12

mon law or under the habeas corpus act of 31 Car. 2, be con-
troverted with a view to the absolute discharge of the pris-
oner." (Page 276.)

An effort was made in 1758 to amend the law by act of
Parliament, but, was not successful. The author says, (p.
279) : "The seeds, however, which had been sown in the dis-
cussion upon the bill sprang up and yielded appropriate fruits
in American law, long before the passage of the statute of 56
George 3." He then refers to the various State laws on this
subject and the decisions of Courts upon them. Maryland is
not included in his enumeration, but a reference to the act of
1813 and the Code will show that our State is not behind any
in its legislation in favor of personal liberty, and in render-
ing this writ effectual for the accomplishment of its great end
of "liberating the citizen from illegal confinement."

The 12th section of the Code is as follows :

"Any person at whose instance or in whose behalf a writ
of habeas corpus has been issued may controvert by himself
or his counsel the truth of the return thereto, or may plead
any matter by which it may appear that there is not a suffi-
cient cause for his detention or confinement, and the Court or
Judge, on the application of the party complaining, or the
officer or other party making the return, shall issue process
for witnesses or writings, returnable at a time and place to
be named in such process, which shall be served and enforced
in like manner as similar process from Courts of law is served
and enforced; but, before issuing such process, the Court or
Judge shall be satisfied, by affidavit or otherwise, of the ma-
teriality of such testimony."

Under this law, as under the Pennsylvania statute, which
is somewhat similar in its provisions, the Judge will look
beyond the commitment in a criminal case, and hear extrin-
sic evidence, and go into an examination of facts, in order to
ascertain whether there is a sufficient legal cause for the de-
tention or confinement.

Such has been the construction of the act of 1813. In
Maulsby's case, 13 Md., 637, it was said, with the approba-
tion of the Court of Appeals, "Where a party is committed
upon mesne process, as upon a charge of crime, it is compe-
tent for the Judge, notwitstanding the warrant of commit-
ment set out in the return may be in due form and by a com-
petent officer, to examine testimony and to determine upon
the proof exhibited to him the real ground of the accusation,
and to bail or discharge the prisoner.

In these cases all errors in pleading have been waived, and
the evidence adduced must be considered; not for the purpose
of trying the case and deciding upon the guilt or innocence
of the parties accused. My office under the writ stops far
short of that, and casts upon me only the duty of deciding
whether upon the return and the proof there is any probable