Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-03-05


Court that Marshal Nagle should be tried
in the courts for the killing of Judge Terry.
Attorney-General Miller and Rufus Choate
replied on behalf of the Government, alleg-
ing that the claim was a revival of the doc
trine of State rights.
WAsHIN GToN, March 4.-The Supreme
Court chamber was filled throughout the
four hours of the session of the court to-
day with an audience which listened at
tentively to the arguments of counsel in the
Nagle case, arising out of the shooting of
David Terry, in Lathrop, Cal, last sum-
mer, when he was in the act of committing
an assault on Justice Field, of the Supreme
Court. All the Justices were present ex-
cept Justice Field. Seated within the bar
were ex-Sccretary Bayard, ex-Postmaster
General Dickinson, Senator Hoar, Evarts
and Gray and other well-known men.
The argument was opened by Mr.. Zach
Montgomery in behalf of the appellant,
Sheriff Cunningham, from whose jurisdlc-
tion Nagle was discharged on a writ of
habeas corpus issued bv the United States
Court. The writ of habeas corpus ordering
the discharge OF Nagle was based on the
ground that he was an officer of the L United
States, a deputy marshal, engaged in the
performance of mis- duty of protecting JUS
tice of the United States Supreme Court,
and THAI he could not therefore, be impris-
oned bv the State authorities. y~-S5S
A QUESTION OF JURISDICTION.
Mr.. Montgomery, in beginning his argu-
tnent, said that it was the contention of the
State authorities that the sole question be-
fore the court was jurisdictional one, and
therefore that all question of Nagle's guilt
or innocence was irrelevant. If he were
absolutely certain that the court agreed
with him upon this point he would pass the
circumstances connected with the affair by
without comment; but, as the lower court
had made this part of the record, he would
review the leading points in this evidence.
Taking up the legal question at issue, Mr..
Montgomery maintained that unless there
was specific statutory authority for the in
struction given Nagle TO accompany Justice
Field there was no authority for his re-
lease by the United States Circuit. If it
were true that his act was justifable homi-
eide, necessary for the protection of Justice
Field, then there need be no fear that the
State would not acqult him; but it was
for the State to decide on this point.
THE GOVERNMENTS CASE.
Attorney General Miller, who followed
in behalf Of the United States, said that he
would base his argument upon two propo-
sitions:
First-That it is the duty of the Executive
Department to protect the judiciary of the
Government.
Second-That under the Constitutio 4. theyiu-
dietary being in allegiance to the executive, il
is the duty of the Judiciary Department to sit
in Judgment upon the acts of its officials in
performing their duties in accordance with the
Constitution
He quoted from the words of Secretary
Bayard that the inherent right of the Gov
ernment TO enact and enforce laws gives it
power to protect its servants in their execu-
tion. The Attorney General argued his case
upon this line. The proposition advanced
on the part OF the State was heresy as old
as the Government, which had been refuted
times without number in the courts, in Con-
gress and upon the battlefield. 1t was this
same argument tha; the Executive had no
power except such as was specifically grant
ed by the legislative department that had
been used before the Civil War to deny the
power of the Government to coerce the seced-
ing States.
A JUDICIAL INTERRUPTION.
Justice Bradley interrupted the Attorney
General in the course of his remarks with
the question: "With what force shall the
President execute this power of protection
OF WHICH you SPEAK, SuppOSlnS Inat Inc
Marshal had not sufficient force for the pur-
pose?"
The Attorney General answered: "With |
the posse in the first instance and if that
were not sufficient, with the army and
navy"
Justice Bradley then said: "Then he has
the right to the aid OF all citizens of the |
United States in maintaining the laws and |
in protecting the institutions of Govern
ment."
Nh Joseph Choate, of New York, who |
followed the Attorney General as one of the |
counsel for the Government, opened his |
argument with the statement that ever since |
the beginning OF the Government the people |
of the United States had rested in the con- |
vietion that they constituted nation;
that within its limits the Govern |
ment was sovereign and supreme; |
and that it had within itself ali |
the powers and facilities to fulfill its own |
functions and accomplish its own purposes.
For the first time in hundred wears, the |
people were now met with the startling con-
tention that a Justice of the highest court |
OF the land was not entitled to the protec-
ton of the Government in going from one |
place to another on his circuit. Mr. Choate |
had not concluded his argument when the |
court adjourned.