The purpose of the proceeding in this case was to deliver from
the custody of the sheriff of the parish of Jefferson, Louisiana, a
person who was under sentence of death for the crime of assault
with intent to commit rape, of which he was convicted. The
contention of the appellee was that this was not an application for
habeas corpus, nor for a writ of mandamus, but was an ordinary
action. The appellant not only concedes the fact, but asserts it.
It follows necessarily that he has no cause of action. The same
result would follow if the court regarded the proceeding as one in
Page 180 U. S. 82
The case is stated in the opinion of the Court.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The appellant has not ventured to give a specific name to this
action. The appellee claims that it is not an application for a
writ of habeas corpus, nor for writ of mandamus (this word is used
in the prayer of the petition), but that it is "an ordinary action
of which the appellant has no concern."
The purpose of the proceeding is to deliver from the custody of
the sheriff of the Parish of Jefferson, State of Louisiana, one
Samuel Wright, who is under sentence of death for the crime of
assault with intent to commit rape, for which he was convicted in
the twenty-first judicial District Court for the Parish of
The appellant's petition was filed in the Circuit Court of the
United States for the Eastern District of Louisiana, and alleges
that he appeared on behalf of Nathan Wright. It further alleges
that Wright was convicted of criminal assault with intent to commit
rape, and sentenced to death, and that Marrero (appellee), as
"proposes, under said sentence and an order of execution lately
received by him from Murphy J. Foster, Governor, so called, of the
State of Louisiana, to hang said Wright on February 9, 1900, until
dead, and will do so unless restrained therefrom by this honorable
court; . . . that said conviction was obtained and sentence passed
without due process of law, in direct violation of the Fourteenth
Amendment of the Constitution of these United States; that the
grand jury that indicted Wright consisted of only twelve members,
while the fundamental law of the state, the Constitution of 1879,
imperatively requires that the grand jury shall consist of sixteen
members, and that the assent of at least thirteen of these members
shall be secured for the presentation of a true bill,"
"that these fatal departures from an indispensable due
Page 180 U. S. 83
process of law arose from the very erroneous beliefs of the hon.
judge of said district court and of Governor Foster, that a
so-called Constitution of 1898 is the fundamental law of the state,
and not that of 1879; that they erred, and that the latter is the
real and valid Constitution of Louisiana, petitioner in proof
presents the following counts and pleas."
There is a specification of reasons, under eight "counts and
pleas," why the Constitution of 1898 is not the constitution of the
state. The reasons are all reducible to the general and ultimate
one that the Constitution of 1898 was not adopted in pursuance of
the provisions of the Constitution of 1879, and
"hence Act No. 52 of 1896 (an act of the legislature), generally
known as the constitutional convention law, goes far beyond the
limits of legislative authority, is ultra vires,
absolutely null and void, and everything done under it equally null
It is also alleged that certain other acts, to-wit, Acts Nos. 89
and 13 of 1896, are unconstitutional because they reduce the number
of registered voters, and therefore are "not in any sense an
expression of sovereignty, and therefore of no force, effect, or
validity." The particular reasons given are that the acts are bills
of attainder, ex post facto
laws, violate the guaranties
of the Fourteenth Amendment to the Constitution of the United
States, take away suffrage without due process of law, make
sweeping exemptions from the new requirements and additional
qualifications of the suffrage based upon wealth and money, do not
provide for ratification by the people of the state in compliance
"with the provisions of the federal Constitution exacting from
every state of the union a republican form of government."
The petition concludes as follows:
"Petitioner further shows in behalf of said Wright that the
aforesaid insurrectionary, revolutionary, usurpative, and
unconstitutional proceedings compel him to go outside of the state
courts, and to appeal to this hon. court for protection against an
ordered extrajudicial murder under the well established maxim of
constitutional law that state courts are not competent to pass upon
the validity of the Constitution under which
Page 180 U. S. 84
they themselves exist and from which they derive all their
"Wherefore, the above duly considered, petitioner prays for
citation and service of petition upon the aforesaid Lucien H.
Marrero, Sheriff of the Parish of Jefferson, State of Louisiana,
commanding him to show cause, if any he has, why the said Nathan
Wright, now in his illegal and wrongful custody, should not be by
him set at liberty."
"Petitioner further prays that, after all necessary services,
legal delays, and due trial, there be judgment by this hon. court
mandamusing and ordering the said Lucien H. Marrero, Sheriff of the
Parish of Jefferson, to restore Nathan Wright to that liberty he
has been wrongfully depriving him of."
"Finally, petitioner prays for such general and special relief
for said Wright as the law and evidence may on trial show him
entitled to receive."
"(Signed) A. L. Gusman"
"Before me, the undersigned authority, personally appeared A. L.
Gusman, to me known, who, being first by me duly sworn, says that
the above facts and allegations are true and correct; that the
aforesaid Wright has no adequate legal remedy in the state courts
of Louisiana for the denial of due process of law, of which he is
the victim, and that his only avenue of escape from an
unconstitutional sentence of death is an appeal to this hon. court
for justice and protection."
