CH 220. guilty of any offence against the statute supposed to be reArt. 3. ferred to at all. 1 Bac. Abr. 284. 4 Bl. Com. 297. 2 Hale's P. C. 123-And see 3 Maule 205, but the conclusion may be read with the body of the warrant ; and 331. 4. If a person be committed on a bare suspicion, without any indictment for a supposed crime, where afterwards it appears that no crime was committed; as for the murder of a person thought to be dead, who afterwards is found to be alive, it has been held he may be safely dismissed, without any further proceedings; for that he who suffers him to escape is properly punishable only as an accessary, where there can be no principal, and it would be hard to punish one for a contempt founded on suspicion appearing in so uncontested a manner to be groundless. 5. The imprisonment made on this commitment before trial being only for safe custody, and not for punishment, in order to bring the prisoner to trial to ascertain if he be guilty or not, he ought to be treated with humanity, and not with any unnecessary severity. He ought not to be loaded with needless fetters, "though what are so requisite must too often be left to the discretion of the gaolers." "The law will not justify them in fettering a prisoner, unless where he is unruly or has attempted an escape." § 6. Though Lord Hale thinks the above things requisite and fit in a warrant of commitment, as the true cause, the jus& Sel. R. 203, tice's committing, the date, the apt conclusion, &c. ; yet he is far from "thinking the warrant void that hath not all these circumstances. "And therefore, if the conclusion of the mittimus be, to detain him till further order by the justice, it is true it is an unapt conclusion, and therefore binds not up the hands of the justice to whom it may belong to bail or deliver him, as the case shall require; but the commitment is notwithstanding good, if there be any tolerable certainty in the body of the warrant for what it is, as for felony generally, though the particular is best to be expressed." Regularly the commitment is to the common gaol of the county. "If the prisoner be bailable, yet the justice is not bound to demand bail, but the prisoner is bound to tender it, otherwise the justice may commit him." So of a sheriff who has taken a man by capias where he is bailable. Relief on habeas corpus ; see Habeas Corpus, also. Ch. 193, a. 31. Collins' case &e. 7. Habeas corpus. This writ has been several times noticed in connexion with false imprisonment and other matters; but as it has also an intimate connexion with the subject of this article, commitments, it may be well to consider it a little further on general principles. Cases in which it avails not by reason of the peculiar ground of commitment. If a member of the house of commons be committed for a breach of privilege, he cannot be discharged on this writ during the ses -2 W. Bl. sions; though the writ was issued to bring up Crosby from CH. 220. the tower, committed on the speaker's warrant; for "the House Art. 3. of Commons is a supreme court of judicature with respect to its own privileges, and especially over its own members;" 3 Wils 188. and this court never discharges persons committed for a con- 754, Crosby's tempt by any Supreme Court. The law has committed to case.-Many these the power of judging of their own contempts in the last cases cited, 1 resort. Prisoner remanded. This was a habeas corpus at 8 D. & E. common law. Will not the principles of this case apply to the 314-Cro. several branches of our legislatures and supreme courts, Fed- Car. 168,567, eral and State? A different principle seems to be adopted in New York as to the Court of Chancery. A. 6, s. 3, 4. Mod. 144, 579. Rex Rod 295, This was a habeas corpus to the commanding officer of a Cowp. 672, man of war to bring up the bodies of two persons, ad testifi- dam.-Sevcandum, two common sailors on board, but not as prisoners: eral forms &c, held 1. The writ was void and might be disobeyed, because Bohun, 287, not signed by a judge: 2. Because no affidavit these two men had been served with subpoenas and were willing to attend 3. They never can be brought up as prisoners against their consent. The general principles of this case extend to many cases in our practice. : 3 Burr. 1440, a 2 The King v. So the court will not grant a habeas corpus where there appears to be any contrivance for a prisoner in execution. So no writ of habeas corpus ought to issue to bring up prisoner of war taken on board an enemy's privateer ship; nor to bring up a prisoner of war ad testificandum. Nor for the master to bring up an apprentice above eighteen years old, who was impressed, but afterwards voluntarily entered in the sea service. Rex v. Schie ver. Dougl. 