Ex Parte Lange

parte Lange. Ex Oct. 1873.] case. of the Statement Lange. parte Ex affirmed, cited, and the cases in of support this court it X. The doctrine of judgment he is held under a that of a prisoner that'where a shows will, law, authority Supreme without of made Court Federal certiorari, record, look corpus and into the by writs of habeas so as far fact, so, found discharge to that and it is to be ascertain will prisoner. and general applicable 2. The asserted as to both civil criminal principle orders, eases, and decrees of the courts of judgments, this coun- term during they made; at which are try are under their control so justice may modified law and require. bo set aside or they may that cannot be so used as to power 3. But it is also declared that this violate the law, guarantees rights found the common and in personal the States of the constitutions of and Union. America, anything jurisprudence England 4. If there is settled and man shall punished judgments it is that no be twice byjudicial for the same offence. provisions Constitution, The of the common and Federal b. law limb, jeopardy twice life or are placed mainly no man shall be punishment to for the same crime or misde- designed prevent second meanor. has Hence, imposed a court fine where imprisonment, 6. when the stat- power only punish imprisonment, ute to fine and the conferred term, cannot, during paid, fine has been even the same modify the imposing the former judgment by imprisonment instead of sentence. so as to be a having The of the court executed full satis- law, penalties of the alternative faction one to offence is at an end. court as is, circumstances, the same verdict under such 8. A second void authority affords no to hold the power, party a pris- want oner, discharged. he must be for writs On of habeas certiorari. coi’pus petition filed court at Edward this former Lange petition for a writ of habeas marshal for day, coi’pus prayiug New York, the Southern District of on the allegation under he was an order of Circuit unlawfully imprisoned for that considera- Court of the United States district. On tion the court was of facts petition, opinion whether the which it raised very alleged fairly question the sentence it had Court, Circuit pronounced, of the ease.

Statement under which the exceeded its not held, had It therefore directed the writ issue, powers. accompanied also a writ certiorari, before this court pro- bring in the under the Circuit Court ceedings petitioner was restrained of his liberty.

From Court, the record of the case the Circuit and the return the of marshal in whose the was prisoner custody ‘the found, facts and were the stated, appeared, following learned who delivered the- the as court, justice opinion the ease: “ The had been indicted under an act of Con petitioner June, 1872,* 8th em passed gress, stealing, purloining, to his use own certain bezzling, appropriating mail-bags to the Post-office the trial, on belonging Department. Upon the 22d 1873, the found him October, day jury guilty to his own use the value of which appropriating mail-bags, dollars; was less than the for which twenty-five punishment in said offence, statute, is for not provided imprisonment more than one or a fine óf not less than ten year dollars nor more than two hundred dollars. On the 3d of No day the vember, 1873, sentenced the judge presiding petitioner under said conviction to one and to year’s imprisonment, hundred two dollars fine. The on said petitioner was, pay committed to in execution of the jail sentence, and day, on the the fine was to the clerk of the following day paid who, and on the turn, of November, 7th day 1873, paid the same into of the United Treasury States. “ On the of the same 8th month the day was prisoner before court on writ of habeas the same corpus, brought the. an order wasi entered for- judge presiding, vacating mer and the was sentenced to one judgment, ¿gain date, from and the imprisonment return of the year’s to the writ of marshal habeas that it was eorpusshowed under latter this held the It was con- judgment prisoner. that all this ceded the same term at which during his trial took before A second place writ of jury. habeas Large, 320, *17 Stat. at § Oct. court. was returned into circuit judge, issued

corpus, on sat with him the two district when Court, judges Circuit and the petitioner and the writ discharged hearing, marshal.” remanded to the custody made a full Arnoux, H. in support Mr. II. discharge, the British and Irish as our own, as well cases, citation their own ; over certain of courts judgments on the power all cases change denying right after made, further, elaborate enrolled; once argument its matter that whatever general .might prove fine in this case having imposed be, imprison- fine could even not, dur- ment, paid, having as it had term, modify do. sought ing Hill, Assistant Attorney-General, contra, H. relied Mr. C. established, the doctrine sufficiently long during made, are all which courts have term at over they power that the moreover, their first arguing, judgments; case was erroneous, rendered this to be treated as being as not words, entered, in other or no ; void and judgment; court could enter a valid that, therefore, judgment, what it In done so in did. had his finally support propo- much on the case of he relied Bassett v. sitions, UnitedStates, this court at December Term, 1869; decided by which “ it is is cause to set aside competent good said same term at which it wms at the rendered a confession, on conviction defendant had entered though ordered sentence.” imprisonment by upon he also last said, The erro- judgment, perhaps, though, so void; not no neous, was to power existed. discharge MILLER delivered the Justice Mr. opinion court. consideration of the On which was filed in' petition this aat former the court was of case day, opinion facts recited raised the therein very fairly whether the question Court, the sentence which Circuit it had pronounced, which the under had prisoner, held, not exceeded its court. the writ directed to issue, accompanied It therefore powers. court the to before this certiorari, pro a writ of also bring by under which the in the Circuit Court petitioner ceedings in such- of this court his The restrained of liberty. authority States, and the the Constitution of United case, under this Act of to issue 1789, section of fourteenth Judiciary in the inferior examine the writ, and to proceedings whether that court to ascertain far as be necessary so its question. open has exceeded authority, longer examined, when note will, cited in the below* cases The can decision as far as this judicial establish proposition it. establish review assertion of a power general

Disclaiming cases, in criminal of the inferior courts over judgments \he we writ or otherwise, pro- of habeas the use of corpus the record of the case as disclosed examine ceed to cus- in whose marshal, .of the and the return Court Circuit whether it shows that ascertain found, the prisoner tody render judgment by had the court below power is held. which itself is to the nature which first

The inquiry presents its own of the Circuit Court over extent them. reversing, vacating, modifying .judgments furnished counsel with full review areWe very American courts on the cases ques- English their once ren- of courts over tion of the power judgments the, criminal these decisions dered in cases. Many and have little are on writs of error but bear- courts English which seem Others, before us. pre- question ing vacated or modified the term cases of sent judgments during are rendered, were based the doctrines at they that there is no or decree courts, the of judgment English is enrolled or has the decree chancery judgment until .the * Case, Dallas, Cranch, Case, ; ; 448 Ex parte 3 Burford’s 3 Hamilton’s 17 Watkins, ; Peters, Case, ; 75; 3 Bollman, 4 193 Same 7 Id. 568 parte Id. Ex Kaine, 103; Howard, 14 Id. Ex 176; parte parte 5 Ex Metzger, parte Ex 307; Wallace, 2; parte McCardle, Ex 4 6 Wells, parte Milligan, Ex 18 Id. 506; Yerger, Id. Case, parte Ex 8 85. Id. 318; Id. Same Oct. of court. the court of and become law,

been signed by judge roll.* part technically judgment of which to the extent of decisions, These some deny- go amend after it be- all or right change judgment ing are to our where roll, comes a inapplicable system, part is no at or, least, roll, part, strictly speaking, of our not a part system judicial necessary proceedings. all, our courts a or a record of minute-book, In not most, court, kept, appropriate proceedings court; all the o ders and repository judgments all its entries as a is, with under the rule, this book general of the court control term to which such complete during entries relate. of the court over

The its own power judgments, general both civil and criminal orders, decrees, eases, during the term at which are the existence of first made, is they And this is the extent of the in undeniable.- proposition be decided the case of Bassett tended to v. UnitedStates.† like was a case in a for mis this, That prosecution which, had been sentenced demeanor, imprisonment. it was rendered on confession. He But was by judgment afterwards, the same term, into court and during brought his vacated, withdrawn, plea' guilty anew; his leave then bail and plead gave given It was in action on the case continued. bail-bond forfeited, that raised had the sureties which he question former of the court to vacate the judgment. right terms, consideration, without much for no In general for the this court sustained sureties, counsel appeared was intended in that case to raise the If it question right. a new and of the court to inflict larger punish- right to the time of without reference his ment on prisoner, set on the one not aside, point pre- imprisonment to receive the attention of and cer- sented so as was not considered decided. tainly would seem that there in the nature of the must, It Wallace, 38. Pleading, Archbold’s Criminal parte Ex

Opinion of the court. some limit thus exercised be criminal cases court, to it. extends cases courts in this class of

The judgment of them The of. life, terms many liberty, property. often time, of many extend considerable periods through term, and vacations in the same months, with adjournments A be sentenced at the discretion’of the criminal judge. as in the old or, to a disgraceful punishment, whipping, off, in the have his ears cut or to be branded law, to English hand or forehead. -rendered the court to this

The effect of being judgment of the term, into before and carried execution expiration or im vacate that sentence and substitute line can the judge be exe latter also to and cause the sentence prisonment, of the court is that the convict cuted? Or the judgment months, he enters be for four immediately imprisoned court, can the after it has the period punishment, upon1 is still in session of the because beeu completed, fully for another, and render vacate that term, same a for line? Not or six months’ imprisonment, only three a but the of such inexpedi injustice proceeding, gross in the hands tribunal is such power ency placing manifest. in the settled

If is there jurisprudence Eng anything no man can twice land it is that America, lawfully same offence. And there for the have though punished this rule to nice cases application questions act was such as to come within in which the charged offence, one or to statutory of more1than definition bring court, than within more one the jurisdiction the party never doubt of its entire and has been any complete there when is second pro party p'uuishment protection facts, in the same for same posed offence. statutory ' one form than finds m'ore expression The principle law. In civil cases doctrine maxims the common twice that no man shall be vexed the maxim is expressed bis una and the same cause. Nemo debet vexari el pro one for Lange; Oct. court.

