Ex Parte Lange

85 U.S. 163, 21 L. Ed. 872, 18 Wall. 163, 1873 U.S. LEXIS 1301

Opinions

Mr. Justice MILLER

delivered the opinion of the court.

On consideration of the petition which was filed in' this case at a former day, the court was of opinion that the facts therein recited very fairly raised the question whether the Circuit Court, in the sentence which it had pronounced, and under which the prisoner, was held, had not exceeded its powers. It therefore directed the writ to issue, accompanied also by a writ of certiorari, to bring before this court the proceedings in the Circuit Court under which the petitioner was restrained of his liberty. The authority of this court in such-case, under the Constitution of the United States, and the fourteenth section of the Judiciary Act of 1789, to issue this writ, and to examine the proceedings in the inferior court, so far as may be necessary to ascertain whether that court has exceeded its authority, is no longer open to question.The cases cited in the note below

Footnotes

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* will, when examined, establish this proposition as far as judicial decision can establish it.

Disclaiming any assertion of a general power of review over \he judgments of the inferior courts in criminal cases, by the use of the writ of habeas corpus or otherwise, we proceed to examine the case as disclosed by the record of the Circuit Court and the return .of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held.

The first inquiry which presents itself is as to the nature and extent of the power of the Circuit Court over its own .judgments in reversing, vacating, or modifying them.

We are furnished by counsel with a very full review of the cases in the English and American courts on the question of the power of courts over their judgments once rendered in criminal cases. Many of these decisions in the, English courts are on writs of error and have but little bearing on the question before us. Others, which seem to present cases of judgments vacated or modified during the term at which they were rendered, are based upon the doctrines of the English courts, that there is no judgment or decree until the decree in chancery is enrolled or .the judgment has been signed by the judge of the court of law, and become technically a part of the judgment roll.*

These decisions, some of which go to the extent of denying all right to amend or change the judgment after it becomes a part of the roll, are inapplicable to our system, where a judgment roll, strictly speaking, is no part, or, at least, not a necessary part of our system of judicial proceedings. In most, if not all, our courts a minute-book, or a record of the proceedings of the court, is kept, and is the appropriate repository of all the o ders and judgments of the court; and this book with all its entries is, as a general rule, under the complete control of the court during the term to which such entries relate.

The general power of the court over its own judgments, orders, and decrees, in both civil and criminal eases, during the existence of the term at which they are first made, is undeniable.- And this is the extent of the proposition intended to be decided in the case of Bassett v. United States.† That was a case like this, in which, in a prosecution for misdemeanor, the prisoner had been sentenced to imprisonment. But it was by a judgment rendered on confession. He was afterwards, during the same term, brought into court and the judgment vacated, his plea' of guilty withdrawn, and leave given to plead anew; and then he gave bail and his case was continued. It was in an action on the bail-bond which he had forfeited, that the sureties raised the question of the right of the court to vacate the former judgment.

In general terms, without much consideration, for no counsel appeared for the sureties, this court sustained the right. If it was intended in that case to raise the question of the right of the court to inflict a new and larger punishment on the prisoner, without reference to the time of his imprisonment on the one set aside, that point was not presented so as to receive the attention of the court, and certainly was not considered or decided.

It would seem that there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it.

The judgment of the courts in this class of cases extends to life, liberty, and property. The terms of. many of them extend through considerable periods of time, often many months, with adjournments and vacations in the same term, at the discretion’of the judge. A criminal may be sentenced to a disgraceful punishment, as whipping, or, as in the old English law, to have his ears cut off, or to be branded in the hand or forehead.

The judgment of the court to this effect being -rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute line or imprisonment, and cause the latter sentence also to be executed? Or if the judgment of the court is that the convict be imprisoned for four months, and he enters immediately upon1 the period of punishment, can the court, after it has beeu fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months’ imprisonment, or for a line? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal is manifest.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more1 than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second p'uuishment is proposed in the same court, on the same facts, for the same statutory offence.

The principle finds expression in m'ore than one form in ' the maxims of the common law. In civil cases the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. Nemo debet bis vexari pro una el eadem causa. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action.

In the criminal law the same principle, more directly applicable to the case before us, is expressed in the Latin, “Nenio bis punitur pro eodem delicto,”* or, as Coke has it, “ Nemo debet bis puniri pro uno delieto.”† No.one can be twice punished for the same crime or misdemeanor, is the translation of the maxim by Sergeant Hawkins.

Blaekstone in his Commentaries,‡ cites the same maxim as the reason, why, if a person has been found guilty of manslaughter on an indictment, aud has had benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed.

