EX PARTE SIEBOLD. (10 Otto, 371-399. 1879.) Opinion by MR. JUSTICE BRADLEY. STATEMENT OF FACTS.-The petitioners in this case, Albert Siebold, Walter Tucker, Martin C. Burns, Lewis Coleman and Henry Bowers, were judges of election at different voting precincts in the city of Baltimore, at the election held in that city, and in the state of Maryland, on the 5th day of November, 1878, at which representatives to the forty-sixth congress were voted for. At the November term of the circuit court of the United States for the district of Maryland, an indictment against each of the petitioners was found in said court, for offenses alleged to have been committed by them respectively at their respective precincts whilst being such judges of election; upon which indictments they were severally tried, convicted and sentenced by said court to fine and imprisonment. They now apply to this court for a writ of habeas corpus to be relieved from imprisonment. Before making this application, each petitioner, in the month of September last, presented a separate petition to the chief justice of this court (within whose circuit Baltimore is situated), at Lynn, in the state of Connecticut, where he then was, praying for a like habeas corpus to be relieved from the same imprisonment. The chief justice thereupon made an order that the said marshal and warden should show cause before him, on the second Tuesday of October, in the city of Washington, why such writs should not issue. That being the first day of the present term of this court, at the instance of the chief justice the present application was made to the court by a new petition addressed thereto, and the petitions and papers which had been presented to the chief justice were by consent made a part of the case. The records of the several indictments and proceedings thereon were annexed to the respective original petitions, and are before us. These indictments were framed partly under section 5515 and partly under section 5522 of the Revised Statutes of the United States; and the principal questions raised by the application are, whether those sections, and certain sections of the title of the Revised Statutes relating to the elective franchise, which they are intended to enforce, are within the constitutional power of congress to enact. If they are not, then it is contended that the circuit court has no jurisdiction of the cases, and that the convictions and sentences of imprisonment of the several petitioners were illegal and void. § 326. This court is authorized to exercise appellate jurisdiction by writ of habeas corpus. The jurisdiction of this court to hear the case is the first point to be examined. The question is whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created by and indictable under an unconstitutional act of congress, may be discharged from imprisonment by this court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judgment. It is objected that the case is one of original and not appellate jurisdiction, and, therefore, not within the jurisdiction of this court. But we are clearly of opinion that it is appellate in its character. It requires us to revise the act of the circuit court in making the warrants of commitment upon the convictions referred to. This, according to all the decisions, is an exercise of appellate power. Er parte Burford, 3 Cranch, 448; Ex parte Bollman and Swartwout, 4 id., 100, 101; Ex parte Yerger, 8 Wall., 98. That this court is authorized to exercise appellate jurisdiction by habeas corpus directly is a position sustained by abundant authority. It has general power to issue the writ, subject to the constitutional limitations of its jurisdiction, which are, that it can only exercise original jurisdiction in cases affecting ambassadors, public ministers and consuls, and cases in which a state is a party; but has appellate jurisdiction in all other cases of federal cognizance, "with such exceptions and under such regulations as congress shall make." Having this general power to issue the writ, the court may issue it in the exercise of original jurisdiction where it has original jurisdiction; and may issue it in the exercise of appellate jurisdiction where it has such jurisdiction, which is in all cases not prohibited by law except those in which it has original juris diction only. Ex parte Bollman and Swartwout, supra; Ex parte Watkins, 3 Pet., 202; 7 id., 568; Ex parte Wells, 18 How., 307, 328; Ableman v. Booth, 21 id., 506; Ex parte Yerger, 8 Wall., 85. § 327. For what a writ of habeas corpus will lie. There are other limitations of the jurisdiction, however, arising from the nature and objects of the writ itself, as defined by the common law, from which its name and incidents are derived. It cannot be used as a mere writ of error. Mere error in the judgment or proceedings, under and by virtue of which a party is imprisoned, constitutes no ground for the issue of the writ. Hence, upon a return to a habeas corpus, that the prisoner is detained under a conviction and sentence by a court having jurisdiction of the cause, the general rule is, that he will be instantly remanded. No inquiry will be instituted into the regularity of the proceedings, unless, perhaps, where the court has cognizance by writ of error or appeal to review the judgment. In such a case, if the error be apparent and the imprisonment unjust, the appellate court may, perhaps, in its discretion, give immediate relief on habeas corpus, and thus save the party the delay and expense of a writ of error. Bac. Abr., Hab. Corp., B. 13; Bethel's Case, Salk., 348; 5 Mod., 19. But the general rule is, that a conviction and sentence by a court of competent jurisdiction is lawful