United States v. Shipp

1908. 214 U. S. Syllabús.' be within result, may pro- and useful newa producing to a inventor statute, and entitle Federal tection of. discovery. for his patent a substantial Golding’s method of opinion

We are character, particular independently of this improvement is valid suit it, and the patent performing mechanisms for and useful kind. of a new exhibiting process made case no question little or infringement, As to the there was Court held that No. 66 the Circuit In case No. at least to warrant the enough infringement, evidence some accounting. 'awarding'an sustaining patent decree ' It the decree agree. we follows With this Conclusion 66) (No. Third Circuit for the Appeals Court Circuit should for the Appeals and that of the Court be reversed Circuit 606) affirmed, be and the cases re- (No. Sixth Circuit should manded, of the United States for the Circuit Courts the. and the Northern-District Pennsylvania District Eastern for further consistent with Ohio, respectively, proceedings this opinion.

Decrees accordingly. v. SHIPP. UNITED STATES IN CONTEMPT. -INFORMATION Argued 2, 3, 1909. May Original. 5, March 24, 1909. No. Decided already, held, court,, having information tp contempt punish sufficiently set forth a the court which the testimony- jurisdiction, finds on the taken has now under its óf guilty that certain of the defendants named direction . and directs -that issue contempt attachments charged found them, guilty discharged. the defendants not and that . acts of those are the engaged' a riot and lawless therein Where - of the law opposition direct result of administration UNITED STATES v.

214 S. Statement Case. U. court, defy participate in, its mandate those who or who know- proper power fail to take the within their official ingly means duty prevent, object to, of violence for having to acts their and which do, of, guilty pun- defeat the action of this court are and must be for, contempt. ished

One, by applied'to who after conviction the state court has the Fed-

eral for his corpus court release habeas on the that he was ground process by denied due of law is the remanded Federal court to the custody specified of the sheriff to be for a in detained time which to prosecute court, him appeal enable an to this is held under § Stat., prisoner Rev. as a Federal and the sheriff is accountable and, courts; power the Federal to the extent of his and the means control, under his he must exercise due and diligence reasonable protect prisoner violence, efforts to mob if, from and after this granted appeal, court has an in negligently duty fails his in this behalf, contempt. he is guilty of of

Knowledge appeal stay an allowance this court of an and a of defy proceedings renders those who the mandate of the court and defeat., willfully so conduct themselves the administration of contempt. the law liable for having appeal

This court allowed an from an order of a Circuit Court corpus prisoner a writ of habeas and discharging remanding custody period prose specified of the sheriff to be held for a appeal, deputies jailer, cution sheriff his and the the. and who of , appeal had knowledge such allowance and also of an intense feeling prisoner previous in the neighborhood against the which on occasions safety, had threatened his were bound to use all means power him, part within their to.protect on their to take failure any precautions prevent killing seizure and whatever prisoner in jail the hand mob while a defenseless attacking of a case, was, condition this willful negli under the circumstances of court; to, contempt of, gence, disregard duty this and so Tennessee, deputy held as County, tofthe sheriff and his Hamilton jailer, March, 19, 1906, lynching and the in with the conheetion appeal of Ed Johnson court had allowed his a mob after this from an corpus. order refusing relief on habeas Those of a mob jail lynch person who attack a a held therein state prisoner

as a Federal court of which .under an order of this have had notice are guilty contempt this court.

The facts, which in involve the of a held lynching person custody sheriff court under order -an Federal

Argument for the United States. after., by. an been allowed court .an appeal Court denying United States petition order of the Circuit are stated habeas'corpus, opinion. ’(cid:127) Mr. Attorney Bonaparte, General Solicitor-General Mr. Mr. Edwin W. Lawrence, whom Assistant Special Hoyt, General, was on the brief for the United Attorney States: Attorney

This is an information filed contempt charging United States the defendants with General court lynching negro of this Ed Johnson at contempt 19, 1906, ground oh March on the that he was Chattanooga under order of this jail time prisoner at that direct defiance the known or- lynching that the court and to the administration of the law of this prevent der it. by 439-444, length, information at appears pages post. .of law were raised de- questions by

Certain preliminary court, this 2Ó3 U. S. 563. by and It passed upon fendants sufficiently set forth a con- held the complaint was there qf for court; that it immaterial the this purposes tempt or not the Circuit Court had whether juris- of this proceeding or whether this corpus of the habeas court proceedings diction and that the appeal; to entertain answers had jurisdiction intent disavowing under oath- did not purge of the defendants from the all This removes case questions decision them. of evidence,. admission of those as to the The ques- law except court is one of fact: Has now before the the United tion evidence, which by has been the commis- States taken of this court, proved the’allegations sioner under order - . are allegations, Most established information? those only' or evidence. The' issues are: agreement1 undisputed informed, they sheriff and’his and did deputies Were the' (1) an be reason to believe that would every attempt' have made 472, post. at agreement appears length page This UNITED v. STATES Argument for the United States. in the of March evening a by mob.to break into, and take from, Johnson the jail for the him? purpose lynching (2) Did the sheriff and his commit acts and deputies do .things manifesting purpose on their disposition render part difficult and less dangerous less the mob to John- lynch son aid and (3) abet the mob? defendants, . Were except- ing Gibson, Shipp members the mob which lynched Johnson, did (4) Did participate conspiracy? defendants did show things they intend to contempt of the order of this court.and to it from John- hearing prevent son’s appeal?1

The information alleges that the acts the defendants were done with intent to show their and utter contempt disregard court, for the order this’ order to this court prevent of Johnson then under condemnation hearing appeal the. death and had been remanded the Circuit Court to who custody of the sheriff action pending In delivering which had granted opinion appeal. upon 2,03 law, U. S. hearing questions 563,- preliminary Mr. Justice Holmes said:

“ If acts should be there would be presence proven, little room for the disavowal of intent. ... It may be mob and found that what created the led the crime was the delay its members to submit to the unwillingness required From that to the intent to prevent delay appeal. is short hearing step.” appeal cases can in'many only Intent proved, proved, best If acts which defendants are charged acts. have it no to demonstrate that de- argument been needs proven, this court hearing fendants intended to Johnson’s prevent It has been shown already, and to its mandate. delay appeal was fear of the law’s that the reason for the mob’s action de- his sheriff, and the lay unwillingness deputies, The intent to commit of the mob to submit to it. members 1 testimony at length. The Government’s brief then reviews

Argument for the United States. S.U. court the acts of necessarily present of this was a contémpt ,defendants'. n Thisproceeding history is Courts. unique have Lynchings cannot be Its overestimated. importance laws and courts without state state. defiance (cid:127)occurred only desultory or most with attempt, punish attempt, of .such have heretofore crimes lynchers. ’Perpetrators censured'only courts have opinion; remained by'public been it has is, as such always severe opinion silent. Powerful deeds, has. inadequate in its such it been rebuke been Only recently lynchings lawlessness. these outbreaks check aroused, country tó so ’numerous the whole was became for .it. It is remedy of mob violence and a discussion earnest useless, unless can judiciary punish to seek relief indeed kill has the men it who snatch imprisoned. those years. fetters men for It strikes death of justice arm confess take and life. Must it It can property murderer.1 has The arm is those whom'it confined? weak to protect too whom it not If the life of one Can destroy. protect? can a mob mercy its at the custody taken into law has a mockery. becomes justice administration stay granted this court upon appli- When execution him until his Johnson, it became its duty protect cation what of. It with crime be matters disposed case should It is immaterial what evidence was at charged.. he came into this court deathyJohnson Sentenced the trial.' rights had been invaded that his constitutional alleging said he this the Court case, upon his Supreme trial of From moment until to-be, be, would heard. right case, this decided, protection'of be should under-the For mandate; its issued his protection,'is And court. when of such guilty contempt-must, of those defied, punishment certain severe. been, disobeyed order history Never has an its have its decrees disregard Á few attempts impúnity. n In 1779 ultimate avail. made, always but without been the.: UNITED v. STATES 391 Argument for the United States. Continental Congress, through,its Standing Committee Ap in-Cases of peals Capture, reversed the of the Court- judgment of Admiralty of the State of Pennsylvania and made an award in favor of a claimant, in Olmstead, a case. The State prize resisted enforcement of the yielded. decree and Olm Congress found, stead thus the decision of the tribunal in his appellate favor useless to him. With the- Constitution adoption the jurisdiction of formerly exercised the. appeals Conti nental Congress became vested this court and- 1808 Olmstead sought redress here in the same matter. United States v. 5 Peters, Cranch, 115. In one of powerful opin ions the great Justice Chief made it clear court’s de crees favor of Olmstead must be obeyed. Nevertheless the State for a time resistance, defied order. This however, was unable to withstand unswerving determination this court and finally .Members and officers of disappeared. with, state militia who had interfered execution the decrees were tried and sentenced to fine and This imprisonment. then declared which- and established has supremacy ever always since been which will maintained priceless heritage the American people.-

In between the controversy Georgia State and the the. Indians, Cherokee which came before this court Worcester Georgia, v. 6 Pet. State refused to release a prisoner in obedience to a of this Although direction court. the Na tional Executive to aid in requiring obedience, declined after some months the State withdrew and again opposition supremacy this court was recognized. (cid:127) In the history Booth, the case Ableman v. 21 Howard, 506, we for a find third time evidence of a arraying State itself this and courts of the court. State Officers Wis- consin, decision of contrary court, insisted that fugitive-slavé law was unconstitutional, resisted its en- forcement. But the outcome was the same. Finality de- cisions of Court of the United States was de- Supreme clared, and to its obedience order was compelled. TERM, 1908. S. Shipp. TJ.

Argument for Defendant country, this- early.history,of It is not surprising state Federal and the govern- when-the jurisdictions States understood, or well ments were defined clearly is re- this, But it have court. should resisted the-orders défy now should markable that individuals undertake great mandate of this tribunal. and most is an orders highest

Justice at end when Obedience naught. are set the land powerful such is institutions. Contempts mandates to our its essential law under- arid order and as this down the supremacy strike of such the .foundations of our Government. Recurrence mine has offense The commission the- prevented. acts must in ac- established, imposed been and punishment should be. its gravity.. cordance with with, whorp Moses Clift, J. Mr. H. Lynch

. Mr. James and. D. Mr. Pritchard, Mr. Robert William Harmon, Mr. Judson defend'-, on brief, Mr. B. Robert Cookewere Spears ant Shipp: conspire, Sheriff did not testimony

The shows that Shipp duty did not fail in his to take lynchers abet the aid or him. guard precautions proper information that been alleged the prisoner It is and that night lynching heavily guarded until withdrawn order'to permit guards purposely had not been The record' shows lynching. jail after Johnson's conviction guards with extra guarded- he had the jail the. time remained February During no extra Knoxville, there had been his return after jail. at the guard for the brief, bring

In their Government seem counsel Chat- indictment whole citizenship a wholesale' testimony County. and-Hamilton tanooga undisputed by aside announcer swept of. simple witnesses' dozens testimony gray- that it is ridiculous. The ment absurd and ministers, merchants,' of. manu-. of veteran physicians, haired

UNITED-STATES v. 393 Argument Shipp. U. S. for Defendant facturers, officials, is all in the same To manner. .treated these, all of for the say: Government ^counsel “It is absurd for the their witnesses to say defendants.and that' the was in a community state peaceful repose March It is idle preceding jdays. say for-them they did not mob violence to Johnson.” apprehend

And this fact is yet testified to numerous witnesses for Government and no denied witness. Judge McReynolds Attorney-General are -Whittaker Goye-rnment. also severely criticised for the Just counsel why, it is hard to understand. These first gentlemen sounded the alarm on night of the lynching. Walking the streets nine o’clock and noticing about suspicious gathering .at jail, they-went the office of the Chattanooga Times and notified the editor of what was reporters on—called going the sheriff and him to to the the requested go relief prisoner to office of the —’phoned^ the chief in police and, fact, — did that could have everything reasonably been expected any citizen under the circumstances. Johnson

Judge McReynolds every treated with considera- tion throughout the whole proceeding. He able appointed him, counsel to and after his conviction, defend a appointed able committee other counsel to confer with his attorneys cas,e and render such assistance and advice as the demanded. When counsel were Johnson appointed before was tried, Judge McReynplds the-Attorney-General the sheriff submit to counsel defend the to Johnson all of appointed the evidence State- had the accused and also give Johnson’s counsel the names the witnesses for the State— a seldom, consideration for the if before, ever defendant shown in the criminal this State. courts lynched, Johnson Judge McReynolds delivered

After .was a strong charge grand jury, body'to that instructing - indict -those engaged all Both he At- and- lynching. torney-General everything Whittaker did possible procure n indictments. failed -grand' jury any That to indict TERM, 1908. . OCTOBER Shipp.

