Ex parte in the Matter of Wells/Dissent Curtis
Mr. Justice CURTIS dissenting.

In Ex parte Kaine, 14 How. 117, 1 examined, with care, the jurisdiction of this court to issue writs of habeas corpus to inquire into causes of commitment. I then came to the conclusion that the mere fact that a circuit court had examined the cause of commitment and refused to discharge the prisoner, did not enable this court, by a writ of habeas corpus, to re examine the same cause of commitment. Though subsequent reflection has confirmed the opinion then formed, I should have acquiesced in the jurisdiction assumed in this case, if a majority of the court, in Kane's case, had decided contrary to my opinion. But the question was then left undecided; and in this case, for the first time, in my judgment, has jurisdiction been assumed, on the ground, not that the cause of commitment was originally examinable here-for that would be an exercise of original jurisdiction-but that, though not thus originally examinable, yet, as the circuit court has had the prisoner before it, and has remanded him, this court, by a writ of habeas corpus, may examine that decision and see whether it be erroneous or not.

That this is the only ground on which the jurisdiction over this case can be rested, or that it cannot be considered to be an examination of the original cause of commitment, will clearly appear, if we attend to what that cause of commitment was. The petitioner was convicted capitally. His sentence is not brought before us in form, but we must infer that it ordered him to be imprisoned until the day which was by the court, or should be by the executive, fixed for his execution. He received a conditional pardon. Regularly, I consider, that he should have been brought before the circuit court upon a writ of habeas corpus, and have there pleaded his pardon, in bar of so much of his sentence as directed him to be hung; or, in bar of the entire sentence, if the condition requiring him to continue in imprisonment for life was inoperative. United States v. Wilson, 7 Peters, 150. If this had been done, the circuit court would have pronounced its judgment upon the validity of such plea; and in conformity with the decision which that court has made in this case, it must have entered a judgment vacating its former sentence, and sentencing the petitioner to imprisonment during life in the penitentiary of this District.

Over such a sentence this court could have exercised no control, either by writ of error or of habeas corpus. Not by writ of error, for none is allowed in criminal cases. Not by habeas corpus, for, as was held in ex parte Watkins, 3 Pet. 193, a writ of habeas corpus cannot issue from this court to examine a criminal sentence of the circuit court, even where the objection to the sentence is, that it appears on the face of the record, in the opinion of this court, that the circuit court had not jurisdiction, and its proceeding was merely void; because the circuit courts are the final judges of their own jurisdiction; and of all their proceedings in criminal cases. This court has no power to reverse one of their criminal judgments for any cause, and consequently no power to form any judicial opinion upon the correctness thereof.

In the case before us, so far as appears, the petitioner did not formally plead his pardon, nor did the circuit court, by an entry on its records, formally vacate the capital sentence, and sentence the prisoner anew. But that court, using its own final judgment as to the proper mode of proceeding in this criminal case, proceeded in such manner and form as it deemed to be according to law. It remanded the prisoner, in execution of the original sentence, so far as that directed his imprisonment. After this had been done, the imprisonment may be viewed in one of two aspects. It may be considered as continued under the original sentence; the execution of that part of the sentence which commanded him to be hung being postponed by the pardon, so long as there shall be no breach of the condition; or the original sentence may be treated as modified by the proceedings under the habeas corpus in the circuit court, and that part of the sentence which commanded him to be hung, as annulled, the residue remaining in force.

As I view this case, therefore, it stands thus: the petitioner is imprisoned under a criminal sentence of the circuit court, either as originally pronounced, or as modified by the order of the circuit court made under the writ of habeas corpus. That original or modified criminal sentence is the cause of his commitment. Though this court has no jurisdiction by writ of error to revise such a sentence, and has deliberately decided, in ex parte Watkins, that a writ of habeas corpus cannot be made a writ of error for such a purpose, yet by a writ of habeas corpus we do revise such a sentence in this case.

It seems to me that the refusal of a writ of error in criminal cases is not only idle, but mischievous, if a writ of habeas corpus, which is certainly a very clumsy proceeding for the purpose, may be resorted to, to bring the record of every criminal case, of whatever kind, before this court.

With deference for the opinions of my brethren, in my judgment, it goes very little way towards avoiding the difficulty to hold that, before one under a criminal sentence of a circuit court can thus attack his sentence collaterally, in a court which cannot review it by any direct proceeding, he must first apply to the circuit court for a writ of habeas corpus; and if the writ, or his discharge under it, be refused, he may than bring into action the appellate power of this court, and by a writ of habeas corpus out of this court stop the execution of a sentence, which we have no power to reverse. Few questions come before this court which may affect the general course of justice more deeply than questions of jurisdiction. This great remedial writ of habeas corpus, so efficacious and prompt in its action, and so justly valued in our country, may become an instrument to unsettle the nicely adjusted lines of jurisdiction, and produce conflict and disorder. If the true sphere of its action, and the precise limits of the power to issue it, should become in any degree confused or indistinct, serious consequences may follow-consequences not only affecting the efficient administration of the criminal laws of the United States, but the harmonious action of the divided sovereignties by which our country is governed. For these reasons, though sensible of the bias, which, I suppose, every one has in favor of this process, I have heretofore felt, and now feel, constrained to examine with care the question of our jurisdiction to issue, it; and being of opinion that this court has not power to inquire into the validity of the cause of commitment stated in this petition, I think it should be dismissed for that reason.

In this opinion Mr. Justice CAMPBELL concurs.