why the latter is imprisoned or in custody. This is known as the writ of habeas corpus cum causa (have you here the body with the cause).30 The object of this most beneficial writ is to afford immediate relief to a person restrained, who is at once brought up and in proper cases allowed to give bond for his appearance at a time and place, and to surrender himself to a custodian if the writ is discharged or he is remanded to custody.31

39. Habeas corpus in state and federal courts.— This writ is as freely used by state courts and judicial officers as by the federal courts, and generally reaches every case of illegal imprisonment.32 It was for a long time in conflict whether state courts might discharge from custody persons held under federal authority, as in the case of Booth, who was arrested by federal authority for aiding in the escape of a fugitive slave, and released by a state court, whose judgment was affirmed by the state supreme court. The case was taken to the federal supreme court, and the judgment reversed, thus finally settling the rule that state courts cannot discharge prisoners held by national authority.33 A similar question again arose in the same state (Wisconsin) in Tarble's case, 34 where the state court followed its ruling in the Booth case,

30 U. S. Rev. Stats., §§ 754-757. Spear, Federal Judiciary (1st ed.), p. 615.

31 In re Choow Goo Pooi, 25 Fed. 77.

32 Spear, Federal Judiciary (1st ed.), p. 624. The state courts have concurrent power with the federal courts to issue the writ, except in cases of detention for acts done under claim of federal authority. Robb v. Connolly, 111 U. S. 624, 633, 4 Sup. Ct. 544, 28 L. Ed. 542.

33 Ableman v. Booth, 21 How. 506 (U. S.), 16 L. Ed. 169.

34 25 Wis. 390, 13 Wall. 397 (U. S.), 20 L. Ed. 597.

and was again reversed. Tarble was an enlisted soldier in custody of a recruiting officer, when so discharged, being thus detained under the federal military law. State courts may, however, discharge persons who are unlawfully held by state authority, in violation of the Constitution, laws or treaties of the United States.3

35

Federal habeas corpus. The Supreme Court and the district courts and their judges have power to issue habeas corpus to relieve prisoners detained either under federal or state authority, in certain specific cases defined by statute. The first class covers cases of unlawful imprisonment under or by color of the United States, or commitment for trial in a federal court.37 In this class is a case of illegal custody under military authority, and illegal detention by a customs officer of an alien under the Chinese Exclusion Acts.39

Detention for acts under federal law, order, process or decree. The statute of 1833 governing this class was made necessary by the conduct of South Carolina in resisting the execution of the tariff laws, by arresting revenue officers engaged in enforcing those laws.40 The famous Neagle case 11 falls within this statute, where a United States marshal, authorized to protect Justice Field in his official duties, killed

35 9 Encyc. Pl. & Pr., p. 1014.

36 U. S. Rev. Stats., § 753.

37 Same.

38 United States v. Crook, 5 Dill. 453 (U. S.).

41

39 United States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. 663, 31 L. Ed. 591.

40 Spear, Federal Judiciary (1st ed.), p. 618.

41 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55.

Judge Terry while the latter was assaulting Justice Field. Neagle having been arrested for this act was discharged by the Supreme Court. If a marshal is arrested for carrying out a federal court order he may be set free under this provision.42

43

Detention in violation of the Constitution, law or treaty. This provision originated in the Act of 1867, and grew out of the war. It reaches the case of one held under state process for an alleged offense under state law; as where a brewery agent was arrested for selling liquor, and alleged that the liquor was in interstate commerce, and so not subject to state law. But the federal courts on habeas corpus will not construe state laws, as where a state court refused a writ of error to one convicted of murder.11 If a fugitive offender against state law were extradited by the government under a treaty with a foreign nation, and turned over to the state authorities, who should then proceed to try him for a different offense, not covered by the treaty, he might be released by a federal habeas corpus.

45

Detention of alien for act authorized by international law. The privilege of habeas corpus in this kind of a case depends on the Act of 1842,46 suggested by the celebrated McLeod case. The prisoner in that case was tried for murder in New York, for an act sanctioned by the British government. He was acquitted, so no serious international complication

42 Anderson v. Elliott, 101 Fed. 609, 41 C. C. A. 521.

43 United States v. Fiscus, 42 Fed. 395.

44 Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432.

45 Spear, Federal Judiciary (1st ed.), p. 619.

46 5 Stats. at Large, p. 539; U. S. Rev. Stats., § 753.

arose. Congress thereupon provided a remedy if such occasion should arise.

Habeas corpus ad testificandum. The federal courts were authorized by the Judiciary Act of 178947 to issue this writ when necessary to obtain the testimony of a prisoner in custody either of the state or federal authorities.48

49

What federal courts may issue habeas corpus. All courts may issue this writ whenever necessary to the complete exercise of their jurisdiction. In the Shipp case 50 the prisoner was convicted of murder in the Tennessee criminal court, and the supreme court of that state allowed him an appeal. Fearing mob violence, he applied to the federal court for habeas corpus, which was denied, but allowing him an appeal to the federal Supreme Court. Shortly after he was taken from the jail by the mob and shot to death. Defendant Shipp was the sheriff, but made little effort to protect the prisoner. For this he was punished for contempt of the federal Supreme Court.51 The circuit court of appeals has no power to issue the writ unless it be necessary to the exercise of its appellate jurisdiction. In Whitney v. Dick 52 defendant was convicted of introducing liquor into an Indian reservation, in the federal district court. He did not take the case to the court of appeals by writ of error, but made some preparation

47 U. S. Rev. Stats., § 753.

48 Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406. 49 Whitney v. Dick, 202 U. S. 132, 26 Sup. Ct. 584, 50 L. Ed. 963.

50 United States v. Shipp, 214 U. S. 386, 29 Sup. Ct. 637, 53 L. Ed. 1041. 51 Same.

52 Note 49.

therefor. At this stage of the proceedings he was discharged by the circuit court of appeals on the ground that the district court had no jurisdiction, but this was held unauthorized by the Supreme Court because the court of appeals had no appellate jurisdiction in the case. Territorial courts may be authorized by the territorial legislatures to issue habeas corpus.53

Rules governing the issue of habeas corpus by the federal courts. Where immediate action is not required the federal courts will not issue the writ until after final action by the state authorities through the regular methods of appeal or writ of error.54 In ex parte Medley55 jurisdiction was assumed, although there was a remedy in the state court by writ of error, because the statute requiring sentence was an ex post facto law (increasing the punishment after the offense was committed). If the accused is detained for exercising federal authority, as in the Neagle case, where a marshal shot a person while he was attacking one of the justices of the Supreme Court, the writ will issue without waiting for state action.56

40. Following state laws and decisions in federal courts. All cases or controversies coming before courts are made up of the facts of the particular case and the law applicable thereto. If the law thus to be applied is state law, whether depending on its constitution, statutes or decisions, that law must 53 Clough v. Curtis, 134 U. S. 361, 10 Sup. Ct. 573, 33 L. Ed. 945. 54 Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868.

55 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835.

56 In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55.