to issue writs of 282. The Supreme Court and the circuit and district Powerofcourts courts shall have power to issue writs of habeas corpus.1 habeas corpus. Sec. 751, R. S. 283. The several justices and judges of the said courts, Power of judges within their respective jurisdictions, shall have power to habeas corpus. grant writs of habeas corpus for the purpose of an inquiry 20, into the cause of restraint of liberty. to grant writs of 8.14, v. 1. p. 81; Sept. 24, 1789, c. Apr. 10, 1869, c. 22, s. 2, v. 16, p. 44; Mar. 2, 1833, c. 57, s. 7, v. 4, p. 634; Feb. 5, 1867, c. 28, s. 1, v. 14, p. 385; Sec. 752, R. S. Writ of habeas corpus when jail. prisoner is in 20, s. 14, v. 1, p. 81; s. 7, v. 4, p. 634; s. 1, v. 14, p. 385; 257, s. 1, v. 5, p. 284. 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 decrce of a court or judge Aug. 29, 1842, . thereof; or is in custody in violation of the Constitution or 339.of a law or treaty of the United States; or, being a subject sec. 753, R. S. 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 unless it is necessary to bring the prisoner into court to testify.2 the writ of habeas Feb. 5, 1867, c. 385. Sec. 754, R. S. 285. Application for writ of habeas corpus shall be made, Application for to the court, or justice, or judge authorized to issue the corpus. same, by complaint in writing, signed by the person for 28, s. 1, v. 14, p. whose relief it is intended, setting forth the facts concern. ing 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. 286. The court, or justice, or judge to whom such appli- Allowance and cation is made shall forthwith award a writ of habeas cor- writ 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 judi cial decision of some inferior officer or court. Ibid., 553; Ex parte Bollman and Swartwout, 4 Cr., 75; Ex parte Watkins, 7 Pet., 568; Ex parte Wells, 18 How., 307, 328; Ex parte Verger, 8 Wall., 85; Ex parte Lange, 18 Wall., 163; Ex parte Parks, 93 U. S., 18: Ex parte Virginia, 100 U. S., 339; 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. 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, ibid., 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, ibid., 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. direction of the 28. s. 1, v. 14, p. 385. Feb. 5, 1867, c. pus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the Sec. 755, R. S. person in whose custody the party is detained.' Time of return. Feb. 5, 1867, c. 385. 287. Any person to whom such writ is directed shall make 28, s. 1, v. 14, p. 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 distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days.2 Sec. 756, R. S. Form of return. 288. The person to whom the writ is directed shall certify 28. s. 1, v. 14, p. to the court, or justice, or judge before whom it is returnable the true cause of the detention of such party.2 385. Sec. 757, R. S. Body of the par 289. The person making the return shall at the same time Feb. 5, 1867. c. bring the body of the party before the judge who granted tyto be produced. 28, s. 1, v.14, p.385. Sec. 758, R. s. the writ.2 Day for hear 290. When the writ is returned, a day shall be set for the Feb. 5, 1867, c. hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. 28, s. 1, v.14, p.385 Sec. 759, R. S. 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., 24; 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 F. R., 434; In re Jordan, 49 F. R, 238; In re Haskell, 52 F. R., 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 Wail., 2. 2 The duty of an officer of the Army upon whom a writ of habeas corpus is served is prescribed in the following paragraphs of the Army Regulations of 1895: 969. Officers will make respectful returns in writing to all writs of habeas corpus served on them. When the writ is issued by a State authority, and the person held by the Army officer is a civilian who has been apprehended under a warrant of attachment to be taken before a court-martial to testify as a witness, the officer will not produce the body, but will, by his return, set forth fully the authority by which he holds the person, and allege that the State authority is without jurisdiction to issue the writ of habeas corpus, and ask to have the same dismissed. He will also exhibit to the court or officer issuing the writ of habeas corpus the warrant of attachment and the subpœna (and the proof of the service of the subpoena) on which the warrant of attachment was based, and also a certified copy of the order convening the court martial before which he had been commanded to take the person. 