Bradford reporter. [volume] (Towanda, Pa.) 1844-1884, 1855-09-29

But this can in nowise prejudice the petit
toners right to the writ which he now de-
mands. Even had the writ been awarded and
the case heard, and the discharge refused it
would not he within the decision in cr-paytc
Lawrence, for there the hearing was before the
court in term time, upon full examination of
the case upon evidence adduced, and not at
chambers but the more obvious distinction
here is that the writ has never been awarded.
| And the agreement of counsel that it should
not be in a certain event even if binding
upon the client there, would not affect him
| here.
| Now whilst | aver that the writ of habeas
! corp@s ad sub jicjendam, is writ OF right,
do not wish to be understood that it should
issue, as matter of course Undoubtedly the
| petition must be in due form, and it must show
upon its face that the petitioner is entitled to
relief. 1t may be refused if, upon the applica-
ton Itself, it appears that if admitted to be
true, the applicant is not entitled to relief but
where, as in the case before us, the petition
alleges an illegal restraint Of the petitioners
! liberty, under an order from a Judge beyond
his jurisdiction, we are bound in the first place
to take the allegation as true !; and so taking
1t, probable cause is made out and there is
no longer discretionary power 20 refuse the
writ. Whether the allegation or want Of ju-
risC!icton is true or is not, is detcrminablc on
ly upon the return of the writ
ii one has ayerred III his petition what, if
true, would afford him relief, it is his constitl-
tional right to be present when the truth Of
his allegations is inquired into and it is also
his undoGbted right, under our h0beaS corpus
act, to establish his allegations by evidence, to
be introduced and heard upon the return of
the writ 10 deny him the writ is virtually to
condemn him unheard and as | can see moth
ing i'll the case which requires at our hands an
extraordinary resistance against the prayer of
the petitioner TO be permitted to show that his
Imprisonment is Illegal, that he is deprived OF
his liberty without due course Of law, | am in
favor of treating him as like cases have uni
! formly been treated in this commonwealth, by
awarding the writ of habedS c0rpHS and remOy
ing the inquiry as to his right to be discharged
until the return OF the writ but as a majori
| ty Of my brethren have come to a different con-
clnSion, we must inquire next into the right Of
! the applicant to be discharged as the ease is
now presented.
] suppose it to be undoubted law that III a
case where court acting beyond its jurisdic-
ton has committed Il person to prison, the prl-
Soncr, under our ha6eaS corpHs act, is entitled
to his discharge, and that it makes no differ
eHce whether the court thus tranScending its
! jurisdiction assumes to act as a court OF the
! Union or Of The Commonwealth. If q primci-
! pie apparently so just and clear needs for It's
support adiudicatcd cases, reference can be had
! to Wise rgt. WithcrS, 81 Cranch, 33I lst
| Peters Condensed Reports, 552 Rose G9t.
H!nely, 18th CraNch, 24l, 26S Den c8t. liar-
den, lst Paine Reports 50, 5S and 50; 3D.
| Cranch, 44S; BOllman agt Swartout, 4th
! Cranch, 70 kcarney's case, Tth Wheaton,
3S Kemp 0gt. Kennedy, lst Peters G. {. r.,
! 36 Wickes Ggi Cauk, ) Uar 4 j., y !;
! Griffith cgt. Frazier, 8 Cranch, 9; Com. Ggt.
Smith, Sup. CT Penn., lSt Wharton Digest,
| 32l Com. en- rclatioae Lockington ngt. the
Jailor, &c, Sup. CT. manuscript, 1914, Whar-
toms Digest, vol. lst, 32l Albec GSt. Ward,
! s Mass, Sc
Some of these cases decide that the act Of a
court, without jurisdiction is void some, that
! the proper remedy for an Imprisonment by q
court, having no jurisdiction is the writ of hG-
bcas corPns; and etherS, that it may Issue from
state court to discharge a prisoner commit
| ted under process from federal court, if it
clearly appears that the federal court had 10
| jurisdiction Of the case altogether, they es
tabliSh the point that the petitioner is entitled
to relief, if he is restrained of his liberty by
court acting beyond It's jurisdiction
Neither 90 ! conceive it to be correct to say
that the applicant cannot question the .jurs-
! diction of the Judge of the District Court, be
cause he did not challenge it upon the hearing.
There are many rights and privileges which a
party to judicial controversy may lose if not
claimed in due time, but not 50 the question of
jurisdiction this cannot he given by express
consent, much less will acqueaccnce for time
waive an objection TO it. (Sec L. 5. Digest,
vol. lst, p. $50, Pl G2, and cases there cited.
It would be a harsh rule to apply to one who
is in prison, without bail or mainprizc," that
his omission to speak upon the first opportuni-
| ty forever closed his mouth from denying the
power of the court to deprive him of his liber-
ty | deny that the law is Il trap for the feet
OF the unwary. Where personal liberty is con-
cerned, it is a shield for the protection of the
citizen and it will answer his call even if made
after the prison door has closed upon him.
If, then, the want Of Jurisdiction is fatal and
the inquiry as to It's existence is still open, the
only question that remains to bc considered is
this Had the Judge Of the District Court for
the Eastern District of the United States pow
er to issue the writ of ha6eqs corpns directed
to PasSmOre Williamson, upon the petition of
John II. Wheeler The power of that court
to commit for a contempt is not denied, and |
understand it to be conceded as general rule
/ by the petitioners counsel, that one court will
not Fe-eXamnc a commitment for contempt by
another court of competent jurisdiction /; but
if the court has no authority to issue the writ,
the defendant was not bound to answer it, and
his neglect or refusal to do so would not au-
| thorize his punishment for contempt.
The first position which | shall take in con
| sdering the question of jurisdiction is, that the
courts of the United States have no power to
| award the writ Of haJeas c05pns except such
| as is riynn 10 tlnnl hr the acts of COngress