of the Supreme Court, as well as the judges of the district courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprisonment occurring under or by color of the

s. c. [See In re Cheltenham & Swansea Railway Carriage & Wagon Co., L. R. 8 Eq. 580.] The fair and impartial administration of justice in such cases would seem to require the existence and exercise of such a power. The act of Congress, however, reaches and prohibits all interference by attachment and summary punishment for contempts committed out of the presence of the court, by libels upon the court and the parties, and pending causes; and it is a very considerable, if not injudicious, abridgment of the immemorially exercised discretion of the courts in respect to contempts. But in the "System of Penal Law, prepared for the State of Louisiana,” in 1824, by Edward Livingston, Esq., the courts were stripped of almost all power to preserve themselves from insult. The code provided for contempts in the presence of the court, by word, clamor, noise, or disobedience to legal orders, or violence, or threats. It provided, also, for contempts by using verbally, in court, or in any pleading or writing, addressed to the judges, in any cause pending, any indecorous, contemptuous, or insulting expression, to or of the judges, with intent to insult. But how did it provide? Contempts were to be tried on indictment (which may be at another session), and the jury were to pass upon the intent, and whether the words were indecorous, contemptuous, or insulting. There is no provision at all for insulting gestures or looks. Code, tit. 5, c. 11. The New York Revised Statutes, ii. 278, have dealt with the subject of contempts more temperately and judiciously, and with a wiser regard for the honor and dignity of the courts, so essential to the orderly, pure, independent, and impartial administration of justice. They provide that every court of record may punish summarily disorderly, contemptuous, or insolent behavior, committed in the immediate presence of the court, and tending to interrupt its proceedings and impair the respect due to its authority; and for breaches of the peace, noises, and disturbances, tending directly to interrupt its proceedings; and for wilful disobedience or resistance to lawful orders; and for the publication of false or grossly inaccurate reports of its proceedings. The commissioners appointed to revise the civil code of Pennsylvania, by their report, in January, 1835, followed the substance of the Pennsylvania act of 1809, on the subject of contempts, and confined the power of imprisonment to contempts committed in open court. No publication out of court, respecting the conduct of the court, or any of its officers, jurors, witnesses, or parties in any cause pending in court, exposes the party to summary punishment, and the only remedy for the persons aggrieved is by indictment or action at law. The act of Pennsylvania of 16th June, 1836, enacted the same provision. In the case Ex parte Poulson, which arose upon a motion in the Circuit Court of the United States for the Eastern District of Pennsylvania, in 1835, in the cause of Drew v. Swift, for a rule on Poulson, the editor of a daily paper, to show cause why an attachment should not issue against him for a contempt, in publishing a very libellous article upon the plaintiff pending the trial, Judge Baldwin felt himself bound to deny the motion, in consequence of the act of Congress of 1831. That act had withdrawn from the courts of the United States the common-law power to protect their suitors, officers, witnesses, and themselves, against the libels of the press, however atrocious, and though published and circulated pending the very trial of a cause. The case before him was one which showed, in a very strong light, the unreasonableness of the law, in leaving the suitor unprotected at the moment when he stands most in need of it, and when the mischief to him might be great and remediless. The want of such protection, and the undue distrust which the denial of the

authority of the United States, or for acts done, or omitted to be done, in pursuance of a law of the United States, or of a judicial authority of any court or judge thereof. The justices of the Supreme Court, and the judges of district courts, may grant writs of habeas corpus, when subjects of any foreign government, and domiciled therein, are in custody, under the authority or process of the United States, or of any state, for acts done under the order or sanction of any foreign state, the validity of which depends upon the law of nations, or under color thereof; and to hear the case, and discharge the prisoner, if entitled thereto by reason of such alleged authority set up, and the law of nations. applicable thereto; and all proceedings had in the mean time, under any state authority, are declared void. (a)1 (x)

common-law power over contempts implies, tend to impair, in the estimation of the public, the value of the administration of justice.

The power of the courts to punish summarily for contempts has been lately much restrained in England; for in the case of the King v. Faulkner (2 Mont. & Ayr. Cas. in Bank. 311), it was held, in the Court of Exchequer, that a single commissioner of the Court of Bankruptcy, sitting alone, had no power to punish any contempt, how. ever gross or personal.

(a) Acts of Congress of September 24, 1789, sec. 14, and March 2, 1833, [c. 57,] sec. 7, and August 29, 1842, c. 257. This last statute was passed in consequence of the case of McLeod, who was indicted for murder, in crossing the river Niagara, in the night, with an armed force, and seizing and destroying the steamboat Caroline, attached to the American shore, and in which affray an American citizen was killed. He pleaded authority from the Canadian powers, which authority was admitted, or assumed, by the British government; but the plea was overruled by the judicial authorities of New York, and McLeod brought to trial. See 1 Hill, 377, and 25 Wendell, 483. [See also La Manche, 2 Sprague, 207, 221; Buron v. Denman, 2 Exch. 167.]