Of course, if there had been no punishment the appeal would lie, and the party would be subject to the danger of another form of trial. But by reason of this universal principle, that no person shall be twice punished for the same offence, that ancient right of appeal was gone when the punishment had once been suffered. The protection against the action of the same court in inflicting punishment twice must surely be as necessary, and as clearly within the maxim, as protection from chances or danger of a second punishment on a second trial.

The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the. accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.

Hence to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute, a plea of autrefois acquit or autrefois' convict is a good defence.

Iu the case of Crenshaw v. The State of Tennessee, * it was held by the Supreme Court of that State that the common-law principle went still further, namely, that an indictment, conviction, and punishment in a case of felouy not capital was a bar to a prosecution for all other felonies not capital committed before such conviction, judgment, and execution.

If in civil cases, says Drake, J., in State v. Cooper, † the law abhors a multiplicity of suits, it is yet more watchful in criminal cases that the crown shall not oppress the subject, or the government the citizen, by unreasonable prosecutions.

These salutary principles of the common law have, to some extent, been embodied in the constitutions of the several States and of the United States. By Article YII of the amendments to the latter instrument it is declared that no fact once tried by a jury shall be otherwise re-examiued in any court of the United States than according to the rules of the common law; and by Article Y, that no person shall for the same offence be twice put in jeopardy of life or limb , . . nor be deprived of life, liberty, or property without due process of lawn

It is not necessary in this case to insist that other .cases besides those involving life or limb are positively covered by the language of this amendment; or that when a party has had a fair trial before a competent court and jury, .and has been convicted, that any excess of punishment deprives him of liberty or property without due course' of law. On the other hand it would seem to be equally difficult to maintain, after what we have.said of the inflexible rules of the common law against a person being twice punished for the same offence, that such second punishment as is pronounced iu this case is not a violation of that provision of the Constitution.

It is very clearly the spirit of the instrument to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.

In the case of The Commonwealth v. Olds,‡ one of the

Oct. 1873.] Ex parte Lange. 171 Opinion of the court. best common law judges that ever sat on the bench of the Court of Appeals of Kentucky* remarked, “that every person acquainted with the history of governments must know that state trials have been employed as a formidable engine in the hands of a dominant administration. ... To prevent this mischief the ancient common law, as well as Magna Charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict. To perpetuate this wise rule, so favorable and necessary to the liberty of the citizen in a government like ours, so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the clause in question.” In the case of Cooper v. The Statef in the Supreme Court of New Jersey, the prisoner had been indicted, tried, and convicted for arson. While still in custody under this proceeding he was arraigned on an indictment for the murder of two persons who were in the' house when it was burned. To this he pleaded the former conviction in bar, and the Supreme Court held it a good plea. It is to be observed that the punishment for arson could not technically extend either to life or limb; but the Supreme Court founded its argument on the provision of the constitution of New Jersey, which embodies the precise language of the Federal Constitution. After referring to the common law maxim the court says: “ The constitution of New Jersey declares this important principle in this form : ‘Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’ Our courts of justice would have recognized and acted upon it as one of the most valuable principles of the common law without any constitutional provision. But the framers of our Constitution have thought it worthy of especial notice. And all who are conversant with courts of justice must be satisfied that this great principle * Mills, J. — Rep. † 1 Green, 361.

forms one of the strong bulwarks of liberty. . . „ Upon this principle are founded the pleas oí autrefois acquit and autrefois convict.” ■

And Hawkins in his Pleas of the Crown* says that both the pleas of autrefois acquit and autrefois convict are grounded on the maxim that a man shall . . . not be brought into danger of his life for one and the same offence more than once.

In Moor v. The People of Illinois,† the defendant was fined four hundred dollars under the criminal code of that State for harboring and secreting a negro slave. The case came to this court under the twenty-fifth section of the Judiciary Act, on the ground that the right to legislate on that subject was exclusively in Congress. The court did not concur in that view of the question. But it was also urged that the party might be subjected twice to punishment for the same offence if liable to be prosecuted under statutes of both State and National legislatures. In regard to this Judge McLean said, in a dissenting opinion, that “the exercise of such a power by the States Would, in effect, be a violation of the Constitution of the Unified States and of the respective States. They all provide against a second punishment ■for the same act.” “ It is contrary,” said he, “ to the nature and genius of our government to permit an individual to be twice punished for the same act.”

Mr. Bishop, in the latest edition of his work on .criminal law,‡ speaking of this constitutional provision, says the construction of these words is that properly .the rule extends to treason and all felonies, not to misdemeanors. Yet practically and wisely the courts have applied it to misdemeanors, and that in view of the liberal construction of statutes and constitutions in faWor of persons charged with crime he cannot well see how courts can refuse to apply this constitutional guarantee in cases of misdemeanor.

