It is believed that no case, prior to that of your petitioner, is reported in Pennsylvania, of a refusal of this writ to a party restrained of his liberty, except the case of Ex parte Lawrence, 5 Binn. 304, in which it was decided that it was not obligatory on the court to issue a second writ of habeas corpus where the case had been already heard on the same evidence upon a first writ of habeas corpus granted by another court of the petitioner’s own selection: in other words, that the statutory right to the writ was exhausted by the impetration and hearing of the first writ, and that the granting of a second writ was at the discretion of the court. This case, therefore, appears to confirm strongly the position of your petitioner, that he is absolutely entitled at law to the writ for which he now prays.
On the hearing there will be endeavored to be established on behalf of your petitioner, on abundant grounds of reason and authority, the following propositions, viz.:—
1. That it is the right and duty of the courts, and especially of the supreme court of this commonwealth, to relieve any citizen of the same from illegal imprisonment.
2. That imprisonment under an order of a court or judge not having jurisdiction over the subject matter, and whose order is therefore void, is an illegal imprisonment.
3. That the party subjected to such imprisonment has a right to be relieved from it on habeas corpus, whether he did or did not make the objection of the want of jurisdiction before the court or judge inflicting such imprisonment; and that if he did not make such objection, it is immaterial whether he were prevented from making it by ignorance of the law, or by the want of extraordinary presence of mind, or by whatever other cause.
4. That the courts and judges of the United States are courts and judges of limited jurisdiction, created by a government of enumerated powers, and in proceedings before them the records must show the case to be within their jurisdiction, otherwise they can have none.
5. That if the record of any proceeding before them show affirmatively that the case was clearly without their jurisdiction, there can no presumption of fact be raised against such record for the purpose of validating their jurisdiction.
6. That no writ of habeas corpus can be issued to produce the body of a person not in custody under legal process, unless it be issued in behalf and with the consent of said person.
7. That at common law, the return to a writ of habeas corpus, if it be an unevasive, full and complete, is conclusive, and cannot be traversed.
8. That a person held as a slave under the law of one state, and voluntarily carried by his owner for any purpose into another state, is not a fugitive from labor or service within the true intent and meaning of the constitution of the United States, but is subject to the laws of the state into which he has been thus carried; and that by the law of Pennsylvania a slave so brought into this state, whether for the purpose of passing through the same or otherwise, is free.