1. Whether the action of the Circuit Court was to be regarded as the cause of the commitment, to which the act of 1789 applies the writ of habeas corpus; and whether, if found unlawful, relief might be granted, although the original imprisonment was by military officers for the purpose of a trial before a military commission.
2. If the court possessed this jurisdiction, had it been taken away by the 2d section of the act of March, 1868?
Upon the suggestion of the Attorney-General, made in view of the importance of the questions which would probably arise, if the case was brought to hearing, the court ordered preliminary argument upon the jurisdiction of the court to issue the writ prayed for; the only question, therefore, raised in the present stage of the case.
Messrs. P. Phillips and Carlisle, in support of the motion, conceding that this court could grant the writ only in the exercise of the appellate jurisdiction, yet argued, that the writ of habeas corpus, being a bulwark of freedom, demanded a liberal interpretation of clauses in the Constitution and statutes relating to it, so as to allow and preserve the writ, rather than to withhold or destroy it; that the grant of the writ as here invoked was in the exercise of an appellate power; that, as was decided in Ex parte Milligan, in the face of a powerful argument by Mr. Stanbery to the contrary, proceeding in habeas corpus was a suit, a process of law, by which the party sought to obtain his rights. The proceeding in the Circuit Court was therefore a suit; and, undoubtedly, there had been an order in it; an order, namely, that the writ of habeas corpus be dismissed, and the prisoner remanded to answer the charge set forth in the return. Yerger, the prisoner in this case, was, therefore, at this time, in the possession of the military authorities, in virtue of an order of the Circuit Court. The review by this court of such an order, was an exercise of appellate power, and of no other power.
It was, therefore, unnecessary to invoke such cases as In re Kaine.
But if the exercise of the power which was asked, were not the exercise of a power in review of a decision of the Circuit Court, that case would still authorize this application. What was that case? Kaine was arrested as an alleged fugitive from justice, and brought before a United States Commissioner, who made an order committing him to custody, to abide the order of the President. A writ of habeas corpus was then issued by the Circuit Court of the United States for the Southern District of New York. Kaine was brought before that court. After a hearing, the writ was dismissed, and Kaine was remanded and continued in the custody of the marshal under the arrest and commitment by the process of the commissioner.
An application was finally made in this court for a writ of habeas corpus and a certiorari to the Circuit Court, in order to review the order made by that court, remanding the prisoner to the custody of the marshal.
On the hearing of this motion, the writ was refused, not because of any doubt of the jurisdiction of the court to award the writ, but because a majority of the court was of opinion that on the merits the prisoner was not entitled to his discharge. No member of the court expressed an opinion that the court did not have power, in the exercise of its appellate jurisdiction, to award the writ in order to 'inquire into the cause of the commitment' made by the Circuit Court, and to review the judgment of that court; which, this court considered, had been made by the order of remand to the commissioner; though no power might exist in this court to review directly the act of the commissioner himself. On the contrary, the jurisdiction was plainly asserted.
In Ex parte Wells, convicted of murder, and whose sentence was commuted by the President to imprisonment for life, a habeas corpus was issued by the Circuit Court. On the return, the position taken by the prisoner that the pardon was absolute and the condition void, was overruled. The writ was dismissed and the prisoner remanded. On application to this court for habeas corpus to reverse this proceeding, all the judges, but Curtis and Campbell, JJ., maintained the jurisdiction. Curtis, J., refers to his denial of the jurisdiction in Kaine's case. It will be seen that this denial is placed on the ground that 'the custody of the prisoner was at no time changed.' He admits 'that when a prisoner is brought into court, he is in the power and under the control of the court; but unless the court make some order, changing the custody, the original custody continues.'