IN RE BROSNAHAN.
78
which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." 1 The true meaning of this clause seems to be that whenever the United States is owner of the land which it uses as a fort, etc., the legislature of the state in which such land is included may permit congress to ,exercise exclusive jurisdiction over it., )Vhere the United States, owning land for the purpose of a military fort within one of its territories, by an act of congress, erects such territory into a 'state,without making any reservation of exclusive jurisdiction to the United States within the limits of the land which it thus holds for the purpose of a military fort, politi. cal jurisdiction over such land passes to the state thus created. 2 But if the legislature of such state subsequently;' upon a suggestion of the federal secretary of war, passes an act ceding exclusive jurisdiction over 8\1ch military reservation to the United States, the act will be effective to vest in the courts of the United States jurisdiction of crimes 'eommi,tted within such reservation, although such jurisdiction has never been fonrially and exp'te'ssly assumed by an act of congress. Reasoning thus, it was' held by Mr. Justice MILLER that a person committed by, a commissioner of the the United States to answer for a crime committed witl1in the lpilitary res'ervation' of Fort Leavenworth, was not entitled to be discharged by habeas corpus. 3 It has also been held that /lfter 'It 'state has peen admitted into ,the Union, 'the fact that within its bounda'ries there is Ialllf, thEi fee' ofwhieh is in the United States, 'which lsset 'apart' as an Indian reservation, is not of itself sufficient to give to a court oHhe Uhited States jurisdiction to try a person for a murder committed within the limits of such reservation. Accordingly, a prisoner held under an indictment in the United States circuit court for the district of Nevada, for a murder alleged to have been committed" at and within the boundaries of the Moapa Intlian reservation of thi'lJUnited States Of A,ri1erica, in the district aforesaid;" was entitled to be discharged 'on habeas COlopUs. 4 On the other hand, by the very terms of the constitution, the jurisdiCtion which is acqUired. by the United States by the cession by a' state of land for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings, and by the acceptance ,of such cession by congress, becomes, by strong inference from the terms of the constitution, an "exclusive" jUdsdiction. It be· comes subject to the "exclusive legislation", of congress; and, though the courts of the several states are bound by the laws of congress as part of the supreme law of the land, and though it is no donbt competent for congress to vest in the state judicatories the power to hear controversies arising under the laws of the United States, and eompetent for tbose judicatories, in the exercise of a comity, though not in pursuance of an obligation, to, assume the exerciseof such power; 6 yet congress has committed' the jurisdiction of crimes within these places exclusively to the federal tribunats, by, enacting that ,. the jurisdiction vested in the courts of the United States, in the causes and proceedings hereafter mentioned, shall be exclusive of the courts of the several states: 1. Of all crimes and offenses cognizable under the authority of the United States." 8 I t is accor.dingly held that federal jurisdiction of crimes committed within the limits of a navy-yard of the United States is exclusive of the state in which such navy-yard' is situated, and that a al:rested by state process, on charge of a crime committed within such limits, is arrested in violation of the laws of the United States,within the meaning of section 753 of the nevised Statutes, and is entitled to be discharged -upon habeas corpus by a court of the United States.? ' lOonat, U. S. art. 1, 19. 2U, S, v. Stahl, Woolw. 192, 3Ex parte Hebard, 4 Dill. 380. 'Ex parte Sloan, 4 Sawy. 330. 6The Ilriti.h Prisoners. 1 Woodb.& M.O.C. 70, Prigg v. Pennsylvania, 16 Pet. vag, 608. a ACt Sept. 24, 1789.0. 20, 119 and 11; 1 st. at Large, 76, 78. The language above given Iii as the law now stands In the :allT: St. U. S. at I 711, parte Tatem, 1 Hughes, 688.
7;4
FEDERAL REPORTER.
§ 8. STATE PROSEOUTIONS, FOR AOTS WHWrr ARE EXOLUSIVELY OF FEDERAL ,The provision of the Revised Statues of the United Stl;1tes has been already pointed ont, which vests in the courts of the United States a jurisdiction, exclusive of the ,courts of the several states, "of all and offenses cognizable under the authority of, the United States." 1 1t seems to be established;, that congress may exclude the jurisdiction of the courts of the from offenses Which are within the power of congress to punish. 2 Many cases might, however, be cited where convictions by state tribunals of offenses the power, o,f congress to punish have been upheld. 3 These decisions have proceeded generally upon tbeground that had not exercised the power of provjding.. the punishment of the partIcular offense. When exercises. this power the exercise of it is understood to e-"clude the power of the state to provide such punishment, unless sUl:hpower is reserved to the state by the act of congress. 4 The prOVision of the Revi,ed Statutes of the United States, above quoted, in not found in the same distinctive form in any previous federal statute, though the substance of it is drawn from sections 9 ,and 11 of the judiciary act of 1789." It has been supposed by a learned federal in a recent case to have been framed ex industria, and to have been placed in the Revised Statutes,no,t merely for the purpose of excluding. the jurisdiction of all other courts, federal as well as state, except as otherwise. providad, whiqh was the substance and of the provisions of the judiciary act, but for the expresspllrpose of excluding the jurisdiction of the courts of the st,ate. 6 It has been accordingly held by the federal COllrts at circuit that wher6c It person is in a state court of federal cllgnizance, ,he may Qe discharged for an offense whi<;lh is an from imprisonment l1uch prosecution either before or after conviction; the federal proceeding upon the ground that thll/statecourts have no jurisdiction. It was so held where the state prosecqtioll was for passing, counterfeit national bank b,ills. 7 It was likewise so held where the state pr.osecution' was perjury, which perjury was a federal tribunal. a 9. CONTESTS FOR THE CUSTODY OF' ClIILDREN.There is a difference of opinion as to whether the writ of habeasaol'pus may bllused in the federal courts in cases of contest touching the custody of children, where the parties claiming such custody are residents of ·different states. It was held by Mr. District JUdge LEAVITT in the southern distrietof Ohio, in 1858, that the federalcourts have not jurisdiction to mak-esuch a use of this'writ. The ordinary jurisdiction of the circuit courts of the Unitew States; under section 11 of the judiciary act of"1789,9 did not, extend to such a controversy; for the matter in dispute had no value which' could in money; and, as it was not a case withtn the ordinary jurisdiction of such courts, it was not a case where the writ of·habeastol'pttS could be' issued 'asamillary to any other fed. ' \
,
.
