tion on such indictment. Dimmick v. Thompkins, (1904) 194 U. S. 540, 24 S. Ct. 780, 48 U. S. (L. ed.) 1110.

con

That an indictment charged more than one offense, in violation of the laws of the territory where petitioner was convicted, was a mere error of procedure, which did not divest the trial court of its power to render judgment, and was, therefore, not ground for petitioner's discharge on habeas corpus. And in the same case, where petitioner was victed of two offenses, for each of which he could have been sentenced to seven years' imprisonment, but was sentenced to five years' imprisonment for each offense, the terms to run concurrently, the sentence could not be held void on habeas corpus, because the statute of the territory in which petitioner was convicted required such a sentence to be cumu lative. Connella v. Haskell, (1907) 158 Fed. 285, 87 C. C. A. 111.

Where a sentence imposed on petitioner was excessive, he could not obtain his discharge on habeas corpus while serving the portion which the court had power to impose. Connella v. Haskell, (1907) 158 Fed. 285, 87 C. C. A. 111.

A Circuit Court of Appeals cannot issue a writ of habeas corpus as an original and independent proceeding, although under R. S. sec. 716, 4 Fed. Stat. Annot. 498, and section 12 of the Circuit Court of Appeals Act of 1891, 4 Fed. Stat. Annot. 430, which sections are consolidated in Judicial Code, sec. 262 ante, p. 241, it may issue such writ in cases when necessary for the exercise of a jurisdiction already existing. Whitney v. Dick, (1906) 202 U. S. 132, 26 S. Ct. 584, 50 U. S. (L. ed.) 963. Prior to that decision it was held that the power of the Circuit Court of Appeals was thus restricted in Ex p. Moran, (1906) 144 Fed. 594, 75 C. C. A. 396.

When the court has no jurisdiction. — “No court may properly release a prisoner under conviction and sentence of another court, unless for want of jurisdiction of the cause or person, or for some other matter rendering

Vol. III, p. 167, sec. 753.

"Section 753 contains no grant of power, but is a restriction upon the power of the federal courts, prohibiting the issuance of the writ of habeas corpus in behalf of a prisoner in jail, except under the prescribed conditions enumerated in that section. To meet the conditions existing at the time of South Carolina's attempt to nullify the laws of the United States, and deal with officers of the national government under its criminal laws for acts done in the performance of official duties, Congress enacted Act of March

2, 1833, ch. 57, sec. 7, 4 Stat. L. 634. This law has been recast in the Revised Statutes, and the body of it, with changed phraseology, now constitutes section 753; and as already indicated, there is in it no grant of power, so that it must now be construed with reference to its position, following sections 751 and 752, in order to give it any definite and clear meaning, unless we assume that by implica

its proceedings void." Kaizo v. Henry, (1908) 211 U. S. 146, 29 S. Ct. 41, 53 U. S. (L. ed.) 125.

Disobeying the law governing the selection of grand jurors does not affect the jurisdiction of the court so as to justify the release by habeas corpus of a person convicted under an indictment found by such jurors. Matter of Moran, (1906) 203 U. S. 96, 27 S. Ct. 25, 51 U. S. (L. ed.) 105.

The business of issuing and redeeming trading stamps is not so manifestly outside the range of judicial consideration, under District of Columbia R. S. sec. 1177, making it a crime to engage in any manner in any gift enterprise business in the district, as to justify relief by habeas corpus to a person convicted of that offense, on the theory that the trial court was without jurisdiction. Matter of Gregory, (1911) 219 U. S. 210, 31 S. Ct. 143, 55 U. S. (L. ed.) 184.

The failure to specify a building in the order of the Supreme Court of the territory of Oklahoma fixing Lawton as the place where the District Court should be held in and for the county of Comanche, there being at the time of making the order and at the time of trial no county or court buildings in such county, did not go to the jurisdiction of such District Court so as to justify relief by habeas corpus in favor of a person convicted of crime therein who made no showing of any opportunities lost because no building was named. Matter of Moran, (1906) 203 U. S. 96, 27 S. Ct. 25, 51 U. S. (L. ed.) 105.

The federal courts will not release, on habeas corpus, a person convicted of murder in the first degree in a state court, on the theory that that court lost its jurisdiction to proceed in the trial because it charged the jury, in accordance with the admission of counsel for the accused, that the only question for their consideration was the degree of murder of which the accused was guilty. Valentina v. Mercer, (1906) 201 U. S. 131, 26 S. Ct. 368, 50 U. S. (L. ed.) 693.

tion it confers power to grant writs of habeas corpus in the excepted cases enumerated." Clifford v. Williams, (1904) 131 Fed. 100.

