The New York herald., 1874-12-23
The Habeas Corpus CaSe---Important
Argument of Counsel.
The Writ Denied and the Pris-
oner Remanded.
Application for Writ of Ger
tiOrari Granted.
B ALL r T. + L $ Z ID


rose, and, addressing the Court, moved on the
matter or the haoeas corpus case OF William NJ.
Tweed, postponed till then. he said that alter
return OF the writ and the fling OF the papers
designated by counsel as answer TO the return ana
on examination OF the papers he was led 10 oe-
neye that there was nothing presented ny 'hls
answer TO the return which raised any issue that
could be determined by the Court Ihis was
proceeding IN the nature OF writ OF haoeas cor
pus. But it must be borne IN nina tnas one VIII
had already been disposed OF, presenting supstan-
italy the same questions raised on this one. Ihat
application having been made TO another Court
durtnr The adjournment OF this Court, and tnis
writ being procured on petition not presen ted
to this Court, he was desirous, II there were any
action TO be taken on the merits OF
this application, that the same should be
mad and disposed OF as soon as practicable.
He, therefore, refrained from making motion 70
dismiss writ, that the case as 1t at present
stands, be disposed OF on its merits. he would con-
tent himself with moving 10 strike out such mat
sers as are entirely inappropriate TO the consid-
Grafton OF these proceedings, leaving the other
matters TO be disposed OF afterwards as His
Honor might seem tit.
Mr.. Feld-What is the motion?
Mr. Peckham-I move TO strike so much OF
the matter as is specified and described in the
answer by paragraphs 3, 4, 5, 6, !, and 10.
Mr.. Fied-We object. No such motion can be
made.
Mr.. Pecxham-The proper way TO object IS to
argue against the motion after il Is made.
MT. Field-We make preliminary objection TO
the motion being made.
Mr.. Peckham-Counse must wait TO have the
motion made before he objects. Your preliminary
motion Is a very novel proceeding indeed.
Judge Barrett-rhat is not preliminary motion
I'M rhp m n |
you alter counsel has made MS statement.
Mr.. neld-Counse on the other side mas already
made motion to strike out ceriain portions Of
the return and answer.
Judge Barrett--rhe law sustams him in that
Mr. Field said he desired TO make his motion be.
fore the merits OF the case were gone into.
The Court overrued the motion to argue the
point TIL after the motion OF the prosecution was
properly before II.
Mr.. Field-Your Honor win see by the statute
that the right or person on habeas corpus and
the return made by the person OBTAINING HIM
rs limited TO the denial OF any OF the material
facts set forth and the allegation Of any facts
showing his Illegal Imprisonment
The Court decided 70 hear prosecuting counsel
Mr.. Pecknam said section As OF the act made no
change IN the law except SO iar as to allow party
to allege any iact-aluado or ex post facto-to
the return which should properly show that the
party ought TO be discharged, that judgment
should be had tnat his term Of sentence had ex.
pred, and any other material TACT that was issue
able and that the Court could try. We lound in
the first and second paragraphs OF the so-called
answer that it is alleged that the Court from which
sald process and warrant were to be Issued had no
Jurisdiction or power 10 take cognizance OF or 10
try the alleged mlsdefneanors mentioned IN the
said pretended warrant or process. Now the
allegations do not set forth any fact nor denial or
any allegation or fact into waIch your Honor
can inquire, nor do they present any
fact issueable tnat would have any
controlling effect on the judgment OF Your Honor.
The third paragraph al their so-caled answer sets
qulre-whetner the Court had jurisdiction or not,
or whether 1t nad right to do tnat which the
commitment shows 1t had DONE Here is mere
naked question OF law presented TO your Honor.
nothing being presented on the allegation
pursuant TO the writ The fourth paragraph sets
1ortn that the pretended jury who tried the case
was not properly empaneled and was not legal
Jury, and therefore. had no jurisdiction to try the
defendant or give verdict. contend that Your
Honor cannot go into that question as to whether
the jury that tried the case was properly empan-
the Jury, every chalenge TO the array,
and would. In fact, nave TO Try every
these questions Your Honor would have 70 try on
the allegations here presented. That is not an
hftR paragraph alleges that the judgment Of the
Court IN execution OF which the sentence was pro-
conclusion that there Is no jurisdiction SHOWN
IN the warrant ITSELF Ine sixth paragra oh
alleges that the trial OF the defendant was one ior
msdeneanor, and ior which not more thaa
one years Imprisonment ard nne of $50
could by law be pronounced. That Allegation was
OF the same character as the others. Ihe
whole question here presented bears as
%neaeT pere law was on as in the
Court TO award more Than one year
anu whether in TACT more than tnat term OF pun
ishment nad been rendered. The seventh para
sentence
year is VOID. AS to the eighth there Is no ques-
tlon about tnat ihe ninth paragraph alleges that
the warrant or process does not conform TO the
alleged judgment OF the said Court OF oyer and
Tel miner and IS not warranted by the same. The
language may not be precisely IN accord with the
setting forth OF the acts out we are not desirous
TO raise question OF that character. Now, Your
court Of highest resort ana, / believe, but
upon it-.Sat it IN nowise alters the law
with reference 10 the right TO inquire into
ee aae Win M 81 qa2eas cofpus = Is
lstence o fact lucendo or eX post lacto, which in
itself would terminate tue sentence. Tne great
OBJECT OF tile statute was to reach prisoner VINO
was committed by no process al ALL where a
prisoner was simply neld at the command or hat
OF an lnGivdual IN authority, anu for whose de-
tention there was no legal warrant AZ all. That
same rule has been neld mere IN the Mcleod case,
that OF Prince, in the tntro volume OF Hall on
the Mcleod case. l therefore contend, Your
Honor, that the return IN haDeas corpus Is hn al
ana caanot be inquired into except so far wnere
allowed 10 DC inquired by that other section.
admit il there was any iact alleged IN the answer
to the retuln--any act whlcn IS IN Itself a
TACT uccndo or ex post iacto against the legality
OF the commlttal-there would be a right 10 cnaige
that a fact and proper 70 inquire INTO. But
they ought 10 put IL the record, and not put us
so answer allegations where not single TACT is
stated.
Mr.. Field-Counsel makes motion to strike out
our allegations; now / desire to make a pre-
hmnary mouon that motion OF this kind cannot
be entertained. The iorty-eighth section prescroes
exactly wnat Is to be done. A party brought up
deny any OF the material iacts or allegations, aud
may alege any fact that SHOWS that his mprison
ment was Illegal that he was entitled To dis
charge. Counsel on the other side moves to str ke
out portion OF the answer on the ground
tnat II true IL does not eptite the re-
lator to MS discharge. what is tnat bul
demurrlng to that portion OF tue return2 That II
the proper and usual term. Tney should, there
fore, elmer demur or take issue. Let him de-
muir; we are content. ii he admits the facts
there alleged we are perfectly content and, In
1ant xaaf nafhind IA rik nut LII