiry to ascertain the existence of jurisdiction, will look into so much of the proceeding as will enable it to determine whether jurisdiction exists or not. Ex parte Lange, 18Wal1. 163; Ex parte Parks, 93 U. S. 18. It was claimed in· argument that· each court is the judge of its own jurisdiction. That is true to a certain extent. But'it cannot so adjudge its jurisdiction as todaprive 8 person of the right j by habeas corpus, to ask a court having jurisdiction to issue the writ to make inquiry to see if there has been a rightful exercise of jurisdiction. This is sufficient on the motion to dismiss the proceedings in these cases for want of jurisdiction in this court to issue the writ.
EX PARTE FARLEY.
The cases of James Farley and Robert Wilson, who petition for a writ of habeas corpu8, are exactly alike as far as the question of jurisdiction is concerned. They were charged by an indictmentfound by a grand jury impaneled by the court at Muskogee with the crime of larceny. Jurisdiction in a court to try a case means jurisdiction over the place, the person, and the subject-matter. That there may be a subject-matter there must be an act that is a crime, and this act must be properly and legally presented before a court. These petitioners were tried and victed upon an indictment, and sentenced to jail upon that conviction, where they now are. As far as these two cases are concerned, it will be sufficient to inquire whether the indictment against them was legally found, as they were charged in no other way than by indictment. The first question is, was the indictment in the case of Wilson and Farley legally found; that is, was the grand jury that found it a legal body? Has the court at Muskogee the power to impanel 8 grand jury? If it has not such power, the grand jury that found this indictment was an ' illegal body, and it had no power to accuse anyone by indictment. All courts of the United States, whether they be the supreme court of the United States, circuit courts, district courts, United States territorial courts in the territories, or the court for the Indian Territory, established' by the act of March 1, 1889, are creatures of the constitution, and the statutes passed in pursuance thereof, and they have only such jurisdictional powers as are conferred by the constitution or by statute. Has the court at Muskogee the power to impanel a grand jury? If it has not this power, there -was no subject-matter properly presented in the case of Farley and Wilson upon which the court could proceed to try them. It must get this power from the statutes of the United States. It has no such inherent power, because it is a court created by a statute of the United States. All of its powers, 8S fundamental as that of ill'l..i paneling a grand jury, must be found in the statute law of the Uliited States, or they do not exist. Then this right of the court at Muskogee to impanel a grand jury mU!lt be found either in the act of congress of March 1, 188\), creating the court, or it must come from some other statute of the United States. The reading of the act creating the court shows an entire absence of any provision for a grand jury. This was' no mere oversight in congress, as Mr. Culberson, chairman of the judi. ciary committee of the house of representatives, when, on February 28, 1889, presenting the final conference report of the two houses to the house of representatives, on the subject of the bill providing for a grand jury, said: "As the court is limited in its criminal jurisdiction to offenses below the grade of felony, no grand juries will be needed, and none are provided for." Congressional Record, vol. 20, p. 2459. This is the language of one of the law-makers; the language of the gentleman who, as chairman of the judiciary committee of the house, had charge of the bill in that branch of the law-making power. The statements of those who had charge of the law, made to the legislative body passing it, as to its.mt:aning and purpose, are always competent. This statement as tQthe power conferred is fully borne out by the act itself. Unless there
is,irn ithis, act eJl:press provision for a gtandjury , the court does not have, j)f it, the. power to impltnel one. There is no express power in the law· creating the court· . Does the court have that power by the general law of the United States? The only general law upon the subject of grand juries is found in sections 808 and S10 orthe Revised Statutes of t11e United States. Section 808 provides that "every grand jury impaneled before any district or circuit court: shall consist of not less than sixteen nor more. tban twenty-three persons. * * *" .The remainder of the section provides a method for filling up the panel when a sufficient· number do not attend, or where a challenge is sustained to the panel. Seation810 provides, when a grand that it is jury shall be summoned to attend any circuit or to be done when. ordered by one of the judges of the circuit court, or the judge of sl,lch district court. These two seotions are the only two in the E,evised Statutes wh.ich Pllovide for a grand jury. It will be observed that the language of section 808 provides Jor impaneling a grand jury before a district or circuitcourt,and section 810 confines the summoning of a, grand jury to a circuit or distriot court·. These words, "circuit $nd district," as words of description, certainly have a meaning, and as tSuah words they become words of limitation