[* 347] the State courts formerly * claimed and exercised the right to inquire into the lawfulness of restraint under the national authority, it is now settled by the decision of the Supreme Court of the United States, that the question of the legality of the detention in such cases is one for the determination, exclusively, of the federal judiciary, so that although a State court or judge may issue this process in any case where illegal restraint upon liberty is alleged, yet when it is served upon any officer or person who detains another in custody under the national authority, it is his duty, by proper return, to make known to the State court or judge the authority by which he holds such person, but not further to obey the process; and that as the State judiciary have no authority within the limits of the sovereignty assigned by the Constitution to the United States, the State court or judge can proceed no further with the case.2

The State constitutions recognize the writ of habeas corpus as an existing remedy in the cases to which it is properly applicable, and designate the courts or officers which may issue it; but they do not point out the cases in which it may be employed. Upon this subject the common law and the statutes must be our guide; and although the statutes will be found to make specific provision for particular cases, it is believed that in no instance which has fallen under our observation has there been any intention to restrict the remedy, and make it less broad and effectual than it was at the common law.3

See the cases collected in Hurd on Habeas Corpus, B. 2, c. 1, § 5, and in Abb. Nat. Dig. 609, note.

2 Ableman v. Booth, 21 How. 506. See Norris v. Newton, 5 McLean, 92; United States v. Rector, 5 McLean, 174; Spangler's Case, 11 Mich. 298; In re Hopson, 40 Barb. 34; Ex parte Hill, 5 Nev. 154. Notwithstanding the decision of Ableman v. Booth, the State courts have frequently since assumed to pass definitely upon cases of alleged illegal restraint under federal authority, and this, too, by the acquiescence of the federal officers. As the remedy in the State courts is generally more expeditious and easy than can be afforded in the national tribunals, it is possible that the federal authorities may still continue to acquiesce in such action of the State courts, in cases where there can be no reason to fear that they will take different views of the questions involved from those likely to be held by the federal courts. Nevertheless, while the case of Ableman v. Booth stands unreversed, the law must be held to be as there declared. It has recently been approved in Tarble's Case, 13 Wall. 397, Chief Justice Chase dissenting. 3 See Matter of Jackson, 15 Mich. 417, where this whole subject is fully considered. The application for the writ is not necessarily made by the party in

We have elsewhere referred to certain rules regarding the validity of judicial proceedings. In the great anxiety on the part of our legislators to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of error, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse.2 Where a party who is in confinement under judicial [* 348] process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: 1. Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the

person, but may be made by any other person on his behalf, if a sufficient reason is stated for its not being made by him personally. The Hottentot Venus Case, 13 East, 195; Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the application. Cobbett's Case, 15 Q. B. 181, note; Cobbett v. Hudson, 10 Eng. L. & Eq. 318; s. c. 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when in prison.

1 See post, p. 397 et seq.

2 It is worthy of serious consideration whether, in those States where the whole judicial power is by the constitution vested in certain specified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the District Courts, was sustained in Ex parte Bollman and Swartwout, 4 Cranch, 75, and Matter of Metzger, 5 How. 190, on the ground that it was appellate. See also Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 Pet. 704; Matter of Kaine, 14 How. 103; Rowe v. Rowe, 27 Mich.

3 The validity of the appointment or election of an officer de facto cannot be inquired into on habeas corpus. Ex parte Strahl, 16 Iowa, 369; Russell v. Whiting, 1 Wins. (N. C.) 463. Otherwise if a mere usurper issues process for the imprisonment of a citizen. Ex parte Strahl, supra.

process, or on regular appellate proceedings.1 2. If the process is not void for want of jurisdiction, the further inquiry will be made, whether, by law, the case is bailable, and if so, bail will be taken if the party offers it; otherwise he will be remanded to the proper custody.2

This writ is also sometimes employed to enable a party to enforce a right of control which by law he may have, springing from some one of the domestic relations; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not generally go farther in these cases than to determine what is for the best interest of the child; and they do not feel compelled to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case; 3 and it is especially proper in many cases where the parents are living in separation and both desire his custody. The right of the father, in these cases, is generally recognized as best; but this

