Show TIIE THE utan UTAH BILL IN TIIE THE SENATE SPEECH OF SENA hena senator TOt MORGAN mr morgan mr fr president in thinking in ing over the history of the tiie recent past in a country where the people claim that they have been very greatly persecuted nothing has attract attracted edin my Y attention so forcibly to a new departure in the laws of great britain as the arrests of suspects persons carsons against whom no accusation of crime has actually been brought no affidavit has been made alleging any delinquency but some person will ivill appear and perhaps without alli affidi davit it or without any formal statement of an offense at all claim the arrest of a person as a suspected person a suspect I 1 have thought that british liberty was more nearly strangled by that feature of recent practice in int that country than by any other that I 1 remember which had the form of law and the tile apparent ap paren sanction of judicial authority 1 f think I 1 see this provision of the bill for the issue of an attachment contains precisely that doctrine and to that exten tit is violation of the personal rients ri ants and the liberty of the people upon whom this measure may operate an attachment is a technical phrase an arl attachment against property means the seizure of property dor for for purposes bes ses of condemn condemnation atlon or to answer some judgement jud ud gement ement of a court an aln attachment of 01 the ape person is the arrest of the person placing the body of a man in the custody of the law and anade de driving him of his right and privilege e of breaking that custody except at his nis own peril perli eril erli if tre tee the law we are about to enact is a constitutional law any ny marshal or deputy mar marshal marshai 8 sheriff riff or whatever officer maybe may be charged charge d with its execution can take into custody ane party whom it is desired to have appear before bein a coin corn commissioner in missioner iss ioner loner or before the court or before the grand jury ury and hold that person in his custody until he is discharged by due course of law it makes no difference whether the person who is thus taken into custody may know anything about the transaction or not whether he be may be a competent witness or not whether he ma may nave any ground of liability at all ali a upon a suspicion that he would woul violate the law or violate the mandate of his subpoena he is still held in custody and if he breaks it he breaks it at his peril perli eril erli and the officer who has char charge e of eim rim him has a right to kill him if if he undertakes to break away from that custody I 1 claim that under the constitution of the united states State sas as amended there is no power in this government which can place an american citizen in that attitude except in the cases p provided in the constitution where an allegation adlea atlon of crime is made against him and that allegation is supported by probable cause upon oath or affidavit and the custody follows the regular procedure of tiie the law law this bill bili however using the word attachment which when used in respect of a person and not of property ro perty means the seizure of the rody body of that person authorizes a man to be taken into the custody of the law his body to be seized his liberty to be taken away from him put entirely subject to the command of the officer in whose charge he may be placed and kept there until dascha discharged i by order of the court before whom whan I 1 he be is to be brought upon the ground not that he has commit commuted ed any offense not that he has nel neI nedi to commit any offense not that he has said sald or done anything to influence any person to be believe belleve lieve that lie he would commit un in offense for no fact previously ascertained is necessary as a predicate of this procedure but solely upon the ground that he has reasonable ground to believe that such witness will unlawfully disobey the subpoena if we have the right to say bay that a mans person shall be attached because a judge may inay be of opinion that there is reasonable cause to believe that tt he will disobey the order of the court under a subpoena then what is to restrain this honorable senate from saying that a nian man shall shail be arrested and put in jail and held on a cil cli minal minai accusation upon tile the ground that the M ude ludge ud e has reasonable cause to belle belie believe belleve that re he will commit am ajl offense not that any offense has been commit ed not that the corpus delicti be proven not that there is any actual legal existence of an offense offence at all but judging of caf this man mail by his character and by th the e 0 opinion p anlon that tile the ji ilc ile rb mas may have ha e ot of h him lul lui f the judg 1 blut it there I 1 is re reasonable cause to lu beli bell rih eli that lie he will commit an offense all au i i sues suet his war warrant and has him in prison there is the tilo suspect suspects law liv ltv of ell eli england re enacted in lii this bill senators s can put it on the statute book b they choose to do so in order to verify pledges at ane chicago convention but they are admonished now tnt nila niia tiie tile people of the united states are art moni moui shed that there never was wa a more 1 