Separate Opinion.
VALLIANT, J.The conclusion reached by the majority of the court is that the prisoner be remanded for trial, and in that conclusion I concur, but for the following reasons only:
The original purpose of the writ of habeas corpus, as its office was described and defined under the act of 31 Charles II, in which form, substantially, it has come down to us, was to give effect to that provision of the thirty-ninth section of the Great Charter of King John, which declared that no individual in the realm should be deprived of his liberty unless his right to the same had been declared forfeited “by the judgment of his peers or the law of the land.” Although it was an ancient common law writ, and although the right to personal liberty was clearly enough defined in the Great Charter, yet such was the opposition of the kings to the enforcement of the right and their influence with the crown judges, the remedy was often denied and the right disregarded. Blackstone says: “And yet early in the reign of Charles I, the court of King’s bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by special command of the king, or by the lords of the privy council. .......These pitiful evasions gave, rise to the statute of 16 *238Car. 1, c. 10, sec. 8, whereby it is enacted that, if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretense whatsoever, a writ of habeas corpus,” etc. Then after pointing out the new shifts and devices that were resorted to by the crown judges to render the writ impotent, the great law-writer adds: “But whoever will attentively consider English history, may observe, that the flagrant abuse of any power, by the crown or its ministers, has always been productive of a struggle, which either discovers the exercise of power contrary to law, or (if legal) restrains it for the future. This was the case in the present instance (the Jenks case). The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. 2, c. 2,” etc. [Blackstone’s Com., bk. 3,-*pp. 134-5.]
Reference to the origin and purpose of this writ is here made to recall to our minds that its office was to afford a man who was imprisoned otherwise than on the judgment of a court, a hearing before a competent court or judge, to the end that the legality of his commitment might be inquired into, and if unlawful that he might be discharged from custody even though the king himself had ordered his imprisonment. Although the conditions that surround us to-day havte materially changed from those that our ancestors contended with at that period of English history, yet in essential principle there is no difference in the office of the writ of habeas corpus now from what it was then. We have now no kings or privy councils, but we have men in executive authority who sometimes do imprison people without legal right, and who sometimes from overzeal and sometimes from bad motives are induced to use their power to the oppression of the citizen and would confine him in silence and without judicial inquiry, if they were not subject to the writ of habeas corpus. Therefore the writ is not only preserved in our .system of jurisprudence, but ranks *239perhaps as the most important in influence, as it certainly is the most famous in history, of all writs known to the English common law.
But where a man is taken into custody under a warrant from a court competent to try him for the offense charged and competent to decide whether or not the act charged is an offense against the law and the court is proceeding in due course with the case, or where it has proceeded to judgment and has adjudged the accused guilty and pronounced the sentence of the law upon him, it can not be said in the language of Magna Oharta that he is deprived of his liberty without having been adjudged to have forfeited it “by the judgment of his peers or the law of the land,” and therefore the writ of habeas corpus has no place in his case.
If the prisoner is held in custody under process awaiting trial or under commitment awaiting the action of the grand jury, and bail has been refused him, the habeas corpus act expressly provides that he may be brought before a court or judge under this writ and admitted to bail to await his trial, or the action of the grand jury, if it is a bailable case. [R. S. 1899, secs. 3568-3581.]
But except for the purpose of admitting to bail, the writ of habeas corpus was not designed and should not be issued to interfere with the due procedure in a court of competent jurisdiction. This is the doctrine announced by this court in its 'earlier decisions and is the only doctrine consistent with the original purpose of the writ and with the spirit of the habeas corpus act in our statutes and under our State judiciary system, although reason exists for a different view under the Federal judiciary system.
In Ex parte Harris, 47 Mo. 164, the petitioner was under legal process and held for further action of the court and he claimed that he was unlawfully restrained of his liberty because the statute under which he was held was unconstitutional. *240The court, per Wagner, J., after quoting from what is now section 3578, Revised Statutes 1899, which provides that when the prisoner is held on legal process he shall not be discharged except in certain cases, refused to go into the question of the constitutionality of the statute under which the prisoner was held, and said: “The prisoner can have his trial, and if he is dissatisfied with the verdict and judgment, and desires to test the validity of the law, the courts are open to him, as they are to all other persons charged with the violation of the laws of the land. Admit this proceeding, and then every person charged with committing an offense of any kind and description whatsover, instead of standing his trial and litigating the matter as the law directs can come here and ask our advice as to the validity of the Jaw under which he is arraigned. And the Legislature clearly saw the impolicy of the proceeding, when it placed a prohibition upon it.”
