the guardians of rights arising under the federal Constitution, and are just as much required to enforce such rights. as the supreme law of the land. Hence a party illegally restrained for an act involving his rights under the federal Constitution can appeal on habeas corpus to such state courts as have jurisdiction. But this is subject to the qualification that the state courts cannot issue a habeas corpus which would interfere with the custody of an officer of the federal court, or any officer of the United States, as such power would inevitably bring on conflict. and hamper the powers of the federal government.40

In such case, if the state court decides against the federal right, an appeal lies to the Supreme Court under section 237 of the Judicial Code, which is the present form of the famous twenty-fifth section of the judiciary act of 1789.

SAME WHEN JURISDICTION EXERCISED

88. While the federal courts have jurisdiction to issue the writ when a federal question is involved, they are disinclined to exercise that jurisdiction, and will not issue it except under special circumstances of urgency.

This principle applies with special force when they are asked to issue it to affect proceedings in state courts. They have more than once said that it is a delicate jurisdiction, and that all the presumptions are against interfering with the ordinary administration of justice in state courts. As a writ of error lies from the state court of last resort in case of a decision adverse to the federal right,

40 Robb v. Connelly, 111 U. S. 624, 4 Sup. Ct. 544, 28 L. Ed. 542; In re Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868; Minnesota v. Brundage, 180 U. S. 499, 21 Sup. Ct. 455, 45 L. Ed. 640. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376–1385.

HUGHES FED. PR.(2D ED.)-14

they will usually leave the applicant to his writ of error, as it gives him equal protection.11

42

In Re Wood 2 they refused to issue the writ when the federal question raised was that negroes were excluded from a jury contrary to the civil rights act. Such questions should be raised in the state court, and a writ of error taken in the event of an adverse decision.

In State of New York v. Eno 43 the writ was refused to a state prosecution for violation of an offense which could also have been punished in the federal court under the national banking act, the court holding that the proper process was writ of error.

In Baker v. Grice the allegation of the application for the writ was that the Texas anti-trust law violated the federal Constitution. There was nothing to show that the applicant would be in any way prejudiced by leaving him to his writ of error, and he was accordingly left to that remedy.

In Minnesota v. Brundage 45 a writ of error was asked by a party arrested for a violation of a state act regulating the sale of dairy products, and the applicant was left to his writ of error for the same reason.

On the other hand, an instance of the special circumstances under which the writ issues is In re Medley.**

41 Ex parte Blodgett (D. C.) 192 Fed. 77. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45.

42 140 U. S. 278, 11 Sup. Ct. 738, 35 L. Ed. 505. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38–45.

43 155 U. S. 89, 15 Sup. Ct. 30, 39 L. Ed. 80. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376-1385.

44 169 U. S. 284, 18 Sup. Ct. 323, 42 L. Ed. 748. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; “Courts," Cent. Dig. 88 1376-1385.

45 180 U. S. 499, 21 Sup. Ct. 455, 45 L. Ed. 640. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376-1385.

46 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent Dig. §§ 1376-1385.

There a state law had been passed changing materially the method of punishment, which made it amenable to the objection of being an ex post facto law. The change in the method of punishment, however, was left largely to the keeper of the prison, and could not, in the nature of things, be inflicted until after sentence. In such case the court held that the writ would lie, as it was too late then to assign errors to a judgment in the state court.

In re Loney involved an application for the writ by a party who had been arrested in a state court for perjury in a congressional contested election case, the arrest being made immediately after he left the stand. The court held that such special circumstance authorized the issue of the writ.

49

In re Neagle 48 and Boske v. Comingore, where the writ was allowed, have been mentioned in another connection.

SAME THE PARTICULAR FEDERAL COURTS
HAVING JURISDICTION TO ISSUE

89. Sections 751 and 752 of the Revised Statutes 50 give this power to the Supreme Court and the circuit courts and district courts and their several justices or judges within their respective jurisdictions, but by section 289 of the Judicial Code the circuit court is eliminated.

47 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38–45; “Courts," Cent. Dig. §§ 1376-1385.

48 135 U. S. 1, 10 Sup. Ct. 658, 35 L. Ed. 55. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376-1385.

49 177 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. 88 1376-1385.

50 U. S. Comp. St. 1901, p. 592.

The district court can issue the writ only in its own territorial jurisdiction.51 When it is asked from a single judge, he naturally is the more cautious not to interfere with proceedings in a state court. He is also more disinclined than courts usually are to pronounce a doubtful act of Congress unconstitutional.52

The Supreme Court also has jurisdiction to issue the writ; in fact, as the jurisdiction of the Supreme Court extends over the whole United States, a Supreme Court justice may issue it anywhere, though on the return he would be apt to refer it for final decision to the full court.53

For a long time there was no appeal to the Supreme Court in criminal matters; nor is there now, except as incidental to constitutional and other questions of that nature. In such cases it was cautious not to permit the writ to be used as a writ of error to the inferior federal courts. On application to it for the writ in such cases, it would only consider the jurisdiction of the court. In Ex parte Carll it held that it would only consider the power of the lower authority to commit for the crime charged. In Re Lancaster 55 it refused to issue the writ to the circuit court when the writ attempted to raise a question on an indictment which could have been raised in the circuit

54

51 Ex parte Gouyet (D. C.) Dec. Dig. (Key-No.) §§ 45, 48; 1376-1385.

175 Fed. 230. See "Habeas Corpus," Cent. Dig. §§ 38-45; "Courts," §§ 805,

52 U. S. v. Ames (C. C.) 95 Fed. 453. See "Habeas Corpus," Dcc. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 805, 1376-1385.

53 Ex parte Clarke, 100 U. S. 399, 25 L. Ed. 715. This jurisdiction is in nature appellate, though not so in form. In re Virginia, 100 U. S. 339, 25 L. Ed. 676. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 990, 1376–1385.

54 106 U. S. 521, 1 Sup. Ct. 535, 27 L. Ed. 288. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. $$ 805, 1376-1385.

55 137 U. S. 393, 11 Sup. Ct. 117, 34 L. Ed. 713. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; “Courts," Cent. Dig. 8 1376-1385.

court by motion to quash. In Re Swan,56 which was a contempt proceeding for interfering with the custody of a federal receiver, it refused to discharge the applicant on habeas corpus.

The Supreme Court, also, is reluctant to issue the writ when an inferior court may do so with equal convenience.57

The circuit court of appeals has no authority to issue the writ as an independent proceeding, though it may to protect a jurisdiction acquired on other grounds.58

SAME-PROCEDURE ON HABEAS CORPUS

90. Section 754 of the Revised Statutes 59 requires that the application shall be made by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known; and that the facts set forth in the complaint shall be verified by the oath of the person making the application.

Requisites

This provision that it must be signed by the party for whose relief it is intended, and that he must make oath to it, seems to be directory only, and has not been rigidly en

56 150 U. S. 637, 14 Sup. Ct. 225, 37 L. Ed. 1207. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. 88 1376-1385.

57 In re Lincoln, 202 U. S. 178, 26 Sup. Ct. 602, 50 L. Ed. 984. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376–1385.

58 Whitney v. Dick, 202 U. S. 132, 26 Sup. Ct. 584, 50 L. Ed. 963. See "Habeas Corpus," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 38-45; "Courts," Cent. Dig. §§ 1376-1385.

59 U. S. Comp. St. 1901, p. 593.