970. Should a writ of habeas corpus issued by a State court or judge be served upon an Army officer commanding him to produce an enlisted man or show cause for his detention, the officer will decline to produce in court the body of the person named in the writ, but will make respectful return in writing to the effect that the man is a duly enlisted soldier of the United States, and that the Supreme Court of the United States has decided that a magistrate or court of a State has no jurisdiction in such a case. 971. A writ of habeas corpus issued by a United States court or judge will be promptly complied with. The person alleged to be illegally restrained of his liberty will be taken before the court from which the writ has issued, and a return made setting forth the reasons for his restraint. The officer upon whom such a writ is served will at once report the fact of such service direct to the Adjutant-General of the Army by telegraph. The form of return to the writ will be found in the Manual for Courts-Martial, pages 146-148. If the service of the writ be prevented by military force, it will be ordered to be placed on the files of the court, to be served when practicable. Ex parte Winder, 2 Clifford, 89. An order from a subordinate in the War Department to an officer not to obey the writ by the production of the body, is no justification to the officer. Ex parte Field, 5 Blatchford, C. C., 63. turn, counter-al ments. 28, s. 1, v. 14, p. 291. The petitioner or the party imprisoned or restrained Denial of remay deny any of the facts set forth in the return, or may legations, amend allege any other facts that may be material in the case. Feb. 5, 1867, c. Said denials or allegation shall be under oath. The return 385. and all suggestions made against it may be amended, by Sec. 760, R. S. leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained. Summary hear party. ing; disposition 292. The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hear- of ing the testimony and arguments, and thereupon to dispose 28, s. 1. v. 14, p. of the party as law and justice require.' . The purpose of the writ is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the causes of it, and if the alleged cause is unlawful, it must then discharge the petitioner. In the case of a man in the military or naval service, where he is, whether as an offi. cer or private, always more or less subject in his movements, by the very necessity of military rule and subordination, to the orders of his superior officer, it should be quite clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ; otherwise every order of the superior officer directing the movements of the subordinate, which necessarily, to some extent controls his freedom of will, may be held to be a restraint of his liberty and the party so ordered may seek relief from obedience by means of a writ of habeas corpus. Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it. Wales v. Whitney, 114 U.S, 564, 571. Where a court-martial has jurisdiction of the person and of the subject matter and is competent to pass the sentence under which the prisoner is held, its proceedings can not be collaterally impeached, and a writ of habeas corpus can not be made to perform the function of a writ of error. Ex parte Reed, 100 Ú. S., 13, 23; Ex parte Kearney, 7 Wheat., 38; Ex parte Watkins, 3 Pet., 193: Ex parte Milligan, 4 Wall., 2; Ex parte Mason, 105 U.S.. 696; Ex parte Curtis, 106 U.S..371; Ex parte Carrl, ibid., 521; Ex parte Bigelow, 113 U. S., 328; Smith e. Whitney, 116 U. S., 167; U. S. v. Grimley, 137 U. S.,147; Johnson v. Sayre, 158 U. S., 109; In re Boyd, 49 F. R., 48. Where a medical director in the Navy, against whom charges had been preferred and in whose case a general court-martial had been ordered, was placed in arrest by the Secretary of the Navy, and notified to confine himself to the limits of the city of Washington: Held, That this constituted no such restraint of liberty as to sustain a writ of habeas corpus. Wales v. Whitney, 114 U.S., 564. Where a person is in custody under process from a State court of original jurisdiction, for an alleged offense against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the circuit court has a discretion whether it will discharge him upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the State court has finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances, the accused, if convicted, shall be put to his writ of error from the highest court of the State, or whether it will proceed, by writ of babeas corpus, summarily to determine whether the prisoner is restrained of his liberty in violation of the Constitution of the United States. Ex parte Royall, 117 U. S.. 241, 253; Ex parte Watkins, 3 Pet., 201; Ex parte Bridges, 2 Woods, 428: Ex parte Lange, 18 Wall., 163; In re King, 51 F. R., 434; Ex parte Hanson, 28 F. K., 127, 131; In re Jordan, 49 F. R., 238. Where a United States marshal, in custody for an act done in pursuance of a law of the United States is brought before a Federal court by habeas corpus and discharged, he can not afterwards be tried by the State courts. Cunningham v. Neagle, 135 U. S., 1. Conflict of State and Federal authority.