"The right to interfere on habeas corpus with commitments for contempt by a superior court, came under consideration in The People v. Nevins, 1 Hill, 154. There it was held that a rule of court without a precept is valid as process to the sheriff, even though the prior proceedings be not specified in the rule; that it is enough if the rule show briefly a commitment for contempt, with the sum of money ordered to be paid either directly or by reference to some other rule or proceeding. It was also held that the rule being defective in form, is not sufficient objection; and though irregular, the commissioner ought not for that reason to interfere by habeas corpus. was also held that jurisdiction must be intended. "The Supreme Court of the United States, in Ex parte Kearney, 7 Wheat., 38, where another court had committed for a contempt, held the conviction equivalent to a judgment and execution, and it appearing that the court rendering the judgment had competent jurisdiction, they refused to interfere on habeas corpus." 3 Hill, 665, note 38.

It

The controversy growing out of the commitment of John V. N. Yates for contempt by the Chancellor of New York, John Lansing, Jr, in 1808, is remarkable for the great ability and learning displayed in the arguments of counsel and the opinions of the judges and senators. As a judicial proceeding, however, it is more valuable for what was said than for what was done.

Yates was committed for contempt and mal-practice, on 18th August, 1808. On the 19th August he was discharged on a writ of habeas corpus by Mr.

Justice Spencer of the Supreme Court. The Chancellor on the 5th September ordered him to be recommitted, and he was again arrested on the 12th September and on the same day discharged by the same judge on another habeas corpus. The Chancellor again, on the 5th December, ordered him to be recommitted which was done on the 7th February, 1809, when the prisoner applied to the Supreme Court for a habeas corpus. On final hearing the prisoner was remanded to the custody of the sheriff. 4 Johns., 315. The judges stood three to two. A writ of error was brought upon this judgment and it was reversed. 6 Johns., 337.

In the mean time Yates brought an action against the Chancellor to recover the penalty provided in the habeas corpus act for recommitting after discharge on habeas corpus. The Supreme Court held the law to be with the Chancellor. 5 Johns., 282. The judges were divided as in the case of habeas corpus. A writ of error was brought on this judgment and it was affirmed. 9 Johns., 394.

The result appears to be that Yates escaped the prison and the Chancellor, the penalty. The cases are not much cited as authority. The following instances, however, may serve to show the estimate in which they are held.

Ch. J. Gibson, of Pennsylvania, in the case of the Commonwealth v. Leckey, 1 Watts, 66, refers to the case in 4 Johns., 318, with approbation, although it was reversed in 6 Johns., 337; while Chancellor Pirtle, of Kentucky, in Ex parte Alexander, 2 Am. Law Reg., 44, relies on the case in 6 Johns., 337, which was in effect overruled in 9 Johns., 394.

Where a person committed for contempt was brought before a judge on a writ of habeas corpus, and it did not appear from the return that there had been a conviction or judgment that he had been guilty of a contempt, it was held that his commitment was unlawful. Ex parte Adams, 25 Miss., 883. In commitments for contempt, where the imprisonment is intended as a punishment for the offence, it should specify some definite time. But where it is designed to compel obedience to an order of the court, it should be for so long only as the contumacy should continue. Goff's case, 3 M. & S., 203; 1 Burns' Jus., 382.

In Rex v. James, 5 B. & A., 894; S. C., 1 D. & R., 559, the defendant was committed by two justices for a contempt towards them in their office, until discharged by due course of law. Being brought up under the habeas corpus act he was discharged, the court being clearly of the opinion that the commitment was bad, as it ought to have been for a time certain; and as there was no course of law by which the defendant could be discharged, such a commitment, if valid, amounted to perpetual imprisonment. See also Rex v. Hall, 3 Burr., 1636; Baldwin et ux. v. Blackmore, 1 Burr., 602; Bracy's case, 1 Ld. Raym., 100.

A commitment which states that the party committed was adjudged guilty of a contempt in refusing to answer questions while giving his deposition as a witness, "specially and plainly" charges a contempt under the act of Missouri concerning habeas corpus, although it does not in terms state that the questions

were relevant or were decided to be relevant. Ex parte McKee, 18 Miss., 599.

In the case of The State v. White, T. U. P. Charlt., 123, it was said: "In proceedings for contempt, if the return shows a good cause for commitment, it will be valid, though it may want form.”

In Ex parte Nugent, 7 Penn. Law Jour., 107, Cranch, J., held that "the warrant of commitment need not set forth the particular facts which constitute the alleged contempt."

In Ex parte Summers, 5 Iredell, 149, it was held that where a court imposes a fine or imprisonment for a contempt, and the court does not state the facts constituting the contempt, and the court is not bound to set them out; no other tribunal can reverse their decision. But if the court does state the facts upon which it proceeds, a revising tribunal may, on a habeas corpus, discharge the party if it appear that the facts do not amount to a contempt.

SECTION XI.

WARRANT DEFECTIVE, PRISONER NOT ALWAYS DISCHARGED.

Ordinarily if the warrant be found invalid for the want of the essential requisites or conditions which have been considered, the prisoner will be entitled to be discharged. But this is not an invariable rule even where there is no statute to direct the action of the court or judge under the writ.

Where the proofs upon which the committing magistrate acted have been certified up or other

wise properly presented to the court or officer hearing the habeas corpus, or the further proofs, which may be adduced at the hearing where such further proofs are permitted, create a reasonable ground of suspicion of the prisoner's guilt of the crime specified, or any other, it has been held to be the duty of such court or officer, if invested with the power of a committing magistrate, not to discharge the prisoner absolutely, however defective the warrant may be, but to remand him or commit him de novo.

In England the Stat. 31 Car. 2 conferred no power to discharge the prisoner absolutely except where he had not been indicted and tried the second term after his commitment or had been tried and acquitted. In all other cases he was required to be remanded or let to bail. At common law, however, the Court of King's Bench had unlimited power to bail, and general, original and appellate jurisdiction in all criminal matters. It had power also, quite independent of the statute of 31 Car. 2, to issue the writ of habeas corpus in all cases, and not only to admit to bail under it in all cases, but to discharge absolutely. Under the statute they could not let to bail when the commitment was for felony or treason plainly expressed in the warrant; but at common law they could not only let to bail in such cases but might examine the grounds of commitment, and if on the facts it was plain that no crime had been committed, discharge the prisoner altogether; or if the facts disclosed a crime, but different from that for which the prisoner had been committed, they might simply