The power has never been exercised by the legislature of any of the states, except that of Massachusetts, which, on the occasion of "Shay's Rebellion," suspended the privilege of the writ from November, 1786, to July, 1787. And in the Confederate States, the privilege was suspended during the war ; In re Cain, 60 N. C. 525 ; State v. Sparks, 27 Tex. 705. See note on Suspension of the Writ, 45 L. R. A. 832.
Congress has prescribed the jurisdiction of the federal courts under the writ ; but, never having particularly prescribed the mode of procedure, they have substantially followed in that respect 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 con siderable extent, regulating the practice un der it ; yet in all of them the proceeding re tains its old distinctive feature and merit,— that of a summary appeal for immediate deliverance from illegal imprisonment.
There is a discretion to be exercised in is suing the writ, even when there is power, as it involves a conflict of laws which it is de sirable to avoid ; Ex parte Rearick, 118 Fed. 928 ; and no court may properly release a prisoner 'under conviction and sentence of another court, unless for want of jurisdic tion of cause or person, or some matter ren dering the proceeding void ; Keizo v. Henry, 211 U. S. 146, 29 Sup. Ct. 41, 53 L: Ed. 125 ; but it can and should be issued and made ef fective when another court has acted without jurisdiction ; In re Turner, 119 Fed. 231.
A proceeding in habeas corpus is a civil and not a criminal proceeding, and as final orders of the circuit or district courts in such proceedings can only be reviewed by ap peal, the final order of the supreme court of the Phillippine Islands in habeas corpus is governed by the same rule and can be re viewed only by appeal and not by writ of er ror ; Fisher v. Baker, 203 U. S. 174, 27 Sup. Ct. 135, 51 L. Ed. 142, 7 Ann. Cas. 1018 ; so in People v. Dewey, 23 Misc. 267, 50 N. Y. Supp. 1013, it was said to be a civil proceeding ; and in State v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700, it is termed a suit in the nature of a civil action. It has, however, been said that it is, strictly speaking, neither a civil nor criminal action, but a summary remedy having for its sole object to restore liberty to one illegally held in custody ; Sim mons v. Coal Co., 117 Ga. 305, 43 S. E. 780, 61
L. R. A. 739. Though it is a writ of right, it does not issue as a matter of course, but only upon such allegations as, if true, would au thorize the discharge of the person in custo dy ; id. The issue of the writ may be regu lated by statute, provided the constitutional right to it is not infringed ; Miskimmins v. Shaver, 8 Wyo. 392, 58 Pac. 411, 49 L. R. A. 831; if there is another appropriate remedy the writ will not be issued until application has beep made for the proper relief ; In re Dykes, 13 Okl. 339, 74 Pac. 506.
The purpose of the writ is to determine whether the person seeking the benefit of it is illegally restrained of his liberty ; In re Moyer, 35 Colo. 159, 85 Pac. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189. It is a common-law and not an equitable remedy ; Sumner v. Sumner, 117 Ga. 229, 43 S. E. 485. Its only office, except when used in ancil lary proceedings, is to test the right to per sonal liberty ; State v. Whitcher, 117 Wis. 668, 94 N. W. 787, 98 Am. St. Rep. 968.
It is an appropriate proceeding for deter mining whether one held under an extradi tion warrant is a fugitive from justice, and he should be discharged if he shows by com petent evidence, overcoming the presumption of a properly issued warrant, that he is not a fugitive from the demanding state ; Illinois v. Pease, 207 U. S. 100, 28 Sup. Ct. 58, 52 L. Ed. 121.
Jurisdiction of state courts. The states, being in all respects, except as to the powers delegated in the federal constitution, sover eign political communities, are limited, as to their judicial power, only by that instrument ; and they, accordingly, at will, create, appor tion, and limit the jurisdiction of their re spective courts over the writ of habeas cor pus, as well as other legal process, subject only to such constitutional restriction ; Church, Hab. Corp. 67.
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 speci fied in art. iii. sec. 2, and in which the deci sion of the supreme court , of the United States is paramount over all other courts and conclusive upon the parties.