
    EDWARD S. WALTON vs. T. H. GATLIN.
    Where the object of a writ of habeas corpus is to inquire whether there be probable cause for commitment, the decision on it is not the subject of review by writ of error or certiorari.
    Where the question on a writ of habeas corpus is concerning the power of the committing Magistrate or Court, or the legality of the commitment, tbr. weight of authority is in favor of the doctrine, that the decision is the subject of review.
    The decision on a writ of habeas corpus to free a person from restraint for any other cause than the commission of a criminal offence, is a judgment, and the subject of review by.writ of error or certiorari.
    The Supreme Court has the power to review- the action of the Superior Courts, and of the' Judges in vacation, upon questions of law in all cases under the 10th section of the habeas corpus Act.
    The cases of Binford vs. Alston, 4 Dev., 33“7, American Bible Society vs. Hollister, 1 Jones, Eq., 10, and Smith vs. Cheek; 6 Jones, 213, and es-parte Bryan, cited, commented on and approved.
    .Oñ the firsl- day of tbe term -Bragg and Strong, on behalf of Gatlin, a Captain in tbe army of tbe Confederate. States, moved for a writ of certiorari to be directed to tbe Honorable Richmond M. Pearson, Chief Justice of this Court, commanding him to certify, under his hand and seal, into this Court the record of a writ of habeas corpus, issued by him at the suit of Walton against Gatlin,'and the proceedings thereon before the said Chief Justice and his judgment thereon, suggesting that in the proceedings and judgment theie was error in law to the injury of the said Gatlin.
    It appeared that Walton had applied to Chief Justice Pearson on the'21th January, 1864, for a writ of habeas corpus, alledging that he had been arrested and was detained in custody by T. H. Gatlin; a Captain in the army of the Confederate States, as a person subject'to serve as a conscript, he being legally exempt from such service. The wpt was granted by the Chief Justice, returnable before himself, and was served on Capt. G-atlin, who made a return thereon to the effect that Walton was liable to serve as a conscript under the Act of Congress of the 5th of January, 1864.. The Chief Justice decided on the - 19th Eeb-ruary, 1864, that Walton was not liable to service on the conscription Acts, and discharged him ; but,, on an intimation of the counsel who appeared on behalf of the Oonfed^-erate States that he would move at the next term of the Supreme Court fora writ of certiorari, the Chief Justice bound Walton in a recognizance to appear in the Supreme ■Court on the second. Monday of next term.
    The Court ordered the motion to stand over for argument on the second Monday of the term, when it was argued by Bragg, Strong and Winston, Sr,, in support of it, and by Moore and Boyden against it.
   Pe Alisos, C. J.

The motion on the part ot the defendant for a certiorari, or other appropriate writ to bring up this case for review on the question oi law, was opposed by the counsel of Walton on two grounds :

1st. It was insisted that the action of a single Judge in vacation, on a writ of habeas corpus, is not the subject of review. The counsel relied on the authorities cited, and the reasoning of Judgement in Yates vs. the People of New York, 6 Johnson, 397, and of Judge Baldwin in Holmes vs. Jennison, 14 Peters, 614.

These cases show that there is a conflict of decisions and a great contrariety of opinion on the question. Any'one who reads them will become satisfied that the amount of talent and learning bestowed on the subject has tended to mistify rather than elucidate it. When the stream becomes too muddy to see the bottom, the surest way to find truth is to go up to .the fountain head ; that is, to the reason and sense of tbe thing.” We believe the conflict and. confusion, found in the boohs in regard to this question are mainly to be attributed to the fact of not keeping in view the distinction between a habeas corpus “ when one stands committed for a crime,” and a habeas corpus yrhen one is imprisoned 9r otherwise restrained of his liberty for some cause other than the commission of a criminal offence. This distinction is pointed out in “ Caine’s case.” Judges Kent and Baldwin, in the cases referred to, had their minds fixed upon the former class of pases and do not advert to the distinction.

