National Republican. (Washington City (D.C.)) 1872-1888, 1875-01-16
THE COURT INSISTS ON ITS RIGHTS.
RULING OF JUDGE MACARTHUR.
why He Insists on the Production OF
the BOdy-Why the BerEeant-at.
Arms Asks for Time-The
End Not Yet.

widespread interest," ana II Is not unhAely bhe
case will become q causEs ceIebre. A very large
crowd attended the Criminal Court at IL O'Clock
yesterday morning, when the case was called.
Mr. Irwin was not in court. SerReant-at-Arns
Ordway occupied . seat beside his counsel.
Upon Mr.. Justice Macarthur calling the at
tentlOn Of counsel to the fact that he was now
ready to proceed with the case, Mr.. ShellabGrger
said that as he intimated yesterday the counsel
House Of RepTessntatiSeS, and published in this
paper yesterdRy.l The Speaker Of the House OF
Representatives presented this communication to
the House, which adopted resolution of which
will hand your Honor a certified copy. His
Honor, he hoped, would allow him to state that
he held that this resolution did not authorize the
Sergeant alarms to bring in the body OF Irwin,
but that it required him to make careful return
Of the reasons for his detention.
reading the debates and consulting with mem -
bers Of the House, was that it should not be &C
eOmpanied by any surrender Of the body. In this
case the counsel came again to ask as they did
yesterday that on the showing that the body is
held by the process Of another Jurisdiction the
Court will dismiss the petition and revoke the
writ This will avoid any of the unpleasant con-
sequences which may seem to be threatened by
the present aspect Of the case.
Mr.. Duraat said the Interpretation placed by
the counsel (Mr. s. upon this return is precisely
contradictory Of my understanding OF its
meaning gathered from reading in the Record
the debate in the House OF Representatives yes
terday.
The Court asked that the resolution be again
Mr.. Durant was proceeding to further discus
sion, when Mr.. Shellabarger said that If MI. ID.
was going to argue questions Of law he should
Mr.. Durant. There is nothing to prevent the
counsel from being heard. Certainly, shall in
The Court. The question here lie whether the
court will hear return to the writ without the
production Of the body.
Mr.. Durant- That was discussed yesterday.
Mr.. ShellabarEer. No; we were interrupted
when We began 10 discuss it.
The Court said he was fully satisfied on the
SUBJECT yesterday but as the question was an i'm
pOrtant one and as the counsel for the Sergeant
alarms desired TO reargue it. he would allow
them to do so.
Mr.. Shellabarger then proceeded to argue that
when a habsGS cOrpHS was issued as % n body
held by the warrant OF another indepeI ent juris
diction, the body could not be produced in re-
Spouse TO such writ, such production would be q
surrender Of the custody Of the body. The Bell
case: decided by Judge WylIe, was first cited.
The NuCent case in 1853. American Law Jour
nal, 1897 decided by Judge Cranch, was next
called 10 the attention Of the court and com
from Vice President Dallas, on an order issued
in the secret session OF the Senate.
Mr.. Durant. How do you know that the body
was not in court?
Nj. Shellabarger. know it from the histori-
cal circumstances.
Mr.. Durant. My information is different.
MI. Shellabarger. The language Of the return
shows that the body was not produced.
LIVING WITNESS.
Mr.. Durant. That Interpretation is evidently
incorrect. for Mr.. W. S. Cox, a member OF the bar
here present, informs me that Nugent sat along
side Of him during the return.
The Court. That is Cox on NugeRt.
Mr.. Shella barger, continuing, quoted the Booth
fugitive slave law, and afterwards decided in
the Supreme Court of the United States. He
closed by summing up the argument.
Mr.. Durant said, in reply, that the first prece-
dent quoted. that of Bell, no one knew anything
about; the second, that Of Nugent, the prisoner
was in court; the third case, that Of Booth, arose
nTHn IN off nv Sin,
fugitive slave law.
Judge Macarthur said he was familiar with
the case. and explained that the United States
marshal held Booth, who was under indictment
for resisting the return Of a fugitive slave. But
the marshal would not bring Booth in, and the
court proceeded in his absence.
Mr.. Durant. That was because he could not get
him.
The Court. Yes, because he could not get him.
JOKE OF COUNSEL.
Mr.. Durant. And necessity, like good many
Mr.. Durant then proceeded to argue that this
case OF Booth was decided as it vas because
there we're two distinct and separate sovereign
ties within the same space-the United States
and the State of Wisconsin. There were no two
sOyereignties here. Mr.. Durant then proceeded
70 quote the following presidents from English
brought into court along with the return:
Regina VS.. Patsy, I'd Ramona, HOS, l7O5; NJ.
Wilson, "a re. Murray, 1872; er re. Crosby, Lord
Mayor OF London, We. Wilson.
