Coston v. Coston
1866 Md. LEXIS 74
Md.
1866
Check Treatment
Bowie, C. J.,

delivered the opinion' of this Court.

A writ оf error may be brought in criminal as well as- civil causes. It has no peculiar power which gives it a wider range or greater effect than an apрeal in the latter. They are but different modes of accomplishing the same thing. The review of judgments of Courts of original and inferior jurisdiction, by a Court of aрpellate jurisdiction. The one is by a writ *505©figinally issued out of chancery, but now from the Courts having chancery jurisdiction directed to the Courts whose alleged еrror is proposed tobe reviewed; the other by prayer for an appeal, entered within the time and in the manner prescribed by law, and it maybе safely said that in this State,in all civil cases, an appeal and writ of error lie “in consimili casuP A suit and final judgment is as necessary in one case as the other.

In the case of the Matter of the Petition of Samuel J. Coston, deсided by this Court at the April term, 1865, (reported in 23 Md. Rep., 271,) it was held, that the order of a judge or Court, upon a petition for a habeas corpus, could not be a subject of appеal, because it was not, in legal acceptation, ‍‌‌‌‌‌‌‌‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌‌‌​​‌‌​‌‌‌​​​​​​‌​‍“a judgment or determination of any Court of Law, in any civil suit or action,” from which alone appеals would lie. This decision was founded on a similar ruling in the case of Bell vs. The State, 4 Gill, 304, in which this Court declared that the writ of habeas corpus was a proceeding summary in its character, addressed to the discretion of the judge or tribunal to whom the application was made, so far as the discharge of the party is concerned; a proceeding where, in many cases, the evidence upon which the judgment is founded, cannot be presentеd to the appellate Court, and is not final and conclusive,”

That decision condensed the reasoning of the adjudged cases in England for a century past, and was several years subsequent to the case of Holmes & Jennison, 14 Peters, relied on by the appellants, and must be assumed to have been settled law, since the Court did not deem it necеssary to refer to authorities to sustain their conclusion. The force of that decision is not impaired in any degree by the new mode of bringing up the question,- as it was not founded on matter of form, but matters of substance. If it were not superfluous to add another to the arguments already urged, it might be said, the main objеct of the writ of “habeas corpus ad subjia *506cienckm,” as a writ of right, which is to release immediately from unlawful personal restraint, is counteracted by converting it into a suit, subject to all the dеlays and expenses incident thereto.

Although the petitioner should be released by the order of the judge or Court to whom he made applicаtion, if that order is subject to revision and reversal by an ‍‌‌‌‌‌‌‌‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌‌‌​​‌‌​‌‌‌​​​​​​‌​‍appellate Court, the final judgment, to be of any avail, must deprive the petitioner of the right оf petitioning again; whereas, the right of petitioning for a habeas corpus, is unlimited in its nature, and the application may be renewed toíies quoties, as long as the petitioner is cоnfined, and a judge or Court can be found to whom he may address his prayer for relief.

It is conceded by the appellant’s counsel that no writ of error will lie unless the judgment is final. This Court has said in the case of Bell vs. The State, the judgment in habeas corpus is not final. All the English authorities, from Cohe to Holt, were reviewed by Chief Justice Kent in the case of Yates vs. The People, 6 Johns, Rep., the result of which he sums up in the following energetic and eloquent apostrophe:

“ I now submit to the cаndor and judgment of this Court, whether I have not sufficiently shown that, by the English law, a writ of error will not lie in this case. We have the unanimous opinion of the Court of C. B. in the time оf Lord Coke, We have the resolutions of the House of Commons-in the reign of Queen Ann. We have the opinion of the Court of K. B. in the time of George I,, and lastly, we have the sanction of Lord Ch. B. Comyns, and all this without a single case, or decision, or precedent, or opinion, to oppose such a strеam of authority. What intelligent person can then doubt of the law ? * * * * The doctrine was laid down in Lord Coke’s day, as of course, as being then the known and estаblished law. The principle is of immemorial standing. It has become the uncontroverted maxim of ages.’5

Although this opinion was not sanctioned by a majority *507of the Senate of N. Y., they being divided as twelve to sixteen, yet, ‍‌‌‌‌‌‌‌‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌‌‌​​‌‌​‌‌‌​​​​​​‌​‍much the greater portion of the Bench concurred with Ch. Kent.

