The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-10-26

into the cause OF detention alleged 20 be unlawful
and to give relief the detention be found to be IN
fact unlawful by the writ OF habeas corpus under the
Judiciary act OF 1882 Second-If, under that act,
the court possessed this jurisdiction has u been
81 1868 rs United States Statutes Ar repeating SO
much OF the act OF February 8, 1867 united states
Sf the Neither Of these
questions is here. The first has several occa-
slons received very full consideration and very de.
llberaie Judgment. A cause SO important important
Of the court seems however, 70 justify
| It's jurisdiction has been hitherto maintained.
the great writ OF habeas corpus has been for centu.
| personal freedom. In England, after long strug
gle, u was formally guaranteed by the famous
nes at large s a n @ sea9 S story
l9 for the better securing OF the liberty OF the sub
ect, which, as Blackstone says. us frequently con-
| Commentaries, 1851 twas brought to America by
the coonists and claimed as among the immemorial
rights descended 10 them from their ancestors.
Naturally, therefore, when the Confederated Colo.
MES became the United States, ana the formation OF
common government engaged their deliberations
in conventions, this great writ found permanent
sanction IN the constitution. That sanction Is In
these words -
The privilege of the of corpus be
pended unless when Of rebellion invasion, the
public safety may require IT,
The terms of this provision necessarily imply judi.
cial action. In England all the higher courts were
open to applicants for the WITT and 1t is hardly sup
possible that under the new government founded on
be Intentionally closed 10 them. We lind accord
inglY that the first Congress under the constitution,
TENDER a, i7s5, The jurisdiction of The District
courts the Circuit courts ana the Supreme Court IN
enact THAT ali the before mentioned courts OF the
United States shall have power TO issue wrlts OF sclre
Mclas habeas corpus and all other writs not
specially provided for by statute, which may be
necessary for the exercise OF their respective juris
dictons and agreeable TO- the principles and
same section it was further provided that
Either q the justices Of the Supreme Court as well as the
udse Oh ne psrct courts snail nave power 70 grant Wits
provdP
. sas SsS
are necessary to be brought into court to testify
That this Court is OF the courts to which the
oower to issue writs OF habeas corpus Is expressly
given by the terms OF this section has never been
questioned II would have been, indeed, remarka-
bic anomaly this court ordained by the constitution
for the exercise In the United states or the most
important powers IN civil cases OF all the
highest courts OF England, had been denied.
nary exigencies that power In cases OF alleged I'M
lawful restraint which the habeas corpus act Of
Charles ii. expressly declared those courts to
possess But the power vested IN this Court is in
important particular unlike that possessed by the
English courts. The Jurisdiction OF this Court ID
conferred by the constitution and Is appellate;
whereas that OF the English courts though declared
| law, and Is original. The judicial power OF the
United States extends to all cases In law and equity
arising under the constitution, the laws OF the
United States and treaties made under their author
ity, and to large classes Of determined by the
character OF the parties or the nature OF the conro
versy That part OF this judicial power vested IN this
Court defined by the constitution In these words:
In all cases aaeetng other public ministers
supreme Court shall have original jurisdiction. In
before mentioned the Court shall have appel
and under such regulations the Congress shall make
| Ii the question were new one 1t would perhaps
| deserve inquiry whether Congress might not under
|
Jurisdiction extend The original jurisdiction to other
| cases than those expressly enumerated IN the con-
! stitutiOn, and especially in view Of the con-
stltutional guarantee of the writ Of habeas corpus
to cases arising upon petition for that writ. But
| was determined upon full consideration, that
| the power to issue writs Of mandamus given
this court by the thirteenth section OF the Judiciary
act Is, under the constitution, an appellate jurisdlc
| ton, to be used only III the revision Of judicial
| decisions And this Judgment has ever since been
accepted fixing the construction Of this part or
the constitution. IL was pronounced In 1903. In
1907 the same construction was given to the provi-
sion OF the fourteenth section relating to the writ
OF habeas corpus IN the case of Ballman ana Swart
won't a Cr., l0o. The power to issue the writ had
been previously exercised in Hamlltons case, 1876
in neither q which does the distinction between
have been made. In the case OF banman
and swartwouh however. the point was
| Of the jurisdiction carefully examined and IL
| was declared to be appellate. The question then
versy The doctrine Of the constitution and OF the
cases thus far may be summed up in these PROPOSE.
| tons-
First-The original jurisdiction of this Court can
not be extended by Congress to any other than
| those expressly defined ny the constitution.
| SecOnd-Tne appellate Jurisdiction OF this Court
conferred by the constitution extends to all other
cases within the Judicial power Of the United States
Thrd-This appellate jurisdiction Is subject to
such exceptions and must be exercised under sucn
regulations as Congress III the exercise OF Its discre-
| ton has made or may see ut to make.
| FOugth-Congress not only has not excepted wrts
| OF habeas corpus and mandamus from this appellate
jurisdiction. but has expressly provided for the ex-
erclSe OF this jurisdiction 10y means Of these wrts.
! We come, then to consider the first great ques
/ ton made IN the case now before u.s. We shall
assume, upon the authority OF the decisions referred
| to, what we should hold were the question now for
the first time presented to us, that in proper
| this court, under the act OF 1889 and under all the
| subsequent acts giving Jurisdiction in cases of
habeas corpus may, IN the exercise Of Its appellate
power revise the decisions OF the inferior courts OF
the United States ana relieve from unlawful impris
| onment authorized by them, except in cases within
some limitation OF the jurisdiction by Congress. 1t
remains to inquire whether the case before
IS It within any such lmltationS In osner
| lawiuness OF the detention and relieve from It, II
| found unlawful when the detention complained OF
by an INFERIOR court for trial in civil court but by
military officers Tor trial before military tribunal
After an examination into the cause OF detention by
The inferior court, resulting IN an order remandng
the prisoner to custody It was insisted in argument
that to bring case within the appellate jurisdiction
OF this court IN the sense requisite to enable 1t to
award the writ OF habeas corpus under the judiciary
| act, 1t is necessary that the commitment should
| appear to have been by tribunal whose decisions
are subject to revision by this court. This PROPOSE
ton seems to assert not only that the decision to be
| revised upon habeas corpus must have been made
by court OF the United States subject to the orai
nary appellate jurisdiction OF this court, but that
| having been SO made 1t must have resulted In an
| order OF commitment to civil authority subject 10
the control OF the court making 1t. The first branch
OF this proposition has certainly some support in
Metzer's case Us How. 176), in which 1t was held
/ that order of commitment made by district
judge at chambers cannot be revised here by habeas
corpus This case, as was observed by Mr.. Justice
Nelson In kane's case, IA Howard, l03 stands
Alone and 1t may admit of question whether 1t can
be entirely reconciled with the proposition which
we regard as established upon principle and
authority thati the appellate Dy habeas
| judicial authority of the United States not
excepted from 1t by Congress. But It is
unnecessary to enter upon this inquiry here
| The action which we are asked TO revise
was that OF tribunal whose decisions are
subject to revision by this court in ordinary modes.