Chitty§ also drops the words life and limb in speaking of the pleas of autrefois acquit and autrefois convict, and declares that they both depend on the principle that no man shall more than once be placed in peril of legal penalties upon the same accusation.

If we reflect that at the time this maxim came into existence almost every offence was punished with death or other punishment touching the person, and that these pleas are now held valid in felonies, minor crimes, and misdemeanors alike, and on the difficulty of decidiug when a statute under modern systems does or does not describe a felony when it defines and punishes an offence, we shall see ample reason for holding that the principle intended to be asserted by the constitutional provision must be applied to all cases where a second punishment is attempted to be inflicted for the same offence by a judicial sentence.

For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? "Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, -after judgment has been rendered on the conviction, and the sentence of that judgmeut executed on the- criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted ?

The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being, twice tried for it.

But there is a class of cases in which a second trial is had without violating this principle. As when the jury fail to agree and no verdict has been rendered,* or the verdict set aside on motion of the accused, or on writ of error prosecuted by him,† or the indictment was found to describe no offence known to the law.

And so it is said that, the judgment first rendered in the present case being erroneous'must be treated as no judgment, and, therefore, presenting no bar to the rendition of a valid judgment. The argument is plausible but unsouud. The power of the court over that judgment was just the same, whether it was void or valid. If the court, for instance,had rendered a judgment for two years’ imprisonment, it could no doubt, on its own motion, have vacated that judgment during the term and rendered a judgment for one year’s imprisonment; or, if no part of the sentence had beeu executed, it could have rendered a judgment for two hundred dollars fine after vacating the first. Nor are we prepared to say, if a case could be found where the first sentence was wholly and absolutely void, as where a judgment was rendered when no court was in session, and at a time when no term was held — so void that the officer who held the prisoner under it would be liable, or the prisoner at perfect liberty to assert his freedom by force — whether the payment, of money or imprisonment under such an order would be abar to another judgment on the same conviction. On this we have nothing to say, for we have no such case before us. The judgment first rendered, though erroneous, was not absolutely void. It was rendered by á court which had jurisdiction of the party and of the offence, on a valid verdict. The error'of the court in imposing the two punishments mentioned in the statute, when it had only the alternative of one of them, did not make the judgment wholly void. Miller v. Finkle‡ is directly in point. But we think that no one will contend that the first sentence was so absolutely void that an action could be maintained against the marshal for trespass in holding the prisoner under it.

The petitioner, then, having paid into court the fine imposed upon him of two hundred dollars, and that money-having passed into the Treasury of the United States, and beyond the legal control of the court, or of any one else but the Congress of the United States, and be having also undergone five days of the one year’s imprisonment, all under a valid judgment, can the court vacate that, judgment entirely, and without reference to what has been done under it, impose another punishment ou the prisoner on that same verdict? To do so is to punish him twice for the same offence. He is not only put in jeopardy twice, but put to actual punishment twice for the same thing.

The force of this proposition cannot be better illustrated than by what occurs in the present case if the second judgment is carried into effect. The law authorizes imprisonment hot exceeding one year or a fine not exceeding two hundred dollars. The court, through inadvertence, imposed both punishments, when it could rightfully impose but one. After the fine was paid and passed into the treasury, and the petitioner had suffered five days of his one year’s imprisonment, the court changed its judgment by sentencing him 'to one year’s imprisonment from that time. If this latter sentence is enforced it-follows that the prisoner in the end pays his two hundred dollars fine and is imprisoned one year and five days, being all that the first judgment imposed ou him, and five days’ imprisonment in addition. And this is done because the first judgment was confessedly in excess of the authority of the court.

But it has been said that, conceding all this, the judgment under which the prisoner is now held is erroneous, but not void; and as this court cannot review that judgment for error, it can discharge the prisoner only when it is void.

But we do not concede the major premise in. this argument. A judgment may be erroneous and not void, and it may be erroneous because it is void. The distinctions between void and merely voidable judgments are very nice, and they may fall under the one class or the other as they are regarded for different purposes.

We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone. That the principle we have discussed then interposed its shield, and forbi'dsthat he should be punished again for that offence. 'The record of the court’s proceedings, at the moment the second sentence was rendered, showed that in that very .case, and for that very offence,, the prisoner had fully performed, completed, and' endured one óf th,e alternative punishments which the law prescribed for that.offence, and had suffered five days’ imprisonment on account of the other. It thus showed the court that its power to punish for that offence was at an end'. Unless the whole doctrine of our system of jurisprudence, both of the Constitution and the common law, for the protection of personal rights in that regard, are a nullity, the authority of the court to punish the prisoner'- was gone! The power was exhausted; its further exercise was prohibited. It was error, but it was error because the power to render any further judgment did not exist.

