The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-03-29


This is an application for writ of habeas cor
pus made by William p. Mausby, ESQ. allegMsc
that he is 'nda'tWiy imprisoned and in the custody
OF the Sheriff of Frederick county With the peti-
ton are exhibited certified copies of the proceedings
and orders Of the Circuit Court for said county, of
an attachment issued by order of said court and of
Judgment OF said court, by of which it is
alleged the petitioner has been committed to the
custody of said Sheriff. and is now held in custody
by him.
The petition further states that the Circuit Court
for Frederick county is now in vacation, and that
the Gro"d 5'ry has been discharged.
The first questions presented on this application
are whether, as Judge of the Court of Appeals, l
have the power to grant the writ in any case, and
whether that power can be exercised during the
term 6, time of the court of which am a member
This power if it exists at all can be claimed only
under the Act of 1909, chap 125.
BY the Sd section Of the Bill of Rtghts it is de-
cared that "the inhabitants of Maryland are enti-
cited to the benefits of all acts of Assembly, in force
"on the first Monday of November 1885, except
"such as have since expired, or may be altered by
"this Constitution" There is nothing in the Con-
sututlon to repeal alter, either by express terms
or by implication or repugnancy, any part of the
act Oh !eoS 1t is a remedial statute. and do not
entertain any doubt that it is still operative and
valid, and applies well to members of the pres
ent Court of Appeals, of the Court which was in
existence at the time it was passed. But this ques
'ion mas passed :, in rem jaticatu. In the of
-ex parte-O Nellie, s Nd, 227, it is expressly so
decided, and whatever doubts might have before
entertained on this question, they have been set at
rest by that adjudication Nor | at liberty to
set up my individual opinion upon the construction
OF the words SIN the racaon time as used in that
act. In the same case it is distinctly ruled that
those words do not apply to the vacation of the
Court OF Appeals, but mean 'the vacation time of
the County, now Circuit Courts, and the Courts
'ot Baltimore, to which have been transferred the
powers and duties of the former County Courts
Nd, 22S
Having upon the authority cited and, for the rea-
ltp hInhl loho
grant the writ, one was accordingly issued to
which the Sheriff made return: "That he detains
"the body of William p. Maulsby, ESD, under and
"by virtue of certain orders passed by the Honora-
ble Madison Nelson, Circuit Judge for the Third
"Judicial Circuit of the State of MARYLAND. certi
'hed copies of which orders are exhibited as
part OF the return, and the same as those filed
with the petition, marked Nos. l, 2, g. A. 5, 6, Z"
The case was fully argued on behalf of the peti-
toner upon the application for the writ and the
question to be determined is whether upon the case
made by the petition and return the petitioner is
entitled to be discharged.
The Act Of 1909 gives the benefit of the writ to
any person who is committed or detained for auy
CRIME, or under any color or pretense whatsoever
unless it be for reasOn felony plainly EXPRESSED
I'm the warrant of commitment, or ''not beinq con-
',c'ct or IN execution by legal process and directs
that II 1t shall appear that such person is detained
without any legal warrant or authority the JUDGE
before whom he is brought on habeas corpus shall
release and discharge him. 1t appears by the
return to this writ as well as by the papers exhib
tied with the petition that on the l7th day of
March, 1853, the Circuit Court for Frederick coun-
ty, Issued an attachment against William p MauIs-
by, ESD, ''to answer a contempt by him commmit-
ted which was served on the petitioner, and on
the same day the Court passed the following order:
Thursday, March H. 1859.
civilian p. Maulsby, ESQ.,, appeared in court
"this morning, and refused to appear before the
"Grand Jury, or to deliver to them the paper or
"papers required of him as ordered bv this Court
''Whereupon the court ordered that an attach
"ment for contempt be issued against him, which
''was done, and the attachment for contempt
"being returned served by the Sheriff of Ere
"derick county. and William p Maulsbv ESQ
being in court, the Court adiudged that he
"pay a fine of $500, and be in the custody
"of the Sheriff of Frederick county, until he purge
''the contempt, by appearing before the Grand
Jury, and furnishing to them the paper or papers
''required by them
This order discloses the authority under which
the petitioner is detained in custody. Upon its
face 1t shows that he is conUic and IN erecution ON
tegat process. "When court commits party for
contempt, their adjudication is conviction, and
their commitment in consequence, is execution" :"
Wilson, lSS; Wheaton, 43
The Supreme Court declare in ex parte, Kearney
I; Uheoton 43, that there is in principle, no dis
tinction between a Judgment pronounced by a court
after trial upon an indictment, and summary
judgment for contempt where it is sought to avoid
their effect in collateral proceeding; each is alike
conclusive, if the Court which prOnounces it, has
jurisdiction to pass the Judgment.
