Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-22

inquiry about the office for a Judge |
went in search of Judge Frazier and at
last found him at the Office of Mr.. Stubble-
field. the Attorney General. | told him
We wanted writ. He said "Now You
are going to get me into trouble" showed
him that the prisoner had constitutional
right to have his petition granted. ! read
to him from the Code and the constitution
everything pertaining to the subject
never had any conversation with him until
after the case was decided. He certainly
manifested reluctance to have anything to
do with the issuance of the writ. | and
Judge Brien insisted on Williams being
( brought into court, but ont of Difference to
the other side he did not order il, and |
thought then and think now that he had no
right to try case in the absence of the
prisoner He said he thought it ought to
be waived for the present, and see what
was the law of the case. During that
uial | saw no evidence on the
part of Judge Frazier of any ex-
element against the Legislature I be-
lieved that his feelings were against us,
only of being a man of honor and integri-
ty he wOuld decide according to the law
and Justice of the case. / am acquainted
with the general character of Judge Fra
zier. As a man and citizen, do not think
that any man maintained higher charac-
ter for sobriety, integrity and honor. |
know that during the war, up to the year
1862, be uniformly stated that he thought
the rebellion was all wrong and would end
in ruin to the South. And | never heard
of his having changed these views.
Cross-examined by Mr.. Trimble: |
stated that in getting up the petition was
employed by the friends of Williams /
had not made any arrangement with Will
liams himself ] have never received any
pay. | suppose | may call volunteering.
But Williams told me he would pay me
when he was able. There are some ex-
ceptionable cases in which habeas corpus
must not be granted.
Mr.. 4rimble TO the witness: Suppose
Judge Frazier's clerk of the court or one
of the counsel tried to break up the court,
and Judge Frazier committed him for CON
tempt; and suppose a friend of the pris-
oner had just stepped round to the Circuit
Court and applied for writ Of ha6eas cor
plls, would that be an exception?
Mr.. Ewing: l do net think the gentle
man has any right 10 ask Judge Gaut about
any abstract case Of law. I think a man
has a right to state in his Petition of ha~
beas corpus if there is a pretended court
sitting, that it is not court, if he is held
in custody illegally, and TO have it tested
by an appeal to the constitution and laws.
There are exceptions; they are written
down plainly, but this case does not come
within these exceptions. Whether those
statements on which the hdbedS corpus was
granted were true is another thing. OBJ
ject to it as a question asked upon an abb
stract point of law.
Mr.. Trimble: Suppose a man on trial for
murder or treason in the Supreme Court
applied to Judge Frazier's court for a
haJeds corpus on the ground that il is not
valid court, is he empowered with authority
to grant it?
Mr., Ewing Decidedly he is if he makes
out a case against the court; that, for in
stance there was only one Judge presiding
when the constitution requires three.
Judge Brien l do not see why il is
necessary for the counsel on the other side,
in the examination of witnesses, to 60 into
questions of law. Such questions have no
relevancy whatever to the issue to be tried
/ hold it moreover to be a settled point
that you cannot ask a witness his opinion
on an abstract question of law.
Mr.. Trimble: This witness stated that
he said to Judge Frazier that this was a
constitutional question, and that the consti-
tuition had made it obligatory on him to
to grant the writ. Now here the witness
gives before the court his opinion on a
point of law, and we in his cross-examina-
ton are not to be allowed to interrogate
him on the point on which he has testified.
Such a claim appears 10 me most pre-
posterOus.
On being put to the vote, the court re-
fused to allow the question to be put to the
witness-ayes 9, noes TO-
Mr.. Trimble then continued his cross-ex-
animation of the witness.
Mr.. Carrigan swore TO the petition. |
do not remember who came for me to go
to Mr.. Colyar's Office. When | got there
learned what was up; did not learn be-
fore. | do not know whether Colyar was
friendly to the Legislature or not. | think
he was opposed to the constitutional amend
ment and TO the franchise law. / saw in
the Office some young men, Mr.. Carrigan,
and perhaps one or two others, but do
not remember who they were. | knew
that the Legislature was convened, and
that some forty-nine members were present.
had understood that fifty-six made a quo
rum, and that that number were not here.
The Legislature has a right to make laws
for its own proceeding and that question
cannot lie outside of the Legislature. | do
not know how long Judge Brien, Speaker
Heiskell and Judge Frazier were at my
Office According to my recollection, there
v,,thfnrr aoiI ahn,.f fha b0beug
1t was after that was settled. Speaker
Heiskell had nothing to do with the cotton
case. The evening-that Williams was re-
leased, Judge Frazier, Judge Brien, and
perhaps Mr.. Colyar were at my Office |
was not friendly TO the constitutional
amendment do not think it is proper
for members of the Legislature to be absent
from their duties.
Mr. Trimble TO witness: VIII you tell
me whether a penalty would not be in
CURED by a wil.ful and wrongful refusal of
a writ?
Counsel for the deferse objected to this
| question.
The court decided by vote Of II TO s
that il should be answered.
The witness answered: | think the
willful and wrongful granting of the writ
would be a misdemeanor if it was done
knowing that il was wrong, or done for
corrupt purposes, but that it would not be
a misdemeanor il the Judge acted in good
faith and thought he was doing right. The
first words Judge Frazier said when stated
what was wanted, were: You are going
to get mo into trouble" | replied to him
that the writ Of hdbeds corpus was a consti-
tutional writ, and could not be denied. l
thought he granted it reluctantly.
TESTIMONY OF JUDGE BRIEN.
Judge John s. Brien was sworn and ex-
amined by Mr.. Ewing.
| reside in Davidson county. | was
present at Judge Gaut's Office at the time
referred to by Mr.. Mulloy. l went for the
purpose Of consulting with him about this
cotton case. After had been in his office
seme time. my recollection is that Judge
Frazier came in, as also did the Speaker Of
the House, Mr.. Heiskell. When was in
I Mr.. Mulloy came in. Ny opinion is that
DIR. Hughes was in the office al the same
| time. Ii Webb was there at the same time,
/ | have no recollection OF it. This was
several days after the kGbeds corpus trial was
/ disposed OF. | never spoke to Judge Fra
/ zier on the subject Of the haboas corpus, ex-
| cept a. an attorney at the bar of the court.
Cross-examined by Mr.. Maynard lt
| was in the afternoon that | was an Judge
! Gaut's office. Ii was in the month of
! July. | went into the back Office, because
| il was Mr.. Gaut's Office, We were talking
about the division Of the cotton. l
undertake here 10 say that had
gone there on that subject | think
] NJ NT,tIo,- ,~as u,iafaEeu an two noinf-