then there are but few cases in the federal courts that are beyond the interference of the state courts, if a defendant desires to have it.

The superior courts in England may treat as void the unauthorized acts of their inferiors, and be justified by the peculiarities of their system and the fact of their superiority; but they could not, with propriety, so treat each other. Their practice relative to each other never contained such an element of disorder. A party summoned to answer is bound to obey, or give a good reason for not doing so. He cannot treat public authority with contempt. If he thinks that the court lacks jurisdiction, a decent respect for public order requires him to appear and raise the question, so that it may be decided in an orderly way. He need not raise it in order to insure his right to the objection in a court of error; but it may be necessary in order to stop the unauthorized process. Judges cannot keep all the law in their minds, and parties are heard in order that they may insist upon every principle that is in their favor. It would be very disorderly for defendants to hold back an objection to the jurisdiction of the court, and then raise it by rebellion against the public authorities, when the writ of the commonwealth comes to be executed; and habeas corpus would be a most disorderly writ if it could be thus used in contempt of authority.

Government consists of fallible men, who do not always know their duty; and parties may lose some of their rights, if they do not aid the public officers by notifying them of their views, and urging them; and questions of jurisdiction are very often as difficult to decide as any other. It is an essential element of judicial authority that it must be the judge of its own jurisdiction; and I do not know that this rule is peculiarly applicable to the higher courts. The lowest must act upon it, subject to the higher social law that is involved in official subordination. Often the question may be erroneously decided. Often such decisions may result in great injury to the citizen; but it is the lot of government to err, because it is human; and a man of well-trained mind will think it no great hardship to submit to authority even in error. In the name of order, the country demands and has the right to demand it.

It is usual to say, even of foreign judgments, that if pronounced by a competent tribunal, and carried into effect without our assistance, they are conclusive of the question decided. And here, "competent tribunal" means one of the regularly established courts of the country and in it. If its government

could, according to the law of nations, have jurisdiction of such a case, we concede to the court itself to decide upon its own jurisdiction: Rose v. Himely, 4 Cranch, 276; Ripple v. Ripple, 1 Rawle, 389; for we are not interested in the manner in which other states distribute their civil functions among their different departments.

Applying this principle here, our interference is certainly excluded. Not that the United States is a foreign country, but that its courts belong to a different system from the state courts, and thus these respective authorities are, as authorities, foreign to each other. Each must respond to its own superiors; neither can call the other officially to account. I speak not here of the action for damages for excess of authority. True enough, we do thus leave the federal government at liberty to make continual encroachments upon state rights without being responsible therefor to any organized power, but this cannot be avoided; there can be no organized authority superior to government itself. However we may define its functions, itself must interpret them, subject only to the right of the people to give new instructions. It must be so with every government. Manufacture and repair constitutions and bills of right as we may, multiply checks and restrictions upon official functions as we may, we cannot shut out human error and its consequences, which are sometimes distressing; while we may carry our suspicions of government so far as to take away its real efficiency as a means of preserving social order; and then we shall reject it as perfectly worthless, and the circumstances of its rejection must give the form to its successor.

In civil matters there can be no moral principle of higher importance than the one that is most deeply involved in this case the principle of social order. It is a principle of action that is as binding on the conscience as any other. It is the great moral principle of social man. Without it we must endanger and retard our social progress. Without it we confound all official subordination, and infect with disease the very organs of social life. This principle expresses itself, as best it can, in our civil institutions; and thus originating, they are morally entitled to our respect and obedience, imperfect as we may suppose them to be. He that rejects this principle from his moral code, or gives it a low place there, can hardly be an orderly citizen; but must be dangerous to the public peace and progress in proportion as he is otherwise intelligent, influential, and active. If the supreme court, as the higher

impersonation of the judicial order of the state, should set aside this principle, there can be no guaranty for the healthy administration of our social system. In the name of the order which we represent and enforce, I decline any and every usurpation of power or control over the United States judiciary; it being a system collateral to ours, as complete and efficient in its organization, and as legitimate and final an authority as any other. I concur in refusing the writ.

KNOX, J., dissented.

HABEAS CORPUS IS REMEDY FOR EVERY ILLEGAL IMPRISONMENT: See Commonwealth v. Lecky, 26 Am. Dec. 37, and exhaustive note thereto 40, as to the extent to which a court can go behind judgment or process-on habeas

corpus.

JURISDICTION MAY BE INQUIRED INTO ON HABEAS CORPUS: Commonwealth v. Lecky, 26 Am. Dec. 41, note; Rapalje on Contempts, sec. 155.

CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS: State v. Dimick, 37 Am. Dec. 197, and extensive note thereto 200, on the authority of a state court on habeas corpus; extended note to People v. McLeod, 37 Id. 363; Church on Habeas Corpus, secs. 78–86, 132, 228; Rapalje on Contempts, sec. 159.

