Sec. 3) to judges of the Supreme, Circuit or County Courts" only, a justice of this court has no power to issue the writ. The reason given to sustain this position, is, that at the time the act conferring this power was passed, there were no justices of the Supreme Court; that the Constitution of the State provided for the election of cir- cuit judges, and that by force of the constitution they were to"be judges of the supreme court for five years, and afterwards, until the Legislature should otherwise provide.
It is urged further in support of this position, that the provision in the constitution providing for the organiza- tion of a separate supreme court, after the expiration of five years (if the Legislature should see fit to establish one) and the organization of the present court by virtue of this provision, show, that the justices of the court she'd do no act which can come before the court for review; it being the intention of. the framers of the constitution and of the Legislature which passed the act regulating the manner in which the writ of habeas corpsus is to be issued, that the present court should not sit in review upon any decisions made by one of its members; thus avoiding what was thought to be an evil, while the supreme court was composed of the circuit judges.
We do not think this objection, well taken. The act to provide for the organization of this court, (Sess. Laws, 1852, Chap. 395, Sec. 4,) expressly declares that the Chief Justice and Associate Justices of this court shall be sub- ject to all the duties and liabilities' to which the judges of the former supreme court were subject. Among those duties was that of granting writs of habeas corpus when applied for in a proper case, and we think that we should be guilty of a gross violation of duty were we to refuse them merely because the case might be reviewed before the whole court. The Legislature have a right to impose any duty upon us as a court, or upon the justices. who com- pose the court, which is not incompatible with the consti- tution, and we do not think that the term, separate su- preme court, which is applied to this court, necessarily implies that the justices of the court cannot be empowered by the Legislature to do any act, which may come be- fore the whole court.
The next question is, whether the writ ought to have been issued, it appearing from the petition of the relator, that he was imprisoned by color of legal process issued by a Commissioner of the United States for the district of Wisconsin. It is insisted by the counsel for the plaintiff in error, that in all cases, the general comity of courts which have concurrent jurisdiction, leaves the case to the court whose jurisdiction first attaches, and that such ju- risdiction cannot be taken from the court by subsequent proceedings in any other court of concurrent jurisdiction. It is further insisted, that this rule applies on higher rounds to courts of the distinct jurisdiction of the States, and the U. States, and that the process and proceedings of Commissioners form no exception to this rule, as they are officers of the courts, and recognized as part of the judicial organization of the U. S. We do not see how the Com- missioners can properly be called officers of the courts of the United States. It is true that they are appointed by the judges of those courts, but neither the courts nor the judges are responsible for their acts. On the contrary, their duty and power are prescribed with partlcularity in the acts of Congress. The courta have no power to direct them as to the mode in which the duties imposed upon them by. law shall be performed, and it seems to us to be a great misuse of language to call them officers of the courts.—— Nor do we think that they can, with any propriety, be called judicial officers. The Constitution of the United States (Art. 3, Sec. 1,) provides that "the judicial power of the United States shall he vested in one Supreme court and in such inibrior courts, as the Congress may from time to time ordain and establish. The judges, both of the superior and inferior courts, shall hold their office du- ring good behavior, and shall, at stated times, receive for their services a compensation which shall not be dimin- ished during their continuance in office." in the case of Martin vs. Hunter's Lessee, (1st Wheaton, R 305.) the Supreme court of the United States says, (after quoting this section of the constitution,) "Could congress create or limit any other tenure of the judicial office ? Could they refuse to pay, at stated rimes, the stipulated salary, or diminish it during the continuance in office ? But one answer can be given to these questions; it must be in the negative." And again, in the same case: "Congress can- not vest any portion of the judicial power of the United States, except in the courts ordained and established by itself." We therefore do not see how these Commission- er can be regarded as a part of the judicial organization of the United States. But the position assumed by the counsel for the plaintiff in error, that the court whose ju- risdiction first attaches to a case, will retain it, notwith- standing that proceedings may be subsequently com- menced in other courts of concurrent jurisdiction, is, we think, indisputably correct. It is a imiliar principle, and will be denied by no one. But the question arises, wheth- er the facts stated in the petition of the relator for the writ of habeas corpus show such a case.
