New-York tribune., 1874-12-03


NJ pio,d 7, 20 little remarkable that at
mis- aav an obecon OF this sort should be urged against
The writ OF habeas corpus, the great privilege oi 'no c
zen against illegal arrest and imprisonment out IL Is
ihe more eairkable because the objection mas peen
made and overruled again and again. Why, sir, the
gentleman coufounds two things entirely distinct; nrs
he jurisdiction Of the Court render the Judgment and
,eccpd the legality of the Judgment The first objection
he makes s 20 the verhcaOn Of this petition ana ne
says it is detective because he really does not swear 'a'
the law is incorrect That rs tho substance OF H. He
.wears the facts alleged are true
Mr.. Phelps-No. Sir.
Mr. Feli-wh, else is therc in butlaw or facti The
vcracatou ia that tho facts set forth by me IN the
above petition rl'. Here is PETITION on rt wrt Of
habeas cOrnus that has iuIt come rom INC bo eges
no Mas restrained OF his liberty by the Sherln o. .ue
Civ of York TINS is the verhcation; "Joao
Srcncc S bcInS duly sworn doth deposc and saw tnat
the facts forth the above pe'uon SUBSCRIBE oy
hIm are true" gentleman produces the verihci
IoI in the case of Mr.. shank' have no doubt he viii
dnd TIE same pass THAI as thing tnat cannot oe
ming it could be amended In answer 10
ieging that the Court which has pronounced judgment
atm not competent Court the counsel SAYS
l. enough show that there is such thing Suppose
the Coult Of oyer and Iermlner sentences man Ior
muricr. who has committed piracy on tho high seas,
Gould not you show tbiti Suppose 1t had sentenced
man Ter crime committed in New-Jersev, nothing hav-
ing been this city, aud he Is sent TO state Prison.
9s1nm oSI w tS be- ccnr Of competent authority had
more rient him than any man In the street
Sorpnsi Tnc very oj.ct is to Investigate the juris
dicou thu TRIBUNAL and The competency OF the court
The language of the statute Is carefully drawn lt
nv ,, ~, aver to render ihe Judgment com
plaucd Of Suppose this case, be was sentenced 10
ste Prison aud had gone there aud WIT OF habeas cor
nus WAS isSAcd TIE Court OF Oyer and IeIminer they
saw is competent s,ltIs, but for all purposes. But
IL p not competent 10 sentence man 10 State Prison
for mIsd, le~nOr ana sucn sentence would be a
nulhty Persons committed must be detained 6y virtue
Of th, haa dsncnt OF competent tribunal 1t means
competent to pronounce IN Judgment and compe;
tent TO pronounce Judgment OF the Character OF
that when pronounced. Ine other section, which tle
upon rctdrn that lie ia detained by virtue of the udg
mcnt OF a competent tribunal he is to be remanded. but
be investigated upon the return call your
attention cases. the SAauEs case proves moth
YTrk 70 'r.. Zap person imprisoned in a cOmnon jail
for cou,,np, 0e oturn 0le at Court Of over and
lie did not read enough of that case. That case
held Tot ouly that This writ could be main
"by showing want OF jurisdiction" In ex parte
evidence, were q pardon had been obtained py
fraut tbs WIZ was he'd good IngDVine's case the
writ was sustained because 1t was shown dehors the
record that only tH Justices sat- when the law re9arG1
decided by the UNTO States Supreme Court prisoner
resrutcpced Ly a competent Court, but Illegally. was
released haueas corpus In Illinois still nearer
case had decided ManX against WhitSOn Sheriff
days ON each hy u competent court, but the Supreme
Court State ded that all the sentences began
at TIRE same time ana the party was ehtteu 20 eleas1
the end Of the first 10 days In very late case-hat
Of HagGcrty in TINS S:ate-tne Court OF Appeais nea
that where the cJminItmenl was e1tra]uuca IL nlght
be attached nabeas corpus and in fact tha was the
v.
Imprisonment pTed and the fine has been paid,
and be second Imprisonment is, as we thInk without
Jurisdiction, raise tIe q IestiOn
Judge BlIrctt-YOu ask how. suppose there IS no
doubt YOU can raise II by VIII OF error.
Mr.. f ld-NO; by this case We cannot. The Court
Ouashed the writ Of error because the witt
OF habeas corpus the remedy After his
term is expired tue only remedy is by habeas
corpus. But even II entitled TO our
process writ Of error, II the sentence Is void for
want of Jurisdiction, not bound TO follow that
tedious process II show you that 1t is plainly illegal
and, of coarse, II II you viii not shrink from saying
so entitled 70 IA discharge We put in the record
Court caunot avoid the tIal OF that ques,iO Our
petitlon AYERS three things: first, that the
Court was not competent to try the case at
all; secondly, that 1t was not competent TO
render tue Judgment that rendered in the
case which inciudes ali the judgment; thirdly it was
not cOmpettnt to re der the second sentence Now,
SIR are not that the 4lst section provides
exactly what yOu il 1t appears on the return
That the prisoner custody on civil process The
S2d section OIL shall have power 10
lYnpEe 1alp l4e egdlGX OrjpaUGe qtoapy npoffeqDg
sle question jurisdiction WAT VIII you say, then,
kavdudh just cited, where the Court say
YOU ure into The jurisdiction though the judg
ment be ydild ITS face. t tho intent Of
the LEGISLATURE TO prevent the examination OF the legal
~ Of Imprisonment when there "a claim OF uIs-
dictOn Ii called for 1t should be prepared
think. 10 show Tat the Legislature could not deprive
right by Jhis to inquire the
<mpetencY anu Jurisdiction Of the under whose
Csders held IL constitutional writ, Is
unnecessary 10 argue that now.