this note, upon other notes of which this was a consolidation, and also upon this note, usurious interest aggregating $580, which they asked to have deducted from the principal sum of $2,240, represented by this note, thereby reducing the plaintiff's claim to $1,660.

note) the sum of $2,199.35 in cash, making the amount reserved out of the note when it was made $40.65. That there had been paid cash discounts upon the several renewals of the notes which constituted the $2,240 note sued upon, down to October 24, 1894, exclusive of the amounts reserved out of the notes at the time they were originally given, We understand it to be conceded that, as the sum of $566.70, which cash discounts the note in question was given to a national were paid in advance at the dates of the sev-bank, the definition of usury and the penaleral renewals. That the whole amount of ties affixed thereto must be determined by discounts and interest paid, as well as those the national banking act, and not by the law deducted by the bank, upon all said loans of the state. Farmers' & M. Nat. Bank v. from the beginning to the end down to and Dearing, 91 U. S. 29, 23 L. ed. 196. In that including the note sued on, was $947.50. case it was held that a law of New York forThat these payments were made in excess of feiting the entire debt for usury was superthe legal rate for said loans. seded by the national banking law, and that such law was only to be regarded in determining the penalty for usury.

Upon this report the court entered judgment in favor of the plaintiff for $2,199.35 (or, apparently, by mistake $2,199), that being the face of the note sued on after deducting the discount of $40.65, reserved when the note was executed. Upon appeal to the supreme court this judgment was affirmed (155 Mo. 58, 55 S. W. 1015), and defendants sued out this writ of error.

ror:

That part of the original national banking act which deals with the subject of usury and interest is now embraced in §§ 5197 and 5198 of the Revised Statutes, the first one of which authorizes national banks to charge interest "at the rate allowed by the laws of the state," and, when no rate is fixed by such laws, a maximum rate of 7 per cent. The next section is as follows:

Messrs. James Baker and Seward A. Haseltine submitted the cause, and Mr. "5198. The taking, receiving, reserving, or James Baker filed a brief for plaintiffs in er- charging a rate of interest greater than is allowed by the preceding section, when knowAppellants were entitled to have the usuri-ingly done, shall be deemed a forfeiture of ous interest paid applied upon the note of respondent.

Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390; Moniteau Nat. Bank v. Miller, 73 Mo. 187; First Nat. Bank v. Turner, 3 Kan. App. 352, 42 Pac. 936; Guthrie v. Reid, 107 Pa. 251; National Bank v. Lewis, 75 N. Y. 516, 31 Am. Rep. 484; National Bank v. Davis, 6 Cent. L. J. 106: Sydner v. Mt. Sterling Nat. Bank, 94 Ky. 231, 21 S. W. 1050.

Mr. John Ridout submitted the cause for defendant in error:

By U. S. Rev. Stat. § 5198, a new right and new remedy were created, and the remedy provided by that section is exclusive of any other.

Barnet v. Muncie Nat. Bank, 98 U. S. 558, 25 L. ed. 213; Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658; Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336; Carter v. Carusi, 112 U. S. 478, 28 L. ed. 820, Sup. Ct. Rep. 281.

The decisions of this court construing the sections of the national bank act must prevail over decisions of the state courts.

Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 33, 23 L. ed. 198.

[134] *Mr. Justice Brown delivered the opin

ion of the court:

The only question involved in this case is whether, in an action upon a note given to a national bank, the maker may set off usurious interest paid in cash upon renewals of such note, and of all others of which it was a consolidation.

In this case, defendants sought to show that they had paid to the plaintiff bank within two years prior to the execution of

the entire interest which the note, bill, or
other evidence of debt carries with it, or
which has been agreed to be paid thereon.
In case the greater rate of interest has been
paid, the person by whom it has been paid,
or his legal representatives, may recover
*back in an action, in the nature of an action[135]
of debt, twice the amount of the interest thus
paid from the association taking or receiv-
ing the same; provided such action is com-
menced within two years from the time the
usurious transaction occurred."

Two separate and distinct classes of cases are contemplated by this section; first, those wherein usurious interest has been taken, received, reserved, or charged, in which case there shall be "a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon;" second, in case usurious interest has been paid, the person paying it may recover back twice the amount of the interest "thus paid from the association taking or receiving the same."

