Argument for Petitioner. 263 U.S. into §§ 751, 752, Rev. Stats. This revision of the language of the Habeas Corpus Act, without any apparent intention to change its effect, brought about no substantial change in the law, so that the specification of the several courts of the United States as "the Supreme Court and the circuit court and district courts" meant substantially what it did in the first place in the Habeas Corpus Act, namely, that the power was conferred upon the "several justices and judges of the said c. s," to wit, the Supreme Court and the District Court: as expanded by the Act of 1869, appointing circuit judges and giving them the same power, within their jurisdiction, as Supreme Court Judges. There never has been an express change in the Habeas Corpus Act of 1867, except in its revision by the Revised Statutes. The habeas corpus provisions remain exactly as they were. · It is an "elementary rule that a special and particular statutory provision affording a remedy for particular and specific cases is not repealed by a general law unless the repeal be express or the implication to that end be irresistible." Ex parte United States, 226 U. S. 420. This Court has shown no tendency to restrict the " appropriate sources of judicial power" to issue the writ. Ex parte Tracy, 249 U. S. 551. A very material consideration, we submit, is that when circuit judges were created no new court was created— the circuit court was already in existence. As the circuit judges did not derive their origin from a court, it is hard to see how they could lose any of their powers, as judges, by the abolition or merger of the court in which they usually sat. The holding of the lower court is, in effect, that by the abolition or merger of the circuit court, the circuit judges were shorn of all of their powers-nothing was left to them except their bare titles-and that they were reclothed with the power, and only with the power, to sit 255 Argument for Petitioner. on the bench of the Circuit Courts of Appeals. We know, however, that they retained jurisdiction to sit under the Expedition Act, Ex parte United States, supra; and under the Chinese Exclusion Act of 1892, § 6. Fong Yue Ting v. United States, 149 U. S. 698. They are comprehended within the category of "any justice or judge of the United States " in § 1014, Rev. Stats., relating to the arrest and holding or bail of persons accused of crime. They also may, without designation, grant injunctions or restraining orders in cases pending in the district courts of their circuits (Jud. Code, § 264) and, upon designation by the President, act as a judge of the Court of Customs Appeals. Jud. Code, § 188. As the circuit judges retained these several powers as judges, under the separate acts conferring them, notwithstanding the abolition or merger of the circuit courts by the Judicial Code, how can it be said that they were, by the Judicial Code, shorn of the power conferred by the separate Habeas Corpus Act, unrepealed, to issue the great writ, which they had exercised in numberless instances covering over half a century? It would be a violent assumption that in dispensing with the machinery of a court, Congress intended to strip the judges thereof of their own inherent powers, especially where he act was not to be "construed to prevent any circuit judge holding district court or serving in the commerce court, or otherwise, as provided for and author-. ized in other sections of this Act." Jud. Code, § 118. The exercise of this power by a circuit judge is well exampled in the leading case before this court of Carper v. Fitzgerald, 121 U. S. 87. In the present case, Circuit Judge Manton was the regularly acting judge holding the chambers part of the district court, under designatior when the writ was issued. He was the judge before whom it was our duty to go and he was the judge whose business it was-using the word in its proper sense-to issue the writ. Argument for Petitioner. 263 U.S. But, though thus designated, the point of the jurisdiction and power of a circuit judge to issue a writ of habeas corpus is necessarily involved, for only by holding that a circuit judge had no such jurisdiction or power, and that the order was an order of the district court, did the court below assert jurisdiction to hear and decide the appeal, notwithstanding the petitioner's motion to dismiss the appeal. III. In issuing the writ, the circuit judge, in addition to his powers as such, was exercising the powers of a district judge, under designation. Ex parte United States, 226 U. S. 420. His order was not a court order, but a judge's order. Carper v. Fitzgerald, supra. It will be observed that § 18, Jud. Code, provides for designation of the circuit judge, but the following section does not limit the judge so designated to holding the