flagrant violation of constitutional nights rights and of liberty than thail this democrats may follow them in their desire for radical legislation to suppress crime and may nia lefore suppose thegean they can justl lusti fy themselves before democratic communities muni ties and constituencies for conduct like this but sir when they come to t f justification they will reach a cop cov at last that lias has got au an honest res for human liberty as preserved in the constitution and the amendments thereto I 1 will read two sections of these amendments ARTICLE IV the right of the people to be beaure in their leir per persons riis houses papers and effects a aln ain dinst din st unreasonable searches searched and seizures shall shail not be violated lo aldno and no arrants warrants bhail issue but upon pro probable bable babie cause supported bv 0 oath or r a jo 1 1 and particularly particulars 1 de scribing mt ng get wet the h place to be i searched and the persons or things to be seized ARTICLE V no person shall be held to answer ansu er for a capital or oth ale alc mic infamous crime unless unies s on a presentment or indictment of a grand aarand buryi jun except in cabes cames arbing in the land or nava nami forces force s or in the militia M when hen in actual service in time of war ar or public danger nor shall any person be subject for the hame same offense to be twice put in jeopardy of life or limb nor haai baal be compelled h in a any I 1 c criminal ri case to be it a witness against him hi in C elt eit T f nor be deprived dearn cd of I 1 life ife liberty hbert or property wit without lout due process of law ian nor shall bhail private property betaken betoken be taken for public use without ju just t compensation I 1 have read all of the fourth and fifth articles of amendment to the tiou not for the purpose of informing the senate but for the purpose of informing the people who perhaps are not attending to the preservation of their individual liberties and expect their senators on this floor do jt it that there is here a warrant to be issued for tile the seizure of their persons when no offense has been committed and none charged without affidavit aOi davit and without process of law or without consideration by the court an attachment tach ment for the seizure of the body of A B to appear in court as a witness is I 1 a warrant lor tor tile the ari arl anest est of his person I 1 and it is as much a warrant as if he had i been charged with murder and as if a warrant had been sued out aate after ammi i davit made and by affidavit atlida vit probable cause shown when lawyers use words like these in statutes they ill liy must understand that tile the judges construe these words according to their ordinary and usual significance there is not a law book in the world that contains an all ali lusion to an attachment against the person or an individual does not assort associate a te with wit lithe the definition of that w word ord in that connection the idea of a crime of some shade or other A contempt of court is a crime erime when the government of the united states or when a private individual who is the plaintiff in an action has summoned a witness to attend a courland cour tand he is recalcitrant and aud does not liot attend is neglectful or disobedient of the command of the subpoena and thereupon the party injured rises in court and makes a motion that all an attachment issue against the person what is the proceeding the coitt court examines carefully into the subpoena its form its substance the time and place of its execution it carefully examines into it why boes does the courtl court ive this careful examination the witness is not there he has had notice why is he not hauled up without this careful examination it is because upon the motion for an attachment against that party the whole attitude of the case changes and the united states government in a case in a united states court becomes palin tiff in the action and the action instantly becomes criminal then the attachment is issued not for the purpose e of punishing min him but that he may rae rie gae have an opportunity a day in court to show cause why he should nor be punished the attachment ment is a warrant upon probable cause ascertained bylaw by law for the tile arrest of the man nian and it is not the plaintiff in the action where tile the suit is civil that is the promoter of the action at all but the whole nature and character of the action changes from a civil action between parties to a criminal proceeding at the instance of th the 0 united states so it is in every case where an attachment is sued out by a court for the purpose of com compelling campelli the attendance ot a witness to testify it is a criminal proceeding and none other but recently a man who once held the honorable position that I 1 now enjoy in the thu senate of the united states as a representative from Ala aia alabama barna was summoned here by the united states government to testify testifying in the celebrated star aputo cases case tile the subpoena was issued in ordinary due torm form and was executed if I 1 remember the facts aright ili in the state of new york tork after the sub subpoena pEna had been returned cause was shown against ainest him and anci an attachment issue for his person ile