The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-04-15
BABCOCK MANAGING THE SOLICITORS.
How the Secret Service Was Used tor
Personal Purposes.
Proposed Modification OF the
Internal Revenue Law.
LEGAL ASPECTS OF THE KILDOURS CASE,
FROM OUR SPECIAL CORRESPONDENT.

ACTION OF THE JUDICIARY COMMITTEE IN THE
XILBoURN cAsE-LEoAL ASPECT OF THE
QUHsTIoN-PosIrIoN OF THE EEcUsANT W.T.
NESS coUNsEL-AN ATTACHMENT AGAINST
THE sRRoEANr-AT-AnMs-A POSSIBLE RE-
sIsTANcH BY YoRcE, AND WHAT THEN?
The dissemination OF the Judiciary Committee to
advise the House not TO surrender Kilbourn to the
District Court in obedience the writ OF habeas
pus, for trial the indictment found against him Is
the subject OF conversation here to-day, and good
deal OF curiosity Is felt about The action OF the House
the committees report. IL understood
that three of the members Of the committee
Two OF whom arc Mr. Proctor Knott, the
chairman and Mr.. Lynde, OF Wisconsin, two OF the
Ablest lawyers In the House. do not in the
illusions OF the committee, but hold that Kbourn
ought TO DO handed to the Court for trial.
When White and Ramsde imprisoned by the
Senate the law provided that addition to all other
PANS and penalties the parties contempt should be
subject to Indictment but in the revision Of
the statutes the words sin addition to other
pains and penalties" were omitted and the
statute Is percmptory that where the witness
is In contempt Tor refusing to give testimony before
committee the presiding officer OF either House shall
certify the fact the District Attorney TO insure his
beng indicted and tired for the contempt, which is de-
cared to be . misdemeanor. Section l04 OF the Re-
vised Statutes reads thus:-
Whenever witness, summoned mentioned IN
ported TO either House, the President OF the
Senate or The Speaker OF the House, as
the Senate House the District Attorney for
District OF Columbia, whose duty It shall DO TO bring
the matter before the Grand Jury for action.
In Klbsurn's case the Speaker made the proper
certificate; the was laid before tho Grand Jury;
IN indictment duly found and thcrcupon bench
Z hnfor cha
for trial; the marshal mado return the bench
rant that Kilbourn in the custody OF
the Scrgeant-at-Arms OF the House OF
Representatives who refused to deliver him
over thereupon Judge Cartier issued = writ OF
habeas corpus commanding the marshal TO bring the
body OF Kbourn before the Court that he could be
tried upon tho indictment which had been found
based upon the action of the House This is the writ
which tho Judiciary Committee have agreed to advise
she House 10 dsobey.
Kilbourn's counsel contended that, even conceding
that the House has night to punish contempt
yet the particular case must be within the jurisdc
!ion OF the House, and that this is not such a
ease; that the courts Of law habeas corpus have
right inquire into tho authority ami Jurisdiction
der which citizen is confined and, therefore. upon
general principles the House should obey the writ and
the should show within the jurisdiction
Of the House to punish, then It would be tho
duty OF the Court to remand the prisoner to
his former custody. But in this they
60 farther and claim that the statute has
stripped the House OF all power TO punish for
the particular Contempt complained of that the power
10 punish for contempt Is incidental power at the
utmost that tho clause Of the constitution which
thorzes Congress ITO make all laws which shall bo
necessary and proper for carrying into execution all
powers vested by the constitution In the
nj tha tad iafa int in ~ mt
oleor OF the government authorized Congress
pass the statute question, and tnat under this
natute. the only punishment is upon Indictment They
also contend that, under the filth amendment TO tho
constitution, no person be twice tried and pun
shed for the offence, and that since tho statute
has declared the refusal OF witness to qucs-
ton before committee be misdemeanor, Kilbourn
Is protected by the sixth amendment the Constitu
tioul which provides TIA, IN all criminal prosecutions
he accused shall enjoy the right Of trial by jury,
and they that the House, after instutng pro-
seedlings for the Indictment trial and
punishment or Kilbourn in the courts Of
law and since he has been indicted
and demands trial thereon Is acting illegally and ty
FINANCIALLY in withholding him IRON the very court Ia
which they have begun prosecution against him.
Klbourn's counsel will apply to Judge Carter for an
attachment against the Sergeant alarms tomorrow
morning The Judge, having issued the WRIT cannot
deny the attachment and II the attachment shall b.
resisted by force powerful 10 be overcome by tho
Marshal tho President will By applied enforce the
process OF the court kilbourn's counsel content
that the President, having enforced the vote
order Of Judge Durell in New Orleans b,
armed occupation OF thc State House Of thu
State OF Louisiana cannot refuse TO enforce the per
ectly legal process OF the Judicial Court of the United
States sitting at the capital They assert tina, tn,
sbo holo and tho
who is commander in. chief Of the army, and bound I.
see the laws VI the land executed, do his duty.
These are the views OF Kiibourns counsel; bu
matters arc not likely be carried TO such
rnerc 70 wild aud foolish talk among republicans
about possible collision between the President ant
the House this question. but IL is very uncertain
that the House win agree to the action recommended
BY the committee. Many OF the best lawyers tho
democratic side believe that ilbourn ought 10 DO
to trial
THE ADJOURNMENT ouEsTIoN--THE SESSION
LIKELY TO he uScoMMoNLY PROLONGED
OPPOSITION TO RxrnENcuMKNr AND REFORM
IN THE SENATE
Tho warm weather Of the last two days has caused
people 10 speculate about the duration OF the session
or Congress II Is difhcut how IL can get
through the necessary business and adjourn booie tue
last ofJune and many experienced members believe that
hc session may be prolonged tar into July. The ap-
preparation bills are greatly behindhand, and Is now
ertaan that the Senate will vigorously rcsst the
measures Of rctrcnchmcnt and economy proposed by
no House, and that there will be great delay over
ivory bill Is certain, too. that the republican
majority In tho senate will oppose such measures o.
reform - the transfer OF the Indian service 10 ID.
war Department measures which are 80 combined
wsh some Of the appropriation bills as to make trouble
some arrangements necessary II they should iail
Meantime the investigations 20 on and time neccs
sary 10 complete these Thus u seems very probabI
that tho present session viii be uncommonly pro
ionged
FROM OUR REGULAR CORRESPONDENT
WASHINGTON, April IL, 1874