The case of Holmes vs. Jennison, 14 Peters, 540, was a writ of error brought on the order of the Supreme Court of Yermont, remanding оn habeas corpus the plaintiff in error, who had been committed on the Governor’s warrant, to be surrendered to the Canadian authorities as a fugitive from justice. The Suprеme Court of the United States was divided on the question of jurisdiction, so that no decision was pronounced in the case. In announcing their opinions several of the judges expressed their views on the question, whether a writ of error would lie in such a case.

Taney, C. J., Story, McLean, IYayne and Catron, concurred in favor of a writ of error. Baldwin dissented, others were silent. The Chief Justice placed his opinion on the ground that there was a judgment of the highest Court оf the State of Yermont, formally and fully entered on its records, declaring the prisoner was legally held under the authority of the State law, which was preсisely one of the cases in which the writ of error is given in the 25th section of the Act of 1789. That “the validity of the Governor’s warrant was the only question before thе Supreme Court of Yermont, and that question was certainly finally settled.

The writ of error was granted at the instance of the prisoner, “ in favorem libertatis,” under what was considered the established construction of the Act of 1789, in parallel cases, such as petitions for mamdamus and writs of prohibition, which were held to stand on the same principles, and were construed to ‍‌‌‌‌‌‌‌‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌‌‌​​‌‌​‌‌‌​​​​​​‌​‍be “ suits” in the meaning of the Acts of Congress. No such analogy exists in our legislation.

Appeals in cases of mandamus being the subject of exprеss and distinct provision, without the remotest allusion to the writ of habeas corpus in the provisions for appeal or writ of error.

*508In the case of Ableman vs. Booth, 21 How., 506, the Supreme Court of Wisconsin discharged a prisoner, committed by a commissioner of the Unitеd States, for a violation of ■the Fugitive Slave Law. After rendering their judgment, before the writ of error was sued out, the State Court entered on its record, that in the final judgment it had rendered, the validity of the Act of Congress of September 18th, 1850, and February 12th, 1703, and the authority of the marshal to hold the defendant in his custody under the рrocess mentioned in his return to the writ of “habeas corpus” were respectively drawn in question, and the decision of the Court in the final judgment was against their validity respectivеly. The whole proceedings show, there was an attempt upon the part of the State Courts to supersede and annul the authority of the United Statеs, by declaring the law unconstitutional and arresting the action of its officers and Courts, under semblance of the right to issue a writ of “habeas corpus, ” and the United Stat.es had to assume jurisdiction to vindicate its authority.

It is not inappropriate to remark, that the decisions in the Supreme Court of the United States, above referred to, may be considered as turning upon the statutes of the United States providing for appeals or writs of error from the decisions of State Courts, in all cases in which the Constitution or laws of the United States made in pursuance thereof, are drawn in question, and the decision was against their validity.

If writs of error in such cases did not lie, the authority of the United States would depend entirely upon the judicial decisions of the judges of the State Courts.

Independently of this consideration, the authority of these cases cannot control the series of decisions ‍‌‌‌‌‌‌‌‌​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​​‌‌‌​​‌‌​‌‌‌​​​​​​‌​‍to the contrary in the State Courts. After collating all the cases, Hurd, a late writer on habeas corpus, says: “ The current of authority in the State Courts is, that a review of a decision on *509habeas corpus, independently of statutoryprovisions, cannot be had by writ of -error or appeal, and that, on the grоund that the decision is not a final judgment; for which he cites, Bell vs. The State, 4 Gill, 304. Russell vs. The Commonwealth, 1 Penrose & Watts, 82. Wade vs. Judge, 5 Ala., 18. Howe vs. The State, 9 Miss., 690. 2 Cal., 424.

(Decided July 17th, 1866.)

This objection, constituting the appellee’s first point, goes to the jurisdiction of this Court over the subject matter, and being in our judgment well taken, makes it unnecessary, as well as improper, to consider the other points raised by the briefs of the respective parties..

Writ of error dismissed.