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ad of a contempt (9 Wheat. 39), or of a crime, power, by « judge out of court, precludes its by a court of competent jurisdiction (3 Pet. revision by another appellate power; which 202, 208), or persons in execution (Ib.); nor can act only by a writ of error, directed to a will the court upon the writ look beyond the court of record, to remove their final judgment judgment, and re-examine the charges on and proceedings in the case. This court cannot which it was rendered (Ib. 202); for if this issue a writ of error to a district court, in any court cannot directly revise the judgment of a case where a special authority to do it is not circuit court in a criminal case, they cannot do expressly given by law, nor to a circuit court, it indirectly. Ib. 208. The power to issue unless by the provision of the judiciary Act this writ being concurrent in this court, the (7 Cranch, 108, 287; 2 Wheat. 259, 395; 8 Pet. circuit and district courts, and every judge of 495, 496; 12 Pet. 143; 13 Pet. 290); nor can either, the action upon the writ when the party the Circuit Court issue a writ of error to a is before a court or judge, is directed to the district court in any other than the specified same object, "for the purpose of inquiring into cases provided for, kor issue compulsory proc. the cause of commitment,” in order to ascer- ess to remove a cause before final judgment." tain whether he shall be remanded to prison, Such process (as a certiorari) is void, and may discharged on bail, or without bail; in doing be disregarded (2 Wheat. 225, 226) as a nullity. which this court has no more power than any By the 22d section of the Judiciary Act, final district judge; the nature of the power and the judgments and decrees 'in civil actions (*622 rules by which it must be exercised are the in the district courts may be re-examined in same. 4 Cranch, 96.

the circuit courts on a writ of error, whereby This court has declared this power to be ap- the power of the Circuit Court rests on two pellate, and not original; so I shall take it on things; the judgment must be final, and must its authority, though if the point was new, it be rendered in a civil action, neither of which would seem to me to be the exercise of a can exist in a habeas corpus issued under the special authority given by the Judiciary Act, 14th section, which gives authority to issue and for the specific purpose therein set forth; act upon this writ, in two classes of cases: 1. and that from the very nature of a high pre- To all the courts of the United States, where it rogative writ, it must be issued and acted upon is necessary for the exercise of their respective by prerogative, and not appellate power; es jurisdictions, and agreeable to the principles pecially by the courts of the United States, and usages of law. Z. To either of the justices whose jurisdiction is special, and limited to the of the Supreme Court, as well as judges of the cases specified in the Constitution and Judici. District Court, "for the purpose of an inquiry ary Act. Taking, however, the power to issue into the cause of commitment.” Provided that the writ, and the action upon it to be appellate, writs of habeas corpus shall in no case extend then every district judge can exercise it to to prisoners in jail, unless they are in custody the same extent that this or a circuit court under the authority of the United States, comcan; consequently he can revise the process mitted for trial before some court of the same, of either court, by which a person has been or to testify, etc. 1 Story, 59. committed, by inquiring into the cause of com- On a full consideration of this section, this mitment, and proceeding thereupon in the same court, in the case of Bollman and Swartwout, manner as if the commitment had been made held that it applied to the great writ of habeas by a justice of the peace. This inquiry is con- corpus ad subjiciendum, providing the “means fined to the question of recommitment or dis- by which this great constitutional privilege charge, the result of which depends on the dis- should receive life and activity,” that the gen. cretion of the judge or court before whom the eric term "habeas corpus," when used singly and prisoner is brought; the warrant of commit: without additions, means the great writ now ment must be inspected to see whether it sets applied for, "and in that sense it is used in out a proper cause for imprisonment; the evi- the Constitution." 4 Cranch, 94-100. It was dence is examined for probable cause of prose- | also held that it did not apply to a habeas cution, and if the warrant and evidence are corpus ad respondendum, to process from a sufficient, then the question of bail and its State court, to a habeas corpus cum causa, or amount necessarily arises, which is, confessed the mode of bringing causes into a court of the ly, a matter purely discretionary, subject only | United States from a state court (Ib. 96, 98); to the provision of the eighth amendment to consequently this great writ issues only in the Constitution, the 33d section of the Ju- cases where a party is imprisoned on the diciary Act (1 Story, 66), and the fourth sec- charge of some criminal offense against the tion of the Act of 1793. 1 Story, 311.