While the first class refers to interest taken and received, as well as that reserved or charged, the latter part of the clause apparently limits the forfeiture to such interest as the evidence of debt carries with it, or which has been agreed to be paid, in contradistinction to interest actually paid, which is covered by the second clause of the section. Carrying this perfectly obvious distinction in mind, the cases in this court are entirely harmonious.

That of Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390, arose under the first clause. The facts are not stated in the report of the case, but referring to the original record, it appears that plaintiff sued the bank to recover twice

the amount of certain usurious interest paid |
to it. Another action was consolidated with
this, in which plaintiff sought to enjoin de-
fendant from proving certain notes against
the estate of which he was assignee, in which
a large amount of usurious interest had been
included.

suit by a bank upon a note, upon several re-
newals of *which usurious interest had been [13'
paid. It was said that, as the claim was
not for interest stipulated for and included
in the note sued on, but for the application
of what had been actually paid as interest
to the discharge of principal, there could be
no set-off against the face of the notes.

In Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336,-a similar case of interest actually paid, the averments of the defense were made under the first clause of the section; that "the bank knowingly took, received, and charged" usurious interest, but as it else where appeared that the interest stipulated had not been included in the note, but that interest had been actually paid at the time of the discount and renewals, which it was sought to apply to the discharge of the principal, the defense was held insufficient.

In the opinion a distinction is drawn between usurious interest carried with the evidence of debt or which has been agreed to be paid, and interest which has actually been paid, and it was said that interest included in a renewal note, or evidenced by a separate note, does not thereby cease to be interest within the meaning of § 5198, and become principal; and that, in a suit by a national bank upon the note, the debtor may insist that the entire interest, legal and usurious, [136] included in his written obligation and agreed to be paid, but which has not been actually paid, shall be either credited on the note or eliminated from it, and judgment given The construction of both clauses of this only for the original principal debt, with section having been thus settled by this interest at the legal rate from the com- court, it only remains to determine to which mencement of the suit; and that the forfeit-class of cases the one under consideration ure declared by the statute is not waived or properly belongs. As to this there can be avoided by giving a separate note for the no room for doubt. The referee finds that interest, or by giving a renewal note in there was paid cash discounts on the several which is included the usurious interest. It renewals of the notes which constitute the was further held that interest included in a $2,240 note, as well as the renewal of said renewal note is not interest paid, since, if note as executed, down to October 24, 1894, it were so, the borrower could, under the sec- exclusive of the amounts reserved out of the ond clause of the section, sue the lender and notes at the time they were originally given, recover back twice the amount of the inter- the sum of $566.70, which cash discounts est thus paid, when he had not, in fact, paid were paid in advance at the date of the sevthe debt nor any part of the interest as such, eral renewals. He further found that the The words, "in case the greater rate of in- "defendants in their answer are only asking terest has been paid," in § 5198, refer to in- credit for the payments down to and includterest actually paid, as distinguished from ing October 29, 1894, which aggregate the interest included in the note and "agreed to sum of $540.40." Under the rulings last be paid." above cited the person making these cash payments can only recover them back by a direct action against the association taking or receiving the same.

The cases under the second clause of the section are more numerous. Barnet V. Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. 212, was an action by a national bank upon a bill of exchange. Defendants set up that the acceptors had been constant borrowers from the bank for several years, and that it had taken from them a large amount of usurious interest; that the bill in suit was the last of eight renewals, and that illegal interest had been taken upon the series to the amount of $1,116, which it was insisted should be applied as a payment upon the bill in question. It was also insisted that illegal interest had been taken upon other bills of exchange to the amount of $6,363.24, and that the defendants were entitled to recover double this amount from the bank. It was held that the state statutes upon the subject of usury, should be laid out of view, and that where a statute created a new right or offense and provided a specific remedy or punishment, that remedy alone could apply; that the payment of usurious interest being distinctly averred, it could not be recovered by way of offset or payment of the bill in suit, and that the same rule applied to the payment of interest upon other bills of exchange which the defendants sought to recover back.

The case of Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658, was a like'

Argued November 19, 20, 1901. Decided De- would deprive him of his life without due

tion or of a law or treaty of the United States.

