And further, says Justice Curtis:

By the fourteen section of the judiciary act of 1789 (1 Stats., p. 80), the Supreme Court has power to issue writs of habeas corpus for the purpose of inquiry into the cause of commitment.

The circuit court was not the cause of commitment, and therefore, says Justice Curtis, if the Supreme Court issued the writ prayed for-

We should not have jurisdiction to inquire into the cause of the commitment shown by the petitioner, and consequently the writ must be refused. (I bid., 128.)

It is clear upon the ruling in this case that the refusal of the circuit court to grant the application for the writ cannot be reviewed by the Supreme Court upon habeas corpus or certiorari.

Has the Supreme Court jurisdiction to review the proceedings of the military commission in this case by writ of error or habeas corpus?

The jurisdiction of the Supreme Court is defined by the third article, second section, and eleventh amendment of the Constitution. By the express terms of the second section the original jurisdiction of this court is limbed to cases affecting ambassadors, other public ministers and consuls, and cases in which a State may be a party. This case not falling within either of the cases specified in the Constitution, the court has not and cannot have original jurisdiction in the premises. The appellate jurisdiction of this court is limited by the Constitution "to all other cases thereinbefore mentioned, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. " The appellate powers of the Supreme Court, as granted by the Constitution, are limited are regulated by the acts of Congress, and must be exercised subject to and within the exceptions and regulations made by Congress. (Dusenfreau vs. United States, 6 Cr. 314; Barrey vs. Merrien, 5 Howard, 119; United States vs. Curry, 6 Howard, 113; Forsyth vs. Unites States, 9 Howard, 571.) The case is believed not to be within the letter or the spirit of the grants of appellate jurisdiction to the Supreme Court. It is not believed to be a case in law or equity within the meaning of those terms as used in third article of the Constitution, nor that the military commission is a court within the meaning of the term as used in the fourteenth section of the judiciary act of 1789. The Supreme Court has only appellate jurisdiction to revise proceedings of those tribunals over which and in respect to which the laws of Congress have given it control. (Ex parte Bollman, 4 Cr., p. 100.) In the case of Kaine above cited from 14 Howard, p. 119, Curtis, justice, said:

It is clear that this court has no control by appeal, writ of error, or other proceeding over a commissioner acting under authority of an act of Congress, or under color of such authority, and no power in any way to revise his proceedings, for the reason that the law made no provision for the revision of his acts, and for the further reason that he does not exercise any part of the judicial power of the United States.

And in the case of Ex parte Metzger (5 Howard, 176), it was determined that a writ of habeas corpus could not issue to examine commitment ordered by district judge at chambers under the treaty with France for the reason that the district judge in the case exercised a special authority, and the law had made no provision for the revision of his judgment. In the case of the United States vs. Ferreira (13 Howard, p. 48), Taney, Chief Justice, says:

The power conferred by Congress on the district judge and the Secretary of the Treasury under the treaty with Spain, though judicial in its nature, is not judicial in the sense of judicial power granted to the court of the United States.

In the case of Kaine (14 Howard, 128), Curtis, justice, says:

The circuit court has power to inflict imprisonment and death without appellate control of the Supreme Court. Even though it be alleged that the proceedings of a