prisoner not committed by the court itself to be bailed, is by the writ now applied for; of consequence, a court possessing the power to bail prisoners not committed by itself, may award a writ of habeas corpus for the exercise of that power;" and the 33d section was held to be explanatory of the 14th. 4 Cranch, 99,

100.

Circuit Court on a writ of habeas corpus cannot be comprehended within either of the three classes of cases, to which a writ of error is confined by the terms of the 22d section of the Judiciary Act.

The provisions of the 23d and 24th sections 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by pointing only to those cases in which an execution can issue, Hence there are, in my opinion, three objec- or be superseded by the writ of error, and tions to a writ of error from a circuit to a dis- where, upon affirmance, the court may decree trict court, to revise their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 discrea 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 revers3. The action of the court is discretionary, ing and sending a special mandate to the Cirdepending 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 this to a circuit court under the 22d section, which provides that "upon a like process, may final judgments and decrees in civil actions, and suits in equity, in a circuit court, brought there by original process, or removed there from courts of the several States, or removed there by appeal from a district court, be re-examined in the Supreme Court. Independent, then, of the three objections above mentioned, others arise from the additional provisions in relation to the writ of error from the Supreme Court. It lies only from a final judgment, in a civil action, etc., brought in a circuit court by original process, or removed there from a State or district court; consequently, it lies not upon a proceeding on habeas corpus, which is the exercise of appellate power; commencing on petition, affidavit, and motion for the writ, and terminating by an order which the court makes according to its discretion. This order, from its nature and effect, is not and cannot be final; for it only discharges the party from any further confinement, under the process under which he was arrested, "but not from any 623*] other process which may be issued against him, under the same indictment." 9 Pet. 710. The inquiry being merely preliminary to a trial, the order is only interlocutory, and can extend no farther than to the specific subjects of the inquiry, which can have no bearing on the final result of the prosecution, as to guilt or innocence.

By using the term "original process," the law excludes that which is appellate, it relates to the writ by which a plaintiff brings a defendant into the Circuit Court, to answer a demand made in a civil action for a debt or damages; but surely not to a writ issued for persons in confinement under a criminal charge, directed to the officer or person who has him in custody under the authority of the United States, the object of which is to procure the liberation of the prisoner. The same conclusion results from the reference to civil actions in the Circuit Court, "removed there from courts of the several States;" these actions are described in the 12th section, which prescribes the mode of removal, and declares that when removed, "the cause shall proceed in the same manner as if it had been brought there by original process." So as to civil actions removed there by appeal from a district court, which are defined in the 21st section, and confined to final decrees "in causes of admiralty and maritime jurisdiction;" whence it follows that the proceeding of the

in connection with the 25th. An application of these provisions to a writ of error on a writ of habeas corpus, makes it manifest that the law contemplated no such case, no execution issues, the order for recommitment or to give bail, or for a discharge, cannot be superseded; no damages can accrue by delay, and no mandate for execution can be awarded, for no final judgment exists on which an execution could issue. Had it been intended to embrace a habeas corpus, some provision appropriate to the case would have been made; its entire omission affords the most conclusive evidence to the contrary; or if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ, this constitutional privilege. It was designed to afford a speedy remedy to a party unjustly accused of a crime, without obstructing or delaying public justice; both of which objects would be defeated by the delays consequent upon a writ of error, as it may be taken out by either party; if it can be by one, the court can make no distinction between them, as it is a writ of right. Vide 7 Wheat. 42. For these reasons I am fully convinced that no writ of error can be issued by this, or a circuit court, under the authority of the Judiciary Act, to revise a proceeding on a writ of habeas corpus, by any judge or court of the United States; the next inquiry is, whether it can issue on a similar proceeding in a State court.

By the 25th section is is provided, "That final judgment or decree in any suit in the highest court of law or equity of a State, in which a decision of the suit could be had," etc. enumerating the particular classes of cases, "may be re-examined, and reversed or affirmed in the Supreme Court of the United States, upon a writ of error," etc., "in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court; and the proceeding upon the reversal shall be the same except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause has once been remanded before, [*624 proceed to a final decision of the same, and award execution." 1 Story, 61, 62; 1 Wheat. 353. This section differs from the 22d only in using the term "any suit" in place of "civil actions," the effect of which is that the writ of error lies to remove an indictment from a State court, as held in Cohens v. Virginia (6 Wheat.

