The court of review has the right to decide anew all questions and facts that were open to consideration by the court of original jurisdiction; 78 but when the latter had discharged the prisoner upon an erroneous view of the law without an examination of the facts, it was held that the appellate court had no authority to order a deportation but upon reversal must remand the case to the court below to be disposed of upon the merits.79 It seems that pending the decision upon a writ of habeas corpus, except perhaps in Chinese cases, the petitioner may be released on bail.80 Where the prisoner is discharged he may be required to give bail pending an appeal by the Government.81 Where the writ is dismissed or denied, the court to which the application is made has not right to release the petitioner upon bail.82 If the relator is at large on bail at the time of the application for the writ, it will be denied.83 § 464. Discharge of soldiers from the army by the writ of habeas corpus. A minor, under the age of eighteen, who has not deserted, may, upon the petition of his father,1 or, in case of the father's death, upon the petition of his mother,2 or guardian, or person to whom the parents have given the right to the minor's custody, be discharged from the army or navy by means of the writ of habeas corpus, because his enlistment was unlawfully made without the consent of his parents or guardian; but not, it is held, when he is under arrest upon the charge of fraudulent enlistment by misrepresentation of his age,5 78 Ibid. 4 79 Frick v. Lee Tung Jung, C. C. A., 205 Fed. 38. 80 This was done in Re Crawford, 165 Fed. 830; U. S. ex rel. Castro v. Williams, S. D. New York, February, 1913. 81 U. S. ex rel. N. G. Hen v. Sisson, 220 Fed. 538. 82 Ibid. 83 Sibray v. U. S. ex rel. Kupples, C. C. A., 185 Fed. 401. $ 464. 1 Re Carver, 103 Fed. 624; Ex parte Reaves, 121 Fed. 848; Ex parte Houghton, 129 Fed. 239. 2 Doane v. Burkman, C. C. A., 190 Fed. 541. 3 Ibid; U. S. ex rel. Hendricks v. Pendleton, 167 Fed. 690; Ex parte Hubbard, 182 Fed. 76; Ex parte Avery, 235 Fed. 248. 4 See U. S. R. S., § 1117. 5 Re Miller, C. C. A., 114 Fed. 838. Contra, Re Carver, 103 Fed. 624. Ex parte Winfield, 236 Fed. 552; Hoskin v. Dickerson, C. C. A., 239 Fed. 275; Ex parte Foley, 243 Fed. 470; U. S. ex rel. Laikund v. Williford, C. C. A., 220 Fed. 291. or after 9 or of desertion, or other military offense 7 before conviction. It has been held that when he has committed such a military offense, the court will not order a discharge, although he has not been arrested or convicted before the application.10 A minor who has voluntarily enlisted cannot be discharged upon the writ of habeas corpus issued on his own behalf.11 Where there was no proof of the enlistment by the prisoner, while a minor, without his parents' consent, except by an ex parte affidavit, attached to the petition; and the return, alleging due enlistment for an unexpired term, desertion, surrender, commitment and confinement under pending charges for the desertion was not traversed; it was held that the writ was properly denied.12 Documentary evidence of the date of birth, by a certified copy of such public record as there may be upon the subject, should usually be furnished.13 When the facts were not in dispute the courts have discharged upon habeas corpus persons not subject to the military draft who had been required by the selective service boards to serve, 14 but they have refused to interfere when disputed questions of fact were involved 15 and also when the exempt had failed 6 Re Kaufman, 41 Fed. 876; Re Miller, C. C. A., 114 Fed. 838; U. S. v. Reaves, C. C. A., 126 Fed. 127, 60 C. C. A., 675; reversing 121 Fed. 848; Dillingham V. Booker, C. C. A., 18 L.R.A. (N. S.) 956, 163 Fed. 696; McConologue's Case, 107 Mass. 154, 170; Re Morrissey, 137 U. S. 157, 34 L. ed. 644. But see Ex parte Bakley, 148 Fed. 56. 7 U. S. ex rel. Lazarus v. Brown, 242 Fed. 983; Ex parte Dostal, 243 Fed. 664. 8 Re Cosenow, 37 Fed. 668; Re Carver, 142 Fed. 623; Solomon v. Davenport, C. C. A., 87 Fed. 318. 