1 Habeas Corpus. — The privilege of the writ was still further extended by the act of Feb. 5, 1867, c. 28, 14 U. S. St. at L. 385, by which the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, may grant writs

(x) It is discretionary with the U. S. Circuit Court whether a prisoner held under State process in alleged restraint of his liberty under the U. S. Constitution, or for a crime within the exclusive jurisdiction of the Federal courts, shall be discharged upon habeas corpus in advance of

of habeas corpus in all cases where any person may be restrained of his liberty in violation of the Constitution, or of any treaty or law of the United States. [See Seavy v. Seymour, 3 Cliff. 439; Elec. Coll. of S. C., 1 Hugh. 571; Ex parte Bridges, 2 Woods, 428; In re Stupp, 12

his trial in the State court; and while the court is not bound to award the writ as soon as the application is made, its discretion yields to any special circumstances requiring immediate action. In the absence of such urgent circumstances, the judgment of the highest State court in

4. Jurisdiction of the Circuit Courts.

of the circuit courts of the United States have been subject to

frequent changes, and their number has been steadily increasing with the increase of states and districts, ever since the first organization of the national courts under the act of Congress of the 24th of September, 1789. They are established in each district (with a few exceptions) of the nine great circuits into which the United States are now (b) divided. The first circuit is com

posed of the districts of Maine, New Hampshire, Massachusetts, and Rhode Island; the second circuit, of the districts of Connecticut, Vermont, and the northern and southern districts of New York; the third circuit, of the district of New Jersey, and the eastern and western districts of Pennsylvania; the fourth circuit, of the districts of Maryland, Delaware, and Virginia; the fifth circuit, of the districts of Alabama and Louisiana; the sixth circuit, of the districts of North Carolina, South Carolina, and Georgia; the seventh circuit, of the districts of Ohio, Indiana, Illinois, and Michigan; the eighth circuit, of the districts of Kentucky, east, middle, and west Tennessee, and the district of Missouri; and the ninth circuit, of the districts of Mississippi and Arkansas. In each district of these circuits, with the excep

(b) 1840.

viewed in the Supreme Court by certiorari. Lau Ow Bew v. United States, 144 U. S. 47; see Kurtz v. Moffitt, 115 U. S. 487, 497. In extradition the writ of habeas corpus cannot perform the office of a writ of error. Re Savin, 131 U. S. 267; In re Luis Oteiza y Cortes, 136 U. S. 330; Willis v. Bayles, 105 Ind. 363; State v. Neel, 48 Ark. 283; In re Bion, 59 Conn. 372.

The writ cannot, without express statutory authority, be issued by a circuit court of appeals to be served, and to effect a person's release, outside of the circuit. In re Boles, 48 Fed. Rep. 75. It is properly removed by appeal to that court from the circuit court. King v. M'Lean Asylum, 64 id. 331.

The writ is used very cautiously in the Federal courts to obstruct the ordinary administration of State criminal laws. In re Wood, 140 U. S. 278, 370. Federal and State courts have concurrent jurisdiction in matters of extradition.

Roberts v. Reilly, 116 U. S. 80; In re Doo Woon, 18 Fed. Rep. 898; Ex parte Brown, 28 id. 653. The fact that a State statute conflicts with the State constitution does not enable a Federal court to issue the writ of habeas corpus if it does not conflict with the Federal constitution and the prisoner is not held in custody under it. Andrews v. Swartz, 156 U. S. 272. The circuit courts have jurisdiction of this writ on the ground of diverse citizenship. King v. M'Lean Asylum, 64 Fed. Rep. 331. The remission to the demanding State for its decision of a constitutional question as to its laws does not warrant a release by habeas corpus out of a Federal court from the custody of the asylum State. Pearce v. Texas, 155 U. S. 311; In re White, 55 Fed. Rep. 54; see Lambert v. Barrett, 157 U. S. 697. In habeas corpus proceedings, the prisoner is not presumed innocent. State v. Jones, 113 N. C. 669; see s. c. 22 L. R. A. 678, and note.

tion of some of the districts in Alabama, Louisiana, Mississippi, and Arkansas, two circuit courts are annually held by one of the judges of the Supreme Court and the district judge of the district; but the Supreme Court may, in cases where special circumstances shall in their judgment render the same necessary, assign two of the judges of the Supreme Court to attend a circuit court; (x) and when the district judge shall be absent, or shall have been counsel, or be interested in the cause, the Circuit Court may consist only of a judge of the Supreme Court. (c) 2

*302

*These circuit courts, thus organized, are vested with original cognizance, concurrent with the courts of the several states,1 of all suits of a civil nature, at common law, or

(c) Acts of Congress of April 29, 1802, c. 31; of March 3, 1837, c. 34; of February 22, 1838, c. 12; and of August 16, 1842, c. 180.

2 Limits of the Circuits. -The first circuit is composed of the districts stated in the text; also the second; to the third add Delaware; the fourth is composed of the districts of Maryland, West Virginia, Virginia, North Carolina, and South Carolina; to the fifth add Georgia, Florida, Mississippi, and Texas; the sixth is composed of Ohio, Michigan, Kentucky, and Tennessee; the seventh, of Indiana, Illinois, and Wisconsin; the eighth, of Minnesota, Iowa, Missouri, Kansas, Arkansas, and Nebraska; [and Colorado, 19 St. at L. 61]; the ninth, of California, Oregon, and Nevada. 12 Wall. iv.; act of July 23, 1866, and of March 2, 1867.

The act of April 10, 1869, c. 22, 16 U. S. St. at L. 44, appoints resident circuit judges for each of the nine circuits, with the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit, and designates the judges who may hold the circuit courts. This relieves the judges of

(x) The judges of the Supreme Court are members of the circuit courts, though not formally commissioned as such, and are entitled to protection from assault or

the Supreme Court of part of their work. Vide post, 305, n. 1; Appleton v. Smith, 1 Dillon, 202; United States v. Gordon, 5 Blatchf. 18; 16 U. S. St. at L. 179, c. 186. When the judge is interested, &c., he may either certify the case to the most convenient circuit court in the next adjacent state, under the act of Feb. 28, 1839, Richardson v. Boston, 1 Curt. 250; or may request the judge of another cir cuit to hold the court in his place; act of March 3, 1863, c. 93, 12 U. S. St. at L 768; the former act not being repealed by the latter. Supervisors v. Rogers, 7 Wall. 175.