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Note. In the Matter of Barry.

Cranch, 333; Ex parte Randolph, 2 Brock. 477; Wheaton v. Peters, 8 Pet. 590, 658; The Steamboat Orleans, 11 Pet. 175; Kendall v. United States, 12 Pet. 524.

It is now argued that this principle is limited to the Supreme Court; but that in respect to the Circuit Courts, they have a common law jurisdiction incident to their constitution, inasmuch as judicial sovereignty resides in them, rendering the range of their original jurisdiction coëxtensive with the subjects of litigation arising under the Constitution and laws of the United States, and because all remedies not otherwise provided are, in the exercise of that judicial sovereignty, to be in conformity to the common law.

Although the speculations of our most eminent jurists may countenance this argument, (Du Ponceau, 85; 1 Kent Com. 311,) yet it has not received the sanction of the United States courts. Chisholm v. Georgia, 2 Dall. 435; Kendall v. United States, 12 Pet. Pp. 616, per cur., and 626, Taney, C. J.; Ex parte Bollman, 4 Cranch, 87; Ex parte Randolph, 2 Brock. 477, Marshall, C. J.; Lorman v. Clarke, 2 McLean, 568.

The distinction established by the cases is clear and practical, and embraces all United States courts alike, and is, in effect, that those courts derive no jurisdiction from the common law, but that in those cases in which jurisdiction is appointed by statute, and attaches, the remedies in these courts are to be according to the principles of the common law. Baines v. Schooner James, 1 Baldw. 514, 558; Robinson v. Campbell, 3 Wheat. 212, 223; United States v. Hudson, 7 Cranch, 32; Ex parte Kearney, 7 Wheat. 38; Anderson v. Dunn, 6 Wheat. 201; Ex parte Randolph, 2 Brock. 477.

It is not, accordingly, conclusive of their right to take cognizance of the subject matter, to show that the parties connected therewith are competent to sue or be sued in the United States courts, and that there is a perfect right of action or defence thereupon supplied such parties at common law. The evidence must go further, and prove that the particular subject matter is one over which the courts are by act of Congress appointed to act, or that the question has relation to the remedy alone, and not to the jurisdiction of the court. United States v. Bevans, 3 Wheat. 336, 389; McCulloch v. Maryland, ubi sup. at p. 407; Rhode Island v. Massuchusetts, ubi sup. at p. 721.

The authority to take cognizance of the detention of infants by private persons, not held under claim, or color, or warrant of law,

Note. In the Matter of Barry.

rests solely in England on the common law. It is one of the eminent prerogatives of the crown, which implies in the monarch the guardianship of infants paramount to that of their natural parents. The royal prerogative, at first exercised personally ad libitum by the King, 12 Pet. 630, and afterwards, for his relief, by special officers, as the Lord High Constable, the Lord High Admiral and the Lord Chancellor, in process of time devolved upon the high courts of equity and law, and in them this exalted one, of allowing and enforcing the writ of habeas corpus ad subjiciendum, became vested as an elementary branch of their jurisdiction. In the performance, however, of this high function in respect to the detention of infants by parents, etc., the court or judge still acts with submission to the original principle, out of which it sprang, that infants ought to be left where found, or to be taken from that custody and transferred to some other, at the discretion of the prerogative guardian, and according to its opinion of their best interest and safety

The reference already made to the origin and object of our federal Union demonstrates that no prerogative of this character could be exercised as an incident to its qualified and peculiar sovereignty; and I think it equally clear, that the inherent authority of no branch of the judiciary can transcend that of the government in this behalf, and that it has no capacity to issue this writ, or act upon it, except under appointment by positive law. Ex parte Bollman, 4 Cranch, 75, 93.

It remains then only to consider whether such jurisdiction is conferred upon the Circuit Courts by statute; for, even if the language of the Constitution might import such authority to be within the competency of the judiciary, it is authoritatively established that the Circuit Courts, at least, cannot exercise jurisdiction as to individual rights, because authorized by the Constitution, unless Congress has specifically assigned it to them. They possess no jurisdiction other than that which both the Constitution and acts of Congress concur in conferring upon them. Turner v. Bank of North America, 4 Dall. 8, 10; United States Bank v. Devaux, 5 Cranch, 61; Livingston v. Van Ingen, 1 Paine, 45; Hodgson v. Bowerbank, 5 Cranch, 303; Kendall v. United States, ubi sup.; Ex parte Bollman, ubi sup. at p. 93; McClung v. Silliman, 6 Wheat., 598. The 9th section of the first article of the Constitution, para

VOL. CXXXVI-39

Note. In the Matter of Barry.

graph 2, declaring that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it," does not purport to convey power or jurisdiction to the judiciary. It is in restraint of executive and legislative powers, and no further affects the judiciary than to impose on them the necessity, if the privilege of habeas corpus is suspended by any authority, to decide whether the exigency demanded by the Constitution exists to sanction the act.

