The Judiciary Act of 1789 provided that each of the several federal courts should have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law; and that either of the justices of the Supreme Court, as well as the district judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitment: provided that in no case should such writs extend to [346] prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed to trial before some court of the same, or were necessary to be brought into court to testify.1 Under this statute no court of the United States or judge thereof could issue a habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, for any other purpose than to be used as a witness. And this was so whether the imprisonment was under civil or criminal process.2

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During what were known as the nullification troubles in South Carolina, the defect of federal jurisdiction in respect to this writ became apparent, and another act was passed, having for its object, among other things, the protection of persons who might be prosecuted under assumed State authority for acts done under the laws of the United States. This act provided 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, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of law, for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof.3

In 1842 further legislation seemed to have become a necessity,

1 1 Statutes at Large, 81.

2 Ex parte Dorr, 3 How. 103.

3 4 Stat. at Large, 634. See Ex parte Robinson, 6 McLean, 355; s. c. 1 Bond, 39; U. S. v. Jailer of Fayette Co., 2 Abb. U. S. 265. Robinson was United States marshal, and was imprisoned under a warrant issued by a State court for executing process under the Fugitive Slave Law, and was discharged by a justice of the Supreme Court of the United States under this act.

in order to give to the federal judiciary jurisdiction upon this writ of cases in which questions of international law were involved, and which, consequently, could only properly be disposed of by the jurisdiction to which international concerns were by the Constitution committed. The immediate occasion for this legislation was the arrest of a subject of Great Britain by the authorities of the State of New York, for an act which his government avowed and took the responsibility of, and which was the subject of diplomatic correspondence between the two nations. An act of Congress was consequently passed, which provides that either of the justices of the Supreme Court, or any judge of any District Court of the United States in which a prisoner is confined, in addition to the authority previously conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign State, and domiciled therein, shall be committed, or confined, or in custody, under or by any authority, or law, or process founded thereon, of the United States or of any one of them, 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, or order, or sanction of any foreign State or sovereignty, the validity or effect whereof depends upon the law of nations, or under color thereof.1

In 1867 a further act was passed, which provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.2

These are the cases in which the national courts and judges have jurisdiction of this writ: in other cases the party must seek his remedy in the proper State tribunal.3 And although

15 Stat. at Large, 539. McLeod's Case, which was the immediate occasion of the passage of this act, will be found reported in 25 Wend. 482. It was reviewed by Judge Talmadge in 26 Wend. 663, and a reply to the review appears in 3 Hill, 635.

214 Stat. at Large, 385.

• Ex parte Dorr, 3 How. 103; Barry v. Mercein, 5 How. 103; Dekraft v. Barney, 2 Black, 704. See United States v. French, 1 Gall. 1; Ex parte Barry, 2 How. 65.

[*347] the State courts formerly *claimed and exercised the right to inquire into the lawfulness of restraint under the national authority,1 it is now settled by the decision of the Supreme Court of the United States, that the question of the legality of the detention in such cases is one for the determination, exclusively, of the federal judiciary, so that although a State court or judge may issue this process in any case where illegal restraint upon liberty is alleged, yet when it is served upon any officer or person who detains another in custody under the national authority, it is his duty, by proper return, to make known to the State court or judge the authority by which he holds such person, but not further to obey the process; and that as the State judiciary have no authority within the limits of the sovereignty assigned by the Constitution to the United States, the State court or judge can proceed no further with the case.2

The State constitutions recognize the writ of habeas corpus as an existing remedy in the cases to which it is properly applicable, and designate the courts or officers which may issue it; but they do not point out the cases in which it may be employed. Upon this subject the common law and the statutes must be our guide; and although the statutes will be found to make specific provision for particular cases, it is believed that in no instance which has fallen under our observation has there been any intention to restrict the remedy, and make it less broad and effectual than it was at the common law.3

See the cases collected in Hurd on Habeas Corpus, B. 2, c. 1, § 5, and in Abb. Nat. Dig. 609, note.

