11225] will Chief Justice. The case was this: the testator | the Seaman's Friend Society. Chief Justice The It is unnecessary to extend this opinion by other extracts from the adjudged cases. quotations we have made are from masters of the law. The following additional authorities will be found to sustain the proposition we have stated: Cheyney's Case, 5 Rep. 68; Doe v. Oxenden, 3 Taunt. 147; Smith v. Maitland, 1 Ves. Jr. 363; Chambers v. Minchin, 4 Ves. 675 and note; Doe v. Westlake, 4 B. & Ald. 57; Newburgh v. Newburgh, 5 Madd. 364; Clementson v. Gandy, 1 Keen, 309; Brown v. Saltonstall, 3 [227] Met. 423, 426; Mann v. Exrs. of Mann, 1 Johns. Ch. 231; Yates v. Cole, 1 Jones, Eq. (Ń. C.) 110; Walston's Lessee v. White, 5 Md. 297; Cesar v. Chew, 7 Gill & J. 127; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Kurtz v. Hibner, 55 Ill. 514. Our conclusion is, therefore, that, as the evidence offered and rejected was for the purpose of explaining a latent ambiguity when there was no ambiguity, either latent or patent, it was properly rejected. In Jackson v. Sill, 11 Johns. 201, which was an action of ejectment, the defendant claimed under the following devise to the testator's wife: "I also give to my said beloved wife the farm which I now occupy, together with the whole crops," etc. In a subsequent part of his will the testator mentioned said premises as his lands. It turned out that the premises in controversy The opinion of the court in this case allow were, at the time the will was made and at the what seems to us to be an unambiguous devise death of the testator, in the possession of one to be amended by striking out a sufficient deSalisbury under a lease for seven years. The scription of the premises devised, and the blank plaintiff offered testimony to show that the tes- thus made to be filled by ingenious conjectures tator intended to devise the premises as a part based on extrinsic evidence. This is in the face of the farm which he occupied himself and of of the Statute of Frauds in force in the District which he died possessed. Chief Justice Thomp- of Columbia, where the premises in controverson, afterwards a justice of this court, in deliv-sy are situate. Fifty years after the unequivoering judgment, said: "I think it unnecessary cal devise in question, as written and executed to notice particularly the evidence offered, for by the testator, had, as required by law, been it is obvious that if it was competent, especially placed upon the records of the District for the [226] that of Mr. Van Vechten, it would have shown information of subsequent purchasers and inthat the premises were intended by the testator cumbrancers, it is allowed to be erased, and, by to be devised to the defendant, Sill. The will argument and inference, a new one substituted was drawn, however, by Mr. Van Vechten, un-in its place. This is not construing the will of der a misapprehension of facts, and under a be- the testator; it is making a will for him. lief that the testator was in the actual possession of the premises. It is, therefore, a clear case of mistake, as I apprehend; and under this belief I have industriously searched for some principle that would bear me out in letting in the evidence offered; but I have searched in vain and am satisfied the testimony cannot be admitted in a court of law without violating the wise and salutary provisions of the Statute of Wills, and breaking down what have been considered the great landmarks of the law on this subject." In Tucker v. Seaman's Aid Society, 7 Met. 188, the testator gave a legacy to the "Seaman's Aid Society in the City of Boston," which was the correct name of the society. The legacy was claimed, however, by another society called I The decision of the court subjects the title of real estate to all the chances, the uncertainty, and the fraud attending the admission of parol testimony, in order to give effect to what the court thinks was the intention of the testator, but which he failed to express in the manner required by law. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. 1 [241] [242] Ex Parte current money, a genuine past due coupon, cut WILLIAM ROYALL (No. 1), Appt. and from one of said bonds in petitioner's presence, Ex Parte Plff. in Err. and which he received froin the owner, with instructions to sell it in that city for the best mar ket price; that said coupon bears upon its face the contract of Virginia that it should be re ceived in payment of all taxes, debts and de WILLIAM ROYALL (No. 2.), Appt. and mands due that Commonwealth; that he acted Piff. in Err. (See 8. C. Reporter's ed. 241-254.) Habeas corpus-jurisdiction of circuit courts in said matter without compensation; and con sequently, the transaction was a sale of the coupon by its owner. The petition proceeds: "That on the second day of June, 1884, the grand jury of the City of Richmond, Virginia, found an indictment against your petitioner for selling said coupon without a license. That 1. The circuit court has jurisdiction on habeas the before mentioned coupon is the only one corpus to discharge from custody one who is re- that your petitioner has sold. That your peti strained of his liberty in violation of the constitution, but who at the time is held under state pro- tioner was thereupon arrested and committed cess for trial, on an indictment charging him with to the custody of N. M. Lee, Sergeant of the an offense against the laws of the State. 