ders.20 It cannot be used for the purpose of reviewing a mere question of regularity on proceedings to punish for contempt. For instance, where a party had been punished for creating a disorder in the actual presence of the court, or for attempting to bribe a witness in a jury room or hall adjoining the courtroom, the writ was refused, as the court had jurisdiction to punish such contempts, and the question whether the contempt had actually been committed or not was a question of fact which could not be reviewed by such a writ.21

It cannot be used to review proceedings before a United States commissioner in the examination of a poor debtor on a judgment of a United States court, or in holding a party arrested under foreign extradition papers, if it appeared that the crime for which the party was extradited was one covered by the extradition treaty.22

It cannot be used as an appellate writ for the purpose of reviewing proceedings in court-martial, where the courtmartial had jurisdiction of the crime.23 But where the court was illegally constituted, as where a volunteer was being tried by a court composed entirely of regulars, such defect became jurisdictional, and habeas corpus would lie.24

20 In re DEBS, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092. See "Habeas Corpus," Dec. Dig. (Key-No.) § 19; Cent. Dig. § 17.

21 Ex parte Savin, 131 U. S. 267, 9 Sup. Ct. 699, 33 L. Ed. 150. See "Habeas Corpus," Dec. Dig. (Key-No.) § 92; Cent. Dig. §§ 81-96; "Contempt," Cent. Dig. § 219.

22 Stevens v. Fuller, 136 U. S. 468, 10 Sup. Ct. 911, 34 L. Ed. 461; Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. 484, 46 L. Ed. 534. See "Habeas Corpus," Dec. Dig. (Key-No.) § 92; Cent. Dig. §§ 81-96; "Extradition," Cent. Dig. § 45.

23 WALES v. WHITNEY, 114 U. S. 564, 5 Sup. Ct. 1050, 29 L. Ed. 277; In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. See "Habeas Corpus," Dec. Dig. (Key-No.) §§ 9, 92; Cent. Dig. §§ 10, 11, 81-96.

24 McClaughry v. Deming, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049. See "Habeas Corpus," Dec. Dig. (Key-No.) § 95; Cent. Dig.

When, however, it is said that it will only review questions of the jurisdiction of a court or committing authority, it is not meant that it will not lie at all if the committing authority originally had jurisdiction. There are many cases where the committing authority had jurisdiction in the first instance over the general subject or crime, but had no jurisdiction to enter the special order complained of. In such case habeas corpus would lie to question the power to make such an order. For instance, in Re Bain 25 the court permitted the amendment of an indictment which had been regularly found in the first instance, and of which the trial court had jurisdiction. The Supreme Court held on habeas corpus that the effect of permitting the amendment of the indictment made it no indictment at all, as an indictment was not amendable, and that therefore any sentence entered upon such amended indictment was necessarily void, and habeas corpus would lie.

In Ex parte Nielsen 26 the proceedings were regular up to the sentence, but the accused was sentenced a second time for the same offense. The court permitted a habeas corpus in such case, as the error did not commence until after sentence.

Under state extradition proceedings it is usually competent to raise the question whether the party is a fugitive from justice on habeas corpus. The distinction is illustrated in the cases of Cook v. Hart 27 and Hyatt v. People.28 In the first case extradition papers had been issued, and the accused had been taken back under them to the

25 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849. See "Habeas Corpus," Dec. Dig. (Key-No.) § 30; Cent. Dig. § 25.

See "Habeas Cor

See "Habeas Cor

26 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118. pus," Dec. Dig. (Key-No.) § 31; Cent. Dig. § 27. 27 146 U. S. 183, 13 Sup. Ct. 40, 36 L. Ed. 934. pus," Dec. Dig. (Key-No.) § 92; Cent. Dig. §§ 81-96; "Extradition," Cent. Dig. § 45.

28 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657. See "Habeas Corpus," Dec. Dig (Key-No.) § 92; Cent. Dig. §§ 82-96; "Extradition," Cent. Dig. § 45.

state whence they were issued, and tried. The court held that in such case he could set up, in the state court where he was being tried, the defense that he was not a fugitive from justice, and would not be permitted to raise it by habeas corpus afterwards. In the second case, when he was arrested he resisted the attempt to take him back to the state of issue, and applied for a habeas corpus, showing that on the date when the crime was alleged to have been committed he was not within the state where it was alleged to have been committed. The court held that in such case the writ would lie. In fact, it is a general doctrine that the courts lean against considering, on habeas corpus, questions that could be raised before the committing or trying court, though, if the judgment of such court is absolutely void, the writ may issue.29

The writ will not lie to attack the validity of proceedings before a de facto judge.30

SAME-FEDERAL JURISDICTION

87. The federal courts have power to issue the writ in cases arising under the Constitution or laws of the

United States, or in connection with federal pro

cess.

