Year: 1874

Ex-Jglge COmstOck-I will say a word or
two upon TINS particular matter, and only word or
two, because in the examination which have given to
this general assume what seems to bo dis
pued by the learned counsel for tho prosecution.
have assumed that the would be heard on its
It's may add l have assumed that when the Court
acts without jurisdiction power. it was tho
though 1t had not acted ALL because it is correct to
say that u iCneut sentence without power to pro-
uounce il is waste paper-as il Is in the eye OF the
law. All these statutes to which the counsel has re-
terred assumed court sitting and acting within its
Jurisdiction; then questions OF law and equity may
arse as to the true meaning Of the statute Bat
writ of habeas corpus which goes TO the
Jurisdiction, may not raise q question OF
error or proprety-that is what Is meant
by legality The counsel for the prisoner exceed
lncly sensible that in this particular FORM on this writ
OF nabeas corpus the class OF questions which we eau
raise Is quite limited. The Elmbcr Of questions which
were raised upon the trial Is legion There may have
united in the decision Of those Questions, which
be reached upon the writ OF error but the view Of
the law entertain IS that so far this writ j.
ccrDcd, IL went straight aud dlrect to the power upon
which sentence is founded, these sentences
fouuded--tnat these are jur,dictional and properly
belong to the lUQuy under tie Wrt OF haDeas corpus
Now, your Honor VIII the question more clearly
the case proceeds after the return is put IN and it is


tbat we sIal Challenge i'm the first place the mower
of the Court TO SIT In the case; ana il we
right ia tBat proposition, what possible doubt
be entertained that the proper remedy Is by ha0eas
CORPUS illustrate: suppose the Special Ses-
sOns, which try only misdemeanOrs. arragns
for mansaugbter tries him. and sentences hun TO lm
prsOnmeut for nve years would not your Honor release
mat prisoner Oh habeas cOrpusi Whyi Why because
although that was competent Court IN certain sense
that is Court competent to be Court, yet 1t was not
iudCnent ia ot Judgment OF any Court AT all It ia
GugatOry ana waste proceeding. That may apply
10 Court II We rignt that the Court OF oyer
and Terminer had not jurisdiction IN this case the
remedy is the same, by haOeas corpus. We shall cha
lenge in tie next place the legality OF the jury We
shall Try TO MAINTAIN aud want to be heard on the



according 10 the law OF the aud and that therefore
they could not and render a verdict. won't indicate
how going to present that question Suffice il 10
ray claim the right 10 be heard, aud the writ OF
hbeas corpus gives IT, goes straight to the verdict aud
sentence upon the verdict. Once more, after the
dict upon tue most extraordinary indictment have
seen, alter the verdict was rendered. the Judge
pronounced one sentence, which may be lawful or
unlawful Then he proceeded ~ pronounce 80 other
seGteuccs on the same indictment IN consecutive order
Well, the authority for prohouncing Judgment Is the
verdict, and want TO try 10 show. aud ask leave 10
show if We cam tDat tAe verdict did not authorize
Lim 10 pronounce that sentence; neither the in
dictnent nor verdict. Just look at The question


broad ght. Her. Is prisoner arrdl&ned at the oyer
and TernincT for the crime OF peit larceny assuming
that the mad jurisdiction, and the Jury brought IN


verdict for petit larceny ana mat then tLe Court sen
him for grand larceny. Is that Judgment OF
competent CoUrti 1t is not The judgment Of Court it
Is tbe wholly unduthoilzed decree OF person "bo III
aoDg that act acts without authority ana II Is waste
paper; ", II your Honor please SUPPOSE tnat on an
Indictment ana conviction for grand larceny orDnrgary
AJuOgc shOuu afbfdry sentence the prisoner 10 dealh
would not that be without jurisdiction and wholly void
CfH neSuouiu seolehse MIN 10 OmprlsOnnent during lie,
tyOu please 1t would be equally contrary the law,
tnd tue eehtebce "Ouio DC nullty. A1d Is q man TO
await the slow process ot wr OF In such ont
rageOus proceeding as thatl Wen, II I am right i'm
Illustrating the Gaze IN that manner 1t is equally plain
where the law can pronounce iudgmeuL for
pffeDse and O1ense only, and cannot pronounce il
Tor two, or three hundred these questions are
turisdlctlOna beg 10 say we are not here "a dues
lion OF excess OF single sentence. We here To re-
view great number OF sentences OF TsOnmeRi each
adjusted 10 the other In point OF time 80 that when
ends other begns, and we challenge the Legality
Of the sentences entirely after the first The first
sentence now IumaerlAl, because 1t has been
tiaed These statutes which the counsel refers
hafa century old and back OF the Revision 1880
the question has been up great many times, and the
rule has uniformly that where the question i
mower TO do anything that can be raised habeas
s0rpus Jurisdiction undcrlies IT all. Now think II
would be far better and far discreet 10 pass upon
this question and II upon tho views now advanced By
dc AttOrneY your Honor ht 10 remand