Knapp v. Thomas. collateral attack is permitted, there is no reason why a convict in the penitentiary may not, on habeas corpus, impeach his conviction on the ground that it was obtained by fraud. The fact is that in seizing Knapp and incarcerating him in the penitentiary, after he had been discharged therefrom on such pardon, the warden was a trespasser from the beginning and it would be contrary to all principle to permit him to shelter himself behind the sentence, which had become as though it had never been pronounced. If the governor had no power to revoke the pardon, a fortiori the warden had no power to disregard it, and he could have no greater protection from the expended sentence after he imprisoned Knapp than when he seized him. Habeas corpus is the appropriate and efficient remedy, and it is as potent to release from such imprisonment as from such arrest. This statement is made after a laborious examination of the whole subject, and I will now trace the steps by which that result was reached. As already indicated, the claim of the warden is that it is the duty of this court, in this case, in the proper exercise of its powers, to declare the pardon to be void, on the ground that it was obtained by the fraud stated in the answer, and thereupon remand Knapp to the penitentiary, in pursuance of the original sentence. This ciaim is based on the assumed fact that either (1) the statute of 27 Edward 3, st. 1, ch. 2, is in force in this State, and confers the power; or (2) that such power may, by force of the common law, be exercised by this court. Is the claim well founded? By the Constitution (art. 4, section 2) it is ordained that the Supreme Court "shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law." The appellate jurisdiction may be large or small, as the legislature in its wisdom may determine; but the original jurisdiction cannot be lessoned, nor can it be enlarged; the maxim, expressio unius est exclusio alterius, applies. Railroad Co. v. Hurd, 17 Ohio St. 144. This court's jurisdiction may be properly illustrated in this case by reference to the law relating to the writ of of scire facias, which is "necessarily founded on some matter of record." Foster Sci. Fa. 2; 5 Wait Act. & Def. 641. The cases in which that writ 18 employed are divided into two classes. One class is where the writ is the commencement of an original action, as to repeal letters patent; char Knapp v. Thomas. ters, as a charter of pardon (Howard's case, T. Raym. 13; 17 Vin. Ab. 32), and the like. In the other class scire facias is a judicial writ, to carry on a suit in which some other person has acquired an interest, to revive a judgment, or for like purpose. In the latter sense, the jurisdiction is constantly exercised in this court by means of orders of revivor and the like. In the former sense, this court has no jurisdiction to grant the relief obtained through such writ, except by quo warranto, which writ does not extend to such a charter as a pardon. The jurisdiction invoked in Knapp's case is in no sense appellate, but is original. It is the power of this court in habeas corpus, and that power is in no way aided by its jurisdiction in other matters; nor is the power on habeas corpus in this court larger than in other courts of the State, or that possessed by a single judge. "It is proper to say," as stated by SWAN, C. J., in Ex parte Bushnell, 9 Ohio St. 77, 181, "that the Supreme Court of the State in regular session have no more judicial power or discretion in determining questions which arise upon habeas corpus, than a Probate judge of the county. Each must be governed by the same rules, and both are invested with the same powers no more and no less." In Work v. State, 2 Ohio St. 296, 302, RANNEY, J., in referring to the writ of habeas corpus, took occasion to say: "In what does the privilege of this great bulwark of personal liberty consist? The Constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as any other in the whole range of legal learning." But while this is undeniably true, and while it is also true that a matter of record coming before the court, in such summary proceeding, cannot, independently of statute, be impeached collaterally as having been obtained by fraud; yet the extent of the jurisdiction in habeas corpus, as well as the manner of its exercise, is undoubtedly, in some measure, within legislative control. The question is therefore not as to the jurisdiction in habeas corpus, which might be conferred on this court, but what jurisdiction has, in fact, been conferred by the Constitution and statutes. As already stated, the grant in the Constitution is simply that this court shall have jurisdiction in habeas corpus. The statutory provisions, it will be seen (Rev. Stats., §§ 2726-2753), so far as they relate to cases like this, are the same as 31 Chas. II, VOL. XLVIII — 59 Knapp v. Thomas. collateral attack is permitted, there is no reason why a convict in the penitentiary may not, on habeas corpus, impeach his conviction on the ground that it was obtained by fraud. The fact is that in seizing Knapp and incarcerating him in the penitentiary, after he had been discharged therefrom on such pardon, the warden was a trespasser from the beginning and it would be contrary to all principle to permit him to shelter himself behind the sentence, which had become as though it had never been pronounced. If the governor had no power to revoke the pardon, a fortiori the warden had no power to disregard it, and he could have no greater protection from the expended sentence after he imprisoned Knapp than when he seized him. Habeas corpus is the appropriate and efficient remedy, and it is as potent to release from such imprisonment as from such arrest. This statement is made after a laborious examination of the whole subject, and I will now trace the steps by which that result was reached. As already indicated, the claim of the warden is that it is the duty of this court, in this case, in the proper exercise of its powers, to declare the pardon to be void, on the ground that it was obtained by the fraud stated in the answer, and thereupon remand Knapp to the penitentiary, in