In re State

54 Md. 572 | Md. | 1880

Alvey, J.,

delivered the opinion of the Court.

This case is brought into this Court under the 3rd section of the Act of 1880, chapter 6.

It appears that, upon due information made, a person by the name of Mary or Margaret Glenn was arrested and tahen before a justice of the peace, acting as a police justice, in the City of Baltimore, charged with being habitually a disordeidy person, leading a dissolute and disorderly course of life. Upon trial and examination, the party was convicted, and sentenced by the justice to the Maryland House of Correction, located in Anne Arundel County, for the period of six months, the commitment bearing date the 14th day of May, 1880. On the 29th of May, 1880, a writ of habeas corpus was issued by Judge Yellott, one of the Associate Judges of the Third Judicial Circuit of the State, composed of the counties of Baltimore and Harford, directed to the superintendent of the House of Correction, requiring him to produce the body of Mary or Margaret Glenn, together with the cause of her detention, on the 10th of June thence ensuing. The superintendent made due return to the writ, produced the body of the prisoner as he was required, together with a copy of the commitment as cause and justification of her detention. The commitment states upon its face, that information had, in due form, been made; that the prisoner had been produced before the justice, and that upon examination, it had been fully proven that the prisoner was a vagabond, and •a disorderly person as charged, and not insane; whereupon she was convicted “of being deemed and of being an habitually disorderly person in this, that she leads a dissolute and disorderly course of life;” wherefore she was sentenced to the House of Correction for the period of six months. This conviction and commitment are founded on the 10th section of the Act of 1878, ch. 415, which provides “that it shall be the duty of any justice of the peace of this State to cause to be arrested, and, on due proof, to commit any vagrant, habitually disorderly person (not insane,) to said House of Correction for a period not less than two months nor more than six months.” The Judge upon the return to the writ of habeas corpus, adjudged the prisoner to be entitled to her discharge, and, accordingly, discharged her, upon the ground, that it is not competent for the Legislature to confer jurisdiction upon a justice of the peace to try ando convict a party charged with an offence such as that with which the prisoner was charged. In other words, the Judge held that the jurisdiction under which the prisoner had been convicted was unconstitutionally conferred, and therefore the conviction was simply a nullity; and if he he right in this conclusion, the prisoner was certainly properly discharged.

As the case is presented to this Court, four questions arise for consideration:

1st. Whether the case is properly before this Court for review ? and if it is,

2nd. Whether the Judge below had power and jurisdiction to issue the writ of habeas corpus, to the keeper of a prison located beyond the limits of the Circuit in which he is Judge?

3rd. Whether the Legislature can, constitutionally, confer summary jurisdiction upon a justice of the peace to try and convict a party for an offence, such as that with which the prisoner was charged ? and,

4th. Whether, by the nature and extent of the jurisdiction exercised upon habeas corpus, the prisoner was properly discharged ?

1. The first of these questions depends upon the construction of the third section of the Act of 1880, ch. 6. That section provides, that whenever any Court or Judge, having jurisdiction in the premises, shall release or discharge a party on habeas corpus, charged with the violation of any statute of this State, upon the ground that such statute is unconstitutional and void, in whole or in part, because contrary to the Constitution of the State; or of the United States, it shall be the duty of the Court or Judge so ordering the discharge, to reduce his opinion to writing within five days after such discharge, and to transmit the original papers in the case, together with a copy of the order of discharge, and of his opinion, under his hand and seal, to the clerk of this Court; and that it shall he the duty of this Court “to consider the papers so transmitted to its clerk, including said order of release or discharge, and said opinion, at the earliest practicable period after the receipt thereof by the clerk, and to give its opinion in writing upon the case so presented; and the said opinion so given shall -have and possess the same authority as if the same was filed in a case formally heard and determined in said -Court on appeal.”

