Ex parte Adams. instance in the English law, of a judge in vacation undertaking to decide upon the legality of a commitment in execution by the judgment of any court of record, and much less, of a court of the highest degree." He even extended the rule so far as to hold, that if, upon the return of a writ of habeas corpus awarded in vacation, it appears that the prisoner stands committed by the judgment of a court of record or other court of competent authority, the judge is bound immediately to remand the prisoner, and he has no power to examine and decide, touching the legality of the judgment, or the jurisdiction of the court. These questions belong to the cognizance of the supreme court, as possessing general appellate powers, and as having the supreme control of all inferior courts. While I most respectfully dissent from one position taken by the chief justice, to wit, that a judge, on trying the habeas corpus, "cannot examine the jurisdiction of the court; " yet I feel confident that the other position is fully sustained by the law, to wit, "If the jurisdiction be admitted, the judge has no power to decide touching the legality of the judgment, or whether it be erroneous or not." In relation to a judgment made by a court without jurisdiction, the chief justice stated in the same opinion, that a a proceeding without jurisdiction is void and a mere nullity." The power to discharge on habeas corpus from a commitment for contempt, came up before the supreme court of the United States, in Ex parte Kearney, 7 Wheat. R. 43, and in that distinguished tribunal where Story then held a seat, and John Marshall presided; it was unanimously held, Judge Story delivering the opinion of the court, that a "writ of habeas corpus is not deemed a proper remedy, where a party was committed for a contempt by a court of competent jurisdiction, and that if granted, the court could not inquire into the sufficiency of the cause of commitment, and they were bound to remand the party unless they were prepared to abandon the whole doctrine, so reasonable, just, and convenient, which has hitherto regulated this important subject." The law has been ruled in the same way in Indiana, in Kentucky, in Georgia,, Ex parte Adams. and in Tennessee. 1 Breese, 266; 1 Black. 166; 1 J. J. Marsh. 575; Charlton, R. 136; 5 Yerger. The argument has been pressed very earnestly, that unless the power to discharge on habeas corpus exists, an arbitrary and irresponsible power may exist in the courts of the country, by which the rights and liberties of the citizens may be taken away without remedy. The same argument was used before the supreme court of the United States, in Ex parte Kearney, before referred to. But that court replied, "where the law is clear, this argument can be of no avail, and it will probably be found that there are also serious inconveniences on the other side. Wherever power is lodged it may be abused. But this forms no solid objection against its exercise; confidence must be reposed somewhere, and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice." In the decision made by Judge Thacher, in Ex parte Hickey, 4 S. & M. 751, I do not find any thing which conflicts with the view of the law taken by me in that case. Judge Thacher discharged Hickey among other reasons, upon the ground that the circuit court had no power or jurisdiction to commit for contempts not committed in the presence of the court. The power to commit in that case was denied, but I apprehend if the power had been admitted, the judge would not have decided that he had any right to examine whether it had been erroneously exercised or not. Indeed, I think the power to discharge on habeas corpus, from a commitment for contempt, ordered by a court of competent jurisdiction, is expressly taken away by the habeas corpus act itself, which among other things, declares that a person shall not be discharged out of prison who is suffering imprisonment under lawful judgment, founded on a conviction of some criminal offence." Hutch. Code, 1002. It would not be pretended, if the petitioner had been convicted by the verdict of a jury of a misdemeanor, and sentenced by the court to imprisonment therefor, that I could discharge. him, on the ground that erroneous and improper charges were given by the court, or that illegal and improper evidence was Ex parte Adams. admitted against him; every person would admit that I could not enter at all into such an investigation, and that it could only be done by an appellate court. Yet the supreme court of the United States declares there is no distinction in principle between that case and a judgment of imprisonment against a party for contempt, for when a court commits a party for contempt, their adjudication is a conviction, and their commitment in consequence, is execution." Ex parte Kearney, 7 Wheat. 43. If, then, it should appear from the return to a writ of habeas corpus, that the party was imprisoned by the judgment of a court of competent jurisdiction for a contempt committed in its presence, I would feel precluded by the statute from discharging the prisoner. It is true, the high court of errors and appeals, has held that on a writ of error and supersedeas being awarded in a criminal case not capital, they may admit the prisoner to bail, to appear and abide the judgment of the appellate court. Whether a writ of error would lie from a judgment of imprisonment for contempt in this State, has never been decided. In some States it has been held, that a writ of error would lie. In others, that it would not. Should it be held, that it would lie in this State, I presume the party would be bailable till trial and judgment, as in other cases of criminal convictions. From a review of the law applicable to this case, I am satisfied, if it appeared from the return that the prisoner was imprisoned by the judgment of the circuit court of Hinds county for a contempt of the authority of that court, that I could not enter into an examination in this proceeding, whether the questions asked the witness, and refused by him to be answered, were legal or not. I think that would be a question which could only be reviewed, if it could be reviewed at all, by an appellate tribunal, and I would therefore be bound to remand the prisoner. But the return set out in this case is, in my opinion, insufficient to justify his imprisonment. It does not appear from that return that there has been any conviction or judgment of the circuit court of Hinds county, that Mr. Adams was guilty of a contempt. The order set out is, that "George H. Adams be sent to jail, and remain there until he signifies his assent to the Ex parte Adams. court to answer questions to the grand jury," &c. It was formerly held, that a judgment for contempt, which did not set out the particular cause on which it was founded, was a nullity, and that a party was entitled to be discharged from it. But the more recent cases have laid down the rule, that the judgment will be sufficient if it express on its face, that it was for a contempt generally, and that the specific cause need not to be set out. Iredell, R. 36; E. C. L. R. 1. But it is clear, that a general order to imprison a party, unless he has been convicted either by a jury or by the court, is a mere nullity. The law requires, that, before a sentence of imprisonment shall be passed against a party, that he should be first convicted of an offence. In ordinary cases this conviction must be by the verdict of a jury. In the case of contempts, it may be by the judgment of the court. Still, in either case, the record must show a conviction. Now, it will be seen from this return, that there is no judgment of imprisonment for a contempt generally, or for a contempt in refusing to answer questions. There is not any conviction or adjudication by the court, that Mr. Adams had been guilty of a contempt. Without such judgment, the court had no right to commit him to prison, nor the sheriff to detain him. It is true, and was admitted on the argument, that Mr. Adams did refuse to answer questions asked by the grand jury, and it may be true that the court considered that a contempt for which he deserved imprisonment, but no such judgment has been rendered in the case, and however many contempts the prisoner may have committed, it is not lawful to imprison him until convicted thereof by the judgment of the court, which judgment and conviction must appear by the record. For this reason, I direct that he be discharged from custody. INDEX. ACTION. 1. This suit was brought to recover the title of the wife in a slave, and to that 22. 2. The judgment is erroneous in blending the hire and value of the slave, and 3. Where a question has been once adjudicated by the probate court, a suit 4. The judgment as to the security is void, and does not affect the judgment 5. A suit is properly brought on a sheriff's bond, in the name of the governor, 8. The bond upon which suit was instituted was declared in the complaint as 9. The statute of jeofails is very broad, but it cannot be extended to a case 10. The right of possession, or a right of property which, when it exists in |