Ex Parte Tom Tong, 108 U.S. 556 (1883). · Go Syfert
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Ex Parte Tom Tong, 108 U.S. 556 (1883). Cases Citing This Book View Copy Cite
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cited 4× by 1 distinct case · …the prosecution against is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution.
cited 3× by 1 distinct case · …proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings.
cited 3× by 1 distinct case · …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 ...
350 citation events (68 in the last 25 years) across 69 distinct courts.
Strongest positive: Loving v. United States (armfor, 2009-07-17)
Treatment trajectory · 1901 → 2026 · click a year to view as-of
1901 1963 2026
Top citers, strongest first. 38 distinct citers.
examined Cited as authority (verbatim quote) Loving v. United States (4×) also: Cited as authority (quoted)
C.A.A.F. · 2009 · quote attribution · 4 verbatim quotes · confidence high
the prosecution against is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution.
discussed Cited as authority (verbatim quote) United States v. Hadden
4th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
proceedings to enforce civil rights are civil proceedings, and pro- ceedings for the punishment of crimes are criminal proceedings.
discussed Cited as authority (quoted) Adolph Michelin v. Warden Moshannon Valley Correctional Center
3rd Cir. · 2026 · quote attribution · 1 verbatim quote · confidence low
the writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty.
examined Cited as authority (quoted) James Joseph Brown v. United States (3×)
11th Cir. · 2014 · quote attribution · 3 verbatim quotes · confidence low
the writ of habeas corpus is the remedy which the- law gives for the enforcement of the civil right of personal liberty.... proceedings to enforce civil rights are civil proceedings ....
examined Cited as authority (quoted) James Joseph Brown v. United States (3×)
11th Cir. · 2014 · quote attribution · 3 verbatim quotes · confidence low
the writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. . . . proceedings to enforce civil rights are civil proceedings . . . .
examined Cited as authority (quoted) United States v. Corbin Thomas (4×) also: Cited as authority (rule)
3rd Cir. · 2013 · quote attribution · 3 verbatim quotes · confidence low
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 ...
examined Cited as authority (quoted) United States v. Donathan Wayne Hadden (3×)
4th Cir. · 2007 · quote attribution · 3 verbatim quotes · confidence low
proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings.
discussed Cited as authority (rule) Daley v. Choate
10th Cir. · 2025 · confidence medium
A full century before Congress passed the EAJA, the Court explained that “[t]he writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty.” Ex parte Tom Tong, 108 U.S. 556, 559 (1883).
examined Cited as authority (rule) O'Brien v. Moore (3×) also: Cited "see"
4th Cir. · 2005 · confidence medium
See, e.g., Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883).
cited Cited as authority (rule) Alexander v. Pearson
Ill. App. Ct. · 2004 · confidence medium
Ed. 826, 827-28 , 2 S. Ct. 871, 872 (1883).
cited Cited as authority (rule) Alexander v. Pearson
Ill. App. Ct. · 2004 · confidence medium
Ed. 826, 827-28 , 2 S. Ct. 871, 872 (1883).
discussed Cited as authority (rule) Martin v. Bissonete
1st Cir. · 1997 · confidence medium
Though habeas proceedings are technically civil actions, see Ex parte Tom Tong, 108 U.S. 556, 559 (1883), the Supreme Court has long recognized that the label is ill-fitting and that habeas 1Although the closure order exempted the press, there is no evidence in the record that any reporters were in attendance during Rose's reopened testimony.
discussed Cited as authority (rule) Martin v. Bissonete
1st Cir. · 1997 · confidence medium
Though habeas proceedings are technically civil actions, see Ex parte Tom Tong, 108 U.S. 556, 559 (1883), the Supreme Court has long recognized that the label is ill-fitting and that habeas 1Although the closure order exempted the press, there is no evidence in the record that any reporters were in attendance during Rose's reopened testimony.
discussed Cited as authority (rule) United States v. Simmonds
10th Cir. · 1997 · confidence medium
For instance, for some procedural purposes, habeas proceedings are considered "civil." See, e.g., Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 269 (1978) ("It is well settled that habeas corpus is a civil proceeding."); Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883) (habeas corpus review is a civil proceeding because its purpose is to enforce civil rights).
discussed Cited as authority (rule) Santana v. United States (2×) also: Cited "see, e.g."
3rd Cir. · 1996 · confidence medium
Ex Parte Tom Tong, 108 U.S. 556, 559 (1883).
discussed Cited as authority (rule) Untitled Texas Attorney General Opinion
