69

ted upon the Sheriff, it is difficult to speak with calmness.—
But I shall endeavor, to discuss the subject uninfluenced by
feeling. The able and eloquent, argumenf submitted by my
friend Mr. Latrobe covered entirely the case of the commis-
sioners, and presented clearly the relative position of the ac-
tois in this miserable drama. In the Sheriff's case there were
facts presented by the evidence which require, on the part of
your Honor, the severest reprobation of those who were con-
nected therewith. You may search the annals of jurispru-
dence from the earliest records down to the present day, with-
out omitting the period of Charles the Second, and you will
find no similar case on record.

But before I proceed to present the facts in this case, allow
me to inquire if it is true that if a party is incarcerated in
our jail, and the commitment is regular upon its face, and by
the authority of a competent officer, that he must lie there?
It cannot be, and it is not so, in this State, by your own au-
thority, and that of the Court of Appeals, who approved of
your decision in the case of Maulsby. There are numerous
cases in the books sustaining that, [Here the counsel refer-
red to several authorities.] This is not the case of the execu-
tion of a judgment, but in regard to a commitment, which is
mesne process, there can be no doubt upon the question of
the right to go behind a commitment. On page 637 of 13th
Maryland, you yourself have said "that it is competent for
the judge, notwithstanding the warrant of commitment is in
clue form and by a competent officer, to determine upon the
proof exhibited the real ground of the accusation."

The cases referred to by the counsel on the other side are
cases of judgment on contempt, and of execution issued upon
judgments rendered. But in reply to all the cases cited on
this point, I stand upon your own decision in the case of
Maulsby. To say that we cannot inquire into the cause of
commitment, and ascertain if there be sufficient ground there-
for, is to destroy the privilege of the great writ of habeas cor-
pus, of which we boast so much. But if we were compelled
to rely upon the commitment and on the papers returned in
this case, the defects in the case of the Sheriff are palpable
and numerous. In violation of the Constitution of the United
States and of our own bill of rights, the bench warrant for the
arrest of the Sheriff was issued without any oath to support
it, and he was dragged from his office to the Criminal Court.
Had the Judge of that Court any right to issue that writ ? By
the 26th Article of the Declaration of Rights it is declared
that all warrants without oath or affirmation, "to seize the
property or arrest the person of any citizen, are grevious and
oppressive." And yet this high officer is dragged from his
office and from the quiet exercise of the duties of his position
without the sanction of an oath, (3d Bailly, 38.)

While in the very execution of the process, through his