1 Rev. St. V. S.! 711; l. 21 Kent, Comm, ,1139; Houston 'I'., Moore. Wheat. I; The MO!iQ8 T.nylor,4 Wall.411;lIfnrtln Hunter. 1 Wlleal:304;Co/p"Y' 8 Metc. . (Mass,) 313; Expnrte' Houghton,.7 Fed, Rep. 657; Ex parte 'Woods; 429'; S. C. BUb' uorn. Brown '1.V. Be 14 Amer; LAW IRelt, (N. S.) 576, nffirmlng.lIecisionrof!Mr; DIstrict JUdge ER· SKINE, Id, 566; 8, C:4 Amer, V,w Rec. 178. See, alSO, Com, v. Tenney, 97 Mass. 50; State v. Black(, ;l'lls.e·. a"ro; v. r!?eoJil!e 3 PUI'I,er. Crlm. R.398;· Pet. r-:19, 608, , ." · '.. " , ,,: ·· SFox v. Ulllo,5 How.(U. S.) 410j StateV.Ran.
dall,2 Alk, 89; Com. v. Fnller. 8 lIfetc. (Mass) '313; 14 How. (V·.S,) 13; Com. v. Tenney, 97 50; ,Jett v. Com, 18 qrat, 933; S. O. 7 ATlUlr Law Reg,(N.S,) 260. See, also, V. S, v. Wells'; UAmer. Law Reg. (N. SY424. , "Stnrgis 'v, Crownlnshleld, 4 Wh...t.l22j Prigg Vi PennsylvanIa, 16 Pet. 589· 1.81. at Large. 6.Ex .¥pugllton., '1 Fed, Rep. 657. 660. per J. 7 Ex parte Honghton. 7 Fed, Rep. 61i7. b,efore Mr, District JUdge WHEELEI1. U:x parte Bridg,es, .ub Brownv. U. S. lit 8upra. 1 St"at Large. 78.
INaE
eral of the exercise ofan1 other jurisdi'ctiop,:lirrhe Bam view was taken of thequeiltion by Mr: DIstrict Judge BE1'TS, s\:lutheriidi-' trict of New York, w/lere the writ was'applied fur in such acasebY'an alien. On the contrary, as early as 1824; this writ was thus issuedanflustld by Mr. · Justice STORY at circuit, in thecaseof a contest for the custody of achHd bE!tween a citizcn of New York and a citizen of Rhode Island.· ji.1fisdiction seems to have been conceded and to have been exercised WIthoilt question. s In 1867, Mr. DistlictJudgi3 DEADY, of the district OfOl'egon; COllsidel'ed this question in an elaborate opinion, in a case where the motller of a child, being a citizen of Californ'ia, had sued outa writ CJf habewJ'"c67'jYltS bef6i'elrim to obtain its custody from its fatMr,her divorced husband, who had removed with the child to Oregon. The learned judge decided in favor of the jurisdiction, and awarded the custody of the child. to the mother.· In '(I. case just alluded to, the cirCuit court of the United States for theilouthern district of New York, in 1844, Mr. District Judge·-BETTS presidingi'refused to issue a writ of habeM cOl'pns at the suit' of an alien husband'l'esiding in Nova Scotia, to obtain the custody of his child from his wife resYditig in New York. From this dtlcision a writ of error was prosecnted in the supreme court of the United States, but the writ was there dismissed for want of jurisdiction. 'fhe supreme COUl;t proceedlld upon the ground that lhe judgments of the circuit courts of the UlIited States' can be reviewed by the supreme court 011 writ of error, only where the matter in dispute exceeds the sum or value of $2,000, which matter of dispute must have a known and certain value, such as can be proved and calculated in ordinary business tranl;lac. tions. 6 This principle is just as fatal to the j1ll'iscliction of the circuit court of the Uuited States in the issuing of the writ of habea.9 Corpu,s as an oligiual writ in such a case, as it is to the jmisdictionof the supreme court to review upon error such Ii. decision of the circuit court. There is no matter in controversy possessing a pecuniary value to the alllount of $500, such as is necessary to give jurisdiction of controversies between llitiizens of different states to a circ\lit 'court' of the UIiited States, under the eleventh secmoll of the judiciary act. NotWithstanding the high authority to the contrary, it seems to the writer entirely beyond question that no such jurisdiction exists. If the question of jurisdiction h;id' been argued and (onbefore a judge as eminent as Mr. Justice'8'1'ORY,it'scarcelyadmrts of doubt that he would have decided against it. It as easy to support a jurisdiction in the federal circuit court to issue a writ of replevin at the suit of a citizen of another state from that in which the defendant resided, for a chattel of the value(}:f five dollaI.'S,ssitt> isslte ,a habeas corpus to obtain the custody of an infant child, whose custody possesses no pec11niary value in law." " .", , use of ,in the federal courts was the act called the "force bill." It, was entitled "An act furtljer to provide fortlw:collection ()f duties on impqrts/' As it was adqptefl, conseqllence of the nullification oroinance of South Carolina. Its object was to enable the prrsident and the national courts to enforce the laws of the Union in that state against the l'lffol'ts of the state anthoritiesto prev:ent Clf the federal revenue. It cwntained two provisions relating,t6tbe wdt ofh:abeas cur'" . 1 Ex parte EVeI'tl, 1 Bond, 197., tBarry v. Merceln,'Ms; Bee tbecn" on en:br, b How. 100. . , , ' . ' : ,C " au. 8. V. Green, -S ".1K'ason;'482. "1;1 'Bennett v. Bennett, Deady, 299. 'Barry v. Merceln, & Ho"'.'103, 6In Ex parLe Barry, 2 How. 6;, the supreme
S 10. U;NDl!:Jt; Till!: ACT OF 1833. The
or wnt or corpu" lb that theeltekcliJ8 Of Juris. .diction, wbfcli the court did :not po.ae88. ., 7 Act ofMll"eh2,lS33,c ·.G7,l3;' un'lll'ge, e32. ' , . ' ,-. ...,!