It will not be denied, that the citizens of the State nat- urally and properly took to their own State tribunals for relief from nil kinds of illegal restraint and imprisonment. These courts re clothed with power sufficient for their protection, and would be recreant to their duty were they to refuse to exercise it upon all proper occasions. We do not think the principle contended for by the plaintiff in error applies to a case of this nature.
The petitioner stated in his petition for a writ, that he was restrained of his liberty by reason of a pretended warrant, a copy of which is annexed to the petition. By that it appears that Winfield Smith, acting as a commis- sioner of the United States, had, upon an examination of the petitioner for an alleged offence against the laws of the United States, ordered the petitioner to recognize with sufficient sureties in the sum of two thousand dol- lars for his appearance at a term of the District Court to be held at Madison on the first Monday of July then next, and that, in default of the recognizance, the Marshal was commanded to deliver the petitioner to the common jail, &c. The warrant recites that the petitioner had been charged on oath "with having, on the eleventh day of March, eighteen hundred and fifty-four, at the city of Mil- wankee, in the county of Milwaukee, in said county and district, unlawfully aided, assisted and abetted a person named Joshuaa Glover, held to service or labor in the State of Missouri, under the laws thereof, and being the property of one Bonamini S. Garland, and having escaped theeefrom into the State of Wisconsin, to escape from the lawful custody of Charles C. Cotton, a deputy of the Marshal of the United States for the district of Wisconsin, the said Charles C. Cotton having then and there arrested and taken into custody the said Joshua Glover, by virtue of a warrant issued by the judge of the United States for said district, pursuant to the provisions of the act of Con- gress in that case made and provided approved Septem- ber l8th, 1850."
In order to show that the case is within the principle in question, it must appear, that the District Court of the U. States had the case pending before it which was made by the issuing and service of tim writ of habeas corpus; that the question of the legality of the imprisonment of the pe- titioner was then pending before that court, and this, the facts in the case do not show. They merely show the or- dinary case of a person imprisoned under color of legal process for an alleged offense. In such a ease, the inves- tigation of the legality of his imprisonment does not neces- sarily involve an inquiry into the question of the guilt or innocence of the prisoner, nor of his liability to be held to answer for the alleged offense.
Thus, if the imprisonment is by virtue of a warrant is- sued by a State magistrate, any officer in the State, au- thorized to issue the writ of habeas corpus, may examine into the cause of the imprisonment, and may discharge the prisoner, upon his giving bail for his appearance at the proper court, to answer for the offense with which he is charged, if bail has been required by the magistrate, and the officer who issues the writ of habeas corpus, should be of opinion that the offense was bailable. So if the magis- trate has no authority to imprison. So if the warrant of commitment should. set forth no offense, and the com- mmitment should be, for that reason, irregular, unless proof should be offered with the return of the writ, to show that the prisoner Was guilty of an offense. (Revised 'statutes, cha. ] 24, sec. 21.) In these cases and many more which might be put, the question of the legality of the imprison- ment is investigated; without ousting a court of any juris- diction which it has acquired. Nor do we think that the question is changed, by the fact that the officer who is sued the warrant by virtue of which the petitioner was imprisoned, was an officer of the United States. In many cases, the Sate Courts and United States' Courts have concurrent jurisdiction. In some, the jurisdiction of the State courts is exclusive. And in some, that of the United States courts is exclusive. When the jurisdiction is con- current, the court whose jurisdiction first attaches, will retain the case, and the other courts will not interfere, as in no other way can a conflict between the different courts be prevented, and, of course, when a court has exclusive jurisdiction no other court can take jurisdiction.