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Judge Barr- Andy Varney, Hatfields & McCoys, Habeus Corpus in KY
The Courier-Journal
Louisville, Kentucky •
Sun, Mar 4, 1888 p5
CLIPPED BY
wetzupdoc • 31 January 2025
• THE THE COURIER JOURNAL:
IN FAVOR OF KENTUCKY.
Judge Barr Decides That West Virginia Cannot Get Her Hatfields.
Text of the Opinion Which Reviews the Law Bearing On the Subject.
The Case To Be Taken Tot the Supreme Court of the United States.
A Probability That the Prisoners Will Remain Here Until After Further Action.
ANXIOUS TO RETURN TO PIKE.
Judge Barr yesterday morning rendered his decision in the habeas corpus cases of Valentine Hatfield, Selkirk and L. D. McCoy, Plant, Doc and Sam Mahon, Thomas Chambers, Moses Christian and Andy Varney, remanding them to custody, the case of Andy Varney being the test. There was a general surprise at the decision among the large number gathered in the court-room to hear the result. Hon. Eustace Gibson and exGov. Knntt and Attorney General Hardin counsel for the petitioners and the State of Kentucky, were present, as were also the prisoners themselves. The decision, which was oral and occupied about a haif hour in delivery, was as follows:
IN THE MATTER OF ANDREW VARNEY.
-Aoner Justice, Jailer of Pike county, having made his return to the writ of habeas corpus issued herein, on the day of February. 1888, and Andrew Varrey having filed his response thereto and produced evidence. the Court certifies the following to be the facts as admitted by the parties or proven to the Court's satisfaction, viz: The petitioner, Varney, together with nineteen other persons, as at the September term, 1864, of the Circuit Court of Pike county, Ky., indicted by the Grand Jury impaneled in and by said Court for willful murder alleged to have been committed by them in said county. Varney was at the time and bad always been and stall is a citizen of West Virginia aud a resident of Logan county in said State, "*His Excellenev, S. B. Buckner, Governor of the State of Kentucky, on the 10th day of September, 1887, made upon His Excellency, E. Wilson, Governor of the State of Virginia, requisition under the seal of the Commonwealth, demanding of him, the Governor of West Virginia, the arrest and rendition of the said Andrew Varney and the others in said indictment to the State of Kentucky to answer the same, claiming that the said Andrew Varney and others had fled as fugitives from justice from said State. Said requisition was accompanied by copy of the indictment therein referred to, which was certited by the Governor of Kentucky to to authentic. In said requisition be appointed oue Frank Phillips agent of the State of Ken• tucky to receive said Varuey aud the others and bring them to the State of Kentucky. "This requisition was not acted upon by the Governor of West Virginia, because, as he stated, of the want of an affidavit in conformity with the laws of West Virginia.
An aftidavit was then made by said Frank Phillips in compliance with said request, and on the 8th of October, 1887, was sent by His Excellency Gov. Buckner to His Excellency Gov. Wilson. There was no further correspondence between the said Governors in regard to said requisition until the 9th of Jauu1888. In the meantime the Hon, Henry J. Walker, Secretary of state of West Virginia, by letter dated November 21. 1887, wrote to P. A. Cline, who was Depury Jailer of Pike county, in reply to a letuP of inquiry from him, and notifed him that the said requisition of the Governor of Keutucky would be bunored except as to Elias Hatfield and Andy Varney, petitioners berein, and that warrants wowd be issued for their arrest upon the receipt of $54, his tees for issuing the same. 1 he reason given for not issuing warrants for Elias Hatfield and Andrew Varney was because they were not guilty in the Governor's opinion, from the evidence which had been presented to him. SENT THE PROPER FEES.