390, 391, 407, 410, etc., and to a prohibition, in Weston v. The City, etc., of Charleston (2 Pet. 463, 464); but the nature of the judgment to be re-examined is the same, it must be a final one. The 23d section applies to the writ of error to a State court, in all respects as to a circuit court. So does the 24th, unless so far as its provisions come within the exception of the 25th, which it becomes necessary to consider. The 24th section directs that when a judgment or decree of the Circuit Court shall be reversed by the Supreme Court, it shall proceed to render such judgment, or pass such decree, as the Circuit Court should have rendered or passed; except when the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed or matter to be decreed are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the Circuit Court to award execution thereupon."

operate with full force on this; unless some distinction can be found between the terms "civil actions" and "any suit," or "the cause;" in which a final judgment has been rendered, which will justify a writ of error to a State court, in a case where it would not lie to the court of the United States, by reason of its not being a final decision or judgment; or, on any other ground than that it was not a civil action. The only distinction between the two [*625 classes of cases consist singly in this: that the term "any suit," in the 25th section, is broader than the term "civil actions," etc., in the 22d, whereby criminal cases may be revised by this court on a writ of error to a State court; though they are excluded from the appellate jurisdiction of this, over circuit courts; unless they are certified by a circuit court, on a division of opinion between the judges thereof, under the sixth section of the Act of 1802 (2 Story, 856), if such action as is therein prescribed can be called the exercise of appellate power, and not a mere special, statutory authority.

In following to its consequences the settled principle of this court, that in issuing and acting upon a writ of habeas corpus under the 14th section, it is by appellate power, it will appear that the reasons for so considering this power are most conclusive against the exercise of their appellate jurisdiction over writs of error to the proceedings of a State or circuit court, on such a writ issued by either. In defining appellate power in such cases, the court say: "It is the revision of a decision of an inferior court, by which a citizen has been committed to jail;" the question on a habeas corpus "is always distinct from that which is involved in the cause itself (4 Cranch, 100); these questions are separated, and may be decided by different courts." "The decision that the in

Connecting this section with the exception in the 25th, we have the precise case provided for in the latter, "where the damages to be assessed" (in a suit at law) "or the matter to be decreed" (in a suit in equity) "are uncertain," then the Supreme Court may "proceed to a final decision, and award execution," if the cause had been before remanded. Now, it is most evident that neither the exception in the 24th or 25th section can apply to a proceeding on the writ of habeas corpus, for two conclusive reasons: 1. That if the reversal is in favor of the petitioner or plaintiff in this writ, there are no damages to be assessed, nor any matter to be decreed, which is uncertain; the judgment to be rendered is certain, and can be none other than for the discharge of the prisoner, on, or without bail; and is not, nor can be a final decision of the cause. 2. The original suit is on the war-dividual shall be imprisoned must always prerant of commitment, and a decision which precedes the application for the writ of habeas corpus, the issuing of which, and the proceeding upon it are, as has been held uniformly by this court, the exercise of appellate jurisdiction and power.

A third reason is equally apparent in both sections, the final judgment must have been one on which an execution could be awarded by the Circuit Court on a special mandate from this, under the 24th; or by this court, in a case coming within the exception of the 25th; and in either case, there must have been a final decision of the cause, before any execution could be awarded.

The terms "original suit," and "cause," are used in the same sense in the 24th section, so in the 25th, "suit" and "the cause" mean the same thing, both terms referring to the final action of this court, whether they "remand the cause for a final decision," by the Circuit Court, and send them a special mandate to award execution under the 24th, or themselves "proceed to a final decision of the same (the cause) and award execution," under the 25th section.

These considerations bring this inquiry to a narrow space, presenting to my mind stronger objections to the jurisdiction of this court over the present case than would apply to a writ of error to a court of the United States; while all the reasons which apply in the latter case

cede the application for the writ of habeas corpus; and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature." Ib. 101. The case on a habeas corpus is "a mere inquiry, etc., whether the accused shall be discharged, or held to bail." Ib. 125. The law which gives authority to issue the writ defines its object, "for the purpose of inquiring into the cause of commitment" 3 Pet. 201. "its legality, and the sufficiency of that cause." Ib. 202. "Considering, then, as we do, that we are but revising the effect of the process awarded by the Circuit Court, under which the prisoner is detained, we cannot say that it is the exercise of an original jurisdiction."

A discharge under this writ, discharges the party only from such process, and not "from any other process under the same indictment" (9 Pet. 710) or a new one. 4 Cranch, 136.

Let, then, whatever term, action, case, cause, suit, be given to a writ of habeas corpus, and the proceedings upon it; let the final action of the court upon it be called a decision, an award, a judgment, or order, the character or nature of either, and the effect are the same; nothing is revised but the process of arrest, and the decision on which the process issued and the arrest is made; the inquiry is limited to the cause of commitment, and every question arising is always so distinct from "the cause itself," that

this inquiry can be determined by one court, | locutory judgment or award works a forfeland the cause by another. ture, then error lies to be relieved therefrom 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 sufficiency or the legality of the process, as fully as if no habeas corpus had been issued; any judgment rendered by any court affects only the process; nor can it be in any sense deemed a That the course of opinions delivered in this "final 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, under the 22d, or a State court under the 25th section of the Judiciary Act.