he was seized in some atthe ot the territories of the united states and brought here and carried before the court and there upon answering to a criminal accusation for it was a criminal accusation he demurred against the validity of the process of subpoena perhaps he made a point also upon the form forni of the writ of attachment the lud iud judge ge presiding in hithe the criminal court nere here in the tile district of columbia a uni ulli ted states court took time to cons consider der dor der and heard argument and he found in an imperfection in that paper and lie he decided that that ex senator was w as entitled to his lils liberty and that the whole w hole proceeding against him was vas a trespass PW S i i how ild iid lid did that judge come to such a conclusion as that upon the inno innocent cont process of all an attachment he f found that it was necessary to have all ali allot of the strictness of procedure that attends every e ery crimial cause in that proceeding ile he found it was necessary to survey the ground nth with uth care around him in order that the rights of this american citizen might not be abused although it was admitted and the man moan himself said lie he knew he lie had been and was needed here and had prom i sed to come coine al ja and still did not ati tend end there was a case of moral contempt of intentional avoidance of the demand of the court that he be should be here to testify in some of the most important transactions that the government of the united states stales has been concerned in for a great number of years but because that process had no not issued as a proceed proceeding im according to law man did not have the protection that was guaranteed to him in the constitution because lie he had been deprived of his liberty without due process icess of law the court discharged tr him in and held that those who had him in custod custody 9 although they were of the un united cited states government ern ment were technically trespassers now you say that we shall issue an attachment against a man moan before we serve a upon him that we shall issue a writ which in its nature is criminal which is intended to carry out the criminal power and criminal judg merit of the court not a civil power that we shall issue a writ for the purpose of holding a mans body incus in cus tody as a suspect and we undertake before the american people justify to our conduct in a cise of that kind upon the constitution of the country no sir it is a flag a bold and a defiant violation of it there is no power ower on the part of the nicest and iest eest best or organized mind in the world to discriminate between a warrant for the arrest of the body of a man and an attachment tach ment issued by a court or a commissioner which has the same effect mr MAXEY Y I 1 should like to call the attention of the senator froni from massachusetts chu to what I 1 regard as a very material difference between the statute referred to section of the revised statutes and the bill under consideration section contains a provision that where the district attorney mades a formal application to the court for the issuance of a writ of attachment tach ment tile the court as a court hears that upon proof and then upon proof it if the court be satisfied that the writ ought to issue the writ Is issued and the party is brought up an and d may give bond ac but it I 1 is S a forni form of proceeding in I 1 aced upon proof in the section U under 61 er cons consideration ide ration section 2 there is no provision that this is to be done by a formal application of the district attorney nor is there any provision whatever for proof nor is there anything thin to show that tile tiie the court count itself as a court upon proof roof shall do it but the court may way xo do it ex mero motu nir dir MORGAN that is very verv true in our efforts to ad minster administer justice inthis in this country and after aue due consideration and after great experience on oil the part of the bar and the courts these statutes have been formulated and enacted and all this strictness of procedure that the senator from texas refers to has been provided in order that we might r secure to the person attached the benefit of all the guarantees of the cons constitution tt u of the united states lor for the s security of personal liberty mr maxey if the senator wooi wil pardon me I 1 submit that it being bein a question for decision by a court upon proof the part or his bis friends may put in their appearance to show that there is no sufficient reason for the issuance of the writ of attachment but here there is no proof whatever it is equal to a lettre de cachet of france or to the placing of a denunciation in the mouth month of the lion at venice MK this proposed stat tue undertakes to cover the requirement that there shall be probable cause for the arrest by saying that the court has reasonable ground to believe that such witness will unlawfully disobey a subpoena there is no provision made for proof of probable cause in intact fact no probable cause exist be because r ause lere there Is no fact in existence none known none required by law to be an antecedent fact or a pred predicate cate for the issue of the warrant it is a mere surmise or su suspicion apic in the mind of the judge or of the |