The mode here adopted of bringing a case into this Court is certainly very much out of the ordinary course and it is not at all to be commended. This is not a Court of original jurisdiction, and no informal or unusual mode of presenting cases for its consideration can make it so. Ex parte O’Neill, 8 Md., 227; State vs. Shields, 49 Md., 301. It would certainly have been much better, as has been practically illustrated by what has occurred in this case, if, instead of requiring the Judge to certify the original papers to this Court, he had been required to file the papers in the proper clerk’s office in the county where the proceedings took place, and the clerk had been required to send up a transcript, as contemplated by the Constitution, Art. 4, sec. 18, and the rules made in pursuance thereof. But whatever may be thought of the mode adopted, we can have no doubt of the competency of the Legislature to prescribe it. It could certainly require the Judge to certify his judicial acts or proceedings to this Court for review; and though no formal or regular appeal is required to be entered from the order of the Court or Judge below, yet, as the case must be heard here as upon an appeal, at the instance of the State, the directions of the statute to transmit the proceedings must be taken in lieu of the formal entry of an appeal. There is no mutuality in the right of appeal, it is true, as given by the statute (the Court or Judge being required to transmit the papers to this Court only in the event of the discharge of the prisoner for the reasons stated;) but while that may give rise to unfavorable criticism as to the justness of the provision, it does not affect the question of legislative power, with which we have to deal. The case being legally before us, the judgment of this Court is to be taken to be final and conclusive as in other cases of appeal. Const., Art. 4, sec. 15. If the time for which the party was committed has expired, the judgment of reversal may Re without effect in the particular case ; but if the time has not expired, he would be liable to re-caption.

2. The next question arises under the first and third sections of Article 43 of the Code, as amended and reenacted by the first section of the Act of 1880, ch. 6. And this question is, whether it be competent to the Legislature to curtail and restrict the power and jurisdiction of the several Judges of the State, as heretofore exercised, ■over the subject of the writ of habeas corpus.

The first and third sections of the Article of the Code, as amended by the Act of 1880, ch. 6, to which we have already referred, limit and restrain the power and jurisdiction of the Circuit Judges in cases of habeas corpus to ■the limits of the judicial Circuit for which they may have been elected ; and the power of the Legislature to impose this restriction is supposed to exist in the power to regulate the issuing of the writ; and such power would ■certainly exist, if there be nothing in the Constitution to inhibit it. The Constitution, Art. 4, sec. 6, provides, that all Judges shall, by virtue of their offices, be conservators of the peace throughout the State; and by sec. 55 of Art. 3, it is provided, that the Legislature shall pass no law suspending the privilege of the writ of habeas corpus. What constitutes the privilege of the writ,—whether it be the right to it as defined by law at the adoption of the Constitution, or whether it be according to the pleasure of any subsequent Legislature, however restricted that privilege might be, may admit of serious question. There is no necessity, however, that we should pass upon that question in this case. In the case of Ex parte O’Neill, 8 Md., 227, the Court of Appeals, as then constituted, held that it had no original jurisdiction in cases of habeas corpus, hut that power and jurisdiction to hear and decide upon cases of habeas corpus belonged to the individual Judges of the Court, under the Act of 1809, ch. 125, then in force, and also under that provision of the Constitution which declared that all the Judges of the common law Courts of the State should, by virtue of their offices, he conservators of the peace throughout the State. That construction of the clause in the Constitution was maintained upon the ground, that every case of unlawful imprisonment is a violation of the peace of the State, as well as of the right of the citizen, and that it was within the power of the Judge to use the writ of habeas corpus as a means to effect the right of such case. And if that decision is not to he overruled, it would seem to be conclusive of this question.

It is urged, however, that that decision, so far as it holds that the Judges may exercise jurisdiction over the habeas corpus, by virtue of their power as conservators of the peace, is not supported by authority, and should not, therefore, be followed in this case. But we are not disposed to take that view. The provision of the Constitution of 1851, in respect to which the decision was made, was incorporated into the Constitution of 1864, and also into the existing Constitution, adopted in 1867, without change or modification in terms, and, of course, with full knowledge of the construction placed thereon by the Court of Appeals. This subsequent adoption of the provision, with its meaning and import defined, is equivalent to declaring in terms that the Judges should have power in cases of habeas corpus co-extensive with the limits of the State; and therefore their power to issue the writ cannot, by an Act of the Legislature, be restricted to the limits of their respective circuits. With such a construction of the provision of the Constitution, it is no more competent to the Legislature to so restrict the power to issue the writ of habeas corpus, than it would he to deny to the Judges, as conservators of the peace, power to commit offenders or to take their recognizances to keep the peace.