The object of a commitment is to secure the attendance of the party at the trial; and it is. the duty of the committing magistrate to make an examination, enquire into the circumstances, and to discharge the person arrested, or remand him, or take security for his appearance, according to the nature of the offence, and the degree of proof. This proceeding is not the subject of review by writ of error or ¡, certiorari, for the reason that there is no trial and no judgment, but a mero inquiry, to see whether the person accused ought to be tried ; indeed, when the law is duly administered, the trial will take place, before a writ of error or certiorari could be disposed of in the course of the Court. The Court's, however, exercise a supervising jurisdiction over the action of the committing magistrate, by means of the writ of habeas corpus, and enquire into the legality of the commitment, and the question of probable cause. This proceeding is in lieu of a writ of error or certiorari, and is not the subject of review by either of those writs,- when it turn's on the question of probable cause ; for, like the proceeding before a committing-magistrate, it is not a trial; there is no judgment; it is a mere inquiry. When it turns to the power of commitment or its legality, the question is not so clear. There is much force in the authorities cited, and in tbe reasoning of Judge Kent and Baldwin, although, the weight of authority in this country is on the other side ; for in Yates vs. the People of New York, the decision is against the opinion of Judge Kent. In Holmes vs. Jennison, a majority of the Judges differ-from Judge .Baldwin, and in the late case of Ableman vs. Booth, 21 Howard, 506, the jurisdiction by v&it of error is assumed by the Supreme Court o'f the United Mates, and the point seems to be conceded.

The superintending jurisdiction over committing magistrates, was intrusted to the Judges in vacation 32, Charles 2, ch. 2, Rev. Code, ch. 55, sec. 1.

The purpose of a writ of habeas qorpus-, where one “ is restrained of his liberty for some cause other .¿than the commission of a. criminal offence,” is altogether different. In ancient times, in such cases, the writ “ de homine reph-giando ” was used. It was an original writ, by which an action was instituted, when a person was restrained of ’his liberty, unless committed for .crime, and the right to the services and custody of the person was determined, Fitzh. N. B. 68, Com. Dig. Pleader, 3 K. 1. Imprisonment L. 4 2 Inst. 55, 3 Mod. 120. There can be no doubt that the judgment in this action was the subject of review by writ of error. This-original writ is now superseded by-the ju- ■ dicial writ of habeas corpus, as a more speedy and summary remedy, called for by the nature of tVe case, which the Courts issued under, their common law jurisdiction. In the proceeding instituted by this writ, the right in controversy is determined by a judgment, and no reason can be assigned why such judgment is not the subject of review, in the same way as the judgment in the old action “ de homine reple-giando,” or any other action or proceeding in which the Court renders a judgment; because thereby the right of the parties is adjudicated and determined. It is true’, if the plaintiff seeks for damages be must follow it up, by an ac.tion of trespass for assault and batte'ry and false imprisonment, as tbe action of ejectment wliich is substituted for tbe old real actions, is followed up by an action of trespass for mesne profits ; but that is no reason wby the judgment should not be tbe subject of review.

This jurisdiction is extended to tfé judges in vacation by 56, Geo. 3, (1816,) and by our staiLte, Rev. Code, cb. 55, sec. 10, (1836,) so the jurisdiction of a single Judge in such cases, is of very reqent origin ; which may, in some measure, account for the confusion in which the subject has been involved, by not distinguishing this class of cases from that of the case coming within the operation ofi the Act of Charles the 2d. The facts that so many writs of habeas corpus have been issued-in the last two years, has elicited a closer and more serious investigation of the nature and purposes of the proceeding in .cases of this kind, and the result is a clearer apprehension of the distinction between the two classes of cases.