76
pus. .The first is found in section 3. This section provided for the removal of causes from the state courts to the United States circuit courts, where such causes consisted of prosecqtions "against any officer of the United States, or other person, for or on account of any acts done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set up {)r claimed by such officer or other person under such laws of the United States." Among other things, this section provided that" it shall be the duty of the clerk of said United States circuit court, if the suit were commenced in the court below by summons, to issue a writ of ce1·tiora1'i to the state court, requiring said court to send to the said circuit court the record and proceedings in said cause; or, if it were commenced by capias he shall issue a writ of habeas corpus cum causa, a duplicate of which said writ shall be delivered to the clerk of the state court, or left at his offiA6 by the marshal of tlle district, or his deputy, or some person duly authorized thereto; and thereupon it shall be the duty of the said state court to stay all further proceedings in such cause, and the said suit or prosecution, upon delivery of such process, Or leaVing the same as aforesaid, shall be deemed and taken to be move';! to the said circuit court, and any further proceedings,trial, orjudgment therein in the state court shall be wholly null and void; and if the defendant in any. such sU,it be in actual custody on mesne process therein, it shall be the duty of. the marshal, by virtue of the writ of habeas corpus cum causa, to take the. body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order .of the circuit court, or of a.ny judge thereof in vacation." 1 the provision of this, statute with Which we are principally concerned enlarges the jurisdiction of the federal courts in tile use of the writ of habeas C01'jJUS ad subjiciendum in the following language: .. 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, shall h/love power to grant writs of lI.abeas corpus in all cases of a prisoner or prisoners, in jail or confinement, where he or .tp.ey shall be committed or confin/ld, on or by any authority or law, for any act done, or omitted to be done, in ,pursuance of a law of the United States, ,or any order, prooess, or decree by any judge or court thereof, anything in.: ant act .of congress to the contrary notwithstanding. And if any person '91' persons to whom such writ of habeas corpus may be directed, shallrefuf3e to obey the same, or shall neglector refuse to make return, ,or shall make a fa41e return thereto, in addition to the remediEls already given by law, heor'thersh;:tU be deemed and taken to be guilty of a misdemeanor, and on conviction before any court of jurisdiction, be punished by fine notexceel!ing $l,OOO,anq by imprisonment not .exceeding six months, or by either, according to the nature and aggravation.of the 'case." 2 As already intimated, the primary object of this statute was to protect the reven ue officers in carrying out the acts of in South Carolina. 3 , At the time wlhen it was enacted, it was not supposed that it would come into general use in' the other stMes. .But it }>ecame necessary, 20 years la.ter, to resort to it for the pnrpose of drschargmgfrom state custody officers of the "
'
,{'
14 St:atLarge, 633. tlon are embodIed In the Rev, St. 643. It hll,J been construed 'alid 'applllJd In the following cases: Dennlstoun v. Draper, 6 Blatchf. 336, NELSON, J.j Abranches v. Schell, 4 Blatch!., 266; Wood v. Mathews, \l Blatcht.370; Vietor v: Cisco, I; pelton v. Bliss. 1 Woolw. 110; Warner' \T. 'Fowler, ,4 Blatchf. Buttner v. Miller. 1 Woods, 620. " " B Act of March 2,1833, c.67, f 7; 4 St. at Larll:e. 534. The substautlal feature of section 70fthla
Itatute Is embodied In thl\telalllll of section 153 of the Revised Statntes which prohibits' the use of the writ of 1Iabea. corpu. t'o the courts. justlces, and judges of the United States, except in casSs (among others) where t,he prlS,oner "Is In eus,tody for an ac,t4o,ne or omlt.ted Ip pursuallce of a law of the United States, or of an order, procesll, or decree of ""court Qr judge tbereot." lEx parte Brldg!l.; 2 Wood.; 428,:431; Ex parte Robiu80n, 6 366.
· INRE aROSNAHAN.
77
United States and other persons imprisoned for executing the fugitive slave law of 1850. As the fugitive slave law itself has been repealed, slavery abolished, and as the state of things which led to those conflicts between tederal and state jurisprudence have passed away, it wi)l be sufficient merely to cite the cases in which the writ was thus used in the federal courts. 1 While the jurisdiction of the courts of the United States and the judges thereof, under this statute, to discharge on habeas corpus persons held in custody for acts done in pursuance of a law of the United States, is undoubted, yet it has been well said that the circumstances which warrant the exercise of this jurisdiction ought to be clear. In order to justify a federal court or judge in withdrawing, in this summary manner, a cause from the jurisdiction of a state court, it should appear with reasonable certainty that the person is indicted in the state court for an act done in pursuance of federal authority, and warranted by it. 'The reason is that if the federal court or judge makes a mistake in the exercisedf this summary jurisdiction, resulting in the discharge of the prisoner, there is no process known to the law by which the mistake may be revised and corrected by'the supreme court of the United States. But if the prisoner Is left to take his trial in the state court, and if any of the rights secured to hitt1by the constitution or laws or authority of the United States are violated in any judgment which may be theterendered against him, he may have the same corrected by a writ of erl,"or in the supreme court of the United States, und!lr section 709 qf the Revjsed 'fhe settled construction of this act appears to be that it gives relief toone in state custody. not only when he is held under. a law of. tb,e state. w.,pich seeks expressly to punish him for executing the laws orproc6Ssof -tile States, but also when he is in such custody under a general law of the state which applies to ,aU persons equally, where it appears that he is';ustifif!dfor the act done it was "done in pursuance of a law of the United States, or of a process Of a court or judge of the .same." 8 § 11. WHAT IS JUSTIFICATION UNDER FEDERAL AUTHORITY. '(1) homicide by United States Marshal in Effecting an Arrest. Whether the act for which the party has been arrested by state authority is justifiednnder federal authority, within the meaning of the statute above cited, remain in many cases a difficult question. "Where a.bailiff, marshal olthe United States, on process against aperson for violating the uiternal revenue laws, attempted the. arrest olthe latter at. his house, in the nig4trtime, and, .after having made his I\uthority known, was sllcll pers,on, whereupon he fired upon a;nd killed tbe he was arrested. by the state indictedJor .murder, lie w,as discl1arged upon hapeas corpus by BALLARD,.J.· of the district coqrt, of the. Up.ited States for the district of Kentucky. '£he lel}rnedj\j.dge was any intention to interfere unduly with state authority, and'he wail careful to disclaim aU right nnd power to' dischax'ge theretator on anY'5uoh 'ground as that of self-defense.. "A jury;" said he," would probably acquit him onsllch ground, independent of the process' under which he acted ;' but \1'. have nothing to do with any such inquiry; It belongs only to the state eoorti "lIhuve only to inquire Whether what hedidwas done'inpursuance;of a lawiandprocess of the-United States, and 51) Justified-not excused-bythQt: law 'and process. 1 Ex parte Robinson; 6 McLean. 355;''J'he Fn. 869) Matter ofltalph; Moirlli!t; Matter or Peter, .2P"ine,,34S. ' :.', ' gitive Slave Law, (charse:of¥.r. SON to the 6351 Ex parle.. SRe Bull, 4 DIll, 323. '. ..' Robinson, 1 Bond. 39; S.0.4 Amer.LawReg. (0. SUo S. v; laller.2 Abb. (u.S,) 2416; 277', before s.) 617; Ex parte Jenkins, 2 Amer. Law Reg. (0. BALLARD, J. See Ex parte Jenkins, 2 Wall. Jr. S.) 144;8. C. 2'Wall. Jr. 621; Ex parte Jenkins, 621; Id. 639; U. 8. t: Morritl,2Anier< LaW: !teg. Id, 539; U. S, v. Morris. 2 Arner, Law Reg (O;S.) (0.8.) 348; Ex parte RObinson, il'l'dtlLll'iri,'Il55; :348; Ex Slfford,6 Amer. Law Reg, (0. S.) Ex parte Trotter, cIted In 2 Abbi (U, 8.)277; 'Tbomu 'f'. Orossln,3 Amer. Law {Oilt.) 207.