United States, and not in u civil action, to On this view of the nature and object of the which they may be a party, as is apparent writ of habeas corpus, with the proceeding up from the view taken by the court in connecting on it, considered as the exercise of appellate the 33d and 14th sections. jurisdiction, the first inquiry is whether the The 33d section directs that, "upon all armanner in which it has been exercised can be rests in criminal cases, bail shall be admitted, revised by a writ of error, to any court or except where the punishment may be death; in Judge of the United States.

which cases it shall not be admitted but by That a writ of error will not lie upon any the Supreme or a circuit court, or by a justice proceeding before a judge of this court, or a of the Supreme Court, or a judge of a district district judge, in vacation, is too clear for court; who shall exercise their discretion there. discussion; there is no court, no record to re- in, regarding the nature and circumstances of move, no judgment to revi the judge acts by the offense, and of the evidence, and the usages

summary order, which affects only the ques. of law" (vide 1 Story, 68), on which the court tion of imprisonment, discharge, or bail; the remark: very nature of such action by an appellato "The appropriate process of bringing up • 10 L. ed.


prisoner not committed by the court itself to Circuit Court on a writ of habeas corpus camot
be bailed, is by the writ now applied for; of be comprehended within either of the three
consequence, a court possessing the power to classes of cases, to which a writ of error is con-
bail prisoners not committed by itself, may fined by the terms of the 22d section of the
award a writ of habeas corpus for the exercise Judiciary Act.
of that power;" and the 33d section was held The provisions of the 23 and 24th sections
to be explanatory of the 14th. 4 Cranch, 99, lead to the same conclusion, by pointing only

to those cases in which an execution can issue,
Hence there are, in my opinion, three objec. or be superseded by the writ of error, and
tions to a writ of error from a circuit to a dis where, upon affirmance, the court may decree
trict court, to revise their proceedings on a writ just damages to the respondent in error for his
of habeas corpus ad subjiciendum: 1. It is not delay, and single or double costs at their discre-
a civil action. 2. The order to recommit, to bail, tion; and by directing the mode of proceeding
or discharge, is not a final judgment or decree. by the Supreme Court on affirming or revers-
3. The action of the court is discretionary, | ing and sending a special mandate to the Cir.
depending on the nature of the case, the evi- cuit Court to award execution thereupon (vide
dence, and the usages of law. These objections 1 Story, 61), which will be hereafter considered
apply with greater force to a writ of error from in connection with the 25th. An application
this to a circuit court under the 22d section, of these provisions to a writ of error on a writ
which provides that "upon a like process, may of habeas corpus, makes it manifest that the
final judgments and decrees in civil actions, law contemplated no such case, no execution
and suits in equity, in a circuit court, brought issues, the order for recommitment or to give
there by original process, or removed there bail, or for a discharge, cannot be superseded;
from courts of the several States, or removed no damages can accrue by delay, and no man-
there by appeal from a district court, be re-ex- date for execution can be awarded, for no final
amined in the Supreme Court. Independent, judgment exists on which an execution could
then, of the three objections above mentioned, issue. Had it been intended to embrace a
others arise from the additional provisions in habeas corpus, some provision appropriate to
relation to the writ of error from the Supreme the case would have been made; its entire omis-
Court. It lies only from a final judgment, in sion affords the most conclusive evidence to the
a civil action, etc., brought in a circuit court contrary; or if anything is wanting to remove
by original process, or removed there from a all doubt, it will be found in the nature and
State or district court; consequently, it lies not object of this great writ, this constitutional
upon a proceeding on habeas corpus, which is privilege. It was designed to afford a speedy
the exercise of appellate power; commencing on remedy to a party unjustly accused of a crime,
petition, affidavit, and motion for the writ, without obstructing or delaying public justice;
and terminating by an order which the court both of which objects would be defeated by the
makes according to its discretion. This order, delays consequent upon a writ of error, as it
from its nature and effect, is not and cannot be may be taken out by either party; 'if it can be
final; for it only discharges the party from any by one, the court can make no distinction be-
further confinement, under the process under tween them, as it is a writ of right. Vide 7
which he was arrested, “but not from any Wheat. 42. For these reasons I am fully con-
623*] *other process which may be issued vinced that no writ of error can be issued by
against him, under the same indictment.” 9 this, or a circuit court, under the authority of
Pet. 710. The inquiry being merely prelimi. the Judiciary Act, to revise a proceeding on a
nary to a trial, the order is only interlocutory, writ of habeas corpus, by any judge or court of
and can extend no farther than to the specific the United States; the next inquiry is, whether
subjects of the inquiry, which can have no it can issue on a similar proceeding in a State
bearing on the final result of the prosecution, court.
as to guilt or innocence.

