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

tute a writ of babeas corpus a writ of error.
1t has been argued that where the facts alleged
as constituting the contempt, appear the face of
the Judgment or commitment, the law authorizes
me to pass upon their suIciency-Or in other words
to decide whether these facts constitute contempt
IN law. 1t Is not necessary for me to express any
opinion on that point in this case 1t certainly rests
upon high authority. Lord Ellenborough in pro.
;n9uncrng his Judgment in the celebrated case of
BgrdeH cs Abbott, l4h East. l, is reported to have
said III commitment appearto be for contempt of
1.-THE House OF Commons generally Yould neither
Gin the case of that Court any other of the Supe
ror Courts enquire further; but if it did not pro
stess to commit for contempt, but for rsome.matter
"appearing on the return which could bv NO raason
"ble intendment be considered as a contemnt of tho
"Court committing, but ground of commitment
'papably and evidently arbitrary, unjust and con-
.trary to every principle of positive law national
Justce-l say IN the case of such a commitment IF
sit ever should occur, but which cannot possibly
anticipate as ever likely to occur we must look
sat it and act upon it justice may require from
whatever Courtit may profess to have proceeded
And Lord Denman afterwards in the case Of the
Sheriff OF Mlddlesex in citing this passage remarks
that in the same case Bailey j. appears TO have
been ofopinion that ifparticuar facts are Stated in
''the warrant and do not bear out the Commitment
'the Court should act upon it." But that if
the warrant merely state "a contempt in general
'terms the Court is bound by it." The same opin-
ion was held by Lord Holt in Rcgjnce u.s. Poty, 2nd
H. Rdym, l05; but in that case three of the Judges
held the contrary. The Supreme Court of North
Carolina, in EedeH, l49, expressed the same opin-
ion On the ether hand, the contrary doctrine
has been held bv high authority as in BASS Cros-
by's case, in Wilson, which has the sanction of
the Supreme Court in Kearny's case, Z Wheaton,
and of Chancellor Kent and other distinguished
Jursts. But no case which have seen asserts that
II the grounds OF contempt be not set out in the
Judgment or warrant, it is competent to enquire
into those grounds In the case before me the
GROUNDS OF the contempt are not set out in the
commitment, and am therefore precluded from in
curing into them. But if it be admitted that bv
the terms OF the commitment in this case the pre-
vlous order of the Court are incorporated into and
form part of it, and that have the right to pass
upon their suliciency, still there is no ground
appearing which could authorize me to declare the
Judgment invalid. In the course of the argument
the question Of privilege was very earnestly and
ably pressed upon me. If were at liberty TO mass
upon that question would be compelled to- saw that
no sufficient grounds of such privilege was present.
ed to the Circuit Court. On what does such claim
rest when argued by counsel? No counsel can be
compelled to discover any paper furnished to him
by his client to be used for the purpose of crimi
mating the client In such the privilege recog-
nzed by the law is that of the client which is the
Courts of justice are bound by law to respect On
TINS principle were decided the cases of Rev. rs
Diron l3 Burroms 1857; State u.s. Squires. | Tuer
lermoat), l47; The anonymous case, s Mass,
gument. No such ground of privilege appears to
have been urged or relied upon in the Circuit
Court.
The privilege claimed was based on the fact that
the papers called Cor were furnished to the counsel
Dy sundrv clients, not one of whom would have
been privileged from producing them ifcalled on;
how then could the privilege be claimed by the
counsel?
The rule which seemed to be invoked by the
counsel in this is stated in Sjorkey's En- &C. as
follows: 'There seems however in one respect to
''be distinction between the compelling witness
ITO answer question orally and the obgnr him
to produce written document. He must answer
Questions although the answer NAV render him
''civilly responsible but it seems that he is not
IA ann llnl1l tn, al.
document belonging to him when the production
''mlght prejudice his credit rights" The same
rule is recognized in Sarhey R. 14O, "a Enq C.
L;lio.) Coz u.s. Nash, Biny, 723, (23 Eng. c. L.
439 and in other cases. but this case does not come
within that rule. 1t did not appear that a comp-
ance with the Courts order requiring the papers
called for to be delivered to the Grand jury
would IN any manner prejudice or injure the civil
The Courts order in this case has been discussed
as If its operation to deprive the clients of the
use and benefit of the promissOry notes called for
as ii it were an order to deliver the notes to the
grand jury to be cancelled, or destroyed or kept 1t
cannot receive such construction, its whole scope
purpose and effect to do what a subpoena d,ces
tec" accompllshes, requiring the papers to be fur
nshed to the Grand Jury for their inspection to be
used In the discharge of their duty and for lawful
and proper purpose. Such is the intendment and
legal construction of the order, the contrary not
appearing. On this question [ am constrained to
say that upon the case presented to the Circuit
Court, the Counsel was in on the question of
privilege. 1t is sometimes question OF great del
lcacy for counsel to determine between his obliga-
tions to the public and his solemn and sworn duty
to his client, and in such the counsel can sell
! dom form an impartial Judgment, and if mistaken
he Is not to be harshly severely dealt with. His
| duty is to submit the question to the Court upon
| whom the law has cast the duty of deciding it.
have gone into this subject thus mt length out
of Difference for the arguments which have been ad-
dressed to me on behalf of the petitioner. A sup
Elementary affidavit has been lied before me bv the
| SrttlnG 1o1d fact
grounds upon which the privilege might be claim
ed. But in no view of this case can the new matter
alleged be before me.