Argument for Defendant in view of the strange difficulty is lynchers not. detectives, its have had' Government, with all of agents in the identity lynching. of those establishing engaged But officials need no defense our hands. splendid These for the' Government it is that counsel quite coincidence most to severely those who did the brief, their criticise-'most lynching avoid the Johnson.. (cid:127) is acted stated, As possible Captain before Shipp is on the It easy judgment night .of poor lynching. jail now he should have had the guarded to see for a mob. But if he had done should have been prepared more so, would have been wiser and would have shown he (cid:127) Chattanooga. than other- citizen foresight over now, back events as easy looking It see. night, on that instead Captain Shipp, going occurred have jail, gone police headquarters should drilling, organized the militia were where armory, and. remembered, however, that Captain Shipp It must posse-. situation and carefully consider the did not have time-to up best He called pursue. course coolly decide attorney that he and told night prosecuting Attorney-General at once to jail go should showed —the did Attorney- Captain Shipp. judgment just poor in- several other.gentlemen, was in conference with General Judge, requesting Criminal sheriff cluding the (the Attorney-General) jail, spoke at once to the go but for the himself, gentlemen showing other only present, all of moment, excitement of them were guilty in the that that was. Captain Shipp error judgment the.same cited shows that Mr. heretofore testimony Spurlock, after think Attorney-General, judge with the who wfas and, it would be over, concluded foolish matter ing the' alone, sheriff to rush into the jail for the dangerous, perhaps; knew he would hfe temperament, knowing Shipp’s Captain inter reason, For this attempted do this. attempt sheriff, to do so.. but failed cept the

UNITED STATES v. Argument Shipp. U. S. for Defendant cannot, Certainly Captain. be convicted for Shipp contempt because'in the his simply performance duties, he himself, exercised bad He if judgment., says,- he had he, over know thing go again perhaps, would better what to and would act but at do, differently, time he acted the moment and had spur gone to jail what the trouble was seeing do purpose what he could to the prisoner. protect in his denied, all

Captain Shipp testimony, in charges with the information reference a with conspiracy those He engaged any denied lynching. intention to aid or abet, in in the any way, engaged those killing Johnson. He that he or denied had reason to anticipated antici- mob on of March night He pate expect insisted very this- greatest respect honorable act, done no no court and had omitted duty, which conclusion could be contrary drawn. has lived Captain Shipp Chattanooga since 1874. Dur- he has that time been ing engaged various business enter- he has During time lived prises. Chattanooga he has been connected various affairs in public that city. He was a soldier, has, Confederate for many years, been a member of the Confederate Veterans’ organization, and is quartermaster general organization. entire He was the staff of the late Gen. John B. Gordon and the late D. He has Gen. Lee. a Mason Stephen been for over forty and a' member of numerous years other secret societies. He assessor was also tax for Hamilton County, Tennessee, be- fore elected to sheriff. His position charac- splendid to by every ter testified witness whose has testimony been in this Old brief. men and young men, referred political adversaries, friends and ministers of political all denomina- tions, veterans Civil War who wore the blue and who men of all all gray, classes and persuasions who wore known Captain during long have life Shipp Chattanooga, voice, all, say in one to this he is court that a truthful, law- 396

Argument Galloway. Defendant for 214 U. S: say Can this court that a gentleman. honorable abiding, record, and such a would sud- man with such character his sacri- whatever, betray trust, denly, without motive in his of a become keeping, perjurer fice the life prisoner show his and murderer, contempt disregard and a order to this, highest greatest for the orders world? Cooke, Mr. B. with whom Lynch

Mr. James J. Robert brief, on Gibson: D. defendant Spears Mr. William as to what occurred statement of the defendant The manner, honest, is told an candid night lynching his statement is entitled to be believed. we submit that him between 8:30 mob came to the jail surprised down the door leading upstairs o’clock—battered and 9 arrived, was at the the mob time where the- defendant (cid:127) keys. Many members him to surrender forced him He shows handled armed, roughly. mob were arrived, and after the mob nó avenue escape that he had He was with the outside world. no communicate chance .to War, and a veteran of the Civil old, years an old man 62 character. testify good his. and numerous witnesses Moses Mr. H. for defendant B. Cookeand Mr. Robert Clift Galloway:1 Galloway evidence that the defendant

It is clear Johnson, mob lynched crowd or with the was not manner, in which take into consideration the when we himself and for the life, protection exposed this defendant theretofore, of Johnson mobbing and to prevent case, in this preposterous shown the record it.seems this honor- for the Government should ask attorneys able convict or hold this defendant contempt able court to court, testimony of this honorable "the the orders so and so ef- thoroughly themselves witnesses who impeach Galloway. discharged The rule as to *. UNITED STATES Argument 214 U. S. Defendant Ward.' no much fectively' one, honorable,court, less this could their any credence to The give statements. evidence.estab- n lishes, beyond question, the was not Galloway fact only not with the mob or about jail, the or at the at bridge the time lynching occurred, but, the as shown by was, the proof, the the lynching occurred, Eagle time Club rooms Market and knew mob nothing street until after the occurred. lynching

This will honorable court look into the conduct made by courageous, resistance this faithful officer the de- in his fense lives of hands. It will take prisoners into the, all testimony consideration presented record, this, and when it does we feel confident that this honorabie court will this faithful discharge officer, as well as all offi- cers, sheriff and including the each and com- deputies, of. mend faithfulness officers in their discharge their (cid:127) duty.. Mr. Mr. Chamlee, W. J. A. Mr. Hood, W. H. whom G.. and Mr. W. F. Chamlée Cummings brief, were on the for de- fendant Ward:1 ... hás failed to make out its case against Government who is Ward,

the defendant to his discharge be- -entitled cause the fails show that he had proof any connection with the lynching, whatever and. also fails show that he of the fact that this knowledge honorable court had Johnson v. Tennessee, acquired jurisdiction case .'the of such the absence information he could not be this honorable guilty contempt To make'the court.' of a is guilty necessary defendant contempt that he should in his mind at the time of the have of the un- commission act, knowledge honorable court had taken lawful of,the Johnson case and his. jurisdiction participation either n abetting aiding alleged should lynching

1The was discharged rule as to Ward.

Argument for Defendant U. S. Williams. On by both its orders. prompted spirit disrespect of these has failed to make questions wholly Government out its case. shows very lynching

The evidence that at hour was at saloon under influence of the defendant Barnes’ such say an extent that the witnesses he was strong liquor drunk, asleep. probably

This man. him defendant an innocent The proof testimony is in of one who has been suc- alone Stonecipher this defendant satisfaz cessfully impeached and has proven and lack of of this tory knowledge alibi the jurisdiction court over the Johnson case. Chamlee,

Mr. O. W. with whom H. Cummings Mr. W. brief, Mr. Chamlee W. F. defendant Williams: in any question is this record to show enough beyond There that Mr. William’s for controversy veracity or record truth and is full on is that he entitled to faith and credit his good oath in court justice. a has to show Williams

The Government failed that Mr. did in the world in aiding in the anything assisting lynching to show any of Ed Johnson. It has failed had knowl- this honorable court acquired edge jurisdiction Johnson V. His the case of Tennessee. answer denies every him in allegation material made the information filed Attorney-General. in for the Counsel Government the brief for the Govern- Mr. leave Ware impression swears positively ment Williams was the man that that Mr. shot five bullets into Johnson as body lay county bridge. the dead erroneous, This to be clearly is shown and a reading careful Mr. not sustain testimony of Ware’s does contention of It is earnestly counsel for’ the most insisted Government. Mr. Williams shows that’the proof simply present .that as were numbers other but that he spectator people, is took no manner lynching guilty any part S99

UNITED STATES v. Argument Nolan, Justice, Padgett Mayse.' Defendants or in sense of charges made and was in no. way re- for the death of sponsible Johnson. It is, confi- therefore, Ed dentily urged Mr. charge against Williams is not and that he proven should be dismissed.

(cid:127) Mr. T. whom Pope Shepherd, with Mr. Lewis Shepherd and Mr. Martin A. Fleming were brief, defendants Nolan, Justice,1-Padgett Mayse:

These defendants are charged being members mob that lynched Johnson. are They not interested in the details the occurrence at the county jail and bn bridge' night the lynching to deny their except presence and par- nor are ticipation they' interested the proof showing the Johnson history case and the condition of senti- public ment with reference thereto. The only question to be con- n so sidered, far as these defendants are concerned, their in the participation lynching.

Each one of the defendants filed an answer to the infor- mation denying respective participation lynching where he was on this showing particular night. - distinct, While the defense of each is and will separate be hereinafter treated there are separately some questions that may properly considered to all applying alike will be treated in one discussion.

The Johnson case has been famous case and around Tennessee, from Chattanooga, the time the crime was com- n mitted, until the From time. present whole record it will be seen and can be inferred that con- properly the facts v/ith the nected case have been the minds prominently Chattanooga at all times. in the case people Every step was watched with intense interest almost by every citizen was, subject evidently, constantly under discussion during the time the arrest of Johnson to night thfeTynch- in times of So it is an iiig. such-great comparatively interest matter for a easy man remember his actions and wherea- rule discharged to Justice. Argument Nolan, Padgett Justice, Mayse. Defendants bouts that eventful night city At Chattanooga. or time, any ordinary upon any night where there is ordinary nothing one’s at or particularly impress mind time later, it is a matter, difficult usually after of a few lapse weeks, remember the fully occurrences such á or time with certainty identify such occur- particular time rences. But it different at times of extraordinary events, whether such events are known at the time ascertained A later. on the of some report following morning, extraordi- occurrences of nary interest one every community would have the result to one’s mind recalling vividly where he was and what he had been doing such time. It is there- fore entirely reasonable that these defendants give could an account their actions on 1906, of March night when Johnson was lynched. And it is also entirely reasonable that their several actions could be identified with particular night.

Nolan denied his presence participation lynching of Johnson, showed where he was on that night during .and time of lynching. He was at his of business over place p. a mile from the county jail to about 9:30 up he m., then went to the saloon of his brother and remained there until p. a little after 10 m. at which time the 'saloon was closed the night, that he then went to his home near and there following remained until the This is morning. supported by contradicts testimony and testimony contrary that Nolan was in the crowd. Some of the Government’s witnesses, testified that he was masked and others .that not. fully identified, He was not record -witnesses who testified that saw him is bad.

Under a fair construction all the evidence the Government has failed to show Nolan’s mob. His participation alibi is well defense' supported competent proof is sustained great weight of-the evidence. Justice denies that'he was county jail at the

Defendant

UNITED STATES v. Argument Padgett Nolan, 214 IT. Justice, Mayse. S. Defendants on or that he night lynching, connection n with or of the mob knowledge lynching Johnson'. On in night he was at his home St. Elmo several miles from and a at a jail,- visiting time part neighbor’s house.

In the brief counsel for the Government first say that must be remembered that this defendant was a member of the first mób tried to Johnson. lynch

Defendant -asked about this. He stated that he was as a in with' such men present spectator company Judge McReynolds, Whittaker and H. Attorney-General Clay Evans. He was on requested act a committee examine the jail. Later defendant made a the crowd to speech advising disperse. Defendant is six feet one inch- high and weighs 215 to 236 pounds. ' The man identified as Justice was evidently leader of the mob, but the must have been mistaken and one parties witness in says there was a man mob who'did resemble Justice. Defendants answered Padgett Mayse their denying par- in the shows that he ticipation lynching. Padgett was at the Hotel Stag during evening day lynching. n p. shows that he was at home after about 6 o’clock Mayse m. Neither until the lynching knew next anything morning. alibi witnesses as to the testified a- straightforward, manner. is so intelligent nothing There remarkable their as to the statement counsel’s -testimony justify brief True, are of belief. are friends and unworthy they asso- defendant, ciates of the but where could he of his get proof from his associates? Each one gives whereabouts except account of his actions that and a night proper reasonable reason the' details. It fair remembering quite belief, unworthy because, that witnesses are charge per- chance, they have testified favor side opposite lawsuit. There should some evidence which respectable before it is charge justified. to base such relies on the testimony The Government one Stonecipher. vol. ccxiv —26 TERM, 1908. Padgett Justice, Mayse. 214 Nolan, U. S.

Argument for Defendants at the jail were seen is no defendants There proof these and ad- statements case is based certain that The night. who there was a says Stonecipher mission made them to Mayse in which and Pádgett the lynching conversation before n ,the of. Johnson course dissatisfaction were expressing conversation to show that these is nothing There case. John-1 lynch or intending making preparations were parties he claims that heard a son; day Stonecipher and on the next in which Padgett and another Padgett conversation between ad- Padgett and Mayse that he and participants admitted Mayse of which both and Padgett mitted complicity—all stands alone arid so witness Stonecipher Un- denied—and by b<jth is contradicted' in his and statements, supported testimony. and other defendants was said not remember what he except does

Padgett mob. It is a re- was a member not state that he did in a a man would openly public- markable proposition on the before night state that acquaintance to a mere place is story un- Stonecipher’s highly committed murder. he had less, given reason should be reasonable, for that weight reasonable nature. evidence of a than is such nature of the conversation that a Then again At the most it was to call it evidence. court cannot afford as barroom expressed or as sometimes idle talk thoughtless, as sufficient murder. proof It cannot be considered gossip. n it should is true and con- says If all that Stonecipher be. out for is not a case made confession, as a there sidered an abundance of com- have shown reason that defendants in the mob. Under did not participate petent proof all the witnesses speak of first to make trying the rule with the innocence of défendants is consistent testi- truth the every witness. mony boy since he was a Stonecipher known

Witnesses.who-have in his both in Chattanooga and know his reputation former. is say that his bad reputation Georgiahome, unhesitatingly óñ his “credit oath. not is entitled v. SHIPP. STATES UNITED of the Court. Opinion light the most favorable testimony Giving Sto'necipher’s nor-overcome the participation, does not in any degree prove these defendants. alibis and relied set up cases, criminal weighing are effect These cases rules, in criminal cáses should prevail. evidence reasonable, doubt- rule should prevail Whether the before require strong convincing proof the court should The., inflicting punishment. these defendants convicting a mere as in be than stronger preponderance evidence should more than something important civil There property cases. strictness required. more free- rights consequently a citizen should nót faken liberty dom and except- convincing and most strongest "proof. delivered, opinion Fuller Mr. Chief Justice court. of by Attorney-General

This information filed was an n UnitedStates F. and twenty-six other against Joseph Shipp eighteen as to of them defendants,1 which was dismissed and Gibson, Wil- Galloway, Nolan, Shipp, heard to defendants Ward. Mayse liams,Justice, Padgett, and in substance, 11, The that' charged, February information .of was the crim- 1906, Johnson, by Ed a convicted negro, Tape Tenn., held in County, inal court of Hamilton Chattanooga,^ 3, that on March death; following, was John- and sentenced-to writ of habeas in the corpus for the son United petition filed in Tennessee, that in Court, sitting alleging States Circuit of constitutional rights; that on he had been deprived trial was the writ dismissed and denied,- March 10 the petition to the sheriff of Hamilton being‘remanded County petitioner in days, in his for ten which custody detained enable and default an such prosecute appeal, petitioner appeal by state under be further its sen- proceeded Mr. Justice Harlan, on March 17 the United tence; of all names length appear information at and defendants post . page TERM,