2. Where a person is in custody, under process City of Richmond, to be tried on said indictfrom a state court of original jurisdiction, for an ment, and that he will be prosecuted and tried alleged offense against the laws of such State, and on said indictment for selling said coupon withit is claimed that he is restrained of his liberty in out a license, under the provisions of section 65 violation of the Constitution of the United States, the circuit court has a discretion whether it will of the Act of March 15, 1884, relating to licenses discharge him, upon habeas corpus, in advance of generally, and the general provisions of the state his trial in the state court; that discretion, how-law in respect to doing business without a liever, to be subordinated to any special circumstances requiring immediate action. 3. It seems that after the conviction of the accused in the state court, the circuit court still has a discretion whether he shall be put to his writ of error, or whether it will proceed on writ of habeas corpus summarily to determine whether he is restrained of his liberty in violation of the Constitu tion. [Nos. 974, 975.] On the 29th day of May, 1885, William L. Royall filed two petitions in the Circuit Court of the United States for the Eastern District of Virginia, each verified by oath and addressed to the judges of that court. cense. That your petitioner had no license under the laws of Virginia to sell coupons. That the Act of the General Assembly, under which your petitioner was arrested and is being prosecuted, requires any person who sells one or more of the said tax receivable coupons issued by said State of Virginia to pay to said State, before said sale, a special license tax of $1,000; and, in addition thereto a tax of 20 per cent on the face value of each coupon sold. "That said Act does not require the seller of any other coupon, or the seller of anything else, to pay said tax; but it is directed exclusively against the sellers of such coupons. That your petitioner is being prosecuted under said Act because he sold said coupon without having first paid to said State said special license tax, and without paying to her said special tax of 20 per cent on the face value thereof. That said Act of the General Assembly of Virginia is repugnant to section 10 of article 1 of the Constitution of the United States and is, there fore, null and void. That if the said State can refuse to pay the said coupons at maturity, and then tax the sale of them to taxpayers, she may thus effectually destroy their value. thus indirectly repudiate them absolutely, and the time he was arrested until now, but that "That your petitioner has been on bail from his bail has now surrendered him, and he is at this time in the custody of the said N. M. Lee, Sergeant of the City of Richmond, to be prose cuted and tried on said indictment. That be is held in violation of the Constitution of the United States, as he is advised." In one of them he represents, in substance, that he is a citizen of the United States; that in June, 1884, as a representative of a citizen of In the other petition he represents, in subNew York, who was the owner of certain bonds stance, that, under the provisions of the before issued by Virginia under the Act approved mentioned Act of 1871, Virginia issued her March 30, 1871, entitled "An Act to Provide bonds, with interest coupons attached, and for the Funding and Payment of the Public bearing upon their face a contract to receive Debt," he sold in the City of Richmond, to them in payment of all taxes, debts and deRichard W. Maury, for the sum of $10.50 in NOTE. Habeas corpus; furisdiction; what may be considered. See U. S. v. Hamilton, 3 U. S., bk. 1, 490, note; Ex parte Carli, 106 U. S., 521, bk. 27, 248, note. mands due to that Commonwealth; that another Act, approved January 14, 1882, provides that said coupons shall not be received in pay ment of taxes until after judgment rendered in a suit thereon according to its provisions; that [243 THIL of the State. The statutory provisions which control the determination of this question are found in the following sections of the Revised Statutes: "S751. The supreme court and the circuit and district courts shall have power to issue writs of habeas corpus. "S752. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. the validity of the latter Act was sustained in 3, 1885, chap. 353, which so amends section 764 Antoni v. Greenhow, 107 U. S. 769 [Bk. 27, L. of the Revised Statutes as to give this court ju ed. 468], upon the ground that it furnished risdiction, upon appeal, to review the final de taxpayers with a sufficient remedy to enforce cision of the Circuit Courts of the United States said contract; that by the provisions of sections in certain specified cases, including that of a 90 and 91 of chapter 450 of the laws of Vir-writ of habeas corpus sued out in behalf of a perginia for the year 1883-84, it is provided that son alleged to be restrained of his liberty in vioattorneys at law who have been licensed to lation of the Constitution. 