9 Re Morrissey, 137 U. S. 157, 34 L. ed. 644; Re Grimley, 137 U. S. 147, 34 L. ed. 644; Re Cosenow, 37 Fed. 68; Re Spencer, 40 Fed. 149; Ex parte Hubbard, 182 Fed. 76. 10 Hoskins v. Dickerson, C. C. A., 239 Fed. 275. Contra, Ex parte Avery, 235 Fed. 248, where the minor had received no allowances. 11 Morrissey v. Perry, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. ed. 644; Ex parte Dunakin, 202 Fed. 290. 12 Moore v. U. S., C. C. A., 159 Fed. 701. 13 Re Carver, 103 Fed. 624. 14 Ex parte Beck. D. Montana, 245 Fed. 967; Ex parte Cohen, 254 Fed. 711; Arbitmann v. Woodside, C. C. A., 258 Fed. 441. 15 U. S. ex rel. Troiani v. Heyburn, 245 Fed. 360; Franke v. Murray, C. C. A., 248 Fed. 865; U. S. ex rel. Pascher v. Kinkead, 250 Fed. 692; Brown v. Spelman, 254 Fed. 215; Ellen v. Johnson, 254 Fed. 909. Contra, Ex parte Fuston, 253 Fed. 90. to object to his registration before the local board.16 It was held that an appeal to the District Board was not a condition precedent 17 to his relief. The decision of the proper boards as to rejecting claims for exemption on account of the dependency of a wife 18 or because of physical condition 19 were not thus reviewed. The burden of proof to show that he is exempt is upon the applicant.2 20 The court denied the request of a registrant, who had since his registration been convicted upon his plea of guilty to an offense involving moral turpitude, to discharge from imprisonment thereunder although he was liable to military service upon the expiration of his term.21 § 465. Suspension of writ of habeas corpus. The Constitution provides that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." By the Bill of Rights of the Philippine Islands,2 and of Porto Rico "the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the governor, whenever during such period the necessity for such suspension shall exist." During the civil war the question as to the department of the Government in which the right of suspension rests was much debated, but never authoritatively decided. President Lincoln claimed that he had the authority to suspend the writ, and many arrests were made in accordance with this ruling. 16 Summertime v. Local Board, 248 Fed. 832; Ex parte Blazekovic, 248 Fed. 327. 17 Ex parte Cohen, 254 Fed. 710. Contra, Ex parte Tinkoff, 254 Fed. 222. 18 Ex parte Tinkoff, 254 Fed. 912. 19 De Genaro v. Johnson, 249 Fed. 504. 20 Ex parte Blazekovic, 248 Fed. 328. 21 Ex parte Calloway, 246 Fed. 263. § 465. 1 Constitution article 1, $9. 2 Act of August 29, 1916, ch. 416, §3, 39 St. at L. 546, Comp. St., § 3810. 3 Act of March 2, 1917, ch. 145, § 2, 39 St. at L. 951; Comp. St., § 3803. 4 See, for a highly colored enumeration of such arrests. The American Bastile, by John A. Marshall, Phila. In 1871 Governor Holden of North Carolina was re Subsequently Congress by statute suspended the writ, and sought to validate the arrests previously made.5 Mr. Justice Miller inclined to the view that so much of the statute as validated an arrest previously made was constitutional, and deprived the party arrested of the right to damages for false imprisonment.6 A number of pamphleteers, amongst them Horace Binney, defended the position of the President. Other pamphleteers, amongst them Ex-Judge Benjamin R. Curtis, claimed that the moved by impeachment for doing this. Foster's Commentaries on the Constitution, vol. I, p. 676. According to General Schuyler Hamilton, during 1861 the filing of the return to a writ of habeas corpus, issued by Mr. Justice Wayne of the Supreme Court of the United States, in the matter of a private in Colonel Willett Gorman's regiment of Minnesota volunteers, was prevented by the colonel's taking the clerk of the court out of town under guard by the latter's consent, after the clerk had given orders that no papers should be filed until he had enforced them. Subsequently, the Justice quashed the writ, deciding in favor of the Government the question involved, holding that the President had the right under the Constitution to call out volunteers as militia. The writ was locked in the safe of the State Department; but has since disappeared.