We had occasion in Cross v. Burke, 146 U.S. 82, to examine the various statutes in reference to appeals to this court from judgments of Circuit Courts on habeas corpus. The question there was whether this court had jurisdiction to review judgments of the Supreme Court of the District of Columbia on habeas corpus by reason of section 846 of the Revised Statutes of the District, which provided that final judgments, orders, or decrees of the Supreme Court of the District might be reëxamined or reversed or affirmed by this court upon writ of error or appeal "in the same cases and in like manner as provided by law in reference to the final judgments, orders, or decrees of the Circuit Courts of the United States;" and we held that such an appeal would not lie in view of the provisions of the act of Congress of March 3, 1885, entitled "An act regulating appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the several Territories." 23 Stat. 443, c. 355. That act did not apply to criminal cases, but was applicable to all judgments or decrees in suits at law or in equity in which there was a pecuniary matter in dispute, and inhibited any appeal or writ of error therefrom, except as therein stated; and as a proceeding in habeas corpus is a civil and not a criminal proceeding, and the matter in dispute had no money value which could be calculated and ascertained, the conclusion was that we could not entertain jurisdiction. But inasmuch as the final judgments of the Supreme Court of the District-could not be reëxamined here except in the same cases and in like manner as the final judgments of the Circuit Courts of the United States, we added that "it may also be noted that under the Judiciary Act of March 3, 1891, 26 Stat. 826, 828, c. 517, § 5, appeals from decrees of Circuit Courts on habeas corpus can no longer be taken directly to this court in cases like that at bar, but only in the classes mentioned in the fifth section of that act." This observation indicated another ground upon which the case might have been disposed of, and was not made without consideration.
By section 763 of the Revised Statutes it was provided that an appeal to the Circuit Court might be taken from decisions on habeas corpus in the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States, and in the case of the subjects or citizens of foreign States, committed, confined, or in custody as therein set forth; and by section 764, as amended by act of Congress of March 3, 1885, 23 Stat. 437, c. 353, an appeal to this court from the Circuit Court was provided for. Section 765 referred to the terms, regulations, and orders on and under which appeals should be taken, and section 766 prescribed that, pending the proceedings or appeal "in the cases mentioned in the three preceding sections," and until final judgment therein, and after final judgment of discharge,
In Nishimura Ekiu v. United States, 142 U.S. 651, jurisdiction of an appeal on habeas corpus directly from the Circuit Court was taken, as it was in Horner v. United States, (No. 2,) 143 U.S. 570, upon the ground that the constitutionality of a law of the United States was drawn in question; and this would be so in any case that involves, within the intent and meaning of the statute, the construction or application of the Constitution of the United States, or where the constitution or law of a State was claimed to be in contravention of the Constitution, and the disposition of the case turned upon such constitution or law. These would be cases within the classes enumerated in section 5, but the only one of those classes within which it seems to have been contended, when this appeal was taken, that this case fell, is the first class, which is composed of those cases "in which the jurisdiction of the court is in issue; in such case the question of jurisdiction
This is not an application to us to issue the writ of habeas corpus in the exercise of appellate jurisdiction, accompanied by a writ of certiorari to bring up the record and proceedings of the court below, though even then, the writ is not to be used to perform the office of a writ of error or appeal. In re Tyler, Petitioner, 149 U.S. 164. It is a direct appeal from the judgment of the Circuit Court on habeas corpus, in reaching which that court considered the questions certified; but the jurisdiction of the Circuit Court over the petition for habeas corpus was not in issue, and a decision in respect thereof was not rendered against appellant, but, on the contrary, jurisdiction was entertained.
Granted, as contended, that the jurisdiction to discharge the prisoner in this case depended upon a want of jurisdiction to commit him in the other, yet the jurisdiction invoked by the petitioner was the jurisdiction to remand as well as to discharge, or, in other words, the power to hear and to determine whether he was lawfully held in custody or not.
This appeal, therefore, as ruled in Carey v. Texas and Houston Central Railway, ante, 170, and for the reasons therein given, does not come within the first of the classes specified in the fifth section.
Nor can the attempt be successfully made to bring the case within the class of cases in which the construction or application of the Constitution is involved in the sense of the statute, on the contention that the petitioner was deprived of his liberty