PART 1.

Commitment under

state authority: writ de

nied for want of jurisdiction.

He denied, also, the sufficiency of the evidence of guilt, and was accordingly of opinion that a writ of habeas corpus ought to be granted.

In Ex parte Cabrera,' the petitioner being secretary of the Spanish legation, had been arrested and imprisoned under the authority of the State of Pennsylvania, for forgery, and having been brought before the circuit court of the United States on habeas corpus, claimed immunity from prosecution in the tribunals of this country, under the law of nations, in virtue of his diplomatic character. But the court, conceding his exemption, held itself incompetent to discharge him for want of jurisdiction.

The laws of nations, Mr. Justice WASHINGTON observed, were obligatory no less upon the state courts than upon the courts of the United States; and it was to the former that the prisoner must appeal for redress.

2

In The United States v. French, the circuit court for the District of Massachusetts held that it had not the power to award a writ of habeas corpus for the purpose of enabling bail to surrender their principal in jail under process from a state court.

It will be seen from this brief review of the judicial decisions relative to the writ of habeas corpus ad subjiciendum, that the power conferred on the courts and judges of the United States to grant it, by the judiciary act, is strictly limited to the cases treaty, from an apprehension of threatened prosecutions for false imprisonment, and the act of congress was passed for the express purpose of remedying the evil. In that district, at least, appointments were accordingly made by the circuit court, in some instances of persons who had received no previous appointment as commissioners under the antecedent acts of congress, and in others by superadding the required power to those already conferred by such previous appointment.

'1 Wash. C. C. R., 232.

* 1 Gallison, 1.

therein specified. It is only in behalf of persons in CHAP. 5. confinement "under or by color of the authority of the United States," or "committed for trial before some court of the same" that the power can be exercised. In all such cases, except after final conviction before a court of competent jurisdiction, the writ may be awarded either by a circuit or district court, or by a judge of the district court, and, it is presumed, also, by a justice of the supreme court. This power was accordingly exercised, as we have seen, by the circuit court for the eastern district of Virginia, in the case of Randolph, who was in custody under a warrant of distress issued by the solicitor of the treasury, and by the circuit court for the southern district of New York in the case of Kaine, who had been committed by a commissioner.

In virtue of the same authority a person committed on a warrant issued by a commissioner under the act commonly known as the Fugitive Slave Act, was brought up on a writ of habeas corpus awarded by the district judge of the northern district of New York.

court limited to commitments

courts.

In all these cases it was sufficient that applicants Power of were "in custody under or by color of the authority of the United States." But, as we have seen, according to the interpretation given to the constitu- by inferior tion in Marbury v. Madison and in Ex parte Bollman & Swartwout, there is a further and very comprehensive limitation to the power of the supreme court, although no such distinction is made by the fourteenth section of the judicial act. The original jurisdiction of that court being specified in the constitution,

'The latter clause was doubtless designed either to enlarge the power conferred by the former, or to exclude some doubt that it was supposed might otherwise arise as to its extent. But I have met with no judicial exposition of this point.

PART 1. congress, it was held, had no power to enlarge it;

and consequently the authority of the supreme court to grant a writ of habeas corpus is restricted to cases falling within the scope of its appellate power, and cases, should any such arise, requiring this form of redress, affecting an ambassador, other public ministers or consuls, or to which a state is a party.

The power exercised under a writ of habeas corpus, where the party is in custody under a commitment by some other judicatory, as observed by Chief Justice MARSHALL, in the case of Bollman & Swartwout, is always in its nature revisory. But to bring a case within the appellate jurisdiction of the supreme court in the sense requisite to enable that court to award the writ, it is necessary that the commitment should appear to have been by a tribunal whose decisions are subject to revision by the supreme court. And so strictly has this limitation been observed latterly, that, as we have seen, while the court did not scruple to entertain an application for a writ of habeas corpus, upon the merits, in the case of Kaine, under commitment by a district judge, made while sitting alone in the circuit court, it dismissed a like application for want of jurisdiction, in the case of Metzger, who had been committed by the same judge acting at chambers, thereby overruling the decision in Hamilton's case, and Ex parte Barry is to the like effect.

It is important to observe, however, that no distinction in this respect has been made between cases in which the original commitment was under process from a circuit court, and cases where it had been made by a justice of the peace or a commissioner, and the prisoner, having afterwards been brought before a circuit court on habeas corpus, had been

remanded by that court. In re Kaine,1 Mr. Justice CHAP. 5. CURTIS in his dissenting opinion, very forcibly maintained that the prisoner having been simply remanded by the circuit court, ought to be regarded as still in custody under the commissioner's warrant, and consequently that the case was not within the appellate jurisdiction of the court; and, in an antecedent case, Mr. Justice JOHNSON, in an able dissenting opinion, expressed himself to the like effect. But in both instances the objection was unheeded by the court.

issue

habeas cor

tended.

But the authority of the national judiciary relative power to to the writ of habeas corpus, conferred by the judi- writs of cial act, has been greatly enlarged by subsequent pus exlegislation. By the act of March 2, 1833,' either of the justices of the supreme court, or a judge of any district is empowered, in addition to the authority already conferred by law, to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail Commitor confinement, where he or they shall be committed acts done, or confined on or by any authority of law, for any authority act done, or omitted to be done, in pursuance of a law of the United States, or in pursuance of any order, process or decree of any judge or court thereof, anything in any act of congress to the contrary notwithstanding.

This enactment, it will be perceived, has especial reference to commitments by the courts and magistrates of the several states; and was designed to meet, as indeed it is well known to have grown out of, the case of an assumption by a state of a hostile attitude towards the national government. The same section therefore provides that if any person or persons to whom such writ of habeas corpus may be directed, shall refuse to obey the same, or shall 1 14 Howard, 103.

'Ch. 57, § 7: 4 Stat. at Large, p. 632.

ments for

&c., under

of U. S.

PART 1. neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine, not exceeding one thousand dollars, and by imprisonment, not exceeding six months, or by either, according to the nature and aggravation of the case.

Foreign

ers commit

done under

the autho rity of their

governments.

And by the act of August 29, 1842,' it is enacted: "That either of the justices of the supreme court of the ted for acts United States, or judge of any district court of the United States, in which a prisoner is confined, in addition to the authority already 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 and effect whereof depend upon the law of nations or under color thereof. And upon the return of the said writ and due proof of the service of notice of the said proceeding to the attorney-general or other officer prosecuting the pleas of the state, under whose authority the prisoner has been arrested, committed, or is held in custody, to be prescribed by the said judge or justice at the time of granting said writ, the said justice or judge shall proceed to hear the said cause; and if, upon hearing the same, it shall appear that the prisoner or prisoners is or are entitled to be discharged from such confinement, commitment, custody or arrest, for or by reason of such alleged right, title, authority, privileges, protection or exemption, so set up and claimed, and the laws of nations applicable thereto, and that the same 1 Ch. 257; 5 Stat. at Large, p. 539.