Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1855-10-20

our hands an extraordinary resistance against the
prayer of the petitioner to show that his imprson-
ment is illegal that he is deprived of his liberty
without due course of law, ON in favour Of treat
ing him rs like cases have uniformly been treated
in this Commonwealth, by awarding the writ OF
habeas corpus and reserving the inquiry as to his
right to be discharged until the return Of the writ
but as a majority of of my brethren have
come to different conclusion, we must inquire
next into the right of the applicant to be discharg
ed as the case is now presented.
/ suppose ii to be undoubted law that in case
where Court, acting beyond its jurisdiction, has
committed u person to prison, the prisoner, under
our habeas corpus act is entitled to his discharge
and that it makes no difference whether the Court
thus transcending its jurisdiction assumes to act
as q Court of the Union of the Commonwealth.
If principle, apparently just and clear, needs
for its support adjudicated cases, references can
be had to Wise vs. Withers, third Cranch, 33l;
first Peters Condensed Reports, $50; Rose VS..
IIinley, fourth Crahch, 24l; 2GS; Den vs. Harden,
first Paine Reports, 55, So and so; third Cranch,
44S Bollman VS.. Swartwout fourth Crancb, 75;
Kearney's case, seventh Wheaton, SO; Kemp VS..
Kennedy, first Peters G. @. r., 3e; Wickes VS..
Calk, s IIar ahd j., 10; Griffith VS.. Frazier eihhth
Craech, 9; Com. VS.. Smith, Sup. Court Penn. first
Wharton's Digest 32l; Com. ex. relatione Lock-
ington VS.. the Jailor &C.. Sup. Court manuscript
1914 Wharton's Digest, vol. 1st 32l Albce VS.,
Ward, eighth Mass, Sc.
Some of these cases decide that the act of a
Court without jurisdiction is void some, that the
proper remedy for an imprsonment<Sy n COur;
having no jurisdiction is the writ of habeas cor
pus; and others, that it may Issue from State
Court to discharge II prisoner committed under
process from Federal Court if it clearly appears
that the Federal Court had no jurisdiction OF the
case; altogether they establish the point that the
petitioner is entitled to relief, if he is restrained
of his liberty by Court acting beyond his juris-
diction.
Neither do ] conceive it to be correct to say that
the applicant cannot question the jurisdiction
of tho Judge of the District Court because he did
not challenge it on the hearing. There are many
rights and privileges which party to judicial
controversy may lose if not claimed in due time,
bat not the question of jurisdiction; this cannot
be given by express consent, much less will acqui-
escence for time waive an AFFECTION to it. See
L. s. Digest vol l, p, G39, Pl 50, ard cases there
citcd,) 1t would be harsh rule to apply to one
who is in prison without bail or mainprzcD that
his omission to speak the first opportunity
forever closed his mouth, from denying the pow
er of the Court to deprive him Of his liberty
deny that the law is trap for the feet OF the
Inwary. Where personal liberty is concerned,
it is shield for the protection OF the citizen,
and it will answer his call even if made after
the prison door kas been closed upon him.
If, then, the want of jurisdiction is fatal, and
the inquiry as to its existence is still open, the
only question that remains to be considered is
this: Had the Judge of the district Court. for
the Eastern District OF the United States power
TO Issue the writ ot haDeas corpus, ulrecteu 10
nassnore hhiiamson' upon 'he petition oi oonh
Ii. Wheeler. The power of that Court to com
NIT for contempt is not denied, and l under
stand it to be conceded general rule by the
petitioners counsel, that one Court will not re-
examine commitment lor contempt py uh0lncr
Court oil competent jurisdiction; put II the Oourt
mas no authority 10 issue inc Wrlt tiie resYon,
den was not bound to answer it, and his neglect
or refusal tD do so Wqulu not authorize his pun
ishment for contempt
The hrst position which ! shall take, IN con
sideratlon The question OF jurisdiction, Is that tue
Courts OF the United states have no power to
award the WIT oil habeas corpus except such rs Is
gwen 10 them by the acts OF congress.
courts which originate IN the common law pos
ses jurisdiction which must be regulated py tne
common law; but the Courts which are createu ny
written law ana whose JuHsuleuoh Is oehneu Ny
written law cannot transcend thelr lurisuictioh'
me power to award the VIII py any OIL Tue Courts
OF lhe United states must be gwen py written
law TX partc' owartWou'' 4 Ith ofancu, iyu W
TX parte Barre = howard o. inc power Vi Tue
United states to issue writ OIL haDeas corpus Is
aer,Veu el'het from 9ne 4tn section VI tno Ao' y.
ztth oeptemDer lioV, OF from the se'eh'n sco'oh
oi the Act OF March = 1000. 800 .
Inc section from inv Ae' os ltoI proNiucS .ua' @
an the Courts OF the ohiteu o'a'es may M issuWe W
wrts oil sc're lacls, hapeas corpus any "ii o,noi
wrts not especially provided oE by statute whlcn
may be necessary Tor the exercise oil 1helr re-
sPcc'ne Julisulot'S'i' anu ";,h r. D ta IL
p'e' tu ~, u'sso " =" - III ns ,Ia fnJ,os -,
tces ~ VI '.e 90 ~ 90
he 'iiny S.l'''
lor tne purposo ol iHqc'ly nv VIC o.'usI " ~
nli'neh, 1us "it's VI nIg'?S sui, =" & ~
S"su eAtrnu ~ m m J"I, ,in az ~
~ o9s'ouy Snuel c Vi py =. 'II ~
lhe Oh,'cu oVcVes VI "rc 'oi t''' po'o
~ solno ~. y, sne 'an"V, NJ" 81 W
~ ~ a.' ~ o. Nh Io3, onthor;,es .,o;tho,
o m .he 4ot o. ~ atae" hDoo, GI,rt 9,ae, 1
OF 'he 2usuees OIL 'ne os preihe Sourt S OF ouuge
oi any district Eouit oi tne Gni'eu oaaeIs' ~ az
ul''oh 70 Inc au'rTtl,y are"uy M oy it" c
70 sran. VIRUS VI nuo?"' -, a., oni'a "
prisoner OF prisoners III JAZZ OF coihlcaienl Wn'Ie
nc Nr they shai! DC cohlhlltsco vi coihieu Oh .,
by authority oil law lor any nc. uone OF omitted
20 e. be done IN pursuance Oh the law a. .he Thueu
9tates' or any oruer' PROCESS, or ueotee a any
Judgc-or ooort thereol, ahytn,hs IN any Ac' o'
Congress 10 the contrary hp'withs'Hhuine'
Now unless the wri' ol haoeas corpus isSucu
by the Judge o. the District o9nrt was necessary