note) the sum of $2,199.35 in cash, making the amount reserved out of the note when it was made $40.65. That there had been paid cash discounts upon the several renewals of the notes which constituted the $2,240 note sued upon, down to October 24, 1894, exclusive of the amounts reserved out of the notes at the time they were originally given, the sum of $566.70, which cash discounts were paid in advance at the dates of the several renewals. That the whole amount of discounts and interest paid, as well as those deducted by the bank, upon all said loans from the beginning to the end down to and including the note sued on, was $947.50. That these payments were made in excess of the legal rate for said loans. Upon this report the court entered judgment in favor of the plaintiff for $2,199.35 (or, apparently, by mistake $2,199), that being the face of the note sued on after deducting the discount of $40.65, reserved when the note was executed. Upon appeal to the supreme court this judgment was affirmed (155 Mo. 58, 55 S. W. 1015), and defendants sued out this writ of error. Messrs. James Baker and Seward A. Haseltine submitted the cause, and Mr. James Baker filed a brief for plaintiffs in er ror: Appellants were entitled to have the usurious interest paid applied upon the note of respondent. Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390; Monitcau Nat. Bank v. Miller, 73 Mo. 187; First Nat. Bank v. Turner, 3 Kan. App. 352, 42 Pac. 936; Guthrie v. Reid, 107 Pa. 251; National Bank v. Lewis, 75 N. Y. 516, 31 Am. Rep. 484; National Bank v. Davis, 6 Cent. L. J. 106: Sydner v. Mt. Sterling Nat. Bank, 94 Ky. 231, 21 S. W. 1050. Mr. John Ridout submitted the cause for defendant in error: By U. S. Rev. Stat. § 5198, a new right and new remedy were created, and the remedy provided by that section is exclusive of any other. Barnet v. Muncie Nat. Bank, 98 U. S. 558, 25 L. ed. 213; Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658; Stephens v. Monongahcla Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336; Carter v. Carusi, 112 U. S. 478, 28 L. ed. 820, 5 Sup. Ct. Rep. 281. The decisions of this court construing the sections of the national bank act must prevail over decisions of the state courts. Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 33, 23 L. ed. 198. [134] *Mr. Justice Brown delivered the opin ion of the court: The only question involved in this case is whether, in an action upon a note given to a national bank, the maker may set off usurious interest paid in cash upon renewals of such note, and of all others of which it was a consolidation. In this case, defendants sought to show that they had paid to the plaintiff bank within two years prior to the execution of this note, upon other notes of which this was a consolidation, and also upon this note, usurious interest aggregating $580, which they asked to have deducted from the principal sum of $2,240, represented by this note, thereby reducing the plaintiff's claim to $1,660. We understand it to be conceded that, as the note in question was given to a national bank, the definition of usury and the penalties affixed thereto must be determined by the national banking act, and not by the law of the state. Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. ed. 196. In that case it was held that a law of New York forfeiting the entire debt for usury was superseded by the national banking law, and that such law was only to be regarded in determining the penalty for usury. That part of the original national banking act which deals with the subject of usury and interest is now embraced in §§ 5197 and 5198 of the Revised Statutes, the first one of which authorizes national banks to charge interest "at the rate allowed by the laws of the state," and, when no rate is fixed by such laws, a maximum rate of 7 per cent. The next section is as follows: "5198. The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover *back in an action, in the nature of an action [135] of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred." Two separate and distinct classes of cases are contemplated by this section; first, those wherein usurious interest has been taken, received, reserved, or charged, in which case there shall be "a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon;" second, in case usurious interest has been paid, the person paying it may recover back twice the amount of the interest "thus paid from the association taking or receiving the same." While the first class refers to interest taken and received, as well as that reserved or charged, the latter part of the clause apparently limits the forfeiture to such interest as the evidence of debt carries with it, or which has been agreed to be paid, in contradistinction to interest actually paid, which is covered by the second clause of the section. Carrying ng this perfectly obvious distinction in mind, the cases in this court are entirely