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§ 368. Appeals in habeas corpus proceedings.- Before the Evarts Act of March 3, 1891, an appeal might be taken to the Supreme Court from the final decision of a Circuit Court of the United States, upon an application for a writ of habeas corpus, or upon such writ when issued, in the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States; and in the case of a prisoner who, being a subject or citizen of a foreign State and domiciled therein, is committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign State or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof." No appeal lies from a decision of a judge of a Circuit Court of the United States, either to the Supreme Court, or to a Circuit

$368. 1 U.S. R. S., & 764, as amended and that this order be recorded in by 23 St. at L., ch. 353, p. 437. said court. Hugh L. Bond, Circuit

? Carper v. Fitzgerald, 121 U. S. 87. Judge." The order was held to be In that case the petition was pre not a court order, but a judge's order, sented to the Circuit Judge at his and consequently not appealable to Chambers in Baltimore. He directed the Supreme Court, although it had the clerk of the Circuit Court for the been docketed there as an appeal Eastern District of Virginia, within from the Circuit Court. which the petitioner was imprisoned, In Re Palliser, 136 U. S. 257, the to issue a writ returnable before him following order was held by the Suat the United States Court House in preme Court to be a court order and Baltimore. The writ was accord- not a judge's order, and consequently ingly issued, under the seal of the appealable, although the Circuit court in the usual form of Circuit Court which rendered it was of a Court writs, returnable“ before the contrary opinion: Honorable Hugh L. Bond, Judge of "In the matter of the petition of our Circuit Court of the United Charles Palliser for the writ of haStates for the Eastern District of beas corpus. Upon reading and filVirginia, sitting at the United States ing the petition of Charles Palliser, Court House in Baltimore, Mary- sworn to November 26, 1880, and the land." Upon a demurrer to the re- writs of habeas corpus and certiorari turn of the writ, an order of discharge thereupon issued, directed to Hon. was entered. At the foot of this or- Martin T. McMahon, marshal for the der was the following: “And it is United States for the Southern Disordered that the papers in this case trict of New York, and the Hon. John be filed in the Circuit Court of the A. Shields, United States CommisUnited States at Richmond, Virginia, sioner, and returns to said writs made

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Court of Appeals. From the final decision of a justice or judge of the United States inferior to the Circuit Court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal, before the Evarts Act of March 3, 1891, might be taken to the Circuit Court for the district in which the cause was heard, under the same circumstances as would authorize an appeal from a Circuit Court to the Supreme Court.* How much of this appellate jurisdiction was repealed by the Evarts Act is not entirely settled. The rule seems to be: that the Supreme Court may review an order of a Circuit or District Court upon an application for the writ of habeas corpus when a constitutional or a jurisdictional question or a question involving the construction of a treaty is involved. In the case of a jurisdictional question which does not involve the construction of the Constitution of the United States, that question alone is certified to the Supreme Court by the court below.6 In other cases of habeas corpus the Circuit Courts of Appeals may review the decisions of the Circuit and District Courts, and perhaps of the district judges at chambers. by said marshal and said commis- order discharging the prisoner wasen. sioner; now after hearing Roger tered at a stated term of the Circuit Foster, Esq., of counsel for Charles Court. Harkrader v. Wadley, 172 U. S. Palliser, in support of an application 148. The hearing of the argument for the discharge of said Palliser in chambers is immaterial when no from custody, said Palliser having objection was made upon that ground been produced before this court by below and the order is a court order. said marshal in obedience to said Roberts v. Reilly, 110 U. S. 80. The writ of habeas corpus; and after Supreme Court cannot review a dehearing Daniel O'Connell, Esq., As- cision of a Circuit Court upon an sistant United States Attorney, in application for the writ because of a opposition to said application, and certificate of a division between two in support of an application to re- judges. Ex parte Fom Fong, 108 U. mand said Palliser to custody, and S. 556; Ex parte Cota, 110 U. S. 385. due deliberation having been had, 3 Ex parte Jacobi, 104 Fed. R. 681. it is

4U. S. R. S., $ 763. “Ordered that said writ be dis- 5 Ekiu v. U. S., 142 U.S. 651; Horner missed, and that said Palliser be, and v. U. S., 146 U. S. 120. he hereby is, remanded to the custody 6 26 St. at L. 826, $ 4. of the said Martin T. McMahon, mar- 7 26 St. at L. 826, § 5; Lau Ow shal of the United States for the Bew v. U. S., 144 U. S. 67; U. S. v. Southern District of New York. Fowkes, 53 Fed. R. 13; King v. Mc

“E. HENRY LACOMBE." Lean Asylum of Mass. Gen. Hospital See also Carico v. Wilmore, 51 Fed. (C. C. A.), 64 Fed. R. 325. R. 200; In re King, 51 Fed. R. 434, 440. 8 Webb v. York (C. C. A.), 74 Fed.

