New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-07-25

same circumstances, has been paseed upon
by the judges of the Sixth District and
Superior Criminal Courts for the parish Of
Orleans. Had they concurred in opinion.
would undoubtedly have denied the writs
in these CO es; but as the two learned
Judges have decided, the one that the law
is constitutional and the impriso 1ment
Law .ul, and the other that the law is
unconstitutional snd the imprisonment
uulawidl, reluctantly consented to graut
the writs. This conflict Of opinion was by no
meaps remarkable, as the constitutions ;ty
Of act No. 9 IS not free from doubt.
The virtual reversal of the Judgment Of
the Judge Of the Sixth Dis.fict Court, on
babees corous. by the judse Of the Superior
Criminal Court. 8 good law, Gusts me Of
jurisdiction. End would render suy judg-
ment Of mlne nuyatory. l delive al the
jur sdic,iO l possess tOm the same cOnsti-
tn, :On and laws as Judge Saucier, Of the
Sixth District Court.
Article nine o. the constitut:on declares
that the rit Of habeas cOrprs shall not be
suspended.
Article 792 of the Code of Practice says:
''The district judges and the judge OF the
Criminal Court OF New Orleans, and the
courts established or to be established,
whose Jurisdiction exceeds $500, shall have
the right of granting writs of ha Oeas corpus
within the limits OF their respective juris-
'icue. cS CcpL ~ luc CdecS pION.OCO Ny
the following article"
The article following prov dc, for alb
sepce and sickness Of judges, e.c.
! see nothing in the law creating the Su.
perior Criminal Court that in any degree
affects the Jurisdiction of other courts, Oh
even f'n's at its exclusive jurisdiction
The words "have power to issue habeas
be construed 10 confer exclusive jurisdic-
ton. The writ o. habeas corpus is in no
sense a criminal proceeding.
lhe law will not endure the illegal IN
pl sonmeut, whether in public pi ison,
pl.vate house. or elsewhere. This wit asks
not whether the prisoner is guilty or ipu'
cent. 1t simply urings the prisoner. with
look at the cause of detention. Jf it ap-
pears by the retuln that the imprisonment
is warranted l'y the laws Of the land, the
prisoner is. sent back to former custody
If his det ,ntion is contrary to the lave of
the State he must he discharged. The
" it sserts no innocence and puDishes no
guilt. 1t is undoubtedly the most impOr-
tant wilt issued n frG State; it can not
be constitutiouaIly suspeudt d, and shOpld
DO be abrid. d.
1t ma he abls ID by q an tire it improvi-
dentlc. Wien should TT be granted, and
it NAV also be abr ID b 'lofusng it when
it is Il e sw, epyy OF the ldge to grant it.
Importlrt , d si'utaly as believe the
| Wit - be, '';red to issue these until
overpowe, by upottuni,:es of members
of the bf". repr :eu.ing relatori. l saw
core;c .ipo op:r 'ons between brother judges,
| ard ouiu see no nportspce my decision
COZ d have.
| But the writ having issued, aud not
doubling the jurisdiction of the court -
| pr g upon the issue made namely, the un-
| constitutionality Of the law under which
| the relat )rs are imprisoned, the first propO-
sition to be considered is whether the un-
| constitutionaity OF law under which
sentence las been PASSED is sufficient cause
tor discharge OF W It of habeas corprs.
Tbs Iirht is denied by counsel for the
State, srd rev c ted numerous authorities.
Counsel fo' reetors, l think established
ii atirma. -ee of the proposition upon both
principle ard by autbGri :.
One care VIZ cited il which the Supreme
Court Of Wisconsin. IN lengthy decision
decided that a seutence regular in evely
part of the record, rendered under an un
constitutional law Of the United States
Court is not binding on citizens of the
Urited States. and discharged the prisoner,
the sentence of a ULited States Court not
withstanding See Wisconsin, l57, State
on relation of Booth and Ryecritft.
1could not 60 to the length of the ca1e
cited, but it declares the general pl .nciples
of the writ of habeas corpus, in a7sert'ng
that no one can be imprisoned and detained
unless il he il accordance with the cOnsti-
tuition end laws of the land. As to the
cases of sentences of an Inferior or statu-
tory court, l entertain no dOubt of the
rig 1t to review the constltutionaIity Of the
law under which they act. In addition , the
authorities cit ID by counsel. and bis able ex-
position OF the constitutional law bearing on
fhe subject IN hand, find in the Code Of
Practice, article 624, il which fIh powers rsrD
discharge, if illegally detained. is given,
and reads: But If it shall appear 70 the
judge, from the return and snnexed dOcu-
mrnrT, or otherwise, that there is no cause
for arrest or confinement. or &c he thinks
that such arrest or confinement can not
legally continue, he shall immediately set
the p, isoner at liberty"
This article contains the wisd ON aud man.
hood OF the common law, which will not
endure the Imprisonment Of any one, how
ever humble, while the common law, in
GLIDING Magma Charsa, while the bills of
rights in the constitutions of this aud our
sister States, denOuuce Restraints upon the
most comprehensive solution of redress
ever pepued. If he 1.-THE judge) thinks that
such arrest and confinement can not legally
continue, he shall Immediately set the pris-
oner at Iiber.y. II law be unconstitu
tional can Judge upon h's oath of office
say that prisoner is legally detained un-
der an unconstitutional law9 Let US for
this point suppose the Supreme Court Of
the state had pronounced No. rnconstitu-
tional; could it he said that the imp ison-
ment of these prisoners could legally con-
lei Certainly not.
In the language of the Code would be
oomDelled Immediately to set the prisoners
at l.oerty. l ent ,rta,n the opinion that
law declared unconstitutional or manifestly
so wocld en,it'e the prisoner to rei'et on
"babeas corprs."
what would legsl'y justify q judge in de.
clarip" law unconstitutional, when col
latera lv presented Mr.. Cooley, in bis much
approved work on Constitutional Limita-
tioDs," page 1C9, declares ''the task Of de-
claring a law unconstitutional is delicate
one,' and on page l6l that "some of the
courts will not enter upon the consideration
OF the unconstitu. .ona''ty Of law without
full bench"
This importance of the subject has not
escaped the notice Of our own Supreme
Court. In the case Of syndics of Brooks
We. WegmaD, 3 Martin, page l2, the Court
says: I'VE reserve to ourselves the au-
thoIity to declare null any legislative aot
which shall be repugnant to the constittt-
ton; but it must be manfestly so. not sus-
ceptible of doubt" 5 Robinson, 3S3; Nlcho
las VS.. Thompson.
THE Supreme Court, as the guardianism
of the constitutional rights of the people, is
authorized to pronounce on the constitu-
rioDality of the acts of the two other de-
partments of the government; but no act
of either will be pronounced unconstiru-
tiOnal unless manifestly so, and the incom-
patiblity with the constitution must be
evident 5. Annual, 758, State VS.. Judge
of the Fifth Judicial District. lit has
always been held that the presumption.