New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-11-06

p.do -, tm,dae Gentleman who ia faithful to his
trust and the newspaper with when nc - The truth
This IA All done for the purpose OF suppr.ssns har
ana ntnidatng those who are bold enough " 'te6
that which they believe Is true ana VINO nSs o"nonsI.
the Disrict Attorney hold them to propl PSs
bility and who are not only willing to meet D"t I" P
any charges they have made
JUDGE FASCHERs DECISION.
At the conclusion or Mr.. Clinton's argument '"'o
Fancher gave his decision, as fOllows
II will be proper to dispose of preliminary queS
tions before considering the merits or TINS hh'er ns
l. During the proceedings II was oGco1 ~ 81 habess
corpus was improyidently issued ny JuSlic9 " ,,
preme Court when the court was III ses t on answer 70
tho objection 1t provides That applcnon loI .m Gr
shall be made by petition % to 6s r vacso9 Of The
Supreme Court, TO any one or the Justices ~ n -,
preme Court, or any ohcer VINO may c UT Canrt AT
Chambers etc. The common practce IN tis
apply for the writ 20 the Justice OF tn9 nqed on
ut Chambers, ana the VIRUS are that such
such publications. 10 has never been dOuoteu ina.
Jurisdiction is conferred by the statute on JuIcG oi
the Court though term Of the Court may a. 'uo Ii
DO held. IA Wend, 2l'' HOW H. H'p" -''
e. IL ia objected that the writ should have been made
returnable in the oyer ana Terminer Wsilc ~ Vas ~
session The statute under % en- sn9 not Speabie
to this case 1t relates only 70 prisoners conheu m o
common Jail Of the county, upon crs",, t,sI1y or
There is no pretense that the petitioner was Igoua -
constructiVely confined in the common JAN Vi e"i'A
~ urther objected that the writ should have been
returnabe before some court or officer IN KINGS Coa'9
The objection Is founded on sec 81 I9rherS nro
HIbeas Corpus act. 70 r. 81 5tn El, ~ 81 ~ pr W
vdes that whenever application for the wrlt DE maui 20
"any officer" not residing WITHIN the COUNTY WIZ tbai
prisoner snail be detained, he shall require PROOF sa
there is officer in such county autnorlTed 70 sr'ss
the writ. There are two answers 70 TINS oDeoon'
The petition which the writ or ha0eas corpus lssuo,
expressly ayerTed that the petitioner was tlrh con,
fined aud restrained Of his liberty by tne Slelm .,
Kings County, in the Courthouse OF tne City an
of New-York" a. II 1t be conceded that the inprsoh
ment constructvey in Kings County 10 lag 9Gv, v
both at Special and General Term Oh tne oupi ~,
Court that section referred 70 does NOT appy oe
Justice OF the Supreme Court and that justice c ss
can, when sitting at Chambers, asatu , W.
Of habeas corpus that shall run to any par OF me oIe
athogSh there Is an 0 eSd ssn eo the viii Peope
agt Hanna How. Pr, Rep. 80. PeOpe aSt, CVOP.Ls,
Id 2s8 People agt. Toiunsby 60, Barbour He t5Jo'J
4. Another point Is made IN section vi tnq pba1
Corpus act Is II. 81 5h Ed y. S17J IL PROVIDES trs
criminal CHARGE and a haboas corpus 10 tesJy De Is
sned, ne shall be reminded after having testineu.
have doubted whether this provision OF the stauc Is o'
maudatOry on the Judge, In haboas corpus pro-
ceedIngs. But further consideration has cOuFncou o
that the section intended to apply 10 Tue court o'
officer before whom the prisoner ~ DIOusht " @
and that il does not prohibit an inquiry IN haDets corpus
as to the laval imprisonment Ol the petluouer ~
give the section 50 extended .o %
an iuuuiry on habeas corpus Into an aieseu u4a"Ih
IONS OF the habeas corpus acI p1oi"tS ssal
ton CA. page $50 Of 81 h D., 6th ed, p o9 I
mat section provides that the parry brought before the
Court officer on the return 70 aeeas cgfpuSs NM
DENY any OF material facts set f0ftn IN the return,
or aege any fact, to snow either that ms imprisonment
detention Is unlawful, OF ina, ne a. ehtltl 10 ls ~
charge thorcupOn such court OIcet sla IOCseu ~
n TO hear the proofs ana dt<tti'iie' 'ii"
dispose Of such party as the justice OF INC caS s
require. Effect cannot DO gwen 10 TINS section u ne
held that the section on page sT mas any Otnei cl
ton tuan to prescribe The Court direction 10 remand
HIM before whom a prisoner Il brought 10 tesLuJ.
think the section not intended 20 sweep away me
posiye provisions OF the Habcas Corpus act. uIeas
corpus is great bulwark OF liberty and tue operation
OF the statues which give 10 power should hOJ Oe fc-
strained by doubtful and unnecessary construction.
