Jurisdiction of the federal courts. This is prescribed by several acts of congress. By section 14 of the Judiciary Act of September 24, 1789, the general power to issue the writ is granted to the federal courts and also to a justice or judge, to inquire into the cause of commitment ; but not where a prisoner in gaol otherwise than under authority of the United States or required to testify.
By section 7 of the Act of March 2, 1833, the jurisdiction of the justices and judges 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." The federal courts may grant the writ to inquire into the cause of restraint of any person in jail under the authority of a state in viola tion of the constitution or of a law or treaty of the United States, and may discharge a prisoner under indictment in a state court when he is found to be so restrained ; Ex parte Glenn, 111 Fed. 257; or a prisoner held in contempt without a hearing for an offence not committed in the presence of the court ; Ex parte Stricker, 109 Fed. 145; or where a sentence is imposed which neither the statute nor the verdict authorizes ; In re Burns, 113 Fed. 987 ; but except in cases of peculiar urgency they will not discharge the prisoner in advance of a final hearing of his cause in the courts of the state, and even after such final determination in those courts will generally leave the petitioner to his remedy by writ of error from this court ; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406. See also New. York v. Eno, 155 U. S. 89, 15 Sup. Ct. 30, 39 L. Ed. 80. This decision was rendered necessary by the practice of using the writ as a means to take an appeal from state tribunals to the supreme court of the United States to delay the trial or execution of criminals ; the evil of it is set forth by Seymour D. Thompson in 30 Am. L. Rev. 289, 290.
An act of August 29, 1842, extends the privilege of the writ to cases of aliens com mitted or confined under federal .law for acts done under color of the law, authority, etc., of any foreign power.
Section 3 of an Act of July 20, 1790, pro vided that refractory seamen in certain cases shall not be discharged on habeas corpfis or otherwise.
By an act of February 6, 1867, the defend ant in actual custody under state process, whose case has been removed to the federal court, may have a writ of habeas corpus cum causa to remove him to its custody ; R. S. § 642.
By act of May 3, 1885, an appeal may be taken from the judgment of the United States circuit courts in habeas corpus cases to the supreme court. Since the passage, of
this act it has been generally held that the supreme court will not issue the writ where it may be done as well in the proper Circuit Court, unless there are special circumstances making action by the supreme court expedi ent or necessary; Ex parte Mirzan, 119 U. S. 584, 7 Sup. Ct. 341, 30 L. Ed. 513 ; In re Huntington, 137 U. S. 63, 11 Sup. Ct. 4, L. Ed. 567. The writ will not be issued 1 when it appears by the petition that the question has already been decided against the petitioner by another judge in the same court; In re Simmons, 45 Fed. 241. In cases where the right of appeal seems inadequate by reason of its delay, the court may hold the person entitled to the writ as a means of speedy determination of the question ; Ex parte Kieffer, 40 Fed. 399. In Clark v. Pennsylvania, 128 U. S. 395, 9 Sup. Ct. 113, 32 L. Ed. 487, a judge of the supreme court refused to grant the writ in chambers to the captain of a steamer committed under the laws of Pennsylvania for selling liquor on the steamer without license on the ground that the federal question if any could raised by writ of error.
Federal courts cannot grant the writ upon a petition that the person is held under the capias of a state, court issued upon a judg ment that has been vacated ; In re Shaner, 39 Fed. 869. A district court cannot, by issu ing a writ, declare a judgment of a state criminal court a nullity where such court had full jurisdiction over the crime ; Ex par te Ulrich, 43 Fed. 661. But the writ can be issued to test the question as to the arrest and imprisonment of a supposed fugitive from -justice on the charge of a different of fence from that for which he was extradit ed ; In re Fitton, 45 Fed. 471. See also In re Cross, 43 Fed. 517. In general the writ may be issued by federal courts in every case where a party is restrained of his liber ty without due process of law in the terri torial jurisdiction of such courts ; Ex parte Farley, 40 Fed. 66 ; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. The grant ing of the writ is within the discretion of the court and will not be reversed unless an abuse 'thereof be shown ; U. S. v. Ronan, 33 Fed. 117. But where the petitioner had been convicted on the indictment of a grand jury impanelled by a court without authority, it was held that the writ became a writ of right and the court having power to issue it could not exercise discretion against issuing it ; Ex parte Farley, 40 Fed. 66. A medical director in the navy notified by the secretary of the navy that he was under arrest and should confine himself to the city of Wash ington is not under such restraint as to sus taro the writ ; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050, 29 L. Ed. 277.