-The writ of habeas corpus is a high prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment. Ex parte Watkins, 3 Pet.. 202. The Federal courts by whom, and the cases in which, it may be issued are described in sections 751, 752, 753, 754, 762, 763, 764, and 765 of the Revised Statutes. Subject to the paramount authority of the National Government, by its own tribunals, to inquire into the legality of custody of prisoners held by the United States courts or officers, the States may inquire into the grounds on which any person in their respective limits is restrained of his liberty. Robb v. Connolly, IIIU.S., 624. A State court has no jurisdiction by habeas corpus to release a prisoner held by order of Federal court. Ableman v. Booth, 21 How., 506. And a judicial officer of a State can not, by means of a writ of habeas corpus, take and discharge a person held by, or under color of authority of the United States. If it appear upon the return to a writ of habeas corpus that the person is detained under color of the authority of the United States, the State court has no further jurisdiction. Tarble's Case, 13 Wall., 397. We do not question the authority of the State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the Feb. 5, 1867, c. 385. Sec. 761, R. S. In cases involv. ing the law of na served on State 293. When a writ of habeas corpus is issued in the case tions, notice to be of any prisoner who, being a subject or citizen of a foreign attorney general. state and domiciled therein, is committed, or confined, or in Aug. 29, 1842, c. 257, v. 5, p. 539. custody, by or under the authority or law of any one of the Sec. 762, R. S. United States, or process founded thereon, on account of any Appeals in cases of habeas court. act done or omitted under an 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, notice of the said proceeding, to be prescribed by the court, or justice, or judge at the time. of granting said writ, shall be served on the attorney-general or other officer prosecuting the pleas of said State, and due proof of such service shall be made to the court, or justice, or judge before the hearing. 294. From the final decision of any court, justice, or corpus to circuit judge inferior to the circuit court, upon an application for Aug. 29, 1842. c. a writ of habeas corpus or upon such writ when issued, an Feb. 5, 1867, c. 28, appeal may be taken to the circuit court for the district in s. 1, v. 14, p. 385; which the cause is heard: 257, v. 5, p. 539; Mar. 27, 1868, c. 34, s. 2. v. 15, p 44. 1. In the case of any person alleged to be restrained of Sec. 763, R. S. his liberty in violation of the Constitution, or of any law or treaty of the United States. 2. In the case of any prisoner who, being a subject or citizen of a foreign state, and domiciled therein, is com application is made, that the person imprisoned is in custody under the authority of mitted or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, 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, order, or sanction of any foreign state or sover eignty, the validity and effect whereof depend upon the law of nations, or under color thereof.' 295. From the final decision of such circuit court an appeal may be taken to the Supreme Court in the cases described in the preceding section. Mar 3, 1885, v. 23. p. 437. 296. The appeals allowed by the two preceding sections shall be taken on such terms, and under such regulations and orders, as well for the custody and appearance of the person alleged to be in prison or confined or restrained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default thereof, by the court or judge hearing the cause. Pending protam cases, action ceedings in cer by State author. Aug. 29, 1842, c. 8. 1, v. 14, p. 385; Mar. 3, 1893, v. 27, 297. Pending the proceedings or appeal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, ty void. any proceeding against the person so imprisoned or con- 257, v. 5. p. 539; fined or restrained of his liberty, in any State court, or by Feb. 5, 1867, c. 28, or under the authority of any State, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void. That no appeal shall be had or allowed after six months from the date of the judgment or order complained of. Act of March 3, 1893 (27 Stat. L., 751.) 300. Judgments for set-off or coun- 303. Procedure in cases transmit ter-claim, how enforced. ted by Departments. Ex parte McCardle, 6 Wall., 318; Ex parte McCardle, 7 Wall, 506; Ex parte Yerger, 8 Wall., 85. The Court of Claims was established by the acts of February 24, 1855 (10 Stat. L., 612), March 3,1863 (12 Stat. L., 765), and May 8, 1872 (17 Stat. L., 85). This court was created with a view to give legal redress to the citizen as against the Govern ment where he would have had legal redress as against another citizen. It is a curious fact, not generally known, that the example of Prussia and the German States in guarding the private rights of persons by subjecting the Government, in matters of account, to the judicial power of ordinary courts of justice, led to the establishment of the Court of Claims. Brown v. U. S., 5 C. Cls. R. 571 577. The provisions of the act of March 3, 1863, authorizing the Court of Claims to hear and determine, without a jury, claims against Government with set-offs, is not unconstitutional. McElrath v. U. S., 102 U. S., 426. p. 751. Sec. 766, R. S. |