Re"
FEDERAL
If the relator is to he discharged by it is not 'is excusable, upon general principles of Jaw, for taking·thelife of his assailant when it was necessary to save his own, but because .hEl was authorized and is justified by the law,a,nd process under which he acted ,to doaH that he did. If he was not authoJ'ized and is not justified, by that law and process, in all that he did, he is not imprisoned' for an act done in pursuance of a. law of the United States, or of a process of a court or judge of the same;"and I callnot discharge him,but must remand him. I can discharge only officer who relies on the law and process of the United States as his sole authority and complete justification.", The learned jUdge then proceeded to examine the authorities, and, upon a consideration of them, cOlloll\ded that a hOlllicWe committed by an officer in a struggle which ensues upon his endeavoring to effect a lawful arrest, which is brought about and rendered necessary by the resistance of the person whom he attempts to arrest, ,is a in contradistinction from homicide se defendendu,: which writers upon the common law of crimes denominate excusable homicide; and he therefore conclnded that, in the particular case, the process justified and authorized the homicide; that the relator was hence imprisonedfoJ:,an act "done in pursuance of a law of the United States, ,or of the process of a Qourt or judge of the same," and. was hellee 60titled to his discharge. 1 (2) Arrests by United States Deputy Marshals cit Congi'essional Elections. It 'has been held that section 2021 of the Revised Statutes of ·the United States, which pro'Videsfor the appointment of special deputy marshals to attend at the' election' of representatives and delegates in congress, and section 2022, defi1\.es the duties of such deputies, among other things, to keep the peace 'and preserve order at the poUs, are authorized by section 4 of article 1 of the constitution of the United States, and are hence valid. And where such deputy mal'shals' had arrested a; person for creating a disturbance at a poll at such election, and another person for circulating fraudulent tickets, and such deputy marshals were sub::lequently indicted in a coun ,of the state for an and battery and intimidation of voters, the indictment being predicated upon the acts stated, tney were released by a court of the United States on hab.eall Cf)rpus. s
§ 12. WHETHER THE STATE'S ATTOIUmY SHOULD HAVE NOTICE. Although, in cases where the writ of habeall corpus is issued under this statute, the state's attorne1 is not 'entitled as of right to notice, and the statute does not requiTe it to be . yet a proper respect for the state authorities, and least, a decent spIrit of comity, for the rights of the, state in the -s1;lggests thatthisbe. done,8especiallr in view of the practice in the state courts, of notifyi.ng the state's attorney in habeall corpus cases where the prisoMr is held uilder the state's process. § 13. ,OFFENSES AGAINST STATE LAws COMMITTED UNDER MERE COLOR OF }'EDJil:a,AL PROOESS. A parsoil who makes use of legal process for the pUrpo!!e ofcommitting a crime is none the less guilty of the crime committed. 'fbus, if a person makes use of legal process for the purpose of obtaining possession of .personal, property, animoftt,randi, he iR guilty of larceny.4 It it! obv,io,u8 that /1; pel1$onmay make use of federal process for the mere purpose of doing an act which is a crime under the laws of the state, though not a crime undarthelaws of the United States. The circumstance that he would be amenable to punishment for contemptof the fed.eraltpbullal, whose pro?ess he,ha.sthus abused,would not, onprincfple, jurisdicti9n of the ;1 U,,8. v. Jaller·.2 Abb. (U. 8.) 26;5. · Matter ot &92, berore.BoND, ; Ckc111t Judge.. i Bee, ' ·if.,
BALLABD ontbl! point. In U; s. v. Jaller,:t Abb. (U. S.) 1185,.267.
'Com. v. Law, Tha.teh. Crhn, Cas. 477.
tAS . .mdiciou, ol1,erVlltiona· of the late
·IN BE BROSNAHAN.
state courts to punish him for· the crime. Accordingly, where a private person makes use of the process of the federal courts for the purpose of conin'litting- a larceny, as where he enters into 3ceonspiracy with 'others to sua olit a fraudulent writ of replevin upon a worthless bond, for the purpose of getting possession of property which he is not entitlell to have, and of spiriting it out of the state, and is arrested and .prosecllted therefor "by the state authorities for larceny, it has been held by a learned federal jUdge that he is not entitled to be discharged by a federal court on habeas corp/'tS. 1 It was said that there is 'a clear distinction between such a case and the case of!auofficel' justifying under process whicb, though, erroneously sued out, is valid 'on its' face. This rule does not extend to the protection oJ;. thepa1'Cy who sues out'the process. As against him,it may be shown to be void by reason of extrinsic facts not disclosed on its face. ll ,But where a person got-possession of the body-oian-' other person in Nebraska; nndera requisition from the governovof illinois, for the ostensible purpose of taking him to Illinois, there to answer for a crime, but, instead of so taking him to Illinois, tookliiml,without any other warrant or process, to England, and was thereafter, for thedoillg of this act, indicted in a court of 'Nebraska for kidnapping, he was discharged from imprisonment under such indictment by a federal jUdge, on grounds which are reasoned at length in an opinion, but which are not all olear. He was sup"; posed to have been imprisoned "in violation of the constitution or of a law 01' trilaty of the United States," within, the meaning of the a.ct of 1867 asembodied in section 753 of the Revised Statutes of the United States.s Hub· this seems to be as clearly anon sequ.ituras though he had gotten possession of the body of the prisoner, under process of state extradition, and had then taken: him out and murdered him. ( "l" § 14. UNDER THE ACT OF 1842. TIHs statute was ·entitled "An aCt to' provide further remedilll jQsticein the courtsof the United States." It enacts as follows: "That either of the justices Of the, snprem'ElcOul1 of the' United States, or jUdge ofanydistrict court of the United Sbites,in Which prisoner is confirted, in addition the authorltya:lready conferi'edbY.law,shall .have grant writs of habeas c01JJU81n all cases of wi!lOller or pnsoners III Jall or confinement, where he, she, or they, being"subJects or e.Ltizens of any foreign state, and domiciled therein, shall ,be' ooIrimiLted or confined or in custody under or by any authority or law, or ,process- founded thereon, of the Ullited,States, or of any:oneof them, for or onaecount of any' act done or omitted under any aUrged rigbt, title, auth()rity;priVilege,- proteCl-' tion, or exemption set,Up or.claimed; unuer the commission, or order: or sanction, of any foreign state or sov:ereignty, the validilJy and effoot whereof depend IlPOll the law of nations"o,r undm' c()lor ·thereot And;,upon the re. turn. of the said writ. and due pl'Oof of the service of notiCe Qf the said pro· ceedings to the attorney ge1leral or <ll;her officer prosecuting, the pleas of the state, under whose alltbority the' petitioner has been arrested, committed,-or is held in custody, to be prosecuted by the said justice or jUdge at the time,of granting said writ, the said justice or judge shall· pflilpeedto:fi'el\r the sai<l cause; and if, upon hearing tbe same, it shaH appear that the prIsoner oners is or are l'ntitle<l tp be disoharged from such confinement, custody, or arrest, :for: Or by reason of said alleged rightj, title; authority,:pri i/llges, protectioq"orexemption,so set up and olttimed"aild"the laws ti<lns- app,licable thel'e;to, au,d that the same.exists:in and'has been duly prov,eQ, to th!l; sail\justiceor judge, tben i-t shaH be the duty of the said justice'or j\ldge forthwitlI to <lischarge,suQh prisoner prisltnersa.ccordingly. And dt , .lji;x Tp.ompSo\l,,1 Fllpp1n.,·5Q7, . Y, Boughton. 5 Wend, 173; Loder V", Phelp·· 13 Welld, 48; Cow. :<06; Whitner v. Schnlelt, 1 Denio, 594; Rogen
a
." Mulllnar,.6.:w.and. 597 ;.lrlit1or v,'Trau, 7'Cbw, 249; St. te v. Weed. :n N. H. 262, '" S u. S. v. McClay, 4 Cent, Law J. 255.