Tex. Att'y Gen. · 1994 · confidence medium
Ha&y. 274 N.Y.S. 824 (App. Div. 1934); Red/ield Y. his, 176 N.W. 512 (S.D. 1920) (habeascmpw is not civil action). p. 1577 Honorable John Vance - Page 11 W-f-295) Not only is there no wnsensus on whether habeas wrpus is a “suit” or “action,” but also tbe courts have struggled with the wrrectness vef tron of describii the pwcwding as “civil.” The wurts sometimes have wnsidcrcd habeas wrpus proceed& to be civil in nature, see Evparre Tong, 108 U.S. 556, 560 (1883); Exparte Morris, 349 S.W.Zd 99, 100-01 (Tax. 1961); Harbison v. McMurqv, 158 S.W.Zd 284, 287 (Tex. 1942), and sometimes h…
discussed Cited as authority (rule) Keeney v. Tamayo-Reyes (2×)
SCOTUS · 1992 · confidence medium
On the contrary, it is a new suit brought by him to enforce a civil right.” Ex parte Tom Tong, 108 U. S. 556, 559-560 (1883).
discussed Cited as authority (rule) Suisala v. Tu'ufuli
amsamoa · 1987 · confidence medium
Historically, the writ was designed to obtain immediate relief from illegal detention, ana in this regard the purpose of the habeas corpus ■proceeding '. . . is not to inquire into the criminal act complained of, but into the right of liberty notwithstanding the act." Ex parte Tong, 108 U.S. 556, 559 (1883).
discussed Cited as authority (rule) Virginia Department of Corrections v. Crowley
Va. · 1984 · confidence medium
Nor does the constitutional constraint prohibit an appeal by the Commonwealth from a habeas corpus judgment, for “habeas corpus is a civil and not a criminal proceeding” and “in no sense a continuation of the criminal prosecution.” Smyth v. Godwin, 188 Va. 753, 760 , 51 S.E.2d 230, 233 , cert, denied, 337 U.S. 946 (1949) (citing Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883)). *263 A petition for habeas corpus and an appeal from a judgment granting the writ both test the legality of the incarceration rather than the guilt or innocence of the prisoner.
discussed Cited as authority (rule) People v. McCager (2×)
Mich. · 1962 · confidence medium
The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime." Ex parte Tom Tong, 108 US 556, 559, 560 ( 2 S Ct 871 , 27 L ed 826).
discussed Cited as authority (rule) United States of America Ex Rel. Roger Touhy, Relator-Appellee v. Joseph E. Ragen, Warden, Illinois State Penitentiary, Joliet, Illinois
7th Cir. · 1955 · confidence medium
Long ago Mr. Chief Justice Waite, speaking for a majority in Ex parte Tom Tong, 1883, 108 U.S. 556, 559, 2 .S.Ct 871, 872, 27 L.Ed. 826 pointed out that: “The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. * * * 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.
cited Cited as authority (rule) Smyth v. Godwin
Va. · 1949 · confidence medium
As was said in Ex parte Tom Tong, 108 U. S. 556, 559, 560 , 2 S. Ct. 871 , 27 L.
discussed Cited as authority (rule) United States Ex Rel. Trinler v. Carusi (2×)
3rd Cir. · 1948 · confidence medium
I believe that the instant case calls for application of that principle. 1 In Sunal v. Large, 1947, 332 U.S. 174, at 177 , 67 S.Ct. 1588, at 1590 , footnote 3, the Supreme Court recently said, “We therefore lay to one side cases such as Bridges v. Wixon, 326 U.S. 135 , 65 S.Ct. 1443 , 89 L.Ed. 2193 ; * * * where the order of the agency under which petitioner was detained was not subject to judicial review.” 2 From the foregoing, it seems reasonable to me to infer that habeas corpus pro ceedings heretofore have not been considered “judicial review.” This analysis is strengthened by Ex p…
cited Cited "see" O'Connor v. Barnes
D.D.C. · 2022 · signal: see · confidence high
See Ex parte Tom Tong, 108 U.S. 556 , 559–60 (1883) (“The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty.
discussed Cited "see" Joseph P. O'brien, and James E. Byrd Ebony Guinn Jaron A. Sturdivant v. G.O. Moore, Community Corrections Manager (2×)
4th Cir. · 2005 · signal: see · confidence high
See Tom Tong, 108 U.S. at 559-60 , 2 S.Ct. 871 .
examined Cited "see" Wade v. State (3×)
S.C. · 2002 · signal: see · confidence high
See Ex parte Tom Tong, 108 U.S. 556, 559 , 2 S.Ct. 871, 872 , 27 L.Ed. 826 (1883) (Habeas corpus review is a civil proceeding because “[pjroceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings.”) Courts treat PCR differently than traditional civil cases.
discussed Cited "see" Parrott v. Govt of VI
3rd Cir. · 2000 · signal: see · confidence high
See Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883) (concluding habeas is civil proceeding for purposes of determining appellate jurisdiction).
discussed Cited "see" Roy Sylvester Parrott v. Government of the Virgin Islands (2×)
3rd Cir. · 2000 · signal: see · confidence high
See Ex parte Tom Tong, 108 U.S. 556, 559-60 , 27 L.
examined Cited "see" In the Matter of the Grand Jury Subpoena Served on John Doe (3×)
2d Cir. · 1976 · signal: see · confidence high
See Ex Parte Tom Tong, 108 U.S. 556 , 2 S.Ct. 871 , 27 L.Ed. 826 (1883); 1 W.
