man and Ex parte Boll- 3. p. 448. we are now called upon to show that this court has power to issue a writ of habeas corpus. Swartwout. *78 By the constitution of the United States, art. 3. s. 2. the grant of jurisdiction to the courts of the United States is general, and extends to all cases arising under the laws of the United States. This court has either original or appellate jurisdiction of every case, with such exceptions and under such regulations as congress has made or shall make. If congress has not excepted any case, then it has cognisance of the whole. The appellate jurisdiction given by the constitution to this court includes criminal as well as civil cases, and no act of congress has taken it away. This court derives its power and its jurisdiction not from a statute, but from the constitution itself. No legislative act is necessary to give powers to this court. It is independent of the legislature; and in all the late discussions upon the question of putting down courts, it was admitted on all hands that the legislature could not destroy the supreme court. But if this court has no criminal jurisdiction to hear and determine, yet they may have a criminal jurisdiction to a certain extent, viz. to inquire into the cause of commitment and admit to bail. This court has no original jurisdiction, except in certain cases; yet it has power to issue a mandamus in cases in which it has no appellate jurisdiction by writ or error or appeal, and will issue a prohibition even in a criminal case, if a circuit court should undertake to try it in a state in which the crime was not committed. So also if a district court should be proceeding upon a matter out of its jurisdiction, this court would grant a prohibition. By the judiciary act, s. 14. vol. 1. p. 58. "All the before-mentioned courts" (and the supreme court was the court last mentioned in the preceding section) "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 either of the justices of the supreme court, as well as 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 man and shall in no case extend to prisoners in gaol, unless where Ex parte Bollthey are in custody under or by colour of the authority Swartwout. 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 has been suggested that the words "and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions," forbid the issuing of a habeas corpus, but in a case where it is necessary for the exercise of the court's jurisdiction. But the words " necessary," &c. apply only to the "other writs not specially provided for. In order to restrict in some degree the general expression "all other writs," the subsequent words are used. The writ of habeas corpus was particularly named, because it would not (in all cases where it ought to be granted) come under the general denomination of writs necessary for the exercise of the jurisdiction of the court issuing it. But admitting, for argument, that a writ of habeas corpus cannot issue but where it is necessary for the exercise of the jurisdiction of the court issuing it, yet the term "jurisdiction" means the whole jurisdiction given to the court; and as this court has, by the constitution, jurisdiction in criminal cases, which jurisdiction is not taken away by any statute, it is a writ necessary for the exercise of its jurisdiction. Again by the 33d section of the same act, 66 upon arrests in criminal cases, where the punishment may be death, bail shall not be admitted but by the SUPREME or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law." By this section the supreme court has jurisdiction to admit a prisoner to bail in criminal cases-punishable with death, and for that purpose to examine into the nature and circumstances of the offence, and of the evidence. For the exercise of this jurisdiction the writ of habeas corpus is necessary. There is no other writ," agreeable to the usages of law," which will answer the purpose. It is doubtful whether a judge of this court can issue the writ while the court is sitting, and in a district in which he has no authority to act as a circuit judge. * 79 man and Ex parte Boll- If it be said that the writ can only issue where it is in Swartwout. exercise of appellate jurisdiction, we say it is appellate jurisdiction which we call upon this court to exercise. The court below has made an illegal and erroneous order, and we appeal in this way, and pray this court to correct the error. *80 Rodney (Attorney-General) declined arguing the point on behalf of the United States. Harper, for Bollman. There are two general considerations : 1. Whether this court has the power generally of issuing the writ of habeas corpus ad subjiciendum? 2. If it has the power generally, whether it extends to commitments by the circuit court? 