alternative.46 Upon a petition for a writ of certiorari or mandamus, and a motion thereon argued on a notice, where the right to a writ of certiorari was doubtful, the Supreme Court directed the entry of a rule to show cause why the writ should not issue for a single purpose only.47

The grant of the writ depends on the discretion of the court.48 A preliminary inquiry into a jurisdictional fact may be directed by the court before passing on the application for the writ.49 The issue of the writ operates as a supersedeas from the time of its service or formal notice of its issue until the court of review has finally disposed of the proceeding.50

The return of the writ of certiorari should be by the clerk under his hand and the seal of the court.51 The return need not be signed by the judge.52

Where an appeal and a petition for a writ of certiorari were both pending before the court, and the appeal was dismissed, but the writ allowed; the record on appeal was treated as a return to the certiorari.53 "A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up, after judgment, the proceedings of an inferior court or tribunal whose procedure is not according to the course of the common law, is in the nature of a writ of error. Although the granting of the writ of certiorari rests in the discretion of the court, yet after the writ has been granted and the record certified in obedience thereto, the questions

ville, T. & K. W. R. Co., 148 U. S. 372, 37 L. ed. 486; Lovell-McConnell Mfg. Co. v. Automobile Supply Mfg. Co., 235 U. S. 383.

46 Am. Const. Co. v. Jacksonville T. & K. W. R. Co., 148 U. S. 372, 37 L. ed. 486.

47 Ex parte Hitz, 111 U. S. 766, 28 L. ed. 592.

48 Re Baiz, 135 U. S. 403, 531, 34 L. ed. 222, 231, per Fuller, C. J., citing Ex parte Hitz, 111 U. S. 766, 28 L. ed. 592.

49 Waskey v. Hammer, C. C. A., 179 Fed. 273.

50 Fennemore v. U. S., 3 Dall. 357, 360, all note, 1 L. ed. 634, 635. 51 Stewart v. Ingle, 9 Wheat. 526, 6 L. ed. 151.

52 Farrell v. O'Brien, 199 U. S. 89, 50 L. ed. 101. See Lovell-McConnell Mfg. Co. v. Automobile Supply Co., 235 U. S. 383.

53 Gray, J., in Harris v. Barber, 129 U. S. 360, 369, 32 L. ed. 697, 699; Amer. Const. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 387, 37 L. ed. 486, 492.

54

arising upon that record must be determined according to fixed rules of law, and their determination is reviewable on error. The court confines its consideration to the matter relied upon in procuring the writ.55 It has been said that the writ furnishes the court no wider range of determination upon the sufficiency of the facts shown to warrant an extradition than does the writ of habeas corpus.

56

§ 461. Writs of habeas corpus. In general. The writ of habeas corpus is a high prerogative writ known to the common law, directing the production of a prisoner before a court or magistrate, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is then termed a writ of habeas corpus ad subjiciendum.2 There were also by the common law four other writs of habeas corpus: the habeas corpus ad respondendum; ad satisfaciendum; and ad faciendum et recipiendum, which removed a prisoner for debt from an inferior to a superior court for further proceedings in the same or a subsequent action; 3 and the habeas corpus ad prosequendum, testificandum, deliberandum, which removed a prisoner for debt or crime in order to prosecute or testify in another court. The habeas corpus cum causa is used in the removal of criminal proceedings from the State courts to a District Court of the United States.5

The Supreme Court, and the District Courts of the United States have power to issue the writ of habeas corpus.6

"The Supreme and District Courts of Porto Rico and the respective judges thereof may grant writs of habeas corpus in all cases in which the same are grantable by the judges of the

Cranch, 75 97, 2 L. ed. 554, 562; Re Leo Hem Bow, 47 Fed. 302; Ex parte Peck, 3 Blatchf. 123; U. S. v. Tilden, 10 Ben. 566; supra, § 343.

5 U. S. R. S., §§ 642, 643; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386; infra, §§ 551, 552. In certain cases the clerk, and even, it has been held, his deputy can issue such a writ without an order of the court. State v. Sullivan, 50 Fed. 593.

6 U. S. R. S., § 751.

District Courts of the United States, and the District Courts may grant writs of mandamus in all proper cases."7

A Circuit Court of Appeals has no such power, except, perhaps, as an incident to some case otherwise before it. It has been held that a Circuit Court of Appeals has no jurisdiction to issue a writ of habeas corpus for service outside of the Circuit in which it sits, although its jurisdiction is invoked thus to review the decision of the District Court of a territory within its cir cuit.9

Except in cases affecting ambassadors, other public ministers, or consuls, or possibly upon the application of a State, the Supreme Court can only issue the writ of habeas corpus for a review of the judicial decision of some inferior officer or court.10 Consequently, the Supreme Court cannot issue the writ to inquire into the legality of an arrest by a municipal police officer under a warrant issued by a State or municipal police judge.11 Any Justice or judge of any of those courts has power to issue a writ of habeas corpus for the purpose of an inquiry into the cause of a restraint of liberty within its jurisdiction.12 Α Justice of the Supreme Court may grant the writ and hear argument on the return in any part of the United States.13

No Federal court or judge has power to discharge by a writ of habeas corpus a prisoner in jail, unless such prisoner is in custody under or by color of the authority of the United States; or is committed for trial before some court of the United States; 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 decree of a court or judge thereof; or is in custody in violation. of the Constitution or a law or treaty of the United States; or, being a revenue officer of the United States, is in custody on account of any act done or omitted under color of his office or under color of any revenue law; or, being a subject or citizen

7 Act of March 2, 1917, ch. 145,

$ 48, Comp. St. § 3803u.

