The New York herald., 1870-12-17
United States Circuit Court.

the prisoners counsel, for writ OF habeas corpus.
! There was quite number OF prominent lawyers in
the court room and the proceedings wore listened to
with interest District Attor ney Tracy appeared for
| the government and opposed the motion.
Mr.. Bartlett introduced an AFFIDAVIT OF Mr.. CALI
cot setting forth that he Illegally restrained or
his liberty by the sentence Of court which did not
! have jurisdiction when the sentence was imposed.
/ The District Attorney Introduced the Indictment
and the minutes OF the trial. when Mr.. Bartlett. OBJ
jected 10 the latter irrelevant. III also objected
to an entry Of the sentence made the back OF the
indictment at time subsequent to the day the sem
| tence was imposed.
| Judge Woodruff decided that this must be heard
like any ordinary motion.
MR. BARTLETT's ARGUMENT.
Mr.. Bartlett then commenced hts argument In sup
port of the notion and in opening discussed the law
Of habeas corpus briefly. His proposition that
the courts Of the United States had no common law
jurisdiction in criminal matters-no common law Of
fences existed within the jurisdiction Of the United
States courts. The court in which Judge Woodruff
presided had jurisdiction only offences created
by statute Of the United States. while the statutes
which created them existed. No court Ia this or
any other county had jurisdiction Of an offence
which had been blotted out OF existence. Counsel
held that Mr.. Calllcot was held In prison under
sentence for an act which was not an offence at
VIZ tiiHo ~ was CHdTSeu III tue Iuulctu9Nb 10
have been committed. This sentence. he said, was
for violation of the rorty-second section OF the act
OF 1885, and the Indictment itself showed precisely
that 1t was fraud the reports OF the trial showed
even In detail that 1t for conspiring to execute
and conniving at the execution OF certain bond
known as the hand bond. And that bond, as set
forth In the indictment, was bond for the removal
Of distilled spirits without payment OF the
aa Attention o the Hs at Tsaa s ea %
the orty-second section, by whicn IL appeared that
mot enoan s any MAKE entry or
spiracy to execute the same or 70 connive at the
execution Of the same an offence; but II must be
tions. Such bond was at one time required by law
for the removal M Of spirits from the bonded ware
described IN the indtctment-but long before the
trial and conviction Of Callicot the only
pealed. The act repeating that law was
approved January II, 1868, and Mr. Callcot was not
Counsel here read tn act IN questlon.) Now, he
contended, was perfectly clear that after the pas
document such as was requ red by law for the re-
moval OF distilled spirits, without payment OIL tax
cument required by law or by regulations. lie sub
mltted that tins act OF January II, 1 g. repealed
Spirits might be Removed p upon certain Conditions
without payment OF the tax and the other provided
no om bonsa R'' Without
payment Of the tax: They were absolutely
therefore repealed i by the later counsel ' ad mat
this point was decided by Mr.. Justice Nelson, when
he argued 1t before him at Albany, ut the time or the
application for writ OF habeas corpus there.
Mr.. Tracy asked II counsel relied upon tnat de-
cislon OF Justice Nelson2
Mr.. Bartett-I do until 1t Is overruled
Mt Tracy thereupon offered to rut that proceeding
Justice Nelson was A denied Mr.. FIR Trac; asked Mr..
Bartlett II he made any objection TO having that
record put into the case.
Mr.. Bartlett could not conceive Of any objection,
and he was not aware that Mr. Ju .ice Nelson had
been tabooed to any extent as an authority.
Mr.. Tracy-I offer to put in that record as part
OF my answer 10 this motion. Is there any oblec-
ton
Mr.. Bartlett, after some further discussion, as
serted that there was alteration in the original
manuscript; whercupen Mr.. Tracy inquired II lie
proposed TO make an AFFIDAVIT to that e1e;t2
Mr.. BARTLETT propose to take Justice Nelson's
affidavit upon that point, If the gentleman wishes it.
Mr.. Tracf-I trust that counsel does not mean to
impute that altered that opinion. (Sensation)
Mr.. Bartlett-CertanY not.
Mr.. Iracv said that he ashamed to say that he
had never read the OPINION.
MIR. Bartlett replied that, as he himself rccoected,
cause some change III the force OF the op mon. Hc
had told the Judge that he would call his attention
to 1t whenever his Honor was on the bench nere
Mr.. Tracy-lt seems TO he that these insinua-
Mr.. Bartlett, hastily interrupting, denied thar any
lnstnuatiOns had beel made.
Judge Woodrun then put an end to the discussion,
which promised to be ~ exciting one by king
that II there was no objection the record would be
entered.
MIR. Bartlett, continuing his argument, stared that
OF 1886, which Judge Nelson had said was repealed
without q saving clause. was the olly act under
! which q transportation bond Ike the hand bond
| was bond required by law or regulations ana after
the repeal OF that act such bona was no longer
| or procuring its execution even if fraudulent was
no longer an offence under the forty5econd secsion.
me rePea all ne nca M VA any ~
pointed to act under revenue law ol the united
States He was described III every count OF the indct-
ment as Collector Of In ernal Revenue. aud upon his
trial the law Of co9spracy under which he had been
indicted, so far as revenue officers were concernes
| had been repealed ana changed by Still another
statute without any saving clause past offences.
Only one connt charged conspiracy to defraud, ana
! the others were intended TO charge conspiracy to
commit an offence and that offence, i'll iact, had
been repealed. The peculiar onencs created BY the
section of conspiracy to def raud was repealed with
| out saving clause SO far as concerned revenue
officers by the act OF March Il, 1866 prior to the
trial ana conviction OF Calcot. Judge Nelson de-
clded that his arg ument was sound as to the eject
OF this repeal Of the statute he FIRST argued. Cai-
which Judge Nelson's charge would show.
Mr. sEIcr Trary yrneS r. ny TnAGy
had been listening to learn under waI satnte the
counsel claimed the authority Of the Court 10 issue
writ OF habeas corpus for the discharge OF prisoner
held In pursuance OF final Judgment OF a court Of
competent jurisdiction There are four different
statutes on the subject Of habeas corpus--that OF
having been repeatedly he'd That writ Of hapeas
corpus % would not issue for the discharge OF pris-
OF competent jurlsdction and that being,
as ! understand it, the universal rule
parcary 0S IN the % Uned ssases copri Rras''cs
had inferred that such authority for this new and
novel position would he sought under The act OF
1867, the last act on this subject. But inasmuch as
the counsel has not referred the Court myself
any act under which he cams this writ should
| issue, suppose snail be under the necessity Of
attempting to show that IL does not exist under any
Of them. The act OF 1867 does not en- arge the pow
ers OF the federal courts TO issue writ of habeas
corpus In cases where party Is confined under the
Judgment OF federal court or IS held under aud in
pursuance OF the authority of the federal courts
all. The act OF 1867 was to extend The right Of
the writ to persons held under state authority.
Under no previous statute has 1t ever been
held that the writ of habeas corpus could Issue
for the discharge Of persons neld unier nnal
Judgment The contrary has been expressly held
tex parte Watkins 3, Peters 1881. The Judgment ol a
conrt of competent Jurisdiction is never nuiy. II
1t mad authority 10 hear and determine the question
lis decision is final and the end of the law In that
subject. Itdetermines that Inc cause Of lnprison-
ment ls sufficient II the Circuit Court OF the United