The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-01-18
The Hearing in the .. S. SUI
preme Court.
THE ABLE ARGUMENTS MADE
..rbe Judge in the Lower Court Did
,To+ exercise His Discretion
An Interesting Letter.
co-,eapondence of THE HERALD
wAsH1sGros, January 5, 1885.

crnrame Court of the TIE -itory OF Utah.
writ of kabea8 corpu~, as before the
snnreme Court of the United States to-
~ s The court met at u o'clock, and
IL two hours were devoted to the
49, lo5;vorv Of opinions, This part OF the
n,oceedings ended, the casesof ClawsOn
vas called, and It was announced that
..o-rsal on both sides were presenG and
,,rsnaTed Hon. Wayne MacVeagh, ex-
encouragement, and Hon F. s. Rich
ar5s If Salt Lake City, appeared for the
a1,,aIIant whileS 5l;citor-General Phillips
-asn1rasented goYernment. Mr.. Mac
veaph opened the argumentby succint
and rucid explanation OF the history
and nresent status Of the case. He in
listed that the Supreme Court of the
Territory of Utah had refused to exer-
else anv discretion as to whether the at
tendance of the defendant could be
secured at the decision of his appeal,
nv bail or not, and held that the certifi-
cate of probable cause granted by tn e
nudge who tried the case, entitled him,
as a matter of course, to bail; because,
in no other way, in the Territory, could
The Judgment be stayed in fact, as well
as in name. He denominated the action
OF the court in refusing bail, as novel
and startling departure from substan-
tally unbroken line of Judicial preced-
ents. while it IS, perhaps, not admissi-
ble for me to suggest or your honors to
Io% fbnra hoI
been motives for the change of proceed
ure, it has often happened in judicial
history, that prosecuting officers and
Judges have persuaded themselves that
Il was far better in the public interest
20 punish the persons they esteemed
deserving of it before final Judgment
than afterwards and If the judgment
in this case is affirmed by this court, it
will not only confer upon such officials
the power to do this, but twill in effect
annul the act of Congress granting the
privilege Of an appeal to the citizens of
our Territories. Such is, no doubt, one
of the objects of the decision, for it is
quite plain that itwould be sheer mock
cry OF an unfortunate person who be-
ieved he had been illegally convicted to
tell him that he had the right to bring
the legality of his conviction in review
before this court, but the price of his
doing so, although there might be prob,
able cause for such appeal, was the Ger.
.ainty that he would undergo at least all
me punishment pending his appeal
Rhich would be inflicted if he did moi
axe any appeal and if his appeal wal
decided against him, he would have
secured for himself double the punish.
ment ne would have received. if he had
IL 30 L. e Il.
inferior court. 1t is not, therefore, the
case of Rudger Clawson alone, but OF
every citizen of the United States in the
every other Territory, which is now pre-
sented for decision, and if any doubt
existed upon the proper constructiono of
the statute of Utah requiring the exer-
Use of judicial discretion upon the
question OF bail after conviction for a
misdemeanOr, and after the granting OF
certificate Improbable cause for appeal
his court would, if possible, sedufous-
" avoid any construction OF that statute,
the practical effect of which would be
TO utterly destroy the right of appeal
guaranteed to the citizens of the Terri
Tory by the Congress of the United
states. II that right is to be preserved
against the encroachments of the Judi.
clal othcerS Of the Territories, no better
case Tor Its preservation can be offered
man the present The accusation
Ahst the defendant is that he is guilty
Oh q miSoemeanor. The commission OF
Sucn an onense in Utah cannot give rise
any presumption that the accused
1ouIo De likely to become a fugitive
rom justice. There is no pretense that
any attempt to escape has been made OF
apprehended, nor can it be alleged
snat IL the entire history of the Terri.
any person accused of this offense
LaS ever forfeited his bail, or failed to
1Sspond 10 the demand of the constitut.
~ am9! - upon him. In addition
w an Lnls, the method of his trial and
G9AVlcton IS so clouded with doubt thai
me presiding judge, with the consent nj
me prosecuting officer, grants a certif.
cate that there is probable cause for he
ueVing that his conviction will be re-
sersed for illegality. If, therefore, be
Csn be compelled to serve out his sent
enfe OF imprisonment really, though
Io' TECHNICALLY, before an appeal under
.uch circumstances can be determined
ne night Of appeal itself becomes a de
,us!on and a snare, and the statute
sE@nglng 1t Will henceforth stand II
mock and not in mark"
D1rlng the argument, Mr.. MacVeagl
sas frequently Interrupted by question:
Tom members of the court. One O
me justices said: "Well, he isn't in TIL,
genltentiary now, is he?" to which thu
psaHer replied: That's exactly VIVA
eSthgs US here. We want to get hin
S I on bail. We want the court to US.
s discretion it should, a&ld not decline
S SuT1 some extraordinary reason WHY
Oau should be allowed, is shown. In al
.F experience have never known bal
q refused in oifenses of the sam,
Slaae save in one case, and there tn
~ sa5'{ had been fugitive from iustic
T,, nad forfeited his right to bail"
S'gsrtcE HARLAN-And I never knew
~ IN 70 De allowed at all in case wher
NJ. NJ Is convicted for felony.
vo,,S A MAcVEAGH-That is very true
}ejo os non'r; but this is not a case Q
" Sass. r"lony has been authoritative
II t,sHned 5 ANY offense which by tn
isbsi. I1S OF by the common law is pun
Ensi;i"S5 VITA death, or to which the oil
al Tf aSg law attached the total forfeitur
stat naos or goods, or both, or which
and = OK ressly declares TO be such,
ofensne Stnte does not declare tn
victed 70 u which this applicant is cor
J In % be a felony.
lbat FIELD-Do vow moan IN On