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Show 4.12 APPENDIX. had the writ been nwn.rdcd, and the rase hr:trd, and the disC'hn rge rcfu~cd, it would not be withiu the decision in Ex parte LauTence, for there the hearing was before a court in term time, upun a full examination of the case upon evidence adduced, and not at chambers ; but the more obYions distinction here is that the writ has never been awarded. And the agreement of counsel that it should not be in a certain eYcnt, even if binding upon the client t'herr, would not affect him here. Now, while I aver that the writ of habeas corpus, ad subjiciendwn, is a writ of right, I do not wish to be understood that it should issue as a matter of course. Undoubtedly the petition must be in due form, and it must show upon its face that the petitioner is entitled to relief. It may be refused if, upon the application itself, ·it appears that, if admitted to be true, the applicant is not entitled to relief; but where, as in the case before us, the petition alleges an illegal restraint of the petitioner's lil>crty, under an order frotn a judge beyond his jurisdiction, we arc bound in the firs t place to take the allegation as true; and so taking it, a prol>al>lc cause is made out, and there is no longer a discretionary power to refuse the writ. \Vhcther the allegation of the want of jurisdiction is true or not, is determinable only upon the return of the writ. If one has averred in his petition what, if true, would afl'ord him relief, it is his constitutional right to be present when the truth of his allegations is inquired into; and jt is also his undoubted right, under our habeas ('Orpus act, to cstahlish his allegations by evidence to be introduced and henrd upon the return of the writ. To deny him the writ is virtually to condemn him unheard; and as I can see nothing in this case which require!; at our hands an extraordinary resistance against the prayer of the petitioner to show that his imprisonment is illegal, that he is deprived of his liberty without due course of law. I am in favor of treating him as like case have uniformly been treated in this commonwealth, by awarding the writ of habeas corpus, and reserving the inquiry aR to his right to be discharged until the return of the writ; but as a majority of my brethren have come to a different conclusion, we must inquire next into the right of the applicant to be discharged as the case is now presented. I suppose it to be undoubted law that in a case where a court acting beyond its jurisdiction has committed a person to prison, the prisoner, under our habeas C01]JUS act, is entitled to his discharge, and that it makes no difference whether the court thus transcending its jurisdiction assumes to act as a court of the Union or of the commonwealth. If a prin ~iple, apparently so just and clear, needs for its support adjudicated cases, refer~ A.PrENDJX. 413 ence can be had to W ise v. lVithers, 3 Crunch, 331; 1 Peters, Condensed Rep. 552; Rose v. IIine1y, 4 Cranch, 241, 268; Den v. ][arden, 1 Pain<>, Hop. 55, 58 and 59 ; 3 Cranch, 448; Boll;ncm v. Swm·tout, 4 Cranch, 75; Kearney's case, 7 "\Vheaton, 38; J(emp v. J(ennecly, 1 Peters, C. C. R ep. 3G; 1Vickes v. Calk, 5 liar. and J. 42; Griffith v. Frazier, 8 Cranch, 9; Com. v. 'mith, Sup. Court Penn., 1 Wharton Digest, 321; Com. ex relatione JJockington v. The J ailer, &c., Sup. Court manuscript, 1814, Wharton's Digest, vol. i. 321 ; Albee v. JVarcl, 8 1\Iass. 86. Some of these cases decide that the act of a court without jurisdiction is voiJ ; some, that the proper remedy for an imprisonment by a court having no jurisdiction is the writ of lzabeas corpus; and others, that it may issue from a state court to discharge a prisoner committed under process from a federal court, if it clearly appears that the federal court had no jurisdictio. n of the case ; altogeth er, they c~tablish the point that the petitioner is entitled to relief, if he is restrained of his liberty by a court acting l>c·yori. d its jurisdiction. Neither do I conceive it to be correct to say that the applicant cannot now question the j urisdiction of the judge of the dis trict court because he did not challenge it on the h earing. There arc many rights and p rivil~gcs which a party to a j udicial controversy may lose if not claimed in due tunc, but not so the question of .iurisdiction; this cannot be given by express consent, much less will acquiescence for a time waive an objection to it. (Sec U. S. Digest, vol. i. p. 639, I)l. G2, and cases there cited.). It wo~ld be a harsh rule to apply to one who is in prison "without ball or nw.mprizc," that his omission to speak on the first opportunity forever closed his mouth from denying the power of the court to deprive him of his liberty. I deny that the law is a trap for the feet of the unwary. ~V.herc personal liberty is concerned, it is a shield for the protection of the Citl7;cn, and it will answer his call even if made after the prison door has been closed on him. If, then, the want of jurisdiction is fatal, and the inquiry as to .its ~x.istcnce is still open, the only question that remains to be considered IS t~u:;: Had the j udge of the district court for the eastern district of the Umtcd Stn.t('S power to issue the wn. t of habeas CO'.l ]JUS, d u· ·c c t cc l to P a · 'more \ '"vtr 1· ll·1 amson upon the peti· ti· on o f J o1m II· nvvr 11eeler •;> The power of that court to com' mit for a contempt I· S not d em· cd , an d I understand it to be conceded as a general rule by the pcil· t1· 0ner • s COU11 s• ('] ' that one court will not re<1xamine a commitment for contempt by another court of competent jurisdiction; but if the court has no authority to issue the writ, the r cs- 35 ·:if |