Under statute regulating soldiers' home. See Ohio t. Thomas, (1899) 173 U. S. 276.

In construction of postal and telegraph line under Act of Congress. See Ex p. Conway, (1891) 48 Fed. Rep. 77.

"The federal courts may release a person after his conviction by a state court as well as before a trial, when he is restrained of his liberty for an act done in pursuance of a law of the United States lawfully enacted." Campbell v. Waite, (C. C. A. 1898) 88 Fed. Rep. 102.

Act done or omitted in pursuance of an order, process, or decree. United States marshals, deputies, and assistants, held by state authorities for acts done by them in the service of process issued from a federal court, should be discharged by a federal court on habeas corpus. Anderson v. Elliott, (C. C. A. 1900) 101 Fed. Rep. 609; U. S. v. Morris, (1854) 2 Am. L. Reg. 348, 26 Fed. Cas. No. 15,811; U. S. v. Harris, (1872) 26 Fed. Cas. No. 15,313; Ex p. Sifford, (1857) 5 Am. L. Reg. 659, 22 Fed. Cas. No. 12,848; Ex p. Jenkins, (1853) 2 Wall. Jr. (C. C.) 521; Ex p. Robinson, (1855) 6 McLean (U. S.) 355. As when the officer has been committed by a state court for contempt in refusing to obey the order of a state court to produce before that court a person held by the marshal under an order of a United States commissioner acting under a federal statute. Ex p. Robinson, (1856) 1 Bond (U. S.) 39. And when held under an order of a state court for a supposed contempt in failing to surrender to that court documents and papers which had been obtained by the United States court for use in a case concerning which that court had concurrent jurisdiction, and of which it had first acquired jurisdiction. Ex p. Turner, (1879) 3 Woods (U. S.) 603.

All power necessary to perform duty. When United States officers undertake to execute the process or orders of the United States courts they do so by authority of the laws of the United States, and all power necessary and proper to enable them to perform their duty is given by the laws of the United States; and when such officers are held by state authorities, for acts committed which are necessary and proper to enable them to perform their duty, they will be released on habeas corpus. "It is the duty of the United States to protect its officers, when performing their duty, and there is no question about the power to do so." U. S. t. Fullhart, (1891) 47 Fed. Rep. 802.

As in a case of homicide in attempting to execute a warrant of arrest. Kelly v. Georgia, (1895) 68 Fed. Rep. 652; U. S. v. Jailer, (1867) 2 Abb. (U. S.) 265.

Within respective districts.-The authority of the United States marshals and their deputies to act in an official capacity is confined by section 787, R. S., to the respective districts for which they have been appointed. Outside that district such an officer is simply a private citizen, and, as such, is amenable to the laws of the place where he may be, and when, in an unlawful attempt to serve a warrant outside of his own district, he is arrested by state authorities for carrying concealed weapons, which is an offense against

the law of the state, he cannot be released by the federal courts on habeas corpus. Walker

v. Lea, (1891) 47 Fed. Rep. 645.

Under the bankrupt law, a debt created by a fraud or embezzlement of the bankrupt is not discharged by proceedings in bankruptcy, and where there was such fraud, and the state law provides for the arrest of such debtor, he cannot be released on habeas corpus by the United States courts. But it is the duty of the United States court to examine all legal evidence brought before it from any quarter whatever, tending to show that a debt not dischargeable by the discharge of the bankrupt has or has not been contracted - the existence or nonexistence of fraud. In re Alsberg, (1877) 16 Nat. Bankr. Reg. 116, 1 Fed. Cas. No. 261.

A federal court has no authority to relieve from imprisonment, on state process, a discharged bankrupt who was arrested in a civil action, the writ in which declared in tort in the nature of deceit, alleging the obtaining of goods by certain false and fraudulent representations. Re Devoe, (1868) 1 Lowell (U. S.) 251. See Matter of Kimball, (1868) 2 Ben. (U. S.) 554; and Matter of Glaser, (1868) 2 Ben. (U. S.) 180, in which the petitioners were released by the federal court, as the actions were founded on simple contract debts, which, on their face, would be provable and discharged in bankruptcy, and the arrests were founded only on ex parte affidavits of fraud.