The question is narrowed to this: is not the judgment of a. single judge in the exercise of this jurisdiction conferred by statute of Geo. 3d, and our statute of 1836, subject to review for the same reasons, and on the same grounds, which are applicable to the judgment of the Courts in the exercise of their common law jurisdiction by ha boas rurpus. There are a suit, a trial, and a judgment, deciding the rights of the parties ; and the fact of its being the derision of a tribunal composed of a single Judge, can furnish »c reason wby it should not be the subject of review by a higher tribunal. Certainly, tbe decision of a Judge in vacation, can not he put on a higher footing than the decision of the same Judge iu torna time!

For illustration. The ease of Zoigonfuss vs. Hastings and others, 2 Ired. 463, presented this question of law : [¡as a creditor tbe right to take the body of bis debtor by writ of capias ad satisfaciendum, after the debtor has filed his petition in bankruptcy and given notice, but before a decree of bankruptcy P The case was constituted before a single Judge by a writ of habeas corpus under the 10th section of the Act of 1836. The Judge decided against the debtor. It was an adjudication of the rights of the parties.

So Prue vs. Hight, 6. Jones, 265, instituted by writ of habeas corpus before a single Judge, presented a question o'f law as to theValidity of indentures of apprenticeship,.on which the rights of the parties depended. The Judge decided in favour of the defendant, and his right to the services of the plaintiff as an apprentice was thereby determined.

Thesé cases show strikingly the difference between ^ ha-beas corpus under the first section of our statute, when one u stands committed for a crime,” which is a mere inquiry' preliminary to his trial, and a habeas corpus under the 10th section, which is a suit, involving the rights of the parties and in which their rights are adjudicated and determined, In cases of this kind we think it clear the decision on matter of law is the subject of review ; and it is equally clear that the case before us falls under this class, of cases. Walton did not (( stand committed-for a crime,” but was retained of his liberty as a conscript. His case presents a question of law, arising under an alleged contract, and the right is adjudicated and determined by the decision of a single Judge.

2nd. Admitting that 'the Court of King’s bench and the Supreme Court in' several of the States, where their statutes provide- for it, have power to review the action of a single Judge in habeas corpus cases, when one is restrained of his liberty for some cause other than the commission of a erim-inal offence, it was insisted that this Court has no such power, because its jurisdiction is limited and it has no jurisdiction except what is conferred by statute. Binford vs. Alston, 4 Dev., 339, American Bible Society vs. Exucutors of Hollister, 1 Jones Eq., 10, and Smith vs. Cheek were relied on.

When these cases were decided there was, as is said iit Bryan’s case, a general impression against the power of the Court, and candour requires the admission that the Judges were then of opinion, that the Court-did not have jurisdiction in habeas corpus cases, and although those cases are correctly decided, yet the language used must be restricted, and the general import controlled, by construing it as, having reference only to the questions then before the Court. Within the last few years, the subject of habeas corpus has called into action the utmost effort of. the legal mind, both of the bar and the bench, and eliminated the fact, that the protection of personal liberty is a distinct head of jurisdiction. In the matter of Bryan, after full argument and due consideration, this Court held that in regard to the proceeding under writs of habeas corpus, the Court has a common law jurisdiction: So that the establishment of a Supreme Court without any words to that effect, necessarily, and as an incident to its existence, by force of the bill of-rights, of the Constitution and the principles of the common law, invests it with power to inquire, by means of this great writ of right, into the lawfulness of any restraint upon the liberty of 'a free man,” and the inference is made, that although ip actions at law, indictments, and suits in equity, it was deemed expedient to limit the jurisdiction as to the ■manner of constituting such cases in that Court, so as to maké the-jurisdiction appellate only, yet in regard to this important subject of jurisdiction, to wit, the writ of habeas corpus, there is no limitation of power or restriction, save the principles and usages of law, it being the opinion of the Legislature that the power would attach to the Court as soon as it was established, as an incident of its existence, upon the principles of the common law and bill of rights."

We are fully satisfied of the soundness of this conclusion, and it has since received the sanction of a legislative enactment. So the question must be considered as settled. We allude to the Act of June, 1863, by which it is enacted that a single .Judge may, in term time, grant a writ of habeas carpus, and.make it returnable either before himself or some other Judge, or before the Supreme Court; thus expressly recognizing the jurisdiction of the Court.

