concurring.
I fully and heartily concur in the foregoing able opinion, and hold that the judgment of Judge Lindley, discharging Jilz from the custody of the jailor, was final and conclusive, and that neither the court of criminal correction, nor any other court in the State could re-commit him on the original sentence.
The position of the counsel for the State, and the ground necessarily taken by any one holding that the action of the court of criminal correction was proper, is that, although the sta'ute authorized Judge Lindley to issue the writ, and when Jilz was brought before him he acquired jurisdiction of his person and of the cause, yet he had no jurisdiction to discharge him, unle-s he should decide properly the legal questions involved. In other words, if the sentence pronounced by the court of criminal correction was right, Judge Lindley had jurisdiction to re-commit, but none to discharge Jilz, and Judge Cady had the right, and it became his duty, to disregard the order of discharge and recommit him.
In the matter of DaCosta,(Park. Crim. Cas. 129) it was held by the Supreme Court of New York, that “the principle of res adjudícala is applicable to proceedings upon habeas corpus.” That was a case in which the petitioners had been remanded to the custody of the person who held them, but the principle of that is none the less applicable to this case. Our statute gives the prisoner this writ as often a,s he may find a court or officer superior to the one to whom he last made his application, authorized to issue it. In his petition he is required to state, “that no application for the relief sought has been made to or refused by any court, officer or officers, superior to the one to whom the petition is presented.”
In the case of DaCosta, supra, the observation of Senator Paige is quoted and approved, that, “if a final adjudication upon a habeas corpus is not to be deemed res adjudícala the consequence will be lamentable. This favored writ will become an engine of oppression instead of a writ of liberty.”
*216In the same case (Mercien vs. People, ex rel Barney, 25 Wend. 64) the chancellor delivering the opinion also held that, “the principle of res adjudicaia was applicable to a proceeding upon habeas corpus.”
Neither the court of appeals nor the Supreme court exercises appellate jurisdiction when it issues this writ, and its judgment, m tins proceeding, is of no more force or validity than that of a justice of the county court, or a circuit judge.
In Ex parte Toney (11 Mo. 662) Judge Napton observed that, “in deciding on the propriety of discharging a prisoner on habeas corpus, this court exercises no appellate jurisdiction. In the exercise of this power it is confined within the same limits which would restrain a judge of the circuit or county court in its exercise. It can give no other or greater relief than is afforded by these officers. If the idea of all appellate jurisdiction is discarded, it will be obvious that neither this court, nor any other court nor officer, can investigate the legality of a judgment of a court of competent jurisdiction by a writ of habeas corpses. If the court has jurisdiction of the subject matter and of the person, although its proceedings may be irregular or erroneous, yet they cannot be set aside in this proceeding. The party must resort to his writ of error, or other direct remedy, to reverse or set aside the judgment, for in all collateral proceedings it will be held to be conclusive.”
The court held in that case that Toney was not entitled to his discharge, and remanded him to the custody of the warden of the penitentiary ; but suppose it had determined otherwise, was there any authority in the court, in which Toney was convicted and sentenced, to re-commit him, in defiance of the mandate of this court, whether it erred or not? Could the inferior court have reviewed and reversed the judgment of this court? When the court says : “Although its proceedings (proceedings of the court in which the conviction was had) may be irregular or erroneous, yet they cannot be set aside in this proceeding,” it was not passing upon the effect of a judgment upon a habeas corpus discharging the prisoner, but announcing a rule by which courts, or *217officers issuing the writ, should be guided in determining what judgment to render.
If the doctrine of the Toney case be correct, and we fully indorse it, the court of criminal correction, if Jilz had sued out-his writ in this court instead of the circuit court, and been discharged, could have re-committed him, and repeated the commitment as often as any court should, on habeas corpus, order his discharge, unless such order regularly issued were a finality. If we now discharge Jilz, what is to hinder the court of criminal correction from re-committing him, if the doctrine contended for-be the law ? And if this be the law, of what value is the writ of habeas corpus ? The judge of the court, acting in a judicial capacity, would not be liable to the penalty prescribed by the statute, and if he were, what is the penalty, a hundred times recovered, in comparison of the personal liberty of a citizen ?
But, it may be said, a county court justice may issue the writ and discharge one convicted of a felony, and sentenced to the penitentiary, by a circuit court. If this be so, the mistake was in authorizing such inferior courts to issue this writ, but far better were it that nine hundred and ninety-nine of every thousand guilty men should escape under this process, than that a writ, which in the past has accomplished so much for personal liberty, should be rendered, inefficacious by judicial construction or legislative enactment. ~
It is the most celebrated writ known to our law, and has received such encomiums as have been pronounced upon no other judicial process belonging to ours or any other system of jurisprudence. Its origin is so far back in antiquity that its date cannot now be ascertained. It is older than Magna Charla, and for centuries has been held by Englishmen as the bulwark of their liberty, and is so highly esteemed by the people of the United States that it has been embalmed in the Federal Constitution, and in the Constitution of every State in the Union ; and yet if the position of the counsel for the State be correct, it is of less value than a writ of replevin, or a fieri facias ; for these do what they are designed1 to accomplish, while an inferior court can set at naught the judgment of the highest judicial tribunal of the *218land discharging one restrained of his liberty, and the victim of judicial oppression has no remedy but to resort again to his habeas corpus, again to be committed if such inferior court shall deem, or feign to believe, the judgment discharging him erroneous. With what propriety could it be denominated “the great writ of liberty,” if this he the law? When, then, would a citizen illegally restrained of his liberty, get his final discharge on a habeas corpus ?
This is no time to impair the efficacy of this writ. Now, more than ever before, should we he careful to preserve the “this dearest birthright of Britons,” as, more than a century ago, it was characterized by the English colonists in America. No prison walls should he strong enough, against its mandate, to hold one for whom it issues, nor any judge or court too great to bow in submission to the judgment rendered in the proceeding by a tribunal authorized to issue the writ of habeas corpus.
.1 think that the prisoner is entitled to his discharge.