80
F.EDERAL REPORTER.
it shall appear to the said justice or judge that such judgment or discharge ought not to be rendered, then the said prisoner or prisoners shall be forthwith remanded: Provided, always, that from any decision of sul:h justice or judge an appeal may be taken to the circuit court of the United States for the district in which the said cause is heard; and from the judgment of the said circuit court to the supreme court of the United States, OIl such terms and under such regulations and orders, as well for the custody and arrest of the prisoner or prisoners, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus returned thereto, and other proceedingl'l, as the judge hearing the said cause may prescribe; and, pending such proceedings or appeal, and until tinal jqdgment be rendered therein, and after final judgment of discharge in the same, any proceeding against said prisoner or prisoners in any state court, or by or under the authority of any state, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of ,habeas C01pUS, shall be deemed null and void." 1 It has b,een thought necessary to quote the statute as originally enacted, in order to give the' reader, a connected idea of its purposes. rnthe Revised Statutes of the United States, its various provisions broken up and scattered through sections 753, 762,763, 761'1:,765, and 766, and are so blended with other statutory provisions relating: to this writ, that it would not be practicable .80 to separate them as to show the manner in which the prOVisions of this statute have been distinctively retained.· in ·the Revision. It is sufficient to say that, so far as the writer can see, all these provisions have been retained, including, perhaps, its most exceptional provision, which provides for an appeal to the supreme court of the United States. This provision is fOlmd in the Hevision at section 763, clause 2, and section 764. So far as the writer knows, this is the only statutory provision now existing which providfls for an appeal to the supreme court of the trnited States in habeas corpus cases. This statute did not reach the case of persons em'olled in the armies of the late confederate states. These persons did not, in contemplation of law, cease to be oitizens of the United States, and did not become aliens within the meaning of this i1tatute. 2 § 15. UNDER THE AOT OF U163. The next act of congress regulating the use of this writ in the national courts was the act of March 3, 1863, entitled "An act relating to habeas corpus, and regulating ju!'iicial proceedings in certain cases." This act authorized the president to suspend the priVilege of the writ of habeas corpus in certain cases; provided that lists of prisoners should be furnished by the secretary of state and the seoretary of war to of the United States; proVided the manner in which such prisoners might be discharged., These provisions, contained in the first three sections of the act, appear to have-related to matters growing out of the exigencies of the then existing war, and are not necessary to be recited here. The four succeeding tions of which the aot consisted related to the removal to tile circuit court of the United States of prosecutions commenced against persons on account of acts done under the authority of the United States during the late rebellion, to procedure after such causes are so removed, and to the limitation of such actions. s A person arrested after the passage of this act, and under its authority, was entitled to De discharged on habeas eorpus, if not indicted or by the grand jury convened at the first subsequent term of the circuit or district court of the United States for the district. Theomission to furnish a list of the persons arrested, to the judges of the circuit court and lAct oC Augu8t29, 1842,c. 71; 6 St. at Large, 639.
lEx parte McCann, 6 Amer. Law Reg. (N. S.) 158.
aBee Rev. St. 1643.
IN ;lUll' ,BBOSNAHAN.
