The Constitution of the United States Defined and Carefully Annotated

Mrs. Sur

Penusylvania, it was decided, that the courts will take judicial notice that the rebellion no longer continues, and with it ends the power of the President to suspend the habeas corpus, and to order the arrest of a citizen, without warrant, if any he ever possessed, by virtue of this act. In that case, a provost-marshal made return to a writ of habeas corpus, that the relator was detained by him as a prisoner, under the authority of the President of the United States; this return, however, was adjudged insufficient, and the prisoner was discharged from military arrest. Philadelphia "Ledger," 6th July, 1865. 13 Am. L. R. 700.

In Mrs. Surratt's Case, Judge Wylie, of the Supreme Court of ratt's case? the District of Columbia, issued a writ of habeas corpus to inquire into the legality of her conviction by a military commission; but was compelled to acknowledge himself powerless to enforce obedience to the writ, and the prisoner was executed in pursuance of the sentence. 7th July, 1865.

What is the

of the Su

preme

See 2 Brightly's Dig. title Habeas Corpus, 140, 141. Mr. Brightly also refers to the pamphlet of Horace Binney, against the constitutionality of the act.

But see Attorney-General Bates on Habeas Corpus, 5th July,

1861.

The circuit court may certify a proceeding for a habeas corpus, jurisdiction upon a division of opinion, as in other "causes or "suits." (Bollman's Case, 4 Cranch, 75; case of Tobias Watkins, 3 Pet. Court of the 193; The United States v. Daniel, 6 Wheat. 562; Weston v. The United City Council of Charleston, 2 Pet. 449; Cohens v. Virginia, 6 Wheat. 264; Holmes v. Jennison, 14 Pet. 540.) Ex parte Milligan, 4 Wallace, 110-113, 117.

States?

199-201.

authorize arrests?

If a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in a court to recover his liberty. (Holmes v. Jennison, 4 Pet. 540.) Ex parte Milligan, 4 Wallace, 113, 132.

The act of Congress "relating to habeas corpus and regulating proceedings in certain cases," was approved March 3d, 1863. (12 St. 755.) Ex parte Milligan, 4 Wallace, 114. This act was constitutional. Id. 133.

The President suspended the writ by proclamation, dated 15th September, 1863. Id.

Does the The suspension of the writ does not authorize the arrest of any suspension person, but simply denies to one arrested the privilege of this writ in order to obtain his liberty. Ex parte Milligan, 4 Wallace, 115. The act recited. Id. The Chief-Justice and Justices Wayne, Swayne and Miller dissented from this. Id. 137.

When will it

live in contempt cases?

The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. It issues as a matter of course, and on the return made to it, the court decides whether the party applying is denied the right of proceeding any further with it. Id. 131.

The supreme court will not grant the writ to bring up a party imprisoned for contempt, except on a certificate of division of opinion, because such a commitment is a criminal proceeding. Ex parte Kearney, 7 Wheat. 38; Anderson v. Dunn, 6 Wheat. 204; Sergeant's Constitutional Law, 66, 67; James Buchanan, Peck's Trial, 435.

listed in the

navy?

The laws of Pennsylvania in relation to the writ of Habeas When for Corpus reviewed. Opinion of Attorney-General, Henry Stanbery persons enin Gormley's case, 6th Oct., 1867. And also the several acts of Congress of 1789, 1833, 1842, and 1863, upon the subject of Habeas Corpus. None of these acts declare the jurisdiction of the courts of the United States to be exclusive of the State courts. Id.

From an examination of the acts of 1789, 1806, 1809, 1820, 1837, 1845, and July 1, 1864, it appears that minors between the ages of thirteen and eighteen may be enlisted in the navy with the consent of their parents or guardians, to serve until the age of twenty-one years; and that minors above eighteen years may be enlisted without such consent. Id.

The weight of authority is in favor of the power of the State courts to hear the application of enlisted persons or persons held by United States authority, and to discharge or remand them. Id. The production of the body is the life of the writ. Id.

But judicial convictions and sentences by the United States courts are exceptions to the rule.

Neither the regularity nor validity of the proceedings can be called in question by any other court, State or Federal, by habeas corpus. (Ableman v. Booth, 21 How. 506, 526.) Stanbery's opinion in Gormley's Case.

State

Courts?

