National Republican. (Washington City (D.C.)) 1872-1888, 1875-01-16

have more than once remarked in these discas.
contempt was so we'll established that 1t was NOT
to be Questioned any longer, and have also an.
bounced that person IN custody ~ tneir oras ss
hnal If within the Jurisdiction OF the House:
This jurisdiction is impeaehed upon the face Of
this instrument. think, therefore, II cannot De
said that the writ was issHed improvidently, but
90 step further. regard this motion 70
qussh the writ as founded upon matters Of ioL% h,
nical principles. A motion 70 quash pleading
is like demurrer. 1t admits the truth Of the
facts that are properly and legally stated IN the
pleadings demurred to, so that upon this motion
we are to assume that the allegations OF tnis
potion are true; that Is they are SGmea
They may be false in point Of fact, but for the
special purpose under consideration there Is an
assumption of their truth INDUCED BY the law.
So far, therefore, as the motion is concerned to
QuAsh this writ upon the ground that II WAS I'M
Fhe debate however, has taken : wider scope
than this and 1t is denied that the Othcer making
this return is required TO produce the body. In
with contempt and In the custody Of the ofheer Of
the House, there can be no doubt from what has
House that there is q serious difference Of opinion
in regard to this very particular. Undoubtedly
is the general understanding OF the Judiciary OF
must be produced upR return to writ Of
hdbeas corpus.
Previous to the enactment of the great statute,
the hG6CGS corpus act Of Charles j, the writ had
been
GREATLY ABUSED
by tho persons to whom it was directed, in delay
ing to make the returns, but I think therefs no
which the imperative duty ofthe Ossoer to return
the body was questioned. 1t was the abuse in
O that Gs which dTected
the otficer to whom the writ was addressed to
make his return within three days after the SER
poIated that act into their State statues and the
Congress of the United States has substantially
adopted 1t into the revised ststQes which are now
the statute law Of the country. This statute d.
reefs that this writ Of hGbeGs corpus may issue in
every case where 9 person is held under any
writ is to issue in any case whore the person is
held in custody under the authority Of the limited
States and the officer is directed TO make his re-
turn within i've days, and along with his return
to produce the body Of the persen so held IN Gus
tody. This is not discretionary. 1t was not de-
signed that any proceeding under the statute,
with regard to practice upon the writ Of hGbeGs
corpus should be LEFT to the discretion Of judges,
or Of courts, or Of officers Of any court
The mandate Of the statute is that he shsllprO-
duce the body. Authorities have been read, at
least in which the production Of the body was dis
stances 1t was where State court had issued
the writ, and where the relstor was in execution,
IN eonnnement under process Issuing from Uni
ted States court. The two jurisdictions were en-
trely separate and independent, the sovereign
ties were different; but here we are all under the
same law, and think upon an analysis, upon a
careful examination of that very case, It will
recognize that the writ may issue in ali cases
where the government is the same and where the
same law extends its dominion over both. / have
asked my brother Wylie about the Bell case, and
he states to me that he did not think 1t was nee
essary that
THE BODY SHOULD BE PRODUCED.
There was a return made to the effect that he
was held in custody, 1 think, by the Sergeant-at-
Arms, under an order Of either the Senate or
the House Of Representatives, and that he be-
came aware Of that fact and discharged the writ,
and did not require the production Of the body.
! understand from him, however, that the discus
sion was not very elaborate on the occasion, and
II perhaps is therefore, not controlling decision:
and although have, for all the legal views of
my brother Wylie, the greatest respect and defer
ence and If IL had been q Yell-considered in
stance that had passed through his examination,
l should certainly have long hesitated before diff
fering from him. The conclusion, therefore, to
which come is similar to that which was an
nOunced yesterday. 1 think 1t is the imperative
duty Of the officer to produce the body. l regret
extremely that the House Of Representatives
should take a different view. read the statute,
which is the law Of Congress and the law of this
court, as leaving no discretion-as making the
sary incident to the proceeding.