"Subsequently, by letter dated December 18, 1887, Frank Phillips, the person appointed as agent aforesaid, wrote to his Excellency, Governor W ikon, inclosing $15 to pay fees of the Secretary of State, and requesting he should issue his warrants for the arrest of Anderson Hatfield. Johnson Hatfield, Capt. Hatfield, Daniel Whitt and Andy McCoy, and that be sent these warrants to biz (Phillips) at P. keville. In this letter be intormed the Governor Lust he did not care for, and he did pot intend to interrupt, said Elias Hatfield, and Andy Varney, and that if they wanted any of the other persons meationed in said requisition he would send for the warrants for their arrest.
This money ($15) was returned to Phillips, and the order for the warrants countermandou by Governor Wilson, because, as he states, from information subsequently obtained, to believed the requisition and expected warrants would de used, not to secure peblic justice, but to extort money from the accused. "His Excellency, Governor Buckner, on the 9th day of January. 1868, wrote to His Excellency, Governor Wilson, a letter of inquiry in regard to his action under the requisition; this letter of inquiry was replied to January 21, 1688, by Gov. ernor Wison. (See copies of said letters of Walker, Secretary of State, Phillips, Gov. Buckver and Gov. Wilson, copies of which will be annexed hereto, marked 1, 2, 5, 4.) No warrants had been issued by the Governor of West Virginia for the arrest of any persons mentioned in the said requisitions on the 9th of January, or before or since that time. Frank Phillips, with twenty-five or thirty armed men, went from Kentucky across into West Virginia, and with force and arms arrested the petitioner, Andy Varney, on January 9. 1888.1 and Against his will and by force brought him to the town of Pikeville, in the State of Kentucky, and on the lith of January, 1888, placed bun in the jail Pike county in said town, which was then in charge of Abner Justice, Jailer of said county, and on the next day, January 18, 1888, while thus confined in said jail in. said" town, be was served with bench warrant and arrested by the deputy sheriff of said county; the bench warrant under which be was arrested was issued from the Clerk's office of the Criminal Court of Pike county, which court then bad jurisdiction to issue bench warrants and try persons charged under the aforesaid Indictments.
When be was arrested Phillips was asked by Varney by what authority he did so, and he said that no was State's agent to arrest him and take him to "Pike, and that he was authorized by the Governor of West Virginia to make the arrest.
SURRENDER AND RETURN.
"His Excellency Gov. Wilson did under the seal of West Virginia demand of His Excellency Gov. Buckner the surrender and return to the State of West Virginia of the said Varney and the others who had been seized by force and arms and carried away to Pike county by said His Phillips and others, which request was declined by Excel lency Gov, Buckner on the 4th of February, 1888.
See copies of the requisition of Gov, Wilson and the reply thereto of Gov. Buckner, marked 5 and 6.1 "The question presented to the Court on this requisition is much harrower than the discussion of counsel would indicate. "As between independent States, it is now the recognized law settled by the Supreme Court that there is no duty upon one independent sovereignty to surrender to another a refugee from justice, Whatever obligation the courts would recognize must arise from treaties between such sovereignties. Thus they have recognized between Great Britain and the United States the provision of extradition as prescribed by the treaty of 1842 between the two Governments, as the law which shall govern; and it is an obligation which the courts of the United States will recognize and will not allow a person extradited to be tried for any other crime than the one for which he was dited. That conclusion is arrived at upon the construction which the court has given the treaty of 1849 between the United States and Great Britain and the Acta of Congress made to provide for extradition.
*As between the States of the Union there has been in the reasoning of some variety of views. However, I think all the authorities conour in the proposition that the right of asylum of refugee who has fled from one State to another charged with crime is not a personal right: that the refugee, when returned by whatever means he may be returned to the State from which he has fled and wherein he is charged with crime, can not plead in answer to the indictment for the crime that he has not been extradited according to law. There is in one case at least a very important statement made by very, great jurist, Judge Gibson, that in such a case where a man is brought from one State to another, though he has not the right of asylum himsell, when mand is made by the State, by reason of comity between the States, he should be surrendered because he was brought from tne State without the forms of law and contrary to the wal of the Stat, which has still sufficient sovereignty to make the demand and have it recognized matter of comity. The case which in here presented perhaps has never arisen before, at least no case has been called to my attention and have seen on the subject, and, so far as I know, the question has never been adjudicated by any State Court or Federal tribunal.