1t follows from what has been said that upon
none of the grounds insisted upon in the argument
can interfere with the Judgment of the Circuit
Court 1t is binding and conclusive, and its force
and validity cannot be questioned under this pro-
ceeding or disregarded by me. 1t, therefore, only
remains for me to interpret it according to its
legal effect, and to decide whether under it. the ne
titioner can still be lawfully detained in the Gus
tody of the Sheriff. The Judgment imposes a fine
of $500, and directs 'that the petitioner be in the
"custody of the Sheriff until he purge the contempt
"by appearing before the Grand Jury and furnish
ing to them the paper or papers required by
| E'them'
He is not committed for non-pavment of the fine
nor until the fine shall be paid, and without such COM
mitment he can not be held by the Sheriff in Gus
tody for the fine. This was decided in Peters, $685.
| VdtkinS' case. The Acts of Assembly point out
| the mode by which the fine. may be collected and
| 1t Is not in my power to release him from it,
although it may have been, as alleged excessive
and wholly unjustifed by the circumstances; that
is a matter with which have nothing to do.
The commitment is until he purge the contempt
by appearing before the Grand Jury, &c, but it ap
| pears that the Grand Jury has been discharged so
| that it has become impossible for him to obey the
Courts process, and the question arises whether by
reason of that fact, he is entitled to be dscharged
or in other words, whether the term of imprson-
inent as fixed by the warrant is ended. This point
was not presented in the argument, but it seems to
me, upon the best reasons which am able to apply
to the subject, and by the anaogies of the law that
on this ground it is my duty to discharge the peti
| TONER 1t is always competent to inquire whether
anything has arisen since the commitment to put
! an end to the Imprisonment, Hill, lG5, as pardon
or an expiration of, the term fixed by the commit
! ment In determining the legal effect of the COM
mltment it is proper to notice distinction between
| punishment and process This distinction is taken
by Patterson, j., in Cra,efors Case, I3 Ad and CO.,
". 5. 629, in which it is said that ga commta of a
"party till be is in the nature of process.
| 1t was decided in the Court of Kings Bench in
| the case OF the King James, Barn. and AID,
| S94, G Eng, c. H. 292): "That a commitment by a
magiStrae for contempt till the party shall be dis
charged by due course of law is void because it is
''not for time certain, there was no course of
claw by which he could be discharged, and there
tore If valid, it amounted to perpetual iuprison-
'ment." In that case it was held that the commit
ment was for punishment. There is no doubt of
the power of the Court to commit until the party
answer or testify or produce papers before Grand
| Jury. In such case the commitment is a compu-
date of the Court. But ii by any event subsequent
| ly happening, as the adjournment of the Court
! and the discharge of the Grand Jury, it becomes
! impossible for him to obey the Courts process it
must result from necessity that the term of i'm
prisonment imposed is ended, and that the party is
entitled to be discharged, otherwise the imprson-
ment would be perpetual. twas decided in DuRp's
case 6 Wheaton 204, that where party was
| mitted by the House of Representatives for
tempt, that "tO the duration of the imprisonment
''lmt is imposed by the nature of things, and that
''the Imprisonment must terminate with the ad-
'.ournment" See also Judgment Of Senator Clinton,
Johns r. COG, COZ, and Of Senator Leuis, 8 Johns
| Il 420
tits true that the assigned by Mr.. Justice
! Johnston, in 6 Wheaton, does not strictly apply
to the of commitment by Court because
while the House of Representatives has no power to
| commit party for period extending beyond the
adjournment, the power of Court is not go limited
| yet there appears To to be Il strong analogy be
tween the case of Dunn and the case | am now con-
! sidering, although the reasons on which thev de-
pend are not in all respects the same In this case
! the duration of the imprisonment must be deter
mined by the terms of the commitment and its legal
| operation and effect 1t is unH he p,rge the con-
| tempt by appearing before the Graad J'ry and pro-
| duclng the papers to them. How that be done
after the Grand Jury has been discharged? 1t has
become impossible, although the petitioner should
! be ready and willing to do so. il in an ordinary
case witness, falling to recognise be committed to
the custody of the Sheriff. for the purpose of tes-
! tifying to the Grand Jury, when the Grand Jury
is finally discharged, he is entitled to be released,
| and in m ouiniOn the principle applies To