harmonious. That of Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390, arose under the first clause. The facts are not stated in the report of the case, but referring to the original record, it appears that plaintiff sued the bank to recover twice : the amount of certain usurious interest paid | suit by a bank upon a note, upon several re to it. Another action was consolidated with In the opinion a distinction is drawn between usurious interest carried with the evidence of debt or which has been agreed to be paid, and interest which has actually been paid, and it was said that interest included in a renewal note, or evidenced by a separate note, does not thereby cease to be interest within the meaning of § 5198, and become principal; and that, in a suit by a national bank upon the note, the debtor may insist that the entire interest, legal and usurious, [136]included in his *written obligation itten obligation and agreed to be paid, but which has not been actually paid, shall be either credited on the note or eliminated from it, and judgment given only for the original principal debt, with interest at the legal rate from the commencement of the suit; and that the forfeiture declared by the statute is not waived or avoided by giving a separate note for the interest, or by giving a renewal note in which is included the usurious interest. It was further held that interest included in a renewal note is not interest paid, since, if it were so, the borrower could, under the second clause of the section, sue the lender and recover back twice the amount of the interest thus paid, when he had not, in fact, paid the debt nor any part of the interest as such. The words, "in case the greater rate of interest has been paid," in § 5198, refer to interest actually paid, as distinguished from interest included in the note and "agreed to be paid." newals of *which usurious interest had been [13' In Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336,-a similar case of interest actually paid, -the averments of the defense were made under the first clause of the section; that "the bank knowingly took, received, and charged" usurious interest, but as it elsewhere appeared that the interest stipulated had not been included in the note, but that interest had been actually paid at the time of the discount and renewals, which it was sought to apply to the discharge of the principal, the defense was held insufficient. The construction of both clauses of this section having been thus settled by this court, it only remains to determine to which class of cases the one under consideration properly belongs. As to this there can be no room for doubt. The referee finds that there was paid cash discounts on the several renewals of the notes which constitute the $2,240 note, as well as the renewal of said note as executed, down to October 24, 1894, exclusive of the amounts reserved out of the notes at the time they were originally given, the sum of $566.70, which cash discounts were paid in advance at the date of the several renewals. He further found that the "defendants in their answer are only asking credit for the payments down to and including October 29, 1894, which aggregate the sum of $540.40." Under the rulings last above cited the person making these cash payments can only recover them back by a direct action against the association taking or receiving the same. The supreme court of Missouri was correct in holding that the defendants could not be allowed set-off or credit for the usurious interest thus paid, the remedy provided by the statute being exclusive, and its judgment is therefore affirmed. *LUIGI STORTI, Appt., v. The cases under the second clause of the section are more numerous. Barnet v. Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. 212, was an action by a national bank upon a bill of exchange. Defendants set up that the acceptors had been constant borrowers from the bank for several years, and that it had taken from them a large amount of usurious interest; that the bill in suit was the last of eight renewals, and that illegal interest had been taken upon the series to the amount of $1,116, which it was insisted should be applied as a payment upon the bill in question. It was also insisted that illegal interest had been taken upon other bills of exchange to the amount of $6,363.24, and that the defendants were entitled to recover double this amount from the bank. It was held that the state statutes upon the subject of usury should be laid out of view, and that where a statute created a new right or offense and provided a specific remedy or punishment, that remedy alone could apply; that the payment of usurious interest being distinctly averred, it could not be recovered by way of offset or payment of the bill in suit, and that the same rule applied to the 2. Questions depending upon state law-such payment of interest upon other bills of ex- The case of Driesbach v. Second Nat. COMMONWEALTH OF MASSACHUSETTS and Benjamin E. Bridges, Warden of the State Prison at Boston, Massachusetts. (See S. C. Reporter's ed. 138-144.) Habeas corpus-in Federal court-appeal. 