Note. In the Matter of Barry.

If any common law prerogative in relation to the administration of justice can be proved to exist in the sovereignty of the United States, it must, upon the same principle, be endowed with all such prerogatives, and can, on the like authority, unless inhibited by positive law, award writs of mandamus, quo warranto, ne exeat, or mandates to citizens abroad to return home on pain of confiscation of their estates, (Comyn's Dig. Prerogatives, D. 34, 35,) or this writ of habeas corpus; they being all common law writs ejusdem generis.

That such attributes or functions of sovereignty cannot be inherent in the United States government necessarily results from the character of the government and the objects of its constitution.

It is not designed, in its organization or aim, to regulate the individual or municipal relations of the citizen. These are left under the dominion of the state government; and there accordingly exists no relation between the nation and individuals, which affords foundation for these prerogatives.

The social or personal duties or liabilities of the citizens come within the control of the general government only when remitted to its charge by a special cession of authority, and then solely to the end that such regulations as are of a federal character may be enforced, as in relation to land and naval forces, and persons in the employ of the United States, the punishment of offences, etc., etc., but in other respects the national government does not supply the law governing the citizen in his domestic or individual capacity. These particulars appertain to the institutions and policy of the respective States.

This reasoning, however, may not be supposed to meet fully the case presented by the petitioner; for although, in the abstract, there may be no prerogative authority in the head of the United States government, yet the argument would maintain that its courts of justice, as organized, may possess all the powers exercised by superior courts at common law, and the issuing and acting upon writs of habeas corpus ad subjiciendum become thereby a branch of jurisdiction necessarily incident to the constitution of such courts.

This hypothesis overlooks the peculiar foundation of the United States judiciary, and the allotment of its functions in respect to the powers of the States.

Note. In the Matter of Barry.

The federal government came into force coördinately with, or as the concomitant of, state governments at the time existing, and in the full exercise of legislative, executive and judicial sovereignty.

These sovereignties are left entire under the action of the general government, except in so far only as the powers are transferred to the federal head, by the constitution, or are by that prohibited to the States, or, in some few instances, are allotted to be exercised concurrently by the two governments.

The United States judiciary is constituted and put in action in the several States, in subordination to this fundamental principle of the Union, and empowered to exercise only such peculiar and special supremacy, and not one in its absolute sense.

To render this connection of the United States judiciary with that of the States more intimate and entire, and to take away all implication that it was a paramount power acting irrespective of state laws, or that it possessed or could exercise any inherent jurisdiction countervailing those laws, the act of Congress organizing the courts establishes it as an element in their procedure, that the laws of the State where the court sits shall be its rule of decision in common law cases.

It necessarily results, as a consequence of this special character of the United States judiciary, that it can possess no powers other than those specifically conferred by the Constitution or laws of the Union, and such incidents thereto as are necessary to the proper execution of its jurisdiction. All other judicial powers necessary to the complement of supreme authority remain with and are exercised by the States.

This doctrine is sufficiently indicated in the decision of the Supreme Court made in this case at the last term, and it has been invariably recognized from the earliest adjudications of the court. Chisholm v. Georgia, 2 Dall. 419, 432, 435; Ex parte Bollman, 4 Cranch, 75; Ex parte Watkins, 3 Pet. at page 201; Kendall v. United States, 12 Pet. 524.

The jurisdiction of the United States courts depends exclusively on the Constitution and laws of the United States, and they can, neither in criminal nor civil cases, resort to the common law as a source of jurisdiction. United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415; Chisholm v. Georgia, 2 Dall. 432; Ex parte Bollman, 4 Cranch, 75; Pawlet v. Clark, 9

Note. In the Matter of Barry.

Cranch, 333; Ex parte Randolph, 2 Brock. 477; Wheaton v. Peters, Pet. 590, 658; The Steamboat Orleans, 11 Pet. 175; Kendall v. United States, 12 Pet. 524.

It is now argued that this principle is limited to the Supreme Court; but that in respect to the Circuit Courts, they have a common law jurisdiction incident to their constitution, inasmuch as judicial sovereignty resides in them, rendering the range of their original jurisdiction coëxtensive with the subjects of litigation arising under the Constitution and laws of the United States, and because all remedies not otherwise provided are, in the exercise of that judicial sovereignty, to be in conformity to the common law.

Although the speculations of our most eminent jurists may countenance this argument, (Du Ponceau, 85; 1 Kent Com. 341,) yet it has not received the sanction of the United States courts. Chisholm v. Georgia, 2 Dall. 435; Kendall v. United States, 12 Pet. pp. 616, per cur., and 626, Taney, C. J.; Ex parte Bollman, 4 Cranch, 87; Ex parte Randolph, 2 Brock. 477, Marshall, C. J.; Lorman v. Clarke, 2 McLean, 568.

