NEW YORK. 



5G5 





a motion for a mandamus sought by a colored 

 citizen to compel the principal of a public 

 school to admit his son thereto. The court 

 held that the common schools are a public 

 charity ; that benefits conferred by them are 

 the free gift from the State, and like every 

 other donor 'the State may prescribe in what 

 manner and upon what terms and conditions 

 the gift may be enjoyed. In conclusion, Judge 

 Gilbert said that the statute, by guaranteeing 

 equal privileges, does not confer the right to 

 enjoy them in common with any class of per- 

 sons or in any particular school, and that 

 nothing had been shown from which it could 

 be inferred that the relator had been deprived 

 of the equality of privilege to which he was 

 entitled. 



Judge Blatchford, of the United States Dis- 

 trict Court, decided, in April, in the case of 

 Charles A. Dana, arrested for contempt of 

 court in not obeying a subpoena issued by the 

 Supreme Court of the District of Columbia, 

 that it was necessary " to find statute authori- 

 ty for the power of the Supreme Court of the 

 District of Columbia to send out of the Dis- 

 trict, to be served out of the District, process 

 to summon witnesses to attend in said District, 

 and that no such authority existed." 



The Court of Appeals at its June term ren- 

 dered a decision in the case of the People vs. Wm. 

 M. Tweed, reversing the orders of the Supreme 

 Court and of the Court of Oyer and Terminer, 

 and discharging the prisioner, on the ground that 

 the original sentence to twelve years' imprison- 

 ment for twelve different offenses charged in 

 the same indictment, the penalty for a single 

 offense of that grade being imprisonment for 

 one year, could not be sustained. The relator 

 had been found guilty of misdemeanor on sev- 

 eral different counts, of one indictment before 

 the Court of Oyer and Terminer in November, 



1873, and a cumulative sentence had been pro- 

 nounced, adjudging the full penalty for each 

 offense. After one year's imprisonment and 

 the payment of one fine, a writ of habeas corpus 

 was sued out and made returnable before the 

 Court of Oyer and Terminer, December 17, 



1874. The court discharged the writ and re- 

 manded the prisoner, and the case was brought 

 by certiorari before the General Term of the 

 Supreme Court. In March, 1875, that court 

 confirmed the previous order, an elaborate 

 opinion being submitted by Judge Westbrook. 

 When the case came before the Court of Ap- 

 peals, opinions of great length were submitted 

 in support of the decision reversing the former 

 judgments. The principal one was that of 

 Judge Allen, the most essential points of which 

 are contained in the following brief extracts : 



The question is, had the Court of Oyer and Ter- 

 miner the power to pronounce the several judgments 

 and inflict the accumulated punishments upon the 

 conviction of the prisoner of the offenses as charged 

 in the single indictment. ... In theory every count 

 in an indictment is for a distinct offense, but in fact, 

 as is very well understood in most cases, several 

 counts are resorted to, and the same offense stated 



in different forms and with different circumstances 

 to meet the evidence that may be adduced upon the 

 trial .... I have referred to the several cases 

 cited from our own reports, and no warrant can be 

 found in any of them, or in any remark, casual or 

 otherwise, by any judge for cumulative punishment 

 upon a conviction of several offenses charged in a 

 single indictment, the aggregate punishment exceed- 

 ing that prescribed by law for the grade of offenses 

 charged. The rule, as claimed by implication, calls 

 for a single judgment for all the oflenses charged 

 in the indictment, and of which the accused is con- 

 victed. It requires that the offenses joined shall be 

 of the same grade and he subject to the same pun- 

 ishment, that is, not only punishment the same in 

 kind, hut the same in degree. . . . 



I have examined with some care the cases in the 

 courts of this State and of England, to which we have 

 been referred, or which have come under my obser- 

 vation, and I find no_ authority for holding that the 

 common law, as it existed in England in April, 1875, 

 or as it exists and is administered in this State at 

 this time, permits cumulative sentences to be im- 

 posed upon conviction for several distinct misde- 

 meanors, charged in different counts, in a single in- 

 dictment, in the aggregate exceeding the punishment 

 prescribed by law, as the extreme limit of punish- 

 ment for a single misdemeanor. . . . 



The power of the court was exhausted by one sen- 

 tence to imprisonment for one year, and the pay- 

 ment of a fine of two hundred and fifty dollars ; or 

 if several judgments can be pronounced by a sen- 

 tence, the same in the aggregate distributing such 

 punishment and apportioning it to the convictions 

 upon the several counts, according to the demerits of 

 the offenses charged in each, each and every of the 

 judgments and sentences in excess of that limit was 

 coram non judice. A judgment in the form and to 

 the extent allowed hy law once pronounced, the 

 power of the court became functus offitio in respect 

 to that prosecution and the indictment, except to see 

 that the judgment was executed. There was no lon- 

 ger any record or verdict upon which the court could 

 act. The jurisdiction over the person of the con- 

 demned was exhausted, and as if no prosecution had 

 ever been instituted against him. The purposes of 

 the prosecution and of the indictment had been ac- 

 complished. If the punishment for the offense is 

 fixed by statute a judgment in excess of the statutory- 

 limit is void for the excess, as we have seen by ad- 

 judged cases, supra. 



A party held only by virtue of judgments thus pro- 

 nounced, and therefore void for want of jurisdiction, 

 or by reason of the excess of jurisdiction, is not put 

 to his writ of error, hut may be released by habeas 

 corpus. It will not answer to say that a court having 

 power to give a particular judgment can give any 

 judgment, and that a judgment not authorized by 

 law, and contrary to law, is merely voidable and not 

 void, and must be corrected by error. This would 

 he trifling with the law, the liberty of the citizen, and 

 the protection thrown about his person by the Bill 

 of Eights and the constitution, and creating a judicial 

 despotism. It would he to defeat justice, nullify the 

 writ of habeas corpus by the merest technicality and 

 the most artificial process of reasoning. . . . 



The remedy was by several indictments if the of- 

 fenses were distinct. But courts can only admin- 

 ister the laws as they find them, and it is far bet- 

 ter that the most guilty should escape than that 

 the law should be judicially disregarded or violated. 

 A greater public wrong would he committed, one 

 more lasting in its injurious effects, and dangerous 

 to civil liberty, and the sacredness of the law, by 

 punishing a man against and without law, but under 

 color of law and a judicial proceeding, than can re- 

 sult from the escape of the greatest offender, or the 

 commission of the highest individual crime against 

 law. Neither the cause of justice nor of true reform 

 can be advanced by illegal and void acts, or doubt- 