NOT BEYOND ITS JURISDICTION.
"But, whatever may be the law on this subject: this proceeding this court can not consider it because it is beyond its jurisdiction. In matters of contest where there in a controversy between States, by the express provision of the Federal Constitution the jurisdiction is in the Supreme Court, and in babess corpus proceedings the Aet of Congress limits the and consideration of babeas corpuses to the question; person Jail by authority of the State, whether he is there detained and deprived of his liberty in violation of the Constitution of the United States or the laws enacted thereunder: so that the inquiry here is narrowed to the question whether or not this petitioner was when the babeas corpus reached him in custody of the Jailer of Pike county there in violation of the Constitution of the United States. *The right of extradition of a refugee charged with crime who had fled from one State to anoth - er arises from a provision of the Federal Constitution which provides: *A person charged in any State with treason, felony or other crimes, who shall flee from justice and be found in another State, shall on demand of the executive authority of be the State removed from which he -fled, be delivered up to to toe State having jurisdiction the crime.' Now, it is the recognized law as determined by the courts that the laws of Congress passed under this provision provide how this shall be done and the evidence to be presented from one Executive to another and wherever extradition is invoked it is the settled law that the courts of the country, both State and Federal, can revise the action of the Governor who honors the requisition in so tar as to say whether the requisition which has been made and the action of the Governor thereunder, is in conformity with the Constitution and the laws made thereunder. "It is also equally the law that there is no process known to the court by which a Governor can be compelled to exercise his discretion in the matter, if there be a discretion. If he acts, his action is subject to revision of the courts; if he does not, the Supreme Court has, in effect, said whatever the obligation on the Exeentive to act, the courts cannot enforce it.
It is, however, claimed that the only lawful mode by which criminal who bas fled from one State to another can be extradited is according to she provisions of the Federal Constitution, and the terins of the acts of Congress made there, under and also according to the provisions of any State statute which may be and can be made, constitutionally, in aid of the Federal provision The question which is quite important in the consideration of this matter is, what that process is. I mean by that what kind of propose? Is it a Federal process or a State process, and if a State process, which one of the States? Recently in case in Californis the Circuit Court decided that when the agent of a State had the person who was being extradited surrendered to him, be was Federal officer, and that his action was under the Federal Constitution; and, therefore, that court decided a revision of •the authority by which be held the refugee must be done by the Federal Court and by the Federal courts alone. That conclusion was overruled by the Supreme Court and they held that both the State and Federal courts could issue a babeas corpus and consider the question whether or not an alleged refugee was unlawfully detained.
THE SETTLED LAW.
*I take it that it is now the settled law that this agent, and in this case, Phillips, bad be gotten these men would have gotten them by reason of the process of the State of West Virginia, and would have heen assisted in the arrest by the warrant of the State of West Virginia and surrender to the agent of the State of Kentucky, would have received the men by process of the State of West Virginia, and thereafter he would have heid them by a process which was under the Federal Constitution, and would have re• tained them. In no event, however, was that process a procesf of the State of Kentucky. It was a means provided by the Federal Constituton by which a refugee could be extradited from the State of West Virginia to the State of Kentucky, and it was only when the refugee was brought within the territory of the State of Kentucky that a Kentucky process could reach him, and his detention woul have been unlawful and illegal unless after he came to Kentucky he had been arrested by reguiar process from Kentucky authorities. *However, it is suggested that these persons are detained in vi. laton of the Federal Consutution.