Nor is the construction that a Judge of a superior Court may, by the common law, issue the writ of habeas corpus out of Court, by virtue of his powers as a conservator of the peace, so forced or novel, as would seem to he supposed.

In England, by the common law, the Lord Chancellor and all the Judges of the Court of King’s Bench, among other high officials, by virtue of their offices, are general conservators of the peace throughout the whole kingdom, and may commit all violators of the peace, or hind them in recognizances to keep it; hut the other Judges are only so in their own Courts. 1 Black. Comm., 350. Lord Coke seemed to have supposed, that, at the common law, the habeas corpus could only he issued by the Judges of the King’s Bench during term-time, but that it could he issued by the. Lord Chancellor during vacation. 4 Inst., 81, 182. And such may have been the practice in his day. But in Jenke’s Case, 6 How. St. Tr., 1189, which occurred in 1676, both Lord Chancellor Nottingham and the Chief Justice of the King’s Bench, refused the writ of habeas corpus during vacation, upon the ground of the want of authority. Subsequently, however, the subject underwent most thorough consideration, and in 1758, in their opinions to the House of Lords, a majority of all the Judges held, that, at the common law, any Judge of the Court of King’s Bench could, during vacation, by his simple fiat, direct the issue of the writ; and in Crowley’s case, 2 Swanst., 1, Lord Eldon, in perhaps the most celebrated opinion of his judicial life, and after the most thorough investigation, held that the Lord Chancellor could issue the writ of habeas corpus, at common law, in vacation ; and thus overruled the decision of Lord Chancellor Nottingham in Jenke’s Case. In the reasoning upon the subject there was a great diversity of views ; but it is really difficult to determine upon what ground, independently of the statutes of habeas corpus of 16 Car. 1, ch. 10, and 31 Car. 2, ch. 2, that either the Judges of the King’s Bench or the Chancellor could issue the writ in vacation, if it were not by virtue of their powers as conservators of the-peace; and, as it appears, that was one of the grounds upon which the opinion of Mr. Justice Wilmot (after-wards Lord Chief Justice of the Common Pleas,) given to the House of Lords in 1758, in support of the power of' the Judges of the King’s Bench, proceeded. Op. & Judgts. of Ld. Ch. Justice Wilmot, pages 94, 95.) And Lord Eldon, in Crowley’s Case, at page 65, in referring to-this opinion of Lord Chief Justice Wilmot, upon which he much relies, states, that the Chief Justice “ argued also from the powers of justices of the peace; and it is to be recollected that the Judges of the King’s Bench are all .justices of the peace, though the. Judges of the-other Courts are not.” Since those opinions it has been regarded as settled in England, that not only the Lord Chancellor, but any single Judge of the Court of King’s Bench, may, at the common law, by fiat, during vacation, direct the issuing of the writ to run into all parts of the-Kingdom. The law was so laid down by Blackstone (3 Comm., 131,) and it has been so expressly ruled in the comparatively recent case of Leonard Watson, 9 Ad. & El., 731. That all conservators of the peace have not this power is, of course, conceded; but because some do not possess it, furnishes no good reason why others may not. The magistrate, as a conservator of the peace, possesses more extensive powers than those possessed by an ordinary constable; and so the powers possessed by the Judges, under the Constitution^ Art. 4, sec. 6, are more extensive than those possessed by the ordinary justices of the peace.

It follows, from the views we have expressed, that the attempted restriction upon the power of the Judges over the writ of habeas corpus is nugatory and without eífect; and that the Judge helow had jurisdiction to grant the writ, though directed to the superintendent of a prison beyond the limits of his Circuit. This conclusion, however, in no manner affects the other sections of the Act of 1880, ch. 6.

3. We come now to the third question, and that is one of more than ordinary importance. The’ prisoner was discharged hy the Judge helow upon the ground, as it appears in his opinion, that the trial and conviction by the justice of the peace were unconstitutional, and therefore void;' that, as held hy the Judge, while a party accused of offending against the law may he committed for trial by a justice of the peace, such party cannot be constitutionally and lawfully tried until he has been indicted hy a grand jury, and that the trial should he had in a Court of criminal jurisdiction, either before a jury or the Court, at the election of the party accused.

