Year: 1865

|


Charles Cheshire before the Supreme Cour


IN Kings County, would result in confic
OF OF authority, between the Courts of tn,
state and the Government of the United
states, those expectations were brought Il
nothing by the decision Of the case, by Judg,
Lott on Saturday last The position of thu
matter was this: Cheshire, who was one O.
/ the supervisors of Kings County and mem
Der OF the Enrolling Board, was tried before
court-nartial and convicted of receiving
money improperly in connection with his DO.
sltlon, and was sentenced to be fined and i'm.
| prisoned.


The Secretary of War designated the
Penltentlary at Albany as his place of i'm
prlsonment, and thither Cheshire was car
RED. A ha6eds corpus was sued out in his
behalf before Judge Lott, directed to Capt.
PIllsbury, the Warden of the Prison, order
ing him to produce Cheshire before the
Court in Brooklyn, that the cause of his i'm
prlsoament might be inquired into.


On the day named in the writ, Capt.
Pillsbury was present in court but did not
produce Cheshire. On the contrary he
made return to the writ that although Ches-
hire was In his custody, under the sentence
OF the court martial, which sentence was set
forth and the jurisdiction of the court-mar-
tla averred, yet siuce he left Albany he had
heared by telegraph that the prisoner had
been, by order of the President. transferred
from his custody to that of another officer,
and that he could not therefore produce him
In court


Upon this return motion was made for
an attachment against Pillsbury for con-
tempt OF court, IN not producing his prison
er IN court, as directed by the writ And it
was very confidently expected that Judge
Lott would, III his decision, take very high
ground, and would stand forth as the defend
er of State rights and the rights of the citi-
zen, against what was claimed to be an out
rageous assault upon bothby the Federal Go
zVernment. y udgeLott' somewhatin temper
ate language upon the hearing as to an ap-
parent dlstrust OF the State courts by the
United States Government, and as to the
possible advantages Of dissolving the gov
e1nment, if such were to be the state of
\, 'nggEs, 5ysre airIilated to lend conntenance


But sober second thought, and careful
examination OF the arguments and author
tiles of Mr.. Silliman, the United States Dis
rlct Attorney, who represented the ease for
the government, apparently brought him to
different way Of looking at the subject; for
on Saturday, after having held the subject
under consideration for some weeks, he an
nounced that he had decided to deny the



the writ of hd6eds corpus


1t is no doubt true that since the hearing
the Democracy of this State have declared
themselves the only true and staunch sup
pcrtcrs of President johnson, and that it
would not have looked very well for Dem
Ocratic Judge, so soon after that declaration
was made, to have undertaken to punish an
officer for contempt Of court, because he had
oboyed direction given by the President
But need not go so far as that to find
reason for the Judges yielding his assent to
the legal positions taken on behalf of the gov
ernment before him. They were indeed, SO
strong that contrary decision would have
indicated disregard Of the authority of de-
cided cases and settled principles, which could
hardly spring from anything short of most
virulent naftiZanship. ~


Among the arguments urged in behalf Of
the government it was said that as there was
no traverse of the return, the facts set forth
in it must he taken to be true, a position
which could hardly be controverted. And
inasmuch as that return set forth the decis-
ion of the court martial and alleged that
Cheshire was amanable % its jurisdiction, the
applicant could not be heard now TO allege
or argue that he was not subject to that ju-
risdiction and this position also seems to be
irrefragible. Then again the Supreme
Court of the United States decided in the
case of Booth, who as will lie recollected was
ordered to be discharged on hdbeas cor
pus by the Supreme Court of Wisconsin,
that an officer who holds a prisoner by au-
thority of a court of the United States must
not produce him before State court when
called upon by hdJedS corpus, but must
simply return that he holds the prisoner by
virtue of such United States authority and
that thereupon it becomes the duty of the
State court to discharge the writ and go no
further in the matter. And accordingly 1t
was urged that as Pillsbury had acted In
strict conformity to this decision of the. SUI
preme Court by returning that the prison
er was in his custody by virtue OF the deois-
ion of the court martial, which was none the
less court of the United States because 1T
was a court-martial, this court instead OF
Furnishing him for contempt OF court, was
bound to take the same view OF the case as
he did, and to take no further proceedings
In the matter. 7rog sfLta 1ss


These arguments alone would seem to be
conclusive. But there was another equally
so, in the suspension of the writ Of hdbeas
corpus in all such cases by President Lin
coin .sas long Jas the rebellion shall contin-
ue." It was urged in opposition to this ar
gument that the rebellion does notstill con
tlnue, but as we all know. Is at an END ana
therefore the time fixed when the suspeD-
sion of the writ of hdbeds copus should cease,
has arrived But 'no," said the councillor
the government. this suspension must con-
tinue until the same power which declared
the rebellion to exist, viz, the Executive,
shall declare that it no longer continues. 1t
cannot be that such question as that can
be allowed to depend upon the decision OF
court or jury, whether as matter OF fact the
rebellion has ceased 1t is a political ques-
ton, and the courts are bound to adopt that