The Portland daily press., 1866-03-30
Grounds of Judge Tapley's Decision,

Grounds of Judge Tapley's Decision,
RELEASING MRS. NoRTHRuP FROM ARREST.
To the Editor Qfahe Press: lga a.. 81.
Yesterday my attention was called to an ar
ticle in the Portland Adcertiser of the 23d in
stant, entitled "Question of Privilege" which
in its tone and spirit is so manifestly unjust to
Judge Tapley, who from his position cannot
with propriety reply, that cannot allow it to
pass without comment. ..., .........
In this article it is asserted that the Court,
in releasing Mrs. Northrup from arrest in
suit instituted by F. o. j. Smith against her,
upon the ground that she had come into the
State as witness and at the request of the
County Attorney, and was in attendance as
such witness upon the Court now in session
and was therefore privileged from arrest, it be-
ing admitted that she was not subpoenaed as
such witness until after her arrest, reversed
the de ,ision of the Supreme Court of Massa-
ehusetts in the case of M'NEn which is cited
at length, and which is declared to have stood
as sound law for fifty-fye years. ~ -','s
The difference between the case of M'Neil
reported in the 9th of Massachusetts, and
the case of Mrs. Northrup, is so obvious that
itneed only be stated to be clearly perceived.
In the case of M'Neil it does not appear but
that the witness seeking the protection of the
Court from arrest was a resident OF the State
of Massachusetts 0itsia the Jurisdiction Of
| the Court and ,oitkin reach Of due process of
lap to compel his attendance as a uitness.-
He came voluntarily in suit where has father
was party desiring his testimony. ,,;..
In the case just decided, Mrs. Northrup re-
sided in the State of New York and beyond
the power of the process of the Courts of
Maine to compel her attendance as witness.
The summons of the Court was without avail
until she cape within the territorial bounda-
ries of the State. She came expressly at the
request of the prosecuting officer for the State
and was duly summoned as soon as her pres
ence within the jurisdiction OF the Court came
to his knowledge but not seasonably to antici-
pate her arrest upon writ sued out by the
party In whose case she was called to testify.
Can it be questioned, that under such cir
cumstances the Court would protect the wit
ness from arrest? a -..-
But although the MNeil case differs SO wide
ly from the case of Mrs. Northrup that it can
not be urged as a precedent, may add
that it NAV well be doubted whether the doc
trine there laid down would be BY our Courts
TODAY considered "sound law" g. ....-
The Court in the M'Neil case say, off one
is commanded by due process of law to attend
the Court as witness, it is his duty to obey
the process and the Court win protect him
from arrest" The learned editor of the 9th
Mass. Reports in a note to this case says-"If
a person bona yede attend as witness at the
request of either party in suit, why should
he not be equally exempt from arrest, whether
his attendance be voluntary o. Involuntary
and what is the use or effect of a summons
except to compel the attendance OF an unwil-
ling witness?" Mr.. Greenleaf, one OF the most
eminent of our legal writers upon evidence,
says, "a subpoena is not necessary to protec-
ton from arrest, if the witness have consent
ed to 60 without one" and the same doctrine
obtained in the Courts of the State of New
York.
Ibelieve, then, that the decision of Judge
Tapley was not only IN harmony with his
highest legal authority, but was entirely con-