8 Whitney v. Dick, 202 U. S. 132,

50 L. ed. 963.

9 Re Boles, 48 Fed. 75.

10 Ex parte Hung Hang, 101 U. S. 552, 27 L. ed. 811; Ex parte Barry, 2 How. 65, 11 L. ed. 181.

11 Ex parte Hung Hang, 108 U. S. 552, 27 L. ed. 811.

12 U. S. R. S., § 752.

13 Ex parte Clarke, 100 U. S. 399, 401, 25 L. ed. 715, 716.

of a foreign State and domiciled therein, is in custody for an act done or omitted under an alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign State or under color thereof, the validity and effect of which depends upon the law of nations; or unless the writ is necessary to bring the prisoner into court to testify.14

It is doubtful whether a District Court has any authority to release by habeas corpus a prisoner held under the judgment of another court of the United States.15

A pro

An Indian may obtain the writ in a proper case.16 ceeding upon an application for the writ of habeas corpus cannot be removed from a State to a Federal court.17

§ 461a. Jurisdiction to grant the writ of habeas corpus because of difference of citizenship. The District Courts of the United States may take jurisdiction by habeas corpus when there is no controversy arising under the Constitution or laws of the United States, but there is a difference of citizenship between the parties,1 provided that the value of the method in dispute exceeds the jurisdictional amount but not otherwise.2 It has been held that they can then inquire into the legality of the imprisonment, but cannot exercise any discretion in the capacity of parens patriæ as to the place or character of the confinement. That the right to the custody of a child may be thus determined when the necessary difference of citizenship exists,

R. A. 784, 64 Fed. 331. But see Re
Burrus, 136 U. S. 586, 593, 597, 34
L. ed. 500, 503, 514; Matters v.
Ryan, 249 U. S. 375.

2 Matters v. Ryan, 249 U. S. 375. 3 King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 26 L. R. A. 784, 64 Fed. 331. See supra, § 81.

4 Bennett v. Bennett, Deady, 299; U. S. v. Savage, 91 Fed. 490. See also U. S. v. Green, 3 Mason, 482; U. S. ex rel. Wheeler v. Williamson, 4 Am. L. Reg. 5; Re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Matters v. Ryan, 249 U. S. 375. Contra, Ex parte Evert, 1 Bond,

but not where a proceeding previously instituted is pending to determine the same question in a State court of competent jurisdiction.5

§ 461b. Writs of habeas corpus issued by State courts. A State court has not the power to grant a writ of habeas corpus to a person held under color of authority from the United States.1 When such a writ is issued by a State court, the person to whom it is directed should make a return stating that he holds the prisoner under the authority of the United States, but otherwise disregard the writ.2 A State court may by a writ of habeas corpus examine the legality of the detention of a prisoner by a person appointed by the governor of a State in extradition proceedings.3

§ 461c. The writ of habeas corpus ad subjiciendum. The writ of habeas corpus ad subjiciendum cannot be issued in favor of a person unless he is actually restrained of his liberty, or is threatened with such restraint by a person with the present means of enforcing it.1 Mere moral duress is insufficient.2 The validity of his conviction of crime cannot be thus tested by a person who has been pardoned and is not restrained of his liberty, although he has refused to accept such pardon.3 The writ will be denied, where the relator is at large on bail, where it appears that the applicant was surrendered by his bail, who

197; Re Barry, 42 Fed. 113; s. c., How. 65, 11 L. ed. 181; cited in argument of counsel in Barry v. Mercein, 5 How. 103, 104, 12 L. ed. 70, 71; Clifford v. Williams, 131 Fed. 100.

5 Hoadley v. Chase, 126 Fed. 818. § 461b. 1 Ableman v. Booth, 21 How. 506, 16 L. ed. 169; Tarble's Case, 13 Wall. 397, 20 L. ed. 597.

2 Ableman v. Booth, 21 How. 506, 16 L. ed. 169.

8 Robb v. Connolly, 111 U. S. 624, 28 L. ed. 542; Roberts v. Reilly, 116 U. S. 80, 94, 29 L. ed. 544, 548.

§ 461c. 1 Wales v. Whitney, 114 U. S. 564, 572, 29 L. ed. 277.

2 Thus, when the party seeking the writ was a naval officer in

Washington, and the basis of his application was a letter from the Secretary of the Navy inclosing charges against him, together with a notice of the session of a courtmartial to consider them, and concluding, "You are hereby placed under arrest, and you will confine yourself to the limits of Washington; it was held that the petitioner was not under such restraint as to warrant the issue of the writ. Wales v. Whitney, 114 U. S. 564, 29 L. ed. 277.

3 Re Callicot, 8 Blatchf. 89.

4 Sibray v. U. S. ex rel. Kupples, C. C. A., 185 Fed. 401. See Johnson v. Hoy, 227 U. S. 245, 57 L. ed. 497.