The New York herald., 1874-12-03
Proceedings in Court
Y esterday.
THE MOTION DENIED.
An Escape RumOr About the Great
Criminal.
HOW IT FOUND WINGS.
Excitement Among City Officials and the
General Public.


When the habeas corpus case OF the Tammany
big Chief Boss Tweed was called up yesterday
morning In the Court OF Oyer ana Terminer none
thought what sensation was TO follow close upon
the heels OF the termination OF the case in court
Crowds filed the court room at an early hour.
while press OF people thronged the passages and
endeavored to force their way beyond the guard
line which Chief crier Ricketts, had judtciously
marKed out and projected by court ofncers and
police from the anticipated mob. This proved
perfect estoppel from encroacnment after the
room became flled but nevertheless 1t was with
dfculty that counsel and others entitled to seats
within the bar could penetrate the excited mass
OF people SO eager TO catch glance OF the impris-
oned Boss. But no Boss appeared, IN accordance,
as 1t was understood with an agreement to that
eject concurred in by the District Attorney AZ .he
prisoners request None OF Mr.. Tweed's relatives
were present throughout the session. His late
private secretary, Mr.. Dewey, however, sat near
counsel and gave absorbed attention to the pro-
ceedings. The points presented by prisoners
counsel on the writ oil habeas corpus were, in the
nrst place, that the Court OF Oyer and Terminer,
before which Tweed was tried. had no jurisdiction
TO try the case, and that in consequence the ver-
dict, the judgment and the sentences were
illegal, and also that the first sentence,
for the term of one year, having expired and
the fne paid, that the enforcement OF the other
sentences was illegal. The theory OF Tweeds
counsel that, ON the legal points raised by them
and the authority cited, their client should
be discharged was ably but briefly combated by
Mr.. Phelps, District Attorney, on his motion to
quash the writ, and who argued that 1t was only
through application upon writ OF error that
the ground taken by counsel could fairly come
before the Court. Judge Barrett sustained the
view OF the District Attorney deciding that the
writ OF habeas corpus should not have been
granted, and that the motion to quash 1t ought to
be granted and the prisoner remanded.
THE PROCEEDINGS
Immediately alter Judge Barrett had taken hts
MI. Phelps, District Attorney, rising, said:-
q writ OF nabeas corpus. issued upon the petition
OF William NJ Tweed, made returnaDle before this
Court this morning and am here In response to
that writ. | regret to say that the learned coun-
sci who were associated with me in the trial OF
this case are neither OF them present had ex-
peoted the assistance OF Mr. Pecknam this morn.
ing, but he went TO Albany to the Court OF Appeals
before the writ was served and am informed
that ne has not returned from Chat Court dis
like to postpone the nearing, but would not like
10 go on In his absence. am IN the hands OF the
return to this writ that desire to be heard on a
motion TO quash II, II the Court see tit, and
motion Is based on two grounds-frst, the
affldavt upon which this writ was granted is not
verified. pursuant 10 the statute, and does not
enttle the prisoner to the benefit OF the writ;
and that is not merely technical objection. as
might al first appear. II there are facts In the Pc
tltiOn the verhcatlon would be SUFFICIENT, because
facts always true; but the verihcation did not
assume IN any way 10 verify the allegations in the
petition. submit that that is lmuortant, because
the petitioner is required TO negative In his ap-
plcatlon 1or writ, certain particulars which are
detailed in the statute. One OF these particulars
Is, 1t must be alleged in the petition that the
prisoner is not detained by virtue OF final Judg-
ment decree IN a tribunal OF competent juris-
10 ...ltA hat IN
tition, but II is not verified. And that brings me
to the second ground OF the motion to
panSing II themseves show that 1.-The the prisoner
Is not entitled upon this writ to a discharge
from custody and the writ WITT was M therefore sl
1t IS not necessary for me to call Your
Honor's attention TO the provisions OF the
statute which regulate this proceeding in this
STATE They very simple, very direct, aud
there is question but they are very familiar to
Your Honor. The twenty second section OF that
act describes the persons who shall not be entitled
to prosecute the writ-persons committed or de-
tanned by virtue OF hnal Judgment or decree OF
competent tribunal OF civil or criminal jurisdic-
ton. BY the twenryhfth section 1t is set down,
land 1t must be an allegation under oath tnat the
or any process OF Judgment OF decree as specified
in the preceding section" That Is, ip must
appear as IN the preceding section, that he Is not
detained Dy virtue OF any Judgment or competent
tribunal OF criminal or civil jurisdiction. The lam
guage oil the statute is not tnas ne is
cess or legal process, but that he Is not
detained by virtue oi anv Judgment OF any COM
petent tribunal oil criminal jurisdiction The iour.
teenth section, as illustrating the meaning, SAYS
'It is the duty Of the court of1icer to whom the
writ ls returnaoe, forthwith to remand the pris-
oner II detained in custody by any decree,n DC, !,
and to make it plain beyond peradventure what
the Legislature meant 1t is only necessary to call
attention to sections and az OF the same statute
Section Al says III 1t appear on the return that
the prisoner is in custody by virtue OF the civil
process authorized by law, such prisoner can only
be discharged as folows:-Where the Court has
exceeded It's jurisdiction as to time or place o. in
thnr fnrY
second section mo court or offcer shall have
power to inquire into the legality or JUS
in the preceding section, %; but what ne has got
TO ascertain ls IS IL a Judgment or decree OF q
he cannot inquire into the legality OF justice but
must dismiss The writ and remand the prisoner.
The construction seems to be so clear on It's lace
tnat II would hardly seem that question could
be raised upon 1t; Dut IL has been adiudicated in
two carefully considered cases, and to these two
only | will call your attention. The People vs..
Kavanaugh, just decided in the General Term OF
TINS Court, and the opinion Of Judge Westbrook
In the matter Of w. +. G. Shanks. In Kavanaugh's
case the principal question that was raised was
whether Court OF oyer and TermIDer OF Kings
county could sentence man to the Peniten-
magistrate VINO Issued the writ 10 inquire
into the cause or his detention, and on
certiorari TO the General term the action was re-
versed, and II was held that the prisoner should
have been remanded. In the case OF Shanks hold
ID my hand copy OF the manuscript opinion OF
the Court TO whom was presented this question.
The prisoner had been committed by the Court OF
oyer and Terminer OF Kings county for contempt
In refusing TO answer question put 10 him by the
Grand Jury. The commitment was for an unlim-
tied time-or until he should answer the question.
lie was brought subsequently, TO this cily on writ
OF habeas corpus ad testi1candum, while here an
other writ was taken out, and ne was taken before
aJuage ol TINS Court. That justice he'd, on the re-
turn Of the writ, tnat the commitment was beyond
the Jurisdiction OF the Court. because he should
nave been committed only for thirty days and the
commitment was not limited In point OF time.
That case went before the General Term on certio-
rai and the opinion was delivered by Mr.
Justce MestorooS, and concurred IN by Justices
DAVIS ana Daniels In which the decision or the Court
below was reversed and the commitment held to
be legal and valid. Therefore submit on the
1acts OF the petition tseli that suicient facts
set iorth 10 snow that the prisoner is not entitled
TO the discnarge sought ior by this writ, even
sum1ng the verincation to be good; and conse-
ouently move this Court that the writ OF haDeas
be qusshed and the prisoner remanded.
Mr.. DUDLEY FIELD IN SUPPORT OF THE WRIT
Mr.. Field said lit is a little remarkable that at
this day objection OF this sort should be urged
against the writ Of habeas corpus, the prlvi.