When a state court, in defiance of the propositions laid down, and of the order staying its proceedings lawfully made by the bankrupt court, has assumed the power, while bankruptcy proceedings are pending, to commit a bankrupt to jail for omitting to pay certain instalments of alimony due under the judgment of the state court rendered before the adjudication in bankruptcy, and from which he might be discharged in bankruptcy proceedings, the case is plainly within the provisions of this section, which manifestly includes cases of this character, as well as the more general one where the imprisonment is in violation of the Constitution and laws of the United States. In re Houston, (1899) 94 Fed. Rep. 119.

No intent to interfere with federal process. - A deputy United States marshal was arrested and lodged in state jail, while on his way to serve process, under commitment by a trial justice of the state upon charges of forgery and felony. He was held not entitled to be released on habeas corpus where it did not appear that he was arrested under state authority for any act done in pursuance of federal authority, and warranted by it, nor that he was arrested by the state authorities with the motive or intent on the part of any one to interfere with the service of process of the United States. In re Miller, (1890) 42 Fed. Rep. 307.

Process obtained by perjury. - The petitioner was indicted in a state court for larceny alleged to have been committed under color of a writ of replevin issued by the federal court, obtained upon the affidavit of the petitioner. The federal court refused to release on habeas corpus where it appeared that

- No

the writ of replevin had been obtained by perjury and the filing of a worthless bond, and that these and other facts and circumstances showed that gross and infamous fraud had been practiced upon the court. Ex P. Thompson, (1876) 1 Flipp. (U. S.) 507. Duty of marshal or executive officer. state judge or court, judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before the judge or court. "It is the duty of the marshal, or other person holding him, to make known, by a proper return, the authority under which he detains him, [but] it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a state judge or court upon a habeas corpus issued under state authority." Ableman v. Booth, (1858) 21 How. (U. S.) 506. See Charge to Grand Jury, (1851) 1 Blatchf. (U. S.) 635.

In commenting on the case of Ableman v. Booth, (1858) 21 How. (U. S.) 506, the Attorney-General (Gormley's Case, (1867) 12 Op. Atty. Gen. 258) said that the language used in that opinion was not very specific, but he understood it as only applicable to proceedings upon habeas corpus in state courts, in case of imprisonment under process issued under the authority of the United States. The duty of the marshal to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to a state mandate or process, does not extend to an executive officer who has under his control a person alleged to be so in violation of the federal law, as in the case of a minor enlisted in the naval service, so as to excuse such executive officer from making full return to, and producing the body before, the state court issuing the writ of habeas corpus therefor, within whose territorial limits is the alleged illegal detention. See also Tarble's Case, (1871) 13 Wall. (U. S.) 409.

Federal court may inquire into facts. The federal court is not concluded by the return showing commitment by the state court, or by the indictment or information, as the case may be, but may inquire from the facts before the court, by proof aliunde, whether or not the alleged acts charged as a violation of the state laws were done "in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof." In re Houston, (1899) 94 Fed. Rep. 119; Campbell r. Waite, (C. C. A. 1898) 88 Fed. Rep. 102: In re Marsh, (1892) 51 Fed. Rep. 277; Walker r. Lea, (1891) 47 Fed. Rep. 645; U. S. v. McClay, (1877) 4 Cent. L. J. 255, 26 Fed. Cas. No. 15,660; Ex p. Sifford, (1857) 5 Am. L. Reg. 659, 22 Fed. Cas. No. 12,848; Ex p. Jenkins, (1853) 2 Wall. Jr. (C. C.) 521; Griffin's Case, (1869) Chase (U. S.) 364. See also Robb v. Connolly, (1884) 111 U. S. 624.

State court cannot collaterally attack. When a federal court or judge has heard and determined issues made by a petition and

responses thereto in habeas corpus proceedings, and has found that the petitioner was acting in discharge of his duty as an officer of the United States when he committed the offense charged against him in the state courts, the findings of such federal court or judge cannot be attacked by a state court in a collateral proceeding on account of supposed irregularity in the manner of procedure before such federal court or judge. State v. Adler, (1900) 67 Ark. 469.