.Opinion maxim that of this foundation eademcausa. It whether matter, the same of a former plea bar him, defendant or good against in favor of an action. more same directly ap principle, law the criminal In in the Latin, us, expressed case before to the plicable has it, as Coke delicto,”* or, eodem pro bis punitur “Nenio “ twice can be uno No.one bis pro debet puniri Nemo delieto.”† is the transla misdemeanor, crime or for the same punished Hawkins. the maxim of by Sergeant tion maxim cites the same in his Commentaries,‡ Blaekstone reason, man been found of a has if as the person guilty why, indictment, of aud has had benefit clergy, on slaughter he cannot afterwards be law, judgment of suffered appealed. there had been course, punishment

Of appeal would be to the subject and the of lie, would party danger of this But reason of trial. universal by form another prin- twice for the punished shall be that no same person ciple, when of that ancient appeal gone offence, right pun- The protection had once suffered. ishment against in the same court twice must inflicting punishment action as as within the maxim, clearly surely necessary, a chances or from second danger punishment protection trial. a second not a law second common only prohibited punish- The but it went further offence, the same for forbid a ment same whether offence, for the the. accused had trial second or and whether in the not, former trial suffered punishment or convicted. had been acquitted indictment or information a Hence every charging crime a known and defined or misdemeanor, with party statute, law or a at the common whether by plea autrefois convictis a defence. good acquit autrefois' * Crown, 2 Hawkins’s Pleas 43, 95, a; Id. b. Reports, † 315, 4, edition. Sharswood’s Vol. ‡

Opinion of the court. Tennessee, it was Iu the case v. The State of Crenshaw the common- held State that Court Supreme indictment, law went that an further, still principle namely, a not case of conviction, capital punishment felouy a all felonies not capital bar to other prosecution and execution. conviction, committed before judgment, J., If in cases, Drake, Cooper, civil State says law it is more watchful suits, abhors multiplicity yet the subject, criminal cases that the crown shall not oppress unreasonable or the citizen, prosecutions. government have, law the common These principles salutary in the constitutions some been embodied extent, YII of Article several and of States. States the United By declared that it is the amendments to the latter instrument re-examiued no fact once tried shall otherwise by jury to the than court of the States according United that no law; and Article Y, person rules the common of life shall for be twice offence put jeopardy or , life, or limb property . nor be liberty, . deprived of of lawn without due process other .cases insist that this case to

It is not in necessary life are covered positively or limb besides those involving a has amendment; or that when of this party language .and has had a a court fair trial before jury, competent him excess deprives convicted, punishment course' due of law. On the or without liberty property to maintain, difficult hand it seem be equally other would inflexible rules of the com- we have.said of the after what for the same twice law punished mon person being against is iu as this offence, pronounced that such second punishment of that Constitution. case not violation provision the instrument to spirit prevent It very clearly for the same under second judicial proceedings punishment crime, law far the common protection. so as gave one of the case Olds,‡ of The Commonwealthv.

In * 1 Yerger, Jersey, Martin & New 122. Green’s 375. Littell, ‡ Oct. of the court. ever sat on the bench of law

best common judges “that remarked, of Kentucky* every per- Court Appeals must know with history governments son acquainted as a formidable trials have been employed engine that state To administration. ... a dominant prevent in the hands of well as law, ancient common this mischief the Magna conviction should that one itself, acquittal Charta provided the accused should law; words, other or, satisfy himself of to him of secured availing have the right always convict. To perpet- acquit pleas autrefois autrefois so favorable rule, liberty this wise necessary uate sub- so ours, in a like frequently citizen government sentiment, was the popular feeling ject changes into our Constitution the clause of introducing design question.” The Court of Cooper Supreme In the case Statef indicted, tried, and had been

of New Jersey, under this still in custody pro- While for arson. convicted for the indictment murder on an he was arraigned ceeding it was when burned. in the' house who were of two persons bar, conviction the former this To pleaded It is to be observed it a held plea. Court good Supreme extend for arson could not technically that the punishment Court founded its limb; but life or Supreme either to of the constitution of New Jer- provision argument of the Federal which embodies precise language sey, to the common law maxim After referring Constitution. “ of New declares The constitution Jersey says: shall in this form : ‘Nor any person principle this important twice to be same offence jeopardy for the put be subject have courts of would Our or limb.’ justice recog- life of the most valuable one of princi- and acted upon nized constitutional law without any provi- common ples have of our Constitution thought the framers But sion. who are conversant with And all notice. of especial worthy that this satisfied principle must be great of justice courts Rep. * Green, 361. Mills, J. — †

Opinion of the court. „ forms one of the bulwarks of . . this strong liberty. Upon are oí founded and principle pleas acquit autrefois autrefois n convict.” in his of And Hawkins Pleas the Crown* that both says of convictare pleas acquit grounded autrefois autrefois a shall on the maxim that man . . . not be into brought for and the same of his life one offence more than danger once. the defendant was Illinois,† fined People In Moor v. The of the criminal code dollars under of that

four hundred State a slave. The case for came negro harboring secreting section to this court under twenty-fifth Judiciary on on the Act, legislate subject right ground The court did not concur in was exclusively Congress. But it also that view the question. urged twice to for the same be subjected punishment party might under statutes of offence if liable to be both prosecuted In to this and National regard State legislatures. Judge that “the exercise in a said, opinion, McLean dissenting effect, Would, the States violation power by the Unified States respec of the Constitution all second provide punishment They against tive States. “ “ It n forthe same act.” said he, nature contrary,” individual to permit of our government genius act.” twice punished his latest edition of work .criminal Mr. Bishop, this con constitutional provision, says law,‡ speaking words is rule extends to .the properly struction these not misdemeanors. Yet felonies, practi all treason and it to have applied misdemeanors, courts and wisely cally construction of statutes of the liberal in view and that with crime he can in faWor charged persons constitutions refuse to this can constitu apply courts well see how not misdemeanor. in cases of tional guarantee life and limb in the words speaking drops also Chitty§ Howard, 13. 515, Pages Law, 1 Criminal 452-462. 990, 991, 5th edition. § Sections ‡ parte Lange. Ex Oct. of the court. and declares convict, acquit pleas autrefois autrefois man on the no shall both principle that they depend

more than once be peril legal penalties upon placed the same accusation. that at the time this maxim came

If we reflect into exist- with offence was death other ence almost or punished every and that are these person, pleas touching punishment minor felonies, crimes, valid and misdemeanors now held alike, on the when a statute under difficulty decidiug does or does not describe a when it modern systems felony offence, we shall see reason defines punishes ample intended to be asserted principle for holding must be to all cases where a provision applied constitutional is to be inflicted for same attempted second punishment sentence. judicial offence by what avail the constitutional protection

For against trial if there can be than one number of sentences more the same that, on verdict? "Why having pronounced and found can never be tried tried been guilty, once it is not the or offence? Manifestly danger again a second time found It is the being guilty. jeopardy would follow the second convic- legally punishment the real which is the Con- against tion danger guarded -after has been rendered if, But on the stitution. and the sentence of that executed conviction, judgmeut he can sentenced the- on that con- criminal, on again another and different or to endure viction to punishment, is the time, second the same constitutional punishment not its intent value? Is and its restriction spirit as if new trial had a case much violated been in such a second on a second conviction in- had, punishment flicted? irresistible, us and we do seems to not

The argument as much to pre- doubt Constitution designed for the vent the criminal from twice being punished offence as from twice tried for it. being, there is a class a second trial is

But cases which had without this As when the fail to jury violating principle. '

Opinion of the court. rendered,* verdict has or the verdict set and no agree writ accused, of error aside on motion of prose found describe or the indictment was him,† cuted offence known to the law. that, in the the first rendered