And this broad general proposition is supposed to be maintained, in its application to cases of the nature of the one under consideration, by certain declaratory principles and provisions found in the Declaration of Rights and the Constitution of the State; such as that the people are “ entitled to the common law of England, and the trial by jury, according to the course of that law” (Dec. of Rights, Art. 5;) “that in all criminal prosecutions, every man hath a right to he informed of the accusation against him; to have a copy of the indictment, or charge, in due time to prepare for his defence, &c., and to a speedy trial hy an impartial jury, without whose unanimous consent he ought not to be found guility.” (Ib., Art. 21.) “ That no man ought to he taken or imprisoned, &c., or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land.” (Ib., Art. 23.) “In the trial of all criminal cases, the jury shall he the judges of law, as well as of fact.” (Const., Art. 15, sec. 5.) All the declatory principles quoted from the present Declaration of Eights are to he found incorporated in all the Declarations of Eights since the foundation of the State government in 1776; and the provision declaring the jury to be judges of the law as well as of the facts, has been a constitutional provision since 1851 ; though it has been decided to be only declaratory of the pre-existing common law upon the subject. Franklin vs. State, 12 Md., 236.

In England, notwithstanding the provision in the Magna Charta of King John, Art. 46, and in that of 9 Hen. 3, ch. 29, which declares that no freeman shall be taken, imprisoned or condemned, “but bylawful judgment of his peers, or by the law of the land,” it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offences ; and this jurisdiction has been largely increased and extended in modern times, as will be seen by reference to Burn’s Justice, tit. Conviction; Bacon’s Abr., tit. Justice of the Peace, and Paley on Summary Convictions, 5 Ed. Work-houses and Houses of Correction, principally occupied by parties convicted by justices of the peace, have been maintained, certainly from the days of Queen Elizabeth to the present, as parts of the police system of that country ; and both the jurisdiction and the means of punishment are deemed essential to the good government and well being of society there, and it is not less so here. Mr. Justice Blackstone, whose Commentaries were first published in 1765, in speaking of summary convictions, says: “By a summary proceeding I mean principal^ such as is directed by several Acts of Parliament (for the common law is a stranger' to it, unless in the case of contempt,) for the conviction of offenders, and the inflicting of certain penalties created by those Acts of Parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned hy the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendance to try every minute offence.” 4 Com., 280. And again, he says: “Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts, and corporal penalties denounced by Acts of Parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited, and which used to be formerly punished by the verdict of a jury in the Court leet.” Ib., 281. And Mr. Chittt, a writer of high repute upon the law of both civil and criminal procedure, in speaking of the former and present rules ■of construction of the summary proceedings before justices of the peace, and how the superior Courts were formerly inclined to he astute in discovering defects in convictions hy justices of the peace, in the exercise of the summary jurisdiction, says : “ But these absurdities, the indulgence of which might induce a suspicion that the superior Courts were formerly jealous of those inferior jurisdictions, have for some time been abandoned; and now the doctrine is, that whether it was expedient that those jurisdictions should have been erected, was matter for the consideration of the Legislature; but that, as long as they exist, the Courts ought to go all reasonable lengths to support the decisions of justices, especially as in whatever light they were formerly seen, the country are now convinced that in general they derive considerable advantage from the exercise of the powers delegated to justices, and therefore, in modern times, they have received proper support from the Courts of law.” 2 Chitty Genl. Pr., 130, 131; see also, Rex vs. Thompson, 2 Durnf. & East, 18.

At present, in England, the various offences falling under the heads of idle, vagrant, and disorderly persons, and made subject to the summary jurisdiction, are defined and classified, and the punishments prescribed, by Stat. 5 Geo. 4, ch. 83, as amended by Stats. 1 & 2 Vict., ch. 38; 31 & 32 Vict., ch. 52, and 32 & 33 Vict., ch. 99; an analysis of which is given in 2 Broom & Had. Com., 467. The punishment prescribed in those Acts is imprisonment and hard labor. The exercise of the summary jurisdiction, therefore, is not, in England at least, regarded as being in violation of the fundamental guarantees of the rights and liberties of the people; and the personal liberty of the-subject- at this day is as well and jealously protected in England as in any other country, where the principles of Magna Charta and of the common law are enforced.

