founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign State or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof.1

359. From the final decision of such circuit court an appeal may be taken to the Supreme Court in the cases described in the preceding section.

Mar. 3, 1885, v. 23, p. 437.

360. The appeals allowed by the two preceding sections shall be taken on such terms, and under such regulations and orders, as well for the custody and appearance of the person alleged to be in prison or confined or restrained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default thereof, by the court or judge hearing the cause.*

A

maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it was issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence. Ableman v. Booth, 21 How., 506. A State judge has no jurisdiction to issue a writ of habeas corpus for a prisoner in custody of an officer of the United States if the fact of such custody is known to him before issuing the writ; and if such fact appears on the return to the writ, all further proceedings by him are void. And if the United States officer resist the enforcement of the State writ and is imprisoned therefor, he will be discharged by the Federal court. Ex parte Sifford, 5 Am. Law Reg., O. S., 659. military officer of the United States is not bound to produce the body of an enlisted soldier in answer to a writ of habeas corpus issued from a State court or judge. In re Neill, 8 Blatch., 166. The return of a military officer to a writ of habeas corpus need not be on oath. In re Neill, 8 Blatch., 165. The validity of the enlistment of a soldier can not be inquired into by a State court by the issue of a writ of habeas corpus, and an officer of the Army may properly refuse to discharge an enlisted man in his command upon the order of a State court. In re Farrand, 1 Abbot, 140, 147. An officer or agent of the United States engaged in the performance of a duty arising under the laws and authority of the United States, is not liable to a criminal prosecution in the courts of a State for acts done by him in his official capacity. (In re Waite, 81 Fed. Rep., 359.) An officer who, in the performance of what he conceives to be his official duty, transcends his authority and invades private rights, is answerable therefor to the Government under which he acts, and to individuals injured by his action; but where there is no criminal intent he is not liable to answer the criminal process of another Government. In re Lewis, 83 ibid., 159; in re Neagle, 135 U. S., 1. Federal courts have authority in habeas corpus proceedings to inquire into the guilt or innocence of persons committed on preliminary examination by a State tribunal on a criminal charge for acts done in the service of the United States, so far as to determine whether the acts were done wantonly and with a criminal intent. Ibid., 159. When an officer of the United States is sought to be held in a State court for punishment for acts done in the performance of his duty to the United States, it is not a sufficient reason for refusing his release upon habeas corpus that he may raise the question of his immunity in the State court, and carry the matter by writ of error to the United States Supreme Court, if necessary, since the operations of the Federal Government would, in the meantime, be obstructed by the confinement of its officer. In re Waite, 81 Fed. Rep., 359.

Ex parte McCardle, 6 Wallace, 318; ibid., 7 Wallace, 506; ex parte Yerger, 8, ibid., 85.

2 For the appellate jurisdiction of the circuit court of appeals in habeas corpus cases, see section 6 of the act of March 3, 1891. (26 Stat. L., 826).

Pending

proceedings in cer

by State author

ity void.

Aug. 29, 1842, c. 257, v. 5, p. 539;

Mar. 3, 1893, v. 27,

p. 551.

361. Pending the proceedings or appeal in the cases tain cases, action mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, Feb. 5, 1867, 28, any proceeding against the person so imprisoned or cons. 1, v. 14, p. 385; fined or restrained of his liberty, in any State court, or by or under the authority of any State, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void. That no appeal shall be had or allowed after six months from the date of the judgment or order complained of. Act of March 3, 1893 (27 Stat. L.,751).

Sec. 766, R. S.

1

SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS.

1

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.*

The privilege of the writ must here mean the right to the writ. Paschal, 141. The power to issue the writ is not the privilege; to ask for it is. Ibid.