And is said so judgment as no be treated case erroneous'must present judg being bar to the rendition of and, therefore, no ment, presenting unsouud. a The but valid argument plausible judgment. The of the court over that just judgment If it was void valid. for in whether or same, a for two rendered stance,had years’ imprison judgment its doubt, on own motion, it could no have vacated ment, the term and rendered a during judgment judgment ifor, for one of the no sentence imprisonment; part year’s executed, had beeu could have a rendered for judgment dollars fine after two hundred first. Nor are vacating we case could be found where first prepared say, sentence was wholly void, absolutely where judg session, ment was rendered when court in aat time when no term was held—so void that the officer who held under it would liable, prisoner or the prisoner at to assert his freedom perfect liberty force—whether under payment, money such an imprisonment order would abar to another on the same judgment conviction. this we have On for we have nothing say, no such case rendered, before The first us. erroneous, though void. It was was not rendered á court absolutely had of the jurisdiction party on offence, valid The verdict. error'of the court the two imposing pun ishments mentioned when statute, it had only alternative of one of did them, not make the judgment void. Miller v. wholly directly point. But Finkle‡ we think no one will contend that the first sentence was so void that an action could absolutely be maintained Perez, Wheaton, States United 579. Casborus, Johnson, People v. 351. 1 Parker Criminal Reports, ‡ Oct. the court. for prisoner the marshal trespass holding

against under it. into fine im- then,

The paid having petitioner, dollars, hundred him two money- posed upon States, the United Treasury passed into having or of one else but of the court, control beyond legal under- and be also States, United having Congress one all under a five year’s imprisonment, days gone that, the court vacate valid can entirely, judgment, it, what has been done under and without reference to that same another ou the impose punishment twicefor the same To do so is to him offence. verdict? punish twice, but to actual put pun- He is not put only jeopardy twice ishment thing. cannot be illustrated of this better

The force proposition case if second what than occurs present judg- law into effect. The authorizes is carried imprison- ment or a fine not hot one two exceeding ment exceeding year inadvertence, The imposed hundred dollars. through it but when could one. impose both rightfully punishments, and into the was and passed After the fine treasury, paid five his one had suffered days year’s imprison- petitioner its the court ment, him 'to changed judgment sentencing time. from that If this latter one sen- imprisonment year’s in the end tence is it-follows prisoner enforced pays fine his and is one two hundred dollars and imprisoned year ou him, five all that first being judgment imposed days, addition. And this is five done days’ imprisonment was the first excess of confessedly because judgment court. authority that, all it has been said this,

But conceding judgment which the now held under but prisoner erroneous, not as review void; and this court cannot that for judgment can when it is error, it prisoner only void. discharge we concede the But do not in. this major premise argu- be erroneous and A not may void, ment. it judgment it because is void. erroneous The distinctions be be- may voidable are tween void merely judgments very nice, of the court.

Qpinion other as they the one class or the fall under may they are for different purposes. regarded in this case, that when the are prisoner,

We of opinion one of the valid had suffered reason of fully judgment, to which alone the law alternative subjected punishments was him, of the court to further punish gone. power its we have discussed then interposed That the principle he for and forbi'dsthat should shield, punished again the mo- at 'The record of court’s proceedings, offence. in that was showed that rendered, ment the second sentence had and for that .case, offence,, very fully very th,e alternative and' endured one óf performed, completed, that.offence, which the law prescribed punishments account of other. had suffered five days’ imprisonment for that thus that its to punish It showed power the whole doctrine of our was at an end'. offence Unless and the the Constitution both of system jurisprudence, in that common for the law, protection personal rights of the court punish are a nullity, authority regard, exhausted; its The was power prisoner'- gone! but was error, It it further exercise was prohibited. did further to render error because the not exist. the court had this jurisdic- is no answer to to say

It arid of the offence under "the tion of prisoner, person means follows these facts It statute. .two be, however erroneous valid, may make aIf in such case. justice the court render peace, misdemeanor, and with the to fine for a jurisdiction having render a should him, before' judg- properly party charged would be void. void ? simply Why ment hung, render such a So, had judgment. Because power an indictment should, on a court of jurisdiction general of or confiscation death, prop- render a libel, for judgment be void. Or if on an reason, for the same would, it erty, ta render the coürt should indictment treason in- of the criminal could not attaint, whereby heirs of the should the' his which by herit property, Oct.

Opinion of the court. confiscated to the it would be void as to State, court be in excess of the of the attainder, because court, authority aud forbidden Constitution. A case is that of Forrest. In point directly Bigelow certain that under the confiscation acts of case, Congress, sold, lands of French Forrest had been condemned and became the holder of the those title conveyed Bigelow death After Forrest’s his son heir proceedings. brought lauds, recover the suit to contended that under the joint which resolution declared that condemnation Congress, act should not be held to under work forfeiture of the of the offender the title life, real estate his natural beyond with the terminated death of the Forrest. elder Bigelow this it was In decree argued opposition in terms court ordered all the property confiscating sold, the said Forrest to be and that estate of thispart though decree was not was a erroneous, void. Here might of case of a in rem where was within property proceeding and its to confiscate and authority power but the statute the extent beyond question; sell under limited statute. The to the was power analogy us almost In that case the case seems perfect. before on behalf however, “It plaintiff said: argued, the decree of confiscation of the District Court of error that conclusive, that the entire title, States is the United right, aud Forrest condemned ordered and interest French a fee sold; that as his interest was simple to be Doubtless, and sold. a decree of fee confiscated entire -to make the decree cannot be a court jurisdiction having but under the act the Dis collaterally, Congress impeached to order a sale had no trict should Court confer French Forrest. Had outlasting purchaser rights life of doc have transcendedits The jurisdiction.” so it xoould done in the case of v. Micouat Day that case is reaffirmed trine of where said iu v. Forrest it is term,† Bigelow present “ was within the we determined that more ju also nothing * Wallace, Supra, 339.

VOL. XVIII. Ex parte Lange. Clifford,'J.,

Opinion of dissenting. or of the risdiction District judicial Court (than life decree estate), consequently condemning than fee could have no effect to the life estate greater subject to sale.”

But could it Not because it why not? wanted jurisdiction offence, of or or to render a property confiscation, of but because act of very rendering it condemned than confiscation 'more it had to words, In other in a ease where condemn. authority had full to render one kind of jurisdiction judgment, opera- tive the same it rendered one which included property, that which it had a render, more, right something aud was held this excess void. The case before us simply is than for our unless has been en- that, stronger reasoning th'e court in the case fault, at could render present tirely second Its prisoner. judgment against authority further of it in ended. All exercise that direction was for- the Constitution, common law, bidden by dearest both them are personal rights, principles to maintain. supposed .ño is more

There sacred of a than, a case duty it, to maintain before those securities properly unimpaired for individual which have re- personal rights the. for sanction of statesman; ceived ages jurist cases no or and in such narrow illiberal construction should the words fundamental law in which given they Without

are embodied. either the Constitution straining States, or the well-settled of the United principles-of we have to the law, come the sen- common conclusion that the Circuit Court under which the tence petitioner without pronounced held and he authority, therefore should discharged.

Discharged accordingly. CLIFFORD, Justice Mr. dissenting: made the act 1872, June, Provision eighth steal, who shall or embezzle purloin, person any any or other in the use of or property mail-bag belonging Oct. Clifford, J., dissenting.

Post-office or who Department, shall, lucre, any gain, convenience, such to his appropriate any use, own property or to other than its use, or who proper shall, for lucre or gain, convey the hin away any pioperty drance or detriment of the his service, public aiders, abet and tors, counsellors, the value of shall, be property dollars or be more, deemed twenty-five and guilty felony, on conviction thereof the offender shall be not imprisoned three and if the value of the exceeding years; property less than twenty-five dollars, shall be party offending not more than one imprisoned or be fined not less than year ten nor more than two hundred dollars.*

Pursuant to that act of was in- Congress petitioner dicted in the Circuit Court United States for the York, Southern of New held District on the by adjournment seventh of October, ; and it that the appears indictment contained twelve count's, each of which he is charged with either unlawfully, knowingly, wilfully, feloniously stealing, purloining,'or fifty embezzling mail-bags belonging Post-office each of the Department, value of cents, fifty or with unlawfully, knowingly, wilfully, felouiously ap- the same to his own use or to some other propriating than or with use, its proper unlawfully, knowingly, wilfully, the same to the felouiously conveying away hindrance and detriment of service. public cannot be

Doubt entertained that each of the twelve counts the indictment is well aud drawn, they embody in the defined aforesaid act of Con- legally offence.which the record it also that a By was appears gress. jury duly jn on the fifteenth of October the same impanelled year, the trial of the for defendant and that upon indictment, on the of the same jury, twenty-second returned month, that the verdict defendant is their and that the valué guilty, the said is less than dollars. mail-bags twenty-five as the defendant Convicted a valid indictment, was liable to he b'e punished by being not more imprisoned Large,