The argument is that the only process by which they could be extradited was the process as provided by the Federal Constitution, that that was in vogue in so far as to give this court jurisdiction to revise the action taken under it. Now, it is quite clear to my mind fo n the statement already read, that, as a matter of fact, no action was taken by the authorities of West Virginia under the requisition; that Phillips, though appointed agent of the State of Kentucky, never acted in any capacity as agent. It is true that he so represented himseif to the petitioner and the others, perhaps, as having authority to arrest him from the Governor of W st Virginia, and as being the agent of the Stale of Kentucky, but that was a false statement, and, in point of fact, there was no process issued under the Federal Constitution to extradite this man. He is here without authority of law, aid, as I think, without any color of authority, Phillips represented himseif as having authority so that this court can not consider the question before it now and revise the action of Phillips, because Le was not the agent of the State of Kentucky, and because he acted under requisition in no way whatever. **We must therefore consider the other branch of the case, and that is the broad proposition that since the Fourteenth Amendment a citizen, or resident, or a sojourner, having been indicted for crine in another State, cannot be extradited from the State where he happens to be, whether citizen or sojourner, except by due process prescribed by the Federal Constitution, and unless he is thus extradited he is within the term of the provision of the Federal Coastitution.
"it is quite clear to my mind that the only legal way of arresting a refugee under such circumstances is according to the Constitution of the United States and the laws made thereunder and such laws as the State may have made in aid thereof. This being the case, it is argved that due process of law as required by the Fourteen amendment under such circumstances is, Ar the mode preseribed by the Constitution and the laws of the United States to extradite the refugee; and second, after he is extradited the process by which he is taken into custody: and this being so, that this peutioner is deprived of his liberty without due process of law. "Now the Fourteenth Amendment is in these words: 'Section 1. All persons born or natural• ized in the United States, and subject to the jurisdiction thereof, are citizens of United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of tue United States; nor shalt any State deprive any person of life, liberty or property, without due process of law.'
NOT THE GRANT OF AN ASYLUM.
"You will observe that this provision of the Constitution is not the grant of an asylum or the affirmative grant of any right to the citizen. The purpose is very different; the intent is very different. It is intended to be a limitation upon the power of the State A similar provision in Pith Amendment to the Federal Constitution had limited the powers of the Federal Government, It was not conferring an individual right which he theretofore did not nave, assuming that before the Fourteenth Amendment he had no individual right of asylum himself, bnt only his State may have had the right of having him returned. This was not conferring upon any person in the United States, whether a ciuzen or otner person residing here, an individual right, but it was a limitation upon the powers of the different States. In that view, the petitinner can not be said to be deprived of his liberty without due process of law, and therefore in violation of the Federal Constitution, unless he was deprived of his liberty without due process of law by the State of Kentucky.
Now, while it is true that this process of extradition could only be invoked by the State of Kentucky, and, as the law exists, it is the only lawful process by which a man can be extradited, and while it is true tha. in this case that process has not been invoked, and that this man has not been arrested and extradited under any process, but in violation of law, by force and by he has not been so extradited by the State of Kentucky, or by an officer of the State, or by authority of the State. He has not been deprived of his liberty, therefore, under the Fourteenta Amendment. was very much inclined, when this case was first presented, to the view presented that under the circumstances under which this prisoner was brought to Kentucky, being unlawfully arrested and kidnaped, that he was entitled as a matter of constitutional right, before he could be detained in the jail of Pike county, to have both the process by which he could be extradited and the process by which he could be arrested after he was extradited, to be a due process of law. more critical examination has satisfied me that the Fourteenth Amendment must be confined by its very, construction (and that coustructiou strengthened by the history of the words which have existed since Magna Onarta, and have been used as being synonymous with laws of the land) By the very wording of the Constitution, the State may deprive the mhibition party of his liberty, else it is not within the of that instrument.
I am therefore of the opinion that this peritioner must be remanded to the custody of the State authorities. At the conclusion of the reading of the decision, Mr. Gibson arose and asked that the letter of Gov. Buckner to Gov, Wilson, stating that Philips was an agent of the State of Kentucky, which letter had been read by Gov. Knott during the argument, should go in with the Court's statements of the facts in the case, that it might be presented to the higher court in case of an appeal, Discussion on this point arose between counsel, and Judge Barr finally stated that it would be in order for them to make out for his consideration a list of papers which they desired to go before the higher court, though his record of facts, he said, would stand as read.