" People v. Cassels, 5 Hill, 164; Bushnell's Case, 9 Ohio, N. s. 183; Ex parte Watkins, 7 Pet. 568; Matter of Metzger, 5 How. 191; Petition of Smith, 2 Nev. 338; Ex parte Gibson, 31 Cal. 619; Hammond v. People, 32 Ill. 472, per Breese, J. In State v. Shattuck, 45 N. H. 211, Bellows, J., states the rule very correctly, as follows: "If the court had jurisdiction of the matter embraced in these causes, this court will not, on habeas corpus, revise the judgment. State v. Towle, 42 N. H. 541; Ross and Riley's Case, 2 Pick. 166, and Riley's Case, ib. 171; Adams v. Vose, 1 Gray, 51. If in such case the proceedings are irregular or erroneous, the judgment is voidable and not void, and stands good until revised or annulled in a proper proceeding instituted for that purpose; but when it appears that the magistrate had no jurisdiction, the proceedings are void, and the respondent may be discharged on habeas corpus. State v. Towle, before cited; Kellogg, Ex parte, 6 Vt. 509. See also State v. Richmond, 6 N. H. 232; Burnham v. Stevens, 33 N. H. 247; Hurst v. Smith, 1 Gray, 49."

2 It is not a matter of course that the party is to be discharged even where the authority under which he is held is adjudged illegal. For it may appear that he should be lawfully confined in different custody; in which case, the proper order may be made for the transfer. Matter of Mason, 8 Mich. 70; Matter of Ring, 28 Cal. 247; Ex parte Gibson, 31 Cal. 619. And where he is detained for trial on an imperfect charge of crime, the court, if possessing power to commit de novo, instead of discharging him, should proceed to inquire whether there is probable cause for holding him for trial, and if so, should order accordingly. Hurd on Habeas Corpus, 416.

3 Commonwealth v. Aves, 18 Pick. 193.

must depend very much upon circumstances, and the tender age of the child may often be a controlling consideration against his claim. The courts have large discretionary power in these cases, and the tendency of modern decisions has been to extend, rather than restrict it.1

There is no common-law right to a trial by jury of the issues of fact joined on habeas corpus; but the issues both of fact and of law are tried by the court or judge before whom the proceeding is had ; 2 though without doubt a jury trial might be provided for by statute, and perhaps even ordered by the court in some cases.3

*Right of Discussion and Petition.

[* 349]

The right of the people peaceably to assemble, and to petition the government for a redress of grievances, is one which "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen."4 But it has not been thought unimportant to protect this right by statutory enactments in England; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made the right of petition the point of attack, and selected for its contemplated victims the chief officers in the episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English constitutional history;5 and

1 Barry's Case may almost be said to exhaust all the law on this subject. We refer to the various judicial decisions made in it, so far as they are reported in the regular reports. 8 Paige, 47; 25 Wend. 64; People v. Mercein, 3 Hill, 399; 2 How. 65; Barry v. Mercein, 5 How. 105. See also the recent case of Adams v. Adams, 1 Duv. 167. For the former rule, see The King v. De Manneville, 5 East, 221; Ex parte Skinner, 9 J. B. Moore, 278. Where the court is satisfied that the interest of the child would be subserved by refusing the custody to either of the parents, it may be confided to a third party. Chetwynd v. Chetwynd, L. R. 1 P. & D. 39; In re Goodenough, 19 Wis. 274.

* See Hurd on Habeas Corpus, 297–302, and cases cited; Baker v. Gordon, 23 Ind. 209.

3 See Matter of Hakewell, 22 Eng. L. & Eq. 395; s. c. 12 C. B. 223.

4 Story on the Constitution, § 1894.

See this case in 12 Howell's State Trials, 183; 3 Mod. 212. Also in Broom,

the right which was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation,- a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity." Happily the occasions for discussing and defending it have not been numerous in this country, and have been confined to an exciting subject now disposed of.2

Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly demonstrated in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is "a well-regulated militia;" but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed;

Const. Law, 408. See also the valuable note appended by Mr. Broom, p. 493, in which the historical events bearing on the right of petition are noted. Also, May, Const. Hist. c. 7; 1 Bl. Com. 143.

1 1 Lieber, Civil Liberty and Self-Government, c. 12.

2 For the discussions on the right of petition in Congress, particularly with reference to slavery, see 1 Benton's Abridgement of Debates, 397; 2 ib. 57–60, 182-188, 209, 436-444; 12 ib. 660-679, 705-743; 13 ib. 5-28, 266-290, 557562. Also Benton's Thirty Years' View, Vol. I. c. 135, Vol. II. c. 32, 33, 36, 37. Also the current political histories and biographies.

3 1 Bl. Com. 143.