The opinion of the court was delivered,
by Lowrie, C. J.
The plaintiff was committed to prison by the District Court of the United States, for a contempt of court, in refusing to answer to a writ of habeas corpus. And thereupon he applied to the defendant, then Chief Justice of this court, for a writ of habeas corpus, and his petition was refused. The plaintiff regards this as an injury to him, and therefore he brings this suit for the penalty prescribed by the Act of Assembly against any judge who shall refuse to issue a habeas corpus as “ required by the act.” He was nonsuited below. Is this error? In other words, does the act require a judge to issue a habeas corpus in such a case ?
We have already decided, not only that the act does not require it of a single judge, but that evén this court has not and cannot have any authority to issue such a writ in such a case : 2 Casey 9. We have shown this by reference to the English practice, and especially to the opinions of such eminent English judges as De Grey, 3 Wils. 198; Blackstone, Id. 204; Wilde, 5 C. B. 418; and others, 14 Q. B. 554. And of such eminent American judges as Story, 7 Wheat. 42; Kent, 4 Johns. 368-73, 5 Id. 288; Gibson, 1 Watts 68; and we now add Taney, 21 Howard’s U. S. Rep. 523. If, then, this court has no authority to issue the writ when such a case as this is presented to them, it seems too plain for argument, that no single judge of the court could do it, and the law has not been violated.
It is argued that the District Court had no jurisdiction of the case in which the alleged contempt was committed. But that is not the question, a,nd cannot be a question under the Habeas Corpus Act. That act, so far as it relates to criminal matters, requires a writ founded on the warrant of commitment alone; and all that the judge applied to is required to look at is the warrant. If that shows a cause of commitment that is “bailable,” and for which he may take the recognisance of the party to appear and be tried, he is bound to grant the writ; otherwise, he is not; and of this he must judge at the peril of the penalty. The act gives him no authority, and especially it does not require him to look back of the warrant to the record on which it is founded; and therefore, it imposes no penalty for not doing what possibly he might have done, had he inquired beyond the warrant. If the District Court usurped authority in taking cognisance of the case out of which the contempt arose, this plaintiff [26]*26has other remedies; but the Habeas Corpus Act imposes no penalty upon a judge for refusing to inquire and decide that question. The penalty of the act is for refusing to grant this writ in order to admit to bail to appear and answer, where the warrant shows a commitment for a bailable offence.
Whatever we may say about the offence charged in the warrant, certainly it is not bailable, and therefore not provided for by this act, and no single judge had any authority to interfere by habeas corpus with the warrant. This is the most obvious and satisfactory ground of the decision in Yates v. Lansing, 5 Johns. 288, 9 Id. 421-3; where it was decided that, where the chancellor had committed one for a contempt, and a judge of the Supreme Court had discharged him on habeas corpus, a recommitment by the chancellor did not subject him to the penalty which the statute imposes for recommitment. It was not a recommitment contrary to the statute, because the habeas corpus and the discharge under it were not authorized by the statute, and Ayere therefore void.
Airy one Avho will take the pains to analyze the Habeas Corpus Act, Avill readily discover that it excludes all cases of detention on civil process, and includes all cases of detention on a bailable criminal charge, or on any other colour or pretence, that is, in any other manner than by civil or criminal process, that is, by any private force or authority. And so the statutory AYrit' has always been administered.
It was not needed in the case of civil process, because all such detention is by judicial process, mesne or final, and is in the due course of law, and subject to correction by other adequate remedies proceeding in perfect accordance with official harmony and subordination. The statutory Avrit Avould be quite disorderly if applied here.
It Avas not needed in capital or non-bailable offences, because its common law form was quite as adequate for this as was consistent with public safety and order.
It was needed for bailable criminal cases, because it was due to the person charged, that he should not be unreasonably imprisoned, and that he should be promptly admitted to bail, and thus secured a regular trial by due course of law, before the tribunals appointed to try him.
