Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1889-09-21
laAleuASTER, PA. September 81, 1889.
4, extraordinary Claim.

The Philadelphia Inquirer denies the
Statement cf the Times that Judge Saw
yer, In discharging Nagle for the killing
Of Terry, made an entirely novel claim of
of federal Jurisdiction in criminal cases ;
and the hquircr,in maintaining its posi-
tion, succeeds in making claim for the
federal judges which is not only ZEN
tirely novel" but extravagantly wrong.
Il thinks II not probable that Judge
6awyer's position will be criticised by
careful students of the law which may
be but we think that IL will find few
approvers among professors Of the law,
II IL Is what the Inquirer would make II.
II comedies that the United States
court has no jurisdiction to try Nagle
for murder since the circuit court can
not exercise common law Jurisdiction in
criminal cases :" but 1t asserts that It
had authority to release him from state
custody, because he was ain custody for
an act done or omitted In pursuance Of a
law of the United States or Of an order,
process or decree Of court or judge
thereof" for which II cites authority,
but fails to point out that
Nagle shot Terry, in pursuance of n
law or of an order, process or decree of n
court or judge thereof" II cites
Judge Sawyer's own conclusion that
" the homicide in question was COM
mitted by the petitioner while acting in
the discharge of the duty imposed upon
him by the constitution and laws of the
United States"; but fails, as Sawyer
docs, to discover the law that imposed
upon him the duty of killing Terry.
And the claim set up is clearly not only
novel, but the astounding one that
when United States marshal
kills another, and kills him Justly in
the opinion Of United States Judge,
be may set him free without trial
by jury that though the states only
have Jurisdiction of the offense, If IL he
one, they shall have their prisoner taken
nom their custody by the United States
aud turned loose upon the community,
when the deed which is charged against
him as crime IL no crime i'm the
opinion Of United States judge. Such
authority as this lifts up the United
States judge to be the supreme arbiter of
the law and the facts in criminal eases,
which II Is not within their jurisdiction
70 try by the aid of a jury, aud has the
absurd effect of giving Jurisdiction to a
Judge which does not exist in his court.
1t has the evil effect of abolishing trial
BY jury, and the unbearable result of
putting the people of the states under
the heels of United States marshals and
Judges to be slain by the marshals,
who are absolved by the judges.
What is the simple fact In this par
ticular case? Ii it not that Justice
Field, Of the supreme court, fearing
ex-Chief Justice Terry of the California
court, whom he had offended by an ad-
verse decision, secured, by the order of
United States Attorney General Miller,
the company Of United States marshal
In his journeying through California ;
that In that journeying he was slapped
ON the cheek by Terry, who had no arms
IN his hand or on his person, and who
was instantly shot by the United States
marshal. the first shot killing him and
= second following as he fell. That is
oil there is TO the story, save Justice
Fields declaration that he did not direct
thr shooting or know that 1t was to
occur.
4sagle does not even have the "order"
Of United States judge to repose upon.
His only defense is that he thought
Terry would shoot. He was afraid and
wanted to get in first. But the well
settled law Is that simple fear will not
justify killing IL must be fear founded
on fact such fear as a cooked pistol
An Terry's hand might have in
spired. If Nagle was "rattled" and mis-
took Terry's hand for his pistol, he can
mot allege that weakness of eye or head
In justification of his shot. And there
clearly was that in his act which called
for decision OF a jury upon it, No
state judge could have discharged him
ON habeas corpus hearing and taken the
case out of a jury's hands; and no United
States judge should. The safety of the
people will not allow such assumption
OF authority in the federal court if con-
ceded, 1t will make us the slaves of
United States judges and marshals from
whose malice Heaven defend us.