-N. Y. World, Febru ary, 1891. On the morning appointed for the execution of Mrs. Surratt for complicity in the assassination of President Lincoln, Judge Wylie of the Supreme Court of the District of Columbia issued a writ of habeas corpus directed to the commander of the military district, directing him to produce Mrs. Surratt in court at ten o'clock on that morning, and show legal cause why she was held in custody. The President issued the following order: "Executive Office, July 7, 1865, 11 o'clock a. m. To Major-Gen. W. S. Hancock, commanding, &c.: I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ and direct that you proceed to execute the order heretofore given upon the judgment of the military commission, and you will give this order in return to this writ. Andrew Johnson, President." Judge Wylie acquiesced in the suspension of the writ, and declined to take any further proceedings, Mrs. Surratt was executed. 5 12 St. at L. 755; 14 St. at L. 482. See the proclamation of President Lincoln, 14 St. at L. 734. A bill to suspend the writ of habeas corpus passed the Senate January 23, 1807, and was defeated in the House by John Randolph of Roanoke on January 26, 1807. 8 Benton's Abr. 414. See also Re Boyle · (Idaho, 1899), 57 Pac. 706; and Foster's Commentaries on the Constitution, vol. II. 6 Re Murphy, 1 Woolw. 141, To the same effect is McCall v. McDowell, 1 Abb. U. S. 212. Chief Justice writ could only be suspended by Congress. Taney held this, in an opinion upon an application for the writ of habeas corpus; but his decision was not obeyed." Judge Hall held that the right to suspend the writ was vested in the courts, and that a necessity for the suspension had arisen when the arrest reviewed by him was made. Judge Smalley held that the War Department had no power to suspend the writ.9 When the application for the writ was denied, because the writ had been suspended, and thereafter, before the allowance of an appeal, the suspension was revoked; the Supreme Court refused to decide the validity of the suspension, since the question had ceased to be of any practical importance.10 "The suspension of the privilege of the writ does not bar the writ. The writ issues as a matter of course, and on the return made the court decide whether the party applying is denied the right of proceeding any further with it.” 11 7 Ex parte Merryman, Taney, 246. Contra, Ex parte Field, 5 Blatchf. 63; Ex parte Vallandigham, U. S. D. C., D. Ohio, per Leavitt, J. 8 Judge Hall, in the Matter of the Petition of Oliver P. Thomas, in behalf of Joel McKee, U. S. D. C., Judicial District of Colorado, Oct. 14, 1861. 9 Ex parte Field, 5 Blatchf. 63. 10 Fisher v. Baker, 203 U. S. 174, 51 L. ed. 142. 11 Ex parte Milligan, 4 Wall. 2, 131, 18 L. ed. 281, 298. On the subject treated in this section, see Ex parte Merryman, Taney, 246; Re Benedict, Hall, J., 4 West. L. Month, 449; McCall v. McDowell, 1 Abb. U. S. 212; Ex parte McQuillon, 3 West. L. Month, 440; s. C., 9 Pitts, L. J. 29; Griffin v. Wilcox, 21 Ind. 370; Kemp v. State, 16 Wis. 359; Re Dunn, 25 How. Pr. (N. Y.) 467; Ex parte Field, 5 Blatchf. 63; Ex parte Vallandigham, U. S. D. C., D. Ohio, by Leavitt, J. This judge had so much doubt about the correctness of his decision that, as his grandson informed the writer, he prayed to Heaven for guidance before he made it. Re Fagan, 2 Spr. 91; Commonwealth v. Frink, 4 Am. Law Reg. (N. S.) 700, Philadelphia, 1882. Opinion of Attorney-General Cushing on Martial Law, 8 Op. A. G. 365; Ex parte Milligan, 4 Wall. 2, 131. Opinion of Attorney-General Bates on the Suspension of the Writ of Habeas Corpus, 10 Op. A. G. 74. Habeas Corpus and Martial Law. A review of the opinion of Chief Justice Taney in the Case of John Merryman. By Joel Parker, 1861. Judge Parker here argues that in time of war, whether foreign or domestic, there may be justifiable refusals to obey the command of the writ, without any act of Congress, or any order or authorization of the President, or any State legislation for that purpose. This, he says, does not arise from the President's power to suspend |