This decision was approved, and its doctrine reaffirmed in Ex parte Boenninghausen, 91 Mo. 301. In that case it was contended that the Harris case had been overruled in Ex parte Slater, 72 Mo. 102, Ex parte Bethurum, 66 Mo. 545, and Ex parte Crenshaw, 80 Mo. 447, but the court per Norton, J., pointed out the distinction that in those cases the courts that had issued the process were acting beyond their jurisdiction, and the court in that case remanded the prisoner, refusing to consider the question of the constitutionality of the city ordinance under which Jre had been convicted in due form.
In Ex parte Mitchell, 104 Mo. 121, the prisoner had been convicted and sentenced in the circuit court for selling intoxicating liquors in violation of what was called the local option law; his contention was that that law had not been adopted in that county and therefore it was no law. The court, per Gantt, P. J., said: “The writ of habeas corpus is not the remedy to correct error of trial courts, and can not be substituted for appeals and writs of error. Every suggestion made *241in behalf of the prisoner here could have been made in the circuit court of Marion county, and that court should have had an opportunity of passing upon those questions. This court has a sufficient docket without reaching out and assuming jurisdiction committed by law to other courts.” No difference in principle is perceived between that case and one in which the constitutionality of the law is in question; in both, the question is, is the statute under which the prisoner is held a valid law ? If, as has been said, an unconstitutional law is no law at all, a law not legally adopted is no law at all. The one is as void as the other, and the circuit court was as competent to decide the status of the one as it was to decide that of the other, and if its decision was wrong in either, the aggrieved party had his remedy in a due and orderly manner.
In Ex parte Swann, 96 Mo. 44, this court, in a habeas corpus proceeding, did consider the question of the constitutionality of the local option law under which the prisoner had been convicted, and after reaching the conclusion that the law was valid remanded the prisoner. But the question of whether it was a proper subject for decision in a habeas corpus case was not referred to, either in the briefs of counsel or the opinion of the court. Whether, if the court had reached the conclusion that the law was unconstitutional and had thus been brought to the question we are now considering, it would have discharged the prisoner in the face of the judgment of the trial court whose jurisdiction was in no respect questioned, may be doubted. That case is referred to in Church on Habeas Corpus, sec. 374, as holding contrary to the other Missouri cases above referred to; if the text-writer’s estimate of that case is correct, it is so only because the point is passed over in silence.
Under the judiciary system of this State, any one tried and condemned as.for a crime may have the proceedings in his trial reviewed on appeal or writ of error, in which he may have *242relief not only against the errors and irregularities, if any, of the trial court, but,if he raises the question of the constitutionality of the statute under which he was convicted he may have the judgment of the highest court in the State on that question. And if the point he desires reviewed goes to the jurisdiction of the trial court, the record may be brought here on certiorari and quashed. If therefore under our system any one is left to pine in prison because of error or irregularity in his trial, or invalidity of the law under whch he was convicted, or lack of jurisdiction in the court that condemned him, it is only because he has omitted to avail himself of one of the several remedies the law affords him. There is absolutely no occasion in such case to invoke the remedy by habeas corpus, and it would be a misuse of that writ to so extend it.
Under our habeas corpus act, application for the writ is to be made “to some court of record in term, or to any judge thereof in vacation.” No appeal lies from the decision of the court or judge in such case, and the judgment of one such court or judge is of as much force as that of any other. “No person who has been discharged by the order of any court or magistrate, upon a writ of , habeas corpus issued pursuant to this chapter, shall be again imprisoned or kept in custody for the same cause.” [R. S. 1899, sec. 3598.] In Ex parte Jilz, 64 Mo. 205, the prisoner had been discharged from jail, to which he had been committed by judgment of the criminal court of St. Louis, under a habeas corpus proceeding before a judge of 'the circuit court; he was rearrested under the same commitment and discharged by this court under habeas corpus on the ground that having been once discharged by the circuit judge, whether rightfully or wrongfully, he could not again be confined on the same judgment. In that case this court per Norton, J., said: “In proceedings by habeas corpus this court only exercises original jurisdiction, and in issuing the writ and determining.the questions arising under it, possesses no more *243power than is possessed by a circuit court or a county court, or judge or officer authorized by law to issue the writ,” etc.
As our habeas corpus act makes no distinction between the courts or judges who may issue this writ, so it makes no distinction as to who may have ordered the imprisonment, whether it be the successor of the king and his privy council, or the highest court in the land. As the action of the circuit judge in' the Jilz case discharging the prisoner confined by judgment of the criminal court, was held to be final, whether right or wrong, so would a judgment under a habeas corpus of a judge of the county court discharging a prisoner held under judgment of this court be final, however erroneous it might be. This goes to show the unwisdom of attempting to apply the writ of habeas corpus to the case of a man in custody under judgment of a court of competent jurisdiction or held for trial under its process except for the purpose of admitting to bail as the act expressly provides. The circuit judge in the Jilz case made a misuse of the writ of habeas corpus; he should not have granted the writ if the facts sufficiently appeared on the face of the petition; or having granted it, he should have remanded the prisoner when it did appear by the return that the petitioner was held under the judgment of a court of competent jurisdiction. But having discharged the prisoner under an erroneous view of the office of the writ, that was the end of the ease, as the statute expressly provides (section 3598, supra), and as this court correctly held.