"The jurisdiction of courts of the United States to issue writs of habeas corpus is limited to cases of persons alleged to be restrained of their liberty in violation of the Constitution or of some law or treaty of the United States, and cases arising under the law of nations." Carfer v. Caldwell, (1906) 200 U. S. 293, 26 S. Ct. 264, 50 U. S. (L. ed.) 488.

"Imprisonment in jail appears to be the first condition recited in that section [753] and is the controlling condition governing all of the cases which, by reason of the exceptions, the federal courts are permitted to take cognizance of." Hence it was held that the federal Circuit Courts have no jurisdiction to determine a controversy between persons who are residents of different states as to the

right of custody of their infant child, who was neither restrained of her liberty nor imprisoned. Clifford v. Williams, (1904) 131 Fed. 100.

Confinement in another federal district. Where the chief officer of the Chinese exclusion laws for a state, in his return to a writ of habeas corpus directed to him, has admitted that the Chinese persons in whose behalf the writ was issued are detained by him, and has obtained a stipulation waiving their production in court, the court has jurisdiction to inquire into the legality of their detention, although they may in effect be confined in another district of the state. Fong Yim, 1905) 134 Fed. 938.

Ex P.

Act done or omitted in pursuance of an order, process, or decree.- Under this sec

tion a federal Circuit Court had power to discharge on habeas corpus a railway ticket agent, who, acting under and in obedience to an order of a federal Circuit Court which enjoined, as being repugnant to the Federal Constitution, the enforcement by the state corporation commission and the attorney-general of state legislation reducing rates, was imprisoned under a conviction in a state court for disobeying such legislation. Hunter v. Wood, (1908) 209 U. S. 205, 28 S. Ct. 472, 52 U. S. (L. ed.) 747.

In State r. Laing, (1904) 133 Fed. 887, 66 C. C. A. 617, (1903) 127 Fed. 213, petitioners under imprisonment on a charge of murder for the justifiable killing of a man whom they, as members of a posse comitatus, were attempting to arrest under a warrant from a federal court upon an indictment for resisting its officers, were discharged upon habeas corpus by a federal Circuit Court.

Act done in performance of duty. - A federal court or judge has power to issue a writ of habeas corpus on petition of the United States for the purpose of an inquiry into the cause of detention of a prisoner held by a state to answer to a criminal charge, where it is alleged by the petitioner that the act charged as a crime was committed by the prisoner in the performance of his duty as a soldier of the United States; and it has authority to determine summarily as a fact whether or not such allegation is true, and if found to be true to discharge the prisoner on the ground that the state is without jurisdiction to try him for such act. U. S. v. Lipsett, (1907) 156 Fed. 65.

This section confers jurisdiction on federal courts to release on habeas corpus an officer of the United States held in custody for an act done or omitted under authority vested in him by the law of the United States, though there is no Act of Congress covering the particular case. Thus where petitioner, in his official capacity as assistant United States district attorney, procured the production of State court records before a federal grand jury under an ordinary subpoena duces tecum, and thereafter held possession of such records, as such attorney, he was not subject to punishment for contempt of the state court for failure to return such records on demand, since "whatever duty the relator owed to take care of said records or to return them

to their lawful custodian was a duty incumbent upon him as an officer of the court." In re Leaken, (1905) 137 Fed. 680, discharging petitioner from custody.

"In violation of . . a law. . . of the United States."-"The acts of the legislature of a territory are not laws of the United States." Connella v. Haskell, (1907) 158 Fed. 285, 87 C. C. A. 111.

A person imprisoned under a conviction in a court of Oklahoma territory was not entitled to his release on habeas corpus, under this section, because the grand jurors were summoned from the body of the county, which resulted in the selection as such jurors of persons who were not electors nor residents of the territory, since the Federal Constitution does not control the method of selection, and if any laws were violated by this method they were territorial enactments, which are not laws of the United States. Matter of Moran, (1906) 203 U. S. 96, 27 S. Ct. 25, 51 U. S. (L. ed.) 105. See also Ex p. Moran, (1906) 144 Fed. 594, 75 C. C. A. 396. For a like case see Connella v. Haskell, (1907) 158 Fed. 285, 87 C. C. A. 111.

Interstate rendition proceedings. — Affirming a refusal of a federal Circuit Court to discharge on habeas corpus a person held in custody in Idaho to await a trial for murder there, the court said: "No obligation was imposed by the Constitution or laws of the United States upon the agent of Idaho to so time the arrest of the petitioner, and so conduct his deportation from Colorado, as to afford him a convenient opportunity, before some judicial tribunal sitting in Colorado, to test the question whether he was a fugitive from justice, and as such liable, under the Act of Congress, to be conveyed to Idaho for trial there." Pettibone r. Nichols, (1906) 203 U. S. 192, 27 S. Ct. 111, 51 U. S. (L. ed.) 148.

