* ' * : *
"
'
Conservative.
in question , nor do they like to bo
shorn of any of their prerogatives.
The position of counsel denying the
authority of the court to try the defendant -
fondant , and coming from one who
had himself been upon the bench ,
seemed startling to the court and an
insult to the administration of justice ,
and judging from the remarks of the
judge and his inattention to the ar
gument , was regarded as little less
than treason against good government.
The effect upon the spectators was
fluite as startling. If the postulate as
sumed and maintained in the argu
ment , were true , then indeed the lives
of the people were at the mercy
of the assassin. As the argument
proceeded , a ripple of excitement was
noticeable , such as is only too apparent
in the early stages of mob violence.
The argument occupied the entire
morning session of the court with
such reluctant attention of the judge
as courts usually give to attorneys
when presenting questions of law
which have been mentally adjudicat
ed.
The hour for the afternoon session
arrived. The court room , as in the
morning , was filled with eager spec
tators , but the judge did not put in
an appearance. Hours of deepest anx
iety passed the entire afternoon
waned away and still Judge Black
did not resume his place oujdie bench.
The morning hour for opening court
dawned upon an excited and disap
pointed audience. The offices of the
court and lawyers in the case in
dulged in remarks not at all compli
mentary to his honor. I think it was
not until the following morning that
court was opened , and all this time , as
was customary in such cases , the jury
was kept in confinement in charge of
the sheriff. In the exercise of a broad
Ohistian charity , it is but fair to pre
sume that the judge all this time was
prevented from resuming his duties
by circumstances beyond his control ,
but the citizens , especially those who
were clamoring for a speedy sentence
consigning the defendant to the peni
tentiary , and the members of the bar ,
owing to the fact , perhaps , that the
country was new and largely destitute
of those Christian influences that
adorn older settlements , did not ex
ercise this broad Christian charity.
On the reassembling of court it did
not need the argument of counsel for
the prosecution to bo convinced that it
had ample power to pass judgment
against the defendant. Hence the mo
tion for a new trial and in arrest of
judgment was overruled , to which
an exception was taken and the case
removed to the supreme court of the
territory. Judge Black wrote out at
some length his decision overruling
the motion , had it printed in booklet
form , and this lie exhibited to his
friends with much apparent satisfac
tion stating that it had been submit
ted to the attorney general of the
United States , and approved by him.
At the time the legislature repealed
the criminal code , it re-enacted the
common law of England to take the
place of the repealing statute , and
here , it was contended , the authority
was found for punishing Hargus for
the crime of manslaughter.
In my argument I had insisted that
defendant could not be punished under
the common law , for the reason that
at common law a man iif England
convicted of this crime , in case ho
could read and write , was entitled to
"benefit of clergy , " and by this ho
could escape the penalty by being
branded , and in this country , no such
recourse was available. The defend
ant could not apply to clergy , as in a
legal sense there was no clergy in this
country , nor could a distinction be
made in our courts between those who
could read and write and those who
could not. Hence the common law
could not aid the court or invest it
with power to punish in the absence
of the statute.
But this question decided adversely
in the district court , would soon be
reviewed and passed upon by the su
preme court. This court was composed
of Augustus Hall , chief justice ,
Eleanor Wakeley and Samuel Black ,
associate justices. Wakeley was ap
pointed from Ohio and I think , on
the organization of Nebraska as a ter
ritory , and by President Pierce , while
Hall and Black were appointed by
Buchannan in 1858 the former just
having served a term in congress from
Iowa , and the latter was from Pitts-
burg , Penn. , where ho was known as
one of the leading criminal lawyers
of that part of the state. Hall and
Black had never met until about the
time of the Hargus trial , when they
mot on the street in Nebraska City
and wore introduced. Each was
known by friends to be exceedingly
clover and witty. Black had been an
officer of rank in the military service
during the war with Mexico , and at
the final capitulation of the Mexican
army he entered the City of Mexico.
After the introduction and exchange
of the usual compliments , Black still
holding Hall's hand , said to him
with much gravity of manner : "Will
you allow mo to ask you a question ? "
"Certainly , " Hall replied. "Are you
at all related to the Halls of Montezuma -
zuma ? " Hall replied that ho had not
that honor , and then said : ' ' Will you
allow me to ask you a question ? "
Black replied , ' ' Of course. ' ' ' 'Are you
at all related to the Blacks of South
Carolina ? " Black acknowledged his
defeat and they separated. Trusting
that this digression will bo excused ,
I will resumOi
The defendant was at a disadvantage
in the * supreme court , as one of the
judges T ad already decided the case
nncPifxoithcHj of the others agreed
with Min , the-case was lost to the de-
fendantf , Just\uch a case had never
before btxm in any court , as it was the
first timccin the history of legislation
that an entire criminal code of a state
or territory had beenropealed without
a saving cfause to "protect pending
prosecutions. The members of the
bar had been interesteH in the ques
tion with a divided sentiment. The
attorney for the defendant realized
fully the gravity ofi-tho position which
lie had assumed. Not only was his re
putation as a lawyer at stake , but ho
had incurred a grave responsibility by
placing the defense wholly upon the
repeal of the statute , when ho could ,
on the facts , have shown many mit
igating circumstances that induced
the crime , tending to exonerate
Hargus , which wore especially appli
cable in that then new county with a
strong public sentiment aginst' ' claim
jumping. "
In the preparation of his brief for
the hearing before the supreme court ,
an ample law library was necessary ,
and such was not to be found in Ne
braska. He went to Columbus , Ohio ,
where in the state library , -ho spent
three weeks , and returned well fortified
with treatises and commentaries by
able law writers upon the effect of a
repealed criminal statute on pending
prosecutions without a saving clause ,
and also supreme court decisions in
cases of misdemeanors arising under
special statutes repealed , all sustain
ing the position assumed by counsel
before the court. These atithoritios
during the argument before the supreme
premo court seemed offensive to one of
the judges. When a page of the printed
decision of this judge was read and
contrasted with the law as laid down
by Dwaris in his great work on
statutes , the printed decision of the
judge being in direct conflict witli the
law as given by these writers of ac
knowledged merit , then it was that
this judge said from the bench that
he would not sit and hear his decision
villified in this way. He was coolly
told that as ho had once decided the
case , he was at liberty to retire as
there would bo a quorum loft. The
prosecution was not prepared to meet
these overwhelming authorities , and
while both Mason and McLellan made
able arguments , they evidently were
'
much embarrassed by their'crushing
effect. The case was taken under ad
visement by the court , and during the
term a decision was rendered reversing
the judgment of the court below with
an order discharging the defendant ,
the court holding that by reason of
the repeal of the statute without a sav
ing clause , the court had no power to
try and punish the defendant.
JOHN F. KINNEY.
San Diego , Gal. , October 1 , 1901.
Note Hargus soon aftowards re
moved to Now Mexico and died some
years ago. Black was colonel of a
regiment in the civil war , and was
killed in a charge. Hall died while
chief justice , before Nebraska became
a state. Bradford removed to Colorado
very soon after the session of the legis
lature referred to , was delegate in
congress from that territory , and also
became district judge , and has since
died. Mason died in Lincoln , whore
ho was prominent for many years be
fore his death , as a leading lawyer
of the state.