*17 Stat. at Clifford, J., dissenting. than, less ten nor more than than one be fined not year at the trial, hundred dollars, two but judge presiding third on the of November in law-, without authority day “ the same the defendant sentenced year imprisoned he hun- for the term of and that a fine of two one year pay dred that he was remanded to and it dollars,” prison appears is also in execution of the sentence. exhibited Plenary proof the fine defendant, on the full following day, paid under date that clerk and the clerk certifies said “ of the court.” now on sum is deposit registry after to wit, the sentence pronounced, Two days in behalf of November, fifth of the same application the district district was made to defendant judge that the writ was and it a habeas immediately corpus, appears made to the Circuit Court on the returnable granted made Due return was the same November. eighth and the return shows that marshal, produced of. the sentence, a certified copy the defendant stating the and de- was the cause of that the sentence imprisonment therefore, was tention of the petitioner. proceeding, Regular a before the for review of the sentence instituted money paid court, fine as it the out the passed ap- registry .for that the fine was not to the amount of the deposited pears n creditof the the until Treasurer of the United States day before the return the writ of habeas On the day corpus. came in the Circuit Court following day by adjournment, the the within same term as that when indictment was tried, the same sat in the aud and who who judge trial presiding the sentence which is the At- subject complaint. passed was called the of the marshal the tention to return to writ of habeas and the been heard the fol- corpus, parties having took lowing proceedings place: the the sentence court.—Ordered

By pronounced the defendant ou the third of the month be, against present same is and the vacated and set and the aside, record hereby, “the states that court to thereupon proceeds pass judgment' and anew resentence im- Edward be prisoner, Lange, for'the term of one year.” prisoned Oct. Clifford, J., dissenting. was made the circuit

Application subsequently judge, on the seventeenth of December in the same for a writ year, and writ certiorari, habeas a end that corpus the. and prisoner it might discharged from.custody, 'appears a that the circuit rule the district judge granted requiring marshal to and the attorney show'cause before Circuit on the of the same at 11 Court, twenty-fourth month, o’clock forenoon, two writs mentioned should' not why made, issue. Service and the parties and were appeáred heard before the circuit and the district judge judge and the who district sat the trial of the judge indictment who two sentences. passed both sides Counsel on were heard, the court denied upon ground application judgment, being afor authorized expressly act of punishment by Congress, cannot writ habeas unless it impeached corpus, ap- had the court no pears jurisdiction pronounce sentence. to answer that proceed commenc- inquiry, The}- the remark that the with jurisdiction ing questioned only on a had, .that upon ground previous day term, pronouuced judgment different imposing have added that sentence, they the sentence might first imposed punishmeut'not-authorized pronounced under act of which the indictment was Congress found. as the former Vacated the order of the to consider case, they proceed aspect, that if court had remark to vacate that that was the effect, became.of of the court duty to deal with the his conviction of the offence indictment, and for the reasons charged given, set forth in the more record, the rule fully they discharged and the denied application. wit, to on the of the same twenty-ninth

Subsequently, December, the Circuit Court came in by adjournment, again who the the sat on trial of the indictment judge presiding the and who sentences the passed defend- respective against if ant, and that the the of being suggested rights prisoner be better would the writ of habeas preserved corpus Ot. Clifford, J., dissenting. of was or- application, as preceding prayed granted on the same and the issue returnable day, dered that writ the counsel were made, beard, return the again having sentence was that the second pro- but it conceded being the first it was or- sentence, the term as nounced and that habeas dismissed that the writ of corpus dered reasons the court the the remanded prisoner given on the last occasion. the Whereupon petitioner, preceding for a counsel, his to this court writ of habeas cor- applied to marshal the directed the prisoner custody, pus having him to the at time prisoner produce commanding then there direct, court shall marshal the end cause detention, of prisoner’s show from also custody; petitioner maybe discharged certiorari issue the clerk that writ of of might prayed him to for that district, Circuit Court certify commanding court all the record of that court case to this respecting end that errors therein be cor- of the prisoner, rected. with the ordered, writs but understanding

Both were not be issued and would served corpus the writ habeas heard the return of the the counsel were further upon until certiorari, the return writ of certiorari writ of were heard, the counsel fully majority was entitled to be from decided discharged Unable to concur that conclusion, his I imprisonment. to state reasons of dissent. my will proceed section of the the fourteenth Act it Judiciary pro- By that either of the other vided, among things., justices aswell Court as the District Courts judges Supreme writs of habeas for the have corpus 9hall grant pur- into cause of commitment,'provided inquiry pose in no case shall extend to writs habeas corpus persons are in under or custody unless where color they in jail the United or are States, committed for the authority or are same, some court to be necessary trial before construed into court to testify. Properly prin- brought Court as well as the Supreme empowers cipal provision Ex Oct. parte Lange. Clifford, J.,

Opinion dissenting. thereof to issue the writ and to relief as justices grant to the prayed petitioner.* is also other acts conferred upon

Authority subject act, but it is refer other Congress, unnecessary as the is this case petition founded obviously in the Act. provision Judiciary

Courts of refuse to the writ of habeas justice may grant where no is corpus probable relief shown ground or where it that the com petition, appears petitioner duly mitted for or treason in the warrant felony'- plainly expressed that, of commitment, but where is shown probable ground under or party color custody by7 authority United and is States, cause, and, without imprisoned just therefore, has a delivered, be the writ of habeas right then becomes a de corpus not be writ right as it to be nied, man is unlaw who ought granted every committed or detained in or otherwise restrained fully prison of his Authorities in of these liberty. support propositions are as wherever the common unnecessary, principles law have been are adopted recognized they universally acknowledged.

Civil however, society, could not exist it were permitted that crimes should nor is it true that the go unpunished, writ of habeas was ever corpus intended as the to operate means from his if he delivering imprisonment had been indicted, duly convicted, and and is in sentenced, virtue of a lawful conviction under a valid prison indict- ment and a sentence legal of a passed consti- pursuance law of the tutional where jurisdiction the offence was com- mitted. No is made in objection this case to the validity indictment, was, nor is it questioned defendant convicted of the duly offence set forth in the several counts of the indictment. all Beyond question, therefore, it fol- ' lows-that he was liable to not more “imprisoned than one or to fined not less year, than ten nor more than two hundred dollars.”

[*] Stat. at Large, 82. Clifford, J., dissenting. contro- can be successfully None of these propositions that the act verted, it is conceded Congress impliedly the indict- even and it is not law, is a valid suggested or in the trial was error or that there any ment is defective several Concede these proposi- of the in the verdict jury. that the defendant tions, and follows beyond peradventure for the term of to been sentenced imprisonment have might sentenced to a fine or he have been pay one year might both, him to but the court sentenced dollars, two hundred for the term of one that should is, imprisoned that dollars, a fine he should of two hundred and that pay 'year, act of not authorized which is a sentence by Congress and under which the-indictment the offence which defines found. sentence pronounced is insisted petitioner It by and that if exceeds the case pun such a is entirety, in that and in law it wholly illegal, ishment provided * concur. He cites cases which I entirely fully proposition were, Most of these cases decided the proposition. support in where there was aud jurisdictions in tribunals appellate act any authority impose proper conferring legislative to the to remand the court ju sentence original ot' and of for that purpose, only judgment risdiction which, course court could render was that of reversal, the appellate de prisoner. Legislative which operated discharge corrected, in have been kind, many jurisdictions, fects has done the sentence that been' aud wherever proper or the case is remanded either appellate imposed the court purpose.† original jurisdiction never to exercise has this court empowered any Congress Creswell, Bourne, 395; Ellis, King v. 5 Adolphus 7 Rex v. Barnewall & Silversides, ; Queen, 3 The 58; King v. B. 406 v. 7 Id. Ellis, Q. Queen & Missouri, Lowndes, 774; Dowling Page, Ex 49 Regina, parte v. 2 & 795; Holt Queen, O’Leary 1; Symes, 357; People, 2 & v. 4 Holland v. Jebb 29 Commonwealth, 187; Shepherd Metcalf, v. 2 Reports, Criminal Parker’s Defendant, State, 360; Fitzgerald 4 v. Id. v. 419; Same Wisco Stevens n 395; 128; sin, Fellinger People, Reports, Ratzky 15 Abbott’s Practice v. v. York, 124. New People, 29 York, Ratzky People, New Oct. Clifford, J., dissenting. in over the Courts Circuit