Ableman v. Booth, 21 How. 506. See Norris v. Newton, 5 McLean, 92; United States v. Rector, 5 McLean, 174; Spangler's Case, 11 Mich. 298; In re Hopson, 40 Barb. 34; Ex parte Hill, 5 Nev. 154. Notwithstanding the decision of Ableman v. Booth, the State courts have frequently since assumed to pass definitely upon cases of alleged illegal restraint under federal authority, and this, too, by the acquiescence of the federal officers. As the remedy in the State courts is generally more expeditious and easy than can be afforded in the national tribunals, it is possible that the federal authorities may still continue to acquiesce in such action of the State courts, in cases where there can be no reason to fear that they will take different views of the questions involved from those likely to be held by the federal courts. Nevertheless, while the case of Ableman v. Booth stands unreversed, the law must be held to be as there declared. It has recently been approved in Tarble's Case, 13 Wall. 397, Chief Justice Chase dissenting.

See Matter of Jackson, 15 Mich. 417, where this whole subject is fully considered. The application for the writ is not necessarily made by the party in

We have elsewhere referred to certain rules regarding the validity of judicial proceedings.1 In the great anxiety on the part of our legislators to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse.2 Where a * party who is in confinement under judicial [* 348] process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: 1. Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the

person, but may be made by any other person on his behalf, if a sufficient reason is stated for its not being made by him personally. The Hottentot Venus Case, 13 East, 195; Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the application. Cobbett's Case, 15 Q. B. 181, note; Cobbett v. Hudson, 10 Eng. L. & Eq. 318; s. c. 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when in prison.

1 See post, p. 397 et seq.

2 It is worthy of serious consideration whether, in those States where the whole judicial power is by the constitution vested in certain specified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the District Courts, was sustained in Ex parte Bollman and Swartwout, 4 Cranch, 75, and Matter of Metzger, 5 How. 190, on the ground that it was appellate. See also Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 Pet. 704; Matter of Kaine, 14 How. 103; Rowe v. Rowe, 27 Mich.

3 The validity of the appointment or election of an officer de facto cannot be inquired into on habeas corpus. Ex parte Strahl, 16 Iowa, 369; Russell v. Whiting, 1 Wins. (N. C.) 463. Otherwise if a mere usurper issues process for the imprisonment of a citizen. Ex parte Strahl, supra.

process, or on regular appellate proceedings. 2. If the process is not void for want of jurisdiction, the further inquiry will be made, whether, by law, the case is bailable, and if so, bail will be taken if the party offers it; otherwise he will be remanded to the proper custody.2

This writ is also sometimes employed to enable a party to enforce a right of control which by law he may have, springing from some one of the domestic relations; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not generally go farther in these cases than to determine what is for the best interest of the child; and they do not feel compelled to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case ;3 and it is especially proper in many cases where the parents are living in separation and both desire his custody. The right of the father, in these cases, is generally recognized as best; but this

1 People v. Cassels, 5 Hill, 164; Bushnell's Case, 9 Ohio, N. s. 183; Ex parte Watkins, 7 Pet. 568; Matter of Metzger, 5 How. 191; Petition of Smith, 2 Nev. 338; Ex parte Gibson, 31 Cal. 619; Hammond v. People, 32 Ill. 472, per Breese, J. In State v. Shattuck, 45 N. H. 211, Bellows, J., states the rule very correctly, as follows: "If the court had jurisdiction of the matter embraced in these causes, this court will not, on habeas corpus, revise the judgment. State v. Towle, 42 N. H. 541; Ross and Riley's Case, 2 Pick. 166, and Riley's Case, ib. 171; Adams v. Vose, 1 Gray, 51. If in such case the proceedings are irregular or erroneous, the judgment is voidable and not void, and stands good until revised or annulled in a proper proceeding instituted for that purpose; but when it appears that the magistrate had no jurisdiction, the proceedings are void, and the respondent may be discharged on habeas corpus. State v. Towle, before cited; Kellogg, Ex parte, 6 Vt. 509. See also State v. Richmond, 6 N. H. 232; Burnham v. Stevens, 33 N. H. 247; Hurst v. Smith, 1 Gray, 49."

2 It is not a matter of course that the party is to be discharged even where the authority under which he is held is adjudged illegal. For it may appear that he should be lawfully confined in different custody; in which case, the proper order may be made for the transfer. Matter of Mason, 8 Mich. 70; Matter of Ring, 28 Cal. 247; Ex parte Gibson, 31 Cal. 619. And where he is detained for trial on an imperfect charge of crime, the court, if possessing power to commit de novo, instead of discharging him, should proceed to inquire whether there is probable cause for holding him for trial, and if so, should order accordingly. Hurd on Habeas Corpus, 416.

3 Commonwealth v. Aves, 18 Pick. 193.