, 1874-01-03
THE RAFFERTY, CASE AND THE SU-
PREME COURT.

To tho Editor Of The Chicago Tribune:
SIR: On opening my to-day's TRIBUNE this
morning. was pleased to see that member OF
the Chicago Bar, so prominent and capable Us
u.. Melville ". Fuller, had given expression to
some Of the ideas which every lawyer must hive
entertained upon reading the judicial Out
rage !" article in THE TRIBUNE Of the 25th inst.
Aud it was certainly not less pleasant to see, by
the Answer" following Mr. Fullcr's communi-
cation, that TEE TRIBUNE does mot call in
question tho honor or the conscientiousnoss OF
either of tho Justices OF the Supreme Court who
granted the suporaedeas III Raffertys case"
And further, The TRIBUNE says, 'That they
[the threo Justices did their duty as they under
stood it, we have no doub:; aud, in styling tbs
s,,pcrsodeas as Al outrage, we did our duty as
ve understand it,"
Here let Us pause moment, and see, If We can,
where tho " "outrayo" is whether, IN fact, any
outrage" at all has been committed IN grant
ing tho writ. II there is no question as to tho
honor or tho conscientiousuess Of the Justices
{cad there is nono), aud If they did their duty as
they understood it (of which there is no doubt).
what possibility is there for the existence Of an
"outraso" of any kind. SO far as they arc con-
ccrned: Not any, unless it appears that they
trlJs The TR1BuSE does not directly assert !; and
vet the c|ceiug sentence Of the ANSWER" en-
braces u very extraordinary remark (extraordl-
nary for IHE TnDuSE), from which the very
serious charge Of incompetoncy may BE- fairly
inferred. The who1e sentence was evidently
written hastily ani without consideration. and
is III marked contrast to the geusral tone OF The
TRIBUNE, which doos not favor the too olsen
popular demand for the attainment OF desired
ends By aay means. For the Past doz-
fa1sa md
references have been among tho most
pornicioua OF tho outrascs, mistakes,
aud blundors marking the history Of the time.
The Z. people" it WAS assumed, desired certain
things done or undone, aud dld not care what
agcncY-:n fast, stood ready to hurrah for any
agency-that would accomplish their desire. 1t
tie Executive usurped Legislative functions.
what matter, If the legislation WAS right,-thnt
is to say, if it was popular, II the Legislature
usurpel executive OF Judicial power, what differ
once could it make, ii the end IN view was good,
that is to say, popular, and was safely At
tanned 2 Aud it some Of tho courts transformed
themselves into political machines. was not such
transformation popular, and therefore proper,
gencies OF gove1nmeut,-that Is to say, Of tho
Administration that ia to say again, Of the
party in power? But may VIC not hope that the
timo is past when any respectable portion OF the
people will sanction III any such outrageous
usurpation ? Is it too much to expect thai now
mud hereafter judicial questions, affecting
or o1'AsI propersy ens Of s the Citizen % hoaayei
humble he may be, ehall not be decided authori-
tatively by Presidents or Governors, Generals
or Corporais, town meetings, Boards OF Super
visors General Assemblies, or Houses Of Con-
g1ess? And Ii it too much to expect Of the press
that it will not characterize as 'san outrage" q
solemn official act Of three Of tile Justices ct the
Supreme Court in matter involving human
Hfo aud where their duty to act il imposed by =
granddaughter law unless it is able to show
that suchtact was clearly, or at least probably,
wrong?
The facts stated By Tile TRIBUNE are. I sup
pose, unquestioncd and uuqnestlonabe. Rafferty,
has been tried and convicted no fewer than
three times. Judges Scott, Sheldon. and Nc
Allster wero doubtless aware of those facts when
they allowed tho writ Of error On tho 24sh inst.
But they hnd then nothing to do with those
was then boiore them, and it was their duty to
examine it carefully, and consider whether, on
such record. there Was reasonable cal1se for the
allowance Of the writ Of error prayed for.
Whether Rafferty, had one, or three, or fifty
trials aud convictions, did not, could not, affect
the question then before the Judges. He, as vol
as every other man accused Of crime. las legal
right, not merely to trial. but to trial accord
ing to la,c. And the question: tho only question,
for the Judges to consider, WAS, whether the
t1ial, the record OF which WIS before them was,
or was not, according to law. Aud it WAS their
sworn duty to consider it, and to arriyo at an
opinion If they could, and to express lhat opniou
when found. withou: regard to it's present u
future popularity, and even without q thought
rs to what might be the opinion Of the ''pcople"
or the language of the press respecting the
matter.
Now, as The TRIBUNE "does not cali in ques-
tion the honor or the sconscisuiiousnoss Of either
Of the Justices, and has no doubt they did their
duty as they understood it" md. as it was
clearly their duty to form opinion, either that
fhara mt reasonable shown
in the record before them for the allowance Of
the writ OF error, it would seem TINT there can
be possible foundation for tho charge Of
outrage" against the Judges, unless It be that
thoy did not understand their duty. And, sure
" The TRIBUNE does not mean to assert serious
" that understands the duty of = Justice Of
the Supreme Court, in the matter Of granting
wrts of error in criminal cases, better than
Judges Sheldon Scott, and McAllister2
The warning thrcas in the last sentence OF the
"Answor,' as has been already remarked, is not
in the ordinary aud true spirit and tone of Tn E
TRIBUNE. Judging from past experience, it
must be admitted t1at 1t is quite possible the
.'people" may :. find Judges WHO can take q
looser view, more ''popular" view and which
finally amounts to this: TINT. when tho multi
tude CRY ~ Cruelty him., the Judges, like Pom
titus Plate, although they may see that there
has been no trial according to law, yet must not
stay execution; must not do their duty as they
understand it :; must yield obedience, not to the
law, the highest evidence Of The true, sober
popular Hill but to 8 voice which is not law, and
which may be neither true nor sober.
The law under which tho Judges acted, under
which it was their duty to act, was not enacted
for the benefit Of Rafferty,, aud is not the work
Of the Judges. II it is lin the opion OF The
TR1nrSE: seriously formed, after patiently road
ing and clearly understanding i) an outrageous
law. then it will perhaps be in TEE TRIBUNE 9
line of duty to call it ~ Legislative outrage
md t1 g11ppcat In iha IL neon1a the Dronriatv nj