23 Stat. at L. 437. practice law less than five years shall pay a li- The first question to be considered is whether cense tax of $15, and those licensed more than the circuit courts have jurisdiction on habeas five years $25, and that such license shall en- corpus to discharge from custody one who is retitle the attorney paying it to practice law in strained of his liberty in violation of the Nationall the courts of the State; that it is further al Constitution, but who, at the time, is held 4] provided by said ninety-first section that no at- under state process for trial, on an indictment torney shall bring any suit on said coupons un-charging him with an offense against the laws der said Act of January 14, 1882, unless he pays, in addition to the above mentioned license tax, a further special license tax of $250; that petitioner had been licensed to practice law more than five years, and that in the month of April, 1884, he paid $25, receiving a revenue license to practice law in all the courts of the State, but that he had not paid the additional special license tax provided for in said ninety-first section; that, under employment of a client who had tendered coupons, issued by Virginia under the Act of March 30, 1871, to the treasurer of Richmond City in payment of his taxes, and "S753. The writ of habeas corpus shall in no thereafter had paid his tax in money-the cou-case extend to a prisoner in jail, unless where pons having been received by that officer for he is in custody under or by color of the auidentification and verification, and certified to thority of the United States, or is committed the Hustings Court of the City of Richmond- for trial before some court thereof; or is in cushe brought suit under the Act of January 14, tody for an act done or omitted in pursuance 1882, to recover the money back after proving of a law of the United States, or of an order, the genuineness of the coupons; that the grand process or decree of a court or judge thereof; jury of the City of Richmond thereupon found or is in custody in violation of the Constitution, an indictment against him for bringing the suit or of a law or treaty of the United States; or, without having paid the special license tax; being a subject or citizen of a foreign State and that he brought it after he had paid his license domiciled therein, is in custody for an act done tax above mentioned, and while he had a license or omitted under any alleged right, title, auto practice law until April, 1885; that he was thority, privilege, protection or exemption thereupon arrested by order of the Hustings claimed under the commission or order or sancCourt of Richmond, committed to the custody tion of any foreign State, or under color thereof N. M. Lee, Sergeant of that city, and is about of, the validity and effect whereof depend upon to be tried and punished under said indictment; the law of nations; or unless it is necessary to that the Act requiring him to pay a special li- bring the prisoner into court to testify. cense tax in addition to his general license tax is repugnant to section 10 of article 1 of the Constitution of the United States and is, therefore, null and void; and that the Act providing for punishing him for not paying the special license tax is likewise repugnant to the Constitution. "§754. Application for the writ of habeas corpus shall be made to the court or justice or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the 755. The court or justice or judge to whom the application is made, shall forthwith award a writ of habeas corpus, unless it appear from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained. After stating, at some length, the grounds upon which he contends that the before mentioned Acts are repugnant to the Constitution, the petitioner avers that he "is now in the cus-application. tody of the, said N. M. Lee, Sergeant of the City of Richmond, under said indictment and he is, therefore, restrained of his liberty in violation of the Constitution of the United States.' Each petition concludes with a prayer that the circuit court award a writ of habeas corpus | 51 directed to that officer, commanding him to produce the body of the petitioner before that court, together with the cause of his detention, and that he have judgment discharging him from custody. In each case the petition was dismissed, upon the ground that the circuit court was without jurisdiction to discharge the prisoner from prosecution. These cases come here under the Act of March "S761. The court or justice or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." It is further provided that, pending the proceedings on habeas corpus in cases mentioned in sections 763 and 764 (which include an pplication for the writ by a person alleged to be [246] restrained of his liberty in violation of the Constitution of the United States) and, "until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his [247] liberty, in any state