None of the statutes passed since the adoption of the Revised Statutes relating specifically to the jurisdiction of the circuit courts, and involving money values as a con

the lawful action of the governor in granting a respite, that no lawful action had been taken by the governor in the matter, and Ex parte Royall, 117 U. S. 241, 29 L. ed. that therefore the petitioner was deprived 868, 6 Sup. Ct. Rep. 734; Re Neagle, 135 U. of his liberty contrary to the 14th Amend-S. 1, sub nom. Cunningham v. Neagle, 34 L. ment; and, eighth, that for the same rea-ed. 55, 10 Sup. Ct. Rep. 658; Re Burrus, 136 son he was deprived of his liberty contrary U. S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. to the 14th Amendment and the 3d article 850. of the treaty between the United States and Italy. The 3d article of the treaty between the United States and Italy, referred to in this petition, is as follows: "The citizens of each of the high contract-dition of such jurisdiction, has taken from ing parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect [141]the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives."

On the presentation of this petition to the circuit court, that court dismissed the same for want of jurisdiction, without prejudice to an application to the courts of the state. Re Storti, 109 Fed. 807. A certificate of this fact was signed by the circuit judge, and from the order dismissing the petition an appeal was taken to this court.

Messrs. G. Philip Wardner and William M. Stockbridge argued the cause and filed a brief for appellant:

The sole question for determination is whether the circuit court had jurisdiction to entertain the petition.

Horner v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522; Chappell v. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40; Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526; Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Rep. 570.

The question of jurisdiction is entirely distinct from a determination of the cause upon its merits.

Nashville, C. & St. L. R. Co. v. Taylor, 86
Fed. 168:

said courts their jurisdiction to issue writs of habeas corpus under § 753, in the case of a prisoner in jail, where he is in custody in violation of the Constitution or a law or treaty of the United States.

United States v. Mooney, 116 U. S. 104, 29 L. ed. 550, 6 Sup. Ct. Rep. 304; Re Hohorst, 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; King v. McLean Asylum of Mass. General Hospital, 26 L. R. A. 784, 12 C. C. A. 145, 21 U. S. App. 481, 64 Fed. 331.

This court has repeatedly sustained its jurisdiction of an appeal from, or a writ of error to, the highest court of a state, under U. S. Rev. Stat. § 709, when that question has been raised by motion to dismiss or otherwise, and has nevertheless affirmed the decision of the state court, showing conclusively the distinction between the question of jurisdiction and the determination of the cause upon its merits.

Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681. See also Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Lehigh Water Co. v. Easton, 121 U. S. 388, 30 L. ed. 1059, 7 Sup. Ct. Rep. 916; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Roby v. Colchour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488.

The principles governing cases arising under § 709 do not necessarily turn on its The earliest statute conferring habeas cor-specific language. Moreover, while the lanpus jurisdiction is the 14th section of the guage of § 709 is broad enough to cover any judiciary act of 1789 (1 Stat. at L. 81, chap. case, however flimsy, nevertheless this court 20). This gave the Federal courts jurisdic-has held that it had no jurisdiction under tion "in all cases to which the judicial power that section if the claim was fraudulent or of the United States extends, other than frivolous. those expressly excepted from it."

Millingar v. Hartupee, 6 Wall. 258, 18 L. Ex parte Yerger, 8 Wall. 85, 19 L. ed. 332. ed. 829: New Orleans v. New Orleans WaterUnder this statute the court, though enter-works Co. 142 U. S. 79, 35 L. ed. 943, 12 taining a doubt "in favor of liberty, was Sup. Ct. Rep. 142; Hamblin v. Western Land willing to grant the habeas corpus." Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Fx parte Burford, 3 Cranch, 448, 2 L. ed. Rep. 353. 495.

It has been determined that § 753 of the Revised Statutes, in providing that the writ of habeas corpus would in no case be extended to a prisoner in jail, "unless he

is in custody in violation of the Constitution or of a law or treaty of the United States," has by necessary implication affirmatively enacted that the writ shall is sue, even in the case of a prisoner in jail, if he is in custody in violation of the Constitu

It would seem no more difficult to read into $753 the qualification that the court would have jurisdiction of any petition for habeas corpus by a prisoner in jail, where it was drawn in question, or claimed that his custody was in violation of the Constitution or of a law or treaty of the United States, there being, of course, the same qualification as to fraudulent or frivolous claims.