Taking this to be so, it follows - as a necessary consequence that the Court has the power .to review the action of the Superior Courts and of the Judges in vacation, upon questions of law, in all cases of habeas corpus, when a decision is made and the rights of the parties are determined ; that is, in all cases under the 10th section of the habeas corpus Act.. For it is the function of every Court which is <esupreme,” not simply a “Court of Appeals/’ or a “ Court of Conference/’ to control the action of all other judicial tribunals, So as to prevent them by prohibition,. from exceeding their jurisdiction, and to correct errors while acting within their jurisdiction. When the mode of exercising this jurisdiction is provided by statue, as in respect to actions at law, indictments, and suits in equity, ■ that, of course, must be pursued ; when no mode is provide^, the Court must pursue a mode which is “ agreeable to the principles and usages of law." It may be that in a habeas corpus case of the kind now under consideration, constituted in the Superior Court, an appeal will lie under the general provisions of the Rev. Code, ch. 4, sec. 21, 22. When the decision affects the rights of infants, the Legislature has deemed it expedient to allow the matter to be brought up both from a Court and a single Judge, by tlte speedy mode of appeal, Act of 1858, cb. 58. In all other cases it is left to be done in such way as is £f agreeable to the principles and usages of law.”

It is gratifying to know that the Court possesses this jurisdiction, for it would have been a deplorable state of things, if Williams is to serve as a conscript, because his case was decided by Judge \A. and Walton is hot to serve, because his case was decided by Judge B., and that there should be no mode of correcting the error, so as to settle the law — make it uniform, and give to decisions in such eases, the weight, to which an adjudication of the highest judicial tribunal of the State, is entitled. •

Battle, Judge concurred.

Manly, Judge,

dissenting. The question presented for -our consideration is, whether the Supreme Court has the power to bring into the Court for revision, a case of ha-beas corpus tried and disposed of by' a judicial officer at Chambers. I am of opinion the Court has no such power, either by statute or at common law. • <

At the last term of the Court, in the matter of Bryan, 9 Jones, 34, the "Court held that it had original jurisdiction to issue the writ and to hear and decide causes. I was too unwell at the time to take part in the decision of that case, and gave no opinion in it. Subsequently, I gave.it. all proper consideration, and have been unable to-concur with any associates. ; The jurisdiction then assumed for the first ticas since the establishment of the Court, is of the gravest importance,, and Í deem it proper to put upon record, briefly, the reasons which influence me to dissent. These reasons will be found also to have an important hearing upon the case now before us. The question then made was, whether the Court had the power to grant the writ, (d habeas, corpus, as an. original writ to acquire jurisdiction. :

Supposing the Court to have no common law jurisdiction, and to be conhimd within the limits prescribed by statute, the questi'n must be decided by the construction which shall bePut upon the Act of 1818, Bev. Code, ch. 33, sec. g ¡That part of the Act bearing upon óur inquiry is as fpdows:

11 The Couft shall have power to hear'and determine all questions of law brought’befóte it by appeal, or otherwise, from a Superior Court of law, and to hear and determine all cases in equity brought before it by appeal or removal from a Court of equity ; and in every case the Court may render such judgment, sentence, and decree, as on inspection of the whole record, it shall appear to them ought, in .law, to be rendered thereon ; and shall have original and exclusive jurisdiction in repealing letters patent, and shall also have power to issue writs of certiorari, scire facias, ha-beas corpus, mandimus, and all other writs which may be proper and necessary for the exercise of its jurisdiction, and agreeable to the principles and usages of law and it may, at its discretion,’ make the writs of execution which it may issue, returnable, either to the said Court, or to the Superior Court from whicli the cause may have been removed."

