which is in a considerable degree incorporated into our own. The writ of habeas corpus is a high prerogative writ, known to the common law, the great office 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. English judges, being originally under the influence of the Crown, neglected to issue this writ where the Government entertained suspicions which could not be sustained by evidence; and the writ when issued was sometimes disregarded or evaded, and great individual oppression was suffered in consequence of delays in bringing prisoners to trial. To remedy this evil the celebrated habeas corpus act of the thirty-first of Charles II was enacted for the purpose of securing the benefits for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law. This statute excepts from those who are entitled to its benefit persons committed for felony, or treason, plainly expressed in the warrant, as well as persons convicted or in execution."12

The writ of habeas corpus is not a writ of right, it is only issued upon probable cause shown.13

"While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue as a matter of course, and it should be cautiously used by the Federal courts in reference to State prisoners." This writ ought not to be issued, where the court is satisfied, upon application for the writ, that the prisoner would be remanded upon the return;15 nor where it is obvious that before return can be made to the writ, the restraint complained of will have terminated.16 The writ of habeas corpus cannot be used in the United States courts to perform the functions of a writ of

12 Chief Justice Marshall in Ex parte Watkins, 3 Peters, 193.

13 United States v. Lawrence, 4 Cranch C. C. 518; Ex parte Milligan, 4 Wallace, 3.

"In re Frederick, 149 U. S. 70,

75; United States v. Pridgeon, 153 U. S. 48, 59, 60.

15 Ex parte Watkins, 3 Peter, 193, 201.

16 Ex parte Baez, 177 U. S. 390.

error;17 nor are mere errors of form cognizable in habeas corpus proceedings.18

The constitutionality of a statute of the United States may be inquired into in the trial of a writ of habeas corpus.19 If the court which renders a judgment has no jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally; and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. By a second prosecution and trial for the same offense a constitutional immunity of the defendant is violated, and where such state of facts appears on the record, the party is entitled to be discharged from imprisonment. A party is entitled to a habeas corpus not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner.20 No State court can issue a writ of habeas corpus for the release of any party held under the authority of the United States Government. If the application discloses that the person is so held the State court should refuse the writ. If the application does not disclose this fact, the court should abate the writ as soon as it becomes disclosed in the trial.21

This privilege of the right of habeas corpus is considered of such great importance for the security of individual liberty that its suspension is only authorized in cases of the utmost necessity. The power of suspending the writ under such circum

"Ex parte Reed, 100 U. S. 13, 23; Ex parte Siebold, 100 U. S. 371, 375; Ex parte Belt, 159 U. S. 95, 100; Gonzales v. Cunningham, 164 U. S. 612, 621; In re Eckart, 166 U. S. 485; Ex parte Lennon, 166 U. S. 552; Crossley v. California, 168 U. S. 641; In re McKensie, 180 U. S. 546; Terlinden v. Ames, 184 U. S. 282; Ex parte Parks, 93 U. S. 21; Ex parte Yarborough, 110 U. S. 651, 654.

18 Ex parte Clark, 100 U. S. 403;

Stevens v. Fuller, 136 U. S. 468, 477; Ex parte Wilson, 140 U. S. 575, 585.

19 Ex parte Coy, 127 U. S. 731. 20 In re Hans Neilson, 131 U. S. 176 Ex parte Siebold, 100 U. S.

371.

Tarble's Case, 13 Wallace, 397; United States v. Booth, 18 Howard, 476. See also United States v. Rector, 5 McLear, 174; Ableman v. Booth, 21 Howard, 506.

stances is given to Congress by the Constitution. "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations on which the Legislature is to decide."22 This dictum was followed by Judge Taney in ex parte Merryman23 (in the Circuit Court) where it was held that Congress was the only power which can authorize the suspension of this writ. Later Congress delegated this power to the President. The act of March 3, 1863, provided "that during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof." This act was held constitutional by the Supreme Court.24 The correctness of this decision is more than doubtful. The Supreme Court itself excused it as a war necessity. The President, of course, cannot suspend the privilege of this writ without the authority of Congress25 in spite of a qualified opinion of the AttorneyGeneral of the United States to the contrary.26

Congress may suspend the privilege of the writ either generally, or in particular cases,27 and may pass laws for the protection of officers making arbitrary arrests.28

§ 230. Bills of attainder.-"No bill of attainder or ex post facto law shall be passed."29 Bills of attainder are enactments of the legislative department of the Government, accusing persons of crime, convicting them thereof, and fixing the penalty therefor. When the penalty imposed is less than that of death, bills of attainder are also called bills of pains and penalties.30

Bills of attainder had their origin in England. "A bill of attainder differs from an impeachment thus: Impeachment is a judicial proceeding in which the commons, 'the most solemn grand inquest of the whole kingdom,' are prosecutors, supporting their accusation by evidence, and the lords are the sole judges. Attainder is a legislative act, which must pass through the same stages as any other act of Parliament. It may be introduced in either the Lords or Commons, and after having passed through both houses, receives the Royal assent. No evidence is necessarily adduced to support it. It is analogous to a bill of pains and penalties, and was originally intended for the punishment of those who fled from justice. The earliest notable instances of its employment was in the banishment by Parliament of the two Despencers, father and son, in the fifteenth Edward II, A. D. 1321."31 The last instance in English history of the use of a bill of attainder was in the case of Sir John Fenwick in 1697.

"The proceedings of Parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced into either house, but ordinarily commence in the House of Lords; they pass through the same stages; and, when agreed to by both houses, they receive the Royal assent in the usual form. But the parties who are subject to these proceedings are admitted to defend themselves by counsel and witnesses before both houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in Parliament. In evil times this summary power of Parliament to punish criminals by statute has been perverted and abused; and in the best of times it should be regarded with jealousy; but whenever a fitting occasion arises it is undoubtedly the highest form of parliamentary judicature.”32

Bills of attainder had been frequently used in the different States, particularly against the Royalists after the revolt of the Colonies.33

34

The term "bills of attainder" as used in the Constitution of the United States includes bills of pains and penalties. Any act which deprives the defendants of an existing right, for past misconduct and without judicial trial, partakes of the nature of a bill of "pains and penalties," and is subject to the Constitutional inhibition against the passage of such bills. It may either affect the life of a party or confiscate his property.30

37

§ 231. Ex post facto laws.-The term "ex post facto laws" applies to criminal legislation only. The Constitution, however, deals with substance and not with form, hence any statute depriving citizens of rights for past misconduct is void; however disguised, the inhibition against ex post facto laws cannot be evaded by giving civil form to what is in substance criminal.38 The following classes of laws are held to be ex post facto in the case of Calder v. Bull.39 First. "Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. Second. Every law that aggravates a crime, or makes it greater than it was when committed. Third. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. Fourth. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of commission of the offense in order to convict the offender."

Chief Justice Marshall in one of his decisions gives the following definition of ex post facto laws: "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penal

34 Drehman v. Stifle, 8 Wallace, 559, 601.

25 Pierce v. Casskaddor, 16 Wallace, 234; Cummings v. State of Missouri, 4 Wallace, 277; Ex parte Garland, 4 Wallace, 333.

30 Fletcher v. Peck, 6 Cranch, 87, 138.

37 Calder v. Bull, 3 Dallas, 386;

Carpenter et al. v. Commonwealth of Pennsylvania, 17 Howard, 456, 463; Locke v. New Orleans, 4 Wallace, 172.

35 Cummings v. Missouri, 4 Wallace, 277, 325; Burgess v. Salmon, 97 U. S. 385; Hawper v. New York, 170 U. S. 196.

39 3 Dallas, 386.