Had the learned counsel of the relator disclosed to the court the result of an inquiry why these (so called) technical words were deemed so important, the reasons would have been found to be most decisive in a case of habeas corpus or mandamus; for before the statute of no record was made of the proceedings on those writs, no judgment was rendered on them, and consequently there was no record to remove from an inferior to a superior court, by a writ of error.

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 cases 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 these are the general principles of all law, and the foundation of the universal rule that where power is given to any tribunal, to be exercised at its discretion, whether it is legislative, executive, judicial, or special, the decision of such tribunal is revisible only by some other tribunal to which a supervisory power is given. 6 Pet. 729, 730; S. P. 7 Cranch, 42, etc.; 1 Pet. 340; 2 Pet. 763; 3 Pet. 203; 10 Pet. 472, etc.; 12 Pet. 611. The forms and modes of expression by which any tribunal pronounces its discretion to have been exercised, does not. affect the nature or character of its decision; that depends on what it has decided and its effect, whether it is a final judgment or an interlocutory one, or a mere summary order, direction, or decision, on a rule or motion, which is not in law a judgment, though it may be expressed in the words appropriated to a judgment. The law looks to the thing done, as the true test of whether it is cognizable in error. To make it so, there must be a consideration of the record on the matter of law, not of discretion; a final judgment of the whole matters of law in the suit, by determining the controversy, and the cause; which, by the forms of the common law, always is expressed in the dead language of the old forms of judgment-Ideo consideratum est, which has exposed this term to the imputation of technicality; but when its sense and meaning is expressed in the living language of this court, and applied to the varied subjects and modes of its action, a very different character must be attributed to the significant and appropriate terms in which their decision is announced, according to the case before them.

The omission of the term ideo consideratum est, which is the appropriate and only form known to the common law to denote the judgment of a court on a matter of record, in contradistinction to an order or award in granting or refusing a motion, was deemed good evidence that the law did not recognize a decision in which these words were not used, as a final judgment on which a writ of error could be brought; especially when, by the common law, such a decision was not made a matter of record, or so considered. However these reasons may operate on the minds of others, they satisfy mine that they are founded in the best established principles of the common law, and that when they are not found in the forms it has adopted, to denote the action of a court on a matter before them, their decision is not a judgment of record, cognizable in error, or in the words of Coke and this court; "that without a judgment or an award in the nature of a judgment, no writ of error doth lie" (6 Pet. 656); nor on decisions on motions "addressed to the sound discretion of the court, and as a summary relief which the court is not compellable to allow." Ib. 657. The refusal to quash an execution is not in the sense of the common law, a judgment, much less a final judgment. It is a mere interlocutory order. Even at the common law, error lies only from a final judgment; and by the express provisions of the Judiciary Act, etc., sec. 22, a writ of error lies in this court only on final judgments. Ib. A writ of error will not lie to a writ of error coram vobis, granted by the Circuit Court to correct its own errors; "it is subject to the same exceptions which have always been sustained in this court against revising the interlocutory acts and orders of the inferior courts." 7 Pet. 147; 1 Pet. 340. "It is not one of those remedies over which the supervising power of this court is given." Ib. 148. "The writ of error (coram vobis) was but a substitution for a motion in the court below." Ib. No judgment in the cause is brought up by the writ, but merely a decision on a collateral motion, which may be renewed. 7 Pet. 149; S. P. 9 Wheat. 578, cited. In both cases the writ of error was dismissed "because it was a case proper for the exercise of that discretion, and not coming within the description of an error in the principal judgment." Ib. "The decision of the court upon a rule or motion is not of that character" (a final

Thus, in awarding the writ of habeas corpus: "The motion is granted," (4 Cranch, 101); or "On consideration of the petition," etc. "Whereupon it is considered ordered and adjudged, that a writ of habeas corpus be forthwith granted," etc. 7 Pet. 583. So, where the party is discharged: "It is therefore the opinion of the court," etc., "that there is not sufficient evidence," etc., "to justify his commitment" (Ib 134) "and, therefore, as the crime has not been committed," the court can only direct them to be discharged. Ib. 136. Or, after reciting the return of the marshal: "On consideration whereof," etc., "it is now here considered," etc., that be discharged from the writs "in the said return mentioned" (7 Pet. 585); in other words, the motion is granted. On the refusal to award the habeas corpus: "On consideration of the rule granted in this case," etc., "it is considered, ordered and adjudged by the court that the rule be discharged, and that the prayer of the petitioner for a writ of habeas corpus be, and the same is hereby refused." 3 Pet. 209. Or, "Upon the whole it is the opinion of the court that the motion be overruled." "Writ denied." 7 Wheat. 45. "The rule, therefore, to show cause is denied,