habitual and intelligent practice;" and to be "in no sense the creative work of that inventive faculty which it is the purpose of the constitution and patent laws to encourage and reward."

On these principles claim 3 of the Carr reissue must, in view of the state of the art, either be held not to involve a patentable invention, or, if it does, not to have been infringed.

The specification of the Bartholomew patent says: "The nature of my invention consists in providing for water-closets a cistern, or drip, or leakchamber, arranged upon the top of, or over the trunk of a closet, and placing a supply-cock within or above said drip-box or cistern, so that any waste, or leak, or drip from the cock shall be conducted into the trunk, so as to insure the keeping of the floor dry. * *Fig. 1 is a prospective view of a pancloset, showing my drip-box arranged upon the top plate of the closet, and the cock for supplying water to the same secured to the closet within the drip-box. * * The general form of the closet is such as is in common use. Upon the cover, R, I cast a box, inclosure, or cistern, E, about one inch high, (more or less,) and broad enough to admit of placing the 'A' cock (I use a valve cock) within the cistern, and (where it is practicable) so as also to receive the drip that may escape from the joint at the arm of the basin, called the 'putty-joint.' I screw the cock into the cover of the closet, and make a hole within the drip-box, or in the bottom of the cock, to admit the leak to fall into the trunk, P, and not onto the floor." The first claim of the patent, which is the only one alleged to have been infringed, reads thus: "First. I claim the use of a drip-box or leak-chamber, arranged above the closet, and below and around the supply-cock, substantially as described."

The defendants' structure has a trunk, and a supply cock, and a drip-box arranged below and around the supply cock, but the drip-box is cast on the side of the trunk, near the top, but below it, and not on top of it. The drip goes into the drip-box, and thence into the trunk and the soil-pipe. The following devices are shown to have been old: A drip-cup or drip-box; a pipe to convey away drippings, in machinery, from a drip-box arranged in connection with a cock; a drip-cup applied to the valve of a water-closet, the leakage from the valve falling into a saucer, and thence finding its way, through a hole, into the inside of the trunk; a valve on the floor at the foot of the trunk; a valve attached to the trunk and below its top; a valve above its top; a valve with a drip-pan conducting the drip into the soil-pipe at the foot of the trunk; a valve on top of the trunk, and a provision, by means of a hollow arm, to conduct the drip into the trunk. In view of this state of the art, the claim must be limited, as defined by its language and that of the specification, to a drip-box "arranged upon the top of or over the trunk"-"arranged upon the top-plate, "-cast "upon the cover"-"arranged above the closet." The limitation imposed by the patentee must be presumed to have been made with good reason, and, even if there was anything patentable in the claim as it reads, it cannot, in view of the state of the art, be extended to cover any structure except one which has a drip-box arranged above or on top of the closet, and therefore, has not been infringed.

From these considerations it results that the decrees in the Missouri suits must be affirmed; and those in the New York suits must be reversed, with directions to dismiss the bills, with costs.

(114 U. S. 564)

WALES. WHITNEY, Secretary of the Navy.
(May 4, 1885.)

1. COURTS-MARTIAL-APPELLATE JURISDICTION IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA AND OF THAT OF THE UNITED STATES.

Neither the supreme court of the District of Columbia nor the supreme court of the United States has any appellate jurisdiction over the naval courts-martial, nor over the offenses which such a court has power to try.

2. SAME-RELIEF OBTAINABLE IN CIVIL COURT-HABEAS CORPUS.

The civil courts can relieve a person from imprisonment under order of a courtmartial only by writ of habeas corpus, and then only when it is apparent that the court-martial proceeds without jurisdiction.

3. SAME LACK OF RESTRAINT OF THE PERSON-JURISDICTION OF CIVIL COURT.

If there is no restraint of the person, there is no right in the civil courts to interfere.

4. HABEAS CORPUS-MORAL RESTRAINT.

Something more than a moral restraint is necessary for the writ of habeas corpus. Therefore, an order of arrest by the secretary of the navy to the chief medical director of the navy, directing him to remain within the bounds of the city of Wash. ington, is not such an imprisonment as gives such medical director ground for the writ.

Appeal from the Supreme Court of the District of Columbia.

S.Shellabarger, J. M. Wilson, and F. P. B. Sands, for appellant. John S. Blair, for appellee.

MILLER, J. This is an appeal from a judgment of the supreme court of the District of Columbia, which refused to make an order on a writ of habeas corpus relieving appellant from the custody of the appellee, who, it is alleged, held the appellant in restraint of his liberty unlawfully. Upon the decision of the supreme court of the district, adverse to petitioner, an application for an original writ of habeas corpus was made to this court by counsel for appellant, but on a suggestion from the court that an act of congress, at its session just closed, had restored the appellate jurisdiction of this court in habeas corpus cases over decisions of the circuit courts, and that this necessarily included jurisdiction over similar judgments of the supreme court of the District of Columbia, counsel, on due consideration, withdrew their application, and, appealing from the judgment of that court, bring here the record of it for review.

