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and should be asked in the complaint. The court or judge to whom such an application is made, if his jurisdiction appears, should forth with grant a writ of habeas corpus, unless it appears from the petition that the party is not entitled thereto. The writ is a writ of right; but it does not issue as of course. Some ground for it must be shown. A decision under one writ refusing to discharge the prisoner has been held to be no bar to the issue of any number of subsequent writs.10 Instead of issuing the writ in the first instance the court may enter a rule to show cause why it should not issue.' The Supreme Court will ordinarily refuse to issue the writ in a case of which a Circuit Court of the United States has jurisdiction, unless it is intended to review a decision of such Circuit Court.12 The
6 Ex parte Burford, 3 Cranch, 448; applications and appeals (Wood v. Ex parte Bollman, 4 Cranch, 75; Ex Brush, 140 U.S. 278; S. C., 140 U. S. 370), parte Martin, 5 Blatchf. 303; In re there was a similar judicial absence. Stupp, 12 Blatchf. 501. See supra, The counsel for Wood found Judge § 365.
Lacombe at his country residence, 7U. S. R. S., 8 755; In re Haskell, 52 and applied for an order denying the Fed. R. 795.
application for the writ, and an allow8 In re King, 51 Fed. R. 434, 435. ance of an appeal from such order to
9 In re King, 51 Fed. R. 434, 435; In the Supreme Court of the United re Durrant, 169 U. S. 39.
States. Judge Lacombe took the 10 Ex parte Kaine, 3 Blatchf. 1. But papers, and subsequently sent them see s. C., 14 How. 103; Ex parte Rob- to the clerk of the Circuit Court for inson, 6 McLean, 355; Ex parte the Southern District of New York, Cuddy, 40 Fed. R. 62; Ex parte Jugiro, with instructions to erase his signa44 Fed. R. 754; Carter v. McClaughry, ture from the allowance of the ap105 Fed. R. 614; King v. McLean peal and the citation if it appeared Asylum of Mass. Gen. Hospital (C. C. that the name of the counsel who A.), 64 Fed. R. 331, 350. But see In made the application was not on the re Simmons, 45 Fed. R. 241, where roll of members of the bar of that the petition showed a previous de court. This was done by the clerk nial of the writ. For a criticism of against the protest of Wood's counthe practice of counsel in applying sel, who was a member of the bar of for successive writs, see People v. the Supreme Court of the United Jugigo, 128 N. Y. 589. For a defense States, and as such claimed the right see 44 Alb. L. J. 21. In Jugigo's case, to practice in all courts of the United after two applications for the writ States. See supra, $ 100. had been denied and taken to the 11 Ex parte Milburn, 9 Pet. 704, note; Supreme Court by appeal and there Trial of Vallandigham, 45. See In re affirmed (Jugiro v. Brush, 140 U. S. Durrant, 84 Fed. R. 317. 291; s. C., 140 U. S. 686), a third appli- 12 Ex parte Mirzan, 119 U. S. 584; cation was prevented by the absence Ex parte Royall, 117 U. S. 254; Wales from New York City of all the Fed- v. Whitney, 114 U. S. 564; In re eral judges during the week preced- Kemmler, 136 U. S. 436; In re Hunting the executions.
ington, 137 U. S. 63. In Wood's case, after two similar
Supreme Court 13 and the inferior courts of the United States will ordinarily refuse to discharge by habeas corpus a prisoner held under indictment by a State court before trial of the indictment, and even after his conviction, if he has still a remedy by writ of error or appeal,15 in the courts of such State, except when the prisoner is an officer or employee of the United States,16 or perhaps in the case of an alien who claims under a treaty."? In a case where, upon a similar question, the State courts had decided erroneously, the court granted the writ and discharged the prisoner before trial.18 Where a district judge had upon the trial decided adversely to the claim of the petitioner, the circuit judge refused to review the question collaterally by habeas corpus.19 The Supreme Court will ordinarily refuse to entertain a petition for a habeas corpus by a prisoner held under an indictment found in a court of the United States or of the District of Columbia, when no motion to quash or proceeding to test the sufficiency of the indictment has been taken in the Circuit Court;20 or after conviction when there is a remedy by writ of error or appeal.21 The writ will be denied by the Supreme Court when it is impossible to dispose of it
13 Ex parte Royall, 117 U. S. 254; equally divided, and certified the Ex parte Clark, 128 U. S. 395; Ex question to the Supreme Court, parte Fonda, 117 U. S. 516.