81
district court, as provided in .the act,did not impair the right of the person 80 arrested,if nqt indicted or presented, to his discharge. J § 16. UNDER THE ACT OF 1867. The most important statute regulating the use of the writ of habeas corpus in the national courts is the act of February 5, 1867, C. 28,2 In addition to the SUbjects to whica the writ had been extended by previous statutes, it was by this statute further extended, in any person may be restrained of libone sweeping clause. "to all erty in violation of the or of any treaty or law of the United 'States." It will be perceived that this language works a dec.isive ipnovation upon the act of 1789. We shall ,see that, as construed by t,he federal circuit away the proviso at'that act, which and district jUdges, it compelled the judges of the federal courts to stay their hands iIi the use of this writ whenever it should l\ppear that the prisoner was held under state process. 'By the act o'f 1789 the state 'courts were left conclusive judges of the limits of their ownjurisdiction, subject only to revision by the supreme court of the United States under the writ of error where federal questions might be involved." Their jUdgments, however erroneous, conclu5i·velyestab. lishedthe law of'tbe particular calJe, until thus reversed in a. direct proceeding. s The act of 1867, ontMcOhtrary, extended the writ to all cases Where the prisoner, though held 'uNder state process, might; of the fede,ral or judge issuing,the w,.rit, ,be held in . the or of anytl'eaty or law of tlle 'UnIted States. Thus, the 'CIrCUIt and dfstrict'cotirts, and the courts, if thelnterIll'etation which has been put upon this statute is correct, have been clothed by 1t with a species of superintending jurisdiction over the state courts, withont reference to their character or dignity. This will more clearly appear by the instances which I shall n(}w give of questions which have been raised arid, decided by single jUdges, or by benches of two jUdgestin the federal courts !of original jurisdiction, by this summary procsss. " § 17 EXAMPLES OF QUESTIONS'))EctDED ON HABEAS CORPUS UNDER THIS STATUTE. (1) Ejfect 0/ Otf-Sting:CZaU$ein Fo)'/'r,teentfL1mendment. Under this statute the chief justice of, tht' United Statesl ina summary proceeding by habeas corpus, assumed to paSl! 'upon the question of the validity of the acts of all state officials, who, 'having preViously taken an official oath to support the constitution of the United States, had engaged in the late rebellion, or given aid and comfort to the same.· The circumstance that be decided that the provision of the fourteenth amendment, prohibiting such persons from holding office, was not self-enforcing, but needed the aid of an act of congress, and consequently that such persons were rightly in office, Rndtbe further fact that, previously to arriving at this conclusion,he had had the ad· vantage of consulting with his'associates of the supreme bench upon the questi6n, does not detract froto the gravity presented by the spectaCle of a single judge deciding such a question in such a proceeding. (2) Validity of State Laws. It bas bee.n held, in the circuit court of the United States for the district of California, that whAre an alien prisoner is held in custody under execution of a judgment rendered ,by a state court convicting him of an offense created by a state statute, and claims to be released on habeas corpus, on the ground tha.t the statute under which he is convicted was passed in violation of the constitution of the United States, and of the provisions of a treaty between the United States and the nation of which he is a subject, the circuit court has jurisdiction, on a writ of habeas lEx parte MillIgan, 4 Wall. 3, 117. 9 It St; at Large, 387. 8 Ante, J 6 tub
.O",!iar Grlmn" Oase, Ohue, Dec. 367; S. O. nom, Be GrIffin, 25 Tex. Supp,'6lU.
v.18 I no.2-6,
82
FEDERAL lUlI'01\TE2.
corpets, to in'quue'into the validity oithe atatute and jUdgment, and, if it finds it to be in violation of such constitution and treaty, to discharge the petitioner from The court proceedsnpon the ground that a statute of the state an offense, passed in violation of the constitution of the United States, .or of a treaty with a fpreignuation, is void, and that a judgment convicting l10party of an offense created by SUCh void statute is also void, and not ma-e\yerroneous and voidable. It is, therefore, not necessary that a prisoner sO,convicted should be remitted to a direct proceeding in the supreme court of. the United States for .thepurpose of testing the validity of the state statute.! , . , (3) Validity o}UJiate Licen,se Laws. . It..is assumed, from what has preceded, that if a of one state another asa traveling merchant, agent. drummer, or commercial traveler, should be proceeded against in the latter state, for violating the license laws of such state, amI imprisoned in s\1(lh proceeding, a federill, cc.>urt or judge would, under the writ of habeas oorp1J8, inquire whether such laws of the state in COnflict with of the constitution of the VnitedStates which cOnfers upon congress the power to regulate commerce among the severa.l states, and by the same power to 2" and, if it should be of opinion that. the state :law .was in conflict with. such provision, would discharge the prisoner, thus exercising the g,rave .power of passing upon the validity of of in a recent cll-s6,in thecir. cuit court of the Pnited States .for Californ}a, though it was held that the law \\nder which ,thep,ril!oner. was held. in cqstody was not. in conflict with the constitution of tneJJJlitel1 States, and he was accordingly remanded. s . (4) Validiitll of SU,tte F'isheries Laws. :rhe fourth article of the constitution of the United .States.provides that; the ,Qitizens of each state shall be entitled to aU the ,privileges immunitJ.es:of the citizens in the several states. The legislature of Virginia, in 1874, passed an act prohibiting persons, other than citizellS Of Virginia,from taking or. planting oysters in the waters of · comm,l,lllwealth, under. a penalty. It. was held that a ana i1;nprisQned under this statute was deprived of his liberty in' violation of the constitution of .the United and might be released, on habeas corpus, by a of a the United' ;:states un!ier the 1867.4 (5) State Lq,wsin_ Violation. of Legislatian. The pre&f;nt constitution of California contains the following provi\:lion: ", NQ cornow existing or .hereafter formed ,ppqer the laws of this state snaIl, after th!l adoption of this constitution, erupl()y, directly or, indirectly, in any eapacity, any Cbinese or Mongolians. The legislature sball pass such laws as shall be necesiilary t() enforce this provision.'16, I n pursuance ot this constitutional .ordinance, the legislature, of California passed an act amellding the Criminal Code so as to add a sllCtion that" any ofi\cer, db:ector, manager, membel', stockholder, clerk, ageu,t, servant, attorney, employe, Msignee, Qr;FontractorQfll'PY corporation now existing or hereafter formed under the l;iwsof th.isatate, whoshaU employ, in ,any manner or capacIty, upon any or b}lSiness of any-Chinese or is guilty of a and. by a than nor more tha)). $l,OOO,or by ImpnsonrneuitlIl JaIl :tiot less than 50 nor I WaJ\g Yung Qui,,6 Snw'¥. 1137. .'. , 2 UP011 the or such Welton v. Missouri' U. Penn_ ,ylvnllla,97 U. S, 566; Hillson v, Lott, B Wall. 152; Woodruff :-,.·Park,ham, Id. ik'<>WIl v. lVf;,ryla",l, 1l1.WM.t. i19, SHe Rudolph; 6 S',wy. 296. See, also, b" varle
ne
tiOl, where a similar con. cl1l8ron WaS reache<i:Oompare Wood v. Mary. liind. 1'J W" 11. 418. .' '.., )" : . . 4 Ex parte McCready, 1 Hughes, 59S. This deelslon ha. bee",in p1\rt !'ven.uled:by McCready v. Virgin 'I. 94 U. S. 391. 600n.l. Cal. art. i 2,
IN'BB BROSNAHAN.