It was needed in cases of private restraints of liberty, because these are not in the due course of law, and the citizen or subject is entitled to a speedy hearing before a judge, that it may be decided whether the restraint of his liberty is rightful or not.
For these tAvo classes of cases only does the statute provide; for public restraints on bailable criminal charges, and for private restraints on any pretence Avhatsoever.
Yet the common law efficacy of the habeas corpus goes far beyond this; and the AYrit takes many forms, according to the [27]*27character of the case to which it is applied. We shall refer to only two of these forms. Much perplexity has arisen in many minds from confounding these with each other, and with the statutory writ, and therefore it is important to distinguish them.
The habeas corpus cum causa and the habeas corpus ad subjiciendum are both common laAY writs, and both of them were in past times of very great importance to the rights of persons; and in modern times both of them have lost much of their importance by the gradual substitution of other more convenient forms that have taken their place, as well as by a clearer and firmer recognition of the'principles which they Avere intended to enforce. Both are in fact writs cum causa, and. yet they are quite different in their application.
The one usually called habeas corpus cum causa Avas a writ issuing out of a superior court to an inferior one, and directed to the judges of the latter to remove causes pending before them to be tried in the superior courts. And in old times it was regarded as a most important writ for the security of the subjects, because it secured to them a trial before the most learned and impartial courts, free from the tyranny of personal and local excitements, prejudices, and dislikes, and from the judicial ignorance of inferior tribunals. Its province was at first very indefinite, and hence it was often very abusively applied, to the great injury of private rights, and so as to produce disorder in the administration of justice; and therefore many statutes were passed to restrain its application. Blackstone gives us an adequate, but not a full account of this: 3 Comm. 130.
This form of the writ is seldom used by us noAY, because it is seldom needed. It is a form of enforcing an undoubted authority over subordinate courts. But some of its principles have passed into, or naturally belong to, the administration of the common laAY habeas corpus ad subjiciendum ; because superior courts, in reviewing the commitments of inferior magistrates on this latter writ, do sometimes go back of the commitment, and inquire into the grounds of it and their sufficiency.
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The opinion of the court was delivered,
by Lowrie, C. J.
The plaintiff was committed to prison by the District Court of the United States, for a contempt of court, in refusing to answer to a writ of habeas corpus. And thereupon he applied to the defendant, then Chief Justice of this court, for a writ of habeas corpus, and his petition was refused. The plaintiff regards this as an injury to him, and therefore he brings this suit for the penalty prescribed by the Act of Assembly against any judge who shall refuse to issue a habeas corpus as “ required by the act.” He was nonsuited below. Is this error? In other words, does the act require a judge to issue a habeas corpus in such a case ?
We have already decided, not only that the act does not require it of a single judge, but that evén this court has not and cannot have any authority to issue such a writ in such a case : 2 Casey 9. We have shown this by reference to the English practice, and especially to the opinions of such eminent English judges as De Grey, 3 Wils. 198; Blackstone, Id. 204; Wilde, 5 C. B. 418; and others, 14 Q. B. 554. And of such eminent American judges as Story, 7 Wheat. 42; Kent, 4 Johns. 368-73, 5 Id. 288; Gibson, 1 Watts 68; and we now add Taney, 21 Howard’s U. S. Rep. 523. If, then, this court has no authority to issue the writ when such a case as this is presented to them, it seems too plain for argument, that no single judge of the court could do it, and the law has not been violated.
It is argued that the District Court had no jurisdiction of the case in which the alleged contempt was committed. But that is not the question, a,nd cannot be a question under the Habeas Corpus Act. That act, so far as it relates to criminal matters, requires a writ founded on the warrant of commitment alone; and all that the judge applied to is required to look at is the warrant. If that shows a cause of commitment that is “bailable,” and for which he may take the recognisance of the party to appear and be tried, he is bound to grant the writ; otherwise, he is not; and of this he must judge at the peril of the penalty. The act gives him no authority, and especially it does not require him to look back of the warrant to the record on which it is founded; and therefore, it imposes no penalty for not doing what possibly he might have done, had he inquired beyond the warrant. If the District Court usurped authority in taking cognisance of the case out of which the contempt arose, this plaintiff [26]*26has other remedies; but the Habeas Corpus Act imposes no penalty upon a judge for refusing to inquire and decide that question. The penalty of the act is for refusing to grant this writ in order to admit to bail to appear and answer, where the warrant shows a commitment for a bailable offence.