1. A writ of habeas corpus will seldom be up held as a writ of error to review in a Federal court the proceedings in a criminal case in the state court. as the lawfulness of a respite granted by the NOTE. On the jurisdiction of the United States courts on habeas corpus-see Re Reinitz (C. C. S. D. N. Y.) 4 L. R. A. 236, and note. See also notes to State es rel. Cochran v. Win [13 governor to a person under sentence of death, file a motion for a new trial is claimed to con- 3. The power of the Supreme Court on an ap- 3, 1891, § 5, but extends, under U. S. Rev. [No. 378.] that for the same reason the detention was contrary to the 3d article of the treaty between the United States of America and His Majesty the King of Italy (17 Stat. at L. 845), and contrary to § 2 of article 6 of the Constitution of the United States; third, that by § 28 of chapter 214 of the Public Statutes of Massachusetts the court in which the trial of an indictment is had may at the term of the trial, or within one year thereafter, grant a new trial; that therefore execution could not lawfully be done upon him until the expiration of a year from the term at which he was convicted, to wit, in this case before July 1, 1901, and that the execution of the sentence before that date Argued November 19, 20, 1901. Decided De- would deprive him of his life without due cember 2, 1901. PPEAL from a dismissal of A a petition in habeas corpus by the Circuit Court of the United States for the District of Massachusetts. Affirmed. See same case below, 109 Fed. 807. Statement by Mr. Justice Brewer: [138] *On May 23, 1901, the appellant filed in the circuit court of the United States for the district of Massachusetts his petition in habeas corpus. In that petition he stated that he was a citizen of Italy, and a subject of its King; that he was detained by by the respondent under a warrant issued by by the superior court of Suffolk county, reciting a conviction of murder, and directing the warden to inflict death by passing a current of electricity through him; that the time fixed for the execution of the sentence was on the week beginning April 7, 1901; that on April 9, 1901, the governor, with the advice of the council, issued a document purporting to respite the execution of sentence, the respite to expire on Saturday, May 11, 1901; that on May 10, 1901, he presented a petition for a writ of habeas corpus to the said circuit court, which petition was denied on May 11, [139]1901; that from such denial he forthwith claimed and was allowed an appeal to the Supreme Court of the United States, and that such appeal was there pending and undetermined. The petition further stated that on May 10 he filed in the superior court for the county of Suffolk a motion for a new trial, in accordance with the provisions of the Massachusetts statutes, which motion was still pending and undetermined. Upon these facts he asserted, first, that no law of Massachusetts provided for the punishment of a person sentenced to death, where the week appointed by the court for the execution had elapsed without execution and without any lawful action by the governor in the way of pardon, commutation, or respite, and therefore that the detention by the warden was contrary to the provisions of the 1st section of the 14th Amendment of the Federal Constitution; second, process of law, and would deny to him the imposed upon the natives. They shall, proper, in all their trials at law; and such tences of the tribunals in all cases which may concern them, and likewise at the taking of all examinations and evidences which may be exhibited in the said trials;" sixth, that the motion for a new trial which he had filed on May 10 not having been determined, execution could not lawfully be done upon him until the decision of that motion, notwithstanding which he had reason to apprehend that the respondent intended to immediately, upon the determination of the appeal to the Supreme Court of the United States, cause execution to be done upon him, which execution would deprive him of his rights under the 14th Amendment and article 23 of the treaty; seventh, that the respondent derives his authority to hold the petitioner in custody solely by virtue of the provisions of chapter 326 of the Massachusetts Statutes of 1898, and that by them no authority was given to him to retain the custody of the petitioner after the expiration of the week appointed by the court for the execution of the sentence, except through ters (Kan.) 10 L. R. A. 616; Re Huse, 25 C. C. A. 4, and Tinsley v. Anderson, 43 L. ed. U. S. 91. On the province and office of the writ of habeas corpus--see Bion's Appeal (Conn.) 11 L. R. A. 694, and note. And see notes to Ex parte the lawful action of the