The ap § 466. Practice on application for habeas corpus. plication for a writ of habeas corpus should be made by a written complaint addressed to the court or judge from whom the writ, which he cannot constitutionally do, but from the co-ordinate jurisdiction of the military authorities. The Privilege of the Writ of Habeas Corpus under the Constitution. By Horace Binney. Second edition, Philadelphia; C. Sherman & Son, 1862. In this pamphlet Mr. Binney argues that there is nothing in the constitutional clause which, either directly or by any fair or reasonable implication, gives or confines the authority to suspend the writ to Congress, or takes it from the executive (p. 31) and he makes an elaborate reply to Chief Justice Taney's opinion in Merryman's case, supra. A "Second Part" to the same pamphlet was published by Mr. Binney, in the same year, by John Campbell of Philadelphia. The object of this publication was to "confront a doctrine of certain writers, that the habeas corpus clause in the Constitution does not give power to anybody to suspend the privilege of the writ, but is only restrictive of the otherwise plenary power of Congress!"' This pamphlet is a reply to the answers which Mr. Binney's first pamphlet drew forth. A "Third Part" of Horace Binney's discussion was published by Sherman & Co., Philadelphia, 1867. Review of Mr. Binney's Pamphlet on the Privilege of the Writ of Habeas Corpus under the Constitution. By J. C. Bullitt. Philadelphia, Sherman & Co., 1862., Remarks on Mr. Binney's Treatise. By George M. Wharton. Philadelphia, 1862. Answer to Mr. Binney's Reply to "ReFed. Prac. Vol. III-10 marks,' in his treatise on the Habeas Corpus. By G. M. Wharton. Philadelphia, 1862. Habeas Corpus the Law of War and Confiscation. By S. S. Nicholas. Bradley & Gilbert, Louisville, 1862. In these pamphlets the position that the President has no right on his own motion to suspend the writ, is maintained with great force. It is not, at the same time, claimed that a return by a military officer in time of war, that the relator is in military custody, is not a sufficient discharge. The Writ of Habeas Corpus and Mr. Binney, by John T. Montgomery. John Campbell, Philadelphia, 1862. Personal Liberty and Martial Law, Philadelphia, 1862. By Edward Ingersoll. Habeas Corpus. By D. A. Mahoney, Prisoner of State, 1863. The Suspending Power and the Writ of Habeas Corpus. By James F. Johnson. John Campbell, Philadelphia, 1862. Martial Law: What is it, and who can declare it? By Tatlow Jackson. John Campbell, Philadelphia, 1862. Authorities Cited Antagonistic to Mr. Binney's Conclusions. By Tatlow Jackson. Philadelphia, 1862. Habeas Corpus. A Response to Mr. Binney, by S. S. Nicholas. Bradley & Gilbert, Louisville, 1862. Martial Law, by S. S. Nicholas, 1862. Presidential Power over Personal Liberty, a Review of Horace Binney's essay on the writ of Habeas Corpus imprinted for the author; Anon., dated February 12, 1862. Judge Curtis on Executive Power; reprinted 2 Curtis' Works, 309. Com the writ is sought, and sworn to by the complainant, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or pare 1 Curtis' Life, 240, 349. Opinions of Founders of Republic on Habeas Corpus, &c. Washington, 1864. Facts and Authorities on the Suspension of Writ of Habeas Corpus, 1864. Anon. The Privilege of the Writ of Habeas Corpus under the Constitution of the United States. In what it consists. How it is allowed. How it is suspended. It is the regulation of the law, not the authorization of an exercise of legislative power. Philadelphia, 1862. A Reply to Horace Binney's Pamphlet on the Habeas Corpus, by C. H. Gross. Philadelphia, 1862. Reply to Horace Binney on the Privilege of the Writ of Habeas Corpus under the Constitution, by a Member of the Philadelphia Bar. James Challen & Son, Philadelphia, 1862. A Treatise on the Martial Power of the President of the United States. By Daniel Gardner, Jurist. War Power of the President. By J. Hermans, Loyal Publication Society, No. 32. C. S. Westcott & Co., Printers, 1863. Argument of John A. Bingham, Special Judge Advocate, on the Constitutionality of the Trial of the Assassins of President Lincoln by a Military Commission, in Mrs. Surratt's Trial; also republished in pamphlet form. Speech of Senator R. S. Field, of New Jersey, in the United States Senate, January 7th, 1863. Towers & Co., Washington, 1863. An Undelivered Speech on Executive Arrests, by C. R. Ingersoll. Philadelphia, 1862. Several of these pamphlets may occasionally be bought bound together, under the title of Campbel's Pamphlets," "Martial Law and Habeas Corpus,' &c. Incomplete sets may be found in the library of Harvard University, in that of the author of this