were coram non judice, the court refused the writ, MR. CHIEF JUSTICE MARSHALL saying: "We have no power to examine the proceedings on a writ of error, and it would be strange if, under color of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judgment cannot be unlawful unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous." Ex parte Watkins, 3 Pet. (U. S.) 193, 203. Relying on this decision it was held in the United States circuit court, sitting in New York, that “The circuit judge has no jurisdiction to review, on habeas corpus, the judgment of the circuit court, on a conviction and sentence on an indictment, on an allegation that the statute under which such sentence was imposed had been repealed before such sentence was passed." In re Callicot, S Blatch. (U. S.) 89.

And so it has been held in the state courts that, in case of a commitment under the judgment of a court having jurisdiction, the record of the court will only be looked into on a habeas corpus proceeding to ascertain whether a judgment exists, without regard to the question whether it be right or wrong. Ex parte Winston, 9 Nev. 71; People v. Shea, 3 Park. Cas. (N. Ý.). 562.

That this is the law in England would seem to be clear. For while on a writ of habeas corpus enquiry will be made into the question whether the court had lawfully acquired jurisdiction in the cases, thus noticing that an arrest was made on Sunday and was therefore illegal. Ex parte Eggington, 2 El. & Bl. 717 (75 E. C. L.). Or that the party petitioner was privileged from arrest. Ex parte Dakins, 16 C. B. 77 (81 E. C. L.). Or that the offence was not indictable. Bushel's Case, 6 Howell's St. Trials 999. Yet it has been expressly decided that it is not competent at the hearing on a habeas corpus proceeding for a person to show by affidavit that the offence of which he was convicted was not committed within the jurisdiction of the convict

ing magistrate, as that is a matter which ought to be decided by the magistrate. Ex parte Smith. 3 H. & N. 227; and where the jurisdiction of the court to try and punish an offence is not denied, another court on a hearing in habeas corpus will not enquire into the authority of the court to pass the sentence imposed, nor is it necessary to set out the authority of the court to pass such senence on the return. Ex parte Brennan, 10 Q. B. 492 (59 E. C. L.).

In the case of inferior courts in England the sentence will be enquired into. Thus in a case where a justice of the peace was empowered to impose a penalty, half of which was to go to the informer and half to the overseers of the poor, and the justice gave the whole of the penalty to the overseers of the poor, it was held that the judgment was void, and that the justice having arrested the defendant for nonpayment of the penalty was liable for damages therefor in action of trespass. Griffith v. Haines et al., 2 M. & W. 335 (1837). This, however, simply follows the general rule that the record of a justice of the peace must show jurisdiction.

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1. Definition Resulting from the Latest Cases.-There is a very clearly defined attempt in the latest cases in the United States, however, to escape from the position that the judgment of a court having jurisdiction to hear and deterinine is conclusive, by adding to the definition of jurisdiction a new element, viz: that jurisdiction is not merely the power to hear and determine, but also the power to render the particular judgment which was rendered. Thus in a recent case (1873), in which it was decided that where a county court having jurisdiction to authorize a sale of a decedent's estate for his debts does autnorize it, and the sale is made, the sale must be presumed in this court to have been regularly made. MR. JUSTICE SWAYNE, in delivering the opinion of the court, said: "The settled rule of law is that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud." Cornett ย.

Williams, 20 Wall. (U. S.) 226, 250. And in 1876, in a case where the title to certain real estate was involved, it was held that a prior confiscation of this real estate, in a proceeding for a forfeiture in which the record showed that no notice had been given to the owner, was void. MR. JUSTICE FIELD, in delivering the opinion of the court, refers to the preceding cases, quotes the language used in Cornett v. Williams, 20 Wall. (U. S.) 226, 250 (cited supra), as an accurate statement of the doctrine, and further says that "the doctrine" that when a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposi tion, but, like all general propositions, is subject to many qualifications in its application. The doctrine is only correct when the court proceeds after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it. Windsor v. McVeigh, 93 N. S. 274, 282, 283.

In like manner, although it has been expressly decided in the United States courts that the question whether a matter for which a party is indicted in the district court is or is not a crime against the laws of the United States is within the jurisdiction of said district court, whose decision thereon will not be reviewed in the supreme court by habeas corpus. Ex parte Watkins, 3 Pet. (U. S.) 193, 203; Ex parte Parks, 93 U. S. 18. Yet in a case where a court had imposed a fine and imprisonment, and the statute only conferred power to punish by fine or imprisonment, and the fine was paid, and the court then, at the same term, modified its judgment by imposing imprisonment instead of the former sentence, the supreme court, on a writ of habeas corpus, released the prisoner, on the ground that the second sentence was void for want of power to impose it. Ex parte Lange, 18 Wall. (U. Š.) 163. A strong dissenting opinion was, however, filed by MR. JUSTICE CLIFFORD, and MR.JUSTICE STRONG also dissented. But in a subsequent case, where a court martial had revised its sentence and imposed one more severe, and it appeared that the court had power to so revise their sentence in case of mistake,

and it appeared that such revision had been directed and made in the manner prescribed by law, the supreme court, on a writ of habeas corpus, refused to enquire into the question whether there was in fact a mistake, and whether the change in the sentence was justifiable. Ex parte Reed, 100 U. S. 13.