governor in grant-tion or of a law or treaty of the United chap. 517, 26 Stat. at L. 826) are perhaps | 405, 9 Sup. Ct. Rep. 77; Re Burrus, 136 U. even more apposite. ing a respite, that no lawful action had been taken by the governor in the matter, and that therefore the petitioner was deprived of his liberty contrary to the 14th Amendment; and, eighth, that for the same reason he was deprived of his liberty contrary to the 14th Amendment and the 3d article of the treaty between the United States and Italy. The 3d article of the treaty between the United States and Italy, referred to in this petition, is as follows: "The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect [141]the same rights and privileges *as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives." On the presentation of this petition to the circuit court, that court dismissed the same for want of jurisdiction, without prejudice to an application to the courts of the state. Re Storti, 109 Fed. 807. A certificate of this fact was signed by the circuit judge, and from the order dismissing the petition an appeal was taken to this court. Messrs. G. Philip Wardner and William M. Stockbridge argued the cause and filed a brief for appellant: The sole question for determination is whether the circuit court had jurisdiction to entertain the petition. Horner v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522; Chappell ▼. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40; Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526; Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Rep. 570. The question of jurisdiction is entirely distinct from a determination of the cause upon its merits. Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 168. The earliest statute conferring habeas corpus jurisdiction is the 14th section of the judiciary act of 1789 (1 Stat. at L. 81, chap. 20). This gave the Federal courts jurisdiction "in all cases to which the judicial power of the United States extends, other than those expressly excepted from it." Ex parte Yerger, S Wall. 85, 19 L. ed. 332. Under this statute the court, though entertaining a doubt "in favor of liberty, was willing to grant the habeas corpus." Ex parte Burford, 3 Cranch, 448, 2 L. ed. States. Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734; Re Neagle, 135 U. S. 1, sub nom. Cunningham v. Neagle, 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Re Burrus, 136 C. S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850. None of the statutes passed since the adoption of the Revised Statutes relating specifically to the jurisdiction of the circuit courts, and involving money values as a condition of such jurisdiction, has taken from said courts their jurisdiction to issue writs of habeas corpus under § 753, in the case of a prisoner in jail, where he is in custody in violation of the Constitution or a law or treaty of the United States. United States v. Mooney, 116 U. S. 104, 29 L. ed. 550, 6 Sup. Ct. Rep. 304; Re Hohorst, 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; King v. McLean Asylum of Mass. General Hospital, 26 L. R. A. 784, 12 С. С. А. 145, 21 U. S. App. 481, 64 Fed. 331. This court has repeatedly sustained its jurisdiction of an appeal from, or a writ of error to, the highest court of a state, under U. S. Rev. Stat. § 709, when that question has been raised by motion to dismiss or otherwise, and has nevertheless affirmed the decision of the state court, showing conclusively the distinction between the question of jurisdiction and the determination of the cause upon its merits. Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681. See also Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Lehigh Water Co. v. Easton, 121 U. S. 388, 30 L. ed. 1059, 7 Sup. Ct. Rep. 916; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Robu v. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 483. The principles governing cases arising under § 709 do not necessarily turn on its specific language. Moreover, while the language of § 709 is broad enough to cover any case, however flimsy, nevertheless this court has held that it had no jurisdiction under that section if the claim was fraudulent or frivolous. Millingar v. Hartupee, 6 Wall. 258, 18 L. cd. 829: New Orleans v. New Orleans Waterworks Co. 142 U. S. 79. 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353. It would seem no more difficult to read into § 753 the qualification that the court would have jurisdiction of any petition for habeas corpus by a prisoner in jail, where it was drawn in question, or claimed that his custody was in violation of the Constitution or of a law or treaty of the United States, there being, of course, the same qualification as to fraudulent or frivolous claims. The decisions of this court under § 5 of the court of appeals act (act March 3, 1891, Cornell v. Green, 163 U. S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969. See also Tennessee v. Union & P. Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Ansbro v. United States. 159 U. S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187; Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626, 18 Sup. Ct. Rep. 223. A similar doctrine has been laid down in determining whether circuit courts have jurisdiction of suits originally brought therein or removed thereto from state courts, on the ground that the proceedings were suits of a civil nature, at law or in equity, and "arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." Tennessce. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653. See also Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Cooke v. Avery, 147 U. S. 384, 37 L. ed. 212, 13 Sup. Ct. Rep. 340; Hanford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051. Whether there is a claim which presents a Federal question, and whether that claim is well founded when considered on its merits, are distinct and different questions. The one goes to jurisdiction, and the other to the merits of the case. See also Re Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123. Unless the appellant's contention is correct the circuit court would never have jurisdiction of a petition for habeas corpus, under that part of § 753 now under consideration, where at any stage of the case it should be of opinion that the petitioner was not in custody in violation of the Constitution or of a law or treaty of the United States, and a decision adverse to the petitioner would always be equivalent to a decision that the court had no jurisdiction; and no costs would in such case be taxable against the petitioner. Nashville v. Cooper, 6 Wall. 247, 18 L. ed. 851. Under the practice prior to the act of February 5, 1867, the function of the application or petition was not to determine whether, upon the facts alleged, the petitioner should be discharged from custody, but whether the facts alleged showed sufficient probable cause for such discharge. Sims's Case, 7 Cush. 285. Even if the justice in the lower court was satisfied that the facts alleged in the petition would not justify the issuing of the writ, he might, in his discretion, have ordered the writ to issue, and have disposed of the case after a return had been made to the writ, and after a full inquiry into the cause of commitment or detention. Ex parte Terry, 128 U. S. 289, 32 L. ed. S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850. The operation of the 14th Amendment is not confined to the cases where the legislature has not done its duty, but covers cases where a person is in danger of being deprived of his life or liberty or property through the unlawful action of the instrumentalities of the state, either legislative, executive, or judicial, or by any person acting by virtue of public position under a state government, and enabled by reason of his position so to act. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; United States v. Ryan, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Smoot v. Kentucky C. R. Co. 13 Fed. 337; Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 168; Ex parte Ulrich, 42 Fed. 587; Re Kelley, 46 Fed. 653; Re Friedrich, 51 Fed. 747. Mr. Hosea M. Knowlton argued the cause, and, with Mr. Arthur W. De Goosh, filed a brief for appellees: No Federal question can arise upon the legality of the first respite granted to the prisoner. Lambert v. Barrett, 157 U. S. 697, 39 L. ed. 865, 15 Sup. Ct. Rep. 722. There is no allegation that the statute of 1898, chap. 326, is unconstitutional, or that the courts of Massachusetts have failed to protect the rights of the petitioner whenever they have been properly asserted. In that respect the petition is insufficient, and no question of constitutional law is presented. Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297. The 14th Amendment does not confer upon the Federal courts jurisdiction to correct erroneous or wilfully improper acts of state officers or state courts in violation or disregard of law. United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Virginia v. Rives, 100 U. S. 313, sub nom. Ex parte Virginia, 25 L. ed. 667; United States v. Harris, 106 U. S. 629, 27 L. ed. 290, 1 Sup. Ct. Rep. 601; Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617; Arrowsmith v. Harmoning, 118 U. S. 194, 30 L. ed. 243, 6 Sup. up. Ct. Rep. 1023. The general allegation that the petitioner is held in violation of this section of the treaty is insufficient to confer jurisdiction. Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297. *Mr. Justice Brewer delivered the opin-[141] ion of the court: The grounds set forth in this petition for a discharge by the Federal court of the petitioner from the custody of the warden are wholly without foundation, and the case is another of the numerous instances in which, as said by Mr. Chief Justice Fuller, in Craemer v. Washington, 168 U. S. 124, 128, |