By the 25th section is is provided, “That • By using the term "original process," the final judgment or decree in any suit in the law excludes that which is appellate, it relates highest court of law or equity of a State, in to the writ by which a plaintiff brings a defend which a decision of the suit could be had,” etc. ant into the Circuit Court, to answer a demand enumerating the particular classes of cases, made in a civil action for a debt or damages; "may be re-examined, and reversed or affirmed but surely not to a writ issued for persons in in the Supreme Court of the United States, confinement under a criminal charge, directed upon a writ of error," etc., “in the same man. to the officer or person who has him

in custody ner, and under the same regulations, and the under the authority of the United States, the writ shall have the same effect as if the judg. object of which is to procure the liberation of ment or decree complained of had been renthe prisoner. The same conclusion results dered or passed in a circuit court; and the pro from the reference to civil actions in the Circeeding upon the reversal shall be the same cuit Court, “removed there from courts of the except that the Supreme Court, instead of reseveral States;” these actions are described in manding the cause for a final decision as before the 12th section, which prescribes the mode of provided, may, at their discretion, if the removal, and declares that when removed, "the cause has once been remanded before, [*624 cause shall proceed in the same manner as if it proceed to a final decision of the same, and had been brought there by original process." award execution." 1 Story, 61, 62; 1 Wheat. So as to civil actions removed there by appeal | 353. This section differs from the 22d only in from a district court, which are defined in the using the term “a suit” in place of "civil 21st section, and confined to final decrees "in actions,” the effect of which is that the writ of causes of admiralty and maritime jurisdiction;" error lies to remove an indictment from a State whence it follows that the proceeding of the court, as held in Cohens v. Virginia (6 Wheat.

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390, 391, 407, 410, etc., and to a prohibition, in operate with full force on this; unless some disWeston v. The City, etc., of Charleston (2 Pet. tinction can be found between the terms "civil 463, 464); but the nature of the judgment to be actions” and “any suit,” or “the cause;" in re-examined is the same, it must be a final one. which a final judgment has been rendered, The 23d section applies to the writ of error to which will justify a writ of error to a State a State court, in all respects as to a circuit court, in a case where it would not lie to the court. So does the 24th, unless so far as its court of the United States, by reason of its not provisions come within the exception of the being a final decision or judgment; or, on any 25th, which it becomes necessary to consider. other ground than that it was not a civil action. The 24th section directs that when a judgment The only distinction between the two (*625 or decree of the Circuit Court shall be reversed classes of cases consist singly in this: that the by the Supreme Court, it shall proceed to ren. term “any suit," in the 25th section, is broader der such judgment, or pass such decree, as the than the term "civil actions," etc., in the 22d, Circuit Court should have rendered or passed; whereby criminal cases may be revised by this except when the reversal is in favor of the plain-court on a writ of error to a State court; tiff or petitioner in the original suit, and the though they are excluded from the appellate damages to be assessed or matter to be decreed jurisdiction of this, over circuit courts; unless are uncertain, in which case they shall remand they are certified by a circuit court, on a divi. the cause for a final decision. And the Su. sion of opinion between the judges thereof, unpreme Court shall not issue execution in causes der the sixth section of the Act of 1802 (2 that are removed before them by writs of error, Story, 856), if such action as is therein prebut shall send a special mandate to the Cir. scribed can be called the exercise of appellate cuit Court to award execution thereupon." power, and not a mere special, statutory au

Connecting this section with the exception in thority. the 25th, we have the precise case provided for In following to its consequences the settled in the latter, "where the damages to be as principle of this court, that in issuing and actsessed" (in a suit at law) “or the matter to be ing upon a writ of habeas corpus under the 14th decreed" (in a suit in equity) "are uncertain," section, it is by appellate power, it will appear then the Supreme Court may “proceed to a that the

