The Montgomery advertiser., 1906-12-25
ADVERSE TO SHIP
SUPREME COURT oVERRULEs MO-
 TTON OF SHERIFF.
Holds that Fact that the Case Was Carried Up Proves that High
 Judicial Body Has
 .TuPfsdictiOu.

Washington, Dec. 24.-The Supreme Court today decided adversely to the defendant in the preliminary questions involved in the case of Sheriff Sh pp and twenty-six others of Chattanooga, Tenn, charged with cntempt for the Supreme Court in lynching a negra named Johnson after the court had taken cognizance of the case
 The opinion was handed down by Justice Holmes, who announced that with the preliminaries disposed of the court would proceed with the prosecu- tion. He did not say when the next step would be taken.
 Probably the most important point raised by tn eattorneys for Shipp and his co-defendants was an explanation to the court'ss assumption of Jurisdic- tion on Johnsons cars. On this point. Justice Holmes said:
 If the Circuit Court had no jurisdic- tion to entertain Johnson's appeal, and if this court had no Jurisdiction of the appeal, this court, and this court alone, could decide that such was the law [. It, and it alone, necessarily had juris- diction to decide whether the case was properly before 1t. On that question, at least, 1t was its duty to permit argu- ment and to take the time required for such consideration as it might need.
 Until judgment declining jurisdic- ton should be annouced, 1t had author ity from necessity of the case to take orders to preserve the existing con- ditions and the subject of the petition. just as the said court was bound to re- frain from further proceeding until the same time The fact that the peti- tioner was entitled to argue his case, shows what needs no proof that the law cntemplates the possibility of de- cision either way, and, therefore, might provide for it."
 He also dealt with the contention that the defendants had purged them selves of contempt by their sworn statement that they had not been par ticipants in the murder of Johnson which the court dld not accept.
 Tt had been suggested" Justice Holmes proceeded. that the court is a 1 party, and, therefore, leaves the fact to be decided by the defendant But this is a mere afterthought to explain something not understood. The court is not a party. There is nothing that affects the judges In their own person Their concern is only that the law shoul abe obeyed and enforced and
 their interest is no other than that they represent in every case.
 | On this occasion, we shall not go Into l the history or the moCon. IL may pc that 1t was intrusion or perversiOn of the common law as Is suggested by the propounding of interogatories and the very phrase. 'purgation by oath If
 so, it is a fragment of a system of proof which does not prevail in theory or as @ whole and the reason why it ! has not disappeared perhaps may be found in the rarity with which con tempts occur.
 "It may be that even now if the sol' question was the intent of an ambigu aus act the proposition would ap ly But in this case 1t Is the question O
 personal presence and overt asts. | | the presence and the act should b,
 proved, there would be little. rNom foi
 a disavowaI of intent And when th' l act alleged conssts in taking part ir murder, it cannot be admitted that { | general denial and affidavit should dis 1 nose of the case. The outward fact arc matters known to nany and the.
 will be aseertained by testimony in thu ! usual way"
 Justice Holmes also announced .h, conclusion of the court that the lynch | ing constitutes a contempt. On tha | point he sad:
 'sThe questop was touched. In argu l uaant whether the act enArKed constit