The order is appealable when the R. 753. writ was granted at chambers, but the

Where there is no question as to the jurisdiction to grant the writ of habeas corpus, but the application attacks collaterally another judgment, decree or order of the same or another court, it seems that the appeal lies only to the Circuit Court of Appeals, unless a constitutional or a treaty question is distinctly raised below; o or, perhaps, unless in the case of a “prisoner who, being a subject or citizen of a foreign State and domiciled therein, is committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or committed under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign State or sovereignty, the validity or effect whereof depend upon the law of nations, or under color thereof." 10 In the latter case the Supreme Court may have jurisdiction to review the decision of the Circuit Court of Appeals upon an appeal from an order of a district judge as well as from an order of a District or Circuit Court.Appeals from the judgments and orders of the District Courts and of the district judges, upon writs of habeas corpus, must be taken within six months from the judgment or order of which complaint is made. It may be held that the same limitation applies to appeals from orders or judgments of the Circuit Courts of Appeals which review decisions of the District Courts and district judges; 13 perhaps to all appeals in habeas corpus cases. The Supreme Court may by certiorari review any decision of a

decision of a Circuit Court of Appeals in such a case; and a Circuit Court of Appeals may certify to the Supreme Court any questions or propositions of law arising therein, concerning which it desires instruction." No appeal lies to the Supreme Court from a decree, judgment or order of a court of the District of Columbia upon a writ of habeas corpus.15

Upon an appeal from a decision upon an application for the writ of habeas corpus, the appellate court has the power to review the decision below upon the facts as well as the law; 16

9 In re Lennon, 150 U. S. 393.
10 U. S. R. S., 8 763.
11 Ibid.

12 27 St. at L 751; In re Lennon, 150 U. S. 393.

13 Ibid.

14 26 St. at L. 826, § 6; Lau Ow Bew v. U. S., 144 U. S. 67.

15 Cross v. Burke, 146 U. S. 82.
16 In re Neagle, 135 U. S. 1, 42.

but not the power to review the decision of disputed questions of fact by a tribunal or magistrate whose decision is brought before it collaterally."? No new evidence can be offered upon such an appeal, except such evidence as was offered and excluded in the court below.18 Pending an appeal from a final decision declining to grant a writ of habeas corpus, the custody of the prisoner must not be disturbed.19 Pending an appeal from a final decision discharging the writ after it has been issued, the prisoner must be remanded to the custody from which he was taken, unless for good cause shown he is detained in the custody of the court or judge that granted the writ, or is enlarged upon recognizance, as described in the next sentence.20 Pending an appeal from the final decision of any court or judge discharging a prisoner upon habeas corpus, he must be enlarged upon recognizance for appearance to answer the judgment of the appellate court, with a surety, unless for special reasons surety is not required. Pending such proceedings and appeal and until final judgment therein, and after final judgment of discharge, any proceeding for any matter so heard and determined, or in process of being heard and determined, taken in any State court or by or under the authority of any State, against the person whose body is the subject of the writ, is null and void. The next friend of an alleged lunatic was allowed to take an appeal from a judgment remanding him to an insane asylum, and to prosecute the same until a guardian was appointed.23 An appeal can be taken from an order refusing to grant the writ in the same manner as from an order refusing to discharge the prisoner upon the return.24 A Circuit Court refused to allow an appeal from an order denying the

17 Benson v. McMahon, 127 U: S. 457. 20 S. C. Rule 34, 117 U. S. 708; U.S. 18 Seavey v. Seymour, 3 Cliff. 439. R. S., & 765.

19 S. C. Rule 34, 117 U. S. 708; U. S. 21 S. C. Rule 34, 117 U. S. 708; U. S. R. S., 8 765. But see King v. McLean R. S., S 765. Asylum of Mass. Gen. Hospital (C. C. 22 U. S. R. S., & 766. See Ex parto A.), 64 Fed. R. 325. Pending an ap- Jugiro, 44 Fed. R. 754. peal from the denial of the writ, 23 King v. McLean Asylum of Mass. there will be no interference by the Gen. Hospital (C. C. A.), 64 Fed. R. Federal court with the requirement 325. by the State authorities that the 24 Ex parte Snow, 120 U. S. 274 prisoner perform hard labor. In re McKane, 61 Fed. R. 28, 205.

writ in a capital case where the conviction had been affirmed by the Supreme Court of the United States and the case was clearly frivolous.Security for costs is required upon such an appeal. It is more appropriate and orderly for the State court to defer action in such a case until the mandate of the Supreme Court has been issued and filed in the Circuit Court; but after judgment has been entered in the Supreme Court, an order of the State court is not void; although the State court then acts at the risk that its orders may be controlled, and if need be annulled, if the Supreme Court during the term should suspend or set aside its own judgment. Other proceedings upon such an appeal, including the time when the transcript is to be filed in the appellate court, are regulated by the court or judge hearing the cause. The appeal may thus be heard at a term pending when it is taken. No writ of error lies to the order or judgment of a Circuit Court upon an application for a writ of habeas corpus.30

§ 368a. Writs of quo warranto.— The better opinion is that the courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue to try the title to the office of President of the United States. The Revised Statutes provide that “whenever any person holds office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution, the district attorney for the district in which such person holds office shall proceed against him by writ of quo warranto, returnable to the Circuit or District Court of the United States in such district,

25 In re Durrant, 84 Fed. R. 314. pressed before the Electoral Commis26 In re Newman, 79 Fed. R. 615. sion in 1876. Proceedings of Electoral

27 In re Shibuya Jugiro, 140 U. S. Commission, pp. 42, 43; 2 Field's 291, 296; Lambert v. Barrett, 159 Speeches & Papers, 405. He expressed U. S. 660.

the same opinion in Congress. 2 28 U. S. R. S., § 768. But see Ex Field's Speeches & Papers, pp. 414parte Jugiro, 44 Fed. R. 754, cited 417. Charles O'Conor gave Samuel supra, $ 367, note 9.

J. Tilden an opinion to the same ef29 Roberts v. Reilly, 110 U. S. 80. fect. Senator Matthew H. Carpen

30 In re Morrissey, 137 U. 8. 157, 158; ter expressed the opposite view in his In re Neagle, 135 U. S. 1, 42.

argument before the Electoral Com$368a. This was the opinion of mission. Proceedings of Electoral Hon. David Dudley Field, as ex- Commission, pp. 272, 273.

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