Ex Parte Gordon - 66 U.S. 503 (1861)
U.S. Supreme Court
Ex Parte Gordon, 66 U.S. 1 Black 503 503 (1861)
Ex Parte Gordon
66 U.S. (1 Black) 503
1. A writ of prohibition cannot issue from this Court in cases where there is no appellate power given by law, nor any special authority to issue the writ.
2. Neither a writ of error, writ of prohibition, nor certiorari will lie from this Court to a circuit court of the United States in a criminal case.
3. The only mode of bringing a criminal case into this Court is upon a certificate of the judges of the circuit court that their opinions are opposed upon a question raised at the trial.
4. No party has a right to ask for such a certificate, nor can it be made consistently with the duty of the court, if the judges are agreed and do not think there is doubt enough upon the question to justify them in submitting it to the judgment of this Court.
5. After a party has been convicted and sentenced in the circuit court for a criminal offense, and after a warrant is in the hands of the marshal commanding him to execute the judgment, the circuit court itself has no power to recall it, and certainly this Court, having no appellate power over the proceeding, cannot prohibit a ministerial officer from performing the duty which the circuit court has legally imposed upon him.
This was an application by Nathaniel Gordon for an alternative writ of prohibition to the judges of the Circuit Court of the United States for the Southern District of New York and its officers and the United States marshal to restrain them from further proceeding in a case wherein the said Gordon had been found guilty of piracy and sentenced to death, and also for a writ of certiorari commanding the judges to send up the papers, process, and all proceedings in the said cause to
this Court. The facts averred by the petitioner are substantially stated by THE CHIEF JUSTICE in the opinion of the Court.