A person held in actual custody by a state for trial in one of its courts under an indictment for a crime against its laws will not be released on habeas corpus by a federal Circuit Court because the methods by which his personal presence in the state was secured may have violated the provisions of article 4, section 2. of the Federal Constitution, or R. S. sec. 5278, 3 Fed. Stat. Annot. 77, relating to extradition proceedings. Pettibone t. Nichols, (1906) 203 U. S. 192, 27 S. Ct. 111, 51 U. S. (L. ed.) 148; Moyer v. Nichols, (1906) 203 U. S. 221, 27 S. Ct. 121, 51 U. S. (L. ed.) 160.

In Er p. Moebus, (1905) 137 Fed. 154, it was held that a petition for a writ of habeas corpus did not state a case for federal interference on the ground of irregularity in extradition proceedings, in view of the rule of the Supreme Court that a large measure of credence and conclusiveness must be accorded to proceedings before the governor in such

cases.

Fifth amendment. - Compelling the accused to stand up and walk before the jury, and stationing the jury during a recess so as to observe his size and walk, even if contrary to the Fifth Amendment to the Federal Constitution, do not affect the jurisdiction of

the court so as to justify relief by habeas corpus. Matter of Moran, (1906) 203 U. S. 96. 27 S. Ct. 25, 51 U. S. (L. ed.) 105.

A federal court has no power on a writ of habeas corpus to discharge a prisoner confined for contempt by a state court for refusing to answer questions as a witness, on the ground that his answers might incriminate him; the provision of the Fifth Amendment being a limitation solely on the powers of the national government and its courts and officers. Ex p. Munn, (1905) 140 Fed. 782.

Fourteenth amendment. Due process of law. Relief by habeas corpus should not be accorded by a federal court to a person held in custody by the state authorities under an order of commitment entered by a state court after a jury had returned a verdict of not guilty by reason of insanity, although the prisoner may be so held in violation of the Fourteenth Amendment, since he should be left to his remedy by writ of error from the federal Supreme Court to review the final action of the highest court of the state. Urquhart v. Brown, (1907) 205 U. S. 179, 27 S. Ct. 459, 51 U. S. (L. ed.) 760, reversing (1905) 139 Fed. 846.

A petitioner for habeas corpus was not deprived of his liberty without due process of law by being convicted of crime upon a trial where the court failed to see to it that the testimony, which he was too deaf to hear, was repeated to him through the ear trumpet which he had with him. Felts v. Murphy, (1906) 201 U. S. 123, 26 S. Ct. 366, 50 U. S. (L. ed.) 689.

The federal courts have no jurisdiction to release, by habeas corpus, a person held in the custody of the state authorities to answer for a contempt in refusing to appear and testify before a legislative investigating committee, either because such a committee cannot sit in vacation, or because the subject for investigation is excluded from the jurisdiction of the legislature by the provision of the state constitution for the separation of legislative, executive, and judicial powers, as no question of due process of law is presented. Carfer v. Caldwell, (1906) 200 U. S. 293, 26 S. Ct. 264, 50 U. S. (L. ed.) 488.

The Federal Constitution does not guarantee to citizens the right to a jury trial, except in the courts of the United States; nor does the fact that a prisoner, convicted and sentenced for a criminal offense in a state

Vol. III, p. 173, sec. 755.

When writ need not be awarded. Where it appears from the petition for habeas corpus that the case is not one which would justify the exercise of federal authority, it may be dismissed, and the court is not required to either award a writ or issue an order to the respondent to show cause. Ex p. Collins, (1906) 151 Fed. 358; Erickson v. Hodges, (1910) 179 Fed. 177, 102 C. C. A. 443.

"Notwithstanding its somewhat peremp tory language, it has been repeatedly held that it does not require an issuance of the writ instanter, upon application, but that F. S. A. Supp.—70

court, was not given a jury trial, nor entitled to one under the state statute, entitle him to be discharged on a writ of habeas corpus by a federal court, on the ground that his conviction was without due process of law. Ex p. Brown, (1905) 140 Fed. 461.