So, although the 2d section of the 3d article gives the United States judiciary jurisdiction over all cases in law and equity between our own citizens and the citizens or subjects of foreign states, yet, as already shown, the Circuit Court cannot, under that provision, act on one of the subjects without an express authorization by statute. McClung v. Silliman, ubi sup.

. In our government the judiciary power acts only to give effect to the voice of the legislature. Osborn v. United States Bank, 9 Wheat. 738, 866.

The material question in the case must, accordingly, be, whether Congress has given to the Circuit Courts the special jurisdiction appealed to by the petitioner.

Judge Story holds that the courts of the United States are vested with full authority to issue the great writ of habeas corpus in cases properly within the jurisdiction of the national government. 2 Story Const. § 1341.

The general doctrine the commentator is discussing, and the authorities supporting it, have relation to the law as it exists in England and in the respective States of the Union. The only case referred to as giving application of the general doctrine to the United States courts is that of Ex parte Bollman, and Ex parte Swartwout, 4 Cranch, 75.

That was a case of imprisonment on a criminal charge, under and by color of the authority of the United States, the prisoners having been committed by the Circuit Court of the District of Columbia, on a charge of treason against the United States; and the Supreme Court held, that though it could not take cognizance of the matter under any common law jurisdiction, yet the act of Congress of September 24, 1789, had conferred the jurisdiction, and they proceeded, by virtue of the statute, to exercise it in the case.

The court nowhere advert to an implied power in the Circuit Courts broader than that vested in the Supreme Court, which

Note. In the Matter of Barry.

would empower a Circuit Court to grant the writ upon the footing of a general jurisdiction in respect to the parties to be affected by

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The positions adopted as the basis of the decision would seem to look to an entirely opposite conclusion. Chief Justice Marshall says : Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.

It ex. tends,” in the case of United States courts, “ only to the power of taking cognizance of any question between individuals, or between the government and individuals. To enable the court to decide on such question, the power to determine it must be given by written law."

This language of the Chief Justice is explicit against the theory that the United States courts have necessarily cognizance of all subjects of litigation arising between parties over whom they have jurisdiction.

So in respect to another prerogative writ, that of mandamus, the Supreme Court, in disavowing in itself the power to issue it in the common law sense, holds, in terms not less definite and decisive, that the Circuit Courts cannot award it but by virtue of express authority from statute, Kendall v. United States, 12 Pet. 524; and this conclusion has no exclusive connection with the particular writ of mandamus, but flows from the doctrine definitely announced by the court, that the United States judiciary has no authority to award prerogative writs of any character further than the power is specifically given by statute.

The relator refers to the argument of counsel, in the case of Bollman and Swartwout, as demonstrating that the 14th section of the act of Congress of September 24, 1789, imparts to the United States courts authority as ample as exists in the Supreme Courts of judicature at common law, in the application and enforcement of the writ of habeas corpus.

No judicial decision (unless it be that of United States v. Green, 3 Mason, 482) is found which sanctions that exposition of the statute; and it accordingly becomes necessary to examine with attention the foundation of the construction contended for.

The terms of the statute are “ that all the before-mentioned

Note. In the Matter of Barry.

courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may 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 judges of the District Courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment: Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless when they are in custody, under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

The scope and purport of this enactment were very carefully considered by the Supreme Court. Ex parte Bollman, 4 Cranch, 75; Ex parte Watkins, 3 Pet. 201. The courts being authorized to issue the writ "for the purpose of an inquiry into the cause of commitment,”-the Supreme Court regarded the provisions of the act as incorporating in a considerable degree the English law on the subject, and that the statute of 31 Charles II had defined the cases in England in which relief could be had, under the writ, by persons detained in custody, and was an enforcement of the common law in that respect.

The argument of the court tends clearly to the conclusion that our act was to be construed as applicable to the cases embraced within the English habeas corpus act, and as framed in reference to the law established by that statute.

If the term “ commitment” in our act is used in its common acceptation, it would have reference to the forcible confinement of a person under color of legal protest or authority. In its common law sense, it imports an imprisonment under a warrant or order on a criminal charge and no other, 4 Bl. Com. 296; 2 Hawk. c. 16, SS 1, 2, 3, 13, 14, 15, and under the statute, all the judges of England decided that the act of Charles did not extend to any cases of imprisonment, detainer, or restraint whatsoever, except cases of commitment for criminal or supposed criminal matters. 3 Bac. Ab. 438, note.

As our statute uses the term commitment, and drops the limitation of it in the English act " for any criminal or supposed criminal matter," it may be reasonable, in favor of liberty, to understand it in its broadest signification. A court of deservedly high

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