The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-15
The Disehar~e or Raw romuk,n..

One Of the judges Of the Supreme Court yesterday
morning made an order dischargng Hay Tompkns from
custody and accompanied his decision with following
opinion, which ordered to be filed with clerk =
1t was very strenuouy urged the argument Of this
the part Of the public that haeas
corpus the court officer had right 20 behind the
warrant which the prisoner detained and inquire
from facts on. Of the return into the legality of the i'm
prsonment.
The effect OF this principle would be- that the warrant
Of committing magistrate, when legal upon its face,
would be the prisoner and he could have
no relief from imprisonment, If charge whatever
had In fact, been preferred against him
The proposition was Of so grave character, and
fraugh with consequences palpably mischievous and
withal asserted with much zeal and apparently
with the support Of authorities that have examined
the subject very carefully and rejoice to find that there
no authority to shake my previous convictions on this
subject.
The most prominent authority cited in support Of the
proposition Il Note 30 to the Appendix in lIin, $50,
where it broadly laid down that under act Of lSls
and under 500 Of present habeas corpus law r.
s. AL if the object be to impeach the irrcgu
lar, founded irregular erroneous judy
ment decree conviction you can no more inquire Of
such things coaterally by aeas corpus, than BY action
or Indictment and that sta ue not intended
authority to inquire into the validity of writs,
rants other further than to ascertain whe
Their they will protect the party suens them out the
officer serving or executing them.
So far az this relates to Judgments DEGREES and CON-
vctions" il unquetionably they cannot
be inquired into collateray but far it relates
wrts warrants or other process before final judgment
far from being correct and is unsupported by any
authority except dissenting opinion Of one Of the
judges in the matter of Prime SC. Barb. Sup. Ct r.
3ig
Three cases are cited in the in question in sup
port Of the proposition in its broadcast form The first Is
the Of the Sheriff of Mddesex, Ad Ellis 273 In
that the held that it did under the
So Geo which is statute under which the proceed
ing is before and the main question whether
process Of contempt was good, which omitted to state
the particulars Of the contempt.
The position which It cited to support was not raised
in the all indeed could it be- for the process
final in execution of final Judgment of contempt
The next Is The People Nevns Hill, 14
That also w hnal process Of contempt and the question
now before me was not raised or even alluded to- in the
whole
The matter of Clark % wcnd, oo2) is the remaining
cited in the note That extradition Of
fugitive from justice under the constitution Of the
United States and the court held that the question before
ii under the constitution not OF guilt inno-
cencc Of the accused but whether he properly
charged to warrant the Governor in surrenderng
him.
II will be- very readily perceived that of these
cases support the principle contended for
e ~ h .i e t o'hea eases IN
The People Barb. 81. That again u OF final
process in execution Of summary conviction and the
counsel for the prisoner did not the return SO
that at first blush 1t is manifest that 1t does not touch
the question before
which also commitment for contempt, and the
Court held that the prisoner had undoubted right to
show that the committing MAJ strate acted without
authority and that this So notwithstanding the
commitment reced the existence Of the necessary facts
to give jurisdiction. And they add what Is alike good
and good law court or officer can acquire jur
dicon by the assertion Of it, or by falsely alleging
the existence OF facts which depends
The case Of Mcleod q Ill., 377) is the only remaining
cited for the prosecution There the question
whether the court on haeas corpus would 90 behind an
Indictment to examine the question guilt innocence
and the court in refusing to do expressly admit the
proprety in of commitment coroders inquest
to look the depnstions and that 1t not
sary inquire how far they might where the prisoner
in custody the mere examination or warrant Of
hitting mags trate.