"(Signed) A. L. Gusman"
"This done and subscribed in my office, City of New Orleans,
this 2d day of January, A.D. 1900."
"[SEAL.] (Signed) W. B. Barnett, No. Pub.
Upon the filing of the petition, and without any action of the
court or of the circuit judge, the clerk of the court issued a
citation, entitled in the cause and in the name of the President of
the United States, to Lucien H. Marrero, Sheriff of the Parish of
Jefferson, and summoned him to comply with the demand of the
petition (a copy of which accompanied the citation), or
Page 180 U. S. 85
to deliver his answer in the office of the clerk of the court
within ten days after service thereof, with increase of one day for
every ten miles Marrero's residence was distant from New Orleans,
the place where the court was held.
In due time, Marrero, by attorney, filed exceptions to the
petition on the ground that the court had no jurisdiction in the
case and on the ground that the petition disclosed no cause of
The answer concluded as follows:
"In the event that defendant's exception be overruled, and only
then, defendant answers that he holds no prisoner named Martin
Wright nor Nathan Wright, as alleged in plaintiff's petition, but
that a man named Sam. Wright, now in his custody as Sheriff of the
Parish of Jefferson, was tried and convicted on Monday, the 11th
day of December, 1899, before the honorable the Twenty-First
Judicial District Court for the Parish of Jefferson, presided over
by Hon. Emile Rost, Judge, of the crime of"
"entering a dwelling house in the night-time, armed with a
dangerous weapon, and, having so entered, having made an assault
upon the body of a girl therein residing with the felonious intent
to commit rape."
"Further answering, defendant alleges that, pursuant to a
subsequent order of the court aforesaid sentencing him to be
hanged, the said Sam. Wright was committed to custody of defendant
to await a day to be fixed by his excellency the Governor of
Louisiana for the execution of said Wright."
"Defendant alleges that Friday, February the 9th, has been fixed
by the Governor of Louisiana for the execution of the orders of the
"Whereupon defendant prays that plaintiff's petition be
The exceptions were set down for trial for the second of
February, 1900, at eleven o'clock, and the petitioner's counsel was
ordered to be notified. On that day the exceptions came on to be
heard, and were argued, submitted, and sustained, and the petition
On February 5, 1900, the petitioner, by his counsel, moved for a
new trial on the following grounds:
Page 180 U. S. 86
"First. That the court erred grievously and to Wright's
prejudice and injury in holding that this is a mandamus suit. No
writ is needed, none was asked, and the words 'mandamus' and 'writ'
are nowhere to be found in the petition. No perpetuation of the
writ of mandamus that has no existence is either asked or denied.
The petition and prayer shows that this is simply an ordinary
action. The summons to the defendant Marrero evidences the same
thing, and his exceptions and answer are additional proofs of this
"Second. The court also erred grievously when it refused to
allow a trial of the merits of the question, since this was
necessary in order to show whether or not Sheriff Marrero, in
holding Wright in forcible custody under an assumption of
governmental authority, was not invading Wright's constitutional
rights and guaranties without due process of law."
"Third. The court also erred grievously and injuriously in
ruling that appearer's contentions as to jury trials and juries are
untenable on the grounds that Amendments 4, 5, 6, 7 of the federal
Constitution do not apply to state courts, as held by the United
States Supreme Court in the 110 U.S. Supreme Court Report in a
California case, the said Court since then having held that they
"Fourth. That this hon. court furthermore grievously and
injuriously erred in holding that appearer's eighth count involves
a political question over which Congress alone has jurisdiction.
This was once true, but it is so no longer, for Congress a number
of years ago settled the question affirmatively, and it is now the
duty of this Court to enforce this decision just as much as it is
its duty to enforce the provisions of the statutes of
"Fifth. The court additionally erred in holding that Wright had
no valid right of action, since a resort to mandamus proceedings
was not the proper remedy. As no such resort was ever made, the
decision is clearly erroneous."
The motion for new trial having been submitted to the court, it
A petition for appeal was presented, assigning as errors
substantially the grounds stated in the motion for new trial,
Page 180 U. S. 87
excepting to the court's action thereon. The appeal was allowed,
and the case is here in consequence.
The contention of appellee is that this is not an application
for habeas corpus nor for writ of mandamus, but is an ordinary
action. The appellant not only concedes the fact, but takes pains
to assert it. It follows necessarily that he has no cause of
action. However friendly he may be to the doomed man and
sympathetic for his situation, however concerned he may be lest
unconstitutional laws be enforced, and however laudable such
sentiments are, the grievance they suffer and feel is not special
enough to furnish a cause of action in a case like this. The
judgment of the circuit court must therefore be affirmed. Even if
we regard the proceeding as one in habeas corpus, the same result
would follow. Davis v. Burke,
decided December 17 of this
term, 179 U. S. 399
MR. JUSTICE HARLAN took no part in the decision.