The distinction established by the cases is clear and practical, and embraces all United States courts alike, and is, in effect, that those courts derive no jurisdiction from the common law, but that in those cases in which jurisdiction is appointed by statute, and attaches, the remedies in these courts are to be according to the principles of the common law. Baines v. Schooner James, 1 Baldw. 544, 558; Robinson v. Campbell, 3 Wheat. 212, 223; United States v. Hudson, 7 Cranch, 32; Ex parte Kearney, 7 Wheat. 38; Anderson v. Dunn, 6 Wheat. 204; Ex parte Randolph, 2 Brock. 477.

It is not, accordingly, conclusive of their right to take cognizance of the subject matter, to show that the parties connected therewith are competent to sue or be sued in the United States courts, and that there is a perfect right of action or defence thereupon supplied such parties at common law. The evidence must go further, and prove that the particular subject matter is one over which the courts are by act of Congress appointed to act, or that the question has relation to the remedy alone, and not to the jurisdiction of the court. United States v. Bevans, 3 Wheat. 336, 389; McCulloch v. Maryland, ubi sup. at p. 407; Rhode Island v. Massachusetts, ubi sup. at p. 721.

The authority to take cognizance of the detention of infants by private persons, not held under claim, or color, or warrant of law,

Note. In the Matter of Barry.

rests solely in England on the common law. It is one of the eminent prerogatives of the crown, which implies in the monarch the guardianship of infants paramount to that of their natural parents. The royal prerogative, at first exercised personally ad libitum by the King, 12 Pet. 630, and afterwards, for his relief, by special officers, as the Lord High Constable, the Lord High Admiral and the Lord Chancellor, in process of time devolved upon the high courts of equity and law, and in them this exalted one, of allowing and enforcing the writ of habeas corpus ad subjiciendum, became vested as an elementary branch of their jurisdiction. In the performance, however, of this high function in respect to the detention of infants by parents, etc., the court or judge still acts' with submission to the original principle, out of which it sprang, that infants ought to be left where found, or to be taken from that custody and transferred to some other, at the discretion of the prerogative guardian, and according to its opinion of their best interest and safety.

The reference already made to the origin and object of our federal Union demonstrates that no prerogative of this character could be exercised as an incident to its qualified and peculiar sovereignty; and I think it equally clear, that the inherent authority of no branch of the judiciary can transcend that of the government in this behalf, and that it has no capacity to issue this writ, or act upon it, except under appointment by positive law. Ex parte Bollman, 4 Cranch, 75, 93.

It remains then only to consider whether such jurisdiction is conferred upon the Circuit Courts by statute; for, even if the language of the Constitution might import such authority to be within the competency of the judiciary, it is authoritatively established that the Circuit Courts, at least, cannot exercise jurisdiction as to individual rights, because authorized by the Constitution, unless Congress has specifically assigned it to them. They possess no jurisdiction other than that which both the Constitution and acts of Congress concur in conferring upon them. Turner v. Bank of North America, 4 Dall. 8, 10; United States Bank v. Devaux, 5 Cranch, 61; Livingston v. Van Ingen, 1 Paine, 45; Hodgson v. Bowerbank, 5 Cranch, 303; Kendall v. United States, ubi sup.; Ex parte Bollman, ubi sup. at p. 93; McClung v. Silliman, 6 Wheat., 598.

The 9th section of the first article of the Constitution, para

VOL. CXXXVI-39

Note. In the Matter of Barry.

graph 2, declaring that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it," does not purport to convey power or jurisdiction to the judiciary. It is in restraint of executive and legislative powers, and no further affects the judiciary than to impose on them the necessity, if the privilege of habeas corpus is suspended by any authority, to decide whether the exigency demanded by the Constitution exists to sanction the act.

So, although the 2d section of the 3d article gives the United States judiciary jurisdiction over all cases in law and equity between our own citizens and the citizens or subjects of foreign states, yet, as already shown, the Circuit Court cannot, under that provision, act on one of the subjects without an express authorization by statute. McClung v. Silliman, ubi sup.

In our government the judiciary power acts only to give effect to the voice of the legislature. Osborn v. United States Bank, 9 Wheat. 738, 866.

The material question in the case must, accordingly, be, whether Congress has given to the Circuit Courts the special jurisdiction appealed to by the petitioner.

Judge Story holds that the courts of the United States are vested with full authority to issue the great writ of habeas corpus in cases properly within the jurisdiction of the national government. 2 Story Const. § 1341.

The general doctrine the commentator is discussing, and the authorities supporting it, have relation to the law as it exists in England and in the respective States of the Union. The only case referred to as giving application of the general doctrine to the United States courts is that of Ex parte Bollman, and Ex parte Swartwout, 4 Cranch, 75.

That was a case of imprisonment on a criminal charge, under and by color of the authority of the United States, the prisoners having been committed by the Circuit Court of the District of Columbia, on a charge of treason against the United States; and the Supreme Court held, that though it could not take cognizance of the matter under any common law jurisdiction, yet the act of Congress of September 24, 1789, had conferred the jurisdiction, and they proceeded, by virtue of the statute, to exercise it in the case.

The court nowhere advert to an implied power in the Circuit Courts broader than that vested in the Supreme Court, which