Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-06-01


to Judge Frazier to grant writ of hdbeds
Corpus. How far he was entitled to attend
to and grant this petition, will appear from
the following, which / take from the Code
of Tennessee. section 1920: "Any person
imprisoned or restrained Of his liberty
under any pretense, whatsoever, exceptin
cases specified in the next session, may
prosecute writ Of hd5eas corpus to inquire
into the cause Of such Imprisonment aed
restraint. Section 1923 provides that "the
writ may be granted by any Judge OF the
Circuit, Common Law, or Criminal Courts,
or by any Chancellor, in cases OF equitable
cogEizance" Section 3726 says: II,
from the showing Of the petitioner, the
plaintiff would not be entitled 10 any relief,
the writ may be refused, the reasons Tor
such refusal being briefly endorsed upon
the petition, or appended thereto" 1t IS
not, then, that there ia form without
substance; it is not a mere sham
presented to the Judge that can avail as
| an answer to the writ; but, If it is OF this
Character, then he is bound TO grant the
writ. Now, it is clearly established that
there was not sufficient number of MEM
bers present to constitute quorum. But,
| is il not vital point to ascertain this fact
clearly it is. And it is equally clear that
the laws of Tennessee made it obligatory
| ON Judge Frazier to satisfy himself on this
head. Why no, according to two OF the
gentlemen on the other side, he was right
| in issuing the writ, but SO soon as he found
| il would be necessary for him to go behind
| the fact that members of the Legisla-
| ture hsal convened under the Governors
| proclamation to hold an extra session, then
| they all say he should at once declined to
| entertain any question as to whether so au-
! Gust body as the branch of the Legisla-
| ture had been duly organized agreeably TO
| the rules prescribed by the constitution.
| He was in fact, foreclosed from any such
enquiry in virtue of the sacred character
of the body itself, as well as by those safe
| guards and defenses with which the con-
| stitution has invested it. Well, let US see
how this will work. Suppose the House of
| Representatives orders one of its members
| to be hung; an extreme case, / admit,
but one fairly suited to test the principle
contended for. Preparations are made for
carrying out the sentence, the prisoner is
under the gallows, friend of the prisoner
succeeds in suing out writ OF habeGs corpus
on his own petition, Just in time to bring
him before the Judge alive. Will it be
contended that the Judge did wrong in
issuing this writ, or in ordering the prison.
ers discharge? Well, but he could not do
so without first inquiring into the rights
| of the Legislature to deal with its own
members in this fashion. But this, accord
ing to the sentiments of the gentlemen ON
+ the other side, would be tlagrant violation
of the rights of the Legislature, they having
the exclusive right of dealing with their
own members, untrammeled by outside in
tervention. Well, to imprison aman is not
so bad as hanging him, but it is equally an
evil, from which he is entitled to seek de-
liverance as is recognized as such by the
law. If, then, Judge can go behind the
facts of TIE case and adiudicate the right
of legally constituted Legislature to dis
pose of the life of one of its members, has
he not an equal right to inquire and to de-
eide as to the right of less number than a
| quorum to dispose of the liberty of men,
ber?
The argument of the gentleman who
| preceded me was ornate, classical and rhe-
torical; it was ingenious; it was adroit
bat / must be permitted to say, | do not
, think it was profound. 1t was ambdex-
trous, iesuitical, and | am sure it was un-
charitable. In saying that, perhaps | am
| provoking a Kindred -rstaSt on myself. II
so. this honorabIe eouEt must arbitratr be-
tween ms. There are ingenious sophisms
that are calculated sometimes to impose on
an opponent. Such sophism was the
false premises that 267 Cushing inculeated
! | a principle which have shown you is ex-
pressly repudiated by this author in sec
: ton :, which latter section also furnishes
) us with a solution of what is rot indeed a
! contradiction, but might at firstsight appeaI
a paradox. Without a discovery of The
fallacy thus attempted TO be palmed off upor
{ us, his argument in regard to the powers o
= | the House might seem to have been unan
e | swerable. / ask you in all candor, whether
: Judge Frazier, if the members arrested
$ | chose to petition him for writs Of hdbed
a | corpus, was not obliged to grant their reques
and decide on the legality of their arres
a and detention? His sympathy was no
? with these men, nor with the mob, as it ha
s been called, which countenanced their pro
n ceedings But he had a duty to perform
q irrespective of his sympathy. And hop
s the day may never come when We ma,
e all, you and |, have TO appeal to tn
Judges of the land as our forlorn hope
i would not, while pleading before this dig
d nified court, address an argument to thei
It fears, but would remind them that it
l. in times of excitement when the mo
J. arises on the one hand and the Legislator
II on the other, that we have to look to thos
e provisions Of the law and the constitution
Is which the wisdom Of our fathers establishe
% as the guarantees for the maintenance {
g public liberty.
D. have said all l mean to say of th
e Righteousness Of the Judgment Judge Fra
ID zier rendered in this case. | have bee
le more full and diffuse on these sewers
e. points, because my associates have dive
le upon them perhaps less fully than the
n importance might seem to demand.
= Now, believe it is not contended by Ii
p other side that the defendant can be held
- have acted corruptly, if he acted honestl
- in his judgment. L ask whether he ma
q not have acted in good faith when he mad
r. this decision, even though he may hay
le erred in his judgment of the law.
70 In weighing the merits Of the case, v
a. should take into account the difficulty
Judge Frazier's position. He was bes
ar on the one side by an excited and inflr
a. ated community; and on the other, by
e 1eSisidluic lauolinB, perhaps, uhu'
scarcely less excitement, and. harboring,
10 may be, some of the resentment which fa
"A tions hostile to their constitutional labo
70 and legal functions had provoked. Was
"A not at best a matter of the grea
est delicacy and difficulty to a
or under circumstances like these. But IL
Nv fact that he decided as he did, say,
~ least, is presumptiye evidence that he d
~ cidedly, conscientiously, and according
4 his understanding of the ruling of the la,
TO For, assuredly, if he had allowed himse
40 to follow the suggestions of either, h
m feelings or his interests, be would hal
an made a decision directly the reverse
,a what he did. The man that had stoc
defiantly before the dagger of the Reb
re- marauder, would scarcely be likely to coy
90 er before the clamors Of mob. But Il
eI attempt is made to show that his who
ut life has been illasory and hypocritical. i
"a stead of-putiing such an Interpretation EpC
y his late act as shal make il harmonic wi
n the well attested purity and integrity of b
or past life, we are to assume the corruptic
rs of this, and then to project the darkness
MT its shadow bsck upon all that has preced'
is it. But the people of this State or of tn
II country viii not sanction, public sem
m ment viii not sanction, so unjust a pr
, | eadnra Iudac Tsaariof aud Pauadi