ASSAILING JUDGMENTS FOR CONTEMPT ON HABEAS CORPUS: See numerous cases cited in note to Commonwealth v. Lecky, 26 Am. Dec. 49; Church on Habeas Corpus, secs. 306-346; Rapalje on Contempts, secs. 155–159.

ATTACKING JUDGMENTS GENERALLY BY HABEAS CORPUS: Commonwealth v. Lecky, 26 Am. Dec. 41, note; Bell v. State, 45 Id. 130, and notes to same 133; Church on Habeas Corpus, secs. 362-385; Freeman on Judgments, sec. 619-626.

ADJUDICATION ON HABEAS CORPUS AS RES ADJUDICATA: Mercein v. People, 35 Am. Dec. 653, and note 669; Church on Habeas Corpus, secs. 385, note, 386-389; Freeman on Judgments, sec. 324.

ASSAILING CONVICTION UNDER UNCONSTITUTIONAL STATUTE BY HABEAS CORPUS: Fisher v. McGirr, 61 Am. Dec. 381; Church on Habeas Corpus, secs. 72, 304, 370; Freeman on Judgments, sec. 624.

DETERMINING CUSTODY OF CHILDREN ON HABEAS CORPUS: State v. Smith, 20 Am. Dec. 324, and exhaustive note thereto on the subject 330; In the Matter of Kottman, 27 Id. 390; Mercein v. People, 35 Id. 653, and note discussing the subject 668; People v. Mercein, 38 Id. 644; Church on Habeas Corpus, secs. 387, 426-454.

COURTS HAVE INHERENT POWER TO PUNISH FOR CONTEMPTS, independent of any statute: Ex parte Adams, 59 Am. Dec. 234, and cases cited in note thereto 243; Rapalje on Contempts, sec. 1.

HABEAS CORPUS ALONE CANNOT BE USED AS WRIT OF ERROR: Commonwealth v. Lecky, 26 Am. Dec. 40, note.

FOR VARIOUS PHASES OF THE PRINCIPAL CASE, see same case, 4 Am. L. Reg. 27; 3 Id. 741; 7 Opin. Atty. Gen. 482.

WHEN COURT MAY REFUSE WRIT OF HABEAS CORPUS.-1. It Issues upon Probable Cause. In order to better understand when the court may refuse the writ, some benefit will be derived from a knowledge of when it will be granted.

The law on this point is briefly this: the petition must show probable cause, and upon such cause being shown, the writ of habeas corpus cannot be denied to the relator, for it then becomes a constitutional right. Neither can it be denied where the granting of it is made an imperative duty by statute. The habeas corpus act of the United States, and that of most of the states, provides that it shall be granted without delay, upon the proper showing. It is sometimes said that the habeas corpus is a writ of right, but not a writ of course, since cause must be shown. It is a high and imperative writ, and issues, it is true, as a matter of peremptory right, but it can only issue to one entitled to it either at common law or under statutes. Neither should it be granted without inquiry. There seems to have obtained in England, prior to the year 1820, a notion that the court was bound in the first instance to issue a habeas corpus at all events without exercising its discretion as to the grounds upon which the writ was moved: Rex v. Hobhouse, 2 Chit. Rep. 211; S. C., 3 Barn. & Ald. 420. But the direct course of later decisions, both English and American, is to establish the rule that probable cause must first be shown to obtain the writ, whether it be granted at common law or under the statute. This rule has been uniformly followed in the United States in both the state and federal courts, and is maintained by the following decisions: Ex parte Watkins, 3 Pet. 201; United States v. Lawrence, 4 Cranch C. C. 521; Ex parte Winder, 2 Cliff. 89; Matter of Keeler, Hempst. 311; In re Gregg, 15 Wis. 479; In re Griner, 16 Id. 423; Ex parte Milligan, 4 Wall. 3; Ex parte Williamson, 4 Am. L. Reg. 27; Ex parte Campbell, 20 Ala. 89; Sim's Case, 7 Cush. 285. This question came before the court of king's bench in Rex v. Hobhouse, supra, and was well considered. It was there decided that, whether the court granted a habeas corpus under the common-law jurisdiction or under the statute, there ought always to be a proper ground laid before the court as justification in granting it. "It is not to be granted as a matter of course and at all events, but the party seeking to be brought up by habeas corpus must lay such a case on affidavit before the court as will be sufficient to regulate the discretion of the court in that respect. The court will not in the first instance grant a habeas corpus, when they see that in the result they must inevitably remand the party:" Rex v. Hobhouse, 2 Chit. Rep. 211; S. C., 3 Barn. & Ald. 420; Ex parte Watkins, 3 Pet. 201. Abuses of discretion by the judge or court in deciding upon the question of probable cause can hardly be a subject of complaint by criminals, when they have such unlimited power to choose from the judiciary in making numerous applications, which they have in both England and America: Ex parte Partington, 13 Mee. & W. 682; King v. Suddis, 1 East, 314; Ex parte Kaine, 14 How. 117; Ex parte Robinson, 6 McLean, 360. In Ex parte Milligan, 4 Wall. 112, 113, it was held that a petition for a habeas corpus, properly presented to a court of competent jurisdiction, is the institution of a "cause on petitioner's behalf, and the allowance or refusal of the process is matter of law, and not of discretion. According to that decision, "when the petition is filed and the writ prayed for, it is a suit, the suit of the party making the application." That writ of habeas corpus is a civil proceeding, see Ex parte Tom Tong, 108 U. S. 556. Requiring probable cause to be shown "does not restrain the full and beneficial operation of this writ, so essential to the protection of personal liberty. The same court must decide whether the imprisonment complained of is illegal; and whether the inquiry is had in the first instance on the application or subsequently on the return of the writ, or partly on one and partly on the other, it must depend upon the same facts and principles and be governed by the same rule of law:" Sim's Case, 7 Cush. 293.

