St. Paul daily globe., 1892-01-22

death against the meL, who were nOt
then i'll court.
Sentenced the Absent.
MIR. Solomon maintained that the mer
not having been present when the state
supreme court announced sentence, il
was deprival to them of the due pro
cess of law and contrary to the consti
tuition OF the United States. He argued
that there was violation of the consti-
tutl0nai rights of the prisoners in not
naVing them in court at the time of sen
tence. and likewise Ill refusing to show
the facts.
The chief justice suggested that the
state supreme court merely fixed the
time for execution. Mr.. Solomon as
serted that the court did more, by recit-
Ing that the persons were present. He
then made another point by affirming
tnat there was no authority by
which the governor of the state
could direct the enforcement OF
hlS communication of sentence. The
power of pardon and communication were
conferred by law On the governor, but
there was no manner provided by
statute for enforcing Imprisonment
where ordered in commutation of a
death sentence. and the governor in Oil
Rectlng such Imprisonment had assumed
a power not vested in him.
a Acceptance of Pardon.
Justice Gray asked if there was any,
thing to show whether or not the pris-
oner had accepted the governors par
don. Mr.. SalOmon replied that there
was nothing whatever to show that
Sehwab mad accepted it. The justice
then asked if the result would not be
that the man would go free and that a
Communication would amount to an abso-
mte pardon. Mr.. Solomon admitted this.
/ but maintained that, though cOmmuta-
ton might, under the Illinois laws, be
ordered, no power existed to enforce
the imprisonment ordered.
George Hunt, attorney general of the
state of Illinois, followed Mr.. Saiomon
IN behalf of the state. He maintained
that the United States supreme court
had no jurisdiction to pass upon the ac-
ton OF the supreme court of Illinois.
The only alleged error on the part of
that court, whose judgment was sought
to be reviewed. was refusal to amend
its record and show thar Fielden and
Schwa5 were not bodily present when
Judgment was rendered. This court
had Jurisdiction to review the final re-
sort of the several states only whenever
federal question was involved. He
submitted that
No Federal Question
was involved in the record and that
there was no final judgment to be re-
viewed. There was simply a decision
of the supreme court of the state of Hi
nois on motion made subsequent to
the entrance of final Judgment in the
original case. Moreover, the supreme
courts Judgment was not cOndemna-
ton of the parties, but simply refusal
to Interfere with it's own record.
Mr.. Hunt then called attention to the
fact that it was not until the next term
of court that the men filed their Objec-
tons, and he asked when litigation
would end if counsel would come Ill at
any time and allege errors in the record.
There was no reason, he said, for the
presence of the men in the court.
There Is in the case suggestion that
/ the two men are subjects of Great Brit
Hunt said he was unable to find any,
thing in the treaties by which the case
could be affected. A foreigner stood
on no better ground than an American
citizen.
Gen. Butler-That Is true.
Quoting Butler.
In the course of this part of the argu-
ment Mr.. Hunt quoted from an utter
ance of Gen. Butler to the effect that
foreigners are entitled to no greater
consideration than American citizens,
and not so much ''if they did not be-
have themselves" and paid a compli-
ment to his opponent by adding that
sit was that speech that now enables
him to measure swords with Palmers-
ton aud not come off second best in the
conflict"
Gen. Butler arose, and thanking Mr..
Hunt, said: What L shall ask the
court to come to is that foreigners here
have. under the treaties, exactly the
same rights that we have, but that
when the rights guaranteed by treaty to
foreigner are brought in question he
is entitled to adjudication through the
courts of the United States, and there
fore that federal question will come
UP in the records"
The Importance Of this statement is
that 1t shows the manner in which it is
expected to establish the jurisdiction OF
the United States supreme court and
Its Right to Review
the proceedings In the state court. The
attorney general of Illinois then closed
his argument by addressing himself to
the claims made in behalf of Schwab
that there was no authority for
sending Schwab to the peni-
tentiary after commutation and
that the letters directing his confine-
ment and the copies of courts decisions
amounted to nothing. As authority
therefor Mr.. Hunt maintained that un-
less the pardoning power was regulated
by law the manner of its exercise was
entirely a matter of executive discre-
ton.
Chief Justice Fuller-Has any appli-
cation been made to the supreme court
of Illinois on behalf of this man on this
ground?
Mr.. Hunt-No, sir.
The Chief Justice-Where is the fed
eral question, then?
Mr.. Hunt argued that there was none.
and said that the claim that Schwab's
imprisonment under commutation by
the governor was Illegal, was novel and
amusing.
Gen. Butler will make the closing
argument tomorrow.
WHY NOT STATE AGENTS?