work, who has a collection formerly owned by Charles O'Connor; and in some of the book stores at Washington. Dr. Francis Wharton, says, in his Criminal Pleading and Practice, 9th Ed., § 979, note 2, after enumerating some, but not all of the above named works: "The following conclusions may now be ventured on the topics discussed in the foregoing publications: First: The President of the United States has no constitutional power to suspend the writ of habeas corpus. Second: On the return by a general military officer, in time of war, that he holds the relator either as a military subordinate, or as a spy, or as deserter, or as a prisoner of war, an attachment should be refused. Infra, § 996. Third: When a person, not in military service, or a prisoner of war, or charged with being a spy or deserter, is arrested by any authority whatsoever, he should be discharged by a Federal judge on habeas corpus, unless there is evidence produced against him at the hearing sufficient to justify an indictment to be found against him by a grand jury. See Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281. Fourth: If the return be that the relator is held under Federal authority, the revision by a writ of habeas corpus is vested exclusively in the Federal courts. According to Judge Curtis. "Military law is authority, if known.1 A father may thus apply when his child is illegally restrained.2 that system of laws enacted by the legislative power for the government of the army and navy of the United States, and of the militia when called into the actual service of the United States. It has no control whatever over any person or any property of any citizen. It could not even apply to the teamsters of an army save by force of express provisions of the laws of Congress making such persons amenable thereto. The persons and property of private citizens of the United States are as absolutely exempted from the control of military law as they are exempted from the control of the laws of Great Britain. But there is also martial law. What is this? It is the will of a military commander operating without any restraint, save his judgment, upon the lives, upon the property, upon the entire social and individual condition of all over whom this law extends. . . . In time of war, without any special legislation, not the Commander-in-Chief only, but every Commander of an expedition or of a military post, is lawfully empowered by the Constitution and laws of the United States to do whatsoever is necessary to accomplish the lawful objects of his command. . . . But when the Military commander controls the persons or property of citizens who are beyond the sphere of his actual operations in the field, when he makes laws to govern their conduct, he becomes a legislator. . . . He has no more lawful authority to hold all the citizens of the entire country, outside of the sphere of his actual operations in the field, amenable to his military edicts, than he has to hold all the property of the country subject to his military requisitions." 2 Curtis Life and Works, 327. Compare authorities cited in Lawrence's Wheaton, 516-520, as to distinction between martial and military law, and the right to suspend the writ of habeas corpus. Between martial law and military law the distinction is this: Martial law is the law adopted by civilized belligerents in matters connected with army discipline; military law is the law a conqueror imposes in a subjugated province to determine matters of State. See Whart. Com. Am. Law, §§ 37, 38; Ex parte Mason, 105 U. S. 696, 26 L. ed. 1213. See, also, Waters v. Campbell, 5 Sawyer, 17. Charles Sumner, in his speech in the Senate June 27, 1862, took the ground that the power of Congress in this relation was supreme. War Powers of the President and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery, by William Whiting. Tenth edition, Boston, 1862. $ 466. 1 U. S. R. S., § 754. 2 U. S. V. Anderson, Cooke (Tenn.), 143; U. S. v. Green, 3 Mason, 482; Bennett v. Bennett, Deady, 299; supra, § 461, note 25. See as to the former right of a master thus to obtain a slave, U. S. ex rel. Wheeler v. Williamson, 4 Am. Law Reg. 5. By the Rules of U. S. D. C., S. D. N. Y., "In any action or proceeding any order, whether known in practice as a See also The A deputy United States marshal, with a warrant for the extradition of a person arrested under State civil process, has the right to apply for the writ. A party who had a suit pending in a court was allowed the writ where a judge of that court was arrested. In an extraordinary case the writ may be granted at the request of a stranger who has no legal interest in the matter and whom the prisoner has not authorized to represent