[With us there has been no time since the earliest days of the colony that the summary jurisdiction by justices of the peace has not been exercised, in one form or another, over parties offending against the peace and good order of society. This jurisdiction has been exercised, sometimes under British statutes in force here, but more generally under statutes passed by the Colonial and State Legislatures. The justice of the peace has always here been regarded as an important judicial functionary, and a large portion of the police power of the State has been enforced through his instrumentality]) He can not only make preliminary examination and commit the party accused for trial, hut he may, in some instances, try, convict, and commit the party accused in execution of his judgment. If complaint he made of apprehended injury or breach of the peace, he can require sureties to he given by the party proceeded against, and, in default of sufficient sureties, commit him to prison; and so, where there is a proper-foundation laid, he may require a party to give surety for his good behaviour towards the State and the people generally, under the Stat. 34 Ed. 3, ch. 1, and upon failure so to do he may commit the party to prison. If there he a forcible entry into and detainer of any lands and tenements, he may, under the Stats. 5 Rich. 2, ch. 1, and 15 Rich. 2, ch. 3, upon conviction, commit the party offending to prison. These statutes have been in force here from our earliest history, and are still in force; and we are not aware that it has ever been supposed that their provisions were in any way restrained or controlled by the declaratory provisions in the Declaration of Rights. There are a great many statutes upon the statute hook, relating to a great variety of subjects, prescribing tines, penalties and forfeitures, as punishment, for doing or omitting to do certain things; and by many of those statutes jurisdiction has been given to justices of ’the peace, from whose judgments no appeal was provided for until within a comparatively recent period. By the Act of 1 ITT, ch. 6, known as the Fines and Penalties Actjembraced in the 40th Article of the Code, and which Act was passed at the first session of the State Legislature after the adoption of the Declaration of Rights and the Constitution of lYId, power of conviction and imprisonment was conferred on the justices of' the peace, without appeal. It is there provided that allj fines, penalties and forfeitures imposed by any law then in1 force, or any law thereafter to he passed, and where there was no mode of recovery or enforcement designated in the statute, such fines, penalties ¡and forfeitures, if not exceed-j ing five pounds, now one hundred dollars, should he recov-j ered in the name of the State before a justice of the peace, 1 of the county where the offence was committed; and if such fines, penalties or forfeitures were of greater amount, they should he recovered by indictment or action of debt in the County Court. And in case of conviction before a justice of the peace, the defendant, upon failure to pay,. was either to he committed to jail, or an execution might go against his property, as the justice might determine. And although, by subsequent statute, the proceeding before the justice for the recovery of fines and penalties is directed to be in form as for,the recovery of small debts, yet the recovery is had as punishment for an offence against the law of the State, and such offences, in the classification of crimes, are misdemeanors, and may be the subject of indictment, either at common law or by statute, except where the justice is given exclusive jurisdiction; and if the party accused should fail to discharge the recovery rendered against him, he is liable to imprisonment, notwithstanding^^b^BbhlAtion of imprisonment for debt. State vs. Mace, 5 Md., 337, The statutes of 1781, and 1785, in regard tcNbasiaaMy may also be mentioned. By those statutes, now forming the 55th Article of the Code, upon the production of the evidence specified, the justice is required to have the party arrested and brought before him, and upon judgment rendered, if the party fails to furnish the security required either to indemnify the county or to prosecute an appeal, he must be committed to prison, irrespective of his inability to furnish the security. jThese statutes have all co-existed with the several Constitutions of the State ; and in the various cases that have •occurred, involving their provisions, we have never heard it contended that the proceedings thereby authorized were not constitutional, because the trial by jury was not provided for, either in the first instance or by an appeal. The framers of all our Constitutions were well acquainted with the history of legislation in regard to the exercise of summary jurisdiction, both in England and in this State, and of the needs of society for summary protection against the vicious, idle, vagrant and disorderly portion of its members; and it is difficult to suppose that, by any provision incorporated in those instruments, it was intended to nullify previous legislation, altogether interdict the use of a long and well-established summary jurisdiction for the protection of society, and thus radically change and seriously impair the whole police system of the State. Eor if offenders of the class embraced in the .Ant of LS'78, only he readied by formal indictment and trial bv iurv in the criminal Courts of the State, the formality and delay attending that mode of proceeding " would either operate as an immunity to that class of offenders, or an onnression of them_in - many cases. The parties affected are most generally of the transient pauper class, and if committed for trial, the larger portion of them, not being able to furnish bail, would have to remain in close confinement in the jails, until the time of trial; and this confinement might, and in the counties where Courts are held but twice or three times a year’, frequently would, extend to a period greater than that for which they could he consigned to the House of Correction on conviction. This mode of procedure, therefore, would not only prove oppressive in a great many cases to the parties arrested, but it would be exceedingly onerous to the public in the large expense attending the prosecutions. Andjjas to the danger of oppression from erroneous summary convictions, all that is removed by the very ample means of relief jcrovided by law.