Mr. Gibson next asked the court what disposition would be made of the prisoners pending an appeal, and Judge Barr read the law, showing that they should he remanded to the custody of the authorities from whica they were taken by the writ, or should remain in the custody of the court beiore which the writ was returned.
WANTED BAIL.
Mr. Gibson spoke at length asking that the prisoners be allowed to give bail tor their appearance, stating that the West time Virginia would surrender them at proper to the Kentucky authorities.
General Hardin objected on the basis of the decision just delivered, showing that the court nad no jurisdiction to try the case itself, and less jurisdiction to allow bail to men indicted for murder, which the State courts could not allow.
Judge Barr sustained this view of the case, saying that his court had no jurisdiotion, and that the offense charged was not bailable.
Mr. Gibson then said that he would be unwilling for the prisoners to be returned to the Pike, county jail unless Judge Barr should issue an order showing that bail allowed by the Judge of Pike county would not be considered in the nature of contempt toward this court. The question: of removing the prisoners again provoked considerable discussion, and Judge Barr informed counsel that he would meet them at o'clock to ascertain whether they bad agreed as to the disposition of the prisoners. At that hour no agreement bad been reached and the prisoners are still in the city.
Judge Barr stated last night that the prisoners would remain here until after further action concerning the case in his court tomorrow.
PREPARING AN APPEAL.
• Mr. Gibson was also seen at the Gault House, and said:
"We are now preparing an order of appeal in the case, but Governor Wilson will be here to morrow night, and I would prefer not to state the grounds of the appeal until after consulting with him. The prisoners will remain in the city until after further action in court Monday.
"The prisoners are, some of them, very anxious to be taken back to Pike county, he continued, "and I believe they have been tampered with in some way and false hopes held out to them as to bail- being furnished for them. I do not wish them to be sent back there to remain in for I don't believe they would be safe there."
The case will now go on appeal to the United States Circuit Court, and from there probably to the Supreme Court. Attorney General Hardin shares in the desire that the case shall go to the Supreme Court, that the novel and unsettled issues involved may be adjudicated.
The prisoners are anxious te be taken back to Pike county, saying that they have not necessary clothing and comforts which their families could furnish there.
O'RILEY'S CASE.
The Charge Against the Er- Post• master of Leitehfield, On Trial In the United States Court.
Immediately after Judge Barr ! had rendered his in the Hatfield-McCoy case yesterday morning in the Federal Court, the suit against Daniel O' Riley, charged with postoffice frauds, was taken up and occupied the balance of the day. There are more than forty witnesses in the case, and it will occupy the time of the court for two or more days. The defendant, who was postmaster of Litchfield, Grayson county, from July, 1878, to December, 1885, is charged with falsifying the returns of canceliation of stamps during his term of office to the extent of about $2,600 or $2,700, The case was presented at the last term of the Federal Court, but District Attorney Wickliffe then entered nol. pros, on account of Judge Barr's ruling, excluding certain records from the Postoftice Department which the District Attorney considered material to the case. The Grand Jury, at this term of court, found a new indictment.
The only witnesses introduced yesterday were Postoffice Inspector E. F. Finley and Mr. Keheler, Disbursing Agent of the Treasury in the Postoffice Department. The latter detailed at length the cancellation of stamps, as evidenced by the official records, made by O' Riley while postmaster, and those made by Mr. J. R. Barton, his successor, who now holds the office. It was shown that the work of that nature of the present postmaster exceeded that of 0' Riley by an average of nearly $500 per quarter.
The case will probably consume all of tomorrow and will hardly go to the jury before Tuesday.
