In re State

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 dis ⁵⁹² orderly 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 ⁵⁹³ 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 ⁵⁹⁴ 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 ⁵⁹⁵ 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 ⁵⁹⁶ 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 ⁵⁹⁷ 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 ⁵⁹⁸ 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. ⁵⁹⁹ 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 ⁶⁰⁰ 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 ⁶⁰¹ 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, ⁶⁰² 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