fere with the authority of the United States, whether that authority be exercised by a federal officer, or be exercised by a federal tribunal. * * * Such being the distinct and independent character of the two governments, within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the national government to preserve its rightful supremacy in cases of conflict of authority. In their laws and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals and by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control and in the regulation of which neither can interfere with the other. *** Some attempt has been made in adjudications, to which our attention has been called, to limit the decision of this court in Ableman v. Booth and the United States v. Booth, to cases where a prisoner is held in custody under undisputed lawful authority of the United States, as distinguished from his imprisonment, under claim and color of such authority. But it is evident that the decision does not admit of any such limitation. It would have been unnecessary to enforce by extended reasoning, such as the Chief Justice uses, the position, that when it appears to the judge or officer issuing the writ, that the prisoner was held under the undisputed lawful authority, he should proceed no further. No federal judge ever could, in such case, release the party from imprisonment, except upon bail when that was allowable. The detention being by admitted lawful authority, no judge could set the prisoner at liberty except in that way, at any stage of the proceeding. All that is meant by the language used is, that the state judge or state court should proceed no farther when it appears, from the application of the party or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers alone to grant him release."

The Chief Justice dissented. In his opinion he said: To deny the right of state courts to issue the writ, or what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate is to deny the right to protect the citizen by habeas corpus in a large class of cases, and I am thoroughly convinced, was never within the contemplation of the convention which framed, or the people who adopted the Constitution." See Matter of Farrand,

1 Abbott's U. S. 140.

In a note to McConologue's case (supra), 107 Mass. 172, the reporter says, that since the decision in Tarble's case by the Supreme Court of the United States the practice in Massachusetts has conformed to that decision. As that commonwealth was one of the first to assert and exercise the jurisdiction to inquire into the cause of detention under federal authority by a writ of habeas corpus, and as its highest judicial tribunal rendered the last decision which was made by a state court asserting the jurisdiction, thus more strongly insisting upon the power of the state in such cases, that the courts of other states,

the course there pursued, since the Tarble case, will undoubtedly be followed throughout the Union. However much the weight of state decision may be against the doctrine of the Tarble case, and however much the pride of a state may be offended by being compelled to submit to the imprisonment of its citizens, without power to inquire into the cause of their detention, still the peace and harmony of the whole people require that the state courts should conform their practice to the decision of the Supreme Court of the United States. Any attempt to exercise now the concurrent jurisdiction, although many of the states have exercised it without question, since the formation of the Constitution, would inevitably be productive of bad results in bringing about collisions between the state and federal authorities. The principal evil resulting from the denial of this jurisdiction to the state courts, viz., the small number of the judges of the United States to whom application may be made, and the consequent delay in many cases, which would amount to a practical denial of the writ, might be obviated by an act of Congress, conferring jurisdiction in habeas corpus upon the commissioners of the United States courts, or upon new federal tribunals to be established in each county in a state.

In the Confederate States the jurisdiction of the courts of the states to interfere by habeas corpus with enlistments into the armies of the Confederacy, was variously asserted by the state courts themselves. In Georgia the jurisdiction was maintained. Mims v. Wimberly, 33 Ga. 587; Dies v. Husted, 34 Ga. 109. So in North Carolina, In matter of Bryan, 1 Wins. (N. C.) No. 1, 1.

In Alabama the jurisdiction was denied. Ex parte Hill, 38 Ala. 429: Ex parte Lee, 39 Ala. 457.

THE Common law writ of habeas corpus, as has been observed, was not taken away by the act of 31 Car. II; but was left wholly untouched by it in all cases. where the detainer was not for criminal or supposed criminal matter. The courts, however, when the writ was afterwards issued at common law, adopted in practice, so far as the same were applicable, the provisions of the habeas corpus act.'

A similar course was pursued in this country. In the case of U. S. v. Bollman & Swartwout,' Cranch, Ch. J., says: "Since the statute of 31 Car. II, the practice in cases not within it has been founded upon it, the judges having considered it as furnishing a rule of proceeding in all cases;" and in that case, which was not within. the statute, an attachment was refused in accordance *with the provisions of the statute, because three [209 days had not elapsed from the service of the writ.

1 Opinions of the judges, 1758, Bac. Abr., Hab. Corp.

21 Cranch, C. C., Dist. Col. R. 373.

In the United States the statutory provisions relating to the writ are essentially the same in all the states. They differ sometimes in respect to the courts or officers to whom jurisdiction over it is committed; sometimes in respect to the form of procedure and sometimes in respect to the effect of it. But the general principles of practice are substantially the same as those prevailing at common law and under the statute, 31 Car. II.

Where material alterations have been introduced in the principles or the form of procedure in any of the states, they will be noted so far as may be necessary to the plan of this work.

SECTION II.

THE APPLICATION.1

1. In what cases it may be made.

2. By whom it may be made.

3. The mode of making it.

4. When it may be denied.

5. When it must be granted.

All persons

1. In what cases the application may be made. imprisoned or under actual restraint, except those who by the habeas corpus act are excluded, may apply to to the proper court or judge for the writ.' It is not necessary that the imprisonment or restraint should be close confinement to entitle a party to the writ.

Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the

1 A petition for a habeas corpus duly presented is the institution of a cause in behalf of the petitioner, and the allowance or refusal of the process as well as the subsepuent disposition of the prisoner is matter of law and not of discretion. Ex parte Milligan, 4 Wall. 2.

2 Williamson v. Lewis, 39 Penn. State, 29.

*place or whatever may be the manner in which the [210 restraint is effected.'

Words may constitute an imprisonment, if they impose a restraint upon the person, and he be accordingly restrained and submits. It may be on the high street and though the party be not put into any prison or house."

"Whenever a person is deprived of the privilege of going when and where he pleases he is restrained of his liberty and has a right to inquire if that restraint be illegal and wrongful, whether it be by a jailor, constable or private individual. It is not necessary that the degradation of being incarcerated in a prison should be undergone to entitle any citizen, who may consider himself unjustly charged with a breach of the laws, to a hearing." A mere moral restraint, however, is not such imprisonment as will entitle the party to a writ; as where he was committed on execution and admitted to the prison bounds under bond, according to law, held, he was under no such restraint as authorized a resort to the writ of habeas corpus.*

"Persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to a writ of habeas corpus, directed to their bail."

It is immaterial whether the imprisonment be under criminal or civil process; if it be illegal, the prisoner *is entitled to the benefit of the writ of habeas cor- [211 It was at one time doubted whether the writ of

pus.''

11 Kent; 631, 2 Inst. 482, 589.

* 1 Kent, 631 note; Homer v. Battyn, Buller's N. P. 62; Pike v. Hanson, 9 N. H. 491.

3 Per Thorpe Fitzhugh, Bar. 301, Com. Dig. "Imprisonment, G" The writ issued to release from the custody of a vigilance committee, a judge of the Supreme Court of California. Ex parte De Roches, 1 McCall (Cal.), 66.

* Commonwealth v. Ridgeway, 2 Ashm. 247.

1 Bouv. Law Dic. 574; 3 Yeates, R. 263; 1 Serg. & R. 356.

Hecker v. Jarrett, 3 Binn. 404.