Ex parte George Milburn

• Decision Date: 01 January 1835
• Citation: 34 U.S. 704,9 L.Ed. 280,9 Pet. 704
• Parties: EX PARTE GEORGE MILBURN
• Court: U.S. Supreme Court

34 U.S. 704

9 Pet. 704

9 L.Ed. 280

EX PARTE GEORGE MILBURN.

January Term, 1835

A RULE to show cause why a habeas corpus should not be awarded to bring up the body of George Milburn, in confinement in the jail of the county of Washington in the District of Columbia.^(a)

(a) When the petition in this case was presented to the court, a habeas corpus was asked to be issued, and it was proposed to argue the question of the right of the petitioner to his discharge, on the return of the habeas corpus.

Mr Chief Justice MARSHALL said: As the jurisdiction of the supreme court is appellate, it must first be shown that the court has the power in this case to award a habeas corpus.

A rule was granted to show cause why a habeas corpus should not be issued.

The case, as stated in the opinion of the court, was as follows:

'This is an application to the court by petition for a writ of habeas corpus to bring up the body of George Milburn, now imprisoned in the jail of Washington county in the District of Columbia, upon a bench warrant issued against him by the circuit court of this district, to arrest him to answer to an indictment now pending in the same court against him for keeping a faro bank, an offence which, by the act of congress of the 2d of March 1831, ch. 37, is punishable by imprisonment and labour in the penitentiary of the district. The main grounds for the application (for it is not necessary to go into the minute facts) are, that the party was arrested on a former capias issued on the same indictment; upon which he gave a recognizance of bail with sureties in the sum of 100 pounds Maryland currency, (266 dollars 67 cents) according to the statute of Maryland, passed in October 1780, ch. 10 (which is in force in this district), conditioned to appear in court on the return day of the process, to attend the court from day to day, and not to depart therefrom without leave of the court. At the return day he did not appear, and the recognizance was forfeited, and a scire facias issued against him and his sureties, returnable to November 1833. At the same term, another writ of capias on the indictment was issued against him, returnable immediate, which was returned non est inventus. Afterwards, in June 1834, in vacation, another writ of capias was issued by the district attorney upon the same indictment, returnable to November term 1834, upon which the party was arrested, and from which, upon a writ of habeas corpus, he was discharged by Mr Chief Justice Cranch, of the circuit court, upon the ground that the writ of capias improperly issued. The marshal having returned this matter specially to the circuit court, at the November term 1834; upon motion of the district attorney, the present bench warrant was issued by order of the majority of the court, and upon which the party is now in custody.'

The case was argued by Mr Brent and Mr Jones, for the relator; and by Mr Key, district attorney, contra.

Mr Brent stated, that two points presented themselves for the consideration of the court.

First. Whether the bench warrant, under which the relator is in confinement, is legal.

Second. Whether the case had not, previously to the issuing of the bench warrant been finally adjudged by a competent tribunal.

The attention of the court is requested to the fact, that the process is not an alias, but appears as an original proceeding. It is in the same term with the first process; and is entirely novel in its character, in the courts of the United States, and of England. An 'alias' always issues after the return of the first writ, as having been inoperative.

This is not sanctioned by law or practice. 4 Chitty's Crim. Law 213 to 217, 224, 225; 4 Burn's Justice 48, 49. In Dalton on the Duties of Sheriff, it is laid down, that in criminal cases, where an indictment is found, the practice is to issue a capias, then an alias and a pluries writ. If this is the law, the writ in this case was illegal; and did not authorize the marshal to take the relator; and his imprisonment is illegal.

There is another objection to the issuing of the writ. When it issued there was no such suit in court. The United States had, by their own act, discontinued the case. 4 Burn's Justice 42.

The principle established by this court in the case Ex parte Watkins, 7 Peters 568, that no one can be twice arrested for the same cause, entirely protects the defendant from imprisonment, after his discharge by Mr Chief Justice Cranch. No other writ, not an alias, can be issued, after that discharge. 1 Tidd's Practice 196; 4 Burr. 2502; 3 East 309; 7 Peters 568.

In the case before the court, the record shows that a capias issued on the indictment against Milburn; that he was taken by virtue of it, and he was thus in the custody of the law before the circuit court. He was afterwards, by the judgment of the chief justice of the court, the case being regularly before him, discharged. The United States had their remedy upon the recognizance given by him and his sureties; and the case, as to all other matters, was out of court, and at an end.

Under the law of Maryland of 1780, ch. 10, when a defendant is in custody for an offence, found by an indictment, less than felony, the sheriff must take bail in less than 100 pounds. The capias is returned with the recognizance; and if he does not appear, the recognisance is prosecuted to judgment. Although the keeping a faro table is punishable by imprisonment in the penitentiary, yet it is not a felony. The relator, having done all the law required, on the original capias; he could not be required to do more.

After the most diligent search into precedents, and a reference by the chief justice of the circuit court to the most distinguished members of the bar of Maryland, no case has been found, where the principle has been asserted and maintained, which is claimed by the United States. If the law was otherwise, a case would have been found to maintain it. The law of Maryland requires, that the recognizance shall be sued out. It says nothing about further proceedings against the defendant, who has suffered the recognizance to be forfeited. It is different in the case of felony.

Within forty-four years not an instance has occurred in the courts of Maryland, where an alias capias has issued in a case less than felony. All the counsel at the bar of Maryland appear to have considered, that under the act of 1780, every thing that could be done, on the neglect of the person charged with a misdemeanour to attend, was to forfeit the recognizance, and sue it out. The opinion of Mr...