A WELL- KNOWN BOY DYING. • Little Lieutenant" Fritz Schmidt Nearing His End. Gathered about the death-bed of a ten• year-old boy on First street last night were 1-Chief of Police Whallen, ex-Lieut. of Police Hugh Bell, Officer Charley Hickey and Bill Duff, of the Fire Department. None of those mentioned were related to the dying boy, but they were all his warm friends, and were visibly affected. The little sufferer was Fritz Schmidt, known throughout the city as 44 the little Lieuten• ant." and his life was fast ebbing away.. 1 ¡No boy in the city, perhaps, is better known than little Fritz. ambition to be member of the police force or the Fire Departinent, and on no recent public parade of either ever took place thatthe familiar figure of " the little Lietenant" was not near its head. His friends of the police force had supplied him with full lieutenant's uniform and hat, and at every parade of the force last sping and summer he took the lead upon horseback or in a dog-cart. Col. Whallen and the members of the force grew very foud of the little fellow, and last night, when he was told that death was near, he sent for his friends to say good-bye. He will hardly live until sunrise this morning, as he was constantly sinking all night.
Fritz's father is a baker on First street, between Jefferson and Green, and the little boy has been of much assistance to him. Some time ago Fritz was affected with a tumor in the head, and ten physicians have treated him, but without avail. He lost the sight of one of his eyes, and finally bloodpoisoning and paralysis set in. He has continued to sink, and last night was. probably his last upon earth.
Demise of an Old Citizen, Mr. Jeremiah Montz, the venerable father of Mr. W. E. Monte, Marshal of the Chancery Court, died at his residence, Second street, near Chestnut, early yesterday morning of paralysis. He was seized with a shock some time ago, and was supposed for time to be beyond danger, but within the past few days he had gradually grown weaker until his death.
Mr. Montz was a native of Pennsylvania, and came to Louisville forty years ago to engage in the grocery business. With the advent of the last Administration, however, he became a United States storekeeper, and until the time of his paralytic stroke, five weeks ago, was one of the most active men in the service. The funeral will take place at 8:80 o'clock this afternoon from Christ church, Second street, near Green, of which Mr. Monte was for many years a devout member, and the interment will occur in Cave Hill cemetery.
Caught On An Old Charge.
Domnie Higgins, 4 young man living in the East End, was arrested early yesterday morning by Officers Guilds and Eaton, and placed in -street station. Higgins was arrested for cutting Pat McLaughlin, a wellknown character living at the corner of Fulton and Preston streets, in a quarrel which occurred about six months ago. Higgins evaded the authorities at the time by guing over to Jeffersonville.
Friday night he returned home to his brother's, on Marshall and Campbell streets, and was captured by the policemen. Civil Service Examination. An examination of applicants for the Classified Departmental Service at Wash• ington will be held in the United States Court-room in this city. next Saturday, commencing at 9 o'clock L. M.
Applicants for examination should write to the Secretary of the Uhited States Civil-service Commission, at Washington, for application blanks. For the Cyclone Sufferers. Mr. Thomas O. Dunlop will give an art entertainment in the large Liederkranz Hall on Thursday, April 5, for the benefit of the Mount Vernon cycione sufferers.
The subject will be a journey through Switzerland and Italy, with nearly a hundred illustrations. Tickets will be ready for sale this week. Prudence! Prudence! In medication, 10 aught else, prude 305 should b: our guide. Yet thousands cast 18 to the winds. Every cos nostrum finca its patrons, he medical umpir ea of every la school have eir gulls, Every change in tie gamut of moug is rung is time at least notes beit g fun ished by tie In LA, P./ to the nuny ised imposof the day stand Hostetter's stomach Bitters, now in its third decade of ppalarity, approved and recon by pi y by the press of many lends, soughs and prized by -invalids everywhere. It is an ascertained specific for and preventive of me a lal eases; Panic indigestion, liver complaint and constibutton, checks the growth of u natism and neuralgi a peerless invizorant and useful dinretie Nervous people batedt be.
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