"We do not question the authority of a State court or judge, who Define the is authorized by the laws of the State to issue the writ of habeas demarcation between the corpus, to issue it in any case where the party is imprisoned within powers of its territorial limits, provided it does not appear when the applica- United tion is made, that the person imprisoned is in custody under States and authority of the United States. The court or judge has a right to inquire into this mode of proceeding for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire, by means of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its power, and each, within its own sphere of action, prescribed by the Constitution of the United States, independent of the other. But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and under the jurisdiction of another government, and that neither the writ of habeas corpus or any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, they alone can punish him. If he is wrongfully imprisoned, their tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known by a proper return the authority under which he detains

Attainder

him, it is at the same time imperatively his duty to obey the process of the United States, to hold the person in custody under it, and to refuse obedience to the marshal or process of any other government. And, consequently, it is his duty not to take the prisoner, or suffer him to be taken, before a State judge, or court, upon a habeas corpus under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any authority to interfere with him or to require him to be brought before them. And if the authority of a State, under form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in any respect, in the custody of his prisoner, it would be his duty to resist it and call to his aid any force that might be necessary to maintain the authority of the law against illegal interference. No judicial process, whatever form it may assume, can have any authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violation. (United States v. Booth, 21 How. 526?") Stanbery in Gormley's Case; 1 Kent's Com. 32, 11th Edition, note 1.

This general language is to be confined to process issued by the United States courts, not to any other kind of imprisonment. (Hurd on Habeas Corpus, 284.) Stanbery.

It was the duty of Commodore Selfridge to produce the body of the marine. Id. The decision of the Secretary of the Navy was revoked, and the Commodore ordered to obey the writ of the Court of Quarter Sessions of Pennsylvania. New York Herald of 7th Oct., 1867.

[3.] No bill of attainder or ex post facto law shall and ex post be passed.

facto?

Define Bill of Attainder?

Give exam

142. A BILL OF ATTAINDER is a legislative act which inflicts punishment without a legal trial. And it includes bills of pains and penalties. (Story's Const. § 1344.) Cummings v. The State of Missouri, 4 Wallace, 323. They may be directed against individuals or a whole class. Id. And inflict punishment absolutely or conditionally. Id. Gaines v. Buford, 1 Dana, 510.

The Constitution of Missouri, which required an expurgatory ple of such? oath of all priests, teachers, &c., was in effect, a bill of attainder. Cummings v. State of Missouri, 4 Wall 323, 325.

19.

The test oath required of Attorneys (note 242) of the courts of the United States, partakes of the nature of a bill of pains and penalties, and it is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included. Ex parte Garland, 4 Wallace, 377; H. Stanbery's Opinion of 24th May, 1867, p. 14.

In Cummings v. The State, (4 Wallace, 326), we considered the meaning of a bill of attainder and of an ex post facto law in the clause of the Constitution forbidding their passage by the States, and it is unnecessary to repeat here what we there said. A like

navy?

The laws of Pennsylvania in relation to the writ of Habeas When for Corpus reviewed. Opinion of Attorney-General, Henry Stanbery persons enlisted in the in Gormley's case, 6th Oct., 1867. And also the several acts of Congress of 1789, 1833, 1842, and 1863, upon the subject of Habeas Corpus. None of these acts declare the jurisdiction of the courts of the United States to be exclusive of the State courts. Id.

Id.

But judicial convictions and sentences by the United States courts are exceptions to the rule.

State

"We do not question the authority of a State court or judge, who Define the is authorized by the laws of the State to issue the writ of habeas demarcation between the corpus, to issue it in any case where the party is imprisoned within powers of its territorial limits, provided it does not appear when the applica- United tion is made, that the person imprisoned is in custody under States and authority of the United States. The court or judge has a right to Courts? inquire into this mode of proceeding for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire, by means of habeas corpus, and the duty of the officer to make a return, grows necessarily out of the complex character of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its power, and each, within its own sphere of action, prescribed by the Constitution of the United States, independent of the other. But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and under the jurisdiction of another government, and that neither the writ of habeas corpus or any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, they alone can punish him. If he is wrongfully imprisoned, their tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known by a proper return the authority under which he detains

Attainder and ex post facto?

Define Bill of Attainder?

Give exam

This general language is to be confined to process issued by the United States courts, not to any other kind of imprisonment. (Hurd on Habeas Corpus, 284.) Stanbery.

[3.] No bill of attainder or ex post facto law shall be passed.

The Constitution of Missouri, which required an expurgatory ple of such? oath of all priests, teachers, &c., was in effect, a bill of attainder. Cummings v. State of Missouri, 4 Wall. 323, 325.

19.

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