The whole of the passage quoted 'lescs-iNs. -ás I think, a purpose on the part of the Legislator.- >•> male, this Court a Court of appeals, authorizing it to hear only «us-n brought. Í into it by appeal or removal from tLe Courts below. The I first part of the passage quoted is appropriate to this pur-Ipose. The Act then gives the Court an original and exclu-Isive. jurisdiction, (using the words,) in repealing letters ■ patent; and it then proceeds to give tin: use of certain ■writs, which it was «asy to foresee,- might be needed for the ■full and effectual ‘'xercise or the jurisdictiou ■■ ranted, to wit, ■writs of. certiwari, suri facias, habeas corpus, mandamus, Jind all other necessary writs. .That the writs here specially enumerated, .áre all in the category of ancillary writs, is inferrable from the fact that some of them are plainly and necessarily so, because rarely, if ever, used in any other way; and from the use of- the word other. In connection in which it stands, it must imply that some, ¡4 least, of the antecedently enumerated writs, were auxiliat: their nature, and provided as such. If it had been inte», ded to make the grant of auxiliary writs only, in the latter part of the clause in question, and to give power to the Court in respect to the previously enumerated writs, to use them for acquiring jurisdiction, either the order of the words would have been inverted, and the grant of auxiliaries would have followed immediately the grant of inci-pal powers, or the word ‘ other ’■ would have been dro ed, and it would have read, after the enumerated writs, d all writs which may he proper and necessary.

The words tc all other ” seem naturally to mean an indefinite extension of a class of writs, then partly enumerated. If the relative ‘ which ’ be extended at all beyond: the. words all other writs for an antecedent, it must be clearly referred to all the enumerated writs.

• íhave dwelt more'at length upon the phraseology of the Court Act, because I suppose its construction controls substantially the question which was then before the Court. If the power then exercised, be not there granted in terms, or by plain and necessary implication, it is not granted at' all. For the Court has no common law jurisdiction. It is the creature of the statute law, and has its powers limited and defined by that law. It possesses no greater capacity to take jurisdiction or to exercise power than the law gives. Other Courts of the State have, what is called a common law jurisdiction, that is to say, such powers as they have been accustomed to exercise under the approval of Our ancestors for immemorial time, and unless these powers aro restrained by legislation, they may continue to exercise item indefinitely. It is not so in respect to tbis Court. It is created by statute and clothed with powers there specially defined. With a range of jurisdiction in the very highest regions of power exercised by human tribunals, it is nevera theless a limited range, defined by the written law.

A question of jurisdiction, therefore, in this and other Courts of the State, would be decided by a different course of inquiry. For, supposing the power in question to be one which had been exercised by the Courts of inferior jurisdiction from time immemorial, the inquiry in this Court would still be, has it been grafted to us, while in'the Courts below it would be, have they been restrained from its exercise.

The identity of the language used in the two statutes, the one constituting the Supreme Court of the United-States, the other the Supreme Court of this State, makes any discussion and, exposition of the one pertinent in respect to questions arising on the other. The United States Supreme Court Act has this provision: .“that all the before mentioned Courts of the United States shall have power to issue writs of scire facias, habeas corpus and all other writs not specially provided for by statute, which may be necessary for' the exercise of their respective jurisdictions and agreeable to the principles and usages of law.”

The power of the Court to issue the writ of habeas corpus cum causa came under discussion in the case of Bollman and Swartwont, 4 Crauch, 75. These men were in prison by order of the Circuit Court, for the District of Columbia, upon a charge of treason, and the Supreme Court of the United States ‘ in bank ’ order the writ, sustaining the motion for it upon the ground that it was auxiliary and incidental to the Court’s jurisdiction.

I have considered attentively this case and it seems to me that the point decided, as well as the course of reasoning of the eminent Judge- who delivered the opinion, corroborate the view I have taken. In that case the Court was restrained from claiming the power as an independent power by the article in the Constitution defining its jurisdiction. We are precisely under á similar restraint through the law defining our jurisdiction. All law is obligatory alike. We are as much bound by the Act of the Legislature, establishing the Court and prescribing its jurisdiction, as the Supreme Court of the United States is bound by the limitations of its jurisdiction found in the Constitution.

