New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-05-14
TEST OF ANTI LAW
Constitutional Question InUolUed IN
Writ Granted E.. r. Hale.

a writ of habeas corpus was allowed in Albany
Friday by Judge Wallace Of the United States
Circuit Court of this district the application OF
Nicol, Anable & Lindsay, returnable on May "a. In
behalf Of Edwin F. Hale. the recalctrant federal
grand jury witness, who adjudged In contempt
by Judge Lacombe, of the United States Circuit
Court Mr.. Hale refused to answer questions con-
corning the business of the McAndrew & Forbes
Company, of which Mr. Hale is the secretary.
Mr.. Hale adjudged IN contempt at the In
stance of Henry W. Taft. the special United States
Attorney General in charge Of the grand jury's
investigation Of the so-called Tobacco Trust on
the ground that it would tend to incriminate him.
Mr. Hale refused TO answer to the relations OF
his firm with the American Tobacco Company and
certain subsidiary Of the parent organiza-
ton. On the advice Of counsel he also declined 10
furnish certain memoranda called for by the grand
jury For this he adjudged in contempt and
fined So. and ordered in the custody Of United
States Marshal Henkel until such time as he
purged himself by answering the questions Mr.
Hale permitted TO remain in his lawyers Gus
tody pending a final bearing on a writ OF habeas
corpus. that q higher tribunal might immedta te-
ly pass on the consttutionality of the Sherman
Antitrust law. under which the investigation was
instituted
The petition asking for the writ states that the
applicant is deprived OF his liberty by Marshal
Henkel a commitment and that his detention
is without authority of law and in violation Of mis-
constitutional rights, The petition alleges that the
charge of contempt and that the report and pre-
sentiment Of the grand jury were also without au-
thority; that at the time no summoned before
the grand jury there cause pending be-
tween the United States and the corporations
named in the subpoena duces teCum IN which he
required to testify; that the grand jury was
not in the exercise of its proper and legitimate
authority in prosecuting the alleged investigation;
that the federal grand jurys powers We're limited
the investigation of the specific charges against
particular persons, and that its requirement that
the petitioner testify void. The allegation is
also made that the act Of February o, 1893, under
which the investigation instituted, was I'M
constitutional and void. and that it undertakes to
in transactions constituting a violation of the
United States statutes condition that they give
evidence, thus usurping the pardonnS power
clusively vested In the President under the Con-
sttution that the act is further unconstitutional
in that II undertakes TO deprive the various States
Of their sovereign right and power to prosecute
and punish persons who violate State laws; that
the act OF February Is. 1903, contains require
mont that person shall be compelled to testify,
Notwithstanding such testimony may tend to in
eliminate him, and that IFS effect is render
timony incompetent evidence when the person
giving It has voluntarily waived his constitutional
privilege
1t is also asserted that the courts order Of May
was in violation OF the petitioners rights under
the Fourth Amendment to the Constitution, and
that the in effect order to seize the
papers mentioned. and a further violation, there
fore of the amendment.
The argument the writ of habeas corpus will
be heard by Judge Wallace May "a IN the United
States Circuit Court in this city.