The New York herald., 1874-12-03

o
Joab Lawrence who alleges he was restrained OF
his liberty oy Mr. W. Q. Conner. Sheriff OF the city
OF New York. This is the verincation :-"Joab
Lawrence, being duly sworn, doth depose ana say
that the facts set forth IN the above petton sub
scribed by hlm are true.n Ii the gentleman pro-
duces the verhca ton IN the case OF Shanks have
/ no doubt he will find 1t The same. pass that as a
theory tnat cannot be very seriously urged for II
IL amounted To anything it could be amended. In
answer TO the petition Tor the writ OF haoeas COR
pus. alleging that the Court which has pronounced
Judgment against him Is not competent Court,
ls such thing. suppose the Court OF oyer ana
committed piracy on the nigh seas Could hot you
show thatf suppose u had sentenced man ior
crime committed In New Jersey. nothing having
Prison, and we should apply on the ground that the
Court assuming 70 be Court OF competent an
| any man the street. Gould not you investigate
that on writ OF haneas corpus The very OBJ.
the tribunal and tae competency OF the Court.
The language Of the statute is carefully drawn:
rendered by a court having power to render the
Judgment complained or Suppose IN this case he
and . writ OF habeas corpus was issued. the
Court OF Oyer and Termner they say, ID competent.
Competent to Sentence man 70 State Prison for
mlsdcmeanor, and such sentence would be .
nullity. Persons committed must oe detained oy
in judgment and competent 70 pronounce
q Judgment OF the Character Of that which
Is pronounced. The other section which the
gentleman refers TO provides that u 1t
shall appear upon return that he is detained by
virtue OF the judgment OF a competent tribunal he
Is TO be remanded but that Is to be investigated
cases. cases The shanks case proves nothing. except
that writ or nabeas corpus Issued In New York
to bring up person mplisonsd IN , q common jan
oyer and Terminer. He also referred TO the case
OF Kavanaugh. He did not read enough OF that
case. That case held not only that this writ could
be main tanned on matters subsequently arising,
but "by showing want OF Jurisdiction" In
ex parte evidence, where pardon had been
obtained by fraud, the writ was held good.
In Div1ne's case the writ was sustained, because
tices sat when the law required three to consti-
tute the Court In ex parte Lang, recently decided
by the United states SUPREME Court prisoner a re-
was released on habeas corpus. In Illinois still
nearer case had been decided in Manx We. Whit
son, Sheriff. The prisoner mad been sen fenced on
| forty counts for ten days on each by competent
| Court but the supreme Court or that state de-
/ cided that all the sentences began at the same
time ana the party was entitled 10 release at the
end or the drst ten DAYS. In very late case that
held That where the commitment was extra
| judicial II might oe attached on nabeas corpus.
and in lact, that was the only proper remedy. How
can we, wnen one term OF imprisonment has ex.
pired and the Tine has been PAID and the second
Imprisonment 49, as we think. without jurlsdic-
sion, raise the question:
Judge Barrett-You ask how. suppose there
is no doubt you can raise II by writ OF error.
Mr.. F1eld-NO In TINS case we cannot The
Court quashed the writ OF error because the writ
or error was the true remedy. Alter his term is
/
even II we are entitled to our process OF writ OF
error, II the sentence Is volG for want Of Jurisd'c
ton, we are not bound to follow that tedious pro-
cess. II show you that IL is plainly illegal-and
OF course, II II is You viii not shrink from saving
! the record and show you tnat the Court was in
competent The Court cannot AVOID the trial Of
nrss thaI the court was not Competent to sry
the case at all second, that IL was not competent
TO- render sne Judgment that M was as rendered IN
third, 1t was not compe tent to render the second
sentence Now, Sir, are not you TO hear that the
to do II 1t appeared the return tnat the pris-
oner IS in custody on civil process The i0rty-
second section ls that no court or of11cer skal
have power to inquire into the legality or justice
OF any proceeding specified In the preceding Sec
tion Does that include the question OF jursdctonf
What Will you say then. to the case OF Kavanagh,
Just cited, where the Court say you can inquire
into the JURISDICTION though the Judgment be valid
on its lace 1t never was the intent OF the Legls-
lature to prevent the examination oil the legality
OF Imprisonment when there mere was a 2 claim Of no
prepared to argue, think, TO show that the Leg
islatute could not deprlve the citizen OF his right
by this writ to inquire into the competency and
Jurisdiction Of the Court under whose orders he is
held. 1t is constitutional writ, but 1t is unneces
sary to argue that now.
Ex-JuDGE coMsrocK's ARGUMENT
Ex-Judge Comstock-I VIII say word or TWO
upon this particular matter and only word or
etwo, because in the examination which nave
given to the general case have assumed waat
seems TO ne disputed by the learned counsel Tor
the prosecution. have assumed that the case
would be heard on It's merits: NAV ada, have
assumed that when the Court acts without jurls-
diction or power it was the same as though Il mad
not acted at all because IL il correct to say that
Judgment or sentence without power to pronounce
IT, IS mere waste paper.as It Is IN the eve o. the
referred. assumed Court sitting ano acting
within its jurisdiction; then questions OF
M true ns meaning naS''' Of the statute. But on on
a writ OF nabeas corpus, which goes to the juris-
or propriety. That Is what Is meant by legality.
The counsel for the prisoner are exceedingly sen.
sbe that in this particular form, on this writ OF
haoeas corpus, the class OF questions winch we
can raise Is quite limited. The number OF que3-
tons which were raised upon the trial is legion.
There may have been, perhaps there were, a great
many errors committed in the decision OF those
questions which can only be reached uoon writ
OF error; but the view OF the law we entertain is
that SO far as this writ Is concerned.
it went straight and -. direct TO tae
founded or these sentences are founded;
that these are jurlsdctonal and properly belong
Now, your Honor Will see tne question more clearly
as the case proceeds. alter the return Is put in
and It rs traversed. / may just Indicate, however,
in general way, that we shall challenge, in the
first place, the power OF the Court TO sat 10 the
case; and II we are rient IN tnat proposition
what possible doubt can be entertained that the
proper remedy Is by habeas corpusf Let me illus
trate Suppose the Special sessions, which can try
slaughter, tries him and sentences MIN TO impris-
onment Tor five years, would not your Honor
4 lease that prisoner on habeas c0rpuss WnyS Why,
because. although that was a competent Court In
| certain sense, that is, Court competent to he
Court, yet, 1t was not Court competent to hear
that matter; and hence It's judgment Is not a
Judgment OF any Court at all; 1t IS mere nuga-
| tory and waste proceeding. That may apply to
any Court. II we are right that the Court uf o er
and Termlner had not jurisdiction 10 this case
the remedy Is the same, by babeas corpus. We
snail challenge in the next place the Legality OF the
jury. we snail try to main tam and want to be
heard on the question that the jury was not en-
panelled according to the law OF the land, and
that, therefore, they could not sit and render q
verdict. 1 won't indicate how we are gong
to present that question Suflce 1t to say
haoeas corpus gives It, goes straight to the ver-
dict and sentence upon the verdict. once more,
after the verdict. upon the most extraordinary
indictment have ever seen. alter the verdict
was rendered, the Judge pronounced one SEN
tence, which may be lawful or an unlawful one.
Then he proceeded to pronounce ffty otner sem
tences on the same Indictment, In consecutive
order. Well, the authority for pronounclng
Judgment the verdict, and want to try to
show. and ask leave show. n can. that the