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
Page 66 U. S. 504
this Court. The facts averred by the petitioner are
substantially stated by THE CHIEF JUSTICE in the opinion of the
Court.
MR. CHIEF JUSTICE TANEY.
Nathaniel Gordon has filed a petition to this Court stating that
he has been indicted and convicted in the Circuit Court of the
United States for the Southern District of New York of the crime of
piracy under the act of Congress prohibiting the African slave
trade, and sentenced to death by the court, and a warrant issued
and placed in the hands of the marshal of that district commanding
him to carry the sentence into execution on the seventh day of this
month, that there were irregularities and errors in the proceedings
against him, and that he had moved for an arrest of judgment in the
circuit court, which motion had been overruled, and had also moved
to have the case certified to this Court as upon a division of
opinion in order that the proceedings against him might be revised
here, but this application had also been refused; that the
President of the United States has granted him a respite of the
sentence until the twenty-first day of this month, and he fears
that it will be carried into execution on that day unless it is
prevented by the interposition of this Court; and, upon this
statement, he, by his counsel, moves for an alternative writ of
prohibition directed to the circuit court and its officers, and
also for a certiorari, returnable at the same time, directing the
circuit court to return the papers, process, and proceedings in the
case.
This motion cannot be sustained. It appears by the statement in
the petition that the party has been tried and found guilty of the
crime of piracy, and sentenced to be executed by a court of the
United States, possessing competent jurisdiction, and from whose
judgment no appeal is allowed, by law, to this tribunal; for in
criminal cases, the proceedings and judgment of the circuit court
cannot be revised or controlled here in any form of proceeding,
either by writ of error or prohibition,
Page 66 U. S. 505
and consequently we have no authority to examine them by a
certiorari. And the only case in which this Court is authorized
even to express an opinion on the proceedings in a circuit court in
a criminal case is where the judges of the circuit court are
opposed in opinion upon a question arising at the trial and certify
it to this Court for its decision. But certainly the party had no
right to ask for such a certificate, nor could it have been granted
consistently with the duty of the court if the judges agreed in
opinion, and did not think there was doubt enough to justify them
in submitting the question to the judgment of this Court.
But this motion asks the court to do even more than exercise an
appellate power where none is given by law, for the case has now
passed out of the hands of the court and the warrant is in the
hands of the marshal commanding him to execute the judgment of the
court. The circuit court itself has not now the power to recall it,
and certainly it would be without precedent in any judicial
proceeding to prohibit a ministerial officer from performing a duty
which the circuit court had a lawful right to command, and had by
its process, regularly issued, commanded him to perform, and in a
case too where no appellate power is given to this Court to revise
or control in any respect the judgment or proceedings of the
circuit court. We are not aware of any case in which a similar
motion has heretofore been made in this Court in a criminal case.
In a civil case,
Ex Parte
Christie, 3 How. 292, a motion was made for a
prohibition to be issued to the District Court of the United States
for the District of Louisiana to prohibit it from further
proceedings in a certain case of bankruptcy then before it upon the
ground that it had transcended its jurisdiction in entertaining
these proceedings. But this Court was of opinion that it had not
exceeded its jurisdiction, and the question as to its power to
issue the writ was not necessarily involved in the decision of the
case. In the conclusion of the opinion, however, after a very
elaborate argument on the powers of the district court under the
bankrupt law, the Court said, page
44 U. S. 322, that
although the question was not absolutely necessary to be decided,
yet they deemed it
Page 66 U. S. 506
proper to say, as the point had been fully argued, that this
Court possessed no revising powers over the decrees of the district
court sitting in bankruptcy; that the district court had not
interfered with nor in any manner evaded or obstructed the
appellate authority of this Court by its proceedings, and the Court
knew of no case where the court is authorized to issue a writ of
prohibition to a district court except in the cases expressly
provided for by the 13th section of the Judiciary Act of 1789 --
that is to say, where the district courts are proceeding as courts
of admiralty and maritime jurisdiction.
The result of this opinion is that a 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. We concur in this
opinion, and the rule applies with equal force to the case before
us as it did in the case referred to.
Motion refused.
