proposed by them; but these men swear further and say that they told him the same story they did now. If that be true, he drew these affidavits most falsely. He led them into perjury, and is as guilty as they are, and should as certainly be punished if we had him; but I find on inquiry he is not here, therefore as we have nobody else to punish but these men who have thus prevaricated and imposed upon the court.

"Lord Ch. J. MARLAY: It is a most wicked, profligate thing in an agent to make an illiterate man swear an affidavit he knows to be false. Whether that be Goostry's case or no I will not say, because he is not here to clear himself, but it looks very like it."

In the case of Moore v. Ewing, Coxe, 144, the court animadverted on affidavits drawn up by counsel and sworn to in the same words.

In the absence of any statutory provisions prescribing the mode and means of proof in habeas corpus cases, the following conclusions are believed to be warranted by the practice:

1. Affidavits, if taken before competent authority and properly authenticated, though taken without notice to the adverse party, may be received.

2. The question of their reception is addressed to the sound discretion of the court, to be exercised upon the circumstances of each case.

3. In examinations relating to criminal charges, the personal attendance of the witnesses will be required, unless it be shown that it could not be obtained by the exercise of reasonable diligence.

4. This species of evidence is of the lowest admissible grade, and therefore is to be received cautiously and scrutinized closely.

In Kentucky, Rev. Stat., 1852, p. 379, the court at its discretion may hear affidavits taken by either party on reasonable notice to the adverse party, and they may summon witnesses.

So in Florida; and witnesses may be summoned and their attendance enforced in Alabama and . Arkansas.

SECTION III.

CUSTODY PENDING THE HEARING.

Pending the examination or hearing, the prisoner, in all cases on the return of the writ, is detained, not on the original warrant, but under the authority of the writ of habeas corpus. He may be bailed on the return de die in diem, or be remanded to the same jail whence he came, or to any other place of safekeeping under the control of the court or officer issuing the writ, and by its order brought up from time to time till the court or officer determines whether it is proper to discharge or remand him absolutely.

The King's Bench may, pending the hearing, remand to the same prison or to their own, the Marshalsea. The efficacy of the original commitment is superseded by this writ while the proceedings under it are pending, and the safe-keeping of the prisoner is entirely under the authority and direction of the court issuing it, or to which the return is made. Per Nelson, J., In re Kaine, 14 How., 134; Bac. Abr., tit. Hab. Corp., B. 13; The King v. Bethel, 5 Mod., 22; 1 Vent., 330-346; Fort., 242.

In several of the states it is provided by statute that the court may make such order for the safekeeping of the prisoner, pending the hearing, as they may judge expedient.

SECTION IV.

ATTACHMENT FOR CONTEMPT.

At common law, when the writ of habeas corpus was returnable before the court, any disobedience was subject to be punished as a contempt by attachment. This, as has been seen, was not generally issued, prior to the 31st Car. 2, until after the third default. But subsequently it was granted upon the first. It would appear, from the answers of the judges in 1758 to the sixth question propounded to them, that although a judge of the Court of King's Bench might grant the writ in vacation, and make it returnable immediately, before himself, he had no power to enforce obedience to it in time of vacation, if the party served therewith should neglect or refuse to obey the same; though, by the answers of Mr. Baron Smythe and Mr. Justice Dennison, it would seem that the Court of King's Bench in the next term might proceed against the person committing the contempt, and enforce obedience to the writ by attachment.

In the Act of 31 Car. 2 there was no provision authorizing a judge of the court to proceed against an officer for neglecting or refusing to obey the writ by attachment for the contempt, the provision on that subject prescribing only that the officer should be

subject to a penalty of £100 for the first offence and £200 for the second, "to be recovered by the prisoner or party aggrieved, by an action of debt, suit, bill, plaint or information in any of the King's courts at Westminster," and should also by such act be made "incapable to hold or execute his said office;" and, accordingly, Mr. Justice Wilmot, in his answer to the said sixth question, says that a judge in vacation had no power to enforce obedience to writs of habeas corpus, "whether they issue in cases within the 31 Car. 2, or in cases out of that act."

By the 2d section of the Act 56 Geo. 3, c. 100, power is given to the justice or baron issuing the writ in vacation, in cases other than those "for criminal or supposed criminal matter," to issue his warrant for the apprehension of the party disobeying the writ, and to require him to enter into recognizance with two sufficient sureties to appear in the court of which such justice or baron is a judge, at the ensuing term, to answer the matter of contempt.

It is not proposed to pursue this inquiry here fully, as it belongs more properly to the criminal jurisdiction of the courts. Where the writ is granted by, or is properly made returnable before, a court exercising a common law jurisdiction, there is no doubt of its power, in the absence of statutory provisions regulating its procedure on the subject, to punish as a contempt a corrupt or willful neglect or refusal to obey the writ, and also, by the process of attachment, to compel obedience to it promptly and completely.

What powers are conferred upon judges or other officers, to whom jurisdiction is given over the writ

in vacation, in the several states for enforcing obedience to the writ, must of course be sought for in their statutes.

In some of the states, as ample power has been vested in the judge in vacation, as is possessed by the court in term-time.

In Virginia, Code, 1849, p. 614, sec. 9, it is provided that: "The judge issuing any such writ in vacation, or the judge before whom it is tried, shall have the same power to enforce obedience to the writ, to compel the attendance of witnesses, or to punish contempts of his authority as a court has."

In Alabama, Code, 1852, sec. 3751, it is provided that: "Any person to whom a writ of habeas corpus is directed, who refuses to receive the same, or neglects to obey and execute it according to the provisions of this chapter, unless sufficient excuse is shown for such refusal or neglect, the court, judge or chancellor, before whom the writ is returnable, must forthwith proceed by process of attachment, as for contempt, to compel obedience to the writ, and punish the person guilty of such contempt; and such person also guilty of a misdemeanor, and, on conviction, must be fined not less than fifty or more than five hundred dollars; and is also responsible in damages to the party aggrieved."

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In Maine, Rev. St., 1857, p. 597, sec. 26, it is provided that: "If any person or officer, to whom such writ is directed, refuses to receive it or neglects to obey and execute it, as hereby required, and no sufficient cause is shown therefor, he shall forfeit to the aggrieved party four hundred dollars; and the