used to limit the character of the courts in which grand juries may be impaneled to the oourts established by the laws orthe United States, and by such laws named as circuit and district .courts. The supreme court of the United States, in Reynolds v. U. S., 98 U.S. 145, says: "Section 808 was not designed to regulate the impaneling of grand juries in all courts wl;tere Qffenders against the Jaws of the United States could be but only in the circuit and district courts." This is an interpretation by the highest tribunal of the land of the D;leaning of the section which really needed no interpretation, as its meaning is manifest from its language. Then, unle&a the court at Muskogee is a circuit or district court of the United States, it does not have the power, under the Revised Statutes, to impanel a grand jury. It is hardly necessary to add that it is neither. It .is a court of the United States. but it is not a district or circuit court. The tenure of the office of its judge shows that, as he holds his office but for fOUf years, while the tenure of the circuit and district judges is, as provided by the constitution, during good behavior, the court is not a circuit or district court. The nature of its civil jurisdiction, as conferred by theaet of March 1, 1889, also shows its character to be other than tha.t of a circuit or district court, for civil jurisdiction is conferred by that act uponthis court that congress, under the constitution, cannot confer on a.circuit or district court of.the United States. Then the Muskogee court 9,oes not have the right to impanel a grand jury as an inherent right. by virtue of its being a court.' It does not get it from the law of its creation. It does not getit from the Revised Statutes, or any other statute. C9nsequelltly it haa no, such right. Not having such right the grand jury impaneled by it.was an illegal body, and its charging persons with <;l'itne by indictment or,information would be simply a nullity. A per·
EX PARTE :u'ctUSKY.
son convicted and sentenced to imprisonment upon such an indictment would be illegally convicted, and illegally restrained of his liberty, and consequently would be held in custody or deprived of his liberty contrary to the constitution and laws of the United States. He would be restrained of his liberty without due process of law. When the fifth article of the amendments to the constitution provided, "no perl:lon shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," it meant a grand jury which was a legal body,-one impaneled by a court which had legal authority to so impanel it. When it appears to a court having jurisdiction to issue the writ of lw.beas corpu8 that a petitioner for the same is restrained of his liberty contrary to the constitution and laws of the United Sta,tes, the, writ one of right, belonging to the citizen, and a cC!urt has _no rigot to refuse it to him. The court can exercise no discretion against issuing it, but it must go as a matter of right. To my mind the above views are decisive of the cases of Farley and That they are held in custody without due process of law there c,an be no question, and con$equently they are restrained of their liberty contrary to ,the constitution and laws of the United States, and theref()re the of habeas corpus has become a writ of right, and the writ to bring thembefore the circuit court this district must be issued; and it is so ordered.
Oircuit Oourt,D.Arkansas. October 14, 1889.)
L INDIOTJQ:N'1' AND INPORMATJON-U"NITBD
STATBS LAws-!NJ'AlIotJs OJ'J'BlfSBo Under the laws of the United States, an infamous crime is one for which thelltatutes authorize tbecourts to award an infamous punishment. Its character for 'being infap:lous does notdependon.wbether the punishment, ultimately awarded is an infamous one, but on whether it IS in the power of the courts to award an infamous punishment, or whether the accused is in danger of being llnbjected to an infamous punishment.
labor is of the prisoners, is an infamous punishment, and a crime which 'may be so pul1ished is'an infamous crime.
to a penitentiary where, by the rules of the prison or the laws of the state,
At the present day, sentence of imprisonment, either with or without hard labor,
Larceny, under the laws of the United States, is an infamous crime, all() as such a party l;llust, by article 5 of tbe I10mendments to the constitution of the United States, beooargea with the otrensB 'by indictment or presentment of a grand jilry, and cannot be legally charged by information.
" ' ,
The indictment or presentment is necessary to 'give the cOurt jurisdietioJl, and without one or the other the court has no jurisdiction to ,tri. ' " L S...._RiGllTiTO BE CHARGBD BY INDICTM:ENT-WAJVBR. , right to be charged byindictment or presentment is a fun(}amental right of 8 party, whioh cannot be waived by-him so as to deprive such party of ,afterwards Betting up the want of jurisdiction in the court to try him.
In a criminal proceeding against a party he may waive certain things, but he cannot waive a fundamental right afrecting the very jurisdiction, of the court to try him. And, even though he may have attempted to waive such right, in a case where he bas been found guilty and is imprisoned, be may sue out a writ of habeas corpus, and obtain bis release, because he ,has been tried and convicted without due process of law, and against the constitution and laws of the United States.
(Syllabus by the GOUl't.)