Whatever we may say about the offence charged in the warrant, certainly it is not bailable, and therefore not provided for by this act, and no single judge had any authority to interfere by habeas corpus with the warrant. This is the most obvious and satisfactory ground of the decision in Yates v. Lansing, 5 Johns. 288, 9 Id. 421-3; where it was decided that, where the chancellor had committed one for a contempt, and a judge of the Supreme Court had discharged him on habeas corpus, a recommitment by the chancellor did not subject him to the penalty which the statute imposes for recommitment. It was not a recommitment contrary to the statute, because the habeas corpus and the discharge under it were not authorized by the statute, and Ayere therefore void.
Airy one Avho will take the pains to analyze the Habeas Corpus Act, Avill readily discover that it excludes all cases of detention on civil process, and includes all cases of detention on a bailable criminal charge, or on any other colour or pretence, that is, in any other manner than by civil or criminal process, that is, by any private force or authority. And so the statutory AYrit' has always been administered.
It was not needed in the case of civil process, because all such detention is by judicial process, mesne or final, and is in the due course of law, and subject to correction by other adequate remedies proceeding in perfect accordance with official harmony and subordination. The statutory Avrit Avould be quite disorderly if applied here.
It Avas not needed in capital or non-bailable offences, because its common law form was quite as adequate for this as was consistent with public safety and order.
It was needed for bailable criminal cases, because it was due to the person charged, that he should not be unreasonably imprisoned, and that he should be promptly admitted to bail, and thus secured a regular trial by due course of law, before the tribunals appointed to try him.
It was needed in cases of private restraints of liberty, because these are not in the due course of law, and the citizen or subject is entitled to a speedy hearing before a judge, that it may be decided whether the restraint of his liberty is rightful or not.
For these tAvo classes of cases only does the statute provide; for public restraints on bailable criminal charges, and for private restraints on any pretence Avhatsoever.
Yet the common law efficacy of the habeas corpus goes far beyond this; and the AYrit takes many forms, according to the [27]*27character of the case to which it is applied. We shall refer to only two of these forms. Much perplexity has arisen in many minds from confounding these with each other, and with the statutory writ, and therefore it is important to distinguish them.
The habeas corpus cum causa and the habeas corpus ad subjiciendum are both common laAY writs, and both of them were in past times of very great importance to the rights of persons; and in modern times both of them have lost much of their importance by the gradual substitution of other more convenient forms that have taken their place, as well as by a clearer and firmer recognition of the'principles which they Avere intended to enforce. Both are in fact writs cum causa, and. yet they are quite different in their application.
The one usually called habeas corpus cum causa Avas a writ issuing out of a superior court to an inferior one, and directed to the judges of the latter to remove causes pending before them to be tried in the superior courts. And in old times it was regarded as a most important writ for the security of the subjects, because it secured to them a trial before the most learned and impartial courts, free from the tyranny of personal and local excitements, prejudices, and dislikes, and from the judicial ignorance of inferior tribunals. Its province was at first very indefinite, and hence it was often very abusively applied, to the great injury of private rights, and so as to produce disorder in the administration of justice; and therefore many statutes were passed to restrain its application. Blackstone gives us an adequate, but not a full account of this: 3 Comm. 130.