Section 846 of the Revised Statutes of the District of Columbia, which makes the jurisdiction of this court over judgments and decrees of the circuit courts of the United States the measure of its jurisdiction (except as regards the sum in controversy) over judgments and decrees of the supreme court of the district in similar cases, justifies the exercise of our appellate jurisdiction in the present case. The original petition for the writ was addressed to Mr. Justice Cox of the supreme court of the district, and alleged that on the second day of March, 1885, the petitioner was arrested and imprisoned, and ever since has so remained in arrest and imprisonment, and restrained of his liberty in the District of Columbia, illegally. The petition sets out an order of the secretary of the navy, under which this restraint is exercised, which order is in the following terms:

“WASHINGTON, February 28, 1885.

"SIR Transmitted herewith you will receive charges, with specifications, preferred against you by the department. A general court-martial has been ordered to convene in rooms numbered 32 and 33, at the navy department, Washington, D. C., at 12 o'clock noon, on Monday, the ninth proximo, at which time and place you will appear and report yourself to Rear Admiral Edward Simpson, United States navy, the presiding officer of the court, for trial. The judge advocate will summon such witnesses as you may require for your defense.

"You are hereby placed under arrest, and you will confine yourself to the limits of the city of Washington.

"Very respectfully,

"WM. E. CHANDLER,

"Medical Director

Secretary of the Navy.

"PHILIP S. WALES,

*567

"U. S. N., Washington, D. C.”

It also makes an exhibit to the petition a copy of the charges and specifications accompanying this order. It is unnecessary to say more of these charges at present, than that they relate to derelictions of duty on the part of the appellant while he was surgeon general of the navy, and as such had charge of the bureau of medicine and surgery in the navy department, which office he held from August 20, 1879, to January 26, 1884. He had therefore ceased to be surgeon general, and was in the exercise of his functions as medical director of the navy when this order was served on him. Judge Cox issued the writ directed to William C. Whitney, secretary of the navy, who had become such by succession to Secretary Chandler. To this writ Secretary Whitney made return, stating the action of Secretary Chandler, and the history of the appellant's connection with the navy since he was appointed medical inspector in June, 1873; the charges preferred against him as chief of the bureau of medicine and surgery, and the order of arrest of Secretary Chandler, and closes his return as follows:

"Your respondent respectfully submits that the said Philip S. Wales is not now, nor was at the time of issuing the annexed writ, in the custody or possession of, or confined or restrained of his liberty by, your respondent, other than as appears by the papers marked A, B, and C, attached hereto and made part of this return, and that the cause of such detention, if any there be, is fully shown in said exhibits.

"And your respondent further answers that neither he, nor any one by his authority, has exercised any physical restraint over the said Philip S. Wales before or since the issue of said writ.

"Your respondent further answers that by virtue of his office as secretary of the navy, the said Philip S. Wales being a medical director in the navy, was, at the time of the issuing of the said writ, and has since continually been, in the power of your respondent, so far as the statutes of the United States and the regulations of the navy, not inconsistent therewith, have, vested him with authority over the said Philip S. Wales.

*"Your respondent further says that he knows of no obstacle or impediment to prevent the said Philip S. Wales from being present before your honor at the time and place fixed in the said writ; but, in order to comply with the order of your honor, and under and by virtue of his authority as secretary of the navy, he has ordered the said Philip S. Wales to be present at the time and place so fixed. Wherefore the said William C. Whitney, secretary of the navy, has here, before your honorable court, the body of the said Philip S. Wales, together with the said writ, as therein he is commanded.

"W. C. WHITNEY, "Secretary of the Navy."

To this return the petitioner, by his counsel, demurred, when, on this demurrer, and after motion of the respondent to discharge the writ, Mr. Justice Cox certified the case into the court in general term. That court, after full hearing and due consideration, made the following order:

"Habeas Corpus. Ex relatione PHILIP S. WALES.-No. 15,780. "This cause coming on for hearing, and having been argued by counsel and duly considered, it is, this fourteenth day of April, 1885, ordered and ad

*570

*569

judged that the petition be dismissed, with costs, the court being of opinion that the relator has not been, nor is he at this present, deprived of his personal liberty by virtue of the orders of the secretary of the navy set out in the petition.

"By the court:

It is from this order that the present appeal is taken.

