CHAPTER VII. THE DEPARTMENT OF JUSTICE-HABEAS CORPUS THE COURT OF CLAIMS, ETC. Par. The Department of Justice..... 258-265 The Court of Claims-Continued. Par. 258. Examination of titles. -No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yard, custom-house, light-house, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United States, upon the application of the Attorney-General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. And the Secretaries of the Departments, upon the application of the Attorney-General, shall procure any additional evidence of title which he may deem necessary, and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments respectively. Sec. 355, R. S. 259. Emergency purchases. In case of emergency when, in the opinion of the President, the immediate erection of any temporary fort or fortification is deemed important and urgent, such temporary fort or fortification may be constructed upon the written consent of the owner of the land upon which such work is to be placed; and the requirements of section three hundred and fifty-five of the Revised Statutes shall not be applicable in such cases. Joint Res. No. 21, of Apr. 11, 1898 (30 Stat. 737). 260. Questions of law to be sent to the Attorney-General. Whenever a question of law arises in the administration of the Department of War or the Department of the Navy, the cognizance of which is not given by statute to some other officer from whom the head of the Department may require advice, it shall be sent to the AttorneyGeneral, to be by him referred to the proper officer in his Department, or otherwise disposed of as he may deem proper.2 Sec. 357 R. S. The Attorney-General in certifying the title of land purchased by the Government must look at the question as one of pure law, and can not relax the rules of law on account either of the desirableness of the object or the smallness of the value of the land. (VI Opin. Att. Gen., 432. See the chapters entitled the Public Lands and Contracts and Purchases. See, also, I Comp. Dec., 348.) The Attorney-General will only give official opinions on questions of law arising on facts which are authoritatively stated by a head of Department. (X Opin. Att. Gen., 267.) He has no authority to settle questions of fact, nor to give advice on questions of law, except for the assistance of the officer calling for his opinion on points stated. He takes the facts as they are stated to him and predicates his opinion on them. (III id., 309.) It is not the duty of the Attorney-General to give opinions on questions of fact, nor to review the proceedings of a court-martial in search of questions of law. (Vid., 626.) The Attorney-General will not give a speculative opinion on an abstract question of law, which does not arise in any case presented for the action of an Executive Department. (XI id., 189.) Nor will he review the opinion of 261. Opinions of Attorney-General. -The Attorney-General shall give his advice and opinion upon questions of law, whenever required by the President. Sec. 354, R. S. 262. Head of Department may require opinion. The head of any Executive Department may require the opinion of the AttorneyGeneral on any questions of law arising in the administration of his Department.1 Sec. 356, R. S. 263. The Department of Justice to render opinions. The officers of the Department of Justice, under the direction of the AttorneyGeneral, shall give all opinions and render all services requiring the skill of persons learned in the law necessary to enable the President and heads of Departments, and the heads of Bureaus and other officers in the Departments, to discharge their respective duties; and shall, on behalf of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested; and no fees shall be allowed or paid to any other attorney or counselor at law for any service herein required of the officers of the Department of Justice, except in the cases provided by section three hundred and sixty-three. Sec. 361, R. S. 264. Attorney-General to provide counsel. - Whenever the head of a Department or Bureau gives the Attorney-General due notice that the interests of the United States require the service of counsel upon the examination of witnesses touching any claim, or upon the legal investigation of any claim, pending in such Department or Bureau, the Attorney-General shall provide for such service. Sec. 364, R. S. 265. Published opinions of the Attorney-General. - The AttorneyGeneral shall from time to time cause to be edited, and printed at the Government Printing Office, an edition of one thousand copies of such of the opinions of the law officers herein authorized to be given as he may deem valuable for preservation in volumes, which shall be, as to size, quality of paper, printing, and binding, of uniform style and appearance, as nearly as practicable, with volume eight of such opinions, published, by Robert Farnham, in the year eighteen hundred and sixty-eight. Each volume shall contain proper a former Attorney-General, unless a proper case is presented therefor, and submitted by the head of a Department. (Id.) Where an official opinion from the Attorney-General is desired on questions of law arising on any case, the request should be accompanied by a statement of the material facts in the case, and also the precise questions on which advice is wanted. (XVI id., 367. See note to paragraph 265, post.) The Attorney-General is not authorized to give an official opinion in any case, except on the call of the President or some one of the heads of Departments. (1 Opin. Att. Gen., 211.) Subordinate officers of the Government who desire an official opinion of the Attorney-General must seek it through the head of the Department to which they are accountable. (Id.) headnotes, a complete and full index, and such footnotes as the Attorney-General may approve. Such volumes shall be distributed in such manner as the Attorney-General may from time to time prescribe.1 Sec. 383, R. S. 266. Habeas corpus. - The Supreme Court and the [circuit2 and] district courts shall have power to issue writs of habeas corpus. Sec. 751, R. S. 267. Same. