The times., 1897-06-27

and SeaTlcs, that the question which The
witness declined 10 answer was irnperfi-
nent. Kut he decides these cases on an
other ground. Il appears from the record
that SLriveI never was served with sub
poena but was simply notified by one of
the deputy sergeants- alarms that he was
wanted before the investigating cCf1init-
tee as witness, and that he accordingly
appeared was sworn, and answ cred many
questions. 1t is shown that telegram
was sent to Edwards, notifying him To
appear as a witness before the committee
and that he appeared, Was sworn, and
testified Thestatute (sec. 1O2, 81 under
which these parties were indicted, pro-
yides thatif anyperson who has been sum
moned" asa witness before a committee Of
either house OF Congress, makes default,
or refuses to answer any pertinent ques-
tion after appearing he shall be deemed
guilty of a misdemeanor, etc. Here are two
distinct offenses. Failure to appear and
refusing to answer pertinent question
after appearing. But the two offenses are
independent of each other, for the apparent
reason that il there was a default there
could be no such thing as contumacy; andif
there were contumacy, there could be no
default. In an indictment for murder, the
accused may be convicted OF manslaughter,
because the greater crime includes the
less. But this principle has no application
to this statute. Each offense stands on its
own ingredients.
The .,ist of the fist offeDse is default,
that OF the second is recusancy. The Judge
holds that, as this is IeEai statute, II
must be strictly construed. Very well,
the Judge is here handling boomerang.
The statute does not say that being present
by virtue OF a summons or "subpoeni"
and refusing TO answer shall constitute con
turaacy, but simply says being present.
and strictly oonstrung the statute viii ex-
clude all inquiry as TO how the witness
came to lie present. The judge holds that
the ..s,ibpoena'' or summons" is an
"ingredient'' of the offenses in this statute,
aud therefore must lie alleged and proved.
In prosecution for default, Of course it
should appear that the Gefaulting witness
had received some sort of notification.
think the district attorney was right in
his contention that no particular form OF
notice to the witness was essential. If
any particular form were required the
defect would lie cured by the actual ap
pearance of the witnesses, anG submitting
themselves to tie jurisdiction Of the CON-
mittee, as was the case with Shriver and
Edwards. By using the word Summoned
Congress could n ot have meant to employ
the word in its legal Specification. The
summons" at common law was the org
inal writ To bring party into court TO
answer complaint; in this sense IL can
lave no application to this statute.
What is the object of a subpoena"
AS one OF the fun ctions of govenmentis is TO
administer justice some means must be
adopted 10 secure the attendance OF wit
nesses necessary 10 determine the contro-
versy between litigants, and the purpose of
the subpoena" as its latin name imports
is to lay the foundation for attachment
and punishment for ntempt in case OF
disobedieace. But for this the subpoena
is useless except as a notice If a de sired
witness voluntarily appears at the trial
by the personal request of the party who
wishes to use him, or without any notice
at all, his testimony is just as legal as If
he had heen served with "subpoe ma
One or the tests of false reasoning is the
absurd conclusion to which IL leads. Ifthe
subpoena is an elemental ingrede ut
the principle applies to civil as well as
criminal cases; SO that any Judgment .r
decree based on the testimony of volun-
sary witnesses would be a nuIlity. The
Constitution provides that no person shall
be arrested except upon "a warrant based
on a complaint showing probable cause
But as matter of fact, offenders often
surrender themselves and are committed
Bradley, such offenders would have to be
hi spha yad hap hoo ffa
Constitution had been disregarded. These
constitutional munimeDts are for the pro-
lection of personal liberty, but any citt
zen in his own case can throw those walls
down if he wants to.
A 'sum mons',is personal right, but
defcn dant may waive it, and voluntarily
appear in court to answer the plaintiff. A
subpoena is not a personal right of u
witness. but Is solely in the interest of :he
parties ltigant; much less is it an ingre-
dent of the offense of contuinacy OIL ,'ssen-
tiaI to the validity of a Judgment or decree
where the witnesses voluntarily appear
The equivalent of the word "suTnmoaad'
as used IN the statute would be notified
and il ShHver and Edwards had failed to
appear they could have been brought be-
fore the bar of the Senate for contempt
or certified to the district attorney for
prosecution as defaultIng witnesses Our
jurisprudence will be left in efnarta,lle
con dition of chaos as Il result OF the de
cisions of Judge Bradley if IL valid judg-
:nent or decree may be rendered against
the defendant who voluntarily appears
court, or which may be based on the eyi-
dence Of witnesses who volunta nly tp-
pear to testify; aud even Ii criminal may
be committed and punished without ,om-
plant and warrant where he valves ITEM,
and yet there can be no prosecution under
the statute of contumacious witnesses wlo
voluntarily appear, simply because they
were not served with subpoena or
"summons." The discharge of Shriver and
Edwards was clearly erroneous
The Macartney yea Sc, the lastof the comedy
OF errors, was the same offense as that If
Chapman, who was convicted, but the judge
directs verdict of not guilty, because the
question which Mccartney refused TO an
swer was not, in his opinion, a committee
question. Let us see how the court ar
riyes at this remarkable conclusion. 1t
appears from; the record that the question
was not put by the chairman OF the COM
mittee, Senator Gray. but by Senator Allen,
a member OF the committee, and that there
is nothing to show, except by implication,
that the question was authorized by the
chairman, or that all the other members of
the committee, or ma jority of them, con-
CURED in it, and, therefore, it was the per-
sonal nterrogatory of Senator Allen, the
same as if he had met the witness in The
corridors or invited him to his house, and
then put the question to him; in which case
IN