for 80 considering this final decision, and award execution," if the power are most conclusive against the exercise cause had been before remanded. Now, it is of their appellate jurisdiction over writs of ermost evident that neither the exception in the ror to the proceedings of a State or circuit 24th or 25th section can apply to a proceeding court, on such a writ issued by either. In deon the writ of habeas corpus, for two conclusive fining appellate power in such cases, the court reasons: 1. That if the reversal is in favor of say: "It is the revision of a decision of an inthe petitioner or plaintiff in this writ, there are ferior court, by which a citizen has been comno damages to be assessed, nor any matter to be mitted to jail;" the question on a habeas cordecreed, which is uncertain; the judgment to be pus “is always distinct from that which is inrendered is certain, and can be none other than volved in the cause itself (4 Cranch, 100); these for the discharge of the prisoner, on, or with questions are separated, and may be decided by out bail; and is not, nor can be a final decision different courts." "The decision that the inof the cause. 2. The original suit is on the war- dividual shall be imprisoned must always prerant of commitment, and a decision which pre- cede the application for the writ of habeas corcedes the application for the writ of habeas pus; and this writ must always be for the pur. corpus, the issuing of which, and the proceeding pose of revising that decision, and therefore upon it are, as has been held uniformly by appellate in its nature." Ib. 101. The case on this court, the exercise of appellate jurisdiction a habeas corpus is "a mere inquiry, etc.,

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whether the accused shall be discharged, or A third reason is equally apparent in both held to bail." Ib. 125. The law which gives sections, the final judgment must have been one authority to issue the writ defines its object, on which an execution could be awarded by the "for the purpose of inquiring into the cause Circuit Court on a special mandate from this, of commitment” 3 Pet. 201, “its legality, and under the 24th; or by this court, in a case com- the sufficiency of that cause." Ib. 202. "Coning within the exception of the 25th; and in sidering, then, as we do, that we are but revising either case, there must have been a final deci- the effect of the process awarded by the Circuit sion of the cause, before any execution could be Court, under which the prisoner is detained, we awarded.

cannot say that it is the exercise of an original The terms "original suit," and "cause,” are jurisdiction.” used in the same sense in the 24th section, so in A discharge under this writ, discharges the the 25th, "guit” and “the cause" mean the same party only from such process, and not “from thing, both terms referring to the final action any other process under the same indictment” of this court, whether they “remand the cause (9 Pet. 710) or a new one. 4 Cranch, 136. for a final decision,” by the Circuit Court, and Let, then, whatever term, action, case, cause, send them a special mandate to award execu- suit, be given to a writ of habeas corpus, and tion under the 24th, or themselves "proceed to the proceedings upon it; let the final action of a final decision of the same (the cause) and the court upon it be called a decision, an award, award execution,” under the 25th section. a judgment, or order, the character or nature of

These considerations bring this inquiry to a either, and the effect are the same; nothing is narrow space, presenting to my mind stronger revised but the process of arrest, and the deobjections to the jurisdiction of this court over cision on which the process issued and the ar. the present case than would apply to a writ of rest is made; the inquiry is limited to the cause error to a court of the United States; while all of commitment, and every question arising is the reasons which apply in the latter case I always so distinct from "the cause itself,” that

and power.



this Inquiry can be determined by one court, looutory judgment or award works a forfet and the cause by another.

ture, then error lies to be relicved therefron There can, then, be no final decision of "any 11 Co. 4la. But this is only an exception suit," the "original suit,” or “the cause," on a to an universal rule that error lies only on writ of habeas corpus, the subject matter in a final judgment which determines the whole controversy remains unaffected by the mere in subject matters in a cause; from which this quiry into the cause of commitment, its suffi- court has never yet departed, by any direct ad. ciency or the legality of the process, as fully as judication in error under either the 22d or if no habeas corpus had been issued; any judg. 125th sections of the Judiciary Aet, or on the ment rendered by any court affects only the rules of the common law. process; nor can it be in any sense deemed That the course of opinions delivered in this "inal judgment in a suit," on "the cause itself," case by the majority, if not all the other judges, or "a final decision of the same," so as to make is different from mine is apparent; but as no it cognizable in this court by any appellate ju-judgment has been rendered by the court, this risdiction, on a writ of error to a circuit court, point cannot be judicially settled; it is yet open under the 22d, or a State court under the 25th to argument by counsel whenever a similar section of the Judiciary Act.