Opinion S. of the Court. 214 U. Court, allowed an the decision States-Supreme appeal on March 19 an order made Court, the Circuit that defendant allowing Shipp, Court said Supreme appeal; once tele- County, then was at notified sheriff Hamilton John- which order, all stayed proceedings said graph custody to retain son, pending and required Shipp Johnson 6 o’clock the even- of the that before appeal; determination of this action the Supreme of March 19 a full account ing in the evening papers and circulated Court published sheriff was the Chattanooga; Shipp that defendant city Galloway Matthew and defendants County of Hamilton Gibson, among others, deputies; were Jeremiah sheriff of the action fully as the were advised as well deputies Court, every informed and rea- of the Supreme conveyed from current and rumors believe, reports son to on the evening would be made them, attempt that an twentieth, a mob in the -ofthe early morning nineteenth or men,-to force an en- number of armed large of a composed Johnson county jail taking into the purpose trance said, in- him;.that notwithstanding lynching therefrom and the jail sheriff withdrew from formation and said reports customary the usual early evening nineteenth night jailer charge only left thereof guard, —defend- things -and other Gibson—and committed other acts did ant sheriff on the of said to render it evincing disposition part mob to dangerous less for the difficult and prosecute less design lynching into unlawful carry purpose effect its 9 o’clockin of March 19 Johnson; evening that about said into for others break conspired jail defendants and with him, Johnson therefrom and taking lynching purpose for above- disregard intent to their .contempt show court, hearing of this from order prevent mentioned this Johnson; that appeal pursuant conspiracy order said disregard in order show their for contempt ip 9 and 12-o’clock the said evening of this between court, defendants, 19, Chattanooga, Tenn., Shipp March excepting v. UNITED STATES 405 Opinion 214 ti. S. of the Court. others, -assembled with Gibson, broke into the took jail, by force, him;

Johnson out and lynched that Gibson was the only officerat the when mob jail in, broke and that while the mob inwas defendant possession jail arrived, Shipp but made no effort to the mob from taking Johnson prevent that defendants and Gibson jail; Shipp sym- were mob with the while pathy their official pretending perform duty Johnson, and that aided protecting and abetted the mob in of the prosecution performance lynching; that all of these acts committed defendants the in- tent their upon part utterly disregard the above-mentioned order of this court and to the court from John- prevent hearing son’s appeal.

The answers*on questions of fact consisted of a de- general nial and, except the cases of Gibson and Shipp, Williams, of an alibi setting by each defendant: up Williams admits that he was at the jail short time before and at the time mob, Johnson was taken from it by the and that he followed mob and witnessed the but denies lynching, participating in the acts of the mob.1 werp

Certain questions of law raised defend- preliminary ants the court. 203 U. S. It passed upon 563.2 was held sufficiently that the set forth complaint contempt court; this that it was unnecessary purposes of pro- ceeding to or not the determine whether Circuit Court had habeas- jurisdiction proceedings or whether this corpus to entertain as those were jurisdiction appeal, this court to questions for determine and no other tribunal; defendants, answers of oath, and that the under disavow- ' . ing intent did them. purge The case then came on to be the question heard whether were made out.3 allegations information 1 defendants, 447, of answers of see page post. For abstracts see opinion page post. Mr. Justice Holmes For etc., take appointing testimony, For commissioner see order page 471, post. . 1908.

406 Opinion of the 214 U. Court. S. resumé a sufficient of the facts admitted or following The undisputed:

January 1906, a was committed a white rape upon Chattanooga, County, woman in or near Hamilton Tenn. time all times hereinafter At that and at mentioned defend- elected, acting was the and sheriff of duly qualified ant Shipp and exer- and as such sheriff had County, Tenn., Hamilton located in charge cised full control Chat- county jail and was custodian laws of legal the under the Ten- tanooga, county of all committed under the persons duly nessee said State within laws of the to confinement the imprisonment and the defendants Matthew Jeremiah Gib- jail, Galloway and duly qualified were sheriffs appointed, acting deputy son under Shipp. Johnson, his

January arrested Ed Shipp deputies crime. Chattanooga, charged or near with the negro, was, of the samo day by Late in the afternoon Johnson order court, criminal Sheriff of the state taken judge Shipp the Nashville, he was and from there where Dayton kept was day trial, February the Johnson removed until from away Chattanooga because during period and kept lynched. of fear that he would be 25 a night January large jail The mob attacked at .of Johnson was be confined. Chattanooga, supposed where at and, were Shipp’s deputies jail, Three' the chairman of the given police, safety assistance them committee, others, taking prevented' prisoners the jail. a com- mob suggestion deputies appointed At that Johnson go through jail satisfy mittee to itself not there. reported after this committee persons Even necessary not jail, the mob sought whom yard. out of the jail force to the mob put use mob of this committee and the character dangerous find Johnson is shown able to anger being their UNITED STATES v. Opinion of the Court. for Hamilton

testimony County; of-the officer prosecuting criminal Gal- judge county; and defendant loway. time,

One other about the same the officers night, thought mob. was called out twice about there was to be a The militia a mob which sought that time to the jail protect take life. Johnson’s convened, 26 a was and the next

January grand jury special Johnson for the crime above referred to. day indicted ' was brought Chattanooga 6 Johnson February day and his commenced that the criminal Nashville trial 9 he was convicted and February court of Hamilton 'County. n sentenced to death. 13, fixed as March originally The date of execution governor 11 was changed by but on or about March - March 20. State was taken by Court' of the No to the Supreme appeal defend Johnson. the court to lawyers by appointed in Chattanooga Two were daily papers published —The an, News, The evening Times, morning paper, paper, Three competent leading both circulation. having large court to defend Johnson, had been attorneys appointed statement, which was published one of made a them reasons as to the February why Times Chattanooga He in Johnson’s behalf. depicts was not an prosecuted appeal been under, and his associates had that he the mental strain them. of the responsibility upon of the burden weight and the in a verdict of brought guilty “we, jury He that when the says whether the case question had to settle the attorneys, as the Court.” He asked Supreme would be appealed to counsel and ad- lawyers other three judge appoint trial share the and three responsibility, them and help vise with who met with the three designated, were lawyers well-known the matter. and considered for the petitioner counsel mob and the state of uprising the recent “We discussed of all judgment It was the community. present in unrest Opinion of the Court. 214 U. S.. defendant,, man, that the life of the even if the could wrong saved; that an so inflame that the would appeal public jail would be attacked and other executed perhaps prisoners by violence. In the of all us a case was opinion presented defendant, where the now that he had been aby convicted must die if his case jury, judgment law, else, he would die the act of the appealed, uprising people.”

“In view of all conditions, it was the unanimous vote ought that the law to be allowed to if Judge take its course McReynolds were verdict, satisfied if he were to .judgment it and approve pass death it.” He then relates interview had an with the ac- thereupon cused. His right appeal him, “that explained in' Court met next; that an Supreme September would appeal stay time; until that judgment that we did not see rea- sonable ground Court would re- suppose Supreme sentence, verse the and that we feared an cause appeal would ’ mob violence him.” *1# «X» «1» (cid:127)!* *X» mtf *7» (cid:127)If (cid:127)X» *lf %lf íJ5 ¿7% >7* *7» all giving “Without that occurred at jail, he said to us that he did not want to die aby mob; that he would do thought we best. He said would go over to the court house and tell the that he judge did not have anything more to say than that he was not guilty man.

“I want the to know people that the foregoing facts moved us to allow the law to take its course under the verdict of the jury judgment and the Judge McReynolds. Six lawyers settled it this after the way calmest reflection and under keenest sense of the great responsibility.

“In view of the awfulness the crime I committed, beg the sheriff and every officer peace of Chattanooga Hamilton will still County try get all further possible light, and if any anywhere knows person anything, whatever tending to show or light reflect on either guilt or innocence of the

UNITED v. STATES Opinion the Court. may I make known all defendant, beg that such that he person (cid:127) us Whittaker.” Attorney-General know to or to was secretly, On the Johnson was convicted he afternoon of fear mob from to Knoxville because Chattanooga taken to him. violence until John-

From the crime was committed after the time were excited over Chattanooga greatly son’s trial the people it, there alleged Johnson’s connection the crime as the on the well part people was great apprehension to lynch would be made Johnson. officers that attempts intense' excitement and the feeling It because might of Johnson his.being execution speedy prevent so indicted and tried. quickly that Johnson was lynched (cid:127) deputies was in extra were sworn While the trial progress around the court guards kept and an unusual number night.. jail house and at the a mob were jail against used in

Guns protecting purchased. of habeas for Writ corpus 3 Johnson filed a petition

March for the Northern Division Circuit Court in the United States of. of Tennessee. Eastern District denied, the Circuit Court 1906, March petition custody remanded to the sher- Johnson be ordering that him for ten Tenn., to be detained iff of Hamilton County, an prosecute appeal in which enable days petitioner in' said order, prosecution appeal said default with under the proceeded time to be then further within that sentence. through press.

This was order máde public his he had been since Knoxville, kept where Johnson was at was back taken conviction, hearing petition, for upon March 11. Chattanooga, John- duly by 17, presented March Saturday, application Court of United Supreme Mr. Justice Harlan son Washington, Circuit), of the Sixth (Circuit Justice States from the order to that court be allowed asking appeal an 1908. Opinion Court. Johnson’s for a 'of Court, denying petition writ the Circuit by This was allowed Mr. Justice Harlan

habeas corpus. appeal (cid:127) day. on the same notice The 18, Chattanooga published

March Times had been made. appeal for said application Clark, of the United States Circuit Judge day The same Harlan, from Mr. Justice which telegram received Court, on the afternoon of that to Sheriff Shipp, was communicated in habeas to accused corpus he had allowed appeal day, would be filed the next Johnson; transcript case of Ed for Johnson’s counsel formal by motion also be made day, Court. Supreme of appeal allowance news of Chattanooga. Times published March Harlan; in which Justice it Mr. appeal allowance things: other said,'among granting learned that the these authorities

“From all process like this acted supersede in a case an appeal according is to the au- stay necessary, No courts. the state Pending decision self-operative, the statute thorities, and no execution state author- by any there can be of the appeal ity.” States was made the United Supreme

March 19 an order from final an to that court order of allowing Court, appeal of habeas denying corpus, writ petition Circuit Court that all directing proceedings appellant be retained custody appellant pending that the stayed, the appeal. March afternoon of said 19 the fol- 1 o’clock

About to a was delivered telegraph telegram company lowing .. addressee: transmittal March “Washington, 19, County, Tenn., Tenn. Chattanooga, Hamilton “To Sheriff United States has allowed Ed Johnson Court “Supreme order, and directed all further Clark’s Judge pro-, appeal of Johnson custody retained pending stayed, ceedings v. 411 UNITED STATES Opinion of the Court. 214 U. S. Statutes United here. See Section Revised

appeal States. EL McKenney,

“James “ Court, Clerk V.' S.” Supreme Chattanooga office at by This was received telegraph 4 3.30 on the same afternoon and delivered between and about afternoon. 5 on that o’clock Mc- Judge 2 o’clock on the afternoon the nineteenth

About thé Court had Sheriff Reynolds Shipp Supreme told John- and that thereafter in the Johnson granted stay a case/ son was Federal prisoner. 4 of March 19 the following

Between and afternoon Clark, and Judge secretary was received telegram ¿bout 5 o’clock the jail, Sheriff Shipp, communicated therein referred to: of the statute afternoon, with copy C., 19,1906. D. March “Washington, “ Hon; Court, Chattanooga, Tenn. United States Clark, D.C. or- case, allowed appeal has just “Court .Johnson’s custody him delayed all further proceedings dered It will be well to call attention here! pending appeal retained to Section 766 of Revised Statutes. immediately officers state M. Hablan.”

“John (including the added proviso to reads statute referred 3,1893): , March ;. cases mentioned “Pending proceedings appeal until final judgment sections and preceding the .three any of discharge, proceed- and after therein, judgment .final or or confined restrained imprisoned the person ings against authority or or under court, in any State liberty, of his determined, or so heard and matter any State,' under such writ determined, heard and of being process void. null shall be deemed and. corpus, habeas “ or shall be had allowed nó That such after Provided, appeal Opinion of the Court.

six from the date of the judgment months order complained of.” understood Johnson

Shipp thereupon was as held a Federal prisoner.

There was published circulated Chattanooga, in the in that evening city, on March paper published about an action of o'clock, account said the Supreme Court, under ' headlines, “An the Allowed. Appeal Ed Johnson Not Will To-morrow.” This Hang reads, in part: “The in the Hamilton gallows County jail has again been Johnson, the case Ed disappointed convicted by the state courts of and sentenced rape to death. The hanging will not take to-morrow place morning, scheduled.”

The news of the action of the court was also posted on. a bulletin. newspaper

After hearing the stay says that he no Shipp made effort no orders to gave have others deputies guard the jail, night but left the defendant jailer, Gibson, there alone. county at in which jail Chattanooga, Johnson was con- on nineteenth, fined the consisted of stories, four two above and two below ground ground. Entrance to the jail was on the floor, third from In counting the bottom. the front part the on this building, floor, third was an office section. An iron door this section is, into the jail proper; the pro- led4from where, tected the part building, prisoners were kept. Johnson was confined floor. To him top reach from out- side the jail.it necessary go through'the offices;'through the iron door between the officesand the jail a proper, flight up of stairs, through a steel-barred door, right behind which was a circular door consisting steel bars heavy several inches (cid:127) which so as apart, revolved a make passage. Passing through this circular door one came into a around corridor which were cells iron doors which having could be locked. It one these cells .was that Johnson was confined.

The jail was located in a populous neighborhood and there around houses it. v.