A petition for a writ of habeas corpus, which shows on its face that the petitioner, since his extradition from another state, has been confined in a penitentiary for five years upon no other process of commitment than the governor's warrant, states a case of deprivation of rights under the Constitution of the United States, which authorizes and requires a federal court to take jurisdiction, at least to the extent of requiring the person against whom the restraint is alleged to answer. Ex p. Moebus, (1905) 137 Fed. 154. "Full faith and credit clause" in Constitution. Where, after the remarriage of plaintiff's divorced wife, and her removal to another state, taking with her an infant daughter awarded to her custody in divorce proceedings, another order was made in such proceedings awarding custody of the child to plaintiff, the refusal of his former wife to comply with such decree, and her obtaining a decree of adoption in the state of her domicile, without proof that the courts in such state had refused to recognize plaintiff's decree, did not confer jurisdiction on the federal Circuit Court in the state of the wife's domicile to issue a writ of habeas corpus to determine plaintiff's right to the custody of the child, on the ground that full faith and credit had been denied to plaintiff's decree awarding him the custody of the child. Clifford v. Williams, (1904) 131 Fed. 100.

State statute violating state constitution.

A federal court has no power to inquire into the legality of the detention of a state prisoner on a writ of habeas corpus, on the ground that it is in violation of the state constitution. Ex p. Brown, (1905) 140 Fed. 461.

Case involving a treaty. The federal courts have jurisdiction to determine in habeas corpus proceedings the right of a Chinese merchant domiciled in this country to enter from China, or of members of his family whose right is incidental to his own. where the remedy by appeal to the Secretary of Commerce and Labor has been exhausted, and the right of entry denied. Ex p. Fong Yim, (1905) 134 Fed. 938.

required to consider an application for a writ which has been denied by another judge, but may remit the petitioner to his remedy by appeal. Ex p. Moebus, (1906) 148 Fed. 39. When the petition for a writ of habeas cor

Vol. III, p. 174, sec. 761.

A jury trial is not necessary in order to sett, (1907) 156 Fed. 65, a case more fully

Vol. III, p. 176, sec. 764.

The right of appeal to the Supreme Court is now restricted to cases described in Judicial Code, sec. 238, ante, p. 231. See In re Lennon, (1893) 150 U. S. 393, 14 S. Ct. 123, 37 U. S. (L. ed.) 1120, and the last sentence in section 14 of the Circuit Court of Appeals Act of 1891, 4 Fed. Stat. Annot. 431. It is further regulated by the Act of March 10, 1908, ch. 76, 35 Stat. L. 40, 1909 Supp. Fed. Stat. Annot. 293. Appeals in other cases are to be taken to the Circuit Court of Appeals as provided in Judicial Code, sec. 128, ante, p. 195.

pus shows that the petitioner is not legally entitled to it, the writ should not be issued, but the application for it should be denied, and the petition should be dismissed. In re Dowd, (1904) 133 Fed. 747.

determine the facts of the case. U. S. v. Lipcited under this title, vol. 3, p. 167, sec. 753.

See, for example, Motherwell v. U. S., (C. C. A. 1901) 107 Fed. 437 sub nom.; Tucker v. Alexandroff, (1902) 183 U. S. 424, 22 S. Ct. 195, 46 U. S. (L. ed.) 264.

As to direct appeal to the Supreme Court where a constitutional question is involved, see Dimmick v. Tompkins, (1904) 194 U. S. 540, 24 S. Ct. 780, 48 U. S. (L. ed.) 1110, and note to section 5 of the Circuit Court of Ap peals Act of 1891, infra, title JUDICIARY, vol. 4. p. 398.

Title to military reservation at Kahauiki. By the joint resolution of Congress accepting the cession of the Hawaiian Islands and the transfer to the United States of the ownership of all public lands therein, and by acquiring by purchase from individuals the

Vol. III, p. 188, sec. 6.

Federal courts following construction of local statutes by Hawaiian courts. The federal courts will follow the construction given by the courts of the government of Hawaii to local statutes. Kealoha v. Castle, (1908) 210 U. S. 153, 28 S. Ct. 684, 52 U. S. (L. ed.) 998.

Jurisdiction of crime in Honolulu harbor. -There is nothing in the Hawaiian Organic Act which expressly or impliedly deprives the

leases held by them covering the lands comprising the military reservation at Kahauiki, Oahu Island, the United States acquired com plete title to that reservation. (1904) 25 Op. Atty. Gen. 225.

federal courts of their jurisdiction under R. S. sec. 5339, 3 Fed. Stat. Annot. 231, to punish a murder committed on board a ship lying in the harbor of Honolulu. Wynne v. U. S., (1910) 217 U. S. 234, 30 S. Ct. 447, 54 U. S. (L. ed.) 748.

This section was cited in Tomikawa v. Gama, (1902) 14 Hawaii 431; In re Austin, (1903) 15 Hawaii 114.