Barton County democrat. [volume] (Great Bend, Kan.) 1885-1915, 1907-02-22
: The HcKEENa OPINION.

ANNiS hO'S'OiJ wv hOJCl ld(WOCu
aud Pettibone from their. homes in
Denver, and without allowing them the
privilege Of consulting attorneys or
their friends and comrades, or of
communicating with their families,
and gu militia-g guarded train, espec.
sally procured and in waiting for the
purpose, railroaded them to Idaho
and there incarcerated them 10 a peni-
aentiary as if they were condemned
criminals. Through their friends
and attorneys theyaapplied for a writ
Of habeas corpus, which in everyday
language means Simply an order to
she sheriff to show a just cause why.a
prisoner is hell ia custody. This
vas denied them by the Idaho courts,
when they applied to the United
States Dist let Court, only to be
again denied the constitutional rights
Of an accused citizen, They then
appealed to the United States Su-
preme Court, which august body
also decided against them. But one
= supreme judge, Mr.. Justice McKel
sa, disagreed with his fellow judges
and handed down what is known as a
dissenting opinion, that is, in this
ease, one IN favor of the petitioners,
afhll text of which appears below.
1t ought to have the utmost publicity;
The opinion follows:
. am constrained to dissent from
The opinion and judgment of the
court, The principle announced, as
] understand it, is that a circuit
court of the United States, when ash
ed upon habeas corpus To- discharge
person held in actual custody BY
state for trial in one of its courts
Hnder an indictment charging crime
against its laws, cannot properly take
into account the methods whereby
she state obtained such custody.
In other words and to illuminate
tine principle by the light of the facts
3 N this case facts, l mean as alleged
and which we must assume to be true
for the purpose Of our discussion),
that the officers of one state may
E falsely represent that person was
personally present in the state and
committed a crime there, aud had
fled from its justice, may arrest / such
person aud take him from another
state, the officers of the latter know.
ing of the false accusation and con.
E nlvlng in and aiding its purpose,
thereby depriving him of an oppor.
tunity to appeal to the courts; and
that such person cannot invoke the
rights guaranteed to him by the
constitution and statutes of the
United States in the state to which
he is taken. And this it is said, is
supported by the cases of Ker VS..
Illinois 1l9:U. S. S36); and Mahon
vs. Justice (l27 U. s. 1907. These
cases extreme as they are, do not
5 justify in my judgment. the conclu.
sions deduced from them. In neither
case was the state the actor in the
wrongs that brought within, its con.
haes the accused person.
In the case at bar the states
F.. through their officers, are the offend.
srs. They by an illegal oezertion of
power deprived the accused of a
constitutional right. The distinction
is important to be observed. 1t finds
expression in Mahon vs.. Justice. But
It does not need emphasizing. Kid
naping is crime. pure and simple.
tits difficult to- accomplish; hazard.
Gus at every step. All of the officers
OF the law are supposed to be on
guard against it. All of the officers of
the Law. may be. invoked against it.
But how is it when the Law becomes
the kidnapeI' When the officers Of
the Law. using its forms and
exertins its power, become abductcrs!
This is not a. distinction without a
difference another form Of the crime
Of kidnapping distinguished only from
that committed by an individual By
AsPN.tua ofa Mas rs a. pk,ko 49,. 49,. A.