HABEAS CORPUS ACT OF 1867 14 Stat. 385 (1867)

This act, whose intent one expert has called "unusually murky," fundamentally amended the habeas corpus provisions of the judiciary act of 1789. Where that act limited availability of the writ to those persons jailed under federal authority, the new act applied "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Section 1 vested power to issue the writ in all United States courts and judges, established procedures, and authorized appeals from inferior courts to circuit courts and to the Supreme Court. A writ could issue at any point in state court proceedings, halting them until the federal habeas corpus action ended. The second section made available writsoferror from the Supreme Court in specified instances.

The act gave the Supreme Court jurisdiction over the appeal of a Mississippi editor who challenged the constitutionality of military reconstruction, but in 1868 Congress withdrew the provisions establishing the Supreme Court's appellate jurisdiction, and in ex parte mccardle (1869) the Court declined to hear the editor's case. The Court nevertheless asserted authority on another statutory basis in Ex parte Yerger (1869), and Congress restored the Court's power to hear habeas corpus appeals in 1885.

The federal courts' statutory authority to grant writs of habeas corpus to state prisoners unconstitutionally held in custody continues to this day.

David Gordon
(1986)