2. Denial of the Writ.-Courts of justice may refuse to grant the writ of habeas corpus where no probable ground for relief is shown in the petition, or where it appears that the petitioner is duly committed for felony or treason expressed in the warrant of commitment: In the Matter of Winder, 2 Cliff. 89. So when it appears upon the applicant's own showing that there is no sufficient ground prima facie for his discharge, the court will not issue the writ: Sim's Case, supra; Ex parte Milligan, 4 Wall. 2; Ex parte Williamson, 4 Am ̧ L. Reg. 27; Ex parte Campbell, 20 Ala. 89; Ex parte Kearney, 7 Wheat. 38; Commonwealth v. Robinson, 1 Serg. & R. 353; Ex parte Pardy, 1 L. M. & P. 26; In re Griner, 16 Wis. 447; Ex parte Bushnell, 8 Ohio St. 599; In re Gregg, 15 Wis. 479. The application may be denied in the cases excepted in the habeas corpus acts of the various states; but cannot be denied where the granting of it is made an imperative duty by statute. The statute of 31 Car. II. made no alteration in the practice of the courts in granting the writs of habeas corpus, and when a single judge in vacation time grants them under this statute in criminal cases, a copy of the commitment, or an affidavit of the refusal of it, must be laid before him. That act did not take away the court's discretion; and the practice of the king's bench and of the judges of that court has been that the foundation upon which the writ is prayed should be laid before the court or judge who awards it: Rex v. Hobhouse, supra. The same principle of practice is established in the courts of the United States, both state and federal. See habeas corpus act of the United States, and the habeas corpus acts of the various states, the common law prevailing where no statutory provisions are found. To allow the writ of habeas corpus to be issued without inquiry would make it a mere ministerial act, and it might be issued by the clerk of a court or other ministerial officer as any ordinary writ in such cases: Sim's Case, supra. The reason why the penalty for a refusal of the writ was imposed by the statute of 31 Car. II. was to obviate abuses, and the difficulty which was often experienced before the passage of that act in obtaining the writ in vacation time. The judges could not hear the proceedings, and they sometimes honestly and sometimes corruptly refused all applications, whether well founded or not: Church on Habeas Corpus, sec. 17.

3. Penalty for Refusing the Writ.-Under the statute of 31 Car. II., officers authorized to grant the writ of habeas corpus were subjected to a penalty for refusing it where it should have been granted. But this provision did not destroy the discretion of the judge, either in term time or in vacation. Ho still had to determine whether there was probable cause, and if not, it was his duty to remand the prisoner: Rex v. Hobhouse, supra. Judicial tribunals having acquired jurisdiction of the writ had power to decide right or wrong, but they were governed by the rules of law collectible from precedent and principle. There is no pecuniary penalty of this kind provided for in the habeas corpus act of the United States, but there is in the acts of most of the individual states. "In some of them the statutes are silent as to any penalty in case of a refusal of the writ. In some, the penalty applies only to a refusal of the writ by a judge in vacation or at chambers; while in others, the courts as well as the judges in vacation are not only subject to a penalty for refusing a habeas corpus, but also for unnecessarily delaying to issue it. But of course it must be a proper application, and appear that the writ ought to issue. The order for the writ of habeas corpus to issue is a judicial act; but the issuance of the writ itself by the prothonotary or clerk is a ministerial act: People v. Nash, 5 Park. Cr. 473; S. C., 25 How. Pr. 307; 16 Abb. Pr. 281; Nash v. People, 36 N. Y. 607.

It is doubted whether the refusal of a proper application for the writ of