based on an exact adherence to the technical meaning generally accorded to its terms.2 3 The common law meaning of the terms employed in the Bill of Rights, however, is generally referred to in aid of their interpretation. This is done, not because the common law is part of the law of the United States, for it is not; but because this is supposed to give to these expressions the meaning which they had in the minds of the framers and adopters of the Constitution and first eight amendments.5 The United States Supreme Court has also resorted to other sources of information which would tend to show the intentions of these men; for example in ex parte Wilson' a study is made of the history of the Convention in Massachusetts which ratified the United States Constitution, and at the same time proposed various amendments to the Constitution which later formed in a large measure the basis for the first ten amendments to the Constitution.R SECTION 77. EXTENT OF THE APPLICATION OF THE FIRST EIGHT AMENDMENTS. The first eight amendments are exclusively restrictions on the power of the United States Govern ⚫ Hurtado vs. California, 110 U. S., 516, 532; Munn vs. Illinois, 94 U. S., 113, 134; Hawaii vs. Mankichi, 23 Sup. Court Rep., 787, 788. I. e. law of the United States or general government, it is a part of the law of each individual State except Louisiana. "It is clear, there can be no common law of the United States." Wheaton vs. Peters, 8 Peters, 591, 657. "There is no common law of the United States in the sense of a national customary law." Smith vs. Alabama, 124 U. S., 465. • Miner vs. Happersett, 21 Wallace, 162, 167; Moore vs. United Vol. II-11. States, 91 U. S., 270, 273 and 4; Ex parte Wilson, 114 U. S., 417; Boyd vs. United States, 116 U. S., 616, 624 et. seq. United States vs. Wong Kim Ark, 169 U. S., 649, 654; Smith vs. Alabama, 124 U. S., 465, 479; Murray et al. vs. Hoboken L. & I. Co., 18 Howard, 272, 276. Boyd vs. United States, 116 U. S., 616, 624; Hurtado vs. Cali- For a good short account of this ment and do not effect the individual States. This was decided in Barron vs. Baltimore," the decision in which case was written by Chief Justice Marshall and was in part as follows: "The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each State established a Constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted for their situation, and best calculated to promote their interests. The powers they conferred upon this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons, for different purposes. "If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the States. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest." The first eight amendments are all in the same position in this respect; and what was held in Barron • 7 Peters, 243. vs. Baltimore as to the fifth amendment has since been held in a long series of decisions as to the others.10 SECTION 78. HABEAS CORPUS. The second clause of the ninth section of the first article of the United States Constitution, provides, that: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of invasion or rebellion the public safety may require it." "No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the Constitution as one which was well understood; and the Judicial Act authorizes this court, and all the courts of the United States, and the judges therof, to issue the writ, 'for the purpose of inquiring into the cause of commitment.' This general reference to a power which we are required to exercise, without any precise definition of that power, imposes upon us the necessity of making some inquiries into its use, according to that law, which is in a considerable degree incorporated into our own. The writ of Habeas Corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment. English Judges, being originally under the influence of the Crown, neglected to issue this writ where the government entertained suspicions which could not be sustained by evidence; and the writ when issued was sometimes disregarded or evaded, and 10 Fox vs. Ohio, 5 Howard, 410; United States vs. Cruikshank, son vs. Yewdall, 92 U. S., 294; Pumpelly vs. Canal Co., 13 Wallace, 166; Eilenbecker vs. District Court of Plymouth County, 134 U. S., 31; West River Bridge Co. vs. Dix, 6 Howard, 507. great individual oppression was suffered in consequence of delays in bringing prisoners to trial. To remedy this evil, the celebrated Habeas Corpus act of the 31st of Charles II, was enacted, for the purpose of securing the benefits for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law. This statute excepts from those who are entitled to its benefit, persons committed for felony, or treason plainly expressed in the warrant, as well as persons convicted or in execution."'11 Habeas Corpus is a civil process,12 and does not issue as of course. "While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue as a matter of course, and it should be cautiously used by the federal courts in reference to state prisoners." This writ ought not to be issued, where the court is satisfied, upon application for the writ, that prisoner would be remanded upon the return; nor where it is obvious that before return can be made to the writ, the restraint complained of will have terminated.15 The writ of habeas corpus cannot be used in the United States courts to perform the functions of a writ of error;16 nor are mere errors of form cognizable in habeas corpus proceedings.17 The constitutionality of a statute of the United "Chief Justice Marshall in Ex parte Watkins, 3 Peters, 193. 19 In re Frederick, 149 U. S., 70, 75; United States vs. Pridgeon, 153 U. S., 59, 60. 14 Ex parte Watkins, 3 Peters, 193, 16 Ex parte Baez, 177 U. S., 390. Ex parte Siebald, 100 U. S., 166 U. S., 485; In re Lennon, 166 U. S., 552; Crossley vs. California, 168 U. S., 641; In re McKensie, 180 U. S., 546; Terlinden vs. Ames, 184 U. S., 282; Ex parte Parks, 93 U. S., 21; Ex parte Yarborough, 110 U. S., 651, 654; Ex parte Cranch, 112 U. S., 180. 17 Ex parte Clark, 100 U. S., 403; Stevens vs. Fuller, 136 Ú. S., 477; In re Wilson, 140 U. S., 585. States may be inquired into in the trial of a writ of habeas corpus.18 If the court which renders a judgment has no jurisdiction to render it, either because the proceedings or the law under which they are taken are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally; and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. By a second prosecution and trial for the same offense a constitutional immunity of the defendant is violated; and where such a state of facts appears on the record, the party is entitled to be discharged from imprisonment. A party is entitled to a writ of habeas corpus not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner.19 The power to suspend the writ of habeas corpus rests solely with Congress.20 Congress may, however, confer this power upon the President."1 No state court can issue a writ of habeas corpus, for the release of any party held under the authority of the United States Government. If the application discloses that the person is so held the state court should refuse the writ. If the application does not disclose this fact, the court should abate the writ as soon as this becomes disclosed in the proceedings.22 SECTION 79. BILLS OF ATTAINDER AND EX POST FACTO LAWS. The third clause of the ninth section of the first article of the United States Constitution, provides 18 In re Coy, 127 U. S., 731. 10 In re Hans Neilson, 131 U. S., 176; Ex parte Siebald, 100 U. 371. S.. 30 Ex parte John Merryman, Taney 246; Ex parte Bollman, 4 Cranch, 76. 21 Ex parte Milligan, 4 Wallace, 2; Tarble's Case, 13 Wallace, 397; |