66

*

"In custody in violation of the Constitution or of a law or treaty of the United States." Whether * the appellant is a prisoner in jail, within the meaning of section 753, or is restrained of his liberty by an officer of the law executing the process of a court of Virginia, in either case, it being alleged under oath that he is held in custody in violation of the Constitution, the Circuit Court has, by the express words of the statute, jurisdiction on habeas corpus to inquire into the cause for which he is restrained of his liberty, and to dispose of him as law and justice require.' Ex p. Royall, (1886) 117 U. S. 247.

6

The courts of the United States have jurisdiction on habeas corpus to discharge from custody a person who is restrained of his liberty in violation of the Constitution or a law of the United States, although he may be held under state process for an alleged offense against the laws of such state. U. S. v. Fiscus, (1890) 42 Fed. Rep. 395; In re Reinitz, (1889) 39 Fed. Rep. 204.

A person is not in jail in custody in violation of the Constitution or of a law of the United States, when he is committed to the county jail in default of giving bond for the maintenance of a bastard child under judg ment of the state court notwithstanding a discharge from bankruptcy, as such debt is not one from which his discharge in bankruptcy would be a release. In re Baker, (1899) 96 Fed. Rep. 954.

Construction of state statutes. - Matters involving only the construction of state statutes should be determined by the courts of the state, whose determination in respect thereto is binding upon the federal court. Storti v. Massachusetts, (1901) 183 U. S. 138; In re Converse, (1891) 137 U. S. 624,

The United States court cannot on a writ of habeas corpus construe state laws, and hold that they give a writ of error to the state Supreme Court, and discharge petitioner on the ground either that the courts of the state have arrived at a different conclusion and denied the writ, or have granted it and refused to make it effectual. Kohl v. Lehlback, (1895) 160 U. S. 293.

The violation of a right implied out of the Constitution and laws of the United States would be a violation of them. In re Fitton, (1891) 45 Fed. Rep. 471.

The word "law" has a wider signification than a statute or publicly declared decision, and may include an obligation arising on a regulation promulgated by a department according to law, an act in pursuance of which would be therefore in pursuance of law. In re Hirsch, (1896) 74 Fed. Rep. 928. See also In re Huttman, (1895) 70 Fed. Rep. 699.

Unconstitutional federal statute. A party imprisoned under a sentence of a United States court, upon conviction of a crime created by and indictable under an unconstitutional Act of Congress, may be discharged from imprisonment by the Supreme Court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judg ment. Ex p. Siebold, (1879) 100 U. S. 371. Fifth amendment - Indictment by grand jury. A prisoner who has been tried, convicted, and sentenced to imprisonment, by a Circuit Court of the United States, the indictment having been amended by the district attorney, by leave of the court, after it had been returned by the grand jury, is entitled to his discharge under a writ of habeas corpus issued by the Supreme Court, on the ground that the proceeding was void. "It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime; for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment." Er p. Bain, (1887) 121 U. S. 1.

The petitioner had been convicted in a special Supreme Court of the Cherokee Nation, on a charge of murder, upon an indictment returned by a body consisting of five grand jurors. Upon a petition for a writ of habeas corpus upon the ground that the grand jury, consisting only of five persons, was not a grand jury within the contemplation of the Fifth Amendment of the Constitution, the court said that this amendment does not apply to the local legislation of the Cherokee nation so as to require all prosecutions for offenses committed against the laws of that nation to be initiated by a grand jury organized in accordance with the provisions of that amendment. The powers of local government exercised by the Cherokee nation are not federal powers created by and springing from the Constitution of the United States, but are local powers not created by the Constitution, although subject to its general provision and the paramount authority of Congress. Talton . Mayes, (1896) 163 U. S. 376.

Witness against himself. - The Constitution provides that no person shall be compelled in any criminal case to be a witness against himself, and on the commitment of a person for refusing to answer a set of questions tending to show his connection with the misdemeanor charged, he should be released on habeas corpus, notwithstanding that some of the questions could have been answered without endangering the petitioner. Foot v. Buchanan, (1902) 113 Fed. Rep. 156.