1. The general power of issuing this great remedial writ, is incident to this court as a supreme court of record. It is a power given to such a court by the common law. Every court possesses necessarily certain incidental powers as a court. This is proved by every day's practice. If this court possessed no powers but those given by statute, it could not protect itself from insult and outrage. It could not enforce obedience to its immediate orders. It could not imprison for contempts in its presence. It could not compel the attendance of a witness, nor oblige him to testify. It could not compel *the attendance of jurors, in cases where it has original cognisance, nor punish them for improper conduct. These powers are not given by the constitution, nor by statute, but flow from the common law. This question is not connected with another, much agitated in this country, but little understood, viz. whether the courts of the United States have a common law jurisdiction to punish common law offences against the government of the United States. The power to punish offences against the government is not necessarily incident to a court. But the power of issuing writs of habeas corpus, for the purpose of relieving from illegal imprisonment, is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of the citizen. It being clear, then, that incidental powers belong to this in common with every other court, where can we Swartwout. look for the definition, enumeration and extent of those Ex parte Bollpowers, but to the common law; to that code from man and whence we derive all our legal definitions, terms and ideas, and which forms the substratum of all our juridical systems, of all our legislative and constitutional provisions. It is not possible to move a single step in any judicial or legislative proceeding, or to execute any part of our statutes, or of our constitution, without having recourse to the common law. The constitution uses, for instance, the terms " trial by jury" and " habeas corpus." How do we ascertain what is meant by these terms? By a reference to the common law. This court has power, in some cases, to summon jurors, and examine witnesses. If an objection be made to the competence of a witness, or a juror be challenged, how do you proceed to ascertain the competence of the witness or the juror? You look into the common law. The common law, in short, forms an essential part of all our ideas. It informs us that the power of issuing the writ of habeas corpus belongs incidentally to every superior court of record; that it is part of their inherent rights and duties thus to watch over and protect the liberty of the individual. This Accordingly we find that the court of common pleas in England, though possessing no criminal jurisdiction *of any kind, original or appellate, has power to issue this writ of habeas corpus. This power it possessed by the common law, as an incident to its existence, before it was expressly given by the habeas corpus act. appears from Bushell's Case, reported in Sir Thomas Jones, 18. and stated in Wood's Case, 3 Wilson, 175. by the Chief Justice, in delivering the opinion of the court. Bushell's Case was shortly this: A person was indicted at the Old Bailey, in London, for holding an unlawful conventicle. The jury acquitted him, contrary to the direction of the court on the law. For this some of the jurors, and Bushell among the rest, were fined and imprisoned by the court at the Old Bailey. Bushell then moved the court of common pleas for a writ of habeas corpus, which, after solemn argument and consideration, was granted by three judges against one. Bushell was brought up, and the cause of his commitment appearing insufficient, he was discharged. This took place before the habeas corpus act was passed, and * 81 man and Ex parte Boll- is a conclusive authority in favour of the doctrine for which we contend. Wood's Case, 3 Wilson, 175. and 3 Bac. Abr. 3. are clear to the same point. Swartwout. 82 none. Whence does the court of common pleas derive this power? Not from its criminal jurisdiction; for it has Not from any statute; for when Bushell's Case was decided, there was no statute on the subject. Not from any idea that such a power is necessary for the exercise of its ordinary functions; for no such necessity exists, or has ever been supposed to exist. But from the great protective principle of the common law, which, in favour of liberty, gives this power to every superior court of record, as incidental to its existence. The court of chancery in England possesses the same power by the common law, as appears from 3 Bac. Abr. 3. This is a still stronger illustration of the principle, for the court of chancery is still further removed, if possible, than the court of common pleas, from all criminal jurisdiction, still more exempt from the necessity of such a power for the exercise of its peculiar functions.. The court of exchequer also, as appears from the same authorities, though wholly destitute of criminal jurisdiction, *possesses the power of relieving, by ha❤ beas corpus, from illegal restraint. Hence it appears that all the superior courts of record in England are invested by the common law with this beneficial power, as incident to their existence. The reason assigned for it in the English law books is, that the king has always a right to know, and by means of these courts to inquire, what has become of his subjects. That is, that he is bound to protect the personal liberty of his people, and that these courts are the instruments which the law has furnished him for discharging his high duty with effect. It may then be asked, whether the same reasons do not apply to our situation, and to this court. Have the United States, in their collective capacity, as sovereign, less right to know what has become of their citizens, than the king or government of England to inquire into the situation of his subjects? Are they under an obligation less strong, to protect individual liberty? Have not the people as good a right as those of England to the aid of a high and responsible court for the protection of their persons? Is our situation less advantageous in this |