him. Such an application entitles the petitioner to no more relief than if the prisoner made the application in his own name. It is the safer practice in such a case to show some good reason for not obtaining the consent of the party detained. Where the proceedings had been instituted on behalf of an alleged lunatic by his next friend, the court superseded his next friend by the appointment of a guardian ad litem, with authority to investigate the facts and recommend whether the proceeding be abandoned. Pending such an investigation the proceeding was stayed. An appeal in this case was entertained although taken by the next friend who has been removed. Neither an Indian agent, nor, except perhaps under extraordinary circum Court order or Judge's order, may be made and entered by any judge." 3 Re Mineau, 45 Fed. 188. 4 Ex parte Des Rochers, 1 McAll. 68. 5 Ex parte Des Rochers, 1 McAll. 68; Re Hoyle, 12 Chic. L. N. 279; S. c., 9 Am. L. Rec. 65; Re Ferrens, 3 Ben. 445; The Hottentot Venus, 13 East, 194; Wheeler v. Williamson, 14 Am. Law Reg. 5; People v. Mercein, 3 Hill, 399, 407, 38 Am. Dec. 644. But see Re Poole, 2 MCA. (D. C.) 583; Ex parte Dorr, 3 How. 103, 11 L. ed. 514. In Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283, the petition was by the Governor of West Virginia. There seems to have been no objection taken to this; but immediately thereafter another petition was presented by a citizen of West Virginia, and subsequently the name of the party restrained was substitut ed for that of the petitioner, and the proceedings on the petition were conducted in his name. At what particular stage of the proceedings the substitution of the name was made does not appear; but there seems to have been no objection taken to the petition being signed by the citizen or by the Governor. See Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386; infra, § 388. See learned articles on the subject by Theodore Connoly, Esq., in N. Y. L. J., June 5, 1890; Hon. S. D. Thompson, in '18 Fed. 68; and the Jurisdiction of the Federal Courts in Habeas Corpus Cases, 12 Crim. Law Mag. 193. 6 Ex parte Dastal, 243 Fed. 664. 7 King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 26 L.R.A. 784, 64 Fed. 331, 353. 8 Ibid, C. C. A., 64 Fed. 325. stances, the United States, can sue out the writ to restore an Indian child to the custody of its mother.9 The petition must show the jurisdiction of the court or judge to grant the writ.10 A general averment that the petitioner is detained in violation of the Constitution and laws of the United States, and that the court below had "no jurisdiction or authority to try and sentence him in the manner and form above stated, is an averment of a conclusion of law, and not of facts, that would, if found to exist, displace the presumption the law makes in support of the judgment." 11 So are allegations that a defense was arbitrarily overruled 12 or that evidence detrimental to the petitioner was offered in his absence, without a statement of the nature thereof.13 An allegation that the petitioner is a specified officer in the army of a foreign nation, of which he is a subject, and committed the acts, which are the subjects of criminal prosecution, as a necessary part of an attack upon the territory of a country with which his nation is at war, is insufficient to show that he is domiciled abroad or that such acts were authorized or commanded by his Government.14 But it was held to be sufficient to allege that the petitioner was unlawfully and wrongfully confined in imprisonment under the orders of the commanding officer of a military camp, naming such officer and camp with its location, and that the police department was in charge of a specified officer under whose particular charge he was.15 But it was said that "A simple application to the court, stating that the party is unlawfully confined, is in most cases sufficient." 16 The proceedings under which the petitioner is imprisoned must be set forth with sufficient detail that their invalidity may appear.17 A copy of the record of the 9 Re Celestine, 114 Fed. 551. 10 Ex parte Milburn, 9 Pet. 704, note, 9 L. ed. 280. See Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406; King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 26 L.R.A. 784, 64 Fed. 331; Howard v. U. S., 34 L.R.A. 509, 75 Fed. 986. 11 Re Cuddy, 131 U. S. 280, 286, 33 L. ed. 154, 157, per Mr. Justice Harlan. 12 Collins v. Johnston, 237 U. S. 502. 13 Choy Gum v. Backus, C. C. A., 223 Fed. 487. 14 Horn v. Mitchell, 223 Fed. 549. 15 Ex parte Mikell, 253 Fed. 817. 16 Ex parte Mikell, 253 Fed. 817, 819. 17 Anderson v. Treat, 172 U. S. 24, 43 L. ed. 351; Craemer v. Washington, 168 U. S. 124, 42 L. ed. 407. |