This jurisdiction is set out in section 753 of the Revised Statutes.31 The federal courts have no general commonlaw jurisdiction to inquire into any restraint of liberty. They can only take cognizance on habeas corpus of questions arising under the Constitution or laws of the United States, or in connection with federal process. They can

29 Ex parte Nielsen, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118; Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct. 218, 46 L. Ed. 177. See "Habeas Corpus," Dec. Dig. (Key-No.) §§ 28, 94; Cent. Dig. §§ 23, 82, 92.

30 Ex parte Ward, 173 U. S. 452, 19 Sup. Ct. See "Habeas Corpus," Dec. Dig. (Key-No.) § 28; 31 U. S. Comp. St. 1901, p. 592.

459, 43 L. Ed. 765. Cent. Dig. § 23.

not consider questions of restraint of liberty arising simply from acts violating state laws or state constitutions.32

In Re Burruss 33 the court refused to consider the question of disputed right to the custody of a child, not depending in any way upon any federal law.

In Re Duncan 3 it refused to consider the question whether a law was passed according to the requirements of the state constitution, holding that such was not a federal question, and raised no question relating to due process of law.

In Andrews v. Swartz 35 the failure of a state to give an appeal in criminal cases was held not to raise à federal question, nor a violation of the provisions relating to due process of law, and therefore not to be questioned by habeas corpus.

In Howard v. Fleming 36 the same principle was repeated, where an attempt was made to question whether an indictment charged a crime in a state court, or whether it was due process of law to fail to instruct the jury on the question of the presumption of innocence.

In Ex parte Kinney 37 it was held that the violation of a state statute forbidding intermarriage between white and colored persons raised no federal question.

On the other hand, the court has given a liberal con

82 Storti v. Massachusetts, 183 U. S. 138, 22 Sup. Ct. 72, 46 L. Ed. 120. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. 88 804, 990, 1376-1385.

33 136 U. S. 586, 10 Sup. Ct. 850, 34 L. Ed. 500. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. 88 1376-1385.

34 139 U. S. 449, 11 Sup. Ct. 573, 35 L. Ed. 219. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. $$ 1376-1385.

35 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45.

36 191 U. S. 126, 24 Sup. Ct. 49, 48 L. Ed. 121. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45.

873 Hughes, 9, Fed. Cas. No. 7,825. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45.

struction to the clause of section 753 of the Revised Statutes, allowing the writ where the applicant is in custody for an act done or committed in pursuance of a law of the United States in cases of urgency. In the great case of In re Neagle 38 it became necessary to protect Mr. Justice Field from violence while holding his court in California, and while going to and proceeding therefrom; and the department of justice appointed a special deputy to accompany him and protect him. There was no special federal statute authorizing the protection of judges in such cases. Neagle, while accompanying the judge, shot and killed a man by the name of Terry, who was in the act of making a brutal assault upon the judge, and who but a short time before had taken part in creating a disorder in the courtroom. Neagle was arrested in the state court and charged with murder. He was released on habeas corpus, the court holding that his custody was for an act done or committed in pursuance of a law of the United States, and that it could and should protect him on habeas corpus, under such circumstances.

In Boske v. Comingore 39 the court discharged on habeas corpus an internal revenue officer who had been arrested for refusing to produce records in a state court, holding that his right to refuse to produce the records depended upon the federal law.

Concurrent State Jurisdiction

But while the federal courts have jurisdiction to issue the writ in cases involving a federal question, the state courts have to a certain extent a concurrent jurisdiction with them. They are just as much as the federal courts

38 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. See, also, Hunter v. Wood, 209 U. S. 205, 28 Sup. Ct. 472, 52 L. Ed. 747; Ex parte Bartlett (D. C.) 197 Fed. 98. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376–1385.

39 177 U. S. 459, 20 Sup. Ct. 701, 44 L. Ed. 846. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376-1385.