83
more than 500 days, or by both such fine and' imprisonment." 1 The second. 'section of 'the fourteenth amendment to the constitution of the United States provides that .. no state shall deprive any personot life, liberty, or property without dlie'process of law, nor deny, to any person within itsjurisuiction the eqnalprotection of the laws." 'fhe title of the Revised Statutes of the United 'States relating to "CIVIL RIGHTS" contains the' prOVision that" all persons within the jurisdiction of the United States shall have the same. right in every state and territory to make and enforce contracUl"to sllIJ,be paTties, and give evidence, and to the full.andequal benllfit'of and proceedings for the security of persons and property, as is'llrijtlyed by white citizens, and: shall be 8ubject to like pains, penalties, taxes, licenses,alld exactions. of every kind and nature." 2 The fifth article of the treaty between the Vnited States and the Chinese Empire, known as the" Burlil1game,treaty," recognizes" the mutual advantage of the free immigration and emigration of the citizens and suhjects" of both COUntries, "respectively, from one cOjlntry to the other, for purpoBe6 of curiosity or trade, or as permanent residenUl." The article provides that, "reciprocally, Chinese subjects visiting or in the United States shall enjoy the same privileges, immunities, and exemptions, in respect to ti"avel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation." It is thus apparent-and too .apparent to be made clear by any argument, illustration, or suggestion-that the pl"Ovision quoted' fmm the constitution of anA the act of the legislature of that state passed to enforce this provision, were,in flagrant violation of the constitMtion ,of the United States, of the ciVil-rights law,. and of the Burlingame treaty bll:" tween the UJ:lited States and the Empire of China. it is certain beyond .allperadventure that the authors of this ordinance and this legislatipn knew them to be such, and passed them in the full face of such knowledge. A personwbo was prosecuted and imprisoned for the violation of this statute was beyond all doubt" in ct1stody in violation of the constitution,"and "'ot a law" and" treaty of the Uriited States." The constitutional ordinance and the legislation filled' orit tbe whole limits of the clause quoted from section 753 of the Revised Statutes of the United States. Upon the statement of such a case to a federal court or judge, it woUld· be his bounden duty to discharge a person 80 held in custody on habeas corpUs. This was done by Mr. Circuit ·.Judge SAWYER and Mr. District Jt1dge ,HOFFMAN in IJ880, sitting in the circuit'court of the United Statesforthediattict ofCalifomia.$Eaoh of these learned jUdges delivered a long and whi<lhmay have beert proper, considering the extraordinary natuteofthe'C3se and the temper of the times,but which was wholly Unnecessary to ..eonvinoo'anyla.wyer of the. entire propriety of their action. .Indeed,. the' case before.them is one so obvious as tO'decide itself upon a mere statement. .: i . ('$), Arrest 0/ Bankrupts undet' · .' Urideraprovisionof the late bankrupt law,. where proceedings'fn comfuenced against a ·person, he was thereafter notrlghtfully allienable to'arresturider state process fo.r debts which .were dischargable in ba:nkttiptct; and; i1'$t) arrested; he was entitled to be discharged' Of! 'habeas corpus'suild out' befores federal Cir·, cuit or district. court. or judge'; 6 but where the debt for which. the bankrupt was'arrested was a debt such as was not disclfdrgeable under ithebankrupt act, he would not be so discharged. 6 In exercising this power, it was held by one jUdge that it is the. duty of the, court issuing the habea8'C01\'j1U8tohear evidence,and determine upon its merits, tlRl:q,uestioo whetherthedettin respect ·of which the bankrupt had been ahesteduD?er was, in fact, a 4e,btdisc]:largeable in bankruptcy; :where 011 which tne 1cat, Act otFebru81'113, 1880 IRev.8t.11977, SParrott's Chlllell8 C8118, 6 Sawy. 349. 'Rev. St,IUI07. 6117;·.(." 6Re 11 .!t. B. R,145 . ORe
84 order of arrest was procured in the state court charged that the debt was contracted through fraud, that thehaoeas corpus court should, upon independent eN'idence, try that issue. l But ,abler and more experienced jUdges held, on grounds too clear for controversY,that such an issue cannot properly be tried ,before a single jUdge, on affidavits, in a summary proceeding by habeas corpus, but that it ought to be left to be contested before a jury in the state corpus would not tribunal; and, accordingly, that the jUdge issuing the look further than to see that the affidavit, on which the order of arrest was procured in the state court, set forth facts showing that the debt was one which was not dischargeable in bankruptcy.2 (7) Other Oases whe1'e the Prisoners have been Remanded. Several other cases have been found where the federal judges have been appealed to'without success to enlarge prisoriers under the provision of the Revised Statutes of the United States, which weare considering. They have refused to do this where the prisoner had been committed by an examining magistrate'of a state upon a charge of assault with intent to commit rape; 3 where a negroliad been tried,convicted, and sentenced to a term of imprisonment for violating a law of the state which forbade the intermarriage of whites and negroes; 4 where the'prisoner, an alien, had been indicted, tried, and convicted of a crime and imprisoned therefor under the sentence of a judge of a court of a state, who, though not possibly a jUdge de jure, was a judge defacto,-the circnmstance intervening that the, conviction had been affirmed by the supreme court of the state; I; and where the prisbiler was held in <lustodf under process of contempt issued by a state court In the course of a suit pending therein, although the suit related to the property of Indians, over which, in consequence ohpecial treaties and acts of congress, the state court had no jurisdictil)n. 6 . powers exercised by the federal circuit and district courts and judges by means of the writ of habeaS corpus, it becomes important to inquire what provision the law has afforded for revising their decisions, if erroneous. And, first, it may be ,<>bservedthat theonly appeal which is allowed in all cases, geJ;lerally, is an appeal" from tllefinal decision of any court, justice, or judge, inferior to appeal may be taken to the circuit court the circuit court,'" in, which. case for the districtinwhicht1;l.e 'cause,isheard: . (1) In t.he case of any person in violation of the constitution, or of alleged to be 'restl'ainedof, United Stllotes;(2) in the case of 8,ny prisoner who, being a subject .or ,citizen of a forllign and domiciled therein; is committed or confined or in custody;. by qr under the authority or law of the United Stljlotes, or.·of any prQOllss thereon, or ·for or on account of any acts dpnfilior alleged right, title, authority. priVilege, protection, or llxemPtl0n; set, or(. under the commission.,. orMi:, or sanction foreign the validity and effectwbereof depend upon the wot na.ti<>ns., or, uneler color thereof."1 The qnly appeal which is to the supreme of the United States, sO,far as the writer can is a:n appeal from the An"l decision of su,ch circuit court 1He SUllra, 'before BIU:DI'ORD,.i. IRe De,voe,'2 Nia R. 27; s. 0, 7 Amer; Law Be. "R. 278; /I. llen.· ·. ,'&le, also, Kimball, 2 N. B. R. &'l4;S. O.rd: 4to;;'4; 8. O. Id:1l4. pare Re Glazier, 1 N. B. H. 336; S. O. Id. 4to, 731 Re Seymour, Id. 29; S. C.l Ben.348. BRe Taylor, 12 Ohl', Leg; News, IT. 'Ex parte Kinner, 3 Hughes, 9.
PROVISIONS FOR REVISING THE DEOISIONS OF THE INFERIOR FED]j:R.AL COURTS OR JUDGES ON HABEAS CORPUS. Such being. the extensive
18.