It would seem, as the power is given to Congress to suspend the privilege of the writ in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body. Martin v. Mott, 12 Wheat., 19; Ex parte Milligan, 4 Wall., 2; VIII Opin. Att. Gen., 365. The privilege of the writ was suspended by the act of March 12, 1863 (12 Stat. L., 755), which contained the following requirement: "During the present rebellion the President of the United States whenever, in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus, in any case, throughout the United States or any part thereof." Ex parte Milligan, 4 Wall., 2, 115–116; Vallandigham's trial, 259. On September 15, 1863, the President, by proclamation, suspended the privilege of the writ during the rebellion, throughout the United States, in all cases "when, by the authority of the President of the United States, the military, naval, and civil officers of the United States, or any of them, held persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen, enrolled, drafted, or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the Rules and Articles of War, or the rules or regulations prescribed for the military or naval service by authority of the President of the United States, or for resisting a draft, or for any other offense against the military or naval service." See, also, United States v. Hamilton, 3 Dall., 17; Hepburn et al. v. Ellzey, 2 Cr., 445; Ex parte Bollman and Swartwout, 4 Cr., 75; Ex parte Kearney, 7 Wh., 38; Ex parte Tobias Watkins, 3 Pet., 192; Ex parte Milburn, 9 Pet., 704; Holmes v. Jennison et al., 14 Pet., 540; Ex parte Dorr, 3 How., 103; Luther . Borden, 7 How., 1; Ableman v. Booth and United States v. Booth, 21 How., 506; Ex parte Vallandigham, 1 Wall., 243; Ex parte Milligan, 4 Wall., 2; Ex parte McCardle, 7 Wall., 506: Ex parte Yerger, 8 Wall., 85; Tarble's case, 13 Wall., 397; Ex parte Lange, 18 Wall., 163; Ex parte Parks, 93 U. S., 18; Ex parte Karstendick, 93 Ū. S., 396.

362. The Court of Claims shall have jurisdiction to hear Jurisdiction. and determine the following matters:

Claims founded on statutes or contracts, or re

First. All claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon ferred by Con

3

gress.

The Court of Claims was established by the acts of February 24, 1855 (10 Stat. L., 612); March 3, 1863 (12 Stat. L., 765), and May 8, 1872 (17 Stat. L., 85). This court was created with a view to give legal redress to the citizen as against the Government where he would have had legal redress as against another citizen. It is a curious fact, not generally known, that the example of Prussia and the German States in guarding the private rights of persons by subjecting the Government, in matters of account, to the judicial power of ordinary courts of justice, led to the establishment of the Court of Claims. Brown v. U. S., 5 Ct. Cls., 571, 577. The provisions of the act of March 3, 1863, authorizing the Court of Claims to hear and determine, without a jury, claims against Government with set-offs, is not unconstitutional. McElrath v. U. S., 102 U. S., 426.

A claimant presenting a claim founded upon a law of Congress has a legal right, under section 1059, Revised Statutes, to a definitive adjudication; and the power of the court to afford that can not be considered as interfered with by anything short of a lodgment of the power of definitive adjudication in some other tribunal or officer. Thomas v. U. S., 16 Ct. Cls., 522. The rejection of a claim by the accounting officers leaves the party to pursue his remedy at law, viz, an action in this court, though he may have accepted the portion allowed. Longwill v. U. S., 17 Ct. Cls., 288; U. S. v. Kauffman, 96 U. S., 567.

3

Regulations of an Executive Department are rules relating to the subjects on which a Department acts and are made by its head under an act of Congress con

c.

3

Feb. 24, 1855, C. any contract, expressed or implied, with the Government

p.

612; June 22, 1874, of the United States, and all claims which may be referred

c. 393, s. 2, v. 18, p.

192; Mar. 3, 1875, to it by either House of Congress.

c. 149, v. 18, p. 481.

A mere

*

*

*

ferring that power and thereby giving such regulations the force of law. order of the President or of a Secretary is not a regulation. Harvey v. U. S., 3 Ct. Cls., 38. By the term "any regulation" is doubtless intended any regulation within the lawful discretion of the head of an Executive Department. When Congress permits regulations to be formulated and published and carried into effect year after year, the legislative ratification must be implied. Maddox ". U. S., 20 Ct. Cls., 193, 198.