These are all the cases which find to which
have been referred in support of the doctrine conended
for in behalf Of the prosecution They do none Of them
-utp tlctr nd fln fha
hobeos corpus would be mockery. whenever magistrate
might please to make the instruments Of oppression and
false imprisonment formal and regular its face and
personal liberty would be at the mercy Of ignorance
design beyond anything yet known to our laws careless
they too frequently OF freedom in the detail amid
the abundance If it in the gross.
have always understood that II the intention to
give to party committed for crime by an examining
magistrate appeal from his commitment to the higher
judges by virtue Of writ Of has corpus and such has
uniformly been my practice.
The practice is abundantly sanctioned by authority
ard statute.
Thus in the very notes in 8 Hill which are so much
relied upon il is laid down that on commitment by
final process upon summary convctionlhe record Of
conviction may be examined and if 1t be void the pris-
oner will be discharged Mote So page C6j) where
lie arrest was without the territorial Jurisdiction Of tho
eourt where the prisoner carried before
justice when there before whom no ought
carried-ib 80; whore, In a criminal
the warrant is void the original dcpositions will be
looked into to see whether an has been committed
that the prisoner may be remanded held to bail
H. note TO- In the commitment be for felony the
prisoner may brought up before indictment insist that
tary authority which the commitment founded.
For this purpose copies may be brought up by cetora
ID note ~ Aud in note - 1t u sara the accused who
has been committed on insufficient evidence, and where
the charge appears to be wholly groundless and with
out suspicion. the prisoner may be discharged
For this the writer cites Chty Cr Law rs where
is said that the court ascertain that there Is pre-
tence for mpung to the prisoner any indictabe Of
fence, they will discharge him. and pullman and swart-
wout's Case, cranch, Us, where the w. Sup Ct.
Chief Justice Marshall delivering the opinion 1tcs
ais nm a Of "A "A
accurate commentator, and where the prisoners
discharged hab,a, corpus
In ex-parte TAYLOR. Cowen 81, the Supreme Court
say. that in Ill lGbtas corpus previous to indct
men the court will look into the dispositions before the
the mitment be free and In due form yet II the teti
mony proves crime, the court will discharge bail
In the Matter Of Prime Barb 3Ie-The court looked
beyond the warrants and into the afiavs to that
the judge had colorado jurisdiction.
In pare Watkins Peters. 202Ch J. Marshall de-
scribcd the writ Of habcas corpus in the nature II
writ 81 which brings the body Of the prisoner
with the cause Of commitment and he adds the conrt
undoubtedly inquir. into the .unicency Of that
And Chancellor Kent In his commentaries. Vol
pp. s ~ aye that the act Of lsis, (Which IL now
fore whom the wri, (of hs5ea corpos returned
thoriy 10 revise the u commitment and TO |
examine into the truth a the facts alleged in the return
and the officer may examine into the merits Of the
mitment, and hear the allegations and proofs arising
thereon in summary way and dispose Of the party as
Justice may require.
The language Il the statute l. equally explicit Sec |
- tina, the officer before whom the party
shal be brought such writ Of habeas corpus shall i'm
medately after the return thereof proceed TO examine
into the facts sontaiued in such return and into the
confinement restraint of such party whether
the hall have been upon commitment for any |
criminal or supposed criminal matter or not.
Section 40 cbacts II appears that the party ha. been
legally committed for any criminal offence II be APP
pear hy the testimony offered with the return upon
the hearing thereof to BE- guilty, Sc. he shall be re-
nandcd And by section ~ II u enacted that the pri
deny the facts in the return agn fact
70 show hi. imprisonment unlawful, and thercupon the
officer sha proceed to hear the proofs and allegations
produced either side. and dispose the party the
justice Of the may require
II Il under this array q authority settling clearly at
my authority and my duty. that I approach the |
main question involved in these proceeding
And here two things apparent lst That the act |
imputed to the defendant Is not crime and a. That
IL j. not proved
The offence charged l.. that the @h day of Jan.
nary. 1851 Ray Tumpkns did drsicnediy and ny
81 fnle pretences cheat aud dcfaud BENJAMIN Nathan
out ~ loo shares II the stock II the Farmers Loan and
Trust Company. a the value of $4,000 and more.