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29, 1842,8 which has been re-enacted in the Revised Statutes.
The object of the law was stated by its introducer into the Senate, Senator Berrien of Georgia, in the following language which has been approved by the Supreme Court of the United States: "The object was to allow a foreigner, prosecuted in one of the States of the Union for an offence committed in that State, but which he pleads has been committed under authority of his own sovereign or the authority of the law of nations, to be brought up on that issue before the only competent judicial power to decide upon matters involved in foreign relations or the law of nations. The plea must show that it has reference to the laws or treaties of the United States or the law of nations, and showing this, the writ of habeas corpus is awarded to try that issue. If it shall appear that the accused has a bar on the plea alleged, it is right and proper that he should not be delayed in prison awaiting the proceedings of the state jurisdiction on the preliminary issue of his plea at bar. If satisfied of the existence in fact and validity in law of the bar, the federal jurisdiction will have the power of administering prompt re
The Revised Statutes further provide that “when a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed, or confined, or in custody, by or under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under an alleged right, title, authority, privilege, protection, or exemption, claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said proceeding, to be prescribed by the court, or justice, or judge at the time of granting said writ, shall be served on the attorney-general or other officer prosecuting the pleas of said State, and due proof of such service shall be made to the court, or justice, or judge before the hearing." 10
§ 461g. Errors which may be corrected by the writ of habeas corpus. The writ of habeas corpus cannot be used to correct Massachusetts, Appendix to 26 Wen- 9 Re Neagle, 135 U. S. 1, 71. dell 699.
10 U. S. R. S., $ 762, Comp. St. 85 St. at L., ch. 257, p. 539. $ 1290.
errors and irregularities, however flagrant, committed within the sphere of the authority of the court. But a party imprisoned under an order made by a court of the United States, where it does not possess jurisdiction of either the person or the subjectmatter, can review that order by such a writ.?
§ 461g. 1 Ex parte Terry, 128 U. S. 289, 304, 32 L. ed. 405, 408; Ex parte Siebold, 100 U. S. 371, 25 L. ed.° 717; Ex parte Parks, 93 U. S. 18, 23 L. ed. 787; Ex parte Curtis, 106 U. S. 371, 27 L. ed. 232; Ex parte Bigelow, 113 U. S. 328, 28 L. ed. 1005; Carter v. McClaughry, 183 U. S. 365, 46 L. ed. 236; U. S. v. Lair, C. C. A., 195 Fed. 47; Henry v. Henkel, 235 U. S. 219; Cooley v. Morgan, C. C. A., 221 Fed. 252; Morgan v. Sylvester, C.C. A., 231 Fed. 886; Harrison v. Mayer, 224 Fed. 224. After judgment of conviction, a prisoner cannot be released by a writ of habeas corpus upon the ground that the facts charged in the indictment do not constitute a crime within the meaning of the statute, Ex parte Parks, 93 U. S. 18, 23 L. ed. 787; Ex parte Watkins, 3 Pet. 193, 203, 7 L. ed. 650, 653; Ex parte Yarbrough, 110 U. S. 651, 654. Hopkins v. McClaughry, C. C. A., 209 Fed. 821; Collins v. Morgan, C. C. A., 243 Fed. 495. But see Re Mayfield, 141 U. S. 107, 116, 35 L, ed. 635, 638. Nor because of a slight lack of certainty in the indictment, U. S. v. Pridgeon, 153 U. S. 48, 38 L. ed. 631. Nor because of its duplicity, although in violation of a Territorial statute, Connella v. Haskell, C. C. A., 158 Fed. 285. See Collins V. Morgan, C. C. A., 243 Fed. 495. Nor because an improper person sat on the grand jury which indicted him, Ex parte Harding, 120 U. S. 782, 30 L. ed. 824; Kaizo v. Henry, 211 U. S. 146, 53 L. ed. 125. See Re Wilson, 140 U. S. 575, 35 L. ed. 513. Nor because of an error in sustain
ing or overruling a challenge to a juror, Re Schneider, No. 2, 148 U. S. 162, 37 L. ed. 406; Ex parte Murray, 66 Fed. 297. Nor because the court improperly consolidated indictments. De Bara v. U. S., C. C. A., 99 Fed. 942; Howard v. U. S., C. C. A., 34 L.R.A. 509, 75 Fed. 986. Nor because the court refused to assign him counsel and forced him to trial without sufficient time to prepare his defense, Re McKnight, 52 Fed. 799. Nor because of an error as io the time allowed him, within which to plead. McMicking v. Schields, 238 U. S. 99. Nor because he was convicted upon insufficient evidence, Re Harkell, 52 Fed. 195; Harlan v. McGourin, 218 U. S. 442, 54 L. ed. 1101. Nor for errors committed in the course of his trial, even, it has been held, if these errors were infractions of the Constitution, such as a refusal to sustain a plea of a former convietion for the same cause, Ex parte Bigelow, 113 U. S. 328, 28 L. d. 1005; Ex parte Ulrich, 43 Fed. 661, or former jeopardy. Collins v. Morgan, C. C. A., 243 Fed. 495; or even an erroneous ruling as to the validity of the statute under which the proceeding was brought, Henry v. Henkel, 235 U. S. 219; provided the infringement of the Constitution does not clearly appear upon the record, Nielsen, Petitioner, 131 U. S. 176, 33 L. ed. 118. Nor because he was deaf and the testimony was not read to him through his ear trumpet. Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689. Nor because he was refused compulsory process for the attendance of witnesses on his behalf, Ex
parte Harding, 120 U. S. 782, 30 L. ed. 824. See Re Wilson, 140 U. S. 575, 35 L. ed. 513. Nor because he was tried by a de facto State judge who had no legal title to the office, Ex parte Ward, 173 U. S. 452, 43 L. ed. 765. Nor because he was convicted upon an information filed by a de facto State prosecutor who was not an officer de jure, Re Humason, 46 Fed. 388. Nor because he was denied bail pending a writ of error in a State court, Ibid. Nor because his petition for a removal was nied. Ex parte Murray, 66 Fed. 297. Nor, in bankruptcy, when committed for contempt before a referee, who has not certified to the District Court the disobedience of the relator. U. S. v. Henkel, 185 Fed. 553. Nor, it has been held, because the judge insisted on proceeding in the case after an affidavit of prejudice had been filed by the relator. Ex parte Glasgow, 195 Fed. 780.