The meaning of the provisions of the Declaration of Rights would seem to he plain. When it is declared that the party accused has the right to he informed of the charge against him, and to a copy of the indictment or charge, if required, to enable him to prepare for his defence, that simply means, that no prosecution can be conducted in secret; hut that all prosecutions shall be open and public, upon specific charges set forth by way of indictment, or in such other form as the nature of the prosecution may require ; and that the party shall not he denied full opportunity to make his defence. And when it is declared that the party is entitled to a speedy trial by an impartial jury, that must be understood as referring to such crimes and accusations as have, hy the regular course of the law and the established modes of procedure, as theretofore practiced, been the subjects of jury trial. It could never have been intended to embrace every species of accusation involving either criminal or penal consequences. If that were the construction, then, all cases of contempts, instead of being the subjects of a summary jurisdiction as they have always been treated, could only be tried by jury. [The design, manifestly, of the provisions of the Declaration of Rights to which we have referred, was simply to declare and make firm the preexisting rights of the people, as those rights had been established by usage and the settled course of law^J If all cases of a penal or criminal nature, where conviction may involve as a consequence, either directly or alternatively, the imprisonment of the party, must he tried upon indictment and by jury, how is the police power in the hands of the various municipal corporations to be enforced ? If the State has no power to provide by law for the summary trial and conviction of vagrant and disorderly persons by justices of the peace, it would clearly follow that no such power could be granted to be exercised under charters or ordinances of municipal corporations ; and the consequence would he that, for the violation of all mere police ordinances, prescribing penalties for their infraction, it would be the right of the party accused to insist upon indictment and trial by jury. ■Such' a mode of proceeding, if it were practicable, has never been contended for; nor could such contention be maintained for a moment.

We are therefore of opinion that the provision of the Act of 1818, ch. 415, sec. 10, conferring jurisdiction upon justices of the peace to try, convict, and commit to the House of Correction, vagrant and habitually disorderly persons, is constitutional, and that the Judge below was in error in holding otherwise.

4. The next and last question is, what was the nature of the jurisdiction exercised by the Judge below, and what was the scope aad extent of the inquiry opened before him, upon the return to the writ of habeas corpus ?

