diction of the offence and of the person.' The proceeding for contempt is regarded as a distinct and independent matter, so far at least as to require notice to the party affected, and the omission to serve him with notice renders the proceeding void.'

*The right to interfere on habeas corpus with [413 commitments for contempt by a superior court, came under consideration in The People v. Nevins.' 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. It was also held that jurisdiction must be intended.

"The Supreme Court of the United States in Ex parte Kearney, 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.'

authority from the constitution. But when imprisonment is imposed as a punishment, it must terminate with the final adjournment of the House; and if the prisoner be not then discharged by its order, he may be released upon habeas corpus.

1 Where it appeared, in the complaint, that the prisoner was confined by the sheriff for an alleged contempt, in disobeying an order of the court requiring him to pay a certain sum of money, but it denied that the imprisonment was by virtue of any writ or order of court authorizing the same, the petitioner was held entitled to the writ. The court said that "it was the province of the court and not of the sheriff to adjudge a party guilty of contempt and punish him therefor." Ex parte Lawler, 28 Ind. 242.

A prisoner confined for contempt in having failed to attend before a justice of the peace, when duly summoned, was discharged, when the case in which he was to testify had been finally determined and ended. Clark's case, 12 Cush, 320. 2 Ex parte Langdon, 25 Verm. 680.

21 Hill, 154; Davison's case, 13 Abb. Pr. 139.

4 7 Wheat. 88.

53 Hill, 665, note 38.

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 malpractice, on the 18th August, 1808. On the 19th August he was 414] 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. The judges stood three to two. A writ of error was brought upon this judgment and it was reversed.*

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.' The judges were divided as in the case of habeas corpus. A writ of error was brought on this judgment and it was affirmed.'

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,' refers to the case in 4 Johns. 318, with approbation, although it was reversed in 6 Johns. 337; while Chancellor Pirtle, of Kentucky, in

14 Johns. 315.

49 Johns, 394.

26 Johns. 337.

5 1 Watts, 66.

3 5 Johns. 282.

Ex parte Alexander,' relies on the case in 6 Johns. 337, which was in effect overruled in 9 Johns. 394.

*Where a person committed for contempt was [415 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.*

In commitment 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.'

In Rex v. James, 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, Baldwin et ux. v. Blackmore," Bracy's case.'

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 [416 relevant or were decided to be relevant."

In the case of The State v. White,' 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,' Cranch, J., held that "the warrant of commitment need not set forth the particular facts which constitute the alleged contempt."

In Ex parte Summers, 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.3

15 Iredell, 149.

27 Penn. Law Jour. 107.

The following authorities will show the state of the law upon this subject. In New York it was held that "the appellate court, before which the propriety of a commitment for contempt is brought by certiorari, or even collaterally on habeas corpus, is bound to discharge the prisoner when the act charged as criminal is necessarily innocent or justifiable, or when it is the mere assertion of a constitutional right. The adjudication of the court in which the alleged contempt occurred, while conclusive that the party committed the act whereof he was convicted, and of its character when that might, according to the cir cumstances, be meritorious or criminal, cannot establish as a contempt that which the law entitled the party to do." The People v. Hackley, 24 N. Y. 75. In that case the prisoner had been confined for contempt, in refusing to answer certain questions propounded to him before the grand jury. He based his refusal upon the ground that any answer he might make to the question would "tend to accuse him of crime." The case came to the Court of Appeals from the Supreme Court, upon appeal from an order upon habeas corpus remanding prisoner to custody. The facts constituting the contempt were all set out in the return.

Denio, J., in delivering the opinion said, “As a general rule, the propriety of a commitment for contempt is not examinable in any other court than the one by which it was awarded. This is especially true where the proceeding by which it is sought to be questioned is a writ of habeas corpus, as the question on the validity of the judgment then arises collaterally, and not by way of review. The habeas corpus act, moreover, declares that where the detention of the party seeking to be discharged by habeas corpus appears to be for any contempt, plainly and specially charged in the commitment, ordered by a court of competent jurisdiction, he shall be remanded to the custody in which he was found. But this rule is of course subject to the qualification that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indiffer ent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so. The question whether the alleged offender really committed the act charged will be

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 dis

conclusively determined by the order or judgment of the court; and so with equivocal acts which may be culpable or innocent according to circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of misprisonment." See also Shank's case, 15 Abb. Pr. (N. S.), 38. In Ex parte Rowe, 7 Cal. 181, it appeared from the return to a writ of habeas corpus, that the prisoner had been committed for a contempt of court, in refusing to answer certain questions propounded to him by the grand jury. It was objected to the return that the questions propounded were not set forth.

It was decided that it was the right and duty of the Supreme Court on habeas corpus to review the decisions of inferior courts in cases of contempt as well as others. The statute of California provided that "the judgment and orders of the court or judge in cases of contempt shall be final and conclusive." It was said in the course of the opinion, "And in cases where the contempt consists in the omission to perform an act which is in the power of the person to perform the act (to be performed) shall be specified in the warrant of commitment." *** Now in requiring that the act to be performed should be specific, the statute must have had some object in view; what could that object be, except to afford the means of judging of its correctness by other courts? If then, we have the right to set aside the order of an inferior court in a case of contempt, it would seem clear that the warrant of commitment should state all the material facts upon which the action of the court is predicated. In the present case it should have been stated that the grand jury were inquiring into a certain question, stating it; that prisoner was sworn as a witness, and certain questions propounded to him, stating them; that he refused to answer; that the facts were thereupon presented to the court by the grand jury, and the prisoner required by the court to answer, which being refused, he was committed for contempt."

In Massachusetts it was held that the Supreme Court had the power to inquire on habeas corpus into the lawfulness of imprisonment for contempt by order of the house of representatives. Burnham v. Morrissey, 14 Gray, 226.

In Commonwealth v. Newton, 1 Grant's Cases, 453, it was held that the Supreme Court had jurisdiction to review a proceeding for contempt in the Common Pleas. Williamson's case, supra, was limited to such cases as were then before the court, where the contempt occurred in the District Court of the