Cite as: 518 U. S. 651 (1996)
Opinion of the Court
beas petition by appeal or by writ of certiorari. More than a century ago, we considered whether a statute barring review by appeal of the judgment of a circuit court in a habeas case also deprived this Court of power to entertain an original habeas petition. Ex parte Yerger, 8 Wall. 85 (1869). We consider the same question here with respect to § 2244(b)(3)(E).
Yerger's holding is best understood in the light of the availability of habeas corpus review at that time. Section 14 of the Judiciary Act of 1789 authorized all federal courts, including this Court, to grant the writ of habeas corpus when prisoners were "in custody, under or by colour of the authority of the United States, or [were] committed for trial before some court of the same." Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.1 Congress greatly expanded the scope of federal habeas corpus in 1867, authorizing federal courts to grant the writ, "in addition to the authority already conferred by law," "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." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385.2 Before the Act of 1867, the only instances in which a federal court could issue the writ to produce a state prisoner were if the prisoner was "necessary to be brought into court to testify," Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82, was "committed . . . for any act done . . . in pursuance of a law of the United States," Act of Mar. 2, 1833, ch. 57, § 7, 4 Stat. 634-635, or was a "subjec[t] or citize[n] of a foreign
1 Section 14 is the direct ancestor of 28 U. S. C. § 2241, subsection (a) of which now states in pertinent part: "Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."
2 This language from the 1867 Act is the direct ancestor of § 2241(c)(3), which states: "The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States."
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