The writ of habeas corpus is a high prerogative writ, given by the common law, and made effective and enforced by statute, the great object of which is the liberation of parties who may be imprisoned or detained without sufficient cause. By the command of the writ the party to whom it is directed is required to produce not only the body of the party detained, but the date and cause of the ■caption and detention, in order that the Court or Judge may examine and determine whether the cause or commitment be legal and sufficient for the detention complained of. In this case, the superintendent of- the House of Correction, in obedience to the writ, produced the body of the prisoner, and made return to the writ, and exhibited, as part of the return, the commitment of the justice before recited. There was no other proceeding produced on the return of the writ. The record of conviction was not before the Judge, nor was evidence offered of the guilt or innocence of the prisoner. The case was heard and determined upon the return to the writ alone. And hearing the case on such return, in a case like the present, where .the party has been committed in execution of a sentence, the sole inquiry is, generally, whether the justice making the commitment had jurisdiction of the offence recited, and of the person of the party accused ; and whether the Judgment or sentence recited in the commitment be such-as the justice was authorized by law to render or impose. We have determined that the justice had jurisdiction of the offence, with the power to try, convict and commit ■therefor ;• and the commitment in this case reciting the •conviction, that conviction must be presumed to be lawful ■and proper until tbe contrary is made to appear. Upon ■no other principle could proceedings of this character be made effectual. As a general proposition, therefore, in such cases as this, mere errors or irregularities, if there be any, committed by the justice within the sphere of his jurisdiction, cannot be inquired into collaterally on habeas corpus. The writ of habeas corpus cannot be made, unless it be by express statute, to perform the functions of a writ of error, in bringing under review a judgment or sentence of a competent tribunal, simply for errors or irregularities in the proceedings, or in the rendition of the judgment or sentence ; that must be done by some more direct and appropriate proceeding. Bell vs. The State, 4 Gill 301, 305; Rex vs. Suddis, 1 East, 306; Ex parte Watkins, 3 Pet., 193; Ex parte Reed, 100 U. S., 13, 23. An im, prisonment, under a sentence by a Court or magistrate of competent jurisdiction, is not unlawful, unless the sentence, for some cause to be made apparent, be not merely erroneous but an absolute nullity ; though if it be shown to be such nullity, the party is entitled to his immediate discharge. 4 Gill, 305; 3 Pet., 193; 100 U. S., 23; Comm. vs. Leckey, 1 Watts, 66.

Whatever may have been the former doctrine of construction as applied to commitments in execution by magistrates or tribunals of special and limited jurisdiction, the doctrine is now perfectly well established, that the construction of such commitments must be liberal in support of the lawfulness of the exercise of the jurisdiction, when considered on returns to the writ of habeas corpus. This is well exemplified in the cas.e of Rex vs. Suddis, 1 East, 306, to which we have already referred.

In the case of Rex vs. Rogers, 1 Dowl. & Ryl., 156, where a prisoner was committed by a justice of the peace, under a warrant of execution, which recited that he had been convicted, as in this case; upon return to a writ of habeas corpus, it was objected that the warrant of commitment did not state on its face all the proceedings prescribed by the statute; to which Abbott, 0. J., speaking for the Court, replied,—“ We are hound to presume, until the contrary is shown, that there has been a good conviction, and that the magistrate has done everything required of him by law; ” and in the conclusion of the opinion he said, “ as we are hound to presume that there was a good ■conviction before commitment, I think we ought not to ■discharge the defendant.” And substantially the same proposition was repeated by the Court in the case of Rex vs. Taylor, 7 Dowl. & Ryl., 622. See, also, the case of Brenan & Galen, 10 Ad. & Ell. (N. S.,) 492. For instance, and as an illustration and application of the principle here decided, if the commitment of a magistrate acting under the Act of 1880, ch. 31, should not state on its face that the party had failed to pray a jury trial, (a privilege secured to him by that Act,) no Judge exercising authority under habeas corpus would he justified in discharging the party on that ground. He would have no right to presume that the magistrate had not complied with the statute in all respects and afforded the prisoner ■all the privileges to which he was entitled under the law.