court; it provides that "all the acts and proceedings by or before him, in pursuance of such provisions, shall have the same effect and validity as if done by or before the district judge of the said district." The designation in this case follows the lines of the statute. A circuit judge can no more lay aside his title and powers of circuit judge than could he be stripped of them; he is always a circuit judge. McCarron v. People, 13 N. Y. 74. Even if this Court shall hold that a circuit judge has no power, as such, to grant a writ of habeas corpus, he may have the power, under Rev. Stats., § 752 whenever he is a judge of the district court. Where Congress has committed jurisdiction to a judge as a judicial tribunal, he functions through his own inherent power and not through or on behalf of the court of which he is a member. United States v. Duell, 172 U. S. 576; Carper v. Fitzgerald, supra. IV. The decisions are uniform that no appeal lay to the Circuit Court of Appeals from an order of a judge; that 255 Argument for Petitioner. only an order of a court might be reviewed by appeal or writ of error. Carper v. Fitzgerald, supra; In re Lennon, 150 U. S. 393; McKnight v. James, 155 U. S. 685; Lambert v. Barrett, 157 U. S. 697; Ex parte Jacobi, 104 Fed. 681; Harkrader v. Wadley, 172 U. S. 148. V. This Court had exclusive jurisdiction, by direct appeal, to review the order discharging the petitioner, which was based upon a finding that the petitioner had been deprived of his liberty by an excess of power, involving the construction and application of the Constitution. The assumption of jurisdiction by the Circuit Court of Appeals warrants and requires the intervention of this Court. Jud. Code, § 238; Raton Water Works Co. v. Raton, 249 U. S. 552, and other cases. VI. If the Circuit Court of Appeals had no jurisdiction to review the order of a circuit judge, its determination should be reversed regardless of the question whether the district court acted in excess of its powers, and regardless, also, of whether habeas corpus was the proper remedy, leaving those questions to be reviewed by appropriate procedure. First National Bank v. Chicago Title & Trust Co., 198 U. S. 280. VII. Habeas corpus was the proper and effective remedy for excess of power or lack of jurisdiction in the commitment for asserted contempt. Ex parte Hudgings, 249 U. S. 378; In re Watts and Sachs, 190 U. S. 1; Cuyler v. Atlantic & N. C. R. R. Co., 131 Fed. 95; In re Reese, 98 Fed. 984; Ex parte Dock Bridges, 2 Woods, 428; Ex parte Lange, 18 Wall. 163; Ex parte Siebold, 100 U. S. 371; Ex parte Fisk, 113 U. S. 713; In re Ayers, 123 U. S. 443; Nielsen, Petitioner, 131 U. S. 176; Cuddy, Petitioner, 131 U. S. 280; In re Mayfield, 141 U. S. 107; Ex parte Robinson, 144 Fed. 835; Ex parte Bigelow, 113 U. S. 328; In re Belt, 159 U. S. 95; Hyde v. Shine, 199 U. S. 62. VIII. The disregard, by the court below, of the statutory proviso of punishment for obstructive misbehavior, Argument for Respondent. 263 U.S. only, and the limitations sought to be placed by the court below on the scope of the writ of habeas corpus, are not in accord with the rulings of this Court. Jud. Code § 268; Brass Crosby, Lord Mayor of London, 3 Wilson, 188; Ex parte Robinson, 19 Wall. 505, referred to, Ex parte Kearney, 7 Wheat. 38, and Ex parte Watkins, 3 Pet. 193, were decided before the Act of 1831 (now Jud. Code, § 268), which introduced the proviso of obstructive misbehavior as the basis of contempt, and are no longer applicable. We freely concede that the writ of habeas corpus may not be employed as an anticipatory writ of error, such as was discountenanced in Henry v. Henkel, 235 U. S. 219; Rumely v. McCarthy, 250 U. S. 283, and similar cases. But generally the rule of procedure for which such cases stand is quite beside the right to attack by writ for lack of jurisdiction or excess of power. Ex parte Parks, 93 U. S. 18; Ex parte Yarbrough, 110 U. S. 651; Ex parte Siebold, 100 U. S. 375; United States v. Pridgeon, 153 U. S. 48; Ex parte Lange, 18 Wall. 163; Ex parte Hudgings, 249 U. S. 378. Even though the only question that the court on habeas corpus can look into is one of jurisdiction, broadly considered, the cases show that the court may look into the facts upon which the conviction was based, to the extent that they affect the jurisdiction of the court which assumed to make the adjudication. In re Mayfield, 141 U. S. 107; Cuddy, Petitioner, 131 U. S. 280. IX. The objections raised to the form of the writ were unavailing to oust the circuit judge of power to act. Mr. Solicitor General Beck, with whom Mr. Alfred A. Wheat, Special Assistant to the Attorney General, was on the brief, for respondent. I. The judgment of conviction rendered by the district. court was final and conclusive until reversed on writ of error. |