3 The jurisdiction of the Court of Claims is confined to suits arising from contracts express or implied. Langford v. U. S., 101 U. S., 341. The United States can not be sued in the Court of Claims on equitable considerations merely. Bonner v. U. S., 9 Wall., 156. The language of the statutes which confer jurisdiction on the Court of Claims excludes, by the strongest implication, demands against the Government founded on torts. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. Gibbons v. U. S., 8 Wall., 269, 275; Reed v. U. S., 11 Wall., 591; Langford v. U. S., 101 U. S., 341. See, also, paragraphs 339–353, post.

CONTRACTS.

The Court of Claims, in the construction and enforcement of contracts, is bound to apply the principles which govern like contracts between individuals. U. S.. Smoot, 15 Wall., 36; Curtis v. U. S., 2 Ct. Cls., 144; Brooke v. U. S., ibid., 180. All questions of salary are questions of contract, and whether the salary is fixed by law, or by order of a Department under authority of law, the Government contracts to pay the officer his salary, and, failing to do so, a suit therefor may be maintained in this court, whether the case arises under a revenue act or any other. Patton v. U. S., 7 Ct. Cls., 362. The United States can no more discharge its contracts by such performance than can an individual person do so. Congress may fail to appropriate, in whole or in part, the money required for payment of a public creditor, and thus leave the public officer without authority to draw money from the Treasury for that purpose, but the indebtedness and liability remain in force. Mitchell v. U. S., 18 Ct. Cls., 281, 287; Graham v. U. S., 1 ibid., 380; Collins v. U. S., 15 ibid., 22; French v. U. S., 16 ibid., 419. An officer who has been wholly retired from the service, but in whose case the order of retirement has been revoked by the President, who directs his name to be placed on the retired list, is an officer de facto, and though illegally on such retired list, money paid him by way of salary, so long as he holds the office in good faith, can not be recovered back. When one claiming to be an officer renders no service and holds no official relations with the Government, money paid him for service may be recovered back. Miller v. U. S., 19 Ct. Cls., 338. In an action in the Court of Claims to recover a balance claimed to be due on pay account, the United States can set up, as a counter claim, an alleged overpayment to him on account of pay, and can have judgment for its collection. U. S. v. Burchard, 125 U. S., 176; McElrath v. U. S., 102 U. S., 426.

An officer can only bind the Government by acts which come within a just exercise of his official power. Hunter v. U. S., 5 Pet., 173, 178; The Floyd Acceptances, 7 Wall., 666; Whiteside v. U. S., 93 U. S., 247. Unless the Government has ratified a contract of an officer in excess of his authority, or received the benefit of it, it is not liable. The ratification of some of a series of unauthorized acts is not to be construed to be an approval of any not specified. Pitcher v. U. S., 1 Ct. Cls., 7; De Celis v. U.S., 13 Ct. Cls., 117.

IMPLIED CONTRACTS.

To constitute an implied contract "there must have been some consideration moving to the United States; or they must have received the money, charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake. Knote v. U.S., 95 U. S., 149, 156. A contract to reimburse is implied when the Government takes private property for public use. Such a taking of private property by the Government when the emergency of the public service in time of war, or impending public danger, is too urgent to admit of delay, is everywhere regarded as justified, if the necessity for the use of the property is imperative and immediate and the danger, as heretofore described,

Set-offs and

Second. All set-offs,' counterclaims, claims for damages, counterclaims of whether liquidated or unliquidated, or other demands what- United States. soever, on the part of the Government of the United States Mar. 3, 1863, c. against any person making claim against the Government 765. in said court.

92, s. 3, v. 12, p.

Sec. 1059, R.S.

Disbursing

14, p. 44.