The decisions of this court under § 5 of the court of appeals act (act March 3, 1891,

chap. 517, 26 Stat. at L. 826) are perhaps | 405, 9 Sup. Ct. Rep. 77; Re Burrus, 136 U. even more apposite.

Cornell v. Green, 163 U. S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969. See also Tennessee v. Union & P. Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Ansbro v. United States. 159 U. S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct. Rep. 223.

A similar doctrine has been laid down in determining whether circuit courts have jurisdiction of suits originally brought therein or removed thereto from state courts, on the ground that the proceedings were suits of a civil nature, at law or in equity, and "arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority."

Tennessce v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653. See also Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Cooke v. Avery, 147 U. S. 384, 37 L. ed. 212, 13 Sup. Ct. Rep. 340; Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051.

Whether there is a claim which presents a Federal question, and whether that claim is well founded when considered on its merits, are distinct and different questions. The one goes to jurisdiction, and the other to the merits of the case.

See also Re Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123.

S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850. The operation of the 14th Amendment is not confined to the cases where the legislature has not done its duty, but covers cases where a person is in danger of being deprived of his life or liberty or property through the unlawful action of the instrumentalities of the state, either legislative, executive, or judicial, or by any person acting by virtue of public position under a state government, and enabled by reason of his position so to act.

Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; United States v. Ryan, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Smoot v. Kentucky C. R. Co. 13 Fed. 337; Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 168; Ex parte Ulrich, 42 Fed. 587; Re Kelley, 46 Fed. 653; Re Friedrich, 51 Fed. 747.

Mr. Hosea M. Knowlton argued the cause, and, with Mr. Arthur W. De Goosh, filed a brief for appellees:

No Federal question can arise upon the legality of the first respite granted to the prisoner.

Lambert v. Barrett, 157 U. S. 697, 39 L. ed. 865, 15 Sup. Ct. Rep. 722.

There is no allegation that the statute of 1898, chap. 326, is unconstitutional, or that the courts of Massachusetts have failed to protect the rights of the petitioner whenever they have been properly asserted. In that respect the petition is insufficient, and no question of constitutional law is presented. Whitten v. Tomlinson, 160 U. S. 231, 40 L.

Unless the appellant's contention is correct the circuit court would never have juris-ed. 406, 16 Sup. Ct. Rep. 297. diction of a petition for habeas corpus, under that part of § 753 now under consideration, where at any stage of the case it should be of opinion that the petitioner was not in custody in violation of the Constitution or of a law or treaty of the United States, and a decision adverse to the petitioner would always be equivalent to a decision that the court had no jurisdiction; and no costs would in such case be taxable against the petitioner. Nashville v. Cooper, 6 Wall. 247, 18 L. ed.

The 14th Amendment does not confer upon the Federal courts jurisdiction to correct erroneous or wilfully improper acts of state officers or state courts in violation or disregard of law.

851.

United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Virginia v. Rives, 100 U. S. 313, sub nom. Ex parte Virginia, 25 L. ed. 667; United States v. Harris, 106 U. S. 629, 27 L. ed. 290, 1 Sup. Ct. Rep. 601; Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Legan v. United States, Under the practice prior to the act of Feb-144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. ruary 5, 1867, the function of the application or petition was not to determine whether, upon the facts alleged, the petitioner should be discharged from custody, but whether the facts alleged showed sufficient probable cause for such discharge.

Sims's Case, 7 Cush. 285.

Even if the justice in the lower court was satisfied that the facts alleged in the petition would not justify the issuing of the writ, he might, in his discretion, have ordered the writ to issue, and have disposed of the case after a return had been made to the writ, and after a full inquiry into the cause of commitment or detention.

Ex parte Terry, 128 U. S. 289, 32 L. ed.

617; Arrowsmith v. Harmoning, 118 U. S.
194, 30 L. ed. 243, 6 Sup. Ct. Rep. 1023.

The general allegation that the petitioner
is held in violation of this section of the
treaty is insufficient to confer jurisdiction.

Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297.

ion of the court:
*Mr. Justice Brewer delivered the opin-[141]

The grounds set forth in this petition for
tioner from the custody of the warden are
a discharge by the Federal court of the peti-
wholly without foundation, and the case is
another of the numerous instances in which,
as said by Mr. Chief Justice Fuller, in
Craemer v. Washington, 168 U. S. 124, 128,