discussed Cited "see" Commonwealth ex rel. Marshall v. Gedney (2×)
Pa. · 1974 · signal: see · confidence high
See Ex parte Tom Tong, 108 U.S. 556, 559 , 2 S. Ct. 871, 872 (1883) ; Sokol, A Handbook of Federal Habeas Corpus § 2 (1965).
examined Cited "see" United States Ex Rel. Elliott v. Hendricks, Deputy Commissioner, Department of Public Welfare (6×)
3rd Cir. · 1954 · signal: see · confidence high
See Ex parte Tom Tong, 1883, 108 U.S. 556 , 2 S.Ct. 871 , 27 L.Ed. 826 ; Cross v. Burke, 1892, 146 U.S. 82 , 13 S. Ct. 22 , 36 L.Ed. 896 ; McNally v. Hill, 1934, 293 U.S. 131 , 55 S.Ct. 24 , 79 L.Ed. 238 .
discussed Cited "see, e.g." Sigmon v. Director
Va. · 2013 · signal: see also · confidence medium
Pursuant to Code § 8.01-654(A)(1), the "writ of habeas corpus ad subjiciendum shall be granted forthwith by the Supreme Court or any circuit court, to any person who shall apply for the same by petition, showing by affidavits or other evidence probable cause to believe that he is detained without lawful authority." Habeas corpus "is designed to challenge the civil right of the validity of the petitioner's detention" and is therefore "a civil and not a criminal proceeding." Smyth v. Godwin, 188 Va. 753, 760 , 51 S.E.2d 230, 233 (1949); see also Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883) (H…
discussed Cited "see, e.g." Roy Bruce Smith v. Ronald Angelone, Director, Virginia Department of Corrections
4th Cir. · 1997 · signal: see also · confidence low
Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir.1984); see also Ex parte Tom Tong, 108 U.S. [556] at 559, 2 S.Ct. [871] at 872, [ 27 L.Ed. 826 (1883)] (Habeas corpus review is a civil proceeding because “[proceedings to enforce civil rights are civil proceedings and proceedings for the punishment of crimes are criminal proceedings.”).
discussed Cited "see, e.g." Ernesto Santana v. United States of America, Ernesto Santana (2×)
3rd Cir. · 1996 · signal: see also · confidence low
Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir.1984); see also Ex parte Tom Tong, 108 U.S. at 559 , 2 S.Ct. at 872 (Habeas corpus review is a civil proceeding because “[proceedings to enforce civil rights are civil proceedings and proceedings for the punishment of crimes are criminal proceedings.”).
examined Cited "see, e.g." Boudin v. Thomas (3×)
2d Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., Ex parte Tong, 108 U.S. 556, 559 , 2 S.Ct. 871, 872 , 27 L.Ed. 826 (1883) (habeas is a civil proceeding because "[p]roceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings"). 19 The term "civil action" does not appear in the definitional section of the EAJA.
examined Cited "see, e.g." Boudin v. Thomas (3×)
2d Cir. · 1984 · signal: see, e.g. · confidence low
See, e.g., Ex parte Tong, 108 U.S. 556, 559 , 2 S.Ct. 871, 872 , 27 L.Ed. 826 (1883) (habeas is a civil proceeding because “[pjroceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings”).
examined Cited "see, e.g." Adderly v. Wainwright (3×)
M.D. Fla. · 1972 · signal: see also · confidence low
Kurtz v. Moffitt, 115 U.S. 487, 494 , 6 S. Ct. 148, 149 , 29 L.Ed. 458 (1885); see also Ex parte Tom Tong, 108 U.S. 556, 559 , 2 S.Ct. 871 , 27 L.Ed. 826 (1883).
discussed Cited "see, e.g." Davis v. Smith
Ga. Ct. App. · 1909 · signal: see also · confidence low
See also ex parte Tom Tong, 108 U. S. 556 (2 Sup. Ct. 871, 27 L. ed. 826); United States v. Sanges, 144 U. S. 321 (12 Sup. Ct. 609, 36 L. ed.445); Henderson v. James, 52 Ohio, 242 ( 39 N. E. 805 , 27 L.
Ex Parte Tom Tong
1230.
Supreme Court of the United States.
May 7, 1883.
108 U.S. 556
Mr. Sail McAllister for the petitioner, Mr. L. D. LaUmer opposing.
Waite.
Cited by 167 opinions  |  Published
5 passages pin-cited by 5 cases
Pinpoint authority: #20,322 of 633,719
Citer courts: Eleventh Circuit (6) · Court of Appeals for the Armed… (3) · Third Circuit (3) · Fourth Circuit (3)
Mr. Chief Justice Waite

delivered the opinion of the court.

This is a writ of habeas corpus 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 nity and county regulating the licensing, &c., 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.

[*559] 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, tlxe 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 651 it is provided that whenever any question occurs on the trial or hearing of any criminal proceeding befcye a circuit court, and the judges are divided in opinion, the po .% 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 petitioneris 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[*560] 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 offence; but if he succeeds he must be discharged from custody. The porceeding 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 & Swartwout, 4 Cranch, 75-101:

“ 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 casé in its present form, and it is consequently

Remomded to the circuit cowrtfor fwriher proceedings according to law.