pursuance of the original sentence. This claim is based on the assumed fact that either (1) the statute of 27 Edward 3, st. 1, ch. 2, 1s in force in this State, and confers the power; or (2) that such power may, by force of the common law, be exercised by this court. Is the claim well founded? By the Constitution (art. 4, section 2) it is ordained that the Supreme Court "shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law." The appellate jurisdiction may be large or small, as the legislature in its wisdom may determine; but the original jurisdiction cannot be lessoned, nor can it be enlarged; the maxim, expressio unius est exclusio alterius, applies. Railroad Co. v. Hurd, 17 Ohio St. 144. This court's. jurisdiction may be properly illustrated in this case by reference to the law relating to the writ of of scire facias, which is "necessarily founded on some matter of record." Foster Sci. Fa. 2; 5 Wait Act. & Def. 641. The cases in which that writ 18 employed are divided into two classes. One class is where the writ is the commencement of an original action, as to repeal letters patent; char Knapp v. Thomas. ters, as a charter of pardon (Howard's case, T. Raym. 13; 17 Vin. Ab. 32), and the like. In the other class scire facias is a judicial writ, to carry on a suit in which some other person has acquired an interest, to revive a judgment, or for like purpose. In the latter sense, the jurisdiction is constantly exercised in this court by means of orders of revivor and the like. In the former sense, this court has no jurisdiction to grant the relief obtained through such writ, except by quo warranto, which writ does not extend to such a charter as a pardon. The jurisdiction invoked in Knapp's case is in no sense appellate, but is original. It is the power of this court in habeas corpus, and that power is in no way aided by its jurisdiction in other matters; nor is the power on habeas corpus in this court larger than in other courts of the State, or that possessed by a single judge. "It is proper to say," as stated by SWAN, C. J., in Ex parte Bushnell, 9 Ohio St. 77, 181, "that the Supreme Court of the State in regular session have no more judicial power or discretion in determining questions which arise upon habeas corpus, than a Probate judge of the county. Each must be governed by the same rules, and both are invested with the same powers — no more and no less." In Work v. State, 2 Ohio St. 296, 302, RANNEY, J., in referring to the writ of habeas corpus, took occasion to say: "In what does the privilege of this great bulwark of personal liberty consist? The Constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as any other in the whole range of legal learning." But while this is undeniably true, and while it is also true that a matter of record coming before the court, in such summary proceeding, cannot, independently of statute, be impeached collaterally as having been obtained by fraud; yet the extent of the jurisdiction in habeas corpus, as well as the manner of its exercise, is undoubtedly, in some measure, within legislative control. The question is therefore not as to the jurisdiction in habeas corpus, which might be conferred on this court, but what jurisdiction has, in fact, been conferred by the Constitution and statutes. As already stated, the grant in the Constitution is simply that this court shall have jurisdiction in habeas corpus. The statutory provisions, it will be seen (Rev. Stats., §§ 2726-2753), so far as they relate to cases like this, are the same as 31 Chas. II, VOL. XLVIII-59 Knapp v. Thomas. ch. 2 (1 Eng. Stats. at Large [rev. ed.], 785; Hurd's Hab. Corp. 1), which statute has been re-enacted or adopted, if not in terms, yet in substance and effect, in all the United States " (2 Kent Com. 27; Hurd's Hab. Corp. [2d ed.] 128); and that statute conferred upon the court no power whatever to turn the summary proceeding by habeas corpus into a writ of scire facias, to impeach a charter on an allegation of fraud. We come now to the statute 27 Ed. 3, st. 1, ch. 2; 1 Stats. at Large (rev. ed.), 195, which provided in substance that every pardon should contain the names of the persons on whose application it was granted and the representations made to procure it; and if a judge, before whom a pardon might be pleaded or relied on, found the representations to be untrue, he was required to disallow the pardon, and "moreover do as the law demandeth." The condition of things which led to this statute and others on the subject (as 2, 10 and 14 Ed. 3; 13 R. 2, ch. 1; 4 H. 4, ch. 2; 8 Am. L. Reg. [N. S.] 513, 577), is well known and need not be here repeated. 1 Parl. Hist. 293; Crabb's Hist. Eng. L. 279; 3 Hume's Hist. 272. Besides the fact that the statute would have been inapplicable in a case like this it is inconsistent with the principles of our present as well as our former Constitution in relation to pardons; and aside from that objection, it is not in any view in force in this State. Crawford v. Chapman, 17 Ohio, 449; Lindsley v. Coats, 1 id. 243; Roads v. Symmes, id. 281; 13 Am. Dec. 621; Sergeant v. Steinberger, 2 Ohio, 305, Thompson v. Gibson, id. 339; Fleming v. Donahue, 5 id. 449; Helfenstine v. Garrard, 7 id. 1 pt. 275; Chillicothe Bank v. Swayne, 8 Ohio, 257, 282; Winn v. State, 10 id. 345; Vanvalkenburgh v. State, 11 id. 404; Stilley v. Folger, 14 id. 610, 650; Carroll v. Olmsted, 16 id. 251, 259; Urmsey v. Wooden, 1 Ohio St. 160; Kerwacker v. Railroad Co., 3 id. 172, 177; Smith v. State, 12 id. 466; Drake v. Rogers, 13 id. 21. Possibly it was in force here during part of our territorial existence (1 Chase, 190, 512, 528), but if so, clearly since the State was formed it has been as completely obsolete as the rule which formerly existed (2 Strange, 1203; 1 Chit. Cr. L. 469), requiring a man charged with felony to plead his pardon kneeling, and pay four guineas to each of the judges. Com. v. Holloway, 44 Penn. St. 210, the principal case relied on by the warden, it appeared that the stat. 27 Ed. 3, had been wholly disregarded and properly, for it seems that it is not in force in Pennsylvania, 3 Binney, 599, 611. Whether a single governor in the In |