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. Sec. 752, R. S. 268. Conditions on which the writ may issue. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an 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 whereof depend upon the law of nations; or 1 The opinions of successive Attorneys-General, possessed of greater or less amount of legal acumen, acquirement, and experience, have come to constitute a body of legal precedents and exposition, having authority the same in kind, if not the same in degree, with decisions of the courts of justice. (VI Opin. Att. Gen., 326.) The opinion of the Attorney-General for the time being is, in terms, advisory to the Secretary who calls for it; but it is obligatory as the law of the case unless, on appeal by such Secretary to the common superior of himself and the Attorney-General, namely, the President of the United States, it be by the latter overruled. (VII id., 692.) Although the acts prescribing the duties of the Attorneys-General do not declare the effect of their advice, it has been the practice of the Departments to heed it. It has been found greatly advantageous, if not absolutely necessary, to have uniformity of action upon analogous questions and cases; and that result is more likely to be attained under the guidance of a single Department, constituted for the purpose, than by a disregard of its opinions and advice. (V id., 97.) Circuit courts were abolished by the Judicial Code, Act of Mar. 3, 1911 (36 Stat. 1087, 1169). 3 The Supreme Court may issue the writ in virtue of its original jurisdiction only in cases affecting ambassadors, other public ministers, and consuls, or in those to which a State is a party. (Ex parte Hung Hang, 108 U. S., 552.) In the exercise of its appellate jurisdiction, it may issue the writ for the purpose of reviewing the judicial decision of some inferior officer or court. (Id., 553; Ex parte Bollman and Swartwout, 4 Cr., 75; Ex parte Watkins, 7 Pet.. 568; Ex parte Wells, 18 How., 307, 328; Ex parte Yerger, 8 Wall, 85; Ex parte Lange, 18 Wall., 163; Ex parte Parks, 93 U. S., 18; Ex parte Virginia, 100 U. S., 239; Ex parte Siebold, 100 U. S., 371.) Application to the Supreme Court for the issue of the writ must show that the case is within its jurisdiction. (In re Milburn, 9 Peters, 704.) unless it is necessary to bring the prisoner into court to testify.1 Sec. 753, R. S. 269. How application for writ shall be made. - Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application. Sec. 754, R. S. 270. Duty of court when application is made. The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained. Sec. 755, R. S. 271. Duty of person to whom writ is directed.-Any person to whom such writ is directed shall make 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 a 1 A justice of the Supreme Court may issue the writ in any part of the United States where he happens to be, and may make it returnable to himself, or may refer it to the court for determination. (Ex parte Clarke, 100 U. S., 399, 403.) The writ can not be made to perform the function of a writ of error. (Ex parte Virginia, 100 U. S., 339; Ex parte Reed, id., 13, 23.) The writ may be used in connection with the writ of certiorari to determine whether the court below acted with jurisdiction. (Ex parte Lange, 18 Wall., 163; Ex parte Virginia, 100 U. S., 339; Ex parte Siebold, id., 371) This section does not require that the law therein mentioned shall be by express act of Congress. Any obligation fairly and properly inferable from the Constitution, or any duty of a United States officer to be derived from the general scope of his duties, is a "law" within the meaning of the statute. (Cunningham v. Neagle, 135 U. S., 1. See also Ex parte Dorr, 3 How., 103; Ex parte Barnes, 1 Sprague, 133; Ex parte Bridges, 2 Woods, 428.) In the courts of the United States the practice prevailing at the common law at the time of the adoption of the Constitution is still pursued. The writ may be granted in term time or by a justice or judge of a Federal court, having jurisdiction to issue the writ, in vacation, or at any time, and may be issued by a justice of the Supreme Court in any part of the country, wherever he may be. (Hurd, Hab. Corp., 214; U. S. v. Clarke, 100 U. S., 403.) The usual course of proceeding is for the court, on the application of the prisoner for a writ of habeas corpus, to issue the writ and, on its return, to hear and dispose of the case; but where the cause of imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and determine whether, upon the grounds presented in the petition, the prisoner, if brought before the court, would be discharged. (Ex parte Milligan, 4 Wall., 2.) Under the requirements of this section, the writ, though a matter of right, does not issue as a matter of course and may be refused if, upon the showing made in the petition, it appear that the petitioner, if brought into court would be remanded. (In re King, 51 Fed. Rep., 434; In re Jordan, 49 Fed. Rep., 238; In re Haskell, 52 Fed. Rep., 795.) Suspension of the privilege of the writ does not suspend the writ itself. The writ issues as a matter of course; and, on its return, the court decides whether the applicant is denied the privilege of proceeding any further. (Ex parte Milligan, 4 Wall., 2.) |