In State ex rel. v. Dobson, 135 Mo. 1, a circuit judge had issued a writ of habeas corpus on the petition of one in jail under conviction in the Jackson County Criminal Court for the crime of murder, the proceedings under that writ were brought to this court under certiorari at the suit of the Attorney-General and quashed. In declaring the law of the case this court per Sherwood, J., on page 12, said: “Now, nothing is better established than that the writ of habeas corpus *244possesses none of the attributes or performs any of the functions' of a writ of error, or an appeal, or certiorari.”
And again, on pages 16 and 17: “It matters not what the purpose was or the object in view. In any event the issuance of the writ was in disregard of the plainest statutory provisions and prohibitions, and was the establishment of a precedent most dangerous in its tendencies and innovations, and one not to be contemplated without the gravest apprehension. Just look at it. If such a proceeding as this is to be tolerated, .after a man has been duly tried and convicted of murder and judgment rendered and that judgment affirmed by this court, and the day of its execution set, any probate or county judge in the State, may, if the trial has happened in his county, interpose with a habeas corpus; retry the case on its merits; impeach the judgment of the trial court and discharge the prisoner, if in his' opinion this be the correct thing to do. The fact that in this instance the writ has been issued by a judge of a circuit court, a court of general jurisdiction, does not alter the complexion of the case in the least, because after all, the sole question to be answered is: Does the poiuer exist anywhere in this State thus collaterally to impeach the judgments of courts of competent jurisdiction, and thus to thwart the judgments and mandates of this court ? We are not of the opinion that any such power or jurisdiction exists or has any foundation either in statutory law or in legitimate precedents.” In the few lines thus quoted the whole principle governing this subject is compressed and forcibly expressed, and it follows that this court, exercising as it does under a writ of habeas corpus original and not appellate or supervisory jurisdiction, can no more set at naught the judgment of a circuit court than can a judge of the circuit or county court set at naught a judgment of this court. Under the habeas corpus act all courts and judges are on a plane.
The Supreme Court of California, expressing the same idea, have said: “Not only that, but, as already suggested, *245inferior tribunals would be called upon to review judgments of superior tribunals, and tribunals of equal grade to interfere and review each other’s proceedings. Such a rule would render all judicial proceedings amorphous and lead to the utmost confusion and disorder. It is well settled that habeas corpus can be put to no such use, and that its functions, where the party who has appealed to its aid is in custody under process, do not extend beyond an inquiry into the jurisdiction of the court by which it was issued, and the validity of the process on its face.” [Ex parte McCullough, 35 Cal. 97.] Although it is said that an unconstitutional law is no law at all, and therefore a conviction under such a law is void, yet whilst that is true in a certain sense, it is inaccurate if by this it is intended to say that the judgment is coram non judice. If the court had authority to pronounce the judgment provided the law was constitutional, it had jurisdiction to decide whether or not it was constitutional, and if it decided erroneously the error did not go to the jursidiction of the court. In a decision of the United States Supreme Court, cited in State ex rel. v. Dobson, supra, Chief Justice Marshall said: “The question whether an offense was or was not committed, that is, whether the indictment did or did not show that an offense had been committed, was a question which that court was competent to decide. If its judgment was erroneous.... still it is a judgment, and until reversed can not be disregarded.” [Ex parte Watkins, 3 Pet. 193, l. c. 203, 206.]
It is in failing to observe the distinction there indicated that has misled some courts in this country to giving sanction to the use if this writ in setting at naught the judgment of a .court of competent jurisdiction or interfering with its due process to discharge a prisoner upon the ground that the legislative act under which the prisoner was condemned or is being held for trial is, in the opinion of the magistrate granting the writ, unconstitutional.
*246A text-writer of ability, formerly Chief Justice of the Supreme Court of Wisconsin, commenting on this point says: “Those who have pretended to treat the subject, as some have, by merely collecting such general expressions, have tended to confuse rather than demonstrate and make plain. They make no distinction between errors of law and errors which are jurisdictional .... It is evident that these distinctions must be observed, or else an intelligent treatment of the subject is not made.” [2 Bailey on Jurisdiction, note to sec. 409.]
The right which this writ is intended to secure is that a man shall not be deprived of his personal liberty, in the language of the Great Charter, "nisi per judicium pariwn suorum vel per legum terrae,” but who are his peers if they be not those appointed by law to try his case, and what is the law of the land if it be not that which is solemnly so adjudged to be by the court designated to pronounce the judgment ? Can it be that the habeas corpus act is intended to substitute the individual opinion of any magistrate, intrusted by its provisions with the issuance of the writ, for the judgment of a fully equipped court proceeding in solemn form ? It would be as wise to do so as to adopt for the measure of equity the ancient illustration of the chancellor’s foot or the chancellor’s conscience.