IRe Ah Lee,6 SaW». 4101 S.O. 2 Orlm. Law Mag. 336.
c. a
7Rev. St. I 783. Ell: parte llrldf{ll8,2 WOods,
428, la an enmple of an appeal from a district to a circuit court under the first c1allllt of this stat. lite.
85
in the cases described In the last clause of the preceding sectian j" 1 that is, in the cases of prosecutions of aliens for acts done under the sanction of their own sovereign or the law of nations, or under color thereof. This last provision, as elsewhere stated, was intended to preserve the right of ap· jleal in such as that of McLeod, which grew out of an act done as a belligerent pending the Canadian rebellion. 2 The act of 1867, C. 28,3 which extended the writ of habeas corp'/1-9to "all cases where any person may be re"trained of his or her liberty in violation of the constitution, or of any treaty or law of the United States," 4 provided for an appeal tothe supreme court of the United States in the followiug language: "l!'rom the final decision of any judge, justice, or court inferior to the circuit court, an appeal may be taken to the circuit court of the United States for the district in which said cause is heard, and from the judgment of said circuit court to the supreme court of the United States, on such terms, and under such regulations and orders, as well for the custody and appearance of the person alleged to be restrained of his or her liberty, as for sending up to the appellate tribunal a transcript of the petition. ,writ of habeas ,corpulf, return thereto, and other proceedings, as may court, or, in default of such, as the judge hearbe prescribed ing the sl\idcause may prescribe; and, pending such proceedings or appeal, and untiltinal judgment be rendered therein,and after final dischalige'in the same, .any proceeding against such person 80 alleged to be restrainedoflhisor her liberty, in any state court, or by or under the: authority of tlnyi$tate, for any matter..or thing so heard and determined, or in process of being;heal'd and determined, under and bj' virtue of such writ of habeas corpus, shaWMnull and wid." Ii Under this .provision an appeal was taken from a jUdgment,of the circuit court of the United States to the supreme 'court in the celebrated case of McCardle,6 the circuit court having refused to discharge hinifrotn military custody, the writ of habeas C01'jJ'lt.9. A motion to dismiss the appeal was made in the supreme court and denied.? 'rhe case was. then argued at the bar upon its merits j the argu lI1ent was concluded on the ninth of March, 1868,.and the caused was taken under advisement by the court. While thE." cause was thus.under advisement, and before the court had time to consider the decision proper to be made, congress repealed that part of the statute above quoted which gave an appeal to the supreme court, by a repealing act in the following words: "That so much of the act approved February 5, 1867, entitled, etc" as authorizes an appeal from the judgment of the circuit court to the supreme court of the United States, or the of anj' such jurisdiction by said supreme court on appeals which may have been, or may be hereafter, act had the.effect of ousting taken, be and the same is hereby repealed," 8 the jurisdiction Of fhe snpreme court of the United States in the case of MeCardle,9 apd it left n() direct appeal to that court in habe.cM capt in the single case prbvided for by sectiou764 of .the Statutesthe case of prosecutjons.cif aliens, as above stated. But, it did not have the effect of determining or impairing the general appellate jurisdiction which the supreme court of the United States had previouslye.x:ercised over inferior tribunals of the ;Oinited States.,by means of the writ of habeas oorptfS3ided by the writ of oortiorari,. and this jurisdiction extends as wEll1 to habeas corp'lt.9 proceedings: in tile inforior courts olthe United the jUdges of '>Hch cour.ts, as to which may be exercise, in cas6such habeas,corpUs proceedings result in the remandi.",u 0/ the prisoner. Of Yerger, Where tbequestions involved 1Rev. St. 1764. 2Allte. I 14. 314 st. at Large, 385. 4 See Rev. St. f 753. 514 Rev. St at Large, 386. 86 Wall. 318; S. O. 7 Wall. 606. 1 Ex parte McOardle, 6 WalL 319. SAct of March Wl l86S, (15 St. at Large,:".) 'Ex parte McOardle, 7 Wan. 6/llI··
86 '
were in many respects similar to those which were involved in the case or McCardle, the circuit court of the United States having refused to discharge the prisoner on habeas corpus from the military custody in which he was held for trial before a military commission on a charge of murder, the cause was removed to the supreme court of the United States by its writ of lwbeas COTpUS, aieled by its writ of certiol'ari. 'rhe supreme court, after argument, affirmed its jurisdiction thus to re-examine the decision of the circuit court. 1 A proceeding by habeas corpus is deemed a civil proceeding; and hence it cannot be re-examined in the supreme court upon a certificate of division of opinion in the circuit court, as criminal cases can; but, in such a case, jUdgment is entered in accordance with the opinion of the presiding jUdge, and thereafter it may be re-examined upon such certificate by the supreme court; 2 but whether it may be so examined where the decision of the presiding jndge is in favor of discharging the prisoner is not clear. It remains, however, that no provision exists in the federal law for re-examining in the supreme court the decisions of the inferior federal courts or judges on habeas corp1/"Y,in cases where the prisoner is discharged. These decisions may result in declaring invalid the police regulations of a state, or even provisions of the state constitution, as· will appear from cases already cited: and yet the state has no appeal, writ of error, or other means of bringing the question of the validity of its own constitution and laws to tbe final determination of the Impreme court States,__the tribunal which was established by the constitution of the for the determination of, such questions. A statute which grew out of a temporary emergency, perhaps out of a party exigency, has deprived the federal juriSpr\ldence of this necessary measure; and the most weighty considerations there-enactment, and perhaps the extension, of that clause of the act of 1867 which gave appeals to the supreme court of the United States in habeas corpus cases. SEYMOUR D. THOMPSON. St. Louis, Mo. 1 Ex purte Yerger, 8 Wall. 86. , lEx pHrte MntllgHn. 4 Wall. 110, 114; Ex parte 'l'Ollll'on" 17 (;ent. Luw J. 89.
Ex parte
CASEY.
(District Court, N. D. New York.
September 21,1883.)
orders, and decrees at the term at which they are rendered.
2.
SAME-CASE· STATED.
T4e .petitioner"after being convicted and sentenced by the court;and aftt\" stay allowed ,fOr an appeal, was a second time brought before the same jUdgE, on an adjourned.day of the same term of court, and the first judgment havinf{ been set Bsilie, .the same sentence from the court, except that there was a substitution ofpenitentiaries. Held, that the court had full power to set , aside or amend its judgment,which was rendered ana previo'lls day of the same terril, and that no injuty had been done the petitioner,'and none of his rights invaded.
Habeas Corpus. H.C. Clagett,for petitioner. Martin 'I. Townsend,
U. S. Dist. Atty., opposed.