Ex parte Barclay

• Decision Date: 29 May 1907
• Docket Number: 50.
• Parties: Ex parte BARCLAY.
• Court: U.S. District Court — District of Maine

153 F. 669

Ex parte BARCLAY.

No. 50.

United States Circuit Court, D. Maine.

May 29, 1907

Frederick W. Hinckley, for petitioner.

Robert T. Whitehouse, U.S. Dist. Atty., for the United States and William M. Pennell, sheriff and jailer.

PUTNAM Circuit Judge.

The petitioner was tried and convicted in this court under section 3062 of the Revised Statutes (U.S. Comp. St. 1901, p 2007). The only penalty imposed for the offense is a fine of not more than $1,000 nor less than $50. No penalty of imprisonment is provided. The sentence imposed, or the order incorporated therewith, directed in the usual form that, in default of payment of the fine, Barclay should stand committed to jail until the fine should be paid or he should be otherwise discharged according to law.

The mittimus or warrant followed the sentence in this respect. Thereupon this application was filed for a writ of habeas corpus to issue to the jailer; and, on perusing the petition the court ordered notice to show cause to issue, with a further notice to the attorney of the United States for this district. On the return day the attorney for the United States appeared and filed a motion to dismiss on the ground that the petition failed to show sufficient facts to justify the issuance of the writ, and, further, answered to the merits, accompanying the answer with an agreed statement which answer and agreed statement were allowed to be filed without prejudice to the motion to dismiss. As the motion to dismiss did not touch the jurisdiction of the court, we proceeded immediately to consider the merits.

The petitioner rested his case on the proposition that neither section 3062 of the Revised Statutes, nor any other statute of the United States, authorized the court to enter the order or judgment it did enter in default of the payment of the fine, and that the only method of collecting the fine, if not paid, was by an execution, as authorized by section 1041 of the Revised Statutes. So far as any express statutory phraseology is concerned, this proposition is correct. Also it is correct that, with regard to substantial matters criminal proceedings in the Circuit Court must find a foundation in some express provision of an act of Congress. Of course, it is conceded that a statutory implication may have the force of express phraseology. On the other hand, it is the recognized rule of the Supreme Court that, where there is no statute regulating the criminal practice and proceedings of the federal courts, they may adopt, and perhaps for the most part must adopt, the forms of practice and proceedings which were fully authorized within the territory constituting the district in which the court...