UNITED STATES Opinion of Court. In of the nineteenth white male evening prisoner floor of the county jail removed from the upper, Chatta- Johnson and a white woman nooga, only that floor. leaving This same way same man had been removed at .the timé first Johnson.' attempt lynch 8 or About 9 that number men night entered half-past without jail went resistance the door directly There is corridor. a conflict evidence leading Johnson’s offices to as to whether the door leading jail if it was evening, was locked but locked during proper easily when mob came was down.' broken only time, Gibson was the officer there and he onwas floor with Johnson. the top resistance, but, obtained from him

Keys were without where Johnson’s lock on the door corridor leading been broken a member of the mob, cell was located had work. would not keys ax, to break .the bolts mob, sledge began

The with then door. on the corridor in actively breaking

About men-were down engaged twelve events of lynching. in all Some subsequent the door and of these men were masked. soon jail

A around the began gather crowd-of spectators ,in and it, gather mob reached and continued to after the This Johnson was taken out. crowd was until jail around or from few to 150 a variously estimated more.. on the corridor hour to break bolts door.

It took over an door and in a few went the circular through Two men then his with with arms tied a Johnson out rope. brought minutes . men or so out, the dozen brought was thus When Johnson mob him. grabbed composing county jail bridge Johnson from the

This mob took six from was blocks River, which about the Tennessee 'over the jail. a little after jail from the was taken

Johnson lCfio’clock. no inter- there’.was it is apparent From foregoing Opinion of the Court.

ference of interference attempted -consequence the mob before it left the jail, and there was none after it left.

The crowd which had gathered around the jail followed the mob down to bridge. was bridge

When the reached the mob took Johnson a little beyond an arc a around his light, put rope neck, threw it over a him beam, and swung up.

At the mob bridge actively engaged Johnson lynching him were close to a separated by space the crowd of spectators'. first time Johnson was swung broke or up, rope

‘.The and he fell. was swung slipped up second time and shot. ..He After some shots fired, Johnson again fell, and while lying on the was shot. It was ground again aboüt ten'minutes after mob had reached the until Johnson was bridge killed:

It is dangerous apparent portion community with the awful thirst for seized blood which only killing can and that' considerations quench, of law and order were away overwhelming flood. mob swept was, how- ever, at the first willing administra- attempt accept prompt of the death at a trial penalty adjudged tion conducted accord- forms, lieu of execution lawless ing judicial, violence, or writ of delay by error, but or habeas appeal, corpus to be tolerated. existing

Under then statutory provisions might be appeals court from final taken decisions of the Circuit Courts in cases, among others, where the habeas'corpus applicant to be alleged for the writ restrained of liberty violation or of some law of the Constitution or of treaty the United was States, by any and-if the restraint state court, or un- authority any State, der the further proceedings could not ;fche him be had Rev. against pending appeal. Stat., 763, §§ 764, c. 766; 3,1885, 353, Act of March 23 Stat. 437.

, In this instance an was by this appeal court, and granted ordered to be proceedings specifically stayed.' The persons who shot this man so and. were for his hung impatient blood v.

UNITED STATES Opinion the Court. of Congress the act as well as the utterly disregarded that they order this court.

As stated, the defendants the information re- heretofore facts are to be dealt with Galloway, maining Shipp, Gibson, Williams, Justice, Padgett, and Nolan, Mayse Ward. was sheriff and Gibson Galloway these, Shipp

Of two- of his .others are active charged The deputies. participa- is,contended It lynching tion was lynching. nineteenth, on the to occur and the evidence of expected Judge, clergymen the United States District some they effect that no such given others.was anticipa- it is wrong, tion. . The event showed plain remain yet might be'very great unperceived danger the adherents and peace. of-order

It crime was will be remembered that committed 25. January January and Johnson arrested That 23, he which was be suppose^ mob night jail attacked was not Johnson there. kept ascertained that he commenced, his February from that until trial day Nashville 9, from away he was taken Chat- conviction, February On his after his 11, day until March tanooga away peti- and, kept ' for habeas denied. corpus w;as tion feeling intense Johnson It admitted that must be of the. commission of the crime until from the time existed feeling mani- frequently and that this conviction, after his in Chattanooga was not from Johnson itself, although fested 'his began. intensity his trial arrest until the time officers mob and' the feeling great apprehension own wit- testimony is shown in the defendants’ violence exercised secrecy nesses, .describing the precautions Chattanooga, in and Johnson out way they in the took them him away Chatta- théy by-the kept well as fact that days be- 11, March two his arrest until day from the nooga with the execution, exception set for his fore the time Undoubtedly trial. attending wás there days three believed, on March would executed that Johnson public 416

Opinion of the Court. U. S. 11; March 20 was oh March granted until the reprieve habeas was the Circuit corpus by for denied after the petition then on the Johnson would be executed believed that Court twentieth. inflammatory of the ha- testifies reports

Sheriff Shipp and efforts the case to the beas corpus proceedings appeal by 11, out on March Court were sent newspapers Supreme of mob of that he had fear violence to Johnson. and because by attorneys Johnson’s to obtain an The efforts made appeal kept'before public newspapers. n ' Chattanooga March 16 The Times a statement published attorney to obtain an negro gone Washington ap- habeas denying from the order petition corpus. peal article said: The decidedly here are anxious to whether Johnson

“People Monday is to deáth his crime next for an suffer escape indefinite reason intervention the court at period More unrest on was an- Washington. exists than subject back to brought county. when Johnson ticipated days the recent as to his “During suspense execution ‘ for information has been feverish, desire telephones localities where information has been to be obtainable thought busy by inquirers.” have been kept News, In evening The March there published the local which con- reviewing an proceedings, editorial : cluded

“All delay community. of this is aggravating believe that Chattanooga guilty Johnson is people to suffer the law as ought penalty speedily possible. technicality If the case legal culprit prolonged no finally there will be use to with mob here if escapes, plead such crime is another committed. delays Such are re- largely for mob violence all over sponsible the country.” The assertions that mob violence was and that expected was no there occasion for providing more than the usual guard

UNITED v. SHIPP. STATE? n 214 U. Opinion S. . of the Court. of one man for the jail are Chattanooga, quite unreasonable and inconsistent with statements made by Sheriff Shipp they that were for a deputies looking mob on the next day. Officersand others were heard-to say they that a expected mob to lynch'Johnson would on the attempt twentieth. There does not seem to be any foundation for that the mob the'belief would be considerate to wait until enough the twentieth. If thé officers a mob at as expected all, they say that they did, cannot they shield themselves behind the statement that they it on the twentieth, day that had expected been appointed for die, did not expect night before. Johnson But been, no orders had given nothing had been done to' up eight night on the half-past nineteenth to o’clock protect Johnson, their, mob was, which present according statements, the next expected day.

Testimony a servant given by house -in-Shipp’s that a week before Johnson was lynched heard Shipp say if stayed the execution were Johnson would be mobbed. This was, however, and relatives of his disputed Shipp who there time. at-the Alabama,

On at May Birmingham, defendant Shipp in himself, an reported printed next morn- interview ing The Birmingham Age-Herald, said: first I was through ‘“The knew the a telephone mob I message Chattanooga office, received from The Times wires at the they county jail immediately had cut the upon their arrival. and went to quickly possible- I.dressed it, of about around jail, seventy-five found people crowd I way through most of made being disguisé. my them remonstrating into the with them jail began crowd took seized me and me taking any They up- drastic -steps: of the mob in a bathroom. The members stairs, locking me up I argued meant no violence'to me. them told me so its at-all, since the had far taken anything law against doing I did not to hurt say I am attempt course.- proper frank'to such I could. not havemade them, attempt and would an if vol. ccxiv—27 ‘ (cid:127)

Opinion Court. no as I was I have done over- good, In first could place, by numbers. whelmed United was responsible

‘The Court States Supreme that negro every I had lynching. given protection for this I For had days guarded I fourteen protected could.' n him urged me to use one.or two The authorities myself. I so, but I told them would doing land military companies I did, which jail, individually. the negro “ nights lynching before the there had been suffi- ‘Many I had looked no trouble around the guard jail. cient for n not look it until the next on the- did and, contrary, day. night no which is duty except jailer, one was on night That our as well as other counties. guard jail, usual “ ‘ my In the act of the Court Supreme United opinion remain in in not the case to our courts was allowing States I history in the of Tennessee. thing most unfortunate be in the hands of the-law, that case should put determined was as negro good tried the Johnson was.' The that jury as it in a sat box. jury ever “ County to let willing ‘The Hamilton people it became known that the case its course until would law take of for four five years by be Su- not disposed probably The would not Court of-the United States. sub- people preme I it. and do wonder at this, mit-to not “* in the United ‘These States Court proceedings Supreme I a matter of do only me to be not recently politics. appear States defying court, the Unitéd light wish to appear it, I am conscious of con- my duty. thoroughly I but did I any may am for conditions that come it, ready scious ' (cid:127) ”, up.’ that made these testimony of the state- reporter Shipp by the evidence another reporter was corroborated ments following day regarding them, on the- who interviewed Shipp in an immaterial except particular. is not denied .and Shipp for defendant looked trouble Shipp From this it appears night; that he twentieth, says, as he did but, on the not v. SHIPP. STATES UNITED Court. Opinion of the would, not mob, “and have to hurt not attempt Iif could.” an attempt made such court order of this as an necessary evidently resented

He court was for responsible that the and declared intrusion, alien of Hamilton him, “the According people lynching. until it take its course be- to let the law willing County were disposed case would probably known that the came of the United Court years Supreme for four or five would not submit to added, “the “But,” people States.” his words, In other view was I wonder at it.” this, do not of its discharge duty entered court, that because .in of Hamilton did, that therefore the people order which .the mandate, its and hence not submit to would County mob. He the view expressed took became responsible mob on the afternoon the nine- members of the several a¿d they said, referring when the lynching, teenth before interfering no business “they‘had Court, Supreme ” was signifi- His reference to the “people at all.” our business and had been candidate reélection cant, for he was a told first to mob him from the saving attempt that his the prisoner cost him and he had answered he wished .would his place, him he did. got the mob had before that the sheriff say

It to us that deputies seems- mob to lynch that the would John- attempt did not anticipate charge nineteenth is to them with night gross son on ignorance and with an conditions neglect duty matter officers, them all as and is vitally which concerned directly own It is testimony. to their absurd contend that contrary through who have been officers experiences law these had two months to the prior defendants actual passed through not know that a lynching probably did would be lynching Under the facts shown, the nineteenth. when attempted they and his assert that the sheriff a mob on deputies expected twentieth, they concede the practically allegation the informed, information that had every reason an to would made on attempt believe the evening TERM, 1908.

n Opinion U. S. of the Court. of the twen- morning early or of the nineteenth on. tieth. slightest failure to make the prepara- of this,

In Shipp’s view deputies, the absence of all of the ex- mob; tion to resist oc- the mob’s during Gibson, jail proceedings, cept action evening; hours early some a period cupying mob to make resisting any and his failure in not of Shipp effort, identify Johnson or to save members reasonable of á to part the inference disposition upon mob, justify lynch Johnson, acquiesce mob to easy for the render was was that a mob After informed lynching. Shipp in the there, go do than did not could not otherwise he he jail, it to time hindered the mob or caused be inter- at no fact slightest John- degree protect with, helped fered of this court’s and in mandate disregard utter And son. this court’s orders. defiance immediately the facts de- bearing

Let us recapitulate Shipp. fendant k judge nineteenth the night on the be- 9 o’clock About who attorney prosecuted and the tried, Johnson was whom fore house, at his saying with Sheriff Shipp communicated him, who looked jail suspicious, around the there were persons go jail. better down to the that the sheriff had suggesting city circulated generally time a report At that Johnson. lynch was at the jail a mob blocks from the He reached the only jail. lived few Shipp ,He A number were in was alone. people nine. about jail He jt anticipated of when he arrived. and outside the jail mob was inside. rushed these speak people

Without stopping floor leading of the stairs foot jail inside or six he was taken five men on. hold There Johnson who of him no The men took hold upstairs. carried firearms. released arid bathroom, in a and then was

At first he was put stood, mob was at door, where the around the corridor near v.

UNITED STATES Opinion of the Court. S.U. or four unarmed men around him. He work, with made three no or force the mob. get away , effort to use He opposing call ór After the cor help. did not to use attempt pistol in, had broken or Gib ridor been either defendant Shipp door son, which was in. When-the told the mob cell Johnson mob any did not follow or make Johnson, the jail Shipp left him. or others to rescue effort to rescue He get help Johnson but when mob left was left en locked the jail, was not up tirely free. lynchers the crowd was about'two blocks following

When building came out of the alone and un- the jail, Shipp a man go To at that time to guarded. request a‘ made that it would mob, of the identify Shipp replied members was made before the request foolish. This dangerous and occurred. shooting after jail just

A met deputy Shipp/kt special Johnson him was told Shipp before he shot. been taken out and no quiet, was and made effort to the mob had Johnson. Shipp ór militia or others. or to reach go lynchers, police after could have about jail gone he three When he reached got station police police. blocks alarm, court house al- night, was at the rung No bell Jan- lynching rung attempted it was the' though night out a crowd. No .25, big attempt and it made uary drew sent no one after or summon a He posse. others to Shipp one for He no effort to send help. made deputies. mob some after the had left the'jail is testified that time

Tt Galloway Clark down to sent bridge, Shipp no himself. go but he made effort bridge, - and at crowd around the scene of jail There law-abiding good number men.' substantial lynching character. the mob have been might assistance

That suppressing is shown the testi- if had been made obtained effort easily board of who testifies safety, .of mony chairman (cid:127) four five lynching going 'the time first that" at '422

Opinion of the Court. blocks to the jail gathered about 16 men down help'put the mob.

The militia was drilling on the night of the nineteenth be- tween 8 and 10.30 in thé a armory, well-known place, three blocks from the It jail. not called in upon was assist sup- been, pressing mob, although it had called out twice before by the governor, and was bound to call respond another him....

