The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-01

Blundsrs in the Revised ststutes-The
Kilbourn Case.
! So many blunders have been detected in
the volume known AZ 1.-The Revised Statutes
of the United States" as to necessitate
thorough overhauling of the careless work OF
the revisers and the reprinting of the volume
at heavy expense The recent decision of
Judge Cartier, in the case of Kilbourn, ex-
poses one of the worst of these blunders
which has yet been brought to light. Those
members of the House who are SO enraged
and scandalized by Judge Carriers decision
are barking up the wrong tree" and had
better direct their indignation against those
who really deserve it. 1t is true enough that
Judge Carriers decision flies in the face OF
previous judicial decisions on the same sub
ject; but this is no fault of the Judge, but
of . surreptitious and Needless change of
the law by the revisers. OF course we do
not mean to say that the revisers had
any power to enact laws; the task
with which they were charged was
merely to compile and arrange the statutes
in force But Congress, presuming that their
work had been faithfully done, enacted
that it should have the force Of law and
supersede and repeal all previous laws any
part of which was included in their compila-
ton. 1t is safe to say that if they had made
their revision in o workmanlike manner the
writ of habeas corpus in Kilbourn's case
would not have been granted, or, if granted
by inadvertence, the prisoner would have
been remanded, after the hearing, to the GUS
tody of the Sergeant-at-Arms of the House.
The clear intention of the law of 1857, as
explained by the committee which drafted
and reported it, was to extend the punish
ment of contumacious witnesses beyond
what could be inflicted by either house in
cases of contempt. A witness who refused to
answer questions near the close of a session
had nothing to fear beyond detention in
custody until the adjournment, when the
power of the House over him would cease.
Corrupt parties whom his testimony would
damage could afford to compensate him for
such transient loss of liberty. Congress,
therefore, passed law intended to subject
him to heavy penalties of fine and impris-
onment after the power of the House over
him was lost by the close of the session. In
order to make this intention plain and re-
lieve the law from all ambiguity it was ex-
pressly enacted, Tin addition to present
pains and penalties" witnesses refusing to
answer pertinent questions should be further
subject to be indicted and tried for misde-
meanor and imprisoned for not more than
one year and pay fine not exceeding one
thousand dollars. But the slovenly and
laundering revisers dropped out Of the S tat
ute the words we have just quoted and
thereby made the added penalties
the only punishment Of the offence
Hence an act which merely intended
to surrender contumacious witnesses to
the courts after the House had done with
them smade to exempt them from all con-
sequences, except those enacted 'in addi-
ton" to the then existing penalties. The
blame of depriving the House of its author
ity over Kilbourn does not rest with Judge
Cartier, who is obliged to administer the law
as he finds it, but with the botching revis-
ers of the statutes.
The law, as they found it, fully protected
all the rights of the House over persons in
contempt. 1t left the two houses at full lib
erty to detain stubborn witness in their
control until the close of the session, and to
avail themselves of his testimony if he
should get tired of confinement and signify
his willingness to answer questions. But
the law, as it now stands, through the blum
H. - 4 L. k.1- 4 I.
out of the hands Of Congress and deprives
the House of his testimony if he should
change his mind and consent to give it. The
history of the act and the debates which
attended its passage prove that Congress in
tended that the House should retain their
control over witnesses until their adjourn
ment or until they thought fit to surrender
them to the courts The laundering omis-
sion of SO important part of the law is dis
graceful to the revisers.
The law of 1857 was passed in conse-
quence of the refusal Of Mr.. James W.
Simonton, then q correspondent of the Times
to answer questions put to him by an in
vestigating committee. At the very next
session case arose calling for the .applica-
ton of the law and fixing its Interpretation.
Precisely as in the case of Kilbourn an in
dictment was found against the recusant
witness. The case was brought before the
District Court, and the Judge decided that
he had no power to take Wolcott out of the
custody of the House. In a motion after
ward made in the House for his discharge
the following recital was made in the pre-
amble of the northumberland whereas the
court in which said presentment is pending
have determined that said Wolcott cannot be
tried on said presentment, SO long as the
House holds him in custody under its rights
and privilege" DC. Judge Cartier would
have been certain to make precisely tho