The doctrine announced by this court in Ex parte Harris, and Ex parte Boenningausen, above quoted, continued to be the doctrine of this court and was not expressly departed from until the decision in Ex parte Smith, 135 Mo. 223, which has since been followed by a divided court in Ex parte Neet, 157 Mo. 527. There were the cases of Ex parte Swann above commented upon, Ex parte Marmaduke, 91 Mo. 228, and Ex parte Thompson, 117 Mo. 83, but in neither of those was there an express ruling on this question.
The learned judge (Sherwood, J.) who wrote the opinion in Ex parte Smith, referred to the decision of the Supreme *247Court of the United States in Ex parte Siebold, 100 U. S. 371, and to the text of Church on Habeas Corpus, wherein are collected references to decisions in other States following the Supreme Court of the United States in the Siebold case. But a reading of the opinion in that ease shows that although it is founded in reason as applicable to the Federal judiciary, the doctrine announced is in discord with our State judiciary system. The Supreme Court of the United States was there defining its own authority, not under the habeas corpus, as an original writ, but as using the writ in its capacity of an appellate and supervisory court. Because in the case before it there was no appeal from and no writ of error to the U. S. Circuit Court by which the judgment under which the prisoner had been convicted could be reviewed, and no other method prescribed by law by which the validity of the act of Congress under which the conviction was had could be tested in the Supreme Court, that court said it would, under its appellate jurisdiction, review the judgment to that extent on habeas corpus. This is the language of that court as found on page 374: “The question is whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created by and indictable under an unconstitutional act of Congress, may be discharged from prison by this court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judgment. It is objected that the case is one of original and not appellate jurisdiction, and, therefore, not within the jurisdiction of this court. But we are clearly of the opinion that it is appellate in its character. It requires us to revise the act of the circuit court in making the warrants of commitment upon the convictions referred to. This, according to all decisions, is an exercise of appellate power. [Citing cases.] That this court is authorized to exercise appellate jurisdiction by habeas corpus directly is a position sustained by abundant authority. It has abundant power to issue the writ *248subject to the constitutional limitations of its jurisdiction, which are, that it can only exercise original jurisdiction in cases affecting ambassadors, public ministers and consuls and cases in which a State is a party; but has appellate jurisdiction in all other cases of Federal cognizance, ‘with such exceptions and under such regulations as Congress shall make.’ ”
Again the court says: “The validity of the judgment is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void and is as no law. A conviction under it is not merely erroneous, but is illegal and void, and can not be a legal cause of imprisonment. It is true, if no writ lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law thatdhe judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to issue the writ.”
Thus it will be seen that the whole reason on which' the United States Supreme Court founded that case is absent in our State law and in our State judiciary system. In the first place, since under our system, as we have seen, no man can be convicted under a legislative enactment without having an opportunity of testing the validity of the act in the highest court in this State, there is no necessity for straining a point in the interest of personal liberty to supply what may have been an oversight in the lawmakers. And in the next place, we can not, as did that court, say that as a superior court and by virtue of our appellate jurisdiction we will review the judgment of an inferior court under a writ of habeas corpus, because as said by Norton, J., in the <Tilz case, supra, with the concurrence of all the judges, in such case this court exercises only *249original jurisdiction and “possesses no .more power than is possessed by a circuit court or a county court or any judge or officer authorized to issue the writ,” and as said by Si-ierwood, J., in the Dobson case, supra, the fact that the writ was issued by a circuit judge did not alter the complexion of the case in the least; it might as well have been issued by a probate or county judge. We can not declare for ourselves a power under this writ that we must not concede to any court or judge that can issue it. If by this writ we can set at naught the judgment of a circuit court by the same writ, a judge of the circuit court can set at naught a judgment of this court. We said in the Dobson case that a circuit judge had no such authority and we must for the same reason say we have no such authority. By adhering to the doctrine in the Harris case, supra, we put no one in peril of his liberty otherwise than “by the judgment of his peers or the law of the land” and by the same means we preserve due order in our courts in the administration of our criminal laws.
Eor these reasons the decisions in Ex parte Smith and Ex parte Neet, in so far as they hold that the court had authority under the writ of habeas corpus to discharge the prisoners, should be overruled.
And for the same reasons we should not in this proceeding decide the question as to the validity of the act of the Legislature under which the petitioner in this case is held, and since it appears that he is held under due process of a court of competent jurisdiction, he should be remanded to the custody under that jurisdiction. Brace and Robinson, JJ., concur in these views.