7. It is provided in art. i. see. 9, ? 2 of the con stitution of the United States that "The privilege of the writ of habeas corpus shall not be suspended, unless when, in eases of rebellion or invasion, the public safety may require it." Similar provisions are found in the constitutions of most of the states. In Virginia and Vermont, however, it is forbidden to suspend the privilege of the writ in any ease; but in the constitutions of Maryland, North Carolina, and South ,Carolina the writ is not mentioned.
Congress, by act of March 3, 1863, authorized the president to suspend the privilege of the writ throughout the whole or any part of the United States, whenever in his judgment the public safety might require it, during the rebellion. A partial suspension took place.
Nor has the power ever been exeroised by the le gislature of any-of the states, except that of Mass saehusetts, which, on the occasion of " Shays's Re bellion," suspended the privilege of the writ from November, 1786, to July, 1787.
S. Congress has prescribed the jurisdiction of the federal courts under the writ; bur, never having particularly prescribed the mode of procedure for them, they have substantially followed in that re spect the rules of the common law.
In most of the states statutes have been passed, not only providing what courts or officers may issue the writ, but, to a considerable extent, regulating the practice under it; yet in all of them the pro ceeding retains its old distinctive feature and merit,—that of a summary appeal for immediate deliverance from illegal imprisonment.
9. Jurisdiction of state courts. The states, being in all respects, except as to the powers delegated in the federal constitution, sovereign political communities, are unlimit ed as to their judicial power, except by that instrument ; and they, accordingly, at will create, apportion, and limit the jurisdiction of their respective courts over the writ of habeas corpus, as well as other legal process, subject only to such constitutional restriction.
The restrictions in the federal constitution on this subject are necessarily implied from the express grants of judicial power therein to the federal courts in certain cases specified in art. iii. sec. 2, and in which the decision of the supreme court of the United States is paramount over that of all other courts and conclusive upon the parties.
10. Jurisdiction of the federal courts. This is prescribed by several acts of congress. By the 14th sec. of the Judiciary Act of Septem ber 24, 1789, 1 U. S. Stat. at Large, 81, it is provided that the supreme, circuit, and dis trict courts may issue writs of scire facias, habeas corpus, and all other writs not spe cially 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 jus tices of the supreme court, as well as judges of the district courts, may grant writs of ha beas corpus for the purpose of inquiring into the cause of commitment ; "provided, that writs of habeas corpus shall in no case ex tend to prisoners in gaol, unless 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 neces sary to be brought into court to testify."
By the seventh section of the "Act further to provide for the collection of duties or im posts," passed March 2, 1833, 4 U. S. Stat. at Largo, 634, the jurisdiction of the justices of the supreme court and judges of the district courts is extended to "all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority or law for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof." This act has been held to extend to the case of a United States marshal arrested by state authorities for alleged criminal violence in the capture of a fugitive slave under the provi sions of the act of congress of September 18, 1850. 2 Wall. 521 ; 2 Am. Law Reg. 348 ; 6 McLean, C. C. 355. But the supreme court of Pennsylvania have questioned the soundness of this construction of the act of March 2, 1833. 3 Am. Law 4eg. 207.
11. By the " Act to provide further reme dial justice in the courts of the United States," passed Aug. 29, 1842, 5 U. S. Stat. at Large, 539, the jurisdiction of the justices and judges aforesaid is further extended "to all cases of any prisoner or prisoners in jail or confine ment, when he, she, or they, being subjects or citizens of a foreign state, and domiciled therein, shall be committed or confined or in custody under or by any authority or law, or process founded thereon, of the United States, or of any of them, for or on account of any act done or omitted under any alleged right, title, or authority, privilege, protection, or ex emption set up or claimed under the commis sion or order or sanction of any foreign state or sovereignty, the validity and effect where of depend upon the law of nations, or under color thereof." By the third section of the "Act for the government and regulation of seamen in the merchant service," passed July 20, 1790, 1 U. S. Stat. at Large, 131, it is provided that refractory seamen in certain cases shall not be discharged on habeas corpus or otherwise.