The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1890-04-15
DIVERGENCE OF OPINION
Supreme Court Judges Disagree on The
Magic Case.
A Probability that the Famous
Case VIII Have to be Settled
by the Courts of
California.

an opinion on the Neagle case says:
The proposition Ii advanced by Neagle's |
counsel that Justice Field when attacked |
was in the immediate discharge OF his |
duty as Judge and; that NeaRle was |
c harged with the dutte Under the laws OF |
the United States to project Field from |
violence, the law requiring Justices OF the |
supreme court to 60 on circuits is quoted. |
Justice Field when attacked had
his circuit and was In the necessary |
act OF returning from Los Angeles TO San |
Francisco, where he was required bylaw to
be when he was assaulted. We have no
doubt that Justice Field, when attacked
by Terry, was engaged in the discharge OF
his duties as circuit justice and was enti-
tied to all the protection under those cir
cumstances which the law could give
him. The court does not suppose that
any special act of congress exists which
i'm express terms authorizes marshals or
deputy marshals to act rs a body guard TO
justices while on their circuits, but in it's
view of the constitution IL is fairly and
properly inferable from that instrument
or any duty OF the marshal to be derived
from general scope his duties comes
within the provision Of the habeas corpus
act, directing release of persons who are
of the laws Of the United States.
II would, says the Opinion, he n great
reproach to the system OF the United
States declared to he within its sphere
sovereign and supreme IL there is to be
found within the domains OF its powers
no means of protecting its Judges in the
discharge of their duties from the malice
and hatred OF those upon whom it's judg-
ment may operate unfavorably II per-
son i'm the situation of Justice Field could
have no other guardian for his personal
safety while engaged in the conscientious
discharge OF a disagreeablc duty than
dered his murderer would be sub
ject to the laws OF the state and
by those laws could be punished, security
would be very insufficient against the
plan which Terry and his wife had in In
sulting him and assaulting him and draw
ing him into an offensive physical con-
test, i'm the course of which they would
slay him shows the little value OF such REM
edies. We don't believe the government
of the United States is thus inefficient and
that the constitution and laws have left
high officers of the government SO de-
fenseless and unprotected. II Is IN the
executive department that the court finds
the power of protection to exist and in
language of the constitution directing that
the president "shall take care that
the laws be faithfully executed" and pro.
vitling him with means TO fulfill this obli-
CATION by his authority TO the commission
of all the principal officers of the United
States. Is this duty, asks the court, limit
ed to the enforcement of acts OF congress
and treaties or does II include the rights,
duties and obligations growing out of the
constitution and international relations!
The court answers the question by calling
attention to the fact that there Is no law
of the United States authorizing the gov.
ernment to interfere for the protection OF
the naturalized citizen of the United States
who, on visiting his native place is
arrested and made to join its service
and then cites the case OF Martin Kazal,
an Austrian. Were the government with
out any specific authority fromecongress
He demanded and obtained his release.
The regulation of the land office APP
pointing timber agents and providing for
their payment which had been held valid
by the supreme court though there is no
positive provision of ,n the LAW law
of the attorney general is sustained by
the supreme court TO institute suits to set
aside patents obtained by fraud, though
there is no statute on the subject recited
in support of the doctrine. Continuing,
the court says IL cannot doubt the power
of the president to take measures for the
protection of n United States judge who,
while i'm the discharge Of his duties, is
| threatened with violence, and that the de-
partment of Justice is the proper one to
set i'm motion the necessary means OF
protection, and that Maggie had proper
| protection and defense OF Justice Field.
| There is, says the opinion, peace OF the
| United States, and the United States
| marshal, i'm each case, stands in the same
relation which the county sheriff does in
| maintaining the peace of the county.
IL cannot be doubted that IL would have
been the duty of sheriff, had one been
| present, TO prevent the assault on Justice
| Field aud prevent the murder contem-
| plated by il, and il IL became necessary to
L. Es. ia
was evidently a question OF choice OF who
| should be killed, the assailant and violator
| of the law, or the unoffending man, who
| i'm his power. there can be no question OF
authority of the sheriff To have killed
Terry. The marshal stands in the place
| of the sheriff and il being his duty 10
| guard the Judge, and being present at
| the critical moment when prompt action
| was necessary il was his duty. duty
which he had no liberty TO refuse TO per-
form TO take steps which resulted in
| Terry's death. The court next takes up
the contention that the question of the
| guilt of the prisoner of the crime OF muir
| der is n question to be determined by the
courts of California and that the United
| States court had no power To take tue
prisoner and release him without trial
by jury, according to the laws OF Sailfor-
mia. The courts response TO this conten-
ton Is that the express terms OF the
habeas corpus act direct such course
where an act is done Ia pursuance OF the
laws of the United states, and
such has been shown to be the case
| here, the act of the prisoner having
been committed i'm pursuance OF the law
of the United States. He cannot be guilty
of tho crime under the laws OF the state OF
California; and when II is shown that he
is proved innocent of any crime against
the laws of that state, there Is no occa'
sion then for any further trial in the state
,irts and the United States court was