which remanded the case without 14 Ex parte Royall, 117 U. S. 241, any decision as to the sufficiency of 254; Cook v. Hart, 146 U. S. 183; New the indictment, a district judge subYork v. Eno, 155 U. S. 89; Pepke v. sequently discharged the assured Corilari, 155 U. S. 100; Baker v. Grice, upon habeas corpus when held under 169 U. S. 284; Whitten v. Tomlinson, a second and different indictment 160 U. S. 231.
for the same acts. In re Benson, 58 15 Ex parte Frederich, 149 U. S. 70; Fed. R. 962, 972. Bergemann v. Backer, 157 U. S. 655. 20 Allen v. Black, 43 Fed. R. 228. “If
16 Ohio v. Thomas, 173 U. S. 276, the questions are of such a character 285; Boske v. Comnigore, 177 U. S. that it is thought desirable that the 459.
opinion of an appellate court should 17 Cohn v. Jones, 100 Fed. R. 639; be obtained, such a proceeding as Ex parte Royall, 117 U. S. 241, 254. this is the more appropriate way in
18 Iu re Reinitz, 39 Fed. R. 204. But which to raise them, for a decision see as to Supreme Court of District adverse to the government is reviewof Columbia, In re Chapman, 156 able by appeal, but a similar decision U.S. 211.
on the trial is final, as the govern19 In re Simmons, 45 Fed. R. 241. ment cannot appeal from a criminal But see In re Johnson, 46 Fed. R. 477. judgment.” Lacombe, J., in In re In a case where, upon demurrer to Terrell, 51 Fed. R. 213, 214. an indictment, the Circuit Court was 21 Anderson v. Treat, 172 U. S. 24.
before the term of imprisonment expires. When the application is made to a judge, he may decline to grant it if there is a doubtful question of law involved, since there is no appeal from his decision. 23
The writ when issued from the court, like other writs issued out of the Federal courts, must bear the seal of the court, be signed by the clerk, and bear teste of the presiding justice of the Supreme Court when issued therefrom or from a Circuit Court, and when issued from a District Court, of the judge thereof, or when that office is vacant, the clerk thereof.23 The writ must be directed to the person in whose custody the prisoner is detained.24 When the writ is issued in the case of an alien prisoner domiciled in a foreign State to which he owes allegiance, who is in custody by or under the law of any one of the United States, or process founded thereon, on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign State, or under color thereof, the validity and effect of which depend on the law of nations; notice of the said proceeding, to be prescribed by the court or judge issuing the writ, must be served on the Attorney-General or other officer prosecuting the pleas of said State; and due proof of such service must be made to the court or judge before the hearing:25 Otherwise, such notice is not necessary, although the prisoner is confined under the judgment or order of a State court or magistrate; 2 but the courts frequently require it.27
The person to whom the writ is directed must make a due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond the distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days. The return must be in writing,
22 In re Baez, 177 U. S. 378.
24 U. S. R. S., & 755. 23 U. S. R. S., SS 911, 912; Matter of 25 U. S. R. S., 8 762. Kaine, 14 How. 103, 119. The pris- 26 Matter of Leary, 10 Ben. 197. oner will not be discharged if his But see U. S. v. Jailer of Fayette present confinement is illegal, al. County, 2 Abb. U. S. 265. though he has also been sentenced 27 U. S. v. Jailer of Fayette County, to a further illegal term, which has 2 Abb. U. S. 265. not yet begun. In re Swan, 150 U.S. 28 U. S. R. S., 8 756.
signed by the person to whom the writ is directed,29 and certifying the true cause of the prisoner's detention.30 The person making the return must at the same time bring the body of the prisoner before the judge who granted the writ. 31 A failure to do this or to make a return may be punished by attachment. A false return may be similarly punished.33 If the prisoner is no longer under the control of the person to whom the writ is addressed, the latter must declare, so far as he knows, what has become of him. 34
Pending the hearing upon the return to a writ of habeas corpus the prisoner is in the custody of the court or judge that issued the writ, and may be admitted to bail or remanded to the jail from which he came, or placed in the custody of the marshal.35 He cannot, while in such custody, be arrested on a second warrant. When the writ is returned, a day must be set for the hearing of the cause not exceeding five days after the return, unless the party petitioning requests a longer time. 37 When the writ is granted by a justice of the Supreme Court in a case of which that court has jurisdiction, and the proceeding is in its nature appellate, that is, to review the proceedings of an inferior court, the justice may postpone the hearing until a session of the whole court.38 The applicant for the writ or the party imprisoned or restrained may deny under oath any of the facts set forth in the return, or may allege any other material facts.39 Only distinct and unambiguous statements of fact not denied by the return nor controverted by other evidence will be presumed to be admitted. The court or judge may
29 Seavey v. Seymour, 3 Cliff. 439. duction was ordered had been re30 U. S. R. S., $ 757. The return is moved from the State.