1 may repeat, that while Congress has Just
privilege, that iaw-the statute iawEis greater
than privilege, and yet, think, there is not a
member Of this court that would infringe on that
privilege TO the ten thOusandth part Of the diam
eter Of a hair. 1 certainly would not, because
fully recognize not only the power which Con-
gress has to protect itself, but should uphold it
law binds me, so l must decide. 1 trust, indeed,
that this matter may be accommodated by
COMPLIANCE WITH THE LAW
in some form.
At the conclusion of the Judges ruling, counsel
for the House for the respondent entered into
consultation. AFTER some hfteen minutes spent
in this way, and the counsel having apparently
concluded such consultation, the Court said:
Judge tisher, is there any further action con-
templRted at present?
Judge Fisher. do not know that we have
any further duties to perform here, may it please
your Honor, in the premises. We await the &C
ton Of your Honor.
The Court. have Just acted.
Judge Fisher. Yes, your Honor has refused to
grant our motion, as l understand
Mr.. Shellabarger OF course the position is
one, your Honor, Of singular embarrassment and |
difficulty. The Sergeant-at-Arms feels, as he |
interprets the orders Of the House. that he is to
obey the orders of the House a sworn ohicer of |
that body. He cannot do otherwise; he must |
take the consequences Of obeying that authority |
to which he Is especially amenable under HIS |
luctanee and hestancy confess after ali the |
indulgence that the court has so kindly given to
US in the way Of time to consider and to consult,
plicatiOn in that form, but do make this sugges-
ton as perhaps one that may relieve the diff |
Guilty; know not. Your Honor can tell as we'll |
as that II an order for examination an order of
this court or Of the judge, should ISSUE directing
the SergeaDt-at-Arms Of the House to show cause |
why he should not be
ATTACHED FOR CONTEMPT
Of this court, there would naturally as q SO |
quence, come time for the purpose Of showing |
cause why he should not be attached. Now l |
barely suggest that time may be allowed to him |
possibly under the views your Honor may take of |
the eXigencies of the case-may be allowed to |
him now, If you please, without any motion for |
cause why attachment should not issue. That /
time may result, for aught know, in solving /
this difficulty. l cannot anticipate, any more |
than the court can, what action the House, II any,
may take in the premises. only know that, as /
my client interprets the action Of the House, he /
has no election; no choice.
The Court. That is a question, Mr. SheIIabar-
ger that 1t is impossible for me to enlghten your
client upon.
Mr.. Shellabarger. know, and therefore my
suggestion as far as It has any power or prae-
teal bearing is simply this: Whether 1t
would not be wise, all things considered, to ad-
jOurn this case over until tomorrow so that any,
thing may be done in the way Of deciding this
question, that the parties concerned, including
the respondent and the House of Representatives |
may deem wise in the premises. II that sug-
gestiOn is not good one, then no other one oc-
ours TO me to make, and tho case must take the
deem wise.
The Court. Probably few more hours for re-
Election might produce result favorable to har-
mOny in this matter. l am DESTROYS to give every
opportunity for reflection and deliberatIon, both
here and elsewhere. l will therefore adjourn the
time as the House will have an opportunity 10
act upon it, If they are disposed to.
Mr.; Shellabarger. VIII that time be fixed by
your Honor to suit your own pleasure7 We will
then report to the House what the action Of the
court is In this case.
The Court Does the House sit on SATURDAY.
Mr.. Shellabarger They are in session to-day,
your Honor; and If the report Of the conditionsof
the case should make 1t necessary doubtless they |
would sit tomorrow in order to dispose Of the
question.
The Court. Then will call the matter up at
o'clock tomorrow. Until that time the matters
may remain as they now are.
Mr.. Shellabarger said that he would make no
application for delay, but as the case was one :of
much difficulty and magnitude he would suggest
hat a rule to show cause against an attachment
Oi contempt might issue. This would allow Of
Time to harmonic difficulties, or the case might
be postponed without the attachment process
No other one occurs to me 70 make, and the case
must take the course which your Honor may
1eem wise.
The Court said, probably few hours time
or reflection would assist TO harmonic the diff |
,ulties. He would, therefore, adjourn the case
Until to-day at II O'Clock.
The court then took up the Norwood case, and
he crowd rapidly diminished.
THE COURTS.