appellate judgments ppwer criminal -where the Circuit is held cases, Court except two in differ they opinion judges certify ques tion here for the Ex difference decision this court. limited class cases this court cannot re-examine cept or decision of the criminal Circuit Court any-ruling nor awill of error-lie this court case, from Cir writ cuit Court in such case. under statute of Exceptions, were Westminster, never allowed criminal .in cases and from the country, moment parent statute as the rule of decision the Federal courts to the adopted its time, without has application, present any exception, been confined to civil actions.* uniformly to re-examine the Authority and decisions.of the rulings Circuit Courts in criminal cases be vested might undoubtedly Court, but the Supreme difficulties in insuperable at the time is way exercising present has not conferred such Congress any jurisdiction. Congress, has iii true, is not declared that the express appel terms late Court shall not jurisdiction Supreme extend to civil cases, criminal nor to actions or suits in where equity in matter exclusive of dispute, does costs, not exceed the sum or value two thousaud dollars, but has Congress described affirmatively appellate jurisdiction Su Court, and that affirmative has preme description always “ held to a on negative exercise of imply such ap isas not within comprehended pellate it.”† those this Governed court principles has decided in re instances that a writ of error will lie, not under peated any circumstánces, to Circuit in Court a criminal ease.‡ Law, Chitty 622; Levinz, 68; 1 Siderfin, 1 Criminal 1 65; Rex v. 1187; Stratton, Trials, 21 Howell’s State States v. al., Gibert et 2 United ; 90; Sumner, Holbrook, Johnson, 22 13 People v. Barker, Cowen, Ex parte 7 Evidence, 108; v. 143; People Vermilyea, Phillips Ib. 2 997. , More, 170; Cranch, v. 3 United States v. Durousseau United States Id. 314. 42; Ex parte Wheaton, Watkins, Kearney, parte 7 Peters, 201; 3 ‡ 571; States, Howard, Forsyth Kaine, United 9 In 120; re 14 Id. Ex parte Peters, Watkins, 568; Gordon, Ex parte Hack, [Snp. Es Clifford, J., dissenting. lie in a case still the if a writ of error would such

Even advance the concession would not favor argument upr writ been sued served, as no out or has petitioner, here which authorizes the record under this is any process Court, of the Circuit to reverse affirm judgment is not sense writ of habeas addressed as the corpus any with view to correct which it any judgment anything is the removed nor here for other contains, judgment than as evidence to set support representation purpose is unlawfully im- petitioner forth petition, the. his follows, or restrained of Hence it liberty. prisoned as that the the record shows is in inasmuch indictment due valid, is and that conviction aud that the form, and such as the act of is form authorized Congress legal Court to order impose, only proper .Circuit casé was to remand the could prisoner, this .court give in can be more than that done in the case without as nothing such as the court exercise appellate power might exercising the court to had authorized writ of error grant Congress as in a civil action. re-examine would still lie, of error it is a writ' manifest Grant not could corrected without a error bill the alleged is not error apparent as the record. of exceptions, under which the the sentence is contrary, petitioner theOn framed, can be as one as it perfect follows imprisoned one either conviction, and no pretends convic- .in or that the indictment is invalid respect tion erro- writ of therefore, the Unless, habeas can corpus neous. prop- of a bill of the office-both exceptions erly perform this court must be of error erroneous; writ decision.of the writ of habeas true that if it be corpus perform may it follows then that this offices, those court has of been both its whole as it has history, error throughout always in the re-examine court to the of the judgments competent cases, in criminal as it seems to which, me, Court Circuit to admit. is impossible a of for bill provide exceptions criminal-

Legislation is authorize a writ of error or to cases certainly unnecessary Ex Oct. parte Clifford, J., dissenting. of "Torhabeas well filled with the affidavits

if corpus, petition who tried the case and the counsel tvho of jurors defence, will answer the it as will be purpose, conducted need'be, if easy strengthen proofs, by opinions chamber counsel the affidavits of by sympathizing and of the short-hand writers for the bystanders employed -of Plenty occasion. material that kind can readily that will answer obtained, aof bill of purpose to correct of a exceptions Federal made rulings judge, case, of a criminal trial it is evident that no quite the. is further subject legislation upon necessary. this it that the .to writ habeas

Opposed may suggested case in this the writ of certiorari, corpus accompanied by must be and it must admitted, which also be admitted that office of writ certiorari record bring up subordinate court for the of this from inspection the court, virtue of the writ of order that habeas by corpus, commitment; into the cause of but if it inquire appear the cause of commitment is the aof court of judgment case, not revisable this court, jurisdiction competent is that the is of itself settled law a sufficient judgment commitment, for the neither writ of cause habeas the-writ of certiorari'will nor the office corpus perform Hence court, unless exceptions. appellate bill speci- authorized to do authority more, legislative cannot ally cau it nor re-examine the look beyond judgment, pro- which led it, reason, for the as Marshall, J.,C. ceedings that a its nature concludes the sdys, judgment subject is rendered and the law of the pronounces case, he adds of a court of record whose is final is as conclusive on all the world as jurisdiction this court would be. It an end to puts inquiry fact it.* concerning by deciding understood, It is to be said that this Judge Story, has confided to it in criminal jurisdiction eases appellate the laws It United States. cannot entertain a writ Peters, Watkins, 202; Ex Wheaton, parte Kearney, 7 Es parte Lange. Clifford, J., dissenting.

Opinion of in of Circuit Court of error to revise the any a offence. of public case where has beeii convicted a party court this cannot di then, learned If says judge, in a criminal of the Court Circuit revise rectly a intended is what reáson thereto case, Congress suppose itdo ?* invest with the to to it authority indirectly court and is the case before the those Apply rules remanded, itas should be appears clear that the petitioner in virtue of a sentence of the return that he is prison by in form, the Circuit pronounced Court regular the court in conviction founded legal pursuance valid indictment. defendant became liable virtue of the'conviction the

By for a to be term not more.than punished by imprisonment nor more than one or to be fined not less than ten two year him hundred and the court sentenced dollars, imprison- ment for the term of one year. is fact however,

Much stress, placed upon alleged character, the first was of different .that sentence imposed and a for the term one fine it included year imprisonment is a sufficient answer to dollars,, of two hundred but it that neither the court im- to say ruling suggestion that sentence nor the subsequent ruling posing sense is in it and it aside proper any setting vacating that effect are found of the record. Statements part can the record nor are no but those minutes, they part a bill made mode than exceptions, so other civil which is a unknown ac- except wholly proceeding record of a tions. included in the crim- properly Nothing indictment, inal case except arraignment con- defendant, jury,'the plea impanelling sentence viction of the defendant pronounced by ease removal in the warrant for his punish- add ment Affidavits cannot imprisonment. anything can neither is as clear be.that record, anything States, 3 Mc Wheaton, 42; v. United Kearney, Johnson parte Ex Lean, 89. Oct. Clifford, J., dissenting. nor habeas the writ of writ of certiorari can corpus not into review on the'face of the anything, apparent

bring record. in the defects are in this

Certain proceedings alleged case, are on face which the of the none of record. Ref- apparent be made to of the erence will two as only defects, alleged ones much are the only pressed They they argument. That different are as sentence was first follows: (1.) pro- wit, court, the nounced defendant should be for the term of one and that he should imprisoned year pay two hundred dollars. a fine of That he was remanded (2.) of that sentence. pursuance prison has been remarked to show already that the first Enough as the court, was wholly under the illegal, sentence act of offence, the could not defining Congress lawfully pronounce ' and that the sentence, as soon the as was error the discovered, directed that defendant should be brought the vacated sentence and into court set it aside, which, had the must effect to as all render it a agree, nul- complete it ever had even if force or which is effect, not ad- lity, are mitted. doubts entertained whether of these Strong the of are consideration, matters but it must proper subjects think, I the admitted, if are admis- affidavits, they the are all, at reference proper subjects sible to show what did take place. really a sentence, vacated and set aside

Certainly the court the within it, term,, for reason pronounced erroneous, to it was prejudice plainly prisoner, the moment it was the vacated and set aside, from be re- must, Such as conclu- nullity. being necessary legal garded the case before court was the same the state sion, just had ever have been no sentence been passed, as it would that the defendant was record showed con- legally an offence of"the United against authority victed indictment, a valid and that sentence which States, upon such an offender had-never been the law imposed pro- No motion new trial the case. nounced pending, other in the case were as all the ended, proceedings Ot. Clifford, J., dissenting. was the sentence of the court to pronounce duty plain which the law case. imposed

Two are taken to objections principal right sentence, court under circumstances to those impose is one it is sentence-pronounced though admitted^hat which the iudictment which the under act Congress iu the framed the court to case. .Those authorized impose after defendant, are as That follows: objections (1.) under the first remained sentence, remanded having the court the order before five-days passed vacating prison defendant, That the the sentence and aside. setting (2.) November, the first sentence on the fourth of after day fine amount to the clerk imposed passed, paid clerk, the seventh Court, and that the Circuit before the sentence was month, the same day existing fine to the the amount of credit of imposed, deposited Treasurer of the United States. the neither the defects if must .All suggested, agree in as the be, record, is the former sen- apparent such they vacated and set and the evidence aside, was before that tence fine consists of the unsworn certificate of the the payment in exists a sentence clerk. Great difficulty the regarding has vacated and set aside, which been as case, a criminal in belief one the seems record, past a part that the certificate of the clerk for a moment contend should fine from a the amount of had received prisoner that he of the record in be as any part should execution regarded case. the present however, are theré several difficulties, from

Aside those involved which are very importance great other questions which will criminal be sepa- the administration justice, considered. rately as it is all- of the tacts are'Without dispute,

Confessedly first sen- defendant, the the of the conviction conceded the writ of habeas corpus, first the tence, granting aside, and the first sentence setting order vacating record, all took it now place as appears sentence Court; and it-also ap- same term of Circuit during paute Oct. Clifford, , dissenting.

