New-York tribune., 1900-08-21
OPINION IN NEELY CASE.
JUDGE WALLACE CRITTCISES JUDGE
LACOMBE'S ACTION.
EIs REMARKS ALSO A vINDICATION OF
TH1 COURSE OF NEELYS COUNSEL
NEW HABEAs CORPUS PRO
CEEDINGS.

CEEDINGS.
Judge Wallace of the United States Circuit Court
appeared unexpectedly In the Federal Building yes
terday and held court. He delivered an oral oPin-
ion in the Nicely II was Judge Wallace VINO
put STOP temporarily at least to ths Nicely extra
diton proceedings by allowing an appeal TO the
United States Supreme Court last week from MS
denial OF a writ of habeas corpus Judge
Wallace's remarks were to the effect that he de-
MED the request OF United States District Attorney
Burnett for a revocation Of his recent order by
which Neely was remanded to the custody of the
United States Marshal pending appeal 20 the
United States Supreme Court from the denial OF
a writ of habeas corpus. Judge Wallace said that
he would not vacate the order, but would await
further developments in the extradition proceed
ings Judge Wallace said In part:
The United States Attorney has applied to me to
vsSaIe yec4i1 tfe oTqsE MAGE @ 9y e Io rs,s5
the custody Of Nicely pending the determine
from an 't order denying writ Of ha6eas corpus
h The order was made by me @ to rule Of
an an appeal mas been taken to review decision n
States AttoPney procee9s Tpo3 the groSnd that
Neely was not in the custody Of the Marshal when
NOT. the hSs his his
ton oy the onicer OF person having MIN IN CUSTODY
AFFIDAVIT of the United States Attorney, the ac-
Lacombe, copy of which is annexed to the NOV
Ing papers. satisfies me that Neely was in the
in every respect proper Inasmuch as Mr.. Lindsay,
order was made, has been Subjected 10 what 4
regard as unmerited criticism by the observations
from the bench. have deemed II my duty in dis
D09ag Of the mater % to see to It that Mr. Lndays
Of reproach and be vindcated as correct and
aTda6le 'IS so far as the expression Of my opinion
On July q Judge Lacembe. by an indOrsement
until decision. Thereafter. and prior to August
sieg If neg an o opinion e9ed IN me
Charles F. W. Neely to Cuba which. after refer
upon the hearing, concluded with the following
The evidence shows probable cause to believe
that the prisoner is guilty Of an offence defined
iols1fo IN s1e aco OF June 2 1sOq ana which Is also
and upon such evidence he viii be held for sxtrad-
has been held 10 bail in this court UPON Criminal
@eharge @ Of bringing into this district moneys en-
rested in civil action brought in this court to
WSsn bSt % % Th:H s it Is asgd ne has cSnyeEtsd
This may be done on August "a"
MR. LINDSAY JUSTIFIED
On August Mr.. Lindsay, as counsel for NeeIy
made the application to me for writ of haheas
corpus, The petition alleged that Neely was ur-
N % Ri Se s ss sst a n Goa4es
ERS hs sp grGsfn Sos vas foGnSed being g
ton OF the unconstttutionality OF the act OF Con-
the application and if he believed that bis proDo
Sition was fairly debatable he would have been
to do So BY no other proceeding could he have
obtained review of the decision OF Judge La
com6e The office OF a haheas corpus is to test
the legality of the petitioners detention II is the
whom the petition is ADDRESSED to ensraa Gfsg @
petition and pass upon it. In like the pres
entitled matter Of Right and not s'O5t Of dissre
ION. Gon. 10 a review OF that decision by the Supreme
Judge Lacombe has intimated in his opinion that
unprecedented Complication, and that the G5peaI al
70 tne supreme Court will probably be dismissed
ion seems predicated upon the view that Ngei
5ad not been restrained of his liberty in the extra
Whether the Judge has made an order conmitting
aside from the point If NeeS was IN the cusoS dS
OF o. the marshal under the warrants OF the extradi
In In order 70 make case for habeas corpus It Is
present means of enforcing it. Under these cir-
sgtnstapees cur as the Supreme Court said in wales
demonstrative action '''''
ALL THAT TOOK PLACE a SOL EArl FARCE"
nDety n1oer the warrants OF the extradition pro-
In custody under those warrants Judge Lacombe
i nag no authority to entertain the proceedings 4
unless he has been brought there by IegaI process
whole proceeding was in the air and. notwth IT,
ce 64 n9gp fn9 may have been In the
held and the witnesses were examined alI that
merely because the marshal brought him = there
qnoer process N some other proceeding, my brother
MS pronouncement would have more effect as
q IegaI decision than if 1T had been made by the
Omted states Attorney or even by a boutblack
upon upon the corner Of the street He was in no cne
else's custody If he in the custody OF r1e
narsnaL That is entirely clear, and he was In
CUSTODY IN the eXtraditiOn proceedings because
that was the very foundation of the iurfsIfct on
or the Judge to hear and determine the case
IL now appears, however, in the papers presented
Dy the United States Attorney Vacate the order
nnaue nf me remaining Neely to the custody of the
MarShsi pending the appeal to the Supreme Court
tfat the Marshal has made formal return upon
the warrants recitinS that he has not executed
them think the Marshal has been III advised in
making this return, and that he does not fully
appreciate the meaning of the legal conclusioT
which he has thus eXpyes5ed.
repeat that so far from being guilty of any un-
professional conduct. the prisoners Counsel is TO
be commended for his prompt and efficient nosa
Tres to secure the rights of his client MT NeeIv
been proved guilty, and It the duty OF his coln-
sci TO avail himself of all the legitimate means
provided by law to prevent the conviction of his
client. Unless he had made the application for
habeas corpus. perfected che appeaf and prosITraJ
the order when and he did. his client immesii-
sfely upon the signing by Judge Lacombe of a for
have been removed out of NeW-YOrk City and out
of the country, and been on q VOYAGE 20 C,IIba n
would then have been impossible for his counsel t
obtain any review of Judge LacOmbe'S decision and
the act of Congress unconstitutional ne Vould
never have had an opportunity to present il to
that tribunal to which he had tight to refer his
There are reasons which would seem To mako n
desirable that there be another application In
ESbeas corpus The petition upon which the writ
restrained of his liberty and in the custody OF the
Marshal under the warcl1SS in etrRGition
that this statement was JUSTIFIED. Upon the appeal
TO the Supreme Court, the aveIuent would hays
20 be taken true thsre is nothing in the nett
tion or the papers which mako up the record 10