Third. The claim of any paymaster, quartermaster, com- officers. missary of subsistence, or other disbursing officer of the, May 9, 1866, v. United States, or of his administrators or executors, for relief from responsibility on account of capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible."

is impending; and it is equally clear that the taking of such property, under such circumstances, creates an obligation on the part of the Government to reimburse the owner to the full value of the service. Private rights, under such extreme and imperious circumstances, must give way, for the time, to the public good, but the Government must make full restitution for the sacrifice. U. S. v. Russell, 13 Wall., 623, 629. Beneficial volunteer service does not raise an implied contract, unless there has been an inducement, agreement, or ratification. Boston v. The District of Columbia, 19 Ct. Cls., 31. The court has jurisdiction of a suit by a patentee for the royalty agreed to be paid for the use of his invention by an authorized officer of the Government. Burns v. U. S., 12 Wall., 246.

A contract is implied from the fact that the Government manufactured a patented military device, without market value, on the solicitation of the patentee, that it should pay for the right to use the invention. Palmer v. U. S., 128 U.S., 262. The United States may be sued for use of a patented invention by its officers for its benefit if the right of the patentee is acknowledged. Hollister v. Benedict Manufacturing Co., 113 U. S., 59; U. S. v. Burns, 12 Wall., 246. When an officer of the Government is properly assigned to the work of devising something to be used in the public service, the Government meeting the expenses and paying the officer his usual salary, the Government is not liable for royalty on the invention, though it was made by the officer previous to the time he was assigned to the work, if the labor and expense of perfecting it was borne by the Government. Solomons v. U. S., 22 Ct. Cls., 335; 21 ibid., 479. The policy of the War Department of late years toward inventors has been one of neutrality, neither denying nor admitting legal rights, but taking inventions to perfect the Government arms, leaving inventors free to seek redress without prejudice before other tribunals than an Executive Department. Berdan v. U. S., 26 Ct. Cls., 48, 60. See, also, Clyde v. U. S., 13 Wall., 38; U. S. v. Russell, 13 Wall., 623; U. S. v. Bostwick, 94 U. S., 53; Fichera's case, 9 Ct. Cls., 254; Macauley's case, 11 Ct. Cls., 693; Clark's case, 11 Ct. Cls., 698; Roman et al. v. Ú. S., 11 Čt. Cls., 761; Campbell's case, 13 Ct. Cls., 470.

'The right of set-off did not exist at common law, and is everywhere founded upon statutory regulation. Tillou v. U. S., 1 Ct. Cls., 454; 2 ibid., 588, and U. S. v. Eckford, 6 Wall., 484. State laws in such a case do not constitute the rule of decision, but the question arises, exclusively, under the act of Congress; and no local law nor usage can have any influence in its determination. Ibid.; Reeside v. Walker, 11 How., 272, 290.

2 Under this provision relief has been afforded to a paymaster who was attacked and robbed by highwaymen. Broadhead . U. S., 19 Ct. Cls., 125. To a disbursing officer for loss by the failure of a national bank, which was a designated depository. Hobbs v. U. S., 17 ibid., 189. To a disbursing officer for money stolen from a safe. Scott v. U. S., 18 ibid., 1; Clark v. U. S., 11 ibid., 698; Howell v. U. S., 7 ibid., 512. To a quartermaster for money lost from his person, the money being carried in the way such officers usually carry it on similar occasions, under circumstances utterly free from suspicion and after diligent efforts had been made to recover the same. Whittlesey v. U. S., 5 ibid., 452. To a quartermaster for money stolen from his room, due precaution for its safety having been taken. Malone v. U.S., 5 ibid., 486; Norton v. U. S., 2 ibid., 523. To a paymaster for money contained in a treasure box stolen by soldiers at a garrison. Glenn v. U. S., 4 ibid., 501. To an engineer officer for money captured by the enemy. Prince v. U. S., 3 ibid., 209. To a paymaster for funds and vouchers captured by the enemy. Ruggles v. U. S., 2 ibid., 520; Moore v. U. S., ibid.,