charged. 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.

United States over which the Supreme Court of a state possessed no jurisdie tion. In the opinion it was said, "The charter of our powers cannot be so narrowed by construction as to exclude proceedings for contempt. We do not, indeed, revise such cases upon their merits. The courts having a limited jurisdiction in contempts, every fact found by them is to be taken as true, and every intendment is to be made in favor of their record, if it appears to us that they proceeded within and did not exceed their jurisdiction; but for the purpose of seeing that their jurisdiction has not been transcended and that their proceedings, as they appear of record, have been according to law, we possess, and are bound to exercise a supervisory power over the courts of the commonwealth." See also Williamson v. Lewis, 39 Penn. State, 30. In In re Fernandez, 10 C. B. 3, the prisoner was committed by the Court of Assizes, for contempt in refusing to answer certain questions, which had been propounded to him as a witness. His release upon habeas corpus was sought upon the ground among others, that the warrant of commitment was void, in that it did not set out the questions which petitioner had refused to answer. Erle, C. J., said, "whether that could be required" (the setting out of the question) "of a commitment by a court in any case, it is unnecessary to decide. If the Court of Assizes is a 'superior court' the objection fails; for it is as clear, and certain as anything can be, that a superior court, may adjudge a man guilty of a contempt, and may imprison him for such contempt, without setting out on the face of the warrant of commitment the grounds upon which the adjudication proceeded.” It was decided that the Court of Assizes was a superior court, and that it was not necessary that the facts should be set out in the warrant. Byles, J., in the course of his opinion said, "On the one hand, I abstain from giving any opinion that it is essential for a judge of a superior court of record committing for a contempt in the face of the court to make out any warrant at all, and that a parol commitment sedente curia is not all that is requisite. On the other hand, if a warrant be made out stating the facts, as in Bushell's case, Vaughn, 135, and showing on the face of it that the alleged contempt was no contempt in point of law, that warrant would no doubt be bad."

In Ex parte Perry, 2 Daly N. Y. 530, it was held that upon habeas corpus in a case of commitment for contempt the judge is limited to the inquiry: (1). Is the contempt especially and plainly charged in the commitment? and (2). Had the officer authority to commit for the contempt charged? If these appear the prisoner must be remanded. In that case the commitment set forth that petitioner had been imprisoned for contemptuous conduct in the view and presence of the court, and the particular circumstances of the offence. The court held that these circumstances set forth in the order of commitment amounted to a criminal contempt. In the course of this opinion it was said, The last objection made is that it does not appear that any interrogations were propounded. This is also a matter that cannot be inquired into upon habeas corpus. When the order is one which the court have authority to

Where the proofs upon which the committing magistrate acted have been certified up or otherwise [417 properly presented to the court or officer hearing the

make, all jurisdictional steps and all matters of regularity are to be presumed. A contrary doctrine says Cowen, J., in People v. Nevins, would turn a habeas corpus into a writ of error to revise the proceedings of the court. It may be remarked, however, that the propounding of interrogations is not necessary when the contempt is committed in the view and presence of the court."

In Maryland in Ex parte Maulsby, 13 Maryland, 621, the petitioner had been confined by an order of the Circuit Court for contempt in not producing certain bills and notes before the grand jury as required by direction of the court. The application for a writ of habeas corpus was made to one of the judges of the Court of Appeals. In the opinion denying the writ it was said, "It is clear that the Circuit Court of Frederick county, which is a court of general common law jurisdiction, has the power of adjudicating and punishing contempts as well as every other offence known to the common law ***** and its judgment is final and conclusive, and cannot be set aside or impeached under this proceeding, or in any other collateral ***** It has been argued way. that when the facts alleged as constituting the contempt appear on the face of the judgment or commitment, the law authorizes me to pass upon their sufficiency, or in other words, to decide whether those facts constitute a contempt in law. It is not necessary for me to express any opinion on that point in this case. It certainly rests on high authority. ***** But no case, which I have seen, asserts that if the grounds of the contempt be not set out in the judgment or warrant, it is competent to inquire into their grounds,"

In Vermont it was held that justices of the peace, while holding court, have power to punish for contempt. In the same case it was held that a court which had power to punish for contempt, was the exclusive judge whether the misbehavior in court amounts to contempt or not; and the exercise of such power in such cases cannot be reviewed by any other tribunal. In re Cooper 32 Vt. (3 Shaw), 253.

The contempt in that case was misbehavior in court, amounting to a personal insult to the magistrate. It is said in the opinion, "Of such contempts, the court to whom they are offered, or in whose presence they arise, must be the exclusive judge, as the punishment for them should be immediate and upon the spot.”

The application in that case was made under a statute which authorized the Supreme Court to afford relief from imprisonment for contempt, when it appears that it was committed "through ignorance, mistake or misapprehension, or by acting in good faith under advice of counsel."