The governor given assurances any asked help Tor would be given, and we no have doubt he would have re- thq sponded, he would have had honor of in Tennessee n - keeping: Numerous testify witnesses that no were displayed firearms office, by the mob of their in except one n’umberwas jail rifle, a Winchester one was pistol exhibited to a being when broken reporter open: thfr-doorw^as' jnob an while the No.deputies put'in appearance at'the' . jail or Frank during lynching, ^except Jones, the.' who ap- jail but mob im- proached upon seeing the with prisoner, left,with the mediately prisoner, Matt Galloway, and'excepting ' in the crowd. who was seen there, From the time he reached about 6 o’clock, until the came, was the in only mob Gibson officer charge the jajl,. much .that evidence customarily many But there deputies several, and that nightly, present.on-the were-there were until just 'nineteenth before the night, irruption . mob. . chains were sometimes Usedas iron

Heavy additional'guards jail, doors such as that circular' to John- leading upon These locked on in- prisoners son’s corridor. were Jqhnspn these were During the-trial used on side. chains door doors. But none were on.the circular leading circular It also that John- Johnson’s nineteenth. appears cell not locked. son’s céll door was nn the jail against rifles which were to defend kept Winchester n mobviolence at the time the mob attacked the were, jail

UNITED STATES v. Opinion of the Court. nineteenth, case in the office. These were show taken out of the show case by the mob and unloaded. was in the

Although midst near the members of the Shipp mob for about an when hour he did not jail, seek to obtain so identify any information that he could them, and he testifies that he does not know member the mob. one

Only conclusion can' be drawn from facts, these all of which clearly are established Shipp evidence— only made the work of the mob but effect easy, aided and abetted it.

Gibson is involved the same condemnation though under less We think on his responsibility. belief that a mob part would to enter the Johnson on attempt jail lynch. the night of the nineteenth must be presumed. day left the jailer jail some time after six o’clock, and keys Gibson,

transferred the the night jailer. Gibson’s 15-year old was with boy him, but went to the house opera at 8.30. Gibson was than charge jail the more two hours mob, before the arrival of the and he made no effort to sum- mon attack, assistance to repel although he necessarily the must have known that he alone could only offer slight resist- Baker, woman, ance. Mrs. a white on confined the same floor with Johnson, Gibson, "testified that soon after arriving at the doy/n jail, gone when she had stairs to aget written, letter said her that a mob was and directed coming, her to to her go mob was room, and when the at the came to her door jail told her that no one would hurt her. Gibson admits the last statement, but denies the first.

He testifies when he heard mob he the went into the cell, floor, located the and sat down top on a hospital ,as mob got and as soon the he lounge, upstairs handed over keys, including his and the pistol key to them the door of not to use cell; try Johnson’s that he did the or to pistol, resist floor by force; mob he could top gone have into the and back of through yard the kitchen but he jail, TERM, 1908. S. 214 U.

Opinion of the Court. some ten the mob so, although no to do it. took (cid:127)made effort through the to break they he knew were there minutes after he just jail proper; door and'the between outer door rescue the mob or made no effort at all to resist gave up men jail; although after Johnson left one work, recognize any except- were bold their he failed Nick Nolan. ing

n . was the time Johnson was a sheriff from Galloway deputy n 'convicteduntil bythe.sheriff and was told after the lynching, did there, and down bridge,to-go the mob had left after criminal court dep- He was Johnson was then deadff so, but But madé arrests.. criminal uty, papers served when except jail keeping prisoners he had'no charge or the j with the ail had no connection He officially assigned. so from Knox- brought Johnson at after prisoners timé he testified that of March. He tenth or eleventh ville on the made duties.that attending.to while nothing had heard Eagle member was a danger; Johnson was him think 7.45, nineteenth, evening Club, and"was there any impending about- anything heard thereto having prior was after the lynching His first information of lynching: he met the There at once. when he went to o’clock, jail did, but which bridge, him go who asked sheriff, .to acquitted must be Galloway We think Johnson dead: information. .the charges case the' respect .to consideration of us brings This as members mob are charged who defendants, six in its action. participants testimony to their Nolan, is direct there

As Williams to not-think that the evi- and we do lynching, in the participation so. is sufficient to do conclusion on weaken that relied dence is offstatements testimony there Mayse, Padgett As to the morn- of the nineteenth and on afternoon part their on. their which, believed, if demonstrates twentieth, ing . the evidence analyzed examined and carefully haveWe guilt. conversations, to these witness impeach principal *. SHIPP. UNITED STATES the Court. Opinion'of it as convinc- but we cannot alibis, accept also to make out ing. and Ward fails on the case as to Justice

We hold that evidence. record admit of question

In our it does not opinion result of riot was the direct opposition lamentable that this only It was not law this court. administration to be such. but was understood mandate, of our in defiance United States was called upon The Court Supreme to enter such orders its functions and decline abdicate because of the demanded, danger in its occasion, judgment of lawless violence. It plain their an outbreak defeat was the lynching created this mob and led to this that what delay required of its members to submit to the unwillingless delay by defeating intent to for the prevent appeal. from the defend- of the foilows hearing necessarily appeal law is custody in the and if the life of one acts, ants’ becomes a justice of a mob the administration mercy at the stay of execution granted When this court mockery. him until duty it became its to protect Johnson’s application its mandate issued should be of. And when case disposed of those defied, guilty for his protection punishment such must be awarded. attempt defendants-Galloway,

The rule will be as to the discharged as to the other defend- Ward, Justice and and made absolute ants. Ward, Galloway, Justice discharged

Rule defendants Gibson, Wil- Shipp, and made absolute as defendants to issue, Attachments liams, Nolan, Mayse. Padgett on'Tuesday, returnable June l.1 took no argument Moody not hear the did Justice

Me. in the of the case. disposition part on June on the return attachment For proceedings p. 483, post.

see

426 ..Peckham, JJ., 214 McKenna, dissenting. U. S.' White and Mb. Justice Justice'-Peckham-, whom concurred Mb. with .White Mb. Justice McKenna,-dissenting. and

I of this judgment, dissent and opinion cáse; requires I.think its a statement importance 'In criirie' my reasons dissent. which regard per- negro there the mob can petrated upon person all intelligent one I it that and respectable but. take opinion. it was ágree citizens who of the facts cognizant are its extenuating to relieve murder, one circumstance without however, is, question, atró'cious character. The important made the-charge he first, is-guilty as to the sheriff —whether filed in this him in the iriformatibn against proceeding. such a which information, as upon contained charge, sheriff, taken; is' that the has been vast of -evidence amount for the together many purpose other persons, conspired therefrom taking county jail breaking entering the intent to hirn, with lynch in order to Johnson, negro the order this disregard show their thereby contempt hearing appeal. court and to prevent me the con- with of the case leaves A consideration careful con- evidence-that is-not one that there particle viction or.existed the part into been entered had ever spiracy is not alone that evi- him. It against sheriff, charged .the as. me is it seems to there favor, in his dence but preponderates rises, none that certainly him, evidence material no evi- founded merest suspicion, than the higher possible upon wholly inconclusive, in themselves which are facts dence as with-guilt. His. consistent and just innocence of the highest. to be that witnesses by many is shown character as a man citi- stands better in Chattanooga Not a man is not a There evidence particle he does. zen than citizen honored and respected an He has lived contrary. be- official positions honorable has held 1874; since city is man, as an yet, arid holds, now old one that- he fore the liable to serve court and of this of á contempt adjudged guilty UNITED STATES V. Peckham, JJ., McKenna, dissenting. White U. S. insisted disgraceful because,- imprisonmént a

record, resisting he did not as much towards lawless mob do as this to have says done. ought was eonvicted was

The crime which Johnson perpetrated on on 23, 1906, a and the schoolgirl January twenty- white fifth of month Johnson was arrested near Chattanooga that being After he was crime. arrested charged the taken of the State Criminal sheriff, Court, the order to by where he was until the jail Nashville, day-of the at his kept 6. was in (cid:127)trial, The sheriff active his February intelligent No safety efforts to the the negro. adverse criti- preserve cism is can be made' his truthfully upon conduct time. At the time of arrest of negro the there is no con- in very tradiction the evidence that there was great excite- ment a evinced to Johnson at A disposition lynch once. it is crowd of over surrounded the thousand, said, jail of'January 25, where Johnson was to night supposed be,-but' in was not and the jail, deputies prisoner sheriff (the having Johnson himself, custody, sheriff was taking him Nashville) to exhorted mob to disperse, and finally of jail'on were sent into the behalf people mob, and went to that Johnson through it themselves was satisfy not there. The mob On 26 January thereupon grand dispersed. jury indicted, was convened and Johnson was and on February 6 brought Chattanooga he was from Nashville, and his trial was the criminal day commenced court. On Febru- ary 9 he was convicted sentenced death. No appeal was lawyers- appointed -by taken court to defend him from sentence. said lawyers they feared the if lynched would be such an prisoner appeal taken.' On he was from Chattanooga conviction taken to Knoxville, sheriff, of the be safe custody personal any pos- No mob, however, sible mob. violence appeared, The judge who nothing attempted. presided was' at the trial conviction, after his told the negro, sheriff entirely would be safe at prisoner Chattanooga. After the 428 1908. dissenting. S.

Peckham, McKenna, JJ., U. White and to dis? and seemed very greatly trial the decreased excitement in the Of this is no contradiction entirely. fact there appear corpus for a habeas On 3 a writ petition evidence-. March Northern Circuit Court was filed in the United States on the part District of Tennessee Division of the Eastern the Cir- denied, Johnson. On March the petition custody that Johnson be remanded Judge cuit ordered Tenn., (at Chattanooga), County the sheriff Hamilton in which days, in his for ten custody sheriff be detained from the order, Johnson to an prosecute appeal permit such further appeal proceedings default prosecution its sentence. Tennessee, under to be taken the state court was taken back Johnson Immediately after decision Everything quiet March arriving there Chattanooga, of excitement, any no of nor intention was evidence and there sheriff the The watch negro. kept with whatever to interfere him- thereafter. He was days for' several of sentiment public of with manner through mixing the all city, about self going lead slightest evidence,that not the would crowds, and found any assault was intended man to believe reasonable any canvassing sheriff stated that he did some Johnson. The upon and was during time, around election campaign in.his no excitement and establishments saw manufacturing the no the whole time. There during case heard talk to his sheriff, knowledge the that came all, says nothing at and careful this time that would have during put prudent guard. on his man of 19, day lynching, March the the the night

On preceding of of a total lack of evidence thing any same was noticed the of of an intention to commit any or evidence any excitement of from the to the nineteenth Thus eleventh violence. any back time that Johnson was from brought March—from the United Judge Clark, after Chattanooga, Knoxville his fox habeas petition corpus States denied judge, had —the nothing was done which would entirely tranquil city most any man, have even the and pru- caused circumspect v. SHIPP: UNITED STATES JJ., dissenting. Peckham, McKenna, White was intended. dent, -During violence any believe March, there had from the eleventh to nineteenth time, facts. No rio at because these guards jail been extra no threats against jail had been made demonstration Clark, Judge heard. anybody made prisoner Chattanooga been a since deceased, now who had resident he in'this had 1883, was a witness proceeding, stated.that any as to there suggested being danger anything never heard in his case. stay granted Johnson if the execution absolutely said: “It strikes me it was absurd in Clark Judge of what occurred.” The was also actually judge view asked said at the trial of the habeas anything corpus whether pro- State, ceedings on or on part representatives him to one, caused any mob vio- part apprehend none man, judge said, to this and the the least/ lence The his secretary had asked on the day also said that he judge way Augustine on his to St. if Chattanooga he was' at he had or hints violence any suggestions heard dissatisfaction him that he situation, secretary and the told had not. he called some had, said, March up On de- one. out that attorneys and found appeal fendants’ had allowed by the habeas been the Su- denying corpus order States, United and the judge Court of the preme said all attorney day that he would there office would said night. judge for Florida that the reason he leave had known that that announcement was that he John- made to this, to another and that he jail prior son been taken jail when the for petition out of the Knoxville brought was him (Judge Clark). before was brought up habeas corpus Clark, said, that, “on of account after “Therefore,” Judge I have .telegram, Harlan’s would ordered Mr. Justice getting him . was desired send . . jail, man where it any or great real dan- if it-had prisoner appeared I am sure that would quite me—I that had ger appeared —if or motion, own would have called my have made order he make an attorney suggested application -up JJ., Peckham, McKenna, White dissenting. 214 U. S. his removal.” The following question was also to the put “Q. I judge: Judge Clark, will ask if you attorney whom or you any talked other attorney the defendant or other Johnson, any you person, suggested the necessity or even the propriety taking steps your protect prisoner, I the Federal Johnson? A. never prisoner heard the remotest I think and did not the man was in suggestion, any I danger. it was the noise that is thought simply generally^made peo- who reall to do ple expect anything. do ... I I no will- had heard that I say suggestion-and had no was any that there on hand thought danger anywhere.” If had been -danger there evidence the possibility thereof, not the attorneys negro would who were en- in the of their habeas prosecution gaged corpus proceedings and asked for judge, have the removal of the responded not ask for jail? They to another did as is negro because, evident, they general shared the opinion there perfectly that the former had danger; danger passed, was no and there for further action. was no reason kind of evidence was given by The same the most respect- community editors, in the railway able men reporters, agents, — men, clergymen, lawyers, doctors large and busi- employers citizens of the and also men, chief place, ness police Not one of them city. apprehended danger mob All that time. of these men were cognizant violence at of thé attempts lynching facts as to as to the prior high .and which existed-at that time. state excitement But they all entirely such excitement had agreed that and that passed least to be danger was not the apprehended. there One of resident, Mr. Boswell, Rev. ministers, these been a fpr' years, four and was a city nearly member of what is óf Union the Pastors’ Chattanooga. termed He also a' from the- Pastors’ Union to delegate fraternal the Central delegates Labor labor League, composed every organ- and, a member of the Pastors’ city, ization .as Union, the Central Labor League as. a'fraternal cooperated *. SHIPP. 431 UNITED STATES McKenna, JJ., Peckham, White dissenting. on an a week average-twice He also delegate. preached time-of'the-, .He said that at the city. various shops was intense and that it subsided with feeling arrest the public most of during trial. He was beginning present he no talk that the trial was over found would trial. After be an might him attempt cause to apprehend that.there on had, said, He preached lyncb prisoner: sermon the first was made and had taken the attempt after lynching a violation of did good that it was citizenship, position all, yet his words all these opportunities mince .at feeling-he said that there was nothing know the public state on his so or, would arouse far as he apprehension, part, that man, on the see, any could that there was part prudent any And this, too, threatened.' after it was known lynching had allowed' the ffom Clark’s Judge ’-thiscourt order. appeal of the other was óf The evidence the sarniecharacter,-' witnesses were unanimous the wit- expressions opinion there case, of "this was no hearing ques- nesses upon there of mob violence to be danger tion apprehended up moment; and counsel for very yet last Government have .the guilt of the evidence of the as regarded it sheriff part if that he acted as he did not apprehend any conspirator no violence, that,he took steps prevent day was any any No one else had idea that there danger question. was for it. The men who testified looking no one else no of mob violence were men who was apprehension there (cid:127) at that the state time. cognizant public opinion specially insisted that it was the duty the Government counsel n guarded, day by sheriff to have had the extra jail of his so was evidence béing- and that failure to do guards, n guilty in the information. Al- alleged conspiracy mórning in the papers the fact announced though the allowance of the had been .appeal the nineteenth/that day no court, during there granted evidence of it and no hostile demonstration suspicion of excitement any nó fact going ánd- evidence prisoner, Peckham, JJ., McKenna, dissenting. White TJ. S. show of a mob or formation the least projected probability of any or that cir- lynching any night. Under these attempt cumstances, on March sheriff half- 19 the went home about at leaving things six in the same as past evening, jail of as judgment, usuál. matter the sheriff should Suppose, a have as if this almost universal sentiment as to the proceeded all or erroneous, founded, absence of not well danger of he that as matter sense should have had the good jail is it he can that be convicted of guarded, possible properly while this agreed he with sentiment and acted contempt public At went any rate, usual, he home as and was accordingly? his at desk his home when the sitting sounded telephone some time about nine o’clock and he recognized, upon going of it, General, Whittaker, voice who Attorney asked him what was on at if he knew and the sheriff going jail, General said, “No,” said, and the “You had Attorney better go could, there.” He went down there he rapidly down of way walking rest, most for the running rapidly and, the care of a for a being difficulty under physician he was at stomach, much exhausted.when he the jail, arrived a were large assembled, many where number men them armed, they immediately possession surrounded and took Many of him. of them masked were and were waiting their comrades to down. bring Johnson The sheriff expostu- with these men asked them lated and remonstrated from desist, they behind, when seized him. He seized he that he did know but that they going testified not were to do him back for violence, some and he reached his which gun, he him They his assured did not they intend pocket. him and him hurt then seized and rushed the stairs up him and carried into a where he was a hallway, prisoner kept until Johnson jail after crowd had' and left the with got him. years time, The sheriff was at this sixty-three age and, condition, any his unable event physical account have, any' resistance. There ten great offered were least armed, or him men who fifteen of the around and the v. SHIPP. UNITED STATES ' JJ., dissenting. McKenna, S. White Peckham, U. more in also armed. the crowd were sequel proved many Whether the looking Others were back on. sheriff standing gun have his and taken might quicker been with possibly certain,'from of. is not them, out and shot'some pocket or of even ten fifteen to one evidence, but odds are he kill, attempt kill, and that did large, somewhat complicity is no evidence whatever of these .them no evidence miscreants, certainly contempt even an official extraordinary court. seems most It tome can found guilty under these circumstances contempt because fact he did not resist to death. sheriff, has based on also been made