2 Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; Ex parte Rowland, 104 U. S. 604, 26 L. ed. 861; Re Ayers, 123 U. S. 443, 485, 31 L. ed. 216, 223; Re Sawyer, 124 U. S. 200, 221, 31 L. ed. 402, 409; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117; Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89. This may be done when he is imprisoned after conviction by a court martial composed of officers in the regular army, which had no jurisdiction over him, a volunteer officer, although the objection was not raised at the trial. McClaughry v. Dem
ing, 186 U. S. 49, 46 L. ed. 1049; affirming C. C. A., 113 Fed. 639, 650. The employee of a contractor working in a training camp was discharged from arrest for trial before
court martial for manslaught of a soldier within the limits of the camp, through the negligent operation of an automobile. Ex parte Weitz, 256 Fed. 58.
A court will not, however, thus interfere with the judgment of a court martial which had jurisdiction of the person and the subject matter although there was error in the proceedings, except possibly under extraordinary circumstances. E. parte Tucker, 212 Fed. 569. A pris
was discharged by writ of habeas corpus, when he had been convicted in a court of the United States of an infamous crime upon an information without an indict. ment. Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89. A crime is considered infamous when punishable by imprisonment in a State prison or penitentiary with or without hard labor. Ex parte Wilson, 114 l'. S. 417, 29 L. ed. 89; Mackin v. U. S., 117 U. S. 348, 29 L. ed. 909. A prisoner may be discharged by habeas corpus when his conviction was in a court of the United States, under an indictment, the body of which was amended by the court. Ex partc Bain, 121 U. S. 1, 30 L. ed. 849. Or under an indictment found hy a grand jury unauthorized by law, but see Re Wilson, 140 U. S. 575, 3.5 L, ed. 513; Ex parte Harding, 120 U, S. 782, 30 L. ed. 824, or he has been sentenced in his absence,
The rule that, unless the contrary appears on the record, a cause is deemed to be without the jurisdiction of a District Anderson v. Denver, C. C. A., 265 illegality of commitment for Fed. 3. But not because he was lunacy when the person committed tried while he was insane. Myers v. had no notice of the proceeding nor Halligan, C. C. A., 244 Fed. 42012. opportunity to be heard. Walters v. A prisoner may be discharged McKinnis, 221 Fed. 746; (as to efwhen he is confined under a stat- fect of intimidation of the jury by a ute, State or Federal, Medley, Peti- mob, see Frank v. Mangum, 237 U. tioner, 134 U. Ş. 160, 33 L. ed. S. 309, 335). Or when held by a 835; Ohio V. Thomas, 173 U. S. State court under a charge of a 276, 43 L. ed. 699; Re Waite, crime exclusively within the juris81 Fed. 359; Re Fair, 100 Fed. 149; diction of the Federal courts, Re which is repugnant to the Federal Loney, 134 U. S. 372, 33 L. ed. 949; Constitution, Ex parte Siebold, 100 Re Neagle, 135 U. S. 1, 34 L. ed. U. S. 371, 25 L. ed. 717; Ex parte 55. Cf. Ex parte Thompson, 1 Clarke, 100 U. S. 399, 25 L. ed. Flippin, 507; U. S. v. McClay, 4 715; Ex parte Curtis, 106 U. S. 371, Cent. L. J. 255; Ex parte Larsen, 27 L. ed. 232. But see Henry V. 233 Fed. 708, where the State Henkel, 235 U. S. 219. Or when he statute had been repealed; of a is held by any court, State or Fed- consul of a foreign country, Ex eral, under process based upon a parte Anderson, 184 Fed. 114. city ordinance, Stockton Laundry A prisoner who is held in custody Case, 26 Fed, 611; or a statute State under a conviction of a Federal or Federal; Ex parte Siebold, 100 court may, after his pardon by the U. S. 371, 25 L. ed. 717; Ex parte President of the United States, be Clarke, 100 U. S. 399, 25 L. ed. 715; released by habeas corpus, GreatEx parte Curtis, 106 U. S. 371, 27 house's Case, 2 Abb. U. S. 382. But L. ed. 232; Medley, Petitioner, 134 the decision of a Board of Parole U. S. 160, 33 L. ed. 835; but see denying a release on parole cannot Ex parte Crowder, 171 Fed. 250;
ordinarily be thus reviewed. Redwhich is repugnant to the Federal