419.499, Rex v. 6 D. & E. Reynolds. Rex v. Leon ard. - Johns. Nor a person committed by rule of court, if a supreme 1 Stra. 142, court. Such case is not within the habeas Chief corpus act. Justice of a different opinion. See Ch. 220, a. 6, s 3, 4. Nor for an alien enemy, prisoner of war, however ill used 2W. Bl. 1324. or deceived, not entitled to any of the privileges of English- -1 Salk. 354. men. Refused to bring up a soldier in the United States' army. Cas. 136. 8. Cases in which habeas corpus is granted. See Apprentices, Guardians, &c. Parent and Child, Trespass, False Imprisonment, Synopsis, &c. sundry cases. Lies for one taken by an escape-warrant by one not an officer. Rich v. Doughty, 3 Salk. 149. As to process of arrest and imprisonment, and bailing of offenders under Federal law. See Ch. 222, a. 13, s. 2, 3. 135. § 9. One for a crime may be committed by one magistrate 4 Cranch, 76, on affidavit made before another, as above. The Supreme Court of the United States may issue it ad subjiciendum. Denied to an officer arrested on charges of misconduct, 2 Maule & who made affidavit he had not been brought to trial according VOL. VII. 39 Blake's case. Sel. R. 428, CH. 220. to the articles of war, as soon as a court martial could be conArt. 3. veniently assembled, reason for the delay being shewn. 4 Dallas, 412, 417.-2 Stra. 982. 2 W. Bl. 805, 807, Mashe's 348, 351. case-Salk. Carth. 152. 1 W. Bl. 410, 413, The val & al.; many cases cited.-1 Proceedings on habeas corpus; see False Imprisonment, Ch. 172 &c. It is a general rule on habeas corpus for the court to inquire only if there be sufficient probable cause for the commitment. The court will not, therefore, on this writ determine the right of guardianship, or any other right not involved in the inquiry, if sufficient probable cause of commit ment. The court will not receive the return of a writ of habeas corpus till the return day. Prisoner discharged, because the conclusion of the commitment was, till delivered by due course of law, which ought to be only when committed for an offence indictable, not when committed in pursuance of a special authority to which the conclusion must conform as in this case, as to smuggling &c., that is, till he give a satisfactory account of himself. When a court delivers on habeas corpus protection to the King v. Dela- party discharged, redeundo is of course: 2. Whenever the court changes the custody of a person, it is done in court: 3. A return by complying with may be well enough without any return in scriptis: 4. The only order the court will make is one to prevent illegal restraint: 5. The habeas corpus must not be directed to the sheriff or gaoler in the disjunctive, and if so directed it must be quashed. Stra. 444-1 Salk. 350. 386. 2 W. Bl. 1204, Warman's E. 89, 92, Rex v. Winton; several cases cited. The return to a habeas corpus must answer to the taking as well as to the detaining; both must be accounted for by him case.-5 D. & who undertakes to imprison a subject or citizen. And it is a bad return to say, "I had not at the time of receiving this writ, nor have I since had the body of A. B. detained in my custody, so that I could not have her &c." Attachment against him who made the return; and held, an attachment may be granted for making an insufficient return to the first writ of habeas corpus, without issuing an alias and a pluries. The Stacy jun's. usual return is, "that the party has not the person in his possession, custody, or power." Same, General Lewis' case, 10 Johns. R. 228. case. 1 East, 306, 317, The King v. Suddis. But it is a good return to state, that the deft. is in custody under a sentence of a court of competent jurisdiction to inquire of the offence, and to pass such a sentence, without stating the particular_circumstances to warrant such a sentence. 8 Johns. R. 328, 341; 6 Johns. R. 337; 4 Johns. R. 317; 5 Johns. R. 282. See Cases of habeas corpus at common law. See Stra. 194; Sayer, 44; 1 Ld. Raym. 99, 545; Salk. 348; Cro. Car. 567, 579; Cro. Car. 168. The great case of Yates in New York, Ch. 220, a. 6, s. 3, 4, in which it was decided that one committed by the chancellor for mal-practice and contempt of court, might be discharged on habeas corpus by a judge of the Supreme Court &c. See Yates' case. Is regulated in Kentucky by statute of Dec. 19, 1796, which directs the mode of suing out and proceeding in writs of habeas corpus ;-may be signed and issued by a justice of the District Court of Court of Quarter Sessions; but is not allowable in cases of treason, nor after conviction, nor on execution. ART. 4. Contempts. CH. 220. Art. 4. 5 Johns. R. 235. 279.280. Process of contempt is one branch of summary proceed- Forms, 10 Went. 266, ings, not however like most summary proceedings introduced 300. in modern times; for this process of contempt is very ancient, perhaps coeval with courts of law. Much has already been said as to the principles of law in the cases of contempts, Ch. 193, a. 22, a. 2ɔ, and especially art. 28; where the inquiry principally was, what is a contempt of court &c., and matters taking place on the civil side of the court, and before the 3 D. & E. 133.