Opinion of J is de- defendant that the sentence under which the pears who tained in by judge prison pronounced at the trial of the and who imposed presided prisoner sentence which was vacated and set aside. maintained the United are by

Four principal propositions duly That sentence prisoner States: passed (1.) if defined an act of convicted of an offence by Congress, other aside like vacated and set judg- erroneous, may it was by the term in which ment pronouuced, during awarded and that sen- it, prisoner may court the offence term, law, in the same tenced provided by au erroneous sen- That he of which stands convicted. (2.) same term tence, when and set aside during vacated effect, void and of no it, who becomes the judge pronounced a valid indict- if convicted under and that prisoner, duly as the law’ sentenced to such ment, pro- punishment maybe as if the for the offence of which is convicted vides just never That sentence had erroneous pronounced. (3.) con- of the court to sentence a prisoner legally the power fact that the is not withdrawn victed superseded a case w-aserroneous, in such sentence first pronounced erroneous, the same term, within sentence, promptly set aside as soon as the error discovered. vacated the court can it be held that the Nor (4.) mean- the, the fact that is affected behalf the fine which was as in this case, imposed by time, paid sentence, error is dis- provided as a part and it term the same appears within judge covered erroneous sentence vacated immediately who imposed set it aside. sentence the same question principle presented 1. Exactly * Price, to the where Bench, v. case of in the King King’s Suffice present decided early century. vras very was and the that after court, the perjury, that say charge a new trial, for sentenced a motion prisoner overruling mouth, calendar in for one Newgate to be imprisoned * East, 6 327. 192 [Snp. Clifford, J., dissenting. be that he then the seas for seven years. transported beyond satisfied the court that researches, however, Subsequent was law, sentence not warranted erroneous because shows the close the case that the a few before days the last and set it on aside, day vacated it term, prisoner court and set into the term again brought bar, stated, at as Lord purpose Ellenborough as he ob which, him a different judgment, passing term; at within the same be done served, might anytime after that Justice Grose, and it also haviug Mr. appears had been that the former sentence stated to case, the sentence of court vacated, pronounced and be should forfeit £20 imprisoned that the prisoner bail, his of six months for the term without Newgate thenceforth should riot received court from oath after realm, within the and that record expiration the seas beyond he should be his transported imprisonment have since term of six years elapsed for the Seventy years. never it has been called in made, decision yet made. Based where it was court question of Basset said, the case UnitedStates* this court v. decision its own the court over control of during judgments which is practice, proposition is of day’s the term every authority.† highest supported vacate their law possessed of common Courts rendered, which were term in they during judgments all courts same in exercising'juris rule is and the still criminal; whether civil or cases, diction common-law ato State or correct whether applied the remark equally its ever judgments during Federal court. Power are rendered the entire term in they unlimited.‡ the next call of until the succeeding term continues Every die; and until sine unless term, adjourned ^previously or stricken Dur- out.§ time modified Howard, Wallace, Tyack, 41. Doss v. 312. on-Judgments, Freeman § ‡ Justices, 1 Wallace, King v. Maule Bradley, 129; & Sel Noonan § wyn, 442. 193 Oct. J., Clifford, dissenting. Opinion thereof, or or assize adjournment session ing vacate the the court Archbold, judgment Mr. may says matter has before it defendant, become passed upon severe.* and another less even more record, pass that au erroneous support proposition Unqualified at time during be corrected or altered sentence may in the case of v. decided in Fletcher, term is also found Rex 1803 twelve judges.† are be made while the in may

Amendments proceedings end for until the is, issued, until judgment paper, in except, cases, the term perhaps, capital proceedings, in are are sub fieri, considered only consequently they of the the control decisive also is court,‡ ject Equally in his Starkie valuable work on of Mr. crimi language which he down the nal rule lays that, pleading, during or session which term, assizes, judgment given the breast states that remains other fiue or any discretionary punishment imposed bemay he adds after term it varied, but becomes matter of and admits of record alteration.§ Mr. the case clear, Chitty, says misdemeanors, It.is vacate the passed that the court before may record, matter of may becomes mitigate pass another, is more the latter severe.|| when even a sentence, iuadvertence If, passing says Colby, has statute been overlooked, the court requirement at the same term before the correct sheriff’ it, execute lie adds that such correc- has proceeded Evidence, by Pleading Welsby, 15th 177; ed. Oomyn’s Archbold’s Indictment, N. Digest, Title Cases, Ryan 60. Crown & Russell 407; Commentary, George Wisdom, v. Burrow, 2 756; Blackstone’s 3‡ Salkeld, Knolles, 47; Turner Barnaby, 566; v. 2 Id. 1 v. King Greenwood Practice, 260, a; 1 31; Chitty’s Litt. Id. Co. Arehbold 3 Piggott, 11th ed. 541. Institutes, 260; 251; Cro. Car. 2 Citing Crown, 1 Hawkins's Pleas of the § 262; 48, Pleading, Case, Blackamore’s 25; Reports, 1 Sta rkie’s Criminal § 460. Law, Chitty’s Criminal 1|| XVIII.

VOL. i PARTE LANGE. EX Clifford, J., dissenting. first sen made or vacating tion bemay by expunging new one.* tence and passing

(Joke record be that at common law to states the rule in the term the done remaineth act during judicial any remembrance, court and in their the of the breast of judges term as is as he the roll alterable hence, during says, the then term is shall but when that direct, past the judges admitteth in as he states the is the roll record, rule, alteration, to the averment,- proof contrary. Gabbett,† in criminal is cases, it admitted by Judgments but record, be vacated before become matter may they insists that no court can make alteration record, the once the is entered on when judgment solemnly ma if that it be reversed writ of error may by except . face, defect on the of it. terial appear is meant nowhere ex the final record is better What by in the' than the Court of Massachusetts by Supreme plained in which the'1 case of Commonwealthv. Weymouth,‡ opinion the chief Minutes was of the by justice. given proceedings are a criminal trial made on the docket the in clerk as the but in record, take is place, except capital cases, they made until the end of the term or not session of the court, ' are the ivhole the when record in proceedings spread upon for that or books which in is, the kept purpose, book courts, the substitute what- is called proper Federal the of the iu the Such a parent record practice country. .roll criminal trials made ordinary never up term, during evidence rests in .the min- legal proceedings but if need clerk,.which, be, be verified his may by’ utes that even it is strictest authorities Hence oath. admit be corrected sentences erroneous during term it was as that could be done always in which imposed, a writ of error would lie country, although parent face if it was error apparent correct record. Finkle, Law, 1, 391; Miller v. p. Parker’s vol. Criminal Criminal 376. Reports, Walcott, Modern, 564; 396. Law, Rex 2 Criminal Allen, 2‡ Oct. 1878.] Clifford, J., dissenting.

