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exists in fact, and has been duly proved to the said justice or CHAP. 5. judge, then it shall be the duty of such justice or judge forthwith to discharge such prisoner or prisoners accordingly. And if 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: Pro- Appeal to vided always, That from any decision of any such justice or supreme judge an appeal may be taken to the circuit court of the court. 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, on such terms and under such regulations and orders, as well for the custody and appearance 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 proceedings, as the judge hearing the said cause may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such prisoner or prisoners, in any state court, or by or under the authority of any state, for any matter or thing so heard or determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void."1

The foregoing are all the writs which the supreme court are, by the judicial act, expressly authorized by name to issue, except those of scire facias and dedimus potestatem; in relation to which no question involving the jurisdiction of the court has arisen, and the decisions in relation to which will be noticed hereafter.

But it will be recollected, that the courts of the United States are, by the fourteenth section of the

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Writs not

enumera

ted by

name in judiciary

This act was passed in consequence of the prosecution of M'Leod in the courts of the State of New York, for his supposed participation act. in the burning of the "Caroline" at Schlosser, on the Niagara river; the prosecution having been persisted in, notwithstanding the assumption by the British government, of all responsibility for the acts of M'Leod, and its formal protest acquiesced in by the government of the United States.

PART 1. judicial act, empowered to issue "all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law."

The principles and usages here referred to, it was observed by Chief Justice MARSHALL, on the trial of Burr, meant those general principles and usages which are to be found, not in the legislative acts of any particular state, but in that generally recognized and long established law, which forms the substratum of the laws of every state.

By the words "other writs," as used in the 14th section of the judicial act above cited, doubtless were meant, among others, writs of ne exeat, and of injunction; and by an act in addition to this act, it is provided that these writs may be granted by any judge of the supreme court, in cases where they might be granted by the supreme or circuit court. But this act also declares:

1. That no writ of ne exeat shall be granted unless a suit in equity be commenced and satisfactory proof be made to the court or judge granting the same, that the defendant designs quickly to depart from the United States.

2. That no writ of injunction shall be granted to stay proceedings in any court of a state, nor, in any case, without reasonable notice to the adverse party, or his attorney, of the time and place of moving for the same.1

These prohibitory limitations, it will be readily perceived, apply as well to the court, as to the individual judge.

By the 30th section of the judicial act, the courts of the United States are expressly authorized to 'Act of March 2, 1793, ch. 22, § 5: 1 Stat. at Large, p. 333.

grant a "dedimus potestatem to take depositions ac- CHAP. 5. cording to common usage, where it may be necessary to prevent a failure or delay of justice.”

&c.

The courts of the United States are also by this New trials, act expressly empowered "to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in courts of law, and to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting of business in the said courts, provided such rules are not repugnant to the laws of the United States."1

tempts.

By a subsequent act, the power to inflict punish- Conment for contempt has been limited and defined, and it has been declared an offense punishable by indictment, to interfere, corruptly or forcibly, with the administration of justice. The enactment is as fol

lows:

"Sec. 1. That the powers of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases, except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, or witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

"Sec. 2. That if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, 1Act of 24th Sept., 1789, ch. 20, § 17: 1 Stat. at Large, p. 73.

PART 1.

Rules.

Security of

the peace.

or by threats or force, obstruct or impede, or endeavor to obstruct or impede the due administration of justice therein, every person or persons so offending shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished by fine, not exceeding five hundred dollars, or by imprisonment, not exceeding three months, or both, according to the nature or aggravation of the offense."

The power of making rules, has been more fully and explicitly granted by the act of March 2, 1793, by which it is declared to "be lawful, for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the return of writs and process, the filing of declarations, and other pleadings, the taking of rules, the entering and making up judgments by default, and other matters in the vacation; and otherwise, in a manner not repugnant to the laws of the United States, to regulate the practice of the said courts respectively, as shall be fit and necessary for the advancement of justice, and especially to that end to prevent delays in proceedings.2

By an act passed July 16, 1798, it is also enacted "that the judges of the supreme court, and of the several district courts shall, respectively, have the like power and authority to hold to security of the peace and for good behavior, in cases arising under the constitution and laws of the United States, as may or can be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them." 3

1 Act of March 2, 1831, ch. 99: 4 Stat. at Large, p. 487.

2 Act of March 2, 1793, ch. 22, § 7: 1 Stat. at Large, p. 333. As to the authority of the supreme court to prescribe rules of procedure for the circuit and district courts, see, post, "Practice of the Circuit and District Courts."

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the states

of decision.

The 34th section of the judiciary act of 1789, en- CHAP. 6. acts "that the laws of the several states, except where Laws of the constitution, treaties, or statutes of the United to be rules States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the court of the United States, in cases where they apply."3

CHAPTER VI.

OF THE ADVISORY POWER OF THE SUPREME COURT
ON CERTIFICATE OF OPINIONS OPPOSED.

By "An act to amend the judicial system of the United States," passed April 29, 1802, it is provided "that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement may happen shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified, under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall by the said court be finally decided. And the decision of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment or order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits: And provided also, That imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are Ch. 20 : 1 Stat. at Large, p. 73.

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