cause of imprisonment, and no relief can be given by habeas corpus. The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court. over the person or the cause, or some other matter rendering its proceedings void. This distinction between an erroneous judgment and one that is illegal or void is well illustrated by the two cases of Ex parte Lange, 18 Wall., 163, and Ex parte Parks, 93 U. S., 18. In the former case, we held that the judgment was void, and released the petitioner accordingly; in the latter, we held that the judgment, whether erroneous or not, was not void, because the court had jurisdiction of the cause; and we refused to interfere. Chief Justice Abbot, in Rex v. Suddis, 1 East, 306, said: "It is a general rule, that, where a person has been committed under the judgment of another court of competent criminal jurisdiction, this court [the king's bench] cannot review the sentence upon a return to a habeas corpus. In such cases, this court is not a court of appeal." It is stated, however, in Bacon's Abridgment, probably in the words of Chief Baron Gilbert, that "if the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge." Bac. Abr., Hab. Corp., B. 10. The latter part of this rule, when applied to imprisonment under conviction and sentence, is confined to cases of clear and manifest want of criminality in the matter charged, such as in effect to render the proceedings void. The authority usually cited under this head is Bushel's Case, decided in 1670. There, twelve jurymen had been convicted in the oyer and terminer for rendering a vérlict (against the charge of the court) acquitting William Penn and others who were charged with meeting in conventicle. Being imprisoned for refusing to pay their fines, they applied to the court of common pleas for habeas corpus, and though the court, having no jurisdiction in criminal matters, hesitated to grant the writ, yet, having granted it, they discharged the prisoners, on the ground that their conviction was void, inasmuch as jury men cannot be indicted for rendering any verdict they choose. The opinion of Chief Justice Vaughan in the case has rarely been excelled for judicial eloquence. T. Jones, 13; S. C., Vaughan, 135; S. C., 6 Howell's State Trials, 999. § 328. Where the validity of a judgment is assailed on the ground that it is founded on an unconstitutional law, this court can interfere by habeas corpus. Without attempting to decide how far this case may be regarded as law for the guidance of this court, we are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. The validity of the judgments is assailed on the ground that the acts of congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court's authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority, to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so because, if the laws are unconstitutional and void, the circuit court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws. We proceed, therefore, to examine the cases on their merits. The indictments commence with an introductory statement that, on the 5th of November, 1878, at the fourth [or other] congressional district of the state of Maryland, a lawful election was held, whereat a representative for that congressional district in the forty-sixth congress of the United States was voted for; that a certain person [naming him] was then and there a supervisor of election of the United States, duly appointed by the circuit court aforesaid, pursuant to section 2012 of the Revised Statutes, for the third [or other] voting precinct of the fifteenth [or other] ward of the city of Baltimore, in the said. congressional district, for and in respect of the election aforesaid, thereat; that a certain person [naming him] was then and there a special deputy marshal of the United States, duly appointed by the United States marshal for the Maryland district, pursuant to section 2021 of the Revised Statutes, and assigned for such duty as is provided by that and the following section, to the said precinct of said ward of said city, at the congressional election aforesaid, thereat. Then come the various counts. The petitioner, Bowers, was convicted on the second count of the indictment. against him, which was as follows: "That the said Henry Bowers, afterwards, to wit, on the day and year aforesaid, at the said voting precinct within the district aforesaid, unlawfully did obstruct, hinder, and, by the use of his power and authority as such judge as aforesaid (which judge he then and there was), interfere with and prevent the said supervisor of election in the performance of a certain duty in respect to said election required of him, and which he was then and there authorized to perform by the law of the United States, in such case made and provided, to wit, that of personally inspecting and scrutinizing, at the beginning of said day of election, and of the said election, the manner in which the voting was done at the said poll of election, by examining and seeing whether the ballot first voted at said poll of election was put and placed in a ballot-box containing no ballots whatever, contrary to section 5522 of said statutes, and against the peace, government and dignity of the United States." Tucker, who was indicted jointly with one Gude, was convicted upon the second and fifth counts of the indictment against them, which were as follows: "(2d) That the said Justus J. Gude and the said Walter Tucker afterwards, to wit, on the day and year aforesaid, at the said voting precinct of said ward of said city, unlawfully and by exercise of their power and authority as such judges as aforesaid, did prevent and hinder the free attendance and presence of the said James