Opinion of error was not cor- held there that it was Accordingly be corrected rected term could only during could and inasmuch as appellate appellate of the court of original reverse or affirm only reversed, followed, case the jurisdiction, prisoner discharged. have created also, instances, State some legislatures in. in criminal courts cases without investing appellate courts either the sentence with the to impose or to remand the subordinate court should have imposed cases the subordinate court for purpose, are such juris referred to which show that the prisoner all such difficulties dictions was but necessarily discharged, time where for a have in most existed jurisdictions they obviated discreet more legislation.* States as the United

Unsupplied jurisprudence errors with tribunal correction of for the any appellate correc all the criminal it seems to cases, necessary preserve in of tive vested the courts jurisdic original legally and but it occur, to that Errors mistakes will tion end. law writ lie from this settled that a of error will not court a writ a and it is well settled that Court, to Circuit equally such in error will not lie the circuit for any purpose.† in had a few has in to Resort that certainly remedy authori in in but all the Cases, Court civil stances the Circuit itself and not error be in the ties if the agree lie in the writ error does not in the a process, court-‡ in a action, out civil of fact in sued Errors process in clerk the record the fault of the happened through to be cor prior judgment, might proceedings writ, law a in at of error returnable common rected where the action commenced where the judg- 239; York, 124; People, McKee v. 32 Id. Ratzky 29 New People, v. Commonwealth, Bench, 810; Jacquins v. 9 Campbell v. 11 Regina, Queen’s Cushing, 279. Peters, Legerwood, 7 Pickett’s Heirs v. Bowie, Cook, Maryland, 137; v. & John- Hawkins Gill Kemp ‡ son, 437. Clifford, J., dissenting.

Opinion- When to re-examine a judg ment was rendered. granted in Bench it was called a writ of rendered ment King’s it a record and was founded nobis, coram because error in us,” the writ as “before -described in remaining process with the accordance theory sovereign king also be sued in court.* Such a dom writ-might presided the writ, for a like but the common purpose, iu pleas out latter was de out and when sued returnable writ was coram vobis, error because a writ of nominated “ the chief associates,” meaning directed to your you of that the other justices Proceedings justice court.† a action, to civil never error, a writ of respect under such a as the rule was universal that extended to judgment, another must issue from of error for purpose writ writ, a when returnable Such a superior tribunal.‡ as well as to a criminal case extend -Bench, might King’s of its within operations, civil case, scope might, fact, but as well of law as-questions embrace questions error correction any never extended judg erroT must be writ of for that because ment, purpose tribunal.§ from proper issued appellate that such been remarked show has already Sufficient in a criminal case cannot- be cor error an made in the mode the correction can be all unless at rected Court this as it is clear case, the Circuit adopted this not lie from court to a Circuit of error will a writ nor will a writ of case in a criminal purpose, Court in Circuit Court correct error lie coramvobis error Court. || fact in Circuit law or corrected in said, cannot be error,- 2. Such * Saunders, 101, ; 1; 2 note Practice, Dewitt v. 2 Tidd’s 1136 Williams’s Commentaries, by Cooley, 407, Johnson, 460; 3 note 4. Post, Blackstone’s 11 Practice, ed. 504. 6th Archbold’s 1 Peters, 148; 746; Abridgment, 1 Rolle’s 2 Sel Legerwood, v. 7 Pickett ‡ Commentaries, 407, 484; note Practice, 3 Blackstone’s 5. lon’s O’Connell, 356, 357; Rep. Abridg Law (Irish), Viner’s The Queen v. § ment, 491. Clifford, Plumer, 3 59. States United || Es Oct. Clifford, J., dissenting. because the this case had in confine- prisoner

mode five under sentence before the order was made ment days it and the aside, sentence setting vacating proposi- is advanced that no such can be tion correction argument case after the is removed made from any prisoner court of the which is sentence, pursuance equivalent it that made at all in cannot be that proposition mode, will never that seldom or be it a mistake will happen time it discovered at the is made. where

Cases denial of such a may imagined remedy sense; shock the as if the public would Circuit Court,.in where the case convicted murder prisoner duly seas under Crimes Act March, of the third high 1825, should, sentence the through inadvertence, prisoner “he shall not only suffer'death,” but that the body “ offender shall delivered to a for dissection,” surgeon sentence be in a case as the wh’erethe indictment are under the Crimes Act.* conviction original seldom or never Execution follows the sen- immediately tence, but the sentence is be remanded to prisoner he whence came, place be there imprisoned fixed until his which shows that the day execution, term from date of the sentence to imprisonment execution essential time sentence. part Sup- in the case the error is not discovered before suggested pose ten will one contend can- expiration that it days, be corrected? If not, then it must not be executed as stands, or the be set must free, perhaps repeat offence. his Assume that the rule adopted by majority in this case is follows correct, beyond peradven- that the court could not vacate the

ture sentence and pass sentence law, authorized and if then it not, is clear it could not be corrected other mode, as it law that a writ of will settled error not lie for the purpose from this court or in either the court where the error was 113; 1 Stat. Large, at 4 Id. 115. Ex parte J., Clifford, dissenting.

Opinion defeated, as therefore, must, Public be committed. justice the pris- will if the cannot be corrected that all error agree, as habeas would entitled to a corpus, oner be discharge case an so in a criminal is sentence every entirety, is sentence is law the whole unauthorized by any part a pris- rule which will peremptorily discharge Any illegal. whether it be offence, felony convicted of an ouer, legally the court committed because misdemeanor, merely sentence, one, be a sound caiiuot error pronouncing it vsdll to who have is it believed that be any nor satisfactory with the administration of criminal jus- much acquaintance the Federal courts. tice in examina- are cited but an eases petitioner,

Many show not one of the number them will supports tion as that which it is necessary adopt any proposition court in of this sustain ordering discharge ruling can case be found where such doc- nor prisoner, down. is laid trine directly in all is the sentence respects,

Where imposed legal has been Maine that after the held in judge, prisouer cannot order him to sentence, in execution remanded set the bar for at purpose up revising brought In case punishment. the sentence increasing n the prisouer sentenced to six mouths’ had been duly impris nineteen served out jail, onment county had court when the ordered that he should time, days a new sentence and the up, imposed brought again for the term of three in the State’s years of imprisonment but it is first sentence that, being prison; apparent reg there correct, was no error to law, ular according as different from the shows that the case is widely as is from error.* one before the court truth well arise whether the decision in that case Doubts may it is not to call it in correct, but this necessary question in this as couceded first case, case, case and in such a the author wholly illegal, petitioner, Rice, Maine, Brown v. Oct, Lance. Clifford, J., dissenting. be uniform that sentence authorized

ities appear at time within the same term, law be imposed may cases it is hold that it even in-some of the be done in a term.* in criminal trials is Promptitude en subsequent but Constitution, will occur in the by delays joined spite the result. Time effort to for expedite delib every proper nor is it eration is reasonable to indispensable, that expect will before it is an error be corrected discovered. Beyond all doubt an erroneous vacated and judgment may set aside if the error is discovered within the term, and when . is se aside such a the case stands as it just would' the have stood if erroneous had never been passed, is still in úutil the as the sentence is proceeding regular fieri even-in the Errors administration of criminal imposed.† and the ends of occur, law will justice imperatively require shall when do occur there some they appropriate their correction without mode for discharging prisoner it cannot convicted, as be admitted that an error of legally the sentence of the law the court can have the passing the offence of the effect to or to condone expiate prisoner the criminal act of the offender. it is All other

4. contended the objections next failing, the fact that the clerk the deposited amount of place the first sentence the fine to the imposed by credit of the the Treasurer of United States the before the day second sentence was operated passed estoppel act against the first of the court sentence and vacating imposing sentence. existing much are of in this importance

Bates case, and refer- by ence to the petition subsequently presented to the circuit that a habeas in behalf appears corpus judge the pris-' was issued district oner by the same judge day the amount of the clerk fine as deposited aforesaid, and that of habeas was made corpus the writ returnable on the fol- State, 35 Easterling 212; v. Mississippi, State, Jeffries v. Alabama, 384. 407; 3 Blackstone’s Cooley, Commentaries Wood, Cook v. 24 Illi- nois, 296; Lusk, Iowa, Taylor Clifford, J., 'dissenting.