case arises, and of consequence, remains open Another objection equally fatal to the writ of for the consideration of this court, or any of its error in this case is, that though the awarding members, here or elsewhere, as it has hitherto the writ of habeas corpus is a matter of right, been considered. My reference to the Judiciary and "is granted ex debito justitiæ,” yet the ac. Act and the opinions of this court have been tion of the court is governed by its sound dis. more in detail than to the principles of the cretion, exercised on the whole circumstances of common law, or the adjudged cases; because the case, according to which “the relief is al. the former appeared to me to be conclusive as lowed or refused on a motion." But a rule or to what the law of the land and of the court order denying the motion is not a judgment, has been, is, and ought to be in future. If it “it is only a decision on a collateral, or inter- admitted of doubt as to the latter, it sufficed 626"] locutory point, which has never *been for the case to show by a brief reference what deemed the foundation of a writ of error," the common law has been for centuries, and which lies "only upon a final judgment or de. now is, without ever so far departing from termination of a cause.” “A very strong case what I deem my judicial duty, as to even in. illustrating the doctrine is that error will not quire what it ought to be; as if it was in my lie to the refusal of a court to grant a peremp. power to abrogate, or vary from its rules on tory mandamus," etc., as held by the House of this or any other subject. When a point is de. Lords. Vide 6 Pet. 656, 657, and cases cited; cided by the adjudged cases, or laid down as 9 Pet. 4, 6. No principle is, or can be better settled in the books of acknowledged authority, settled by this court, than that no writ of error I take it, and feel bound to act upon it, as the lies upon any proceeding in a cause, depending common law, which is infused into our juris. on the discretion of the court. _1 Pet. 168; 6 prudence; unless some act of Congress, some Pet. 217, 666; 7 Pet. 149; 13 Pet. 15. There local law, or some decision of this court, precan be no case more peculiarly and exclusively scribes another rule. When this court declare of that description than one involving only the that "we are entirely satisfied to administer the question of discharge, or recommitment on a law as we find it” (7 Wheat. 45; 3 Wheat. 209), I habeas corpus; which is declared to be “the ap- feel bound to endeavor to find, and when found propriate process" for that purpose. 4 Cranch, to follow it in all its course; and in searching 100. “A mere inquiry, without deciding upon among the fountains, rather than the rivulets guilt” (Ib. 125), “always distinct from the of the law, for its true principle, I have found question, whether he shall be convicted or ac- no safer guide than its forms, which from anquitted” (Ib. 101); and directed only to pro: cient times have embodied and preserved, uncess (7 Pet. 573; 9 Pet. 710); not to the final changed, *those principles which time (*627 determination of the cause (6 Pet. 657), but has consecrated, by the certainty of the law, to a decision on a mere interlocutory, collaterall and the security and repose which an adherence point, cautiously excluded from revision on to its rule affords to the rights of property and error, by the Judiciary Act.

person. The same result is found in "the principles Forms of writs, process, proceedings in suits, and usages of (the common) law," as laid down judgments, and executions, in all their various in the time of Coke, without a single deviation applications to matters of jurisprudence, were to this time. In 8 Co. 127b, 128a, it was de devised of old, and are yet followed, in order clared that no writ of error could lie upon a to practically apply the rules and principles of habeas corpus, because it was festinum remedi- the law they enforce upon persons, property, um. 8. P. Strange, 539. It will not lie upon a and rights of all description; and when these writ of procedendo; the refusal of a prohibition, forms are overlooked, the principles to which or mandamus for the party, shall not be hung they give life, activity, and effect, will be for. up on error (Strange, 391, 543), nor on a judg. gotten or disregarded; nor is there a more efment quod computet, in account, Quod partitio fectual mode of producing both results, than at fiat, in partition, by default in trespass; on this day to look beyond those rules which have awards of inquiry, on awards interlocutory, prevailed for centuries, and been respected as and not definitive, nor till the "ast judg- the landmarks of the law, to the reasons on ment” is rendered, on "all the matter with which they were originally founded, of which in the original," the “whole watter of the this case affords a strong illustration. cause;" because till then, the judgment or It is admitted that in the whole course of the award is not final. 11 Co. 38b-4a. Vide common law there is no one precedent of a writ Com. Dig. Pleader, Error, B. When an inter- lof error, upon the proceeding on a writ of


habeas corpus; yet it has been earnestly con- judgment); this point, which is clear by the tended at the bar that error lies in such case on words of the (Judiciary) Act, "has (*628 general principles, and that the contrary course been often adjudged by this court.” The casea of the English courts has arisen from the mere in 6 Pet. 648, and 9 Pet. 4, are noted with apomission to enter on the proceeding by habeas probation, and their principles re-affirmed. corpus, the purely technical words, ideo consid-Vide 9 Pet. 602. These are the reasons why a eratum est in the order or award made by the writ of error will not lie at common law, court.