-2 East, attachment of contempt issues, but after issued, the proceed- 182-7 D. & ings are on the criminal side, and the State or United States E. 439, 528. become a party. Therefore, as above stated, all proceedings in cases of contempt of court are in the end criminal, and an interesting part of criminal law. Process of contempt to be considered here is to bring in the party and to proceed with him. The process of all summary convictions "is extremely 4 Bl. Com. speedy," though the courts of common law check them "by Salk. 181.making it necessary to summon the party accused before he 2 Ld. Raym. be condemned; this is now held to be an indispensable re- 1405. quisite, though the justices long struggled this point," forgetting Seneca's rule of natural reason, "qui statuit aliquid parte inaudita altera, æquum licet statuerit, haud æquusfuit ;” a rule, says Blackstone, to which all municipal laws that are founded on the principles of justice have strictly conformed; the Roman law requiring a citation at least; and our common law never suffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance of the party concerned. The principle holds in process or proceedings of contempt. What are acts of contempt, see Ch. 193, a. 28. When the contempt is committed the process against the offender is immediate, and is "an inseparable attendant on every superior tribunal; and accordingly we find it actually exercised as far back as the annals of our law extend." If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination." But this must be done by some warrant, mittimus, or act of record, and this or a copy ought to be given to the offi 4 Bl. [Com. 283. Kentucky, a juror guilty of contempt to the court may be fined $8; failing to appear, not exceeding CH. 220. cer committing the offender, and for this officer's security and Art. 5. justification in case he be sued or questioned for false imprisoniment. See Anderson v. Dunn, 6 Wheat. 204 to 235. Anderson brought trespass against Dunn, serjeant at arms of the House of Representatives in Congress, for committing Anderson on the speaker's warrant for his contempt to the House. Deft. justified specially under the warrant. Judgment for him. But as to contempts committed at a distance from the court, and not within its view, the offender cannot be arrested or brought, or punished without process and evidence by affidavits of others, or confession &c. The foundation of this process is usually the affidavits of persons in whose presence the contempt is committed. Whenever these affidavits are deemed by the court sufficient, the usual practice is to make a rule on the accused to shew cause why an attachment of contempt should not issue against him, or in very flagrant instances of £10; same, a witness £3; contempt the attachment issues in the first instance. And so Toulmin's K. the attachment goes, if the accused do not on the rule served Laws, 201, on him, shew sufficient cause to prevent its issuing. The rule See I Hawk. is made absolute, and on this process the accused is arrested 88, 89. and brought in, and then he stands committed, or puts in bail, in order on oath, to answer such interrogations as shall be put to him for the better information of the court as to the circumstances of the contempt; and if the accused refuse to answer interrogatories or answer them evasively, he is guilty of a repeated contempt, to be punished at the discretion of the 220, 339. Salk. 176, Toler's case. 2 Burr. 792. court.. ART. 5. English cases of contempt and process &c. 1. A, an infant, sued a writ, and D was admitted his prochein amy after the writ was sued out and before it was returned. The under-sheriff delivered it back to the infant plt. and some of his other relations at their request, and this matter was answered when the sheriff was called on to return the writ; and held, the conduct of the officer was a contempt, for the court held, the suit was subject only to the direction of the guardian, and so is the writ, though an infant may be nonsuited. The under-sheriff, said the court, has delivered the writ without authority, and this is a contempt. He was fined and committed by the usual process of contempt. It is a contempt not properly to execute punishment. Salk: 260. § 2. The plt. in ejectment to recover the land, or in an action to recover the mesne profits, is a nominal person, and it is a contempt in him to release either action, and for this contempt he is committed. 3. Lord Preston was committed by the Court of Sessions for refusing to be sworn to give evidence to the grand jury on an indictment of treason. And on habeas corpus brought |