New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-27
THE DEVLIN HABEAS CORPUS.
GQrRT OF COMMON PLEAS-CHAMBGRs-lULY q.

COURT OF COMMON NEUTRALITY-SUSPICIOUS. 90
Before Judge ISGRAHAM.
In the matter Of Devn Habeas Corpus
Mr.. FIELDS POINTS.
Mr. Field, at the opening of the Court, asked per-
mission to make the following statement in reply to
the published points of Mr. OConor:
Devin is n fact not entitled to prosecute the writ
of habeas corpus at all He is detained by virtue Of
the fual judgment of competent tribunal OF civil
Jurisdiction q H. S., 303 sec. &c. sub. q. The 5bth
section sppes only to the case of process not In exc
cuton of q Judgment. The order for Devlns CON-
mnent and the warrant are the final determination
or judgment as TO him
The Legislature never intended to give an appeal
from Judgment or the execution of a Judgment by
means Of the habeas corpus, to constitute CON-
missioner appellate tribunal to SIT upon nnai de-
Termination of a Judge of the Supreme Court In
special proceeding. Cd.
missioner should be transacted in the Hall of Records
1t may be transacted anywhere, but tue COmmls-
sioner must have the books and papers OF the office
The Common Council has not the power u prevent
Street Commissioner acting under law OF the State
and appointment Of the Executive pursuant 10 law,
from executing the duties Of his Office aud from hav-
ing for that purpose the official records. Ii IL were
otoerxise the law of the Common Council would be
stronger than the law Of the LIZ sisature. -
II was not alleged before Judge Peabody by Mr..
Conover that he had had possession OF the DOCKS
aud papers of the office. The persistence OF the coun
sel on The other side in making such assertion Is OF
piece with what they have said IN other parts Oh
this case. .,a;
Mr. COnOyera
net claim on bis individual behalf but GU behalf OF
the public whose trustee and ageut he is dts rgnt
TO the books no more be defeated oy cohtest'ag
the origin of his title, than Judge dc Jdco would De
nreyented from Furnishing for contempt o his authory
nv shelving that he was not Judge ne Jnre When
Mr. Justice COwles sitting a. Judge DE facto, ne
could punish for contempt, command Official RECORDS
to be brought to him. aud could nave 70 bo
acts which Judge de jure could have DONE When
an Office il filed il is filled entirely. 1t caunot be hall
SLED by one person, and half by another. one man
ear not be entitled to keep the books while anotaer mas
the franchise in use The public interests require that
every officer who fills Office, whether dc thct0 or ae
jure should be able to do the pubic fu Jusce n II.
None of the cases referred TO by the counsel on Tue
other side give the slightest coun'enance 70 auoher
doctrine Suppose contested election OF Governor,
and the certificate to be given to the minority caeu
date could he not obtain the archives OF tne once
repors of subordinate officers applications io patdos
official returns, &c.' Suppose contested election Oh
SECRETARY Of State, or Controller, and the
10 he given TO the wrong person. must the business Oh
the Office remain unexecuted TIL quo @dTd's" Can NC
!. aid that Conovers petition did not allege that
he was in possession Of the franchise. WhetheI II
did SO or not would be of no importance ne did so
allepe before the warrants were signed. But the
pettiou does 80 alege. To assert that one ConoveI
has been duly appointed accepted taken the Data oil
Office, fled the official bond, and done everything
necessary to be done TO qualify himself for exercising
the duties of the Office is to assert that ne has the
franchise in possessiop that he is officer de aco aud
de jsre. How mach evidence was sufficient to make
out those allegations, was question Tor Judge fea
body All the statements oil the couhseI on 'pa' Po'
are entirely irrelevant.
The argument of the counsel upon the right OF tue
Governor to appoint is fifty concluded by the ssser-
ton that the arguments on our side are enurey III
harmony with the nonsenscal character which per-
"ysdes the whole argument in support OF ConoVet
appointment An assertion which thnk only one
counsel in the State would have made ana that coun
eel the one who it said pledged his professional
reputation that the Metropolitan Police act was I'M
constitutional and asserted that reputable lawyer
in the State could be found to say TO the contrary.
Mr.. Moves then proceeded to address the Court.
He said that be would abstain from discussing any
matter except what ha, special reference to the sub
ect now before the Court. He would lay aside the
uestion whether Mr.. Gonover was entitled to the
flee under the laws Of lSi9 No such matters arose
this proceeding. A proceeding under hsbea'
orpus was not writ Of review it was not certiorari,
ut q writ Of error.
In fact, the only question ia, had Justice Peabody
jurisdiction If Mr. Conover had sufficient color OF
flee TO warrant the Justice in entertaining the petit
lion Of CoDover--if that appears, the writ should be
dismissed. That Conover was appointed by the Gov
st least week before Devln received his from
the Mayor and Common Council is conceded, aud that
he tConoverl would have remained ia possession no
one viii deny had be npt been put out by force aud
violence
Even if Conovets appointment was void yet after
Justice Peabody decided in bis favor he bee ,me Street
Commissioner de acto, aud could not be removed ex.
eept by due process of law.
The further argument adjourned till Tuesday at
ii O'Clock, when Mr.. CoDor will reply.
MRS. CUNNINGHAM AND HER LAWYER. u
G. THAYER.
MARINE CoURr-JULY Is.
sr,r ox A pRoMfssoRY MOTH FOR FEES IN rHr prp