Fourteenth amendment - Due process of law. The federal court has jurisdiction to issue a writ in behalf of a citizen who is alleged to be illegally restrained, whether it is done under color of state authority or national authority, and the inhibition of the constitutional provision, "nor shall any state deprive any citizen of life, liberty, or property without due process of law," goes against any

part of the legal machinery of the state, as well as against the whole of it. In re Monroe, (1891) 46 Fed. Rep. 52.

Commitment for contempt by a police magistrate, for a longer period than allowed by the law of the state. In re Monroe, (1891) 46 Fed. Rep. 52. In re

Arrest under a void city ordinance. Lee Tong, (1883) 18 Fed. Rep. 253. See also In re Ah Jow, (1886) 29 Fed. Rep. 181; In re Wo Lee, (1886) 26 Fed. Rep. 471; Stockton Laundry Case, (1886) 26 Fed. Rep. 611; Laundry License Case, (1885) 22 Fed. Rep. 701; In re Quong Woo, (1882) 13 Fed. Rep. 229; Yick Wo v. Hopkins, (1886) 118 U. S. 356.

Act charged not a violation of the municipal ordinance. Ex p. Ah Lit, (1886) 26 Fed. Rep. 512.

De facto judge. But where it appears that the petitioner has been convicted of the of fense charged against him in a court having jurisdiction of the subject-matter and the person, held by at least a de facto judge, he is not, so far as the federal court can inquire, restrained of his liberty or adjudged to lose his life or property without due process of law. In re Ah Lee, (1880) 5 Fed. Rep. 899; Giozza v. Tiernan, (1893) 148 U. S. 657.

Errors of state courts. "The national courts have no power to relieve a citizen from injustice resulting from maladministration of state laws or from errors of the state courts. Upon the courts and judicial officers of the state he must depend for securing such rights as the laws of the state give him." Humason, (1891) 46 Fed. Rep. 392. See Storti v. Massachusetts, (1901) 183 U. S. 138; In re Converse, (1891) 137 U. S. 624; In re Graham, (1891) 138 U. S. 461.

In re

If the trial and sentence in a state court are made wholly void by a law of the United States, any custody under them is a violation of that law, relief from which is expressly left on habeas corpus with the courts of the United States. In re Fitton, (1893) 55 Fed. Rep. 271.

On constitutional questions. "It often occurs in the progress of a criminal trial in a state court, proceeding under a statute not repugnant to the Constitution of the United States, that questions occur which involve the construction of that instrument and the determination of rights asserted under it. But that does not justify an interference with its proceedings by a Circuit Court of the United States, upon a writ of habeas corpus sued out by the accused either during or after the trial in the state court." In re Wood, (1891) 140 U. S. 286.

An indictment for homicide outside the jurisdiction of the county and state which has taken cognizance of the offense will not entitle the defendant to release on habeas corpus, as such defendant is not "in custody in violation of the Constitution or of a law or treaty of the United States." Ex P. Pritchard, (1890) 43 Fed. Rep. 915. Defective indictment. — If an indictment in a state court, under statutes not void under the Constitution of the United States, be defective, according to the essential principles of criminal procedure, an error in rendering

judgment upon it even if the accused at the trial objected to it as insufficient - should not be made the basis of jurisdiction in a court of the United States to issue a writ of habeas corpus. Bergemann r. Backer, (1895) 157 U. S. 655. See also Kohl v. Lehback, (1895) 160 U. S. 293; In re Green, (1890) 134 U. S. 377. Alien juror. The objection that one of the jurors by whom petitioner was tried was an alien, cannot be sustained as involving an infraction of the Constitution of the United States. Kohl v. Lehlback, (1895) 160 U. S. 293.

An order of a state court for the execution of the defendant, fixing a time for the execution so near at hand as to be in violation of rights secured to the defendant by the statutes of the state, does not violate any provision of the United States Constitution, or any law of Congress made in pursuance thereof, and a federal court is without authority, under a writ of habeas corpus, to reverse or set aside the order of the state court. In re Durrant, (1897) 84 Fed. Rep. 314.

Commitment for contempt.- A federal judge has no jurisdiction in a case of commitment as for contempt by order of a state court, for violating an order made in a suit pending in that court, even though the suit related to Indian lands which, by federal statute, have been withdrawn from the operation of state laws. Ex p. Forbes, (1870) 1 Dill. (U. S.) 363.

