Neither the Supreme Court nor any other court of the United
States or judge thereof can issue a habeas corpus to bring up a
prisoner who is in custody under a sentence or execution of a state
court for any other purpose than to be used as a witness.
An application for a writ of error prayed for without the
authority of the party concerned but at the request of his friends
cannot be granted.
Page 44 U. S. 104
Mr. Treadwell moved for a writ of habeas corpus to bring up
Thomas W. Dorr, of Rhode Island, under the following
circumstances:
He stated that Dorr was charged with levying war against the
State of Rhode Island, and sentenced to the state's prison for life
in June, 1844; that upon the trial a point of law was raised
whether treason could be committed against a state, but the court
would not permit counsel to argue it; that a motion was made to
suspend the sentence until a writ of error could be sued out to
bring the case before the Supreme Court of the United States, but
the court refused to suspend it. He then read affidavits to show
that personal access to Dorr was denied, in consequence of which
his authority could not be obtained for an application for such a
writ. The present motion for a habeas corpus was based upon this
fact. There was no other mode of ascertaining whether or not it was
Dorr's wish that his case should be brought up to this Court. Under
the 14th section of the Judiciary Act, the power to issue writs of
habeas corpus was vested in the judges of the United States'
courts. 3 Story's Com., tit. Jurisdiction, 588, 590, 594, 595, 603,
608, 610, 625.
The case was in itself proper to be brought up under the 25th
section of the Judiciary Act, as the decision of the state court
was thought to be inconsistent with the Constitution of the United
States.
MR. JUSTICE McLEAN delivered the opinion of the Court.
Thomas W. Dorr was convicted before the supreme court of Rhode
Island, at March term, 1844, of treason against the State of Rhode
Island, and sentenced to the state's prison for life. And it
appears from the affidavits of Francis C. Treadwell, a counselor at
law of this Court, and others that personal access to Dorr, in his
confinement, to ascertain whether he desires a writ of error to
remove the record of his conviction to this Court, has been
refused. On this ground the above application has been made.
Has the Court power to issue a writ of habeas corpus in this
case? This is a preliminary question, and must be first
considered.
The original jurisdiction of this Court is limited by the
Constitution to cases affecting ambassadors, other public
ministers, and consuls, and where a state is a party. Its appellate
jurisdiction is regulated by acts of Congress. Under the common
law, it can exercise no jurisdiction.
As this case cannot be brought under the head of original
jurisdiction; if sustainable, it must be under the appellate
power.
The 14th section of the Judiciary Act of 1789 provides
"That the courts of the United States shall have power to issue
writs of
scire facias, habeas corpus, and all other writs
not specially 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 Justices of
the Supreme Court, as well as
Page 44 U. S. 105
judges of the district courts, shall have power to grant writs
of habeas corpus for the purpose of an inquiry into the cause of
commitment, provided that writs of habeas corpus shall in no case
extend to prisoners in jail unless where 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 necessary to be
brought into court to testify."
It the trial of Dorr, it was insisted that the law of the state
under which he was prosecuted was repugnant to the Constitution of
the United States. And on this ground a writ of error is desired
under the 25th section of the Judiciary Act above named. That as
the prayer for this writ can only be made by Dorr or by someone
under his authority, and as access to him in prison is denied, it
is insisted that the writ to bring him before the court is the only
means through which this Court can exercise jurisdiction in his
case by a writ of error. Even if this were admitted, yet the
question recurs whether this Court has power to issue the writ to
bring him before it. That it has no such power under the common law
is clear. And it is equally clear that the power nowhere exists
unless it be found in the 14th section above cited.
The power given to the courts in this section to issue writs of
scire facias, habeas corpus &c., as regards the writ
of habeas corpus, is restricted by the proviso to cases where a
prisoner is
"in custody under or by color of the authority of the United
States or has been committed for trial before some court of the
same or is necessary to be brought into court to testify."
This is so clear from the language of the section that any
illustration of it would seem to be unnecessary. The words of the
proviso are unambiguous. They admit of but one construction. And
that they qualify and restrict the preceding provisions of the
section is indisputable.
Neither this nor any other court of the United States, or judge
thereof, can issue a habeas corpus to bring up a prisoner, who is
in custody under a sentence or execution of a state court, for any
other purpose than to be used as a witness. And it is immaterial
whether the imprisonment be under civil or criminal process. As the
law now stands, an individual, who may be indicted in a circuit
court for treason against the United States, is beyond the power of
federal courts and judges, if he be in custody under the authority
of a state.
Dorr is in confinement under the sentence of the supreme court
of Rhode Island, consequently this Court has no power to issue a
habeas corpus to bring him before it. His presence here is not
required as a witness, but to signify to the court whether he
desires a writ of error to bring before this tribunal the record of
his conviction.
The counsel in this application prays for a writ of error, but
as it appears from his own admission that he does not act under the
authority
Page 44 U. S. 106
of Dorr, but at the request of his friends, the prayer cannot be
granted. In this view it is unnecessary to decide whether the
counsel has stated a case, which, with the authority of his client,
entitles him to a writ of error.
The motion for a habeas corpus is
Overruled.