If, therefore, the writ is not sought for in aid of a full exercise of the Court’s jurisdiction, it can not be granted.

Tito dicsa in the case of Bollinan and Swartwont can only be brought to bear favorably on the exercise of the power in question, upon the assumption that this Court has a jurisdiction as ot common right. If it have not, but be restrained by tlm terms of the Act, it is an authority the other way. This will be more intelligible by reference to the Constitution of the United States, where it will be found that the Constitutional restraint spoken of is the article defining the jurisdiction of the Court.

That this Court possesses no common law jurisdiction is further made manifest by a practical construction of the organic law from the beginning, ignoring any such jurisdiction, and by a current of authorities coming down from the period of the establishment of the Court, Whenever the subject has been discussed the language of the Court appears to have been uniform that its jurisdiction is defined and limited by shitulory enactments, and is, in no respect, derived from the common law. • The case of Binford vs. Alston, 4 Dev., 351, the American Bible Society vs. Hollister, 1 Jones Eq., 10, and Smith vs. Cheek, 5 Jones, 213, show this conclusively. It may be remembered that the Judge (Gaston) who delivered the opinion in the case of Binford vs. Alston, and who speaks most explicitly of the source of jurisdiction, was the framer of our Court Act of 1818 ; and his opinion, therefore, apart from his acknowledged legal learning, should be considered' of special authority.

The question made at the last term in the case of Bryan may now be considered at rest, not only by the authority of that case, but also by the action of the Legislature. If is now provided that the Judges of this Court may issue writs of { habeas 'corpus ’ and make them returnable to the Court. This, by implication, confers the power to hear and determine them ; but it goes no further, and has no effect upon the question now before us, viz: whether the Court has a quasi appellate ór revisory power in' respect to the decisions of other tribunals. It seems to me to hold this would be a further disturbance of settled law. The Court lias now been established for upwards of forty years, and no necessity for the exercise of such a jurisdiction has been developed, unless the present condition of the country discloses one. Whether it does may be a proper subject for Legislative inquiry, and, if need be, for Legislative remedy.

To this time the whole course of legislation in the State has carefully avoided lddging an appellate or revisory power anywhere in matters of habeas corpus. It seems to have been designed by the assembly to give a summary and determinate remedy to the citizen for an imprisonment considered unlawful by any one of the Judges, or by any of the Courts in which they sit, and to leave parties to assert rights disputed .between them to the ordinary channels of litigation. It was never contemplated that .Constitutional questions and others affecting the public weal and private interests should be thus determined. ' The ordinary actions at law, provided to meet every possible requirement, have been considered the safer means of adjusting controversies, and have been studiously preferred, as I infer from a review of our legislation. Sound reasons may be. given wby tbe Legislature should prefer that the use of the writ might be thus facile and speedy in its acti@n, rather than of the highest authority in its results. At any rate such has been the policy, as I conceive, and the judicature of the country has no power to reverse it. ,

The Act of the last Legislature, I have said, does not affect the question. There is no necessary connection perceived between the original jurisdiction conferred by the Act, and the revisory jurisdiction, which it claims to draw after it. The one is supplying what appears to be a casus (missus in the habeas corpus Act, and is in accordance with the policy of the State legislation ; the other reverses that policy. The sole effect of the Act is to add another to the one subject of original jurisdiction possessed by this Court.

Upon the whole, my opinion is that this Court has no right, at common law or by statute, to take jurisdiction of, and revise, a case of habeas corpus, tried before a Judge at chambers, either by writ of error, recordari, or other process.

It is conceded that a right to revise a case of habeas corpus may be as easily deduced from common law principles as a right to entertain original jurisdiction. As the one, however, does not necessarily follow the other, J have thought it due to the importance of the decision to file a separate opinion, .expressive of my views and showing why it is that I .cannot concur.

33y the Court. Let the motion be allowed. .  