cases of gross im In the case, Ex parte Burr (9 Wheat., 529), it was CHAP. 5. held, that whatever may be the authority of the Unless in supreme court to interfere by writ of mandamus, in very the case of a removal or suspension of an attorney propriety. of the district court, it will not be exercised unless when the conduct of the court below was irregular, or flagrantly improper. Writ of pus. The nature and extent of the power of the courts and judges of the United States to protect the right of personal liberty by means of the great writ of habeas corhabeas corpus ad subjiciendum, have been the subject of much earnest discussion. The framers of the constitution, assuming that the power would belong to the national judiciary, contented themselves with ordaining that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of redress no exception was taken. In one of the earliest of these cases, the authority of the circuit court of the District of Columbia to issue the writ of mandamus in such cases, was very elaborately canvassed, and affirmed; the judgment of the court turning mainly on the laws of Maryland; which, in virtue of an act of congress, are in force in the district. Kendall v. The United States, 12 Peters, 524. As the scope of this jurisdiction of the circuit court of the District of Columbia is a matter of interest to persons throughout the United States who may feel aggrieved by the decisions of the officers of the government, it may not be amiss (though it is not my design to treat, except incidentally, of the courts of the District of Columbia, for that would be like meddling with the courts of a state), to observe, that relief in this form is to be expected only in very clear cases; the principle established by the decisions of the supreme court being that the writ can be properly issued only in cases where the act which the officer has refused to perform is so clearly enjoined by law as to render it one of mere ministerial duty concerning which the law leaves him no discretion. Such was the nature of the case above cited. A mandamus was accordingly issued by the circuit court, and its judgment was affirmed by the supreme court. But where the act required of the officer is such as to demand the exercise of judgment and discretion on his part, the writ will be denied. Decatur v. Paulding, 14 Peters, 497; Brashure v. Mason, 6 Howard, 92; Reside v. Walker, 11 Id., 272; The United States v. Seaman, 17 id., 225; The United States v. Guthrie, id., 284. PART 1. of rebellion or invasion, the public safety may require it." 1 Courts and judges em issue. This power, therefore, in common with all other judicial powers, with the qualified exception of the original jurisdiction of the supreme court, was left at the disposal of congress: and power to issue the writ was accordingly conferred on the courts of judges of the United States, by the fourteenth section of the judicial act, in the following words: "And be it further enacted, That all the beforemenpowered to tioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment: Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." Jurisdiction, the supreme court not questioned and exercised. As one of the earliest of the cases in which the power thus conferred on the supreme court has been invoked, led to an elaborate and exhausting examination of the extent of this power, and therefore requires particular notice, and as the others are few in number and will serve the purpose of illustration, I propose to give a brief abstract of them also. The first reported case in which the supreme court was called upon to exercise the power conferred by 1 Const. U. S., Art. 1, § 9. this enactment is that of Hamilton, which occurred CHAP. 5. in 1795.1 The report is limited to the proceedings on the return of the writ, and is silent with respect to the original application for its issue. The prisoner had been committed upon a warrant issued by the district judge of Pennsylvania on a charge of high treason, and, as it was alleged, “without ever having been heard, and without knowing the name of any witness that had been examined, or the scope of any deposition that had been taken against him;" and on this ground his counsel moved that he should either be discharged absolutely, or, at least, upon reasonable bail. There were, however, opposing affidavits tending to criminate the prisoner, and the court, after holding the case for some days under advisement, directed him to be admitted to bail in the sum of four thousand dollars, with sureties. No question depending on the construction of the fourteenth section of the judiciary act, and, consequently, no question of jurisdiction, appears to have been raised at bar, nor does it expressly appear that any such question was considered by the court.2 The next reported case is that of Burford.3 The prisoner had been committed to jail, in virtue Writ granof a warrant issued by several justices of the peace, authority in the District of Columbia, as a person of ill fame, 1 3 Dallas' R., 17. * This case arose before the searching scrutiny to which the jurisdiction of the court was subjected in Maybury v. Madison, and in Bollman & Swartwout (to be mentioned presently), showing that the power of the court to issue the writ of habeas corpus was coëxtensive only with its revisory power over the decisions of the inferior judicatories of the United States, and that this power did not comprehend the decisions of a district judge until they had first been brought under the review of the circuit court. See post, Metzer's & Barry's cases, and additional observations on this point. '3 Cranch's R., 448. ted on the of Hamil. ton's case. PART 1. for want of sureties for his good behavior, and on being brought before the circuit court on habeas corpus, had been remanded to prison. In this case the report is of the proceedings on the petition of the prisoner to the supreme court for a writ of habeas corpus. Chief Justice MARSHALL, in pronouncing the decision of the court observed that there "was some obscurity in the act of congress, and some doubts were entertained by the court as to the construction of the constitution. "But," he added, "the case of The United States v. Hamilton (3 Dallas, 17), is decisive. It was there determined that this court could grant a habeas corpus." The writ was accordingly granted, returnable immediately, together with a certiorari, and the prisoner was discharged on account of the illegality of the original warrant of commitment, no good cause of commitment, supported by oath, being stated therein. The case was, in itself, of no great public importance, and the petition was not opposed. The only reference to the constitution or the statute made by the court is that already mentioned, and without any explanation of the grounds of its doubts, the court, reposing itself on the authority of the case of Hamilton, simply decided that it had authority to grant the writ of habeas corpus. Case of wout. The next case is of a widely different character, for and Swart. it led to a searching inquiry into the construction to be given to the statute considered in connection with the constitutional grant of judicial power, and, consequently to the authoritative establishment of certain general principles which have ever since been regarded by the supreme court, and, so far as I am informed, with one remarkable exception, by all other national courts, as indisputable landmarks. It was the case of Bollman & Swartwout, who had been committed to prison by order of the circuit court of CHAP. 5. the District of Columbia on a charge of high treason.1 of the rived from the tion and The elaborate judgment of the court delivered by The power Chief Justice MARSHALL, commences by an explicit court dedisclaimer on the part of the court "of all jurisdic- wholly tion not given by the constitution, or by the laws of constitu the United States. Courts which originate in the laws. common law," it was said "possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction." Referring to the argument of counsel on this point the chief justice observed that “The reasoning from the bar in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." The question, therefore, was whether by any statute compatible with the constitution the power to award a writ of habeas corpus in a case like that before the court, had been given to the court. tion of 14th The answer to this question depended primarily on Construc the construction to be given to the fourteenth section section of judicial of the judicial act. The only doubt of which the act. language seemed to be susceptible, was, whether the restrictive words "which may be necessary for the exercise of their respective jurisdiction," limit the power to the award of such writs of habeas corpus only, as are necessary to enable the courts of the United States to exercise their respective jurisdic ' 4 Cranch's R., 75. |