Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1906-06-14

The doctrine dpon this subject is
believed to be correctly stated in IAN.
& Eng. Ency. L. (2nd ed ~.
'1 showing that the contemner
acted under 1he erroneous advice Of
his counsel as to the proper and legal
course to pursue will not suffice to
purge the contempt committed; al
though when such advice is given, re-
ceived and acted upon in good faith,
twill mitigate punishment by elm
mating the criminal element from
contempt
The clear doctrine of the authori-
ties, especially the modern ones, is
that the advice of counsel, taken and
acted on In good faith, together with
a disclaimer Of intention to violate an
order, goes far in mitigation, If it
does not entirely eliminate the Grim.
inal element and dispense with pun
ishment, as such.
But, these facts in mitigation should
be considered by the court in the first
instance, in the punishment inflicted.
Presumably they are, but they are
not always so, or sufficiently so. But,
whether SO considered by the court,
or not, there is no manner of doubt
that, in an application for pardon,
they may be considered, and beyond
any consideration which Justice would
ordinarily give to them.
These considerations are particular
~ addressed to the power which can
pardon, even though the sentence was
just
Such case as this-one of criminal
contempt of COURTS peculiarly one
for such considerations. The offense
was against the majesty of the law and
the authority and dignity of the COURT
But it must be remembered that it is
the sentence itself, with the power
to execute it--and not it's full execu
tion-which is the sufficient vindica-
tion of these. 1t is not always neces-
sary to this end that the offender
should actually suffer the whole pun
ishment ordered.
4 It is believed that mitigating cir
cumstances, whenever they existed,
have always been considered in grant
ing pardons, although they were pre-
sumably considered, so far as they
could be, in adjudging the penalty.
And, surely, the advice of counsel
learned in the law, taken and acted
upon In good, faith, would seem, as a
mitdgation, to appeal strongly to the
'pard donlng power, even though, under
the law, the court could not recognize
it as such. ,s-......
The case is a peculiar one. Mr.. Nc
Kenzie, as receiver of a United States
Court, held certain property subject
to the order of that court. Both he
and his sureties were responsible for
this. II the Circuit Court Of Appeals
had no Jurisdiction, it was, at least,
grave question whether bis disposal
Of this property as ordered by the
court would absolve him or his sure
ties. , 49,.
1t is proper to direct your atten-
tion to the fact that McKenziess pc
tition for pardon and all the letters
and telegrams and the record per-
tanning thereto that had been receiv-
ed up to that time, were forwarded
April 9th, 1901, to Judges Ross, Nor
row and q ilbert, who heard and de-
cided the case, with my request for
an expression of their views as to
the expediency and Justice of grant
ing the application. Their replies
have been received and carefully con-
sidered. Judges Ross and Gilbert
express the opinion chat the applica-
tion should be denied for she reasons
set out in the original opinion of the
court delivered BY judge Ross. Judge
Morrow also recommends denial Of
the application, but notices and an
swers the claim made by Mckenzie
and his friends that his action was
controlled by his counsels advice.
/ Judge Morrow questions this upon
the testimony Of W. n. Metson, Esq,
whom he describes as a we'll known
and reputable attorney Of San Fran
ciso, member of the firm Of Camp
bell and Metson, from whose testi-
mony in another case against anoth er
defendant he quotes at length in his
report. Having attached great
weight to the circumstance, as I lind
it established, that Mckenzie was
acting under advice OF counsel, i have
given Judge Morrow.s statement to
the contrary and the testimony upon
which it is predicated careful exam
ination.
In my judgment the testimony Of
Mr.. Metson does not establish the
point claimed. 2s.5 .5.#, \
It IS not competent testimony. At
~ 49, -