N. Schofield (who was then and there such deputy marshal as aforesaid, in the due execution of his said office), at the poll of said election of and for the said voting precinct, and the full and free access of the same deputy marshal to the same poll of election, contrary to the said last-mentioned section of said statutes (sec. 5522), and against the peace, government and dignity of the United States. "(5th) That the said Justus J. Gude and the said Walter Tucker, on the day and year aforesaid, at the precinct aforesaid, within the district aforesaid (they being then and there such officers of said election as aforesaid), knowingly and unlawfully at the said election did a certain act, not then and there authorized by any law of the state of Maryland, and not authorized then and there by any law of the United States, by then and there fraudulently and clandestinely putting and placing in the ballot-box of the said precinct twenty (and more) ballots (within the intent and meaning of sec. 5514 of said statutes), which had not been voted at said election in said precinct before the ballots, then and there lawfully deposited in the same ballot-box, had been counted, with intent thereby to affect said election and the result thereof, contrary to section 5515 of said statutes, and against the peace, government and dignity of the United States." This charge, it will be observed, is for the offense commonly known as "stuffing the ballot-box." The counts on which the petitioners, Burns and Coleman, were convicted were similar to those above specified. Burns was charged with refusing to allow the supervisor of elections to inspect the ballot-box, or even to enter the room where the polls were held, and with violently resisting the deputy marshal who attempted to arrest him, as required by section 2022 of the Revised Statutes. The charges against Coleman were similar to those against Burns, with the addition of a charge for stuffing the ballot-box. Siebold was only convicted on one count of the indictment against him, which was likewise a charge of stuffing the ballot-box. $329. Provisions of the elective franchise statutes, May 31, 1870. The sections of the law on which these indictments are founded, and the validity of which is sought to be impeached for unconstitutionality, are summed up by the counsel of the petitioners in their brief as follows (omitting the comments thereon): The counsel say "These cases involve the question of the constitutionality of certain sections of title XXVI of the Revised Statutes, entitled the Elective Franchise.' "Sec. 2011. The judge of the circuit court of the United States, wherein any city or town having upwards of twenty thousand inhabitants is situated, upon being informed by two citizens thereof prior to any registration of voters for, or any election at which, a representative or delegate in congress is to be voted for, that it is their desire to have such registration or election guarded and scrutinized, shall open the circuit court at the most convenient point in the circuit. "Sec. 2012. The judge shall appoint two supervisors of election for every election district in such city or town. "Sec. 2016. The supervisors are authorized and required to attend all times. and places fixed for registration of voters; to challenge such as they deem proper; to cause such names to be registered as they may think proper to be so marked; to inspect and scrutinize such register of voters, and for purposes of identification to affix their signatures to each page of the original list. "Sec. 2017. The supervisors are required to attend the times and places for holding elections of representatives or delegates in congress, and of counting the votes cast; to challenge any vote, the legality of which they may doubt; to be present continually where the ballot-boxes are kept until every vote cast has been counted and the proper returns made, required under any law of the United States, or any state, territorial or municipal law; and to personally inspect and scrutinize, at any and all times on the day of election, the manner in which the poll-books, registry lists and tallies are kept, whether the same are required by any law of the United States, or any state, territorial or municipal laws. "Section 2021 requires the marshal, whenever any election at which representatives or delegates in congress are to be chosen, upon application by two citizens in cities or towns of more than twenty thousand inhabitants, to appoint special deputy marshals, whose duty it shall be to aid and assist the supervisors in the discharge of their duties, and attend with them at all registrations of voters or election at which representatives to congress may be voted for. "Section 2022 requires the marshal and his general and special deputies to keep the peace and protect the supervisors in the discharge of their duties; preserve order at such place of registration and at such polls; prevent fraudulent registration and voting, or fraudulent conduct on the part of any officer of election, and immediately to arrest any person who commits, or attempts to commit, any of the offenses prohibited herein, or any offense against the laws of the United States." The counsel then refer to and summarize sections 5514, 5515 and 5522 of the Revised Statutes. Section 5514 merely relates to a question of evidence, and need not be copied. Sections 5515 and 5522, being those upon which the indictments are directly framed, are proper to be set out in full. They are as follows: "Sec. 5515. Every officer of an election at which any representative or delegate in congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district or municipal law or author |