Another question is raised on Sec. s., p e58, OF the
the party has been legally committed Tor any criminal
Oese he appear TO De guilty oi the oHehse although
the commitment be irregular tue court or officer snail
remand hun. ms question: JOucAe' Tue hc.l!' tei-
hap5 would be an answer TO the point raised on TINS
section the petitioner here was not committed Tor
criminal 0nehse DuV was LOT 81 80 -
contempt. But waving tnat answer does II appear
tlat the party has been legally committed" 10 was
decided in the Hackley case, II now Pr 1913 that II
party DO detained III custody Tor any contempt.
il must be plainly charged IN the commitment, by some
court having authority TO commit dot tue contempt
clrned ana that there must be sufficient tne face
commitment does charge cOntenpt ana that the con-
tempt charged for which the committing court
or body had authority to commit The Court had in
this matter authority 20 commit TOT term not exceed
ing days" IL had nOjurIsdctlOn TO order an unaw
ful commitment Suppose the Court had ordered the
petitioner TO be confined III prison Tor ID years would
be cOntenGcd that relief could not BE- had on haDcas
corpus from such unlawful commitment
There Is no difference Ia principle between the case
supposed ana the Gaze under considerations commit
ment Tor an indefinite time IS not authorized by law,
and the Court has no jurisdiction 20 nAhe H. In FeOpe
e. Hicks, IS Barb 1885, 10 was held by the General Term
this district that commitment Tor contempt c0n1
not be discharged nv appeared mat he cour' Of oIer
committing had power 10 require the act To be DONE
authority enforce the decision. ~ comes DafA
to the question: Oh power Ihcie are cases "ICIe, On
habeas corpus the inquiry into the practice OF legality
OF the order or Judgment directing imprisonment cannot
be made Thus where tine leSaly OF the ORDER can pe
tested ON an appeal, there an appeal must be th5
remedy. But the decisions which aheet Such cases
are not appncaDls 10 tnls ease ior VIC oIItcd
of commitment is not appealabe order Ii was also
held Dy the court OF ApPes Ia tho laehcy oa1o W ~
u, 7S that tho rule referred TO- respecting tue lua
by ~ the Court habeas corpus to examine cause or
commitment, has Its quaincatOr and that the court
officer ON habeas corpus may Inquire 'wnetner the
cand ret charged as constituting the contempt was
such that delinquency misbehayOr be predlcated
Of it, The doctrine OF the Court or Appeals III tnat case
the effect that an adjudication Of the court in
as contempt that which the law entities 10 do.
Ii equally clear on principle that an adjudication OF
tne court which alleged contempt has occurred can
not prescribe an unlawful punishment for the contempt
intended TO deny that the Court OF oyer and
in Kings County had authority to inquire into
pcaohed for that On habeas corpus the Court Is
justice or propriety OF any commitment Tor any
contempt made by any court, officer or body,
according TO law, and charged in such commitment"
C5ec 81. p 1888; r. S., 5n ed) The essential qualification
OF valid commitment for contemptis that II be accord
ing 10 w. ipnnired into II If he 0ccoTDg tn
There meaning in those words OF the statute This viii
appear perusal OF the entire section vita the cor
relative sections OF the habeas corpus act Tine former
part Of section 81 provides that court officer
habeas corpus shall have power to inquire into the legal
ity or justice OF any process Judgment decree or execu
ton specified In the preceding 22d section Turning TO
that section find that the process referred 10 is
process Of and judges OF the United States
cases where by law they have exclusive jurisdiction;
and the judgments anu DEGREES referred 10 maj
Judgments aud DEGREES The section adds but order
OF commitment for any alleged contempt shall
be deemed Judgment within the meaning Of this
section"
Appeals the proper remedy for Illegal judgments,
and therefore they may be inquired into habeas
corpus The language OF the statute is different when
commitment for a contempt Is mentioned. There the
only Limitation Is against inquiry into the justice or
prophecy OF any commitment for a contempt made
according 10 law" IL the commit ment be not accord
ing to law It's LEGALITY" may and should be inquired
into.
Office OF the writ OF habeas corpus is TO vndicate
the right of personal liberty IL IL high prerogdtye
writ aud wherever demanded a proper petition must
DO issued, under penalty for refusal 10 the officer
whom the application Is made. It lies In all OF
imprisonment, commitment, detention, confinement. or