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different attitude after the jurisdiction of the court has attached. It cannot then be defeated by the wrongful action of either of the parties. It is expressly provided by the code of criminal procedure, article 762, that, upon the hearing of an appeal in habeas corpus cases, the defendant (who undoubtedly must be understood to be the prisoner or party detained) need not be personally present." As it had the power, the court considered it desirable in the public interest to determine the appeal, notwithstanding the absence of the relator, and held that the purpose of habeas corpus was to determine, not whether the original caption was illegal, but whether the detention was; and that in this case his detention was due to the conscription and that, if errors had been committed in that, appeal would have to be made to the respondent's superior officers.

$36. Paramount over all other writs. In Matson v. Swanson (38) a body execution had been levied against one Bodelson, whereupon he petitioned for a writ of habeas corpus. This was granted, and pending the hearing he was released upon giving bond. Suit was brought on the bond, and it was claimed that the bond was void on the ground that no habeas corpus should have issued to release a party held under body execution, or that at least he should not have been admitted to bail, until the return of the writ. But the court held that, whether error had been committed in the particular case or not, the court issuing the habeas corpus had the power in certain cases and therefore had jurisdiction of the

subject matter, and the sheriff was bound to obey its mandate. The court said: "The moment the sheriff received the writ of habeas corpus, the custody of the prisoner by virtue of the writ capias ad satisfaciandum terminated and his custody by virtue of the writ of habeas corpus began, because the authority of all other writs gives way and yields to the authority of that writ."

§ 37. Detention sufficient to warrant grant of writ. In Ex parte Snodgrass (39) it was replied to a petition for a habeas corpus that the petitioner had been ordered committed to jail for contempt of court in not paying a fine of fifty dollars, but that he never had been committed but had been permitted to be at large on his promise to protect the sheriff. It appeared that, having a child sick at home with diphtheria, he had promised not to leave the bedside of his child, except to go to his office and back. The assistant attorney-general claimed that this was not sufficient detention to warrant the issuance of the writ, but the court said: "We deem it unnecessary to enter into a long discussion of these articles, but suffice it to say that any character or kind of restraint that precludes an absolute and perfect freedom of action on the part of the relator authorizes such relator to make application to this court for release from such restraint. It certainly cannot be insisted that, if relator is illegally arrested, he must be placed in jail and thereby be subjected to additional outrage, before he can apply to this court for the writ of habeas corpus." But it has been held in a number of cases that where a man is released on bail he will not

be considered as restrained so as entitle him to the writ. § 38. A writ of right. Unlike the other extraordinary writs, habeas corpus is a writ of right, and its issuance is not subject to the discretion of the judge or court issuing it. But on the other hand it is not a writ of course, that is, a writ issuable as a matter of course, as is a summons in an action for breach of contract. Thus in Thomas Sim's Case (40) Chief Justice Shaw said: "This is a petition for a writ of habeas corpus to bring the petitioner before this court, with a view to his discharge from imprisonment upon the ground stated in the petition. We were strongly urged to issue the writ without inquiry into its cause, and to hear an argument upon the petitioner's right to a discharge on the return of the writ. This we declined to do, on grounds of principle and common and well settled practice. Before a writ of habeas corpus is granted, sufficient probable cause must be shown; but when it appears upon the party's own showing that there in no sufficient ground prima facie for his discharge, the court will not issue the writ.

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is urged that this is a writ of right and therefore grantable without inquiry. But it is not a writ of right in that narrow and technical sense; if it were, the issuing of it would be a mere ministerial act, and the party claiming it might go to the clerk and sue it out as he may a writ on a claim for land or money. It is a writ of right in a larger or more liberal sense; a right to be delivered from all unlawful imprisonment."

§ 39. Jurisdiction of Federal courts. Circuit courts of the United States have jurisdiction on habeas corpus

to discharge from custody one who is being restrained of his liberty in violation of the national Constitution, but who, at the time, is held under state process for trial on an indictment charging him with an offense against the laws of the state. That circuit courts may have this power follows from the fact that the Federal Constitution is the supreme law of the land." But when the habeas corpus is sought because of the alleged unconstitutionality of the law under which the indictment has been had, the Feders' courts have often thought it unwise to interfere before the state courts shall have opportunity themselves to declare the act unconstitutional (41). See Constitutional Law, §360, in Volume XII of this work.

§ 40. Jurisdiction of state courts. That state courts however, cannot "under any authority conferred by the states, discharge from custody persons held by authority of the courts of the United States, or of commissioners of such courts, or by officers of the general government, acting under its laws, results from the supremacy of the Constitution and laws of the United States" (42). But where a person is not held under such authority, the right of a state court to discharge by habeas corpus will not be denied merely because the proceedings involve "the determination of rights, privileges or immunities derived from the nation, or require a construction of the Constitution and laws of the United States." This was held in Robb v. Connolly (43), where one Bayley had applied for a writ of habeas corpus against Robb, who held him in custody

(41) Ex parte Royall, 117 U. S. 241.

(42) Ibid. p. 249.

under the warrant of the governor of California and the commission of the governor of Oregon to take and receive him as a fugitive from justice. It was urged that the warrant of arrest and delivery was not in accord with the statutes of the United States on interstate rendition, but the court said that the mere fact that this question of the laws of the United States was involved did not prevent the state court from taking jurisdiction, nor did it make Robb an officer of the United States so that one in his custody could not be released by the state courts.

§ 41. Excess of jurisdiction in court committing prisoner. Persons can be released on habeas corpus not only where there was an entire lack of jurisdiction over the subject matter in the committing court, but also where the latter acted in excess of jurisdiction. Thus, in Ex parte Jasper Page (44), where the prisoner on confession of guilt had been sentenced to ten years' imprisonment in the penitentiary for grand larceny, whereas the highest penalty allowed by the law for the offense was seven years' imprisonment, it was held that the court had exceeded its jurisdiction and the prisoner was ordered discharged.

§ 42. Testing the constitutionality of laws. Habeas corpus is frequently used to get a quick test of the constitutionality of a law. Thus, in In re Jarvis (45), where Jarvis had been tried, convicted and sentenced for violating a peddler's license act, it was urged, on his application for a habeas corpus on the ground that the act was unconstitutional, that the constitutionality of the act could not be attacked in this collateral proceeding, but

(44) 49 Mo. 291.

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