New-York tribune., 1874-12-23
THE COURTS. .


Tweed was DrOugnt GOWN 10 tue COuft-nOueo
quito early yesterday, bat was kept in secdson in the
small anteroom adjacent to the Courtroom until other
court business had been adjusted. His counsel. Mr.
Edelsten. Eihu Root, David Dudley Field Dudley Field
Willard Bartlett, Mr. Bacon Mr.. Fullerton, exJudge
Comstock, and Wm. o. Bartlett had pre-
vtously taken their seats 1t understood
that judge Barrett would not alter hisprevious de-
cison but the object of Tweeds counsel was to have
the proceedings in such form that the appeal to-day to
the General Term Of the Supreme Court and the ual
appeal to the Court Of Appeals would not be summary
dismissed. Mr. Peckham moved 10 strike out seven OF
the ten grounds which Tweeds counsel ask for his
release as being mere conclusions Of law. Mr..
Field insisted that such q motion was wholly
irregular and could not be made. Judge
Barrett without passing directly the question,
decided that it not necessary for the DistrctAt
truey TO demur TO or TO traverse the answer and that
IN the absence Of either demurrer traverse the reator
must his return Mr.. Field then offered his docu
mentary proof all Of which rejected bv Judge Bar
rett except the bare records Of the Court He then
sustained his previous decision and remanded Tweed.
motion admit the prisoner ball. under section 90 Of
the laws OF 1873, was not seriously pressed
appcstlen Of william NJ Tweed for writ Of Sabeas
s the RETURN Of the writ and the bling Of papr
denominated by the counsel as an answer Upon exam
there was nothing presented by that traverse
which raised issue which could be examined into
nature Of habeas corpus; but bear IN mind the fact
thi another writ has already been disposed Of before
tons which raised in and that the application
Vacation or adjournment Of this Court another writ was
procured on petition not presented to this Court,
GO could td'' be upG4h disposed Of IN the manner s that
the other writ was disposed OF. Being desirous
Of this appncation It should lie heard aud disposed Of
rs soon practicable am inclined to refrain from
making motion to dismiss tnis writ upon the petition
aud return. and willing that anything that may
properly be heard uron the merits should be heard
hfa nnliN mat In
called it is clear the Court in possible
and Mr.. Peckham will make motion 10 strike out the
that conceive clearly no consideration Is
proper tn be brought up on this proceeding. leaving
may see f.
Mr. Peckham-we move upon this and the re.
turn 20 strike out ia contained
in the 90. 4;n 5h eth, 7th s;h ami 10th pArasrapn:
Mr. Hed-I make the preliminary objection that you
cannot make that nOtl0u.
Judge Barrett-That is not preliminary objection
MIR Peckhan-rne question is raised upon Section 4S OF
the Habeas Corpus Hct take it need not particularly
call the attention of the Court to this statute AZ this
tmc andTnav generally refer To the fact that prior to
that act the conclusive aud the onv question
was the application Of the law 10 the matter stated in
this return: suppose will be conceded that the act
itself-Section 4Sas made change n the law IN rela
to TO nabeas corpus except so far a. to allow the party
aege fact Gundt er post fdct0 relating to the
return which should pr"pery snow tnat the party was
thai there was no commitment or tlat tue alleged term
had expired, or that IT did nt appear what the term
was or other fact that the Court could iQuire INTO
MIR. FIeld-It desire to shorten th!s case as
much as pusshle inasmuch as tlere was All drion
1
Tomorrow the General Term. We supposed We were
in no need OF spending considerable portion of to-day
10 discussing any question. This Is molten to strge
out. We wished 10 make a preliminary objection TO u
motion Of that sort-tnat could not Ge e1terlned d
Tue party brought up may deny anv material facts or
ton was unlawful or that lie entitled to his dis
charge. TIE counsel moves 10 ttriSe out portion OF
the answer ON the ground that II true 1t does
not eutltle tue relator to mis- discharge. What Is
that but demurrerf That Is the proper form. He
should either demur or take issue lie VIII deinur on
facts VIC are perfectly content and in fact don't
more. To strike out is indirectly to do what
he should DO by demurrer, and therefore it is not
proper. II, however. YOU desire to bear arrGment
whether it is winch party can make We
ready 20 INTO it, The application Is to strike out al
but the first. second AMI nh, ninth Paragraphs; no
MG%i articles of 'u0 this s Traverse we will not say
another word on this subject; we are content.
party putting hnseif In that preIlcament ex-
actyelther admitting or denying It's by indlrecton
he seeks to accom- psn that wnlcn he can oulv accom-
plish by demurrer suppose there were dem lrrer III:
tsTnS'a @9S Se!e WAS xs IT, Sn sGT y yGq
First, the ayermeut in tine third that the Court had
jurisdiction to try the alleged ms el9'inGrs ] ALLEGED rt
to know Why moi Coud not prove tnat tho PRISONER
was never in this county und aIter sehteuce 2 Does
the allegation III the record MAKE proUt against the
proof III our offer
Mr. Peckam-Yon don't allere any fact to be proved.
any fact to show that the Court had no jarlsdlc-
tlon. No Court can get jurisdiction ag"Inst
Sci saws we have nothing 10 prove: We have tins to
s"is % tSs court m sn Of S's sneca n
sSions shall have exclusive jurisdiction in the County
Now Sir. What does that mean Here is the over
aad Terminer assuming jurisdiction does II mean mat
1He over and Termnrr can cannoll Does exclusive
mean exclusive or uoihing at aha The wav which
they rid of it on the tlla was bat "coinplnts are
prove that this Indictment was made Oh complaint
made by private person Hers rs statute that tnaes
complaint for misdeleanor except thc Court uf sp,
cal Sessions If that pe TO- Is not II @ an aIs|er IS o to AL
ment the Court of Oyer anu Teiner has 9ccdrd that
Court can concuslVey decide ITS own jurisdctioni
N, court in this country can ,h decide that ex
A. question Of law it may he raised IL all places be-
fore all courts aud before al ocefs & Ine 22 section
whethera pei is committed or detained py virtue OF
any yye ad lSs discussed d. certain Extent already
You will allow me. am sure TO speak on tnat subject
tribunal competent for all purposes that Is competent
for sonnet When you go into tue Question OF cOmpe'
competent do the act compainedof? SIR the highest
court in this county ssTaa n1r apd
man be hanged tor murder, would not be compe.
means Competent Tor that purposes to do that thing.
Now, pass to the next specification that there was
being twelve the box 10 pronounce tins verdict
there only eleven as IN the Canceni case II YOU
car any brought ON nabeas corpus prove that
the Jury Which Se @ Ts told that S paaph ~ of
our answer alleges no fact OF which we can
SoT have no knowledge iudlcial officer that there
was any such jury, and don't know that we are not
nrenared 10 prove that the jury were only SIX or that
they we're not npaneed or that there % was no Jury:
W6en we come TO the proof IL may be that you VIII say
shet nrnof does not make at all tnat that was not
legal Jury. concede you don't try the Question OF
Ieralty but these questions you must trv ana must
decide and we have remedy by appeal 10 strike out
these two heads articles is equivalent to saying that
Wecannot that this indctment was iound on tne
Complaint of private person. We offer tins proof III
YOU reject it. give tue beuett OF tie allegation Let
ne 90 I'm to the appellate court with the offer. TO strike
shts out 10 to exclude from LII king the offer Sont
We can make under the FIRST and second but GER
nharf fha n and SO