This form of the writ is seldom used by us noAY, because it is seldom needed. It is a form of enforcing an undoubted authority over subordinate courts. But some of its principles have passed into, or naturally belong to, the administration of the common laAY habeas corpus ad subjiciendum ; because superior courts, in reviewing the commitments of inferior magistrates on this latter writ, do sometimes go back of the commitment, and inquire into the grounds of it and their sufficiency. The power to do this comes from the fact of their superiority, and therefore from common law, and not from the Habeas Corpus Act. They cannot, of course, do so, in relation to commitments by courts that are not their inferiors in the judicial hierarchy; and'therefore the superior common laAV courts never deal so Avith each other’s commitments, or with those of the Court of Chancery. A judge could have no right to issue it so as to violate the due course of laAY secured by Magna Charta, and with us by our American constitutions: 4 Johns. 368; 3 Wils. 198; 5 C. B. 418; 14 Q. B. 554.
Of course our state courts cannot thus interfere with the acts [28]*28of the Federal courts, without violating the due course of law, for they belong to a totally different judicial hierarchy or order. And this does not say that any court may wickedly usurp power with impunity, but only that there shall be no disorderly correction of such usurpations. There are regular remedies for it by action and impeachment, and if these are not sufficient the proper authorities ought to provide others. The Habeas Corpus Act provides none. When a court has authority to send a habeas corpus or a certiorari to remove a cause and the record of it from an inferior court, to be tried before them, or when they act as superior committing magistrates, they may go back into the evidence on which the commitment is founded, and review that, because of their jurisdiction over the inferior courts and their acts, and because of their general superiority. Where they have no such superiority, they cannot do it. No one will pretend that any state(,judge or court has this sort of superiority over the Federal courts.
So great was the efficiency of the common law writ (cum causa and ad subjiciendum) that Mr. Hallam, in his Constitutional History of England, vol. 3, p. 16, thinks we are apt to greatly overestimate the value of the Habeas Corpus Act, because it was merely affirmative of well settled common law principles of right declared in Magna Charta, and often repeated in subsequent statutes. If this be true of the English statute, it is much more so of ours, because these principles had been very often declared with us from the very start of the province, and had become much more definitely understood and admitted when our act was passed, than they were at the date of the English statutes.
But this view of Mr. Hallam rests on the very common mistake of considering declarations of principles and rights, as equivalent to settled institutions; whereas, the real force that is to act upon or resist other forces, is in the institution which the principles have produced; as the force of an animal or a tree is in the animal or tree itself, and not in the vital force that produced it. As a matter of fact, the Habeas Corpus Act was greatly needed at the time of its passage (1679), when Live friends of liberty and leaders of the people were continually in danger of imprisonment at the pleasure of the king, and by his order or that of his privy council or some member of it. The principle was, indeed, as old in its expression as Magna Charta, that justice by due course of law should be denied to no man; but it lacked the body and force which is imparted only by a firm institution.
Sir Edward Coke, 2 Inst: 186, in treating of commitments by command of the king, spoken of in St. Westm. 1, c. 15, passed in 1275, says this meant by the king “in some court of justice, according to iaw.” But this is a plain anachronism. He is [29]*29speaking of his theory of his country’s institutions (which was itself in advance of his times) in explanation of the institutions actually existing three and a half centuries before, when every lord had a castle with a prison in it, and every king might commit when he pleased, according as he himself chose to regard Magna Oharta. There was no institution strong enough in itself to protect private rights against the all-embracing and all-powerful institution which was embodied in him.
The fact is plain; the principle needed an institution that was itself firm enough to give it body and force. The courts were not such institutions, for they were mere ministers of the king, appointed during his pleasure, and acting on the received theory of government, that the king was the source of all authority. Both sentiment and logic, therefore, guided them to the conclusion that they could assume no authority contrary to his will. To perform judicial functions well, the courts had to become a real power in the land, based on a firm foundation of its own, and not a mere ministry to other powers.