man v. Duehay, C. C. A., 246 Fed. Constitution. “Though the law it- 283. Or, it seems, if in custody unself be fair on its face and impartial der sentence by a State or Federal in appearance, yet if it is adminis
court without a trial upon a plea of tered by public authority with an not guilty, Re Converse, 42 Fed. 217, evil eye and an unequal hand, so 219. Or it seems if, when indicted as practically to make unjust and for one crime, he has pleaded guilty illegal discriminations between per- of another, and is held in custody sons in similar circumstances, ma- under sentence for either. Re Conterial to their rights, the denial of verse, 42 Fed. 217, 219. But see Re equal justice is still within the pro- Maldonado, 63 Fed. 825. Or under hibition of the Constitution." Yick a judgment imposing a second penWo v. Hopkins, 118 U. S. 356, 368. alty or different penalty from that Such was held to be the refusal of previously imposed upon the same the State court to pass upon the party for the same offense, although
Court of the United States, has no application where the judgment of such a court is attacked collaterally by habeas the former judgment was entered at ment with hard labor in the same the same term as the latter. Ex place of confinement. Re Christian, parte Lange, 18 Wall. 163, 21 L. ed. 82 Fed. 199. 872; Nielsen, Petitioner, 131 V. S. Or for contempt of a court of the 176, 33 L. ed. 118. Or under a judg- United States by disobedience to an ment entered upon a conviction un- order beyond the power of such der several indictments, and impos- court. Ex parte Rowland, 104 U. S. ing more than one punishment for a 604, 26 L. ed. 861; Ex parte Fisk, continuous offense. Re Snow, 120 113 U. S. 713, 28 L. ed. 1117; Re U. S. 274, 30 L. ed. 658; Munson Ayres, 123 U. S. 443, 31 L. ed. 216; v. McClaughry, C. C. A., 198 Fed. Re Sawyer, 124 U. S. 200, 31 L. ed. 72. Stevens v. McClaughry, C. C. 402; Cuddy, Petitioner, 131 U. S. A., 207 Fed. 18.; O'Brien v. Mc- 280, 33 L. ed. 154. Or for contempt Claughry, C. C. A., 209 Fed. 816. of a court of the United States for But see Moyer v. Anderson, C. C. A., an act not committed in the pres203 Fed. 881; Blake v. Moyer, C. C. ence of the court, when the prisoner A., 208 Fed. 678; Hopkins v. Mc- has been given no hearing. Ex parte Claughry, C. C. A., 209 Fed. 821. Terry, 128 U. S. 289, 32 L. ed. 405. And when for any reason the sen
Or for disobedience to an order when tence is beyond the jurisdiction of the prisoner was not a party to the the court; Stoneberg v. Morgan, C. suit, nor named in the order, nor C. A., 246 Fed. 98; Collins v. C. C. bound by the same. Re Reese, C. A., 243 Fed. 495. Where part of the C. A., 107 Fed. 942. But see supra, sentence is unlawful, the petitioner $ 435. will not be discharged until he has Or for contempt of a Federal performed such part thereof as was court because of his refusal to legally imposed. Re Swan, 150 U. answer a question that might tend S. 637, 37 L. ed. 1207; U. S. v. to criminate him. Ex parte Irvine, Pridgeon, 153 U. S. 48, 63, 38 L. ed. 74 Fed. 954. See Re Counselman 631, 637; Ex parte Davis, 112 Fed. v. Hitchcock, 142 U. S. 547, 35 L. 139; Collins v. Morgan, C. C. A., ed. 1110, Butler v. Fayerweather, 243 Fed. 495.
C. C. A.; 91 Fed. 458.
But not, A prisoner will be thus discharged unless he objected to the question when confined under a judgment upon this ground, although he subsentencing him to a penitentiary for sequently contends that the statute
crime punishable by imprison- under which he is punished is unment in a jail only, Re Bonner, 151 constitutional. Ex parte Blair, 253 U. S. 242, 38 L. ed. 149. Cf. Re Fed. 800. Burns, 113 Fed. 987. But see Re Or, before conviction, when held Terrill, C. C. A., 144 Fed. 616. Or under a warrant issued by a United even, it has been held, when sen- States judge or commissioner, under tenced to imprisonment without a complaint which does not state an hard labor in a house of correction offense under statute of the for a crime punishable by imprison- United States; Ex parte Bollman