Mr.. Durant then quoted the precedent Of Chief
Justice fancy, when presiding in Baltimore in
THE NERRINAN CASE,
when he refused to consider the case in the alb
sence Of the body, which was detained at Fort Nc
Henry.
A recess was here taken.
After the recess, District Attorney FiEher said
that, as the argument Of Mr.. Durant had been in
great degree addressed to the merits of the
case, he would be justified in following him.
Judge Fisher, after commenting upon each clause
Of the petition Tor hdbedS corpus, was proceeding
TO read an answer TO the RETURN setting forth the
facts on which the commitment rested.
Mr. DUTant urged that this answer was a re.
turn to the writ, which could not now come into
produced.
The Court thought that It would be better TO
discuss at this stage Of the case, only the exact
question before the court, namely. whether the
body Of the prisoner mus. Of necessity accompany
Judge Fisher then argued that question at
length, cOnteDdiug that as soon as the court
became Judicially cognizant of the fact that the
prisoner was held by the Just authority of an in
dependent jurisdiction, it would revoke its writ Of
habed5 corpus. He quoted, as sustaining his case,
saying whenever the court becomes lawfully ap-
prised that writ has been issued without author
ity and improyidently 1t will recall the writ.
RULING OF JUSTICE MACARTHUR.
Judge Macarthur then said
In granting the right to renew this discussion
and respect 10, perhaps, the most important
branch OF our GOvernment-the House of Repre-
resent it here in regard to the matter now before
the court. If have q consciousness in regard to
this proceeding more profound than another, It is
that this discussion may be thoroughly exhaust
i've, and that the conclusion may be impartial,
and in entire accordance with tie law. i have
no doubt that whatever action the House has
taken, or in whatever action It may take here
after, that It will be actuated by the highest |
sense Of public duty and impartial Justice. 1
think that the two jurisdictions, acting under |
such inspirations, may come TO a conclusion in |
this matter which will harmonic any conflict |
that may exist. At all events, nothing on my |
part shall be wanting to produce that result con-
sistently with my duty in the administration Of |
the law. |
The writ OF hGbeGs corpus, 1 might be permit |
ted TO say in the outset, is q writ peculiarly for
the administration Of the Judiciary. No other |
power in the land can administer the law of ha- |
osdS corpus. Aud 20 valuable is it, that the Con-
sttutiOn has declared that It shall never be sus-
pended unless in case Of war 1t is utterly beyORd
the power OF legislative bodies OF judicial tri |
JupRls to interfere with the operation and the |
fullest execution Of this writ which has been en-
0almed both in the history and in the spirit OF
institutions. Wherever case occurs for its oper- |
The motion presented, in the aspect in which It /
was discussed by Judge Fisher, goes to the tech /
meal presentation in the initiation of this proceed
ing. II may be observed generally that, with re-
gard TO writ appertaining exclusively to per-
sOnAl liberty, the court would not insist with great
rigOr upon fOrmRlities, but that they would look |
rather at the substance and object TO be accom-
plished, and that they would NOT allow the effect
Of this great writ to be defeated through any i'm
Ter. L. is said that this writ was imprcyidently
ssued. 1t is SO much
THE CUSTOM OF JUDGES
10 issue this writ and our ideas are so fixed with
regard to the nberaliJy with which IL is seat /
Orth by the judiciary that probably this is the |
iTst occasion on which the objection was ever /
taken that a writ Of hGbedS corpus was IMPROVE /
iently Issued. My own experience recalls no in
stance of the kind. The extended research of the |
eminent counsel in behalf OF the motion now /
made has not enabled them to produce q similar |
h. akaRa hat. -
The motion was first presented 1t was with some |
hesitation that entertained It. and entertained
L more out OF respect to the earnestness and con-
that appeared to Rctuate the cOun-
lel in making II than what c1nside ed IL 70 be an
exact compliance with the rights OF the case. ! |
sst, and If ii were concession which had made /
ID Tie hrst place, the court has been amply COM
Densated by the light and information which has /
been thrown upon the subject by the argument Of /
counsel. The motion, then, in the FIRST place. is /
quash this writ on the ground that It was Issued
Without Just cause upol the very face OF the pro-
seeding.
In this petition the relator alleges that he is
detained by N. @. OrdWay, Sergeant-at-Arms Of /
the House Of the Representatives. He states the |
.ause of this detention, as he was required to do
ly the statute, as we'll as he was Informed upon /
he subject, that there was subject-matteT under /
Investigation before the Committee OF Ways aud |
deanS Of the House; that upon being examined /
lef0re that committee he declined to answer /
lueEtions there put TO him, he alleging that the /
committee bad 10 power to put the questions to
i'm, and had no authority from the House to put /
be Inquiries to him. Subsequently, upon being /
rraigned at the bar Of the House, other CUES
ions were put to him, which, he declares In his
edition, the House had no right 70 address to
lin, end that he refused to respond: Whereupon /