Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-28


ed, in the fact that the court convened at
3 O'Clock, and then adjourned TO this morn
ing were read and approved.
ARGUMENT FOR THE DEFENSE BY JUDGE
GAUT.
InoW proceed to make such argument and
offer such suggestions to this honorable
court in the defense of Judge Frazier, the
person charged and sought to be impeaehed
"a the law of the case and the evidence al
duced may warrant. | am aware that this
Is an important case Il t. the first case in
volving the guilt or innocence of a high
officer in the State in which you haYe
been called upon to adiudicate, and
it will probably be the last 1t is
certainly the first case Of the kind in which
| or ANY of the counsel on either side have
ever been engaged. | feel that have a
most responsible duty to perform "a duty
both to the interests of law, liberty and
Justice, and also to the defendant man
whom the proof shows, through period
extending from youth TO the sunset of age,
has borne not only an irreproachable char
acter, but character that has never been
suilied even by the imputation of vice or
immortality, but which has maintained its
purity in every relationship which he has
sustained, whether as a man, citizen, or
a Judge He is charged in the name of
the State with having committed a high
crime and misdemeanor, knowingly, will
fully, maliciOusly, felOniously and corruptly,
This charge is preferred, and now we have
TO deal with il as we deal with any other
charge--according to the law and the evi-
dence. When you took your oath of office
none of you thought that you would be
transformed into members of court of
impeachment But you have been trans
formed into such a court, and have taken
an oath that you will well and truly try,
and true deliverance make, as between the
defendant and the State of Tennessee. Ii
is under that oath you are aching now, and
not under the Senatorial oath.
We shall lessen our duties very much if
we see what are the duties before as; if we
see what is the law, what is the evidence
Much has been said about the rights and
powers of the British House of Commons
and House of Lords. Much may be said
also about the House of Representatives
and the Senate of the United States. But
these can have no application to rs, except
80 far As these or like powers have been
conferred by the laws or constitution of the
State. Our constitution is a written one,
and that must be our in1exible rule. The
trainers of the constitution of the United
States, in determining the rights and privi-
leges Of Congress, left out much of the law
of the British House of Parliament. Their
object in doing so was to secure Us against
those arbitrary and .despotic powers exer-
Cised by those bodies. And as British pre-
cedents can have no weight in determining
the powers and privileges Of Congress,
so neither can they in determining
those of our own State Legislature
wish now 10 address myself to the task Of
determining what is the rnle by which we
are TO be guided in our present inquiry
Story on the constitution, vol. ], 4 sec 79S,
is conclusive on this point. lie shows in
cOntestably that as in all ordinary courts, so
in courts Of impeachment, that common
law is our rule. And he Justly states that
10 hold otherwise would be truly alarm
ing" His whole statement goes to show
that in any trial Of Impeachment the rules
of evidence are precisely the same as they
would be in any Criminal Court of the
State, and that this trial, therefore, is 30 be
proceeded with precisely the same az if it
were in a State court with a Judge and
jury, and that it will take the same evil
denCes Of crime to convict the defendant as
would be necessary to warrant a verdict of
guilty in Criminal Court.
| then proceed to the main question in
volved in this cause, and beg leave to call
the attention of the honorable court 10 this
writ Of hdbodS corpus for a moment. Ii was
a right which the British struggled for for
ages, and which was partially conceded I'M
der the reign of Edward the third. But then
it was only during term time that it was
granted, and nottill the 29th of Charles the
I'd.
Mr. Maynard; 3lst, was il not?
No, the 29th. It was not till the 29th of
Charles the second that this writ was firmly
established. When the right of SobeaS corpus
was wrung from Charles the second it was
enacted that if any Judge refused to grant
it he should be deemed guilty Of an Offense
to which penalty was affixed. | turn the
attention Of the honorable court TO the 10Th
and 18th sections of the Bill of Rights of
the State ofTennessee, in which the liberty
Of the citi zen is jealousy guarded by striG-
gent provisions Of the same character In
a
Office for a Judge 10 refuse the petition for
writ of kdbeds corpus except IN those few
exceptional cases where il is never granted
here or anywhere else. The constitution
of the State of New York limits the
amount of damages to he recovered from
any Judge offending against the provision of
the hdbsus corpus TO $3.50. But in Tennessee
there is no limitation affixed, but jury
has the discretion Of awarding whatever
amount of damages they consider in any
given case will be a fitting penalty for the
ohense incurred; and at the same time the
Judge is liable TO impeachment for his re-
iusal ! repeat, then, that this is the most
sacred writ known 10 the law Of the land,
and the only one which has the sanction of
a penalty for its enforcement. A Judge is
not allowed 10 know when a bill of
chancery is flied whether the facts be such
as it sets forth, though indeed he may per
sOnally avow that they are not. So in case
of a writ of tubeas corpus. If the Judge
refuses the prayer of the petitioner, he is
guilty Of a misdemeanor of Office, and liza
bic for damages to the party aggrieyed.
Mr. Noah, for the prosecution, finds fault
with Judge Frazier, not for granting the
writ, but Tor deciding that The Legislature
could not lawfully hold the prisoner in Gus
tody. This petition presented this ques-
ton 90 Judge Frazier-that the Legislature
had been called together by proclamation
Of the Governor for an extraordinary occa-
sion. The petition further shows the House
was less than q quorum. lt also shows
that the House not being organized, and
being less than a quorum, the Speaker
issued his warrant authorizing the arrest Of
Williams and Martin, and Williams charges
in that petition that he had no authority
for that arrest. That petition was served
on Capt Heydt on the 10th Of July, 1866.
lie was ordered to make his return, and to
bring the body of Pleasant Williams before
Judge Frazier.
They did not present the body OF
Williams, but offered instead a statement
denying the jurisdiction OF Judge Frazier
in the case, aud maintaining the right OF
the House of Assembly 10 retain hun in
their custody.
Now | wish to call your attention 70 tina,
clause OF the constitution on which IL a.
| claimed that IA the absence Of an express
law. and under the highs Of the Legisla-