Argument way fact on his did not jail the house to have been militia, out of which said company seek ask for room, in its drill as- night that engaged drilling such would may at It that immediately jail. sistance the have, of spur on the acting but he was course, been a wise the to the immediately jail, a call to come and under moment aid of on, seeking the of what was going he was not sure immedi- obtaining to succeed militia he was certain the fact that he did not any rate, the mere assistance. At ate to show no whatever of is evidence that think it or to do it stop I think the conspiracy was criminal. his failure to seek its aid evidence to absolutely without sup- is information part it. port . sheriff did not .otherwise do is, however, argueid

It that crime, infamous have to prevent-this all that should done he this, As evidence is guilty contempt. and hence that he 28May between to the interview fact Government-refers On that Birmingham. reporter sheriff and newspaper had been received of hews interview, at time of the day, to show cause certain ordering persons action this that the Sheriff said Shipp In this interview as for contempt. message; through'a telephone he of the mob knew first crowd, his way through he and made jail went taking drastic steps against any remonstrated them vol. ccxiv —28 190g. JJ., dissenting. and McKenna, White

Peckham, him in a bath- him locking him and took upstairs, They seized no vio- they him meant of the mob told The members room. ' anything doing with them argued against him. He lence course, its law had so far taken proper all, since “ I say am frank to this statement: went on with interview have and would not them, hurt attempt I did not I In first could if I' could. place, an attempt such made by numbers.” I was overwhelmed no good, have done any of the no to hurt attempt he made statement that sheriff’s could, if he such an attempt not have made mob, and would his in which he said statement, taken with the rest must be it, no good he could have done “in the place, first is no' There doubt by numbers.” as he was overwhelmed man at the He was one against, of that statement. the truth and as- men, or more resolute armed ten fifteen very least, and surrounded negro, getting for the purpose sembled and there jail yard, crowd aby larger still not. 'Their subsequent were unarmed. slightest evidence is true, It guns. unnecessary supply action shows an his and fired at the gun have drawn sheriff might' possibly in killing jail came into succeeded masked men but it is mob, the members of the one and more of perhaps then, have done no even be- absolutely good that it would true him could have struggles with such odds cause actually pGssibly in his overwhelmed only being resulted would not have been saved. The killed, negro while the an at- which.to'repel no vantage ground sheriff occupied chance, would a good tack his first assailant stand and where only him. He was not the power killed the being was also custody,' any him in but he without mob who had one. bystanders for Those who were knew to to aid. appeal the by him, yet they further and difficulty appeal sheriff’s without interfere or else the use- recognized feel no to seemed'to desire any at time of effort. lessness that for with- the Government showed The evidence witnesses sheriff came to the. running out the jail contradiction UNITED v. STATES JJ., dissenting. McKenna, Peckham, and White the through crowd, he shoved could; pushed fast he enclosure, the inside of and entered the never the men aside moment he arrived at the door jail and the all, at he stopping or five men and seized four overpowered, was set and upon crowd, and with the trying to to expostulated he talked to if and to them- When asked get stop. reason with them the said, show of the Government force, sheriff made any witness to,” question have chance the “Well, any being he didn’t he but “Well, did, yes, he was over- said, the witness repeated, “ “ to him,” he their efforts hold by try- resisted powered,” Curtis, (Evidence to one away.” reporters ing pull for Government.) and a witness Chattanooga Times, on The Mr. Chivington, another and Gov- reporter, The evidence of effect, the same that' the sheriff was witness, ernment and carried four or five men and overpowered, up- seized mob not to lynch negro. stairs, appealed and that time, as the sheriff was just said this The witness also he saw the sheriff “like he was seized, .imagined the witness move but before he could further any to draw going pistol, him carried grabbed or six fellows him there were five stairs.” bodily top

- All not offer from a single an man aid time there nor him did seized, any saw them- the sheriff when aid, outside the sheriff any alarm ask spread.any he knew it would be not ask it because useless he did says there, and that every such any persons make appeal to. overwhelming and the numbers situation, knew one there " jail. surrounding premises of the crowd the sheriff course, as the witnesses heard expostulating Of harm no to the negro, crowd to do if begging one been disposition part the least there so was quite to do his aid thé open opportunity come plain. taking negro, sheriff after the- appearance him the wholé occurrence is stated in upon

and the effect of evidence, which-there contradic- slightest about (cid:127) 436 JJ., dissenting. McKenna, and IT. S. Peckham, White in a faint. He was excited, He was and almost tion. greatly I God! witness, “My as a said to the did sheet, as white and I of the inter- He also said the course could.” everything “' God! ruined me/ He witness, My view with the have man who to ready collapse. of a had all the appearance he His voice was in You what said. barely could understand This is the evi- tremble, like a filled emotion.” voice with yet is nowhere And Horan, of Mr. it contradicted. dence and in such a sheriff should claims that case the the Government of this he did not be court because contempt imprisoned overwhelming force, to an way in the of resistance do more than else what was with more clearness one any did not foresee nineteenth, take measures on the of the night to happen It seems me safety negro. accordingly guard court is founded this view. that the upon opinion this is not a to whether Then, question possibly again, men, under more than he did. Some sheriff have might done circumstances, attempted such have earlier might perhaps ceased resist- would have guns, only draw their possibly really But when one is overpowered, ance their lives. futile, if not force makes efforts resistance foolish. superior men man still be abso- might Other less than this did and do question innocent of The is not whether lutely a contempt. old man did could have everything this invalid he possibly his life in extremity and at risk of done last up of his To from con- sheriff. be free duty performance sheriff, court was necessary not that the should this tempt by the at the of his own life peril have stood prisoner have sacrificed it in an he should unsuccessful attempt mob odds to taking pris- prevent overwhelming sheriff, of his such custody- oner out under circumstances case, charge as are detailed should from the freed of any if he with others guilty contempt conspiracy . honestly if he did what lynch prisoner, fairly he could in the of remonstrance exhortation way pre- in the lynching. mob, vent Being power was.not v.

UNITED STATES Peckham, McKenna, JJ., dissenting. White and called to sacrifice his in a upon desperate life at- hopeless his odds, save tempt prisoner against such appeared case, this or else take risk of being a con- adjudged guilty of court. But what could the sheriff have done more tempt than he was in did do? That he of these men is ab- power solutely without contradiction from the If he evidence. had his full of he could have with nothing done pockets pistols them, shows, as the by the moment was seized evidence he crowd. His statement that the mob took of the action because court, of the writ thought allowance of error which involve that the mob not stand might great delay, and would for is that, of an the sheriff as to but expression opinion reason for the He does not did not lynching. pretend the action. In reason— justify all probability utterly of the of this dislike interference court —a reason without to those who entertained justification disgraceful sheriff be convicted be- it. But the cannot surely properly in his the sentiments which cause he stated truthfully simply is not a crime to entertain an actuated the mob. It judgment what mob under these circumstances as to moved a opinion an offi- convict my judgment, nor can this properly, his belief that the mob acted- because he stated contempt cial as ex- reason. Nor disgraceful opinion, from this most con- of the sheriff of the guilt the least evidence pressed, or of to com- which he is charged, conspiracy with tempt mit it. for no said he had looked

In the interview also the sheriff for until did look it contrary not trouble that on the night, and day was the one will the next day. the next be remembered It of the state the sentence execution into carrying appointed the sentence without and when the should court, day pass said afterwards carried into the sheriff being execution But was the next there be trouble. might apprehended be would founded upon day, apprehended trouble of time was an of that there abundance day, happening What- then be attempted. what might which prepare 438' McKenna,

Peckham, JJ.,-dissenting. White and 214 TJ. S. which thought delay might sheriff have may ever the court, or his to this however ill-founded appeal caused delay, his length thoughts to the probable opinion even tending furnish no evidence to show that on the subject mob he would do or that” not what he he conspired when the exigency his arose and the prisoner could protect may He have there would be thought time for action arrived. delay, and for that reason did wonder the great people this, All however, to submit to it. is mere evi- would.hate day, what a mob do the next might as to it was supposed dence already, I have no is, as evidence conspiracy but repeated mob, aid the none that he was on the sheriff to part resisting attacking in not up of a guilty contempt futile his life attempt protect of imperilling point a. sheriff that the is held to a de- being It seems to me prisoner. beyond any limit, far reasonable gree responsibility in the contained record. evidence justified for a conviction of the argument Government based its to, interview above referred very largely sheriff upon I have on at some Strike out length. which commented whatever on to base the nothing is which- really and there a claim conviction. For given for a the reasons shadow I. interview is insufficient as evidence wholly itself think I of the^ think the rule to show cause sheriff, and guilt him. I also as to think the evidence is discharged should the jailer. which to convict too slight upon Mr.. White say Justice and Mr. I am authorized in this dissent. concur Justice McKenna court, under order of the see proceedings For June 483, post. page STATES v. SHIPP.

UNITED U. S. Shipp. Appendix v. to United States for moved leave to Attorney General May 28, 1906, On day the same information contempt file an order was made. following of America,

United States Complainant, > Term, October v. Shipp et John F. al. of counsel for of Mr. General Attorney Moody, On motion is to file an information hereby granted leave complainants, herein. contempt motion of the Attorney The information referred to on the General and the order as follows:

In Supreme Court United States. America, The United States complainants, v. Mat Jones, Shipp, Frank John F. Baker, A. Galloway, C. T. thew Frauley, Taylor, Fred George B. Brown, Gibson, Marion Jeremiah Perkins, Clark, Term, Joseph “Nick” October 1905. No. 26.1 “ ” Nolan, Warner, Original Sheenie Luth er

Williams, Pool, Paul William Beeler, Marquette, William Claude Powell,

Powell, Charles “Bart” J. Jones, Justice, A. John J. Cart Henry wright, Cartwright, R. F. May, William Frank Padgett, Ward, Varnell, and Alfred John

Hammond, defendants.