In 1879 in the election cases arising out of the act of congress making certain acts by election officers a penal offence against the United States, the supreme court decided that the jurisdiction exercisable by them in habeas corpus proceedings extended to an enquiry into the question whether the act under which the petitioner had been tried, convicted and sentenced was or was not constitutional, whether the court had jurisdiction to review the judgment by writ of error or not. Ex parte Siebold, 100 U. S. 371.

And in the Kuklux case, MR. JUSTICE MILLER, in delivering the unanimous opinion of the court, says: "That this court has no general authority to review on error or appeal the judgments of the circuit courts of the United States in cases within their criminal jurisdiction is beyond question, but it is equally well settled that when a prisoner is held under the sentence of any court of the United States in regard to a matter wholly beyond or without the jurisdiction of the court, it is not only within the authority of the supreme court, but it is its duty to enquire into the cause of commitment when the matter is properly brought to its attention, and if found to be, as charged, a matter of which such a court had no jurisdiction, to discharge a prisoner from confinement.

It is, however, to be carefully observed that this latter principle does not authorize the court to convert the writ of habeas corpus into a writ of error by which the errors of law committed by the court that passed the sentence can be reviewed here; for if that court had jurisdiction of the party and of the of fence for which he was tried, and has not exceeded its powers in the sentence which it pronounced, this court can enquire no further." Ex parte Yarbrough, 110 U. S. 651, 653.

In accordance with this modern idea of jurisdiction is the late case (1887) in the United States supreme court of Rosenbaum v. Bauer. In that case a suit was begun in a State court between citizens of different States, in which the plaintiff prayed for a mandamus. The

case was removed to the United States circuit court under the act of congress of March 3rd, 1875 (18 St. U. S. 470), authorizing such removal of any suit of a civil nature, at law or in equity, in which there shall be a controversy between citizens of different States; and further providing "that if . it shall appear to the satisfaction of said circuit court at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, the said circuit court shall remand it." In accordance with the latter provision of said act, the United States court remanded the case, on the ground that they had no power to award a writ of mandamus, except as ancillary to some other proceeding before them establishing a demand and reducing it to judgment. On writ of error to the supreme court it was held that the case had been properly remanded. Rosenbaum v. Bauer, 7 Supr. Ct. Rep. 633.

In some of the State courts this idea seems to have been included in their definition of jurisdiction. Thus, "Jurisdiction is the power or authority to pro nounce the law on the case presented, and to pass upon and settle by its judgment the rights of the parties touching the subject matter in controversy, and to enforce such sentence." Ex parte Walker, 25 Ala. 81.

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A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes cording to law, and to carry his sentence into execution." Succession of Weigel, 17 La. An. 70.

"The word jurisdiction' is a term of large and comprehensive import and embraces every kind of juidcial action upon the subject matter, from finding the indictment to pronouncing the sentence." Hopkins v. Com., 3 Metc. (Mass.) 462.

Jurisdiction is defined to be the authority of law to act officially in the matter then in hand. Jones v. Brown, 54 Iowa 74, 79.

Jurisdiction in courts is the power and authority to declare the law. Mills v. Com., 13 Pa. St. 627, 630.

And there are a number of decisions which support this definition. Thus it has been decided that a decree in equity, which is entirely aside of the issue raised in the record is invalid, and

will be treated as a nullity even in a collateral proceeding. Munday v. Vail, 34 N. J. L. 418.

And in proceedings in habeas corpus, in many of the States, the courts at the hearing have examined into the question whether the statute creating the crime for which the sentence was imposed was or was not constitutional. Ex parte Hardy (Ala.), 13 Cent. L. J. 50; McCarthy v. Hinman, 35 Conn. 538; Ex parte Nightingale, 12 Fla. 272, 277- So it has been held that the court is bound to discharge the prisoner where the act charged as criminal is necessarily innocent or justifiable, or where it is the mere assertion of a constitutional right. People ex rel. Hackley v. Kelly, 24 N. Y. 75. Where there was a total want or an excess of jurisdiction. Ex parte Hardy (Ala.), 13 Cent. L. J. 50. While in the celebrated Tweed case it was held that the jurisdiction of the court to render the particular judgment is a proper subject of enquiry. People ex rel. Tweed v. Liscomb, 60 N. Y. 559. To the same effect is Ex parte Page, 49 Mo. 291, where the court say that if the error in exercising jurisdiction was provable by extrinsic evidence dehors the record, the court would not interfere in a habeas corpus proceeding, but where the error was patent on the face of the record they would interfere. In that case the trial court had imposed a sentence of ten years' imprisonment for grand larceny, and the statute allowed seven years at most, and the prisoner was discharged.