This principle is so well settled and so universal
ly recognized, that it can hardly be necessary to
cite authorities to support it. The decision in the
case OF Brass Crosby Lord Mayor of London re-
ported in W. Bt. T55, and in WHs 1SS was ONLY the
recognition of the law, it had before been held
from time immemorial. That decision was an
proved and adopted by the Supreme Court of the
United States in the in Wheaton, already
cited and 1t is supported by an unbroken current
of authorities See B,rdeH Us. Abbott, II; East |,
and the same case before the House of Lords Dom,
l99.
The case of the Sheriff of lhddleser, IL Id. and
Et. 273. (in39 Eng, c. L. S0.)
hllg Us. Hdbhouse, 2 Chitfy, r. 2O7; Yates case
reported in the 4th. 5th 9Th and 9th ,Johnson's r,
Commonweo1h u.s. Humbright 4 Serp. and RauJ l49.
The People rs. CaSseNs, 5 Hill 1G4; Summers case s
rede l49. See the cited in the American Notes
to Crepps as. Burden, | Smiths leading cases 7O3:
and the able decision of the Supreme Court of Penn
sylvania pronounced by Judge Black in Passmoye
VWtomsoa's case, 26 Pennsylvania State r. 9.
But 1t has been argued in this case that the iudg-
ment under which the petitioner is held in custody
was coron1 non justice and void and the Act of 1853
chapter 450, has been cited for the purpose of
showing that the courts in Maryland now exercise
over the subjects OF contempt special and limited
jurisdiction conferred by the act and that unless
the grounds OF Judgment ofcontempt appear upon
its face, and show armatively that the facts upon
which 1t is based are within the Act of 1858 the
Judgment is void. This position is not tenabe A
contempt Is an offence at the law it is not
punish it conferred by that act alone 1t is an
offence against the Court as an organ of public
justice. The right Of Furnishing for contempts by
summary conviction is inherent in all Courts of
justice and Legislative assemblies and is essential
for their protection and existence 1t is a branch
OF the common law adopted and sanctioned by our
State Constitution, Johns, All. The Act of 1853
does not confer upon the Courts jurisdiction, it is
merely declaratory of what shall constitute a con-
tempt; and while it is intended to restrain the
Courts from furnishing as a contempt ANYTHING
which does not fall within the terms of the act t
neeessarially devolves upon each Court, which is
called on to enforce it, the power and the duty
of constituting it. That is the case with every law
which the Court is called on to construe and ad-
minister.
To use the language of Chief Justice Marshall,
Il Craach l17:) sit is emphatically the province
"and duty of the judicial department to saw what
"the law is. Those who apply the rule to particu-
'lar cases must, of necessity, expound that rule I"
1t is cleaL that the Circuit Court for Frederick
county, winch IS court OF general common law
jurisdiction, has the power of adiudicatinp and
Furnishing contempts, well as every other offence
known to the common law, and, ex-necessitate, has
the power of constituting the Act of 1853 in the same
manner as before that act. 1t had the power of
deciding what constituted a contempt at common
law, and its Judgment is final and conclusive and
cannot be set aside or impeached under this pro-
ceeding, or in any other collateral way. 1t is no
answer to say that the power may be abused; gov
ernment cannot exist without vesting authority
somewhere and, if it is abused, the Constitution
points out the remedy.
In this connection | cannot forbear quoting the
language OF Judge Story in Wheaton, As, he
says:
"The argument of inconvenience has been passed
"upon with great earnestness. But where the
claw is clear, this argument be of no avail and
sit will probably be found that there are serious
''inconvenences the other side; wherever power
"is lodged it may be abused. But this forms no
'solld objection against its exercise. Confidence
"must be reposed somewhere and if there should
"be an abuse, it will be public grievance, for
(Which a remedy may be applied by the Legisla-
'ture, and is not to be devised by courts of JUS
''tice''
The Judgment of contempt, in this case, being
pronounced by Court of competent jurisdiction
and the commitment, which is the process of exc
cuton thereon, under which the petitioner is held,
being in due form, it follows from what has been
said, that he cannot be discharged therefrom under
habeas corpus by reason Of any alleged error or
irreguarity in the antecedent action of the Court
writ of habeas corpus is not a writ of error
My powers, to be exerted by means of the writ, are
no greater than those Of any other Judge in the
State, who has the right to grant it, under the cts
of Assembly, and it is much beyond nv authority
to revise the Judgment of the Circuit Court for
Frederick county In this way, as it would be for
myself or any other Judge to revise or annul A
judgment pronounced by the Court of An
The assertion of such an authority would lead to
the greatest disorder and confusion; produce an
endless conflict between the courts of the State
and IN the end destroy the very foundations of our
government.
But pass to the consideration of the other
grounds upon which it has been urged that the
judgment of the Circuit Court ought to be disre-
garded void, together with the petition and
with the return to the writ, are exhibited several
papers showing the antecedent nrocepdinus of the