The State vs. Edward White, 1 Charlton Rep. 123

June 16, 1807. The opinion of the court was now delivered, by Jones, Judge : Upon the return of the habeas corpus the counsel for the prisoner moved, that he be discharged, or that he be bailed, to answer any charge that may be preferred against him. In support of the motion it was contended : 1.

That this court, in virtue of the general and superintending jurisdiction with which, by the constitution, it is invested, over all inferior judicatories, can interpose and control, and is bound, upon application, to interpose, and control the proceedings of such inferior judicatories, in all cases where such proceedings are violative of the constitution and laws of the state. 2.That even in England, the doctrine, that one court will not interfere to discharge a person committed for a contempt by another, is only true where such other court is of equal or superior dignity. 3.

That this commitment is not to be considered as .a commitment for a contempt, because it concludes, for “ safe custody but if so considered, such conclusion violates it. 4. That if considered as a commitment for a contempt in disobeying an order of court, it may be discharged by showing that such order is illegal. 5. That the order of the 4th May, 1807, is illegal, because, 1. The justices of the inferior court have thereby appointed an officer not known to the existing laws of this state. 2.

They have thereby required the clerk of the court of ordinary, to surrender up the records, and other papers attached to his office, without having removed him from such office, if they had the power so to do. 3. The person so appointed to receive the said records under the order of the said justices, was not legally authoris-ed to receive them, since, if his appointment was legal, he was neither commissioned or qualified. 4.

Edward White, having been commissioned by the governor, although appointed by the justices, and no period being given by law for the determination of his office, is entitled to hold the same during good behaviour; or, if during pleasure, during the pleasure of him by whom he is commissioned, and is not, therefore, liable to be removed by an order of the justices of the inferior court. For all which reasons the said order is illegal. 5. That the commitment is illegal, because no opportunity was afforded to the prisoner to purge the contempt alleged against him in the warrant of arrest. 6.

That the commitment is not founded on sentence or . _ judgment. 7. That the Superior Court, under the constitution, to review sentence, if there had been one in this case. 8. That if it had not jurisdiction generally, yet it has in this case, because it involves a jurisdiction which belongs exclusively to this court. And against the motion it was contended, 1. That the court of ordinary is a court of record, and has a right to punish for contempts. 2.

That the court of king’s bench will not interfere to discharge a person committed, for a contempt, by another court, when such other courtis of equal or superior dignity. Therefore, the Superior Court will not interfere in this case. 3. That by the 6th

section of the third

article of the constitution, the court of ordinary having the power to appoint a person to take-care of the records, it had, therefore, the, power to remove, at pleasure, notwithstanding the clerk is commissioned by the governor. 4. That no civil right can be investigated upon a return to a habeas corpus.

The question being one of delicacy and importance, affecting the powers of the court of ordinary, and thé rights of the clerks of the said courts, I took time to consider of it, and advise with the judges of the Western and Middle Districts, in order to establish a decision, as might be considered as settling the principle. The prisoner was in the meanwhile bailed to appear from day to day. Some delay has necessarily arisen from the distance at which the judges reside from this place. Their opinions have however at length been received, and duly considered.

In order to determine, upon the motion submitted by the prisoner’s counsel, it appeared to me important first to decide ; Whether, the court of ordinary is a court of record, or, Whether it be considered as having only the powers of the ecclesiastical courts in England, which are generally taken to be not courts of record. For whether the Superior Courts would judge of a contempt committed in the court of ordinary or not, depended much, in my opinion, upon a determination of this point, Charlton, A. G. Harris, and Bulloch, for the state.

Noel, Davis, and Berrien, for the prisoner, It appears then by the constitution, art. 3, sect. 6, “ The powers of a court of ordinary, or register of probates, shall be vested in the inferior courts, in each county.” These courts being courts of record established by the constitution, have the power to inflict punishments at the discretion of the court, for all contempts of their authority. All courts of reco d, (even the lowest,) may commit for a contempt, and without this power no court could possibly exist.

The law upon this subject is of immemorial antiquity, and there is not any period, when it can be said to have ceased, or discontinued. All courts of record have a discretionary power over their own officers, and are to see that no abuses be committed by them which may bring disgrace on the courts themselves. And all officers of courts of records, are punishable for disobeying the commands of such courts, or otherwise misdemeaning themselves in their offices. In proceedings for contempts, if the return shows a good cause of commitment, it will be valid though it may want form.

This court will not therefore discharge persons, committed for a contempt of the inferior courts ; and especially this court, will not discharge or admit to bail officers of such inferior courts, committed for a contempt against them. I give no decision on the other points. For these reasons, it is ordered that the prisoner be remanded. Major White, having afterwards complied with the terms imposed on him by the justices of the inferior court, he was discharged from his imprisonment by an order of that court.

He then applied for and obtained, from the judge of the Superior Court, a rule to show cause, why a mandamus should not issue to restore him to the offices, from which he has been removed, by the justices of the inferior court. Vide Min. Sup. Court, Let. F. p. 372. Cause was ordered to be shown on the first day of the ensuing term in January. In the mean time, however, the legislature interposedj and, by

an act of the general assembly, restored him to the office of clerk of the court of ordinary, and escheator of the county of Chatham, from which he had been removed by the justices of the inferior court. The rule for the mandamus being thus abandoned, the question, Whether the court of ordinary can remove their clerks at pleasure, notwithstanding his commission from the executive, remains judicially unsettled ; as, also, Whether the legislature can review the proceedings of a court, and restore to office, under all the circumstances of this case ; particularly as a mandamus appears to be the clear remedy under the 7th

section of the 3d

article of the constitution. The attachment was founded upon a disobedience to this order. Mr. Attorney General did, in the court below, exhibit the following interrogatories: “Interrogatories tobe administered to Edward White, Esq', charged with a contempt. “1. Did you refuse to deliver to Thomas Bourlce, Esq. the keeper of the records of the court of ordinary, the records, papers, and documents, appertaining to said court, and which had been in your possession as late keeper of said records! “ 2.

Did you, without the permission of the said court of ordinary, remove a part of the said records, papers, and documents, from their place of deposit; aDd what was your intention in doing so?” These interrogatories were, however, withdrawn, in consequence of an opinion expressed by their honours, the justices, that the flagrancy of the contempt superseded the necessity of this mode of proceeding. The clauses of the constitution referred to, are these, in the 3d

article of the constitution,

section 1. “ The Superior Court shall have final and exclusive jurisdiction in all criminal cases:” and “shall have power to correct errors in inferior judicatories by writs of certiorari.” Marb. and Crawf.

Dig. p. 27. “ The powers of a court of ordinary or register of probates, shall Revested in the inferior courts of each county, from whose decisions there may be an appeal to the Superior Court, under such restrictions and regulations, as the general assembly may by law direct; but the inferior court to vest the care of the records, or other proceedings therein, in the clerk, or such other person as they may appoint, and any one or more justices of said court, with such clerk or other person, may issue citations, and grant temporary letters, in time of vacation, to hold until the next meeting of the said court; and such clerk, or other person, may grant marriage licenses,” 6 Sect. 3 Art. of the Constitution.

Marb. and Crawf. Dig. 28.