Ex parte Burrus. 1

• Decision Date: 19 May 1890
• Citation: 136 U.S. 586,34 L.Ed. 500,10 S.Ct. 850
• Parties: Ex parte BURRUS. 1
• Court: U.S. Supreme Court

136 U.S. 586

10 S.Ct. 850

34 L.Ed. 500

Ex parte BURRUS.¹

May 19, 1890.

G. M. Lambertson, for petitioner.

John Schomp, for respondent.

MILLER, J.

This is an application by Thomas F. Burrus to this court, in the exercise of its original jurisdiction, for a writ of habeas corpus to relieve him from the custody and unlawful imprisonment, as he declares, in which he is held by Brad D. Slaughter, United States marshal of the state of Nebraska, in the jail at Omaha, in said state, by virtue of an order of the district court of the United States for that district. Upon the filing of the petition in this court, a rule was entered and served upon Slaughter to show cause why said writ of habeas corpus should not issue. To this rule Slaughter made return. In this return he says that 'the said petitioner is in his custody under and by virtue of an order and judgment of the Honor- able ELMER S. DUNDY, judge of the United States court for the district of Nebraska, a copy of which order is hereto attached, and forms a part of this my return to aforesaid writ.' He further attaches to this return a 'true and correct copy of the whole proceedings in the controversy that brought about the judgment and order aforesaid, and he holds the said Thomas F. Burrus in his custody subject to and in pursuance of the aforesaid order and said judgment of the court, and submits whether he is entitled to his discharge as prayed for.' This retur is signed 'BRAD D. SLAUGHTER, Marshal of the United States for the District of Nebraska.' The substance of this record shows that Louis B. Miller, of the town of Oxford, county of Butler, and state of Ohio, and a citizen of that state, was the father of a child named Evelyn Estelle Miller, who was born on the 7th day of October, 1881; that his wife died on the 18th of May, 1882, while he and his wife were residing in Nemaha county, in the state of Nebraska; and that while his wife was lying sick of measles, from which she ultimately died, the child was taken, under the directions of a physician, to the residence of the grandfather, Thomas F. Burrus, and Catherine Burrus, his wife, who were, and now are, residents of said Nemaha county, and citizens of the state of Nebraska. Since that time Miller has married again, and, having a house and home, and being well prepared to take care of his child, he has desired its care and custody, and made frequent demands of the said Thomas and Catherine Burrus that they deliver it up to him, which they have uniformly refused to do. Under these circumstances, Miller made application, on the 4th day of April, 1889, to Hon. ELMER S. DUNDY, district judge of the United States for the district of Nebraska, for a writ of habeas corpus to recover the care and custody of the child, reciting the circumstances hereinbefore stated, and also some other matters tending to show that the home of Burrus was not a fit place for the child to be brought up. Upon this petition the writ was issued, and the defendant Burrus and his wife appeared before Judge DUNDY at a regular term of the district court. They stated the fact that they had had the care and custody of the infant from a very short time after its birth, and still had it; and that they had taken good care of it, were capable of taking good care of it, and were very much attached to it, and it was attached to them; and they claimed the right to continue in the custody and control of the child, who was then between eight and nine years old. Afterwards, on the 25th day of June, 1889, Judge DUNDY made an order that said Evelyn E. Miller, the child, was improperly detained and kept by Thomas Burrus and Catherine Burrus, and that she, the said Evelyn E. Miller, should be awarded to the care and custody of her father, Louis E. Miller, the petitioner, and that said Burrus and wife produce the child before the court within five days from the date of said order. From this order an appeal was taken to the dircuit court for that district, before Judge BREWER, who decided that neither he nor the circuit court had any jurisdiction to hear the case on appeal, and remitted the case to the district court. On the 16th of December, 1889, an order was made reciting that the court had heard the argument of counsel on a motion to stay proceedings and dismiss the cause for want of jurisdiction of the court; and the court being of opinion that the cause was properly before it, and that the judge had jurisdiction of the same, and ordering that the stay of proceedings theretofore granted be terminated, and that the judgment of the court made on the 25th day of June, 1889, be carried into effect. It appears that the order for the delivery of the child to the father was obeyed in the presence of the court, but that, Miller having started from Omaha for his home in Ohio with the child, the petitioner, Burrus, and his wife got into the same train, and crossed the Missouri river on that train, and that when they reached Council Bluffs, in the state of Iowa, on the opposite side of the river, they again made efforts to secure possession of the child. The result of these efforts was that the father proceeded somewhat further into the state of Iowa, while the defendants, taking possession of the child with violence and against the will of the father, returned with it to the state of Nebraska. Thereupon Burrus and his wife were called before the district court by a writ of attachment for contempt in disoby ing the orders of the court, and for this contempt Burrus was committed to imprisonment for three months in a county jail, in the custody of the marshal of Nebraska. It is from this imprisonment that he now seeks to be relieved by the present proceedings in this court; and the foundation of his claim of right to be so relieved is that neither the district court of Nebraska, nor Judge DUNDY, the judge of that court, had any jurisdiction whatever in the original case of habeas corpus before him. That is the only question in the present case, for we have no power under this writ to inquire into mere errors committed by the district court in the progress of that case, and, if we had, we are not satisfied that any such errors exist, save as to the alleged error of the assumption of jurisdiction in the case. Whether such jurisdiction existed is therefore the sole question before us.

The question of the extent of the authority of the courts of the United States to use the writ of habeas corpus as a means of releasing persons held in unlawful custody, has always been clouded with more or less doubt and uncertainty. The constitution, by declaring that 'the privilege of the writ of habeas corpus shall not suspended unless when, in cases of rebellion or invasion, the public safety may require it,' added to the exalted estimate in which that writ has always been held in this country and in England. By the fourteenth section of the act establishing the judicial courts of the United States, it is declared 'that all the before-mentioned 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 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.' 1 St. 81.

It will be seen in this section that, while there may be many writs not specifically provided for in the statute which shall be within the powers of the courts of the United States, the framers of that statute were careful to mention specifically the writs of scire facias and of habeas corpus, and to make some special provisions in regard to the latter. As to the power of the courts to issue any of these writs, it was said that they must be necessary to the exercise of the jurisdiction of the respective courts, and agreeable to the principles and usages of law. In reference to the writ of habeas corpus it is expressly enacted that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant the writ for the purpose of an inquiry into the cause of commitment. This latter clause has been inter preted occasionally as authorizing the issuing of the writ in any case where a person is imprisoned or confined by an order of a court, for the purposes of an inquiry into the cause of commitment. But the proviso, proceeding upon the idea of the first clause, that in order to the issuing of this writ it must be necessary for the exercise of the jurisdiction of the court which issues it, declares that the writ '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.'

This statute, of course, left cases of prisoners in confinement by order of state authorities without the benefit of this writ from the courts or justices or judges of the United States, and the law remained in this condition until the events connected with the nullification proceedings in South Carolina, by which officers of the United States engaged in collecting the revenue and performing other duties in that state were for that reason subjected by the laws of South Carolina to imprisonment. In the recent case of Cunningham v. Neagle, 135 U. S. ——, ante, 658, we have had occasion to review the course of legislation by congress on the subject of the writ of habeascorpus,...