Persons in custody for disobedience of any order of a state court cannot be released by merely showing that the order of commitment is erroneous; it must be absolutely void. Electoral College Case, (1876) 1 Hughes (U. S.) 571. See also Ex p. Young, (1892) 50 Fed. Rep. 526.

Arrest of one out on federal bail. — Where the petitioner, admitted to bail while under indictment in the federal court, was arrested and imprisoned by state authorities, upon warrants charging him with crimes under the state laws, he was held not entitled to be released on habeas corpus, either on his own petition, or by the desire of the sureties on the bail bond to surrender him under the provisions of section 1018, R. S. Such imprisonment by the state authorities is not in violation of any statute law of the United States, and the question of conflict of jurisdiction is not one which can be raised by the petitioner or his sureties. In re Fox, (1892) 51 Fed. Rep. 427.

Ex P.

Unconstitutional state statute. A person held by state authorities, under an indictment based upon a state statute which is clearly a violation of the United States Constitution, should be released on habeas corpus. McCready, (1874) 1 Hughes (U. S.) 598. See Er p. Kinney, (1879) 3 Hughes (U. S.) 9; Minnesota r. Barber, (1890) 136 U. S. 313; In re Ziebold, (1885) 23 Fed. Rep. 791.

Otherwise when conviction was had under a constitutional state statute, of which there is an unconstitutional amendment. Davis, (1884) 21 Fed. Rep. 396.

Ex p.

A judgment on an unconstitutional statute would be void, not merely voidable, and the federal court has jurisdiction on habeas corpus to inquire into the validity of the state statute. In re Wong Yung Quy, (1880) 47 Fed. Rep. 717.

A state statute forbidding the intermarriage of a white person with a negro is not a denial of the equal protection of the law. Ex p. Kinney, (1879) 3 Hughes (U. S.) 9. Against interstate commerce. - A South Carolina statute declared it a misdemeanor, punishable by fine or imprisonment, for any person, except as provided in the Act, to bring into the state, by any means or mode of carriage, any liquor or liquids containing alcohol. The undisputed facts were that liquors were shipped at the port of Savannah, Ga., for the port of Charleston, S. C., on the schooner of which the petitioners were master and crew; that, immediately on reaching the wharf, they were arrested and detained in custody by the city police and afterwards held under a warrant; that they did not land their cargo or any part of it; and that, when they were arrested, it was afloat. They were actually engaged when arrested in interstate commerce, their detention by the police was unlawful, and the warrant by which they were incarcerated was based on a provision of law in conflict with the Constitution and law of the United States. Ex p. Jervey, (1895) 66 Fed. Rep. 957.

Irreconcilability must be clearly shown. An irreconcilable antagonism between a state statute and the United States Constitution must be clearly shown before the process of the United States court can be invoked, especially where the statute has received a construction by the highest court of the state not recognizing any antagonism. In re Hoover, (1887) 30 Fed. Rep. 51. See also In re Jordan, (1892) 49 Fed. Rep. 238.

Conflicts with state constitution. The federal courts cannot, on a writ of habeas corpus, consider whether a state statute, under which petitioner is held, is in conflict with the Constitution of the state. In re Brosnahan, (1883) 18 Fed. Rep. 62. See also Kohl t. Lehlback, (1895) 160 U. S. 293; Andrews . Swartz, (1895) 156 U. S. 272; Crowley v. Christensen, (1890) 137 U. S. 86.

In violation of federal law - Exclusive jurisdiction. The offense of passing counterfeited national bank bills is one of which the courts of the United States have exclusive jurisdiction, and a petitioner will be discharged on habeas corpus from imprisonment in a prison of a state, under sentence of a court of the state for such an offense, as such imprisonment is contrary to the law of the United States. Ex p. Houghton, (1881) 8 Fed. Rep. 897, 7 Fed. Rep. 657. See U. S. v. Rector, (1850) 5 McLean (U. S.) 174.

Act permitted by federal statute. - Parties have a right, under the laws of the United States, to pilot vessels in and out of the Mississippi river to the sea through the South Pass, although they are not duly licensed and commissioned branch pilots under the laws of Louisiana. To imprison them for exercising this right is therefore to imprison them in violation of the laws of the United States,