or under the Judiciary Act in such cases, and Had the learned counsel of the relator dis- these are the general principles of all law, closed to the court the result of an inquiry why and the foundation of the universal rule that these (so called) technical words were deemed where power is given to any tribunal, to be 80 important, the reasons would have been exercised at its discretion, whether it is legisfound to be most decisive in a case of habeas lative, executive, judicial, or special, the decorpus or mandamus; for before the statute of cision of such tribunal is revisible only by some

no record was made of the proceedings other tribunal to which a supervisory power on those writs, no judgment was rendered on is given. 6 Pet. 729, 730; 8. P. 7 Cranch, 42, them, and consequently there was no record to etc.; 1 Pet. 340; 2 Pet. 763; 3 Pet: 203; 10 Pet. remove from an inferior to a superior court, by 472, etc.; 12 Pet. 611. The forms and modes & writ of error.

of expression by which any tribunal

pronounces The omission of the term ideo consideratum its discretion to have been exercised, does not est, which is the appropriate and only form affect the nature or character of its decision; known to the common law to denote the that depends on what it has decided and its judgment of a court on a matter of record, in effect, whether it is a final judgment or an incontradistinction to an order or award in grant. terlocutory one, or mere summary order, ing or refusing a motion, was deemed good direction, or decision, on a rule or motion, evidence that the law did not recognize a which is not in law a judgment, though it decision in which these words were not used, may be expressed in the words appropriated as a final judgment on which a writ of error to a judgment. The law looks to the thing could be brought; especially when, by the done, as the true test of whether it is cognizacommon law, such a decision was not made a ble in error. To make it so, there must be a matter of record, or so considered. However consideration of the record on the matter of these reasons may operate on the minds of law, not of discretion; a final judgment of the others, they satisfy mine that they are founded whole matters of law in the suit, by deterin the best established principles of the com- mining the controversy, and the cause; which, mon law, and that when they are not found in by the forms of the common law, always is the forms it has adopted, to denote the action expressed in the dead language of the old of a court on a matter before them, their de forms of judgment-Ideo consideratum est, cision is not a judgment of record, cognizable which has exposed this term to the imputation in error, or in the words of Coke and this of technicality; but when its sense and meancourt; "that without a judgment or an awarding is expressed in the living language of this in the nature of a judgment, no writ of error court, and applied to the varied subjects and doth lie" (6 Pet. 656); nor on decisions on mo- modes of its action, a very different character tions "addressed to the sound discretion of the must be attributed to the significant and apcourt, and as a summary relief which the propriate terms in which their decision is an. court is not com pellable to allow." Ib. 657. nounced, according to the case before them. The refusal to quash an execution is not in the Thus, in awarding the writ of habeas corpus : sense of the common law, a judgment, much "The motion is granted," (4 Cranch, 101); or less a final judgment. It is a mere interlocu. “On consideration of the petition," etc. tory order. Even at the common law, error "Whereupon it is considered ordered and adlies only from a final judgment; and by the judged, that a writ of habeas corpus be forthexpress provisions of the Judiciary Act, etc., with granted,” etc. 7 Pet. 583. So, where sec. 22, a writ of error lies in this court only the party is discharged: "It is therefore the on final judgments. Ib. A writ of error will opinion of the court, etc., “that there is not not lie to a writ of error coram vobis, granted sufficient evidence,” etc., "to justify his comby the Circuit Court to correct its own errors; mitment” (Ib 134) "and, therefore, as the “it is subject to the same exceptions which crime has not been committed,” the court can have always been sustained in this court only direct them to be discharged. Ib. 136. against revising the interlocutory acts and Or, after reciting the return of the marshal: orders of the inferior courts.” 7 Pet. 147; 1 "On consideration whereof,” etc., “it is now Pet. 340. “It is not one of those remedies over here considered,” etc., that—be discharged which the supervising power of this court is from the writs "in the said return mentioned" given.” Ib. 148.

“The writ of error coram (7 Pet. 585); in other words, the motion is vobis) was but a substitution for a motion in granted. On the refusal to award the habeas the court below." Ib. No judgment in the cause is brought up by the writ, but merely a deci- corpus: “On consideration of the rule granted in sion on a collateral motion, which may be re

this case," etc., "it is considered, ordered and adnewed. 7 Pet. 149; S. P. 9 Wheat. 578, cited. In judged by the court that the rule be discharged, both cases the writ of error was dismissed 'be and that the prayer of the petitioner for a writ cause it was a case proper for the exercise of of habeas corpus be, and the same is hereby rethat discretion, and not coming within the de- fused.” 3 Pet. 209. Or, “Upon the whole scription of an error in the principal judg- it is the opinion of the court that the motion ment." Ib. "The decision of the court upon a be overruled." "Writ denied." 7 Wheat. 45. rule or motion is not of that character" (a final | “The rule, therefore, to show cause in denied,

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