On application for habeas corp'U.8. These cases are alike, and they will be considered together. The petitioners state that on the uay of September, 1889, an information was filed against them in the United States court for the Indian Territory, by the district attorney for the Indian territory, charging them with larceny; that said petitioners were afterwards arraigned before the said court; and that they then and there pleaded guilty to said charge; that afterwards judgment was entered on said plea of guilty, and by said judgment said McClusky was sentenced by said court to imprisonment in the jail at Muskogee, for the period of six months, where he now is; 'andsl1id Kittie Brown was sentenced to the reform school at Washington, D.C., but, at the time of the filing of her petition fora writ, she 'was incarcerated, in the jail at Muskogee. Each petitioner in ,his and her petition fOf the writ of habeas corpus, restraint of liberty, con'trary to the constitution and laws of the United States, and upon that ground they pray the issuance of writs of habeas corpus, that they may be brought before this court" and relieved of their illegal imprisonment. M. M. Edmiston and Wm. H. H. Olayton, U. S. Atty., for petitioners. Z. T. Walrond, U. S. Atty., for the Indian country.
PARKER, J., (after stating the facts as above.) The first question is, could these petitioners be pronounced guilty of the crime of larceny, and sentenced to imprisonment for said crime, without being first charged with the crime by an indictment preferred by a legal grand jury? Second. If this is a fundamental requisite, is the right to insist upon its being complied with ope that may be waived by a party, and is it waived by a,plea of guilty to a charge oflarceny presented by an information? r Article 5 of the amendments to the constitution provides that II no pershall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury." Is larceny an infamous crime? In Ex parte Wilson, 114 U. S. 426,5 :Sup. Ct. Rep. 935, the supereme conrt says: '''The question is whether the crime is one for which the statutes authorize the court to award. an infamous punishment, not whether the punishment ul',timately awarded is an infamous one." In Mackin v. U. S., 117 U. S. 352, 6 Sup. Ct. Rep. 777, the supreme court says: I "We cannot doubt that at the present day imprisonment in a state-prison or penitentiary, with or without hard labor, is an infamous punishment. It ,is not only so considered in the general opinion of the people, but it has been as such the legislation of the states and territories, as well as of 'congress. tI ' ' ,
It is not necessary, to make a punishment infamous, that the law shall rt:lquire that the party should in terms be sentenced to hard labor. under the law, he may be sentenced to a state-prison or penitentiarYl either with or without hard labor, his punishment is infamous. So says, in eft'ect, Ex parte Wilson, BUpra, and so says, expressly, Mackin v. U. S.t 8upra. And why is not this a reasonable construction, when it is a fact of common knowledge that, by the laws and rules governing all stateprisons and penitentiaries, hard labor is exacted of those who are sen:tenced there, and the supreme court, in FJx parte Karstendick, 93 U. S. 396, that all United States convicts are subject to the same discipline and treatment as convicts sentenced by courts of the state? The punishri1ent is no less infamous when the convict may, under the law, be put to hard labor in the prison, although not in terms sentenced to it, than when the sentence, in obedience to the law, sets it out. The punishment is equally infamous in both cases. When the accused is in danger of being subjected to an infamous punishment, if convicted, the crime of which he is accused is an infamous crime. 114 U. S.417;,5 Sup. Ct. Rep. 935; 117 U. S. 348, 6 Sup. Ct. Rep. 777 j U. S. v. Tad, ,25 Fed. Rep. 815. When is he in such danger? Why, in every case where the court, under the law, might sentence to a state-prison or pen:itentiary. Section 5541 provides: "In every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the sentence is passed may order the same to be court by which any state jail or penittlntiary within the district or state where suchcourt is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose. " .. Section 5546 provides that"All persons who ha,:e been, or who may hereafter be, convicted of crime, by allY court of the United States, whose pllniRhment is imprisonment in a district or territory whete at the time of conviction there may be no penitentiary or jail suitable for the confinement of convicts, or available therefor, Shall be confined during the. term for which they may have been or may be sentenced in some suitable jail OJ' penitentiary in a convenient sta,te or territory, to be designated by the attorney general." Of courSe, when so designated, it becomes the duty of the court to sentence the prisoners to the place so designated. The only difference between these two sections relates to the class of cases where the judge may designate the place of imprisonment, and the class where the attorney general may designate such place. The attorney general may designate the place of imprisonment in all cases where there is not a suitable jail or penitentiary for the confinement of prisoners in a district or territory where they may be convicted. Suppose the judge would, in a case where h& can designate, fail to designate a state jail or penitentiary, and send the parties, 8S he has done with McClusky in this case, to a local jail, would that take away the infamous character of the offense? If this were so, the same act might be an infamous crime in one district and not an infamous criPle in another; its character depending on thejudgea