(3) over interlocutory decrees in equity granting or continuing an injunction, or appointing a receiver in any cause.28

§ 466a. Same Time allowed for taking writ of error or appeal. The writ of error or appeal from final judgments and decrees must be taken or sued out within six months after the entry thereof,20 and from interlocutory decrees within thirty days from the entry of such decree.30

28 34 U. S. Stat. at L. ch. 1627, p. 116.

29 26 U. S. Stat. at L. ch. 517, sec. 11, p. 826.

30 34 U. S. Stat. at L. ch. 1627, p. 116.

CHAPTER XI.

JURISRICTION OF THE FEDERAL JUDICIARY TO ISSUE WRITS OF HABEAS CORPUS.

§ 467. Jurisdiction of the federal judiciary to grant writs of habeas corpus.-The federal constitution declares that, "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety

2

may require it," and, acting under the immediate influence of this declaration, the first congress, in order to give effect to this great constitutional privilege, by the fourteenth section of the original judiciary act, gave to all the courts of the United States the power to issue writs of habeas corpus; and it was early decided that this section of the act vested in the supreme court jurisdiction to issue the writ, not merely as an auxilliary writ in aid of the jurisdiction of the court over a cause previously acquired, but as an independent and original proceeding, and in the exercise of an independent substantive judicial power, and this jurisdiction has been expanded by subsequent legislation, and has long been employed as one of the methods of maintaining the supremacy of the constitution, laws and treaties of the United States, and in the protection of personal liberty against unlawful restraints, in so far as that duty lies within the purview of the federal government."

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§ 468. What courts and judges may issue writs of habeas corpus.-The supreme court and the circuit and district courts have power to issue writs of habeas corpus; and the several justices and judges of said courts, within their respective jurisdetions, have power to grant writs of habeas corpus for the purpose of enquiring into the cause of restraint of liberty." But the United States circuit courts of appeals have no jurisdiction to issue writs of habeas corpus, as an independent and original proceeding.8

§ 469. Supreme court may issue the writ in the exercise of either original or appellate jurisdicton.-The power of the supreme court to issue the writ of habeas corpus is a part of the judicial power vested in it by the federal constitution, and must be exercised within the limits of the grant, and the divid

142 (18:281); Ex parte Yerger, 8 Wall. 85-106 (19:332); Ex parte Lange, 18 Wall. 162 (21:875).

6 U. S. Rev. Stat. sec. 751, 3 Fed. Stat. Anno. 162, U. S. Comp. Stat. 1901, p. 592.

7 U. S. Rev. Stat. sec. 752, 3 Fed. Stat. Anno. 167, U. S. Comp. Stat. 1901, p. 592.

8 Whitney v. Dick, 202 U. S. 132141 (50:963).

ing line between original and appellate jurisdiction applies to this subject as well as to all others; and the supreme court may issue the writ of habeas corpus in the exercise of either its original or appellate jurisdiction, when a proper case is presented for either. Ordinarily it issues the writ in the exercise of appellate jurisdiction, for the purpose of reviewing the judicial decision or action of some inferior court or officer, but the court may issue it in the exercise of original jurisdiction in a case where it has original jurisdiction and the circumstances require it. It is well settled that the appellate jurisdiction may be exercised directly by habeas corpus where the writ is an appropriate remedy."

§ 470. Nature and object of the writ-Cannot perform the office of a writ of error.-Inasmuch as the federal constitution is written in the language of the common law, and the writ of habeas corpus is a great common-law writ, for centuries esteemed by the English people as their best and only sufficient defense of personal freedom, firmly guarantied by the famous habeas corpus act of 31st Charles II, "for the better securing of the liberty of the subject," brought to America by the colonists and claimed by them as an immemorial right descended to them from their ancestors, and confirmed unto the people of the Union by constitutional guaranty without definition as a known and existing right, the federal courts have felt authorized to look to the common law for a definition of the nature and object of the remedy given by the writ; and, as defined by the principles of the common law, the great object of the writ was the speedy liberation of persons imprisoned or restrained of their liberty without sufficient cause, and this object was achieved by a judicial inquiry into the legality of the commitment, and the discharge of the prisoner, if, upon such inquiry, the cause of commitment was found to be insufficient. The writ proceeded, not by a mere correction of errors, but by a direct attack upon the validity of the order of commitment. The question brought forward and presented for decision upon the writ of habeas corpus was always distinct

9 Ex parte Siebold, 100 U. S. 404422 (25:717); Hung Hang, 108 U. S. 552-553 (27:811); Ex parte Barry, 2 How. 65-66 (11:181); Ex parte Yerger, 8 Wall. 85-106 (19:

332); Ex parte Bollman, 4 Cranch, 75 (2:554); Ex parte Watkins, 3 Pet. 193 (7:650); Ex parte Wells,. 18 How. 307 (15:421).

from the question involved in the case itself; and the question whether the individual should be imprisoned or discharged was always distinct from the question whether he should be convicted or acquitted of the charge upon which he was to be tried, and those questions being distinct and separate might be decided by different courts. The decision that the individual should be imprisoned always preceded the application for the writ of habeas corpus, and the writ was sued out for the purpose of revising the order of commitment, and, although appellate in its nature, it was not for the purpose of correcting errors upon a trial of the offense charged upon its merits. The revision was directed at the order of commitment, to ascertain whether it was based upon sufficient cause." This view of the nature of a writ of habeas corpus was adopted by the federal judiciary, and while it is well and definitely settled that the supreme court of the United States may issue a writ of habeas corpus, in the exercise of its appellate jurisdiction, for the purpose of passing upon the validity of the order of commitment, yet it is equally well settled that the writ cannot be made to perform the office of a writ of error for the correction. of errors which may have occurred in the trial of the cause in the court below, but is a direct attack upon the validity of the judgment complained of, upon the ground that, for want of jurisdiction, or because in excess of the power of the court to render, it is null and void.11

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§ 471. Classes of cases in which the federal courts may issue the writ of habeas corpus.-The jurisdiction of the courts of the United States to issue writs of habeas corpus is limited to five classes of cases, namely: (1) To cases of persons alleged to be restrained of their liberty under or by color of the au

10 Ex parte Watkins, 3 Pet. 193209 (7:650); Ex parte Yerger, 8 Wall. 85-106 (19:332); Ex parte Bollman, 4 Cranch, 75-137 (2:554).

11 Valentina v. Mercer, 201 U. S. 131-140 (50:693); Felts v. Murphy, 201 U. S. 123-130 (50:689); Ex parte Lennon, 166 U. S. 548-557 (41:1110); Re Eckart, 166 U. S. 481-485 (41:1085); Ex parte Bigelow, 113 U S. 328-331 (28:1005); Whitney v. Dick, 202 U. S. 132

141 (50:963); Riggins v. United States, 199 U. S. 547-551 (50:303); Dimmick v. Tompkins, 194 U. S. 540-552 (48:1110); Ex parte Royal, 117 U. S. 241 (29:868); Ex parte Lange, 18 Wall. 163 (21: 872); Ex parte Nielsen, 131 U. S. 176-191 (33:118); Ex parte Siebold, 100 U. S. 371 (25:717); Re Snow, 120 U. S. 274 (30:658); Ex parte Parks, 93 U. S. 18-24 (23: 787).