It was necessary, therefore, that the habeas corpus should itself become, as it were, an institution, by taking a firm and definite form, that could not be mistaken, and by being armed with penalties which no judge could resist, and no king could set aside. Thus, too, the courts themselves became more powerful against royal influence. When the law at last required that they should be commissioned during good behaviour, they had little need of the Habeas Corpus Act to secure them against royal interference; but it was still useful, to insure their attention to the demands of suitors. Our respect for the writ of habeas corpus depends much more upon the good it has done, than upon its modern efficacy; for, in recent times, it has been in very many cases superseded by other forms of process. Its unobtrusive value in quiet times is seldom thought of, and it works so smoothly that it is scarcely felt. By this and other processes, the ordinary excitements and irregular modes of dealing of prb vate life are easily managed by the courts, when they know how to make proper allowances for the ordinary imperfections of humanity. And, even when judicial questions become the subject of great popular excitement, the difficulty is not so much in the case, as in the presentation of the decision of it in such a way as not to add to the excitement, and endanger the very stability of our most sacred institutions.
Let us now notice the common law habeas corpus ad subjiciendum. It has a much broader scope than that form of it which is secured by the Habeas Corpus Act; for it may issue in all sorts of cases where it is shown to the court that there is probable cause for believing that a person is restrained of his liberty unlawfully or against the due course of law. The statutory remedy [30]*30falls far short of this, and we fall into inevitable confusion when we go into the common law province of the writ for the principles that are to rule within its statutory province.
Again, this form of the writ by statute and at common law, is addressed to the person detaining another, and not to the judges under whose order, judgment, or warrant, he is detained, commanding him to produce the body, and the cause of his detention. Of course the jailor, keeper, or detainer could show no other cause (except in case of detention by private force) than the warrant of commitment; and the court could have nothing else to decide upon, unless, by reason of their official superiority, they could go back of the warrant, as we have already indicated. When this , official superiority exists, they may go back of the warrant, and ought to do so in proper cases. Here, however, the warrant shows a conviction for a proper cause, a contempt of court, and therefore a case not bailable to answer, and therefore a case not within the Habeas Corpus Act. And it is not within the common law of habeas corpus, because a judge of a state court, or the court itself, has no such superiority over a Federal court, as would justify him or it in reviewing the conviction. And a Federal court has no such superiority over any state court except to remove causes for trial into a Federal court, where a removal is authorized by Act of Congress.
The fact that the petitioner annexes to his petition both the warrant (which the law requires) and the record on which it is founded (which the law does not require), does not affect the case. The judge, the defendant, could not look at the record, because he had no authority to call for it by certiorari or otherwise, and because he could treat nothing as the record except what he had authority to call for as record, and what should be certified to him by the court below as such, and because he had no authority to review the acts of any tribunal that is not his official subordinate. No matter how wrong, and how clearly wrong the • District Court may have been in deciding as it did, the state judge could not review his decision by habeas corpus without an abuse of the process, and a plain usurpation of power. We need not say that he could or could not have discharged from a warrant void on its face, for this warrant is plainly not so. He could not on the habeas corpus, and according to the act, admit the prisoner to bail, because the warrant showed a conviction, and therefore not a bailable case.
What we decide is, that—
1. Persons restrained of liberty on any bailable criminal charge, are, on showing this fact, entitled to a habeas corpus under the provisions of the Habeas Corpus Act, issued by a court or a single judge thereof, in order that they may be admitted to bail to appear and be tried in due course, or that they [31]*31may be discharged if no sufficient cause of detention appear; and they may have redress for breaches of this right, by means of the penalties prescribed in the act.
2. Persons restrained of their liberty by private force or authority, under any pretence whatsoever, have the same right to the writ under the Habeas Corpus Act, in order that they have proper relief, and the same redress for breaches of this right.
3. The act does not require a court or a single judge to issue a habeas corpus where the party is detained on a criminal charge not bailable, or on civil process, or any judgment, decree, sentence, or conviction, including convictions for contempt; though even in these eases the common law allows the writ out of the proper, court.
4. All cases of habeas corpus other than those provided for in the Habeas Corpus Act, are merely common law forms of the remedy, and are to be granted and enforced according to the common law, and not under the provisions and penalties of the act.
5. A single judge of a state court is not liable to the penalty of the statute for refusing to issue a habeas corpus in favour of one who stands committed by a Federal court for a contempt; because the statute does not require its issue in such a case.
Judgment affirmed.