New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-08-16
OUR RAMPANT DOCBERRY

If New York Courts have MT yet been able
10 make the very name of Judge stink in the
nostrils of the people, it has not been for the
want of we'll directed and continuous exer-
tons. Not satisfied, last week, with forcing
rival railway interests back the old law OF
force and right of the strongest, and entaing
upon us the dangerous precedent ef State
Governor, finding excuse in the demands oil
public safety, for arrOgating TO himself the
powers of great corporation and the duties
of a railway President, they hive also let loose
upon us one of their sOrest infections In the
person of McCunn. How wan,On is the trouble
this extra superfne sample of New YORK
Judge has been raising let tn, following short
statement of facts make clear
T. One j. H. Pratt was charged with having
committed murder in October 1863, at Jeiior-
son. in the State Of Texas. TIE crime was ag-
gravated by forcing the safeguard of United
States troops, and Ivy other eDrmltes.
Q. Eight or ten days ago this Pratt was found
in New-York, and on the authority of a war
rant issued by the U. S. Commissioner was
arrested by the U. S. Marshal and confined in
Ludlow st jail. A preliminary examination
to ascertain whether the charges were well
founded was ordered before Tho U. S. Com
missioner.
3. Judge McCunn. Superior judge Of the
State of New York, hereupon issues writ OF
hdbeas corpus commanding the keeper of the
Ludlow st Jail TO produce the prisoner in his
Court. and show cause for Detection.
4. The keeper of the jail applies to Marshal
Barlow for advice, and the Marshal refers him
| to the case of Abeman against Booth, (2lst
Howard). wherein ChiefJustic3 fancy held
that State Courts have jurisdiction in cases OF
alleged crime against the Government where
the process of United States Judge has been
issued and the prisoner is IN the custody OF
United States authorities. The keeper OF the
iail thereupon makes the usual return. with the
statement that he holds the prisoner under pro-
cess of the United States Court.
g. To avoid even the appearance of evil, the
Marshal nevertheless appears with his prisoner
before Judge McCunn, who, after hearing brief
statement of the facts, remands he prisoner to
the Marshals charge.
g. The Marshal places the prisoner in Fort
Schuyler, resolving thencefOrwarl to hold him
free from any interference by State Courts.
Z. Judge McCunn having threatened the arrest
of the Marshal for this act, the President in
structs the Marshal to use whatever force may
be necessary to vindicate his authority and
protect his rights.
8. Judge McCunn now delivers decision
that the prisoner ia held without warrant of
law, for the reason that Texas beng not yet
reconstructed, only military Officers have any
power there, while this arrest was made by
civil officers whereupor he orders the prisoners
discharge.
0. The prisoner remains in Fort Schuyler all
the same.
10. Judge McCunn, a New York Judge, orders
the arrest of Marshal Barlow, United States
officer, for paying no attention to his require
ments concerning Texas prisoner, arrested
under United States process.
II. Marshal Barlow declines to he arrested,
and United States troops, under the Presidents
authority, back him. And thGe the matter
rests
If one word be needed, beyond such bare
recital, to make clear at once the folly and the
malignity of Judge McCunn's course, it is to
be found in this plain summingup of the long
established, universally recognized law of the
case as declared by the Supreme Court of the
United States:
Tne 5taJo court OF Judge mas rgntIO inquire, IN TINS
mode Of proceeding for what cause md by what au
tborty the prisoner Ia confined within the territorial
limits Of the State sovereignty And Is the duty OF the
marshal other person having the cudody OF the prs
0ner 20 make known to the judge or curt by proper
return the authority by which he holds him In custody
duty OF the officer TO make return, gDws, necessarily
out of the complex character OF goyrnmen and the
existence OF two distinct and separate sereRnties with
In the same territorial space each OF THIN restricted In
prescribed by the Constitution OF the United States IN
dependent OF the other But after the return Is made
and the State Judge or court judoay apprsed that the
party In custody under the authority OF the United
States, they can proceed no further. They then know
that the prisoner Is within the dominion and jurisdiction
OF another government, and that neither the writ OF
hdbedS corpus any other process issued under state
authority the line OF dviaon between the
and exclusive Jurisdiction OF the United States. IL
he has committed ofense against their laws their tr
buDas alone can punish him. he is wrSngfuy impris
oned their Judicial tribunals release him and AFFORD
duty Of the marshal. other person holding him, to
make known by n proper return the authority under
which no OBTAINS him. II Ii at the time imperauVey
hs duty 10 obey the process OF the United States 10 hod
the prisoner IN custody under It, and 10 re obedience
IneHL And IL the authority Of a state In the
form OF JUDICIAL process otherwise should attempt 70
control the marshal or other authorized officer
the Unted states IN any respect In the CUSTODY OF ms
prisoner uouh DC his duty 10 resist IT, and 10 call 70 MS
aid any force that might BE- neoessarv 10 tnaintain he
horfiy Of dw against illegal Interference NOjudcial pro-
whatever form may assume can have any lawful
authority outside OF the limits OF the Jurisdiction OF the
court judge by whom s issued; and an attempt 20
enforce IL beyond these boundaries S nothing lees than
IGvle1 Violenee."
g, Nothing less than lawless violence, therefore,
,5}si} what Judge MGCunu is now attempting