It is no answer to this to say that the court had jurisdiction of "the person of the prisoner, arid of the offence under the statute. It by no means follows that these .two facts make valid, however erroneous it may be, any judgment the court may render in such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before' him, should render a judgment that he be hung, it would simply be void. Why void ? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death, or confiscation of property, it would, for the same reason, be void. Or if on an indictment for treason the coürt should render ta judgment of attaint, whereby the heirs of the criminal could not inherit his property, which should by the' judgment of the court be confiscated to the State, it would be void as to the attainder, because in excess of the authority of the court, aud forbidden by the Constitution.

A case directly in point is that of Bigelow v. Forrest. * In that case, under the confiscation acts of Congress, certain lands of French Forrest had been condemned and sold, and Bigelow became the holder of the title conveyed by those proceedings. After Forrest’s death his son and heir brought suit to recover the lauds, and contended that under the joint resolution of Congress, which declared that condemnation under that act should not be held to work a forfeiture of the real estate of the offender beyond his natural life, the title of Bigelow terminated with the death of the elder Forrest.

In opposition to this it was argued that the decree of the court confiscating the property in terms ordered all the estate of the said Forrest to be sold, and that though this part of the decree might be erroneous, it was not void. Here was a case of a proceeding in rem where the property was within the power of the court, and its authority to confiscate and sell under the statute beyond question; but the extent of that power was limited by the statute. The analogy to the case before us seems almost perfect. In that case the court said: “It is argued, however, on behalf of the plaintiff in error that the decree of confiscation of the District Court of the United States is conclusive, that the entire right, title, and interest of French Forrest was condemned aud ordered to be sold; and that as his interest was a fee simple that entire fee was confiscated and sold. Doubtless, a decree of a court having jurisdiction -to make the decree cannot be impeached collaterally, but under the act of Congress the District Court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest. Had it done so it xoould have transcended its jurisdiction.” The doctrine of that case is reaffirmed in the case of Day v. Micou at the present term,† where it is said that iu Bigelow v. Forrest “ we also determined that nothing more was within the ju risdiction or judicial power of the District Court (than the life estate), and that consequently a decree condemning the fee could have no greater effect than to subject the life estate to sale.”

But why could it not? Not because it wanted jurisdiction of the property or of the offence, or to render a judgment of confiscation, but because in the very act of rendering a judgment of confiscation it condemned 'more than it had authority to condemn. In other words, in a ease where it had full jurisdiction to render one kind of judgment, operative upon the same property, it rendered one which included that which it had a right to render, and something more, aud this excess was held simply void. The case before us is stronger than that, for unless our reasoning has been entirely at fault, th'e court in the present case could render no second judgment against the prisoner. Its authority was ended. All further exercise of it in that direction was forbidden by the common law, by the Constitution, and by the dearest principles of personal rights, which both of them are supposed to maintain.

There is .ño more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the. personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied. Without straining either the Constitution of the United States, or the well-settled principles-of the common law, we have come to the conclusion that the sentence of the Circuit Court under which the petitioner is held a prisoner was pronounced without authority, and he should therefore be discharged.

Discharged accordingly.

Hamilton’s Case, 3 Dallas, 17 ; Burford’s Case, 3 Cranch, 448 ; Ex parte Bollman, 4 Id. 75; Ex parte Watkins, 3 Peters, 193 ; Same Case, 7 Id. 568 ; Ex parte Metzger, 5 Howard, 176; Ex parte Kaine, 14 Id. 103; Ex parte Wells, 18 Id. 307; Ex parte Milligan, 4 Wallace, 2; Ex parte McCardle, 6 Id. 318; Same Case, 7 Id. 506; Ex parte Yerger, 8 Id. 85.

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Archbold’s Criminal Pleading, 176.

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9 Wallace, 38.

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2 Hawkins’s Pleas of the Crown, 377.

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4 Reports, 43, a; 11 Id. 95, b.

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Vol. 4, 315, Sharswood’s edition.

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1 Martin & Yerger, 122.

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5 Littell, 137.

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1 Green’s New Jersey, 375.

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Pages 515, 526.

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Sections 990, 991, 5th edition.

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14 Howard, 13.

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1 Criminal Law, 452-462.

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United States v. Perez, 9 Wheaton, 579.

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People v. Casborus, 13 Johnson, 351.

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1 Parker Criminal Reports, 374.

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9 Wallace, 339.

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Supra, 156.