Year: 1868




The Judge who tried and sentenced the
petitioner is not, as intimated by the re-
spondent's counsel, on trial for treason, nor
is writ quo 1oaTranto necessary to release
the prisoner.


1t is hardly disputed, and the evidence
is entirely satisfactory, that the said pre-
tended Judge is Of the class disqualified by
the fourteenth article, already referred to,
and that all the other facts stated in the
petition are true. If q trial of the writ
quo aodrrdnto were necessary before pri-
soner could be reached by hd5eas corpus,
the last-named benefcert writ would be of
little service in o capi.al case, as the pri-
soner would be hanged before his case could
be decided.


The cases cited by respondents counsel
in support of the acts of de .facto Judges are
| not, in the opinion Of the court, applicable
to this case, from the peculiar circumstances
already referred to. They apply only
to the ordinary conditions OF peaceful So
ciety, undisturbed by wars, past OF present,
or the warlike passions and prejudices
which have not vet entirely ceased to exert
an unhappy influence around and among
us.


By we'll settled rule of construction,
when by one theory statute is rendered
unconstitutional, useless, or absurd, and by
| another theory the same statute will be-
come constitutional and benefcent, courts
must take the course to give the statutory
or constitutional provision useful effect.


This rule is especially applicable in this
case to the act Of February 5, 1867, and to
the fourteenth article. If considered like
the other reconstruction acts, as derived
from the belligerent powers of the Govern
ment, intended to heal the wounds of war
and restore peace, their benefcence and
constitutionality are manifest.


But aside from the circumstances and
history of the reconstruction measures, the
act of February 5th and the fourteenth
article are so plain and distinct in their
terms as to preclude all doubt of their
intended application to cases like the pre-
sent.


so CESAR MAY GO.
No additional legislation is needed in this
case. The third section Of the fourteenth
article proprio vigore in connection with
the act of February 5th, 1867, decides the
question in favor of the petitioner.
"Cnsar P. Griffin will therefore be dis
charged from the custody of the Marshal,
unless an appeal is entered; and in that
case he will be held to bail in the sum Of
$500 for his appearance at the next term of
| the United States Circuit Court"
lE,T AN APPEAL TAKEN.
| Messrs. Neeson & Bowden gave notice
that an appeal would be taken to the United
States Circuit Court.


Griffin then gave bail in the sum of $500
for his appearance at the next term of the
court, and was allowed to 90 free. A negro
named Brooks gave the required bond.
Mr.. GILMER AND THE WHIsKEy RING
Morton TO SET ASIDE THE REPORT OF THE
GRAND JURY DESIED.-In the United States
| Circuit Court yesterday Judge Underwood
presiding), Mr.. J. H. Gilmer begged leave
to submit a motion requiring District At
torney Beach to show cause, if one exists,
why the report made by the grand jury at
the close of the last term of this court in
relation to revenue frauds should not be set
aside and removed from the files as a part
of the records of this court.


The motion made rested upon these
points:


1st. The said grand jury was irregular,
informal, and illegal, and had no legal ex
istence, and its report possessed no legal
validity.


I'd. The said report, it is respectfully
averred, was not sustained by facts Of
judicial cognizance in the matter of libel
against the distillery of A. Smith.


Sd. The tendency of said report is to
preclude proper investigation before regu
lar commissioner of the United States,
where all such matters regularly belong in
their initiatory examination.
Mr.. Gilmer said he did not wish to argue
the motion now, but merely to have it filed.
In submitting it he was fully aware of its
delicacy, gravity, and Importance to this
court as an honorable judicatory Of the
United States. He wished to put himself
right on the records of this court, in which
he was an accepted practitioner-his repu-
tation as lawyer having been assailed
during his absence from the city. 1t was
an effort on the part of somebody to strike
him down professionally.


District Attorney Beach said he had just
had notice of the motion, and had only
glanced over the report, which, not being
long, he could read to the court. Mr.. Gill



he could find no reference whatever to him.
He must object to the filing of this unpre-
cedented motion.


Mr.. Gilmer said the report did assail him
by censuring his correspondence in regard
to the whiskey frauds. If the grand jury
had been in possession of the facts they
would not have brought in such report,
for at that very time the law officer Of the
Government had judicial knowledge of
fraud, seizure, and a libel, in the case of
A. Smith. A report from General Hobart
on the subject was on file in his pocket
when the grand jury brought in their re-
port. All he asked now was a revision OF
that report.


Judge Underwood was very facetious in
his decision. True, said he, the report of
the grand jury was of an unusual charac-
ter-it was neither judicial nor official, but,
upon the whole, rather gratuitous and of
extremely doubtful propriety. But they
named 10 persons, and only reprobated
street rumors. The Court didn't see any
reflection on Mr.. Gilmer, but believed
that he had acted from the highest
sense Of his duty to the Government,
though he might have been misinformed.
Such reports could not impair the integrity
even of member of the bar; for this
court was somewhat of the opinion of the
blacksmith who said that he could beat out
on his anvil better character than any
court of justice in the land could establish.
Idle reports of newsmongers could not
stand before lifelong devotion to right and
justice. The court really had not time to
inquire into charges against counsellors.