And in Wisconsin, in a divorce proceeding, the custody of a child had been awarded to the father, and the mother abducted the child, and was thereupon adjudged guilty of a contempt of court and ordered to restore the child, pay a fine of one dollar, and stand committed to the county jail until she had complied with the order. The woman failing to comply with this decree was accordingly imprisoned, but in a writ of habeas corpus the supreme court released her, because under the State statute the court below had no authority to enter such an order in the proceeding for the contempt, that therefore the order was in excess of the court's jurisdiction and void. RYAN, J., however, filed a strong dissenting opinion, on the ground that this was confounding jurisdiction and judgment, and that the petitioner's remedy was not a writ of habeas corpus, but an

appeal to the supreme court to reverse the order. Re Ida Louisa Pierce, 44 Wis. 411.

In a still later case (1888) in Texas, where A brought an action in a Texas court against B, a nonresident, by attaching his property, and causing a citation to be published, all of which was by statute made requisite to a valid judgment against a nonresident, and after the publication of the citation, B, having entered no appearance, A filed an amended petition, setting up an entirely new cause of action, on which judgment by default was rendered without any further citation being published or service had on B. In a subsequent action to try title brought in a court of the same State, where plaintiff claimed title through a sale on the above judgment, it was held that the court had only acquired jurisdiction of the defendant as to the cause of action set forth in the pleadings on file when the citation was published; that the cause of action on which the judgment was rendered in his favor was the cause of action stated in the pleadings on file the day the judgment was rendered; and to answer that no notice by publication was given to B and he did not appear, and therefore the judgment was void. Stuart et al. v. Anderson et al. (Tex.), 8 S. W. Rep. 295.

And in Pennsylvania, in 1889, in an action of ejectment, the plaintiff claimed under a will which had been duly proved over fifty years since, and which he offered in evidence. The will was not signed, and the evidence set out in the record of the probate before the register of wills, did not prove that the failure to sign the will was duly accounted for in accordance with the Pennsylvania Statute of Wills. The will was therefore objected to on those grounds, and it was held that notwithstanding the fact that the probate by the register of wills is, in Pennsylvania, a judicial decree, and by statute conclusive as to realty after the lapse of five years without appeal; yet the register of wills has no jurisdiction over a paper that is not a will within the Pennsylvania statutes; that this paper was not a will within such statutes, and could not be made so by the decree of probate, but that that decree, being entered without jurisdiction, was coram non judice and void. Wall v. Wall, 23 Weekly Notes (Pa.) 237. To the same effect is Bowlby v. Thunder, 105 Pa. St. 173, where the register had probated

two papers which were attached to a former will as though they had been part of it.

The decisions in the State courts are, however, not harmonious. Thus in South Carolina, 1877, the court, relying inter alia on the case of Ex parte Brennan, 102 B. 492 (59 E. C. L.), cited supra, held that though a prisoner convicted of assault with intent to kill cannot lawfully be sentenced to confinement in the penitentiary at hard labor, yet such sentence is not void, but only voidable, and relief can be obtained by appeal only and not by habeas corpus. In re Bond, 9 S. Car. 80; s. c., 30 Am. Rep. 20.

And in Indiana in 1885, in a criminal proceeding where the court had jurisdiction of the offence charged and of the defendant, the defendant entered a plea of guilty of murder in the first degree, and the court sentenced him to imprisonment for life, on a petition for a writ of habeas corpus, it was held that, although the court erred in not calling a jury to say in their discretion whether the defendant should suffer the penalty of death or be imprisoned for life, as required by the law of the State, the judgment was not, therefore, void, nor could it be assailed collaterally on habeas corpus proceedings. Lowery v. Howard (Ind.), 1 West. Rep. 486; s. c., 3 N. E. Rep. 124.

And in 1886, in Illinois, where there is an act of assembly providing that in case of a second conviction for certain offences, the punishment shall be imprisonment for not less than fifteen years. An indictment of one of said offences set forth a former conviction, and the record of such former conviction showed that the accused had there waived his right to a trial by jury and was tried, adjudged guilty and sentenced by the court. This record was objected to on the ground that the accused in such a case had no power to waive trial by jury. This objection was held not to be well founded, because, conceding it to be so, and that the judgment entered in the case was irregular and erroneous, it was not void and it could not be attacked collaterally. Kelley v. People (Ill.), 3 West. Rep. 45; s. c., 4 N. E. Rep. 644. See the early case (1829) of Com. v. Curtis, Thach. Cr. C. (Mass.)

202.

In a recent case in Ohio (1886), similar to Windsor v. McVeigh, 93 U. S. 274, cited supra, involving the title to real estate based on a purchase at a sale