Information. the Justice and the Associate the To the honorable Justices Su- Chief of preme the United Court States: of by Moody, the United of America William come States H. Now Attorney-General, their and in behalf inform the as follows: their 1 1906, Term, 1907, 5, Term, 12, No. No. original; October October Term, 1908, 5, original; original. October No. TERM, 1908. U. S. Johnson, Ed a cit- day February, of one

1. on 11th That the of and citizen of the State States and a resident izen of the United descent, of person of African convicted Tennessee, a colored was County, Hamilton rape the criminal court of held the of crime Tennessee, of in the State court there- Chattanooga, said, the city of penalty the Ed Johnson to suffer the of death. upon said sentenced thereafter, wit, day March, 1906, of on the 3d before to That Johnson, petition Ed of the said a the set for the execution date by Johnson, petitioner, Ed corpus, the said signed of habeas writ Circuit Court for the Northern duly presented the United States was Tennessee, alleged, in which it was Eastern District Division the Ed in the upon that the trial the said Johnson among things, other County in of Tennessee for the court of Hamilton the State criminal convicted, petitioner said had rape, for he had been crime of which impartial jury, and been denied by a fair and been denied a trial of the fifth and sixth amendments to the of counsel violation aid Constitution, petitioner rights said also denied and' that was Federal amendment to Federal Con- him under the fourteenth secured to day March, 1906, stitution; thereafter, wit, on the 10th corpus for a writ of habeas came application of the said Ed Johnson said Court for Eastern on for before the United States hearing return, answer, replication, petition, upon of Tennessee District orally open court, of witnesses upon testimony given counsel, said Court ordered that said after Circuit argument dismissed, corpus prayed that the writ of habeas petition be said It was further ordered Circuit petition said be denied. said be remanded to the petitioner Court of United States County in said said Hamilton State custody of the sheriff of custody period in his for the Tennessee, said sheriff to be detained petitioner prosecute appeal an said days of ten in which to enable appeal an from order, be so and should lie from should he advised said appeal order, prosecution an within said and in default said proceeded further the court the State time to be then sentence; thereafter, -wit, day the 17th its Tennessee under Ed duly presented by the said March, 1906, application an justice Harlan, of the Su- M. an associate Hon. Johnson John Circuit, States, asking assigned to the Sixth of United preme Court Supreme Court of the States appeal United an allowed States rendered the Circuit Court United judgment of Tennessee Division of the Eastern District for the Northern Johnson's, his, application for 10, 1906, the said Ed denying March corpus, aforesaid, appeal which on the same said writ of habeas v.

UNITED STATES (cid:127) Appendix. 214 U. S. Harlan; thereafter, wit, on the day duly by Mr. Justice allowed duly Supreme Court March, 1906,a motion was made the day of 19th Hewlett, representing counsel for and by Mr. E. M. of the United States Supreme appeal to the Johnson, allowing Ed for an order an

the said of the of judgment Circuit'Court of from the Court the United States District of of the Eastern for the Northern Division the States United his, day March, 1906, of the Tennessee, denying the 10th rendered corpus, mo- for writ habeas which application á Johnson’s, said Ed Supreme of the United States by the Court thereupon granted tion was by the the words duly entered Chief Justice order made and and an following, and wit: figures Johnson, Appellant, Tennessee.'

"Ed v. State “ appellant, for the is Hewlett, M. of counsel motion of Mr. E. On appeal from the Circuit Court the that an the court ordered be, the Eastern District of Tennessee and same for the United States allowed, proceedings appellant be hereby, against that all custody appellant pending of the said retained stayed, and the appeal. Fuller.” Mr. Chief Justice

“Per in the fully case entitled appears All of which more record Tennessee,” on file in The State “Ed-Johnson, Appellant, v. this court. clerk of office facts, informed of following court is further honorable This 3. Attorney-General solely .upon and stated in- alleged which are formation belief: day wit, March, 1906, 19th day, same the said That on the order, aforesaid, of said the clerk of making entering after duly by telegraph notified Supreme Court of United States County, in of said Hamilton the State of Shipp, sheriff F. John order, aforesaid, said Tennessee, making entering thereof, wit, proceedings all the said Ed the contents stayed by Supreme the said and that ordered Court Johnson Shipp, said Ed the said John F. as sheriff custody of the Johnson by him, the County, Hamilton should be retained said John of said appeal Supreme of said Shipp, pending the determination F. Court; Shipp the said F. telegram informing that said John the action by said sheriff before 6 of this honorable court was received o'clock on 1906; March, day that in addition to evening said 19th allowing of this court in by telegraph notification of the action said Johnson, Ed staying against the said as afore- appeal proceedings said, published city Chattanooga and circulated the said there day March, 1906, the said of in 19th. evening papers the a fullac- Supreme of of Court the United in count the action the of States allow- stay an-appeal and a of further ing granting proceedings part, on the of until said Ed the the state courts the Johnson determination of Supreme the Court of the United appeal said before States. all times herein mentioned the during 4. That the above-named

defendant, elected, qualified, duly was the Shipp, .John F. and acting County, Tennessee, in of Hamilton of and sheriff State as such county had and full and of the ‘charge jail, sheriff exercised control city county, in the of and Chattanooga, legal located said was the custodian, persons of duly under the laws Tennessee of all committed county under laws of said to im- said 'the State confinement and jail; within that the prisonment defendants, said above-named Frank Jones, Galloway, Baker, Taylor, Matthew A.' Frauley, C. T. B. Fred Brown, Gibson, Perkins, Marion Joseph Clark, Jeremiah and George them, were, during mentioned, of all times and each herein duly appointed, qualified,'and acting deputy county sheriffs of said State; deputy and said sheriffs and said sheriff and each of them of day the hour of 6 on the evening’ before o’clock said of 19th 1906, fully and March, were advised informed the action taken Supreme respect Court appeal of the United States with forth; Johnson, said Ed as hereinbefore of the set that the Ed said prisoner confined and then and there restrained of his Johnson county jail liberty custody the said and the lawful and control of and deputy duly said sheriff said sheriffs under a commitment issued County, out of the criminal court said Hamilton pur- and under and to the orders of said suant United States Circuit Court for the Division of Eastern Northern District of Tennessee and the Su- aforesaid; of the preme Court United States made and entered as that' deputy and said sheriffs day March, said sheriff on the said 19th having been advised of the action of Supreme after Court States, aforesaid, were and informed, every the United to reason and believe, reports from current rumors to them and each conveyed them, attempt an day would be made on the evening of said early morning following day, in the a mob of a composed men,' county to number armed force an entrance into large the said purpose therefrom jail taking and means violence unlawful death; Ed him putting Johnson and to that notwithstanding the said conveyed which reports said rumors said to said sheriff aforesaid, deputies, jail Ills the said said sheriff withdrew from said day customary early evening said usual and guard only wit, charge night jailor, Deputy left in thereof Sheriff UNITED STATES v.

. S.U. Gibson, things, and committed other acts and did other Jeremiah disposition part of said sheriff render purpose on the evincing carry prosecute, and less for said mob dangerous it less difficult wit, purpose, lynching design its unlawful into' effect Johnson, planned as aforesaid. designed said Ed thereafter, to'wit, at about the hoür o’clockon the even- That 9of March, 1906, city at the day Chattanooga 19th of the said ing State, defendants, above-named John F. county and in the said Taylor, Jones, Galloway, Baker, A. B. Matthew C. T. Shipp, Frank Gibson, Perkins, Brown, Marion Frauley, George Fred .Jeremiah (whose complainants, first name Clark, “Nick” Nolan true Joseph (whose complain- true first name is to unknown), Warner “Sheenie” Williams, Pool, Wil- .ants,unknown), Marquette, Paul William Luther (whose J.Powell, Beeler, Powell, “Bart" Justice Charles liam Claudé Jones, complainants unknown), is' John A. J. Cart- first name true Ward, Henry May, William Frank Padgett, Cartwright, R. F. wright, them, a Varnell, Hammond, large Alfred and each of and and John unknown, complainants are to persons of other whose names (cid:127)number combine, con- willfully, unlawfully, and then and there did wrongfully county jail and enter the said confederate, agree and to break spire, person of of the County purpose taking for the therefrom Hamilton of Johnson, him, Ed lynch murder the said to and the said Ed Johnson by entertained the said de- then and there and the intent with them, contempt disregard of to and for fendants, show their and each court, entered, made, issued, published, and of honorable order this the honorable aforesaid, preventing for this purpose and the as Johnson, by court, this appeal of the said allowed hearing the from Ed preventing' the said Ed Johnson purpose aforesaid, as and the by to him the Constitu- right a secured exercising enjoying from and States; prosecution and that in futher- laws of the United the tion and aforesaid, into entered as conspiracy, unlawful made and anee'of. said order, said order contempt disregard and for the in to show their and from court, prevent hearing in this court and order of this honorable did then and of them there said defendants and each appeal, said described, particularily as and commit the acts more do the things follows, wit: evening of the on the between the hours of and o’clock That -9 county city in the day March, Chattanooga, at the 19th

said the aforesaid, persons, including number of above- large and State the defendants; exception Shipp, the of the said John F. named with Gibson, county, deputy the sheriff sheriff of said and said Jeremiah jail, thereupon in county, vicinity bounty said the said and assembled TERM, 1908. jail said with entered and force unlawfully wrongfully said mob and in the said Ed Johnson was then cell which open and arms broke and violenceand prisoner, and with force and confinedas a there Johnson, him, Johnson, Ed took said him, the said Ed ofwill hanged him, distance therefrom and jail point from a short said dead; that at the time Johnson, by neck until he Ed said aforesaid, only person charge jail, said said mob entered Gibson; sheriff, that while the deputy said Jeremiah thereof was the sheriff, jail Shipp, said John F. ar- possession mob of said was.in prevent mob or no effort to said jail, at said but made rived jail; Ed Johnson from said from the said taking members thereof Gibson were truth Shipp and the said Jeremiah said John F. and, pretending per- said mob while sympathy and in fact pro- duty county affording and State form of said their as officials in their Johnson, then and there lawful who was tection to the said Ed Shipp the said Jeremiah Gib- custody control, the and said John F. in fact aid and abet said mob son each of did in truth and them performance of their prosecution and members thereof in the Johnson, the said'Ed as afore- lynching murdering unlawful act said; defendants and each all this time above-named during Gibson and Shipp and said Jeremiah them, and the said John F. Supreme Court knew that the each of them then and there well made, entered, published the order in the issued United States had forth; all of said acts were then and there manner hereinbefore set them, and the other mem- and each committed said defendants complainants unknown, bers are with the of.said mob whose names them and each of there had and entertained them intent then and of this contempt disregard and utter the order honor- show their aforesaid, prevent in order to able court made and entered' Johnson, said appeal Ed which hearing honorable court oftthe allowed, appeal perfected had been as aforesaid. the; America, herein, Wherefore, complainants 6. States of United Attorney-General, respectfully request this honorable their through in consideration of the committed the above-named acts forth, them, of as hereinbefore set it will issue defendants each upon each of this court to said defendants and direct the marshal serve be, cause, any day why if a said of them rule to there on certain show of not be for a con- punished and each should as and defendants them tempt of this honorable court.

William H. Moody, Attorney-General The the United States. of 25th, C., May D. 1906. Washington, *. UNITED STATES show as follows: rule to cause was entered 28,1906, On May of Court the United States. Supreme , of States United America , Term, Complainants October 1905. . No. Original. 26. v Shipp and Others John F. . herein, filed of the On consideration information court that be shown . now here ordered cause It is .fhe of each them before this defendants and above-named on October city Monday, 15th, of Washington, court, at noon of or as soon day, twelve o’clock that" thereafter 1906, at of each should heard", why they can be them counsel for a of this court. as and contempt punished of the Court the marshal of 15,1906, October Supreme And following States made return: United June, day 1906, my office^the4th A. D. to hand at Came same, I, Wright, marshal Su- serving J. M. purpose States,' deputize hereby authorize and do preme United Court Dunlap, States marshal the Eastern District William A. United rule to ©f-Tennessee, deputies, to servé within show therein,'and due thereof.- parties named make return cause my name,- city testimony I hereunto subscribe at In whereof June, A. D. 1906. day this 4th Washington,

J. M. Wright, Supreme Court United States. Marshal of~the Carné, Tenn., day my Knoxville, this the 7th hand at office defendants, following at 1906, and executed on named timé June, by, appear' them to opposite names, summoning set their place city in- Supreme Washington, the United States Court before 1906, Monday, day October, noon, 12 o’clock C., the 15th D. this writ with each said by leaving copy named defend- .of ants, to wit: n Shipp 8th, Dunlap, . Joseph Chattanooga, F. June (sheriff), marshal. June

Frank Jones sheriff), 8th, Dun- Chattanooga, (deputy lap, marshal. 1908.

Appendix. GaUaway (deputy sheriff), Chattanooga, 9th, Mathew June 1906. Welch, D. M. sheriff), (deputy Chattanooga, 9th, C. A. Baker June 1906. (cid:127) Taylor (dept. sheriff), Chattanooga, B. Dunlap,

T. June 8th. M., Chattanooga. U. at S. sheriff), Fr'auley (dept, M., Dunlap,

Fred June 8th. U. S. at Chat- tanooga. sheriff), (dept, Gresham, Brown June M.,

Geo. 9th. D. at Chat-. tanooga. ' (cid:127) (dept-, sheriff), Gresham, Gibson June M., Jeremiah 9th. D. at Chattanooga. sheriff), (dept, Dunlap,

. Marion Perkins June 8th. U. S. atM., Chattanooga. (dept, sheriff), Gresham, M.,

Jas. Clark June 9th. D. at Chatta- nooga. Nolan, Welch, M., 8th.

Nick June D. at Chattanooga. . Warner, “Cheeney” Dunlap, M., 8th. June U. S. at Chattanooga. Williams, Dunlap, M., 8th. U. S. at Luther Juné Chattanooga. M., Marquet, Dunlap, June 8th. U. S. at Chattanooga. Wm. Beeler, M., Dunlap, 8th. U. S. at Chattanooga. Wm. June Powell, Welch, M., 9th. D. at Chattanooga. Claud. June Powell, Welch, M., H. June 9th. D. at Chattanobga. Chas. Justice, Dunlap M., 8th. U. at Bart June S. Chattanooga. , Jones, Welch, M., June 9th. D. at. Chattanooga. Johnnie Welch, M., Cartwright, June 8th. at A. J. D. Chattanooga. Welch, M., 8th. D. at Cartwright, R. T. June Chattanooga. Welch, M., .Henry 8th. at Padgett, June D. Chattanooga. Welch; M., May, 9th. D. at

Wm. June Chattanooga; Ward, Welch, M., at Frank June 8th. D. Chattanooga. Varnell, Dunlap, M., June 8th. U. S.

John Chattanooga. Haiidman, Gresham, M., Alford June 9th. D. at Chattanooga. my district; Paul Pool not to found in The defendant said to be Mobile, Ala. n 26th, July This (cid:127) (Signed) W. A. Dunlap, Marshal,

U.-S. E. Dist. Tennessee. authorizations for service of defendant Paul Pool [Similar Alabama, marshals for the Southern District of United States Western Texas, District of District Southern of California and returns them “not found.”]' hand, to my and returned executed Came service aforesaid .on

UNITED STATES v. SHIPP. 214 S. tl. who, search, Pool, diligent after as shown except Paul all defendants could not be found: by certificates herewith October, day this 15th of A. D. my Witness hand seal and M. Wright, J. United Supreme Court States.