In New Hampshire it was held that when a justice of the peace has jurisdiction to punish a contempt, his sentence will not be reviewed upon habeas corpus, either in respect to the sufficiency of the evidence, or the application of the law; but the proceedings will be examined only so far as to see that the magistrate had jurisdiction. State v. Towle, 42 N. H. 540. In that case 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

contempt consisted in the refusal to answer certain questions which had been propounded to the petitioner by the magistrate during the taking of a deposition.

In Michigan, on habeas corpus, when the petitioner is held by virtue of a commitment fair on its face, and charging him with contempt of court in refusing to give evidence, it is competent for him to go behind the commitment and show that the court committing him had no jurisdiction of the proceeding in which he was called as a witness. In the matter of Morton, 10 Mich. 208.

In Iowa it was held that when a court having jurisdiction of a cause, is proceeding to arrest a party for contempt, no other court can intermeddle with or stay the proceeding, or on habeas corpus release the party who is being proceeded against. Ex parte Holman, 28 Iowa, 88. In that case application had been made for a habeas corpus to the Supreme Court of Iowa to relieve petitioners, who had been arrested under an attachment of the District Court of the United States against them to answer for a contempt.

In Ex parte Perkins, 18 Cal. 60, it was held where, in the regular course of judicial proceedings, before a court of general jurisdiction, a party having notice of the proceedings, has been ordered by the judgment of the court to pay a certain sum of money, and in default of obedience to the order, has been committed for contempt, he cannot, on application to the Supreme Court for a writ of habeas corpus, question the regularity of the proceedings of the court below, nor the propriety of the judgment on the facts. The power of the court below to make the order is the only question. It is difficult to reconcile the doctrine of this case with that of Ex parte Rowe, 7 Cal. 175, supra. The attention of the court does not seem to have been directed to that case, as no allusion is made to it either in the argument of counsel or in the opinion of the court. It may be remarked that in Ex parte Rowe the Supreme Court held that it had power as an appellate court to review the orders in contempt, by an inferior court, while in Ex parte Perkins it was said: We do not sit as an appellate court, upon matters of this sort, but as a court of original jurisdiction," &c., &c.

In Holman v. The Mayor of Austin, 34 Texas, 668, the petitioner was discharged by the Supreme Court of the state from a confinement to which he had been committed by an inferior court for a contempt in a refusal to answer certain questions which had been propounded to him as a witness. It was held that the questions were improper and illegal, and that to require a witness to answer them should be regarded as the personal command of the judge, rather than the judicial order of the court. See also McJunkin v. Gilliam, 2 S. C. 442. Although, as will have been observed, there exists considerable conflict in the authorities upon this subject, a careful consideration of them, I think, will result in the establishment of the following propositions. The commitment of a person under conviction of contempt, is equivalent to a commitment in execu

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. II. 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. II., 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 remand him or commit afresh. The Court of [418

tion, and the judgment of the court ordering the commitment cannot be inquired into, upon habeas corpus, except to ascertain whether such court had jurisdiction to punish for contempt. But if the court making the order be an inferior one, a superior court in the exercise of appellate or revisory jurisdiction, may upon habeas corpus, review the judgment of such inferior court to ascertain whether the order of commitment was rightfully made. In all such cases it would seem to be the duty of the inferior court to set out fully in the warrant of commitment, in what the contempt consisted, and the facts upon which the judgment was rendered, in order that the superior court may be fully advised as to the rightfulness of the commitment, for otherwise it would be in the power of the inferior court, by making a general warrant of commitment, to deprive the superior court of its right of review.

King's Bench therefore exercised under its common law jurisdiction, as the supreme criminal judicature, higher powers under the writ of habeas corpus than were conferred by the act of 31 Car. II. on the officers named in it.

Prior to 1802 it was the practice in that court, where the commitment was found defective, and yet the depositions showed some crime to have been committed by the prisoner, simply to remand him by a rule in general terms. But as this left the prisoner free to sue out another writ of habeas corpus upon the same defective original commitment, the practice was changed in that year.

In the case of The King v. Marks,' Grose, J., said:

"There is no doubt of the power of this court" (Kings Bench) "to bail, if they see occasion, in all cases of felony, even in case of murder, though there should be no doubt of the validity of the warrant of commitment. On the other hand, there is as little doubt as to their power of remanding, notwithstanding the warrant of commitment be defective; and it is the constant practice of this court to remand prisoners in such cases if it appear on reading the depositions that there is a fair ground to authorize them."

Le Blanc, J., said: "This court have clearly a right to bail the parties accused in all cases of felony, if they see occasion, whenever there is any doubt either on the law or the fact of the case. And it is equally clear that though the warrant of commitment be informal, yet if upon the depositions returned the court see that a felony 419] has been *committed, and that there is reasonable ground of charge against the prisoners, they will not bail but remand them. The same rule applies with respect both to the law and the fact; unless we see reason to doubt the truth of the fact charged, prisoners must be remanded; and the same consequence follows, unless we

1 3 East, 157.