court, or by or under the authority of any State, for any matter so heard or determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void." § 766. [248] indicted be repugnant to the Constitution, the prosecution against him has nothing upon which to rest, and the entire proceeding against him is a nullity. As was said in Ex parte Siebold, 100 U. S. 376 [Bk. 25, L. ed. 719]: "An uncon stitutional law is void and is as no law, An offense created by it is no crime. A conviction under it is not merely erroneous, but is illegal and void and cannot be a legal cause of impris onment." So, Ex parte Yarbrough, 110 U. S The grant to the circuit courts in section 751 654 [Bk. 28, L. ed. 274], it was said that if the of jurisdiction to issue writs of habeas corpus is statute prescribing the offense for which Yar in language as broad as could well be em- borough and his associates were convicted was ployed. While it is attended by the general void, the court which tried them was without condition, necessarily implied, that the author- jurisdiction, and they were entitled to be dis ity conferred must be exercised agreeably to charged. It would seem, whether reference be the principles and usages of law, the only ex- had to the Act of 1867 or to existing statutory press limitation imposed is that the privilege of provisions, that it was the purpose of Congress the writ shall not be enjoyed by-or rather that to invest the courts of the Union, and the jus the courts and the judicial officers named shall tices and judges thereof, with power, upon writ not have power to award the writ to-any pris- of habeas corpus, to restore to liberty any per oner in jail, except in specified cases, one of son, within their respective jurisdictions, who is them being where he is alleged to be held in held in custody, by whatever authority, in vio custody in violation of the Constitution. The lation of the Constitution or any law or treaty latter class of cases was first distinctly provided of the United States. The statute evidently con for by the Act of February 5, 1867, chap. 28, templated that cases might arise when the power 14 Stat. at L. 634, which declares that the sev- thus conferred should be exercised during the eral courts of the United States, and the sev-progress of proceedings instituted against the eral justices and judges thereof, within their re- petitioner in a state court, or by or under auspective jurisdictions, in addition to the author-thority of a State, on account of the very mat ity then conferred by law, "shall have power to grant writs of habeas corpus where any person may be restrained of his or her liberty in violation of the Constitution, or any treaty or law of the United States." Whether, therefore, the appellant is a prisoner in jail, within the meaning of section 753, or is restrained of his liberty by an officer of the law executing the process of a court of Virginia, in either case, it being alleged under oath that he is held in custody in violation of the Constitution, the circuit court has, by the express words of the statute, jurisdiction on habeas corpus to inquire into the cause for which he is restrained of his liberty, and to dispose of him "as law and ius tice require. It may be suggested that the state court is competent to decide whether the petitioner is or is not illegally restrained of his liberty; that the appropriate time for the determination of that question is at the trial of the indictment; and that his detention for the purpose simply of securing his attendance at the trial ought not to be deemed an improper exercise by that court of its power to hear and decide the case. The first of these propositions is undoubtedly sound; for in Robb v. Connolly, 111 U. S. 637 [Bk. 28, L. ed. 545], it was held, upon full consideration, that a state court of original jurisdiction, having the parties before it, may, consistently with existing federal legislation, determine cases at law or in equity, arising under the Constitution and laws of the United States, or involving rights dependent upon such Constitution or laws;" and that "upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce and protect every right granted or secured by the Constitution of the United States, and the laws made in pursuince thereof, whenever those rights are involved in any suit or proceeding before them." But with respect to the other propositions, it is clear that if the local statute under which Royall was ter presented for determination by the writ of [50] 251 of the several States; that they cannot, under | such means, to draw to themselves, in the first It remains, however, to be considered, whether the refusal of that court to issue the writ and to take the accused from the custody of the state officer can be sustained upon any other ground than the one upon which it proceeded. If it can be, the judgment will not be reversed because an insufficient reason may have been assigned for the dismissal of the petitions. of government, between the judicial tribunals considerations. Nor do their circumstances, as conferred the power to decide ultimately and Heyman, 111 U. S. 182 [Bk. 28, L. ed. 393], [252] |