Opinion of was is- when the sentence which the day illegal day, lowing aside and when sentence authorized vacated and set reason 'exists act and much imposed, Congress thus induced clerk was to make that the deposit suppose have the benefit in order prisoner might early cor for habeas hearing upon petition proof set down day. following previously pus, made the fine had amount of not been If deposit in which have remained would registry returned have been prisoner by case might made under such cir the court. Such payment order of the offence cannot cumstances expiate of which he was convicted criminal act legally condone summoned, the verdict duly impanelled, jury sentence sworn.* Measures for correction illegal in behalf of the and it cannot had been instituted prisoner, of the court to the mandate be that the perform thwarted the mere circum the can be act of by Congress stance of the of his own motion or at that the.clerk counsel, of the or his the deposited the prisoner suggestion to fine to him the credit paid amount of the of the United the first sen States. When Treasurer set aside the and the clerk tence was vacated money paid became ipso for the fine and money prisoner, fado it is his nor be now can it make wherever it may money, eveu if it be held that it cannot be difference back paid ex the consent of as it is which money without Congress, ei bono to the under a belongs prisoner. Money paid (Bquo fact be and it back, mistake of recovered does not may status of the holder because legal right hap change cannot be sued. to be pens government, made, kinds are to avoid, of various if pos- Suggestions sible, force of the conceded fact that the conviction re- that it and rests solid undisturbed founda- upon mains one or of which will indictment, of a valid two tion briefly noticed. is called to constitutional

Attention that no provision Limitations, Cooley p. Constitutional Oct. Clifford, Ji, dissenting. offence to be twice for the same put shall be subject

person means which, as or limb, Story says, of life Judge in jeopardy the same tried a second time for shall not be that a party convicted or he has once been acquitted after offence has the verdict -of a jury, judgment offence charged sentence or But the thereon for him. existing passed against sentence, same conviction as the first is founded upon referred has shows provision itself which of nor does the mean case, provision application a if the have be tried second time not jury shall accused verdict, or, without having giving been discharged has it or a been arrested verdict, a judgment given in his in such a favor, case, for been has granted new trial author, his life or limb cannot judicially the learned says meant What is been jeopardy.* have put said to of life or limb” has been jeopardy “twice put phrase en the definition cannot now be defined, judicially unsound conclu a judicial out predetermined to help larged a shall not be tried a second time means party sion. It after he has once been or offence acquitted for the has been a arrested or new unless convicted, judgment on motion but it does party; has granted, trial a Even in case the capital relate not mistrial.† without their a verdict, when jury giving discharge may of the court there is a manifest the opinion ever in necessity the ends of will otherwise an be de act, justice same reason the court, for the the same feated; during vacate erroneous render the term, law which the requires.‡ verdict, must rule says Cooley, trial general One accusationof the accused against any subsequent protect for or him, whether vei-dict be offence, against same Brook, * 39, Constitution, g 1787; 4 Reports, b; Fox v. Story on Vaux v. 2 State, Howard, 560; 9 Id. Moore v. 432; Marigold, States v. State, United 5 14 Id. 20. 410; Perez, Haskell, United Washington, v. 4 States v. States United † Wheaton, 579. 9 Trials, 2, on c. pp. New 51-135. 2 & Graham Waterman ‡ 202 ' Clifford, J., dissenting. of

whether is satisfied with the if it or not finding, trial before a his favor and he was court of upon put aud an is indictment upon competent- jurisdiction substance sustain the sufficient form and conviction. if had no or if the But the court jurisdiction suit, far no valid indictment was so defective could judgment if it, or be' rendered overruling upon necessity a verdict-,from were without the sickness jury discharged a or or or of from juror, death of judge inability after verdict, reasonable time al jury agree the term the or if court as deliberation, lowed fixed for an end before trial is finished, law comes to or the the consent with defendant are ex jury discharged or verdict set aside, if the on or motion implied, pressed is or a writ of in a on error defendant, jurisdiction trial is made law—in for a second where provision tried for the accused the same of these cases again rule well settled that former offence, and the is trial will him no or defence.* afford protection are set aside verdict and on writ Where the law tribunal, error in appellate jurisdic a second trial must tion makes provision law it is but is settled for the competent be discharged, reversing provide legislature are if the case shall prior proceedings regular, for the the case remand proper sentence.† have their foundation in kind Exceptions necessity, errors aud casualties shows that will some all experience administration criminal justice. times intervene convict,where the indictment acquit autrefois Autrefois valid and the conviction in a court regular, competent a second for the is a bar to prosecution jurisdiction, even, all the that rule offence, subject but is. exceptions like others of named and to many character.‡ Limitations, 2d ed. Cooley’s Constitutional 327. York, People, New McKee Blackstone’s Commentaries, by Cooley, 335, 5; Emden, note Rex v. ‡ East, 437. 203 Ex parte Lange. Oct. Clifford, J., dissenting. is the of the ..court to render all doubt it duty Beyond firstr'inslance, in but the law the by required in it evident mistakes makes experience ages even iu the courts of occur, will behalf sometimes gen- hence be traced rule, eral may jurisdiction, a law, to the of the common may very origin an vacate and set aside erroneous during judgment, in its stead and render term, required law. by indictments are the same

Trials bad governed by rule, and in can have no provision appli- my judgment iu a case like the where con- cation whatever present, and the viction is undisturbed sentence is vacated illegal as the error is discovered. and set aside as soon Judge that a new trial could not be said, it is decided Story, indictment after a trial a in the case of good granted whether the accused was ac- jury, competent regular is that if a new trial and the convicted, quitted argument in such a case that it not competent be cannot granted sentence and another, vacate impose the court to illegal what iu substance and form latter be even though law requires. that a new trial cannot admitted

Even should it be ac means follows that the case, granted as unwarranted, case was in this Court tion of Circuit of decisions founded upon course it is sanctioned by long civil, criminal as well as acts of Parliament applicable-to cases.* have in misdemeanors trials, however, always

New numerous cases, appears proper England granted authority.† highest adjudications in the courts can be a new trial felony Whether granted it was decided doubtful. Certainly more country of .that Judgments, 71-73. pp. Bingham 156; Curril, Lofft, Rex v. Sim 14; Rex v. Case, Reports, 6 Arundel’s Tremaine, Term, 638; Rex v. 7 Mawbey, 6 Wilson, 329; v. mons, Rex 1 ; Cresswell, Camp 256 & Case, Barnewall 687; Same Dowling Ryland, & B. 810. Regina, v. Q. bell J.,

Opinion of dissenting. Clifford. et al.* that a new in the case trial Regina Scaife such a But in certain later cases it granted case.† other Be that as it it is is decided the never way.‡ may, in law this that a new trial theless settled be country may in favor of whether the be prisoner, granted charge felony Much effort was or expended misdemeanor.§ only by in the case of et UnitedStates v. to al.,|| Gibert Story Judge prove but his views in proposition, negative never been have' bench as accepted bar, by regard of the the decisions Circuit Courts and by by appears all of the State courts, of which decisions nearly many in the cases: v. People collected Morr following reported are al.,** et in which it is States v. Williams stated United ison,¶ the decision in Gilbert's case has been point that.since of the States of the Union, one discussed twenty every held that á new trial be which it has been may granted of the accused in criminal case for on the application cause shown.†† good in a case like the

Fine or imprisonment imposed and the is that if the court the second suggestion present, fine had have would imposed sentence prisoner the fine a to second but it is so time, pay obvious compelled in the of the court, or on money registry deposit treasurer, the credit to the prisoner belonged the first sentence was vacated moment and set aside that it seems be work of time employ any supererogation and it dismissed. point, accordingly discussing of habeas to issue writs is not claimed Authority corpus cases of the enumerated among original jurisdiction Court, if it Supreme conferred exists upon consequently Case, Same 2 Denn Cr. C. 281. 17 B. 238. Q. Bertrand, Council, 1 Reports, Privy Law 528; Case, v. Reg. App. Same ‡ 621; Murphy, Council, 2 Reg. Reports, Privy v. Law Cr. C. App. Cox 546. 10 Cases, 584; Leading Green, Criminal Commonwealth 17 Massachu § setts, 515. Sumner, 37. 2|| 625; Cases, 1 Leading Cases, 1 Parker’s Criminal Criminal 2d ed.'587. ¶ ** Clifford, 1004, Law, ji 5th ed. Bishop’s Criminal †† parte Oct. Clifford, J., dissenting. all,

at it must be fobnd appellate power with such and under such given exceptions regula make, tions from which it follows that the Congress may- conferred the Constitution can appellate jurisdiction only be exercised this court in of an act of Con pursuance the mode in gress conferring authority prescribing shall which it be performed.*

Power to the writ of habeas was never in grant corpus tended to confer this court to review the authority upon of a Circuit Court in a criminal case, hence it follows that this court tepee cannot look the sen beyond where the tribunal which it had pronounced jurisdiction the case.† has been said to

Enough already show that the judgment under which the is held is and in- form, perfect asmuch as he was to trial a valid put indictment convicted of the offence duly the indictment, charged I am the that he is not entitled to be opinion discharged .under writ of habeas corpus.

Mr. Justice STRONG also dissented. Dallas, 327; 3 Wiscart v. More, United Cranch, 172; States v. 3 Dauchy, States, v. Duroussean United 6 Id. 308. parte Kearney, Wheaton, 38; Watkins, 7 Ex parte Peters, 193; 3 States, McLean, 89; Johnson United Ex parte Aernam, 3 Van Blatch ford, 160; Mercein, Barry v. Howard, ; Gifford, 103 Ex parte 5 American Series, Register, 659; Commentaries, 240, Law New 1 Curtis’s p. 259; Ex \ Burford, Cranch,

Case Details

Case Name: Ex Parte Lange

Court Name: Supreme Court of the United States

Date Published: Jan 30, 1874

Citation: 85 U.S. 163

Court Abbreviation: SCOTUS