A. WYLIE.

The only other matter apparent in the record necessary to be stated at this time is that the court-martial referred to in the order of arrest was duly appointed, assembled, and organized, and that appellant appeared before it, and, at his request, it has been adjourned from time to time to await the result of these proceedings in habeas corpus. Two questions have been elaborately argued before us, namely: (1) Does the return of the secretary of the navy to the writ and its accompanying exhibits show such restraint of the liberty of the petitioner by that officer as justifies the use of the writ of habeas corpus? (2) If there is a restraint, which in its character demands the issue of the writ, are the charges for which the petitioner is required to answer before the naval court-martial of the class of which such a court has jurisdiction? The latter is a question of importance and not free from difficulty, since its solution requires the court to decide whether the surgeon general of the navy, as chief of the bureau of medicine and surgery in the department of the navy, under the immediate supervision of the secretary, is liable for any failure to perform his duties as surgeon general, to be tried by a military court, under the articles of war governing the navy, or has a right for such offenses to be tried alone by the civil courts, and according to the law, for offenses not military. Is he, in that character, in the civil or military service of the United States? The difficulty of stating the question shows the embarrassment attending its decision. The other question, however, has precedence, both because it is the one on which the court of the district decided it, and because, if there was no such restraint, whether legal or illegal, as to call for the use of the writ, there is no occasion to inquire into its cause.

It is obvious that petitioner is under no physical restraint. He walks the streets of Washington with no one to hinder his movements, just as he did before the secretary's order was served on him. It is not stated as a fact in the record, but it is a fair inference, from all that is found in it, that, as medical director, he was residing in Washington and performing there the duties of his office. It is beyond dispute that the secretary of the navy had the right to direct him to reside in the city in performance of these duties. If he had been somewhere else the secretary could have ordered him to Washington as medical director, and, in order to leave Washington lawfully, he would have to obtain leave of absence. He must, in such case, remain here until otherwise ordered or permitted. It is not easy to see how he is under any restraint of his personal liberty by the order of arrest which he was not under before. Nor can it be believed that, if this order had made no reference to a trial on charges against him before a court-martial, he would have felt any restraint whatever, though it had directed him to remain in the city until further orders. If the order had directed him so to remain, and act as a member of such court, can any one believe he would have felt himself a prisoner entitled to the benefit of a writ of habeas corpus?

On the other hand, there is an obvious motive on the part of the petitioner for construing this order as making him a prisoner in the custody of the secretary. That motive is to have himself brought before a civil court, which, on inquiry into the cause of his imprisonment, may decide that the offense with which the secretary charges him is not of a military character, is not one of which a naval court-martial can entertain jurisdiction, and, releasing him from the restraint of the order of arrest, it would incidentally release him from the power of that court. But neither the supreme court of the district nor this

court has any appellate jurisdiction over the naval court-martial, nor over offenses which such a court has power to try. Neither of these courts is authorized to interfere with it in the performance of its duty, by way of a writ of prohibition or any order of that nature. The civil courts can relieve a person from imprisonment under order of such court only by writ of habeas corpus, and then only when it is made apparent that it proceeds without jurisdiction. If there is no restraint there is no right in the civil court to interfere. Its power, then, extends no further than to release the prisoner. It cannot remit a fine, or restore to an office, or reverse the judgment of the military court. Whatever effect the decision of the court may have on the proceedings, orders, or judgments of the military court, is incidental to the order releasing the prisoner. Of course, if there is no prisoner to release, if there is no custody to be discharged, if there is no such restraint as requires relief, then the civil court has no power to interfere with the military court, or other tribunal over which it has by law no appellate jurisdiction.

The writ of habeas corpus is not a writ of error, though in some cases in which the court issuing it has appellate power over the court by whose order the petitioner is held in custody, it may be used with the writ of certiorari for that purpose. In such case, however, as the one before us, it is not a writ of error. Its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the cause of it, and if the alleged cause be unlawful, it must then discharge the prisoner. There is no very satisfactory definition to be found in the adjudged cases of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. This can hardly be expected from the variety of restraints for which it is used to give relief. Confinement under civil and criminal process may be so relieved. Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a mad-house, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus. Obviously, the extent and character of the restraint which justifies the writ, must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed.

In the case of a man in the military or naval service, where he is, whether as an officer or a private, always more or less subject in his movements, by the very necessity of military rule and subordination, to the orders of his superior officer, it should be made clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ; otherwise every order of the superior officer directing the movements of his subordinate, which necessarily to some extent curtails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek relief from 2 obedience by means of a writ of habeas corpus.

Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it. The class of cases in which a sheriff or other officer, with a writ in his hands for the arrest of a person whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest, and the power to enforce it. If the party named in the writ resists or attempts to resist, the officer can summon by-standers to his assistance, and may himself use personal violence. Here the force is imminent and the party is in presence of it. It is physical power which controls him, though not called into demonstrative action. It is said in argument that such is the power exercised over the appellant under the order of the secretary of the navy. But this is, wa think, a mistake. If Dr. Wales had chosen to disobey this order, he had noth