Ex parte not defective if a material fact not Young, 50 Fed. R. 526. stated therein appears in the peti- 35 Matter of Kaine, 14 How. 103. tion. In re Ab Toy, 45 Fed. R. 795. See 27 St. at L., ch. 60, p. 25; In re 31 U, S. R. S., 8 758.
Farez, 7 Blatchf. 345. 32 U. S. v. Bollman, 1 Cranch, C. C. 36 U.S. R. S., $759. 373; U. S. v. Green, 3 Mason, 482.
larke, 100 U. S. 399, 33 U.S. v. Davis, 5 Cranch, C. C. 622; 403. But see Matter of Kaine, 14 U. S. v. Williamson, 3 Am. L. Reg. How. 103. 729; S. C., 4 Am. L. Reg. 5.
38 U. S. R. S., $ 760. 34 U. S. v. Williamson, 4 Am. L. Reg. 39 Whitten v. Tomlinson, 160 U. S. 5. It was held that a State judge 231, 242; Kohl v. Lehbock, 160 U. S. acted within his jurisdiction in pun- 293. ishing a parent for disobedience to 40 U. S. R. S., & 760. the writ when the child whose pro
37 Ex parte
allow the return, and all suggestions against it, to be amended before or after the same are filed.41 The return is deemed to import verity unless impeached. The court or judge, upon the day set for the hearing, must proceed in a summary way to determine the facts, by hearing the testimony and arguments, and thereupon make an order discharging the prisoner, or remanding him to the custody from which he was removed by the writ.43
The present rule seems to be that the petitioner will ordinarily not be discharged if at the time of the return his imprisonment is lawful, although the application was made at a time when he was unlawfully restrained.44 The order for a discharge may provide that ten days' notice thereof be given to the prosecuting officer, or that the discharge may be delayed a reasonable time sufficient to afford an opportunity for the correction of a judgment under which the prisoner is held,44 or that the decision is without prejudice to the right of the government to take any lawful measures to have a new and valid sentence imposed by the trial court; 47 or when the court finds that the imprisonment is illegal, it seems that it may in a proper case, instead of ordering a discharge, direct that the prisoner be delivered to the marshal of the district 48 or to a representative of a foreign nation.49 The order of discharge is res adjudicata as to all questions therein determined.50 And when an officer of the United States is discharged after an indictment by a State court, it seems that no further prosecution for the same cause can be maintained against him in the courts of such State.51
41 Crowley v. Christensen, 137 U. S. 45 Re Medley, 134 U. S. 160, 175; Ro 86, 94.
Savage, 134 U. S. 176, 177. 42 U. S. R. S., S 761. See U. S. v. 46 In re Bonner, 151 U. S. 242, 259– Fowkes (C. C. A.), 53 Fed. R. 13; S. C., 262. 49 Fed. R. 50; In re Gut Lun, 83 Fed. 47 In re Bonner, 151 U. S. 242. R. 141; Ex parte Lennon, 166 U. S. 48 In re Gut Lun, 84 Fed. R. 323; In 548.
re Mineau, 45 Fed. R. 188. 44 Iasigi v. Van de Carr, 166 U. S. 49 Motherwell v. U. S. ex rel. Alex391. Cf. Ekiu v. U. S., 142 U. S. 651. androff (C. C. A.), 107 Fed. R. 437, 440. Contra, In re Doo Woon, 18 Fed. R. But see In re Fitton, 45 Fed. R. 471. 898. The petitioner was discharged 50 U. S. v. Chung Lee, 71 Fed. R. 277; when his imprisonment was lawful 8. c. in C. C. A., 76 Fed. R. 951; In re when the writ was allowed, but White, 45 Fed. R. 237. illegal at the time of its return. 51 In re Neagle, 135 U. S. 1; Kelly U. S. v. Patterson, 29 Fed. R. 775. v. Georgia, 68 Fed. R. 652.