108 US 556 Tom Tong

108 U.S. 556

2 S.Ct. 871

27 L.Ed. 826

Ex parte TOM TONG, Petitioner.

May 7, 1883.

[Syllabus from page 556 intentionally omitted]

[Statement of Case from pages 556-557 intentionally omitted]

S. F. Phillips, Thos. Simons, andHall McAllister, for petitioner.

[Argument of Counsel from page 557 intentionally omitted]

L. D. Latimer, in opposition.


This is a writ of habeas c

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orpus sued out of the circuit court of the United States for the district of California by the petitioner, Tom Tong, a subject of the emperor of China, for the purpose of an inquiry into the legality of his detention by the chief of police of the city and county of San Francisco for an alleged violation of an order or ordinance of the board of supervisors of such city and county regulating the licensing, etc., of public laundries, and the case comes here, before judgment below, on a certificate of division of opinion between the judges holding the court as to certain questions which arose at the hearing. The allegation in the petition is that the order, for the violation of which the petitioner is held, is in contravention of the constitution of the United States and of a treaty between the United States and the emperor of China. A question which meets us at the outset is whether we have jurisdiction, and that depends on whether the proceeding is to be treated as civil or criminal. Section 650 of the Revised Statutes provides that whenever, in any civil suit or proceeding in a circuit court, there occurs a difference of opinion between the judges holding the court as to any matter to be decided, ruled, or ordered, the opinion of the presiding judge shall prevail and be considered the opinion of the court for the time being; and section 652, that when final judgment or decree is rendered, the points of disagreement shall be certified and entered of record under the direction of the judges. That being done, the judgment or decree may, under the provisions of section 693, be brought here for review by writ of error or appeal, as the case may be. By section 951 it is provided that whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court and the judges are divided in opinion, the point on which they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified under the seal of the court to this court at its next session. It follows, from these provisions of the statutes, that, if this is a civil suit or proceeding, we have no jurisdiction, as there has been no final judgment in the circuit court, but, if it is a criminal proceeding, we have.


The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes; but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. This petitioner claims that the constitution and a treaty of the United States give him the right to his liberty, notwithstanding the charge that has been made against him, and he has obtained judicial process to enforce that right. Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution. It was said by Chief Justice MARSHALL, speaking for the court, as long ago as Ex parte Bollman, 4 Cranch, 101: 'The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts.'


The questions that may be certified to us on a division of opinion before judgment are those which occur on the trial or hearing of a criminal proceeding before a circuit court. It follows that we cannot take jurisdiction of the case in its present form, and it is consequently remanded to the circuit court for further proceedings according to law.