It is competent, certainly, to the prisoner, under the ■statute, to controvert the facts stated in the return to the writ; and he may, if he can, show that there has been no conviction in fact, or that it is simply void for the want of jurisdiction in the magistrate to make it; hut if he desires to go behind the conviction recited in the warrant of commitment to question the regularity of the proceedings upon which t-h.e conviction is founded, or to impeach the conviction itself for errors therein, other than the want of jurisdiction in the premises, he should bring up the record of conviction by certiorari for examination on the return of the writ of habeas corpus ; for the latter writ does not bring up the record of conviction, nor does it, ordinarily, open the proceedings upon which the ■conviction is founded for review. The law in respect to this subject is well stated in Bacon’s Abr., tit. Habeas Corpus, B, 4, where it is said, “If a person he in custody,, and also indicted for some offence in the inferior Court, there must, heside the habeas corpus to remove the body, he a certiorari to remove the record; for as the certiorari alone removes not the body, so the habeas corpus alone-removes not the record itself, but only the prisoner with the cause of his commitment; and therefore; although upon the habeas corpus, and the return thereof, the Court, can judge of the sufficiency or insufficiency of the return and commitment, and bail or discharge, or remand the ■prisoner, as the case appears upon the return ; yet they cannot, upon the hare return of the habeas corpus, give any judgment, or proceed upon the record of the indictment,, order or judgment, without the record itself he removed hy ■ certiorari; hut the same stands in the same force it did,, though the return should he adjudged insufficient, and the party discharged thereupon of his imprisonment; and the Court below may issue new process upon the indictment.” And this applies as well to summary proceedings or convictions before justices of the peace as to proceedings in inferior Courts, where such Courts exist.. 2 Chitty’s Genl. Pr., 374, 375; Rex vs. Taylor, 7 Dowl. & Ryl., 622. But the writ of certiorari may not, like the writ of habeas corpus, he issued hy a Judge, hut must he issued ■upon the order of a Judge or of the; Court, by the clerk .thereof, under the seal of the Court, and he made returnable into the same Court; and it cannot be directed to-:any officer or magistrate of inferior jurisdiction .beyond ■the limits of the county from whose Circuit Court it •■may issue. Therefore, a Judge of the Circuit Court for Baltimore County could acquire no control or jurisdiction over ■the-proceedings of a justice of the peace in Baltimore City, by certiorari, in connection with the.7ia&eas corpus,

Nor does the writ of habeas corpus authorized hy section 12 of the Act of 1814, ch. 238, bring up-those proceedings ■for review. It is there provided that van y person cornmitted to the House of Correction, by a justice of the peace, may apply to any Judge for a writ of habeas corpus, and upon the return thereof, if the Judge “ shall deem that there is sufficient ground for so doing, he shall hear the evidence offered, and either discharge the applicant or modify or confirm the commitment.” This provision must have a reasonable and practicable construction; and, in addition to the regular inquiries open upon the return to the writ of habeas corpus, the design of the provision seems to be to furnish the party with the right of a summary and speedy appeal with respect to the merits or facts of the conviction. If the warrant of commitment recites a conviction within the jurisdiction of the justices the Judge may, if he shall think there is sufficient ground for it, hear evidence, whether it be the same that was offered before the justice of the peace or not; and if he is satisfied that the conviction, and the period of confinement, are right and just, he affirms the commitment and remands the prisoner, or he may modify the commitment as to the time of imprisonment, according to the evidence produced ; and if the evidence shows that the party is not guilty, or that he should not have been convicted, he will be discharged. But it could never have been the intention of the Legislature that this investigation or re-trial on appeal, as to the facts of the case, should take place in any remote part of the State beyond the limits of the county or city where the original conviction was had. It was not, certainly, the design that this re-trial of the facts before the Judge should be of an ex parte character, and the result be made to depend upon such evidence as the prisoner might think proper to produce. The State, clearly, would have a right to be represented by its prosecuting attorney, to produce witnesses, and cross-examine those produced by the prisoner. If that be so, the only rational construction that can be given the statute is, that this right of re-trial or re-examination on the facts of the case, upon habeas corpus, must take place within the county or city where the original conviction occurred. Otherwise, the State or county would he made to incur great expense, and the witnesses and the parties concerned in the prosecution would he subjected to great trouble and annoyance, in being required to attend (if attendance were practicable at all on such short notice as is usually given in these cases,) the hearings on habeas corpus, in remote parts of the State, away from the locality where the original trial was had. This could never have been the intention of the Legislature, and such a construction of the statute would go far to defeat the main object of the House of Correction, and to open the way for the discharge therefrom of all convicts committed thereto by justices of the peace.

(Filed 7th October, 1880.)

Inasmuch, therefore, as the warrant of commitment shows a good and valid conviction, and the Judge below-had no power or jurisdiction over the conviction for any errors or irregularities, in the proceedings upon which it was founded, and could not review the facts of the case as upon appeal, but was confined, as the case was presented to him, to the legal sufficiency or insufficiency of the return to the writ of habeas corpus, this Court is of opinion, for the reasons stated, that the Judge below was in error in declaring that the trial and conviction of the prisoner were unlawful, and therefore the order of discharge must be reversed, and it is so ordered.

Order reversed.