The San Francisco call., 1897-06-07
Open Letter From Lawyer
Collins to the Attor-
ney- General.
Takes Issue With That officials
View of the Jugiro
Case.
Congress Intended to Adopt the Com.
mon Law When 1t Enacted
Section 100

Attorney George d. Collins has adj
dressed the following open letter to At
torney- General Fitzgerald, giving his
opinion of the effect OF the appeal to the
Supreme Court in the Durrant case:
To the Hon ". F. Fitzgerald Attorney General
oJ CdliforRfd-SIR: You VIII recognize it 10 be
the duty oil every lawyer TO defend the law
against a construction rendering it not only
absurd but exceedingly dangerous TO the well
fare OF the State. Accordingly, considering
such to be the character of the constructions
you have placed upon section 766 OF the Re-
vised Statutes of the United States, desire to
direct your attention to the fact that both the
history and language of that law are opposed
to the view you have taken.
In the first place IL was the purpose of Con-
gress TO place in statutory form the common
law doctrine that the writ OF habeas corpus
operated to transfer the legal custody of the
prisoner to the court issuing the writ; all in
terterence therefore with that custody was
necessarily violation OF that courts jurlsdic-
loh-that, L say, Is the doctrine OF the
common law, which it was the purpose OF
Congress to adopt in enacting section 766 OF
the Revised Statutes of the United States;
reference to the debates and to the authori-
ties dealing with the power of the State pend
ing tn e final determl nation of the case, where
the Federal court had issued the writ in
favor favor OF person lmptdsohea en, unaer
ness of my position. In the next place the
very language of the law precludes any other
construction; it is only such proceedings
against the prisoner Gin any State court or by
or under the authority OF any State for any
matter so heard and determined. or in process
of being heard or determined, under such writ
of hRbeas corpus, shall be deemed null and
void" That necessarily requires as condition
precedent to its operation that the writ OF ha-
beas corpus shall nave actually issued; until
then neither the reasons nor the purpose of
the law demands nonin reference on the part OF
the Slate; for as the Federal court has not tax
en- the case within the jurisdiction of the Ma
tIonal Government no interference is
possible. The mere fact that the prisoner
has made an application for the
writ is of no consequence, IL is the issuance OF
he writ that determines the question. II
the application for the writ is denied that is a
refusal OF the Federal court to take cogniZance
OF the case, and the mere right or exercise Of
the right to prosecute an appeal from that
refusal can no more affect the power OF the
State to deal with the prisoner than did the
mere filing and presentation OF his application
In the first instance. ANY other construction
would be open to the fatal objection that 1t
gave TO the statute an operation beyond the
scope of the powers conferred upon Congress
by The constitution. In the third place the
construction you have given the law would ad-
nit OF n inde finite stay of execution, and in
fact, would make the law inValidate even the
imprisonment under State procesS-n thing
that can only be possible " here the custody of
the prisoner has passed TO the Federal courts,
and that is never the case where the court re-
fuses 10 issue the writ of habeas corpus Now
of course, have not attempted TO do more
than direct your attention to some OF the
reasons why you should not rest sd tlsfied W 1th
give to the law. / have not quoted from the
decisions nor given your citations from what
may be said 10 constitute the history OF the
events which led to the enactment; space
would not permit me to do so. Nor did the
courts in Jugiro VS.. Brush, t140 n. S. 291, de-
eide that the law applied to cases where the
application for the writs OF haDeas corpus is
denied; the point not before the court;
the applicability of the law was assumed, but
not decided.
Let me in conclusion make the suggestion
| that you bring the question before the Fed
| eral courts, and in this wise: On the failure
of the warden of the State prison TO execute
| the mandate of the Superior Court, that court
can cite him and punish him for cont2mpt by
imprisonment. Then he can OBTAIN writ OF
habeas corpus from the United States Circuit
Court, and from the decision either way an ap.
peal can be prosecuted to the National Su-
preme Court OF course you understand the
law to be that person in custody under State
process in violation OF a law of the United
States is entitled to a writ of habeas corpus
from the Federal courts. Or you can obtain q
mandamus from the Supreme Court, and, il
adverse TO the warden, by issuance of the per
emptory writ he can sue out writ of error
and the case be taken 10 the National Supreme
Cour by that means. The preferable method
would be that first above suggested. Very re-
spectfuily, GEORGE D. COLLINS.