(concurring).
I concur in the opinion and conclusions of Mr. Justice Corn.
I regard as entirely immaterial the question whether the order of a district court refusing to discharge a petitioner upon habeas corpus may be brought to this court for review by petition in error or otherwise. Notwithstanding that such an order might be so reviewable, I entertain no doubt whatever of the original jurisdiction of this court in habeas corpus, even in a case where upon the same facts a previous hearing has been had, in the district court, and the petitioner’s application denied. That jurisdiction is granted by the constitution in unmistakable language, and the statute does not, in any way, attempt to restrict it, but on the contrary confirms it. Neither in the constitution or statutes is the jurisdiction or its exercise made dependent upon the absence of any other remedy. It seems, therefore, unnecessary to consider or decide whether the order of the district court refusing to discharge the petitioner could be brought here by some appellate proceeding.
Oases may arise where it would not be deemed expedient for this court to exercise its original jurisdiction where, upon the same facts, and in a similar proceeding, . a district court or judge shall have previously denied the relief sought. But in a case like the one now before us, where the petitioner is imprisoned in execution of a sentence, and that sentence is alleged to be illegal, and especially where such illegality is alleged to consist in thq denial of a constitutional guaranty or immunity, I am *427convinced that it is the duty of the court to exercise its jurisdiction in the premises and inquire into the legality of the imprisonment; and if the imprisonment be determined to be illegal, to discharge the petitioner. Otherwise the writ of habeas corpus would be largely deprived of its most beneficent purposes.
Neither do I esteem it material whether the order of the justice committing the petitioner, was or is subject to review on appeal or error by a higher tribunal.
Where habeas corpus is an appropriate remedy, it matters not that a remedy also existed by writ of error, or by some other appellate proceeding. This principle is well established, and I believe that no authority disputes it.
This doctrine is not to be confounded with that other one well understood and thoroughly established that habeas corpus does not take the place of the writ of error, and that in such a proceeding mere errors of law are not reviewable.
To deny our jurisdiction on the ground that the order of the. justice is or was appealable, would also deny the jurisdiction of the district court in the habeas corpus proceedings, which were entertained by that court.
I have alluded to the principle that habeas corpus does not usurp the prerogative of a writ of error. The decision of the committing court on questions of law or fact within its jurisdiction is conclusive, and however erroneous the proceedings may be they can not be reviewed collaterally on habeas corpus. It is a fundamental principle that errors and irregularities, not jurisdictional, will not be examined or inquired into on such a writ. But questions affecting the jurisdiction of the court and errors which are juiisdictional may always be examined into on habeas corpus; and this rule is as fundamental as the other.
The inquiry in this case, then, is whether the decision of the magistrate that the petitioner was guilty of a contempt in refusing to answer the questions, amounts, if erroneous, to a mere error of law, or whether a question of jurisdic*428tion is involved in that decision. This matter is fully discussed and the authorities reviewed in Judge Corn’s opinion, and all I care to say in respect to it is that upon reason and authority, if the act of the petitioner in refusing to answer the questions was not a contempt in law, the justice was without jurisdiction to commit him. This proposition is sustained by the great weight of authority, and particularly the modern decisions, and in my judgment it rests upon sound reasoning.
If the petitioner is protected by a constitutional privilege as he claims, then he had an absolute right, guaranteed by our constitution, to refuse an answer, and his act in so refusing was not in legal contemplation a contempt. The majority of the court are of the opinion, for the reasons stated by Judge Corn, that he was so protected, and could not lawfully be required to answer the questions. The distinction is clearly laid down in Brown on Jurisdiction, and that author pertinently states, in substance, that if a court attempts to deprive a party of a constitutional guaranty or privilege, its jurisdiction is exceeded. It therefore follows that the magistrate was without jurisdiction to commit petitioner, and the order committing him is void; and where that is the case, under all the authorities, he may be discharged upon habeas corpus.
The contempt charged against the petitioner is not that of disorderly conduct, or disobedience of process; nor in refusing to answer without assigning any reason. He claims that he could not do so without incriminating himself, thereby giving a reason, which, if made in good faith, and under such circumstances as reasonably to disclose that the answers might tend to incriminate him, entitle him to be excused from answering.
There exists but little disagreement among the courts of this country respecting the general principles which must govern this case. Whatever differences there are, grow out of the application of those principles. With most of the decisions cited and quoted from in the dissenting opinion of our brother, Mr. Justice Knight, I *429have no fault to find or criticisms to make. They are most of them, at least, in perfect accord with those cited in the majority opinion of the court in this case, and with a very few exceptions do not at all conflict with the views entertained and applied by the court in the case at bar.
Owing to the importance of the questions involved m this hearing, and the fact that they were matters of first impression in this court, I have thought it advisable to thus briefly state'the reasons which have led to my conclusions.