The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-04-06
THE DANA LIBEL CASE
ARGUMENT ON THE APPLICATION
FOR A WARRANT OF REMOVAL.
District Attorney MacFarIane's ADJ
dress and EIihn Roofs Reply I'm
Behalf of the Editor.

rant of removal to Washington of Charles
A. Dana, editor of the Sun, was begun at
2 o'clock this afternoon. Lawyers Elhu
Root. Franklin Bartlett and S. B. Clark,
who represented the defendant, arrived
promptly on time. They placed an armful
of documents on the table in front of the
bench just as Judge Brown entered the
room. Ex-Judge Wilson. of Washington,
also took seat beside the lawyers at the
counsel table, and it then understood
that he had been specially retained by Mr..
Dana
On March last the grand jury of the
District of Columbia indicted the editor of
the Sun for criminal libel on Frank B.
Noyes, of Washington. The libel COM
planned of was published in the New York
Sun Of Feb. 90 Editor Dana was arrested
on a bench warrant. and the preliminary
proceedings were begun before United
States Commissioner Shields, in this city,
on March is, when the defendants iden-
tity was established, and he paroled
on his own recognizance.
United States District Attorney MacFar
lane and his assistant, M. j. Kohlef, were
hand this afternoon to urge the issu-
ance of the writ of removal. AS soon as
Judge Brown had announced that he was
ready, Mr.. MacFarlane made the formal
application for the warrant, and explained
the proceedings in the case up to to-day.
While he was addressing the court Mr..
Dana came in and sat behind his counsel,
within the inclosure. He moved further
back a little later and sat beside ex-State
Senator Brown, who was carefully listen
ing to the arguments. Mr.. Dana seemed
deeply interested, and soon moved over to
where ex-Judge Wilson was sitting. 1t
was noticed that they frequently conversed
together in an undertone. Mr.. Root began
to speak the moment Mr.. MacFarlane con-
~c,,I1~ il
history of the case. He occasionally re-
ferred to statute books, and at frequent in
tervals read from sheets Of closeiy-wrltten
and an adjournment was taken at $40
o'clock. The argument will be resumed at
IL o'clock tomorrow morning.
In the course of his address Mr.. Mac
Farlane referred back to a previous case
in which an application was made to re-
former alleged libel, and although Judge
Blatchford decided that it could not be
Judge had overlooked one of the statutes
in rendering this decision. Mr.. MacFarane
said: by the act of March 9, 1891, defining
District of Columbia, libel and conspiracy
are expressly mentioned, showing that they
and liable to the jurisdiction of the SUI
preme Court. which has general jurisdic-
ton oyer all crimes After citing tins TWO
MacFarlane concluded, having spoken a
little over half hour.
MR.. ROOTS REPLY.
Mr.. Root, in replying, said: I'm this
proceeding the defendant, a citizen of New
York, residing in this city, has been ar
rested by a marshal of the United States
under warrant issued by commissioner
of the United States in this district, and
has been brought before the commissioner
The warrant was issued on an affidavit
made by the United States district attor-
ney which itself, charged no offense, but
set forth that on information and belief
that an Indictment had been found against
the person named in the warrant by the
court of the District of Columbia, his
rest was asked for, and to the affidavit is
annexed what purports to be a copy of the
indictment. Upon being brought before the
conn the indictment or the al
the defendant having demanded ex-
animation and a witness was put upon the
purpose of Identifying the person then be-
fore the commissioner, and upon that the
that no probable cause had been shown for
was arrested, or for any further process
OF commitment that no probable cause
had been shown supported by affirmation;
that there was no proof of any offense COM
mitted, either here or in the District of
Judge Brown-That was the indictment.
I see the affidavit of the United States
attorney states that it is an exemplified
copy.
Mr.. Root shall also endeavor to show
evidence. Mr.. Dana offered to prove af-
Tentatively that there was no probable
cause that he was guilty of the crime
lively that no offense had been committed
by him within the District of Columbia or
within the jurisdiction of the court which
it is alleged found the Indictment, and
that it should be excluded. 1t appeared
before the commissioner that the defend
ant was citizen, not of the District of
Columbia. but of the city of New. York,
resident Of New York, and that he was
time when the alleged offense was com
mitted. Now. it is obvious that the ques-
ton as to whether the defendant should
York to the District of Columbia to be tried
for criminal offense committed
t thate he wa reason Editor of tne neMs
paper published in the city of New York,
COPIES nIa b Of we If IN the u
lance to the entire press of the United
States. and that the proceeding is pro-
of counsel. but of the courts, to consider
the questions of jurisdiction, of power and
ity under which it is supposed that this
proceeding may be maintained by the gov
eminent is, as understand it, to be found
in substance of the thirty-third section of
the judicial act of 1872"
Mr.. Root then read from the statute
books. and argued at length that the pro-
ceedings were unconstitutional, and that
if the judge decided to issue .the warrant
fourth amendment of the Constitution of
the United States. Later on he said: My
proposition now is that the offensive libel is
one single offense; and, granting this charge
be true, that the article Mr.. Dana is said
to have written and published in his paper
in the city of New. York was a libel, and
that he did write it and publish it, it was
but one offense committed by the publish
ing Of ali these papers in the city Of New
York-not 100000 or 100000.
After speaking for three hours Mr.. Root
concluded his remarks by saying: Il sub
NIT fttnf &c xynr1 dIrf " n ca
is no probable cause supported upon oath
or affirmation. That there is no proof be-
fore you of valid Indictment. That there
is no statute of the United States which
authorizes the removal of this defendant to
the District of Columbia for trial for an
offense against the law of that District
That the courts. of the District Of Column
bia have not had jurisdiction conferred
upon them to try any case, only as il APP
pears upon the face of these papers. The
defendant was not actually there when the
offense was committed. and the offense was,
Il committed at all, committed in another
jurisdiction, and that this offense was not
committed within the District of Columbia
within the meaning of the constitutional
provisions in regard to the place of trial,
and that your Honor should refuse the
warrant of removal.