Windham County reformer. (Brattleboro, Vt.) 1901-1906, 1905-06-23
Arguments at the Hearing.

Arguments at the Hearing.
Judge Wheeler was waiting In the
probate Office when the official party
arrived there and after a short col
loquy with Mr.. Fits gave the order To
open court The first few minutes
were spent in discussion among the
counsel on the admission of certain
evidence and then the arguments
proper began, +. NJ. Butler making the
first plea in behalf of the petitioner.
In beginning his argument Mr.
Butler said that he was aware that
nothing but federal question would
be entertained and that alleged vio-
lations OF the laws OF Vermont or even
of the Vermont constitution would not
be considered But according to. the
constitution of the United States. the
courts of state must provide com
petent tribunal. The laws OF Ner-
mont. he stated, provided no means
by which the petitioner could go TO the
federal court and be heard although
she was entitled TO that privilege ac~
cording To the constitution of Inc
United States in mode suitable TO
the case. Mr.. Butler then went on TO
discuss the provision of the state con-
stitution relative 10 the maintenance
and the opinion of the state supreme
court in regard to its meaning. He
said that il was absolutely. no use To
review the decision of the Bennington
county court although the petitioner
had that right which, If taken away,
prevented the due process OF law un-
der the 14th amendment Under the
constitution the petitioner had the
right to be heard in the supreme court
of Bennington county yet she had TO
forego that right and receive no fur-
ther consideration after that OF the
county court Judge Butler contin-
ued by saying that the petitioner was
not legally sentenced until the su-
preme court took Jurisdiction. ana that
it was for the federal court to protect
her against execution In violation of
law and without the right to be heard.
The governor had no right to fix the
time of execution, and the sheriff had
no order to execute her except that
from the governor In closing Judge
Butler said that the supreme court OF
Vermont had no jurisdiction in the
matter because II was not the supreme
court of Bennington county. and that
the only way left for the petitioner 10
secure her rights was to appear De-
fore the federal court.
Mr.. Fits began his argument for
the state by saying that he understood
the only questions involved were those
of unlawful holding under the reprieve
and the failure of the state to provide
a court of last resort. Continuing he
said: The constitution provides that
a writ of error may issue from the
United States supreme court to the
highest court of this state, and any
sai, Sc 81 l,n
which the party claiming the writ
could be heard Is such a court as the
United States court contemplates. MY
brothers are hoisted on their own pc
tard when they claim that there is no
supreme court of Bennington county,
for If the Bennington county court was
the highest in which the petitioner
could be heard a writ of error could
come from the United States su-
preme court to the Bennington coun-
ty court But the question OF whae
is the highest court is not federai
one. The only question is whether que
process of law is holding the petitloner
who is held by a warrant which con-
fessedly issues from competent
court
Mr. Fits then said that the supreme
court had held that the supreme court
the various counties held in general
session Il have no occasion" he con-
tinued. ito revert to this affair ex-
cept TO say that ii is a case of thaf
mature that requires swift and certain
duplication of law. No technical ques-
tion ought TO interfere unless II clear
lv appears that a substantial right of
/ the petitioner is abridged. The safe
ty of the people requires that courts
of Justice shall not be tampered WITH
There ought TO be no suDterfuge OF
attempt to get into the United states
supreme court by the back door when
admittance could be gained by the
front door if there was any case at
ALL Mr.. Fits brought his argument
to an end by characterizing the pro-
lceeding as an attempt to secure de-
Law and saying that neither the ques-
ton of the governors right to re-
prieve or that of what the state ought
/ TO have done was federal one.
T. w. Moloney next began his ar
gument in behalf of the petitioner.
saving that in the first place he wisn :
ed TO disabuse the mind of the court
as TO Justice Peckham's attitude on
the matter. He stated that not one
of the questions brought up on the
habeas corpus proceedings was the
same as those of the writ of error;
that the application for writ of error
had been made on a discretionary pc
tition. and that il had been presented
because the supreme court OF the
state had suggested that ii ought TO
| be. Here in this court" said Mr.
Moloney. I'VE are relying on right
and if the court differs from our view
| feel sure that il will not be because
! il believes we are toying With the
law. This proceeding alleges that
there was a substantial denial or JUS
tice. and the counsel for the state con-
cede by their silence that the cniet
witness for the state in the case re-
( fused 10 be cross examined. Is ther9
not a lack of provision for proper le-
gal procedure in the state of Vermont.
and il so is it not federal question!
After bringing out that it had been
shown that at the time the crime was
lcommitted and at the time the trial
took place the petitioner was insane
and probably inherited insanity. MI
Moloney said that the question came
right down TO whether a person should
be compelled TO waive his rights when
those rights referred to life and ho-
erty. I'VE are taking this action" ne
remarked in closing, purely out OF
humanity and because it ought to be
done. We do not think it trifing 10
attempt TO save a life. and If the court
saaS AZ To deny our petition we are