Marshal of (cid:127) was of 1906, granted On leave application October answers the defendants. counsel file . ' , answers are as follows: Certain ,F. sheriff, and the Joint answer Joseph Shipp, deputy Baker,1 Matt. L. C. A. sheriffs, Jones,1 Galloway,1 Frank W. Brown,1 Gibson, B. Jeremiah George Thomas Taylor,1 Marion and C. Clark.1 Frauley,1 Joseph Fred Perkins1 Harmon,

Judson * Cooke, Attorneys. and Clift Pritchard, Robert and the Associate Justices Justice To honorable The. Chief Supreme Court the .United States: Jones, Galloway, Shipp, Frank Matthew C. Joseph come ÍY Á. ' Now T, Brown, Frauley, George Gibson, Jeremiah Baker, Taylor, Fred D. defendants, and, Clark, Perkins, Joseph admitting their Marion herein, in the information but alleged protesting characters as official anywise nor in been they lacking have each and all never dignity of this honor- authority respect for the obedience court, why prayer of said information should not for cause able against respectfully them show: granted

I. any whether or of them They respectfully ought first submit duties under the Taws interrupted discharge in the of their to be by expense being required to trouble and to answer put Tennessee and made them in charges against honorable court the before this believe, aver, and so information, they are advised and because as, true, be, to be treated crimes ought if would charges, said even contempt judicial authority the laws of Tennessee under authority dignfiy or' of this only, not offenses thereof subsequently as to these discharged show The -rule to cause defendants. TERM, 1908. S. 214 U. acts which are each court, by following reason

honorable by the record herein: all established Court of States filed in Circuit United petition corpus, mentioned in the informa- writ of habeas Johnson for a Ed. thereon, proceedings record of the made and, complete tion way any reference, or in did not part said' information ,of in the court the State jurisdiction lack respect allege a whatever convicted, try him either of Tennessee in which said Johnson on him which imposed under charge adjudge on said or to sentence sheriff, Shipp, as.stated the information. custody he was in of said alleged rights that the denials of petition It said is not averred States, or by the to said Constitution United secured Johnson -any denials, were virtue under color of one of such made constitution, laws, judicial practice of the of Tennes- or rulés of State contrary petition that appears 'the from said each see. On every charged being of and as alleged right of such denials was of of and other citizens due to the individual officials State said action of constitution and thereof. in violation their duties under the laws believe, aver, so defendants are advised and that And these of repeated to and uniform decisions this honorable according the States, in petition United which said court the Circuit Court of the authority to' filed, right had no or whatever corpus for habeas was theréin, but that same inquire any alleged into of matters the the Tennessee, which, by Supreme of only Court cognizable were the authority by herein, power had full under the shown the record State, dispose to deal properly constitution and laws of said with and with to every complaint petition of each and made said reference trial, indictment, of said said the and sentence Johnson. So that was, thereof, merely for a of the face ^petition corpus writ habeas on attempt part of said to obtain from the Circuit Court an the Johnson Supreme the Court of the United States instead Tennessee' for proceedings alleged a review said errors therein. record, by all party

Said which contains the evidence offered either Circuit the shows thát each and all said United Court .of States^ corpus said a writ of habeas concern- allegations petition the by said criminal ing rights the denial of to said Johnson Tennessee, were both false and unfounded. counsel; aid of proof

There was'no whatever that was denie'd the counsel, that, employ contrary .appears it as he was unable to the lawyers eon- appointed high standing said three criminal court they defense, his did admits, duct that as he so,' himself with ' zeal, fidelity, and ability, . UNITED STATES v. SHIPP. U. S. no whatever that said or proof

There was Johnson ever made juries selection or any ground objection the character the him, or contrary tried of either of On which indicted and them. appears objection that his counsel forbore to make such on learn- it ing facts. attorneys was that his were denied the proof

There no whatever of venue or right apply change for a a continuance. On con- therefor, trary, they application forbore to make appears it that fixed, trial, court, post- originally that time for said was for both poned by the consent counsel trial parties,- was so on. agreed had at time trial public,

There was no evidence whatever his was not any prevented his or friends were from attending relatives contrary proof precautions shows that the same. On the were counsel, merely taken, .prevent request his own at- ¡ disorderly persons only precautions 'that such with- tendance of needless, day drawn first of the trial showed them be when the days of the three the trial lasted there and that each and all during public. was a large attendance of compelled give no that he was evidence proof

There was whatever rose, contrary, appears that he without himself. On the counsel, requested by juror, in objection by or his when a himself- view; assaulting better girl order to afford the he was charged testimony juror, which occurred after and that the exclamation of all, including prisoner and his had all given, been treated nature, not as counsel, proof on an emotional as the effect sworn, accepted impartial when juror evidence that the prisoner’s or done counsel consequently was said nothing opportunity. had full occurrence, although with reference to such up new took counsel There was whatever when proof no to they denied the file a motion right case after conviction appeal or to trial, present exceptions, a bill of for new or a no contrary, it that mo- Supreme appears On the Court of Tennessee. time allowed such tion for new until after the presented trial was practice rules and by long-established motions of reasonable and pre- ample counsel had time to although had said expired, the court expiration; and that said'counsel before such pare and file the same ex- presenting or a bill of steps preparing took towards no whatever remained, in session court ceptions although appeal, or an taking of Johnson and for five said for an conviction entire week after the appeared. first days counsel consecutive said after undisputed appéaring By facts foregoing reason of the VOL. CCXIV — 29. 214 S.U. believe, herein, aver, are and and so these defendants advised

record corpus appeal of habeas was an petition for writ not that said authority power and vested the Constitution and good faith Court; in said Circuit said States that Circuit laws United authority right had no. or to entertain States said Court of United thereby proceedings with' the and petition and interfere had taken Tennessee; authority consequently of judicial the.State that _the petition ap- said dismissing order said Circuit Court not under the decisions and rules of pealable to this honorable court practice and the and laws States. thereof Constitution United therefore, humbly pray judgment the consideration and They, that said information be dismissed premises as them. against

II. find' foregoing shall and decide the cause If and case the court defendants, why cause insufficient, be these further then shown punished contempt as for not be of'this -théy each of them should severally information, court, prayed in said and col- honorable charges against made them and each lectively say, plead and true, not and to respectively in information each of them said are every guilty. charges, are said all; humbly pray most each and these Wherefore defendants discharged. herein them rule issued Nick Lewis defendant Nolan of. answer separate attorneys, & contained aver Fleming Shepherd, Shepherd, ments as follows anything or with had to do' any connection denies that he He .County, jail Tennes- of Hamilton mob attacked with the which March, when 19th see, evening night on the day had-, jail lynched. This defendant taken from Ed. Johnson was by rumor or otherwise whatever knowledge no' or information lynch murder said- forming

a mob- was be formed or Ed. Johnson. e confederate, combine, or-.agree conspire, any did not He tim them, any.or information or either persons in said with the named' jail of ,and enter-the persons to break person or with other person therefrom the taking County purpose for the Hamilton participate did not He lynch and him. Johnson to murder Ed.

UNITED STATES v. SHIPP. 451 Appendix. jail or with lynched the mob that broke the which mob and mur- dered said Ed. He did not Johnson. beforehand know that a mob lynch was to said Johnson, be formed Ed. and he did in anyway counsel, aid, abet, Johnson, advise the said lynching of Ed. not know anything about formation the mob or its did work over, approve until the affair after was did not the action of the mob lynching murdering in. the said Ed. Johnson.

Defendant was after informed Johnson was hanged that the mob jail p. m., attacked the at or about the hour of nine o’clock March 1906.'

At place that time the defendant was at his of business on White- street, side Chattanooga, in'South about two miles .from Hamilton County jail. p. About o’clock piace 9.30 m. of said he left his .date Nolan, saloon of business and'went to the John South Chatta- nooga, on Whiteside He street. remained at this saloon until 10 o’clock p. m., pursuance time at which the saloon was closed in ordi- an city nance of the all Chattanooga' requiring saloons to close at p. closed, 10 m. said o’clock After the saloon defendant remained Nolan, or' proprietor, there thereabouts with the discussing John question politics p. m., until about 10.30 which time he o’clock street, went to his home on Chattanooga, Aiken South where he remained until next morning. any

This defendant denies that he ever at time did act show contempt and for the order of this disregard honorable court or to prevent hearing appeal this court from the said Ed Johnson. always He very highest respect has entertained this honorable (cid:127) . court. answers the defendants Henry Padgett and William whom was absolute, the rule made Mayse, against de- Powell, Justice, Charles J. Bart John Powell, fendants Claude Handman, Vamell Alfred as to whom John the rule Jones, form discharged, by attorneys, the same were similar in mutañdi as to the allegations mutatis whereabouts each defendant respectively.

~ H.W. Werner, Cummings Paul The answer the defendant as to whom the rule was subse- Chamlee, attorneys, W. and'Or. and alleged denied discharged, participation absence quently where Ed Johnson lynched. from the place: TERM, 1908. . OCTOBER . U. S. n Gummings W. H. Williams, of Luther The defendant answer attorneys. Chamlee, and G: W. Qf States Supreme is that the Court the United 1st. That he advised Johnson, Complainant, of jurisdiction no of the cause Ed of America had the proceedings and that all Tennessee, The . State v Johnson, Complain . in the of Ed Supreme maVer States United Court illegal. and. ant, null and void The Tennesseewere v. State of for,'a corpus that writ of habeas petition That the -original 2d. was Johnson, complainant; against the State out the Ed sued said advised, the was, respondent is Uni-. Tennessee this addressed Tennessee, Chattanooga, and that Court at

ted States District presentéd and tried- before Hon. C. D. were original proceedings court, Clark, Chattanooga; not at Tennes- judge of United States chambers, Tennessee, is that see, Knoxville, at and he but at advised corpus petition for the writ of habeas held of said the dismissal the.appeal no and that that said is at chambers there appeal that was, law,'ineffective and that perfect in Ed Johnson undertook to n this case, jurisdiction of acquire honorable court did because presented and filed this honorable court. transcript was a pris- is Ed was not States that Johnson 3d. He advised a.United oner, of state prisoner, charge a state and-under the .he but that was prisoner him a to make United States officials, and that in orden a'. in this which was had cause would than that proceeding different proceedings under the-law. to make-said valid required n was; law, as a matter a United States That if Ed 4th. Johnson no that notice of that fact at prisoner the .time lynched; respondent by any person conveyed whomsoever. been to thi§ had ever - United and 'the .facts of States this That under the law 5th. jurisdiction honorable court had this no 'is case he advised Johnson, Appellant, of Ed v. State with said cause proceed petition,- Tennessee, alleged Johnson’s and that facts under the demurrer, or had to have been dismissed- would, upon motion case to the rule laid down according the do'cket or stricken from Kentucky. v. The Commonwealth Caleb Powers case of foregoing pleas as stated in the rights of his waiving'any Not fith. n forwant case, plead- court in this jurisdiction by this honorable but upon complete same as. defense this relying ing full Williams, defendant, now comes and for further ‘case, this .Luther cause, so answering much and such to the' answer rule proper informed is as he' material said information is parts, of answer, says:" him \ ,453 v.

UNITED STATES that he did not have Ed That he was not an officer and Johnson care, any time or custody place in his or whatsoever. charge, He is man and runs a saloon at No. says that he a business Tennessee, street, city and that his' Chattanooga, Market street, between place of business is on side of Market Sixth the east county jail of Hamilton street;- street and Seventh street,, between Sixth County, Tennessee, is on the side Walnut west place streets, county jail Seventh and that between business there one cross street. had of a mob says intending He further first notice that he in' jail at the jail assembling Chattanooga assemble at p. m., o’clock 19,1906, that about 9.30 night of March present attention of those there some one came in his saloon and called lynch- county jail purpose for the that a mob had at the assembled made, developed that it was Ed Johnson. ing negro. Inquiry being saloons required all were city Chattanooga, Under a law of the except Saturday night, and every night to p. close at ten o’clock m. 19, 1906, was on Mon- Saturday March night. then at 11 o’clockon nearly remembers, closing and it was time day night; as affiant now county mob at the about a when he his first information received in neighbor- to occur that jail. was about He knew that if trouble prevent to members of to close order hood that all ought saloons violence, for this committing and the mob intoxicated becoming and in a few minutes went reason his saloon immediately he closed yards, up a distance about county jail, to which was jail. A crowd of large when he mob was control got there a so that no one could disguised men had and were their faces covered down the doors of to break proceeding tell who and were taken his arrival was time after Johnson jail, very and in short lynched. county bridge out and carried he bridge on the where was lynching; This respondent saw hundreds of other spectator with as a could witness the entire trouble the time. bridge at .people who were on the his saloon were at people who He is well to a known number county were about lynched and who night that Johnson made no disguised; timé, he was jail spectators at the aiding part no whatever identity; he had his effort to conceal own in the nothing had lynch Ed'Johnson mob counseling the to great people go like to see trouble. Just world do with the entire to -he'went happen, is to about that fire or else of excitement anything to going and what was doing -was the mob up jail to to see what happen to Johnson. TERM, 1908. 214 U. S. any- had said mob or that he he a member of that He denies abetting alleged in the action, aiding, or or word

thing do either conspired any or or confederated he counseled lynching, or that lynch the said Johnson. Ed person or whomsoever persons or confederated conspired or or endeavored He denies' that he1 any person break or a combination with or formed agreed together any or to do county jail lynch the said Ed Johnson or to enter hearing and determin court from this honorable prevent other act to any Johnson, contempt or to Ed ing appeal the said show every allegation made court, he denies each and this honorable cause, implication could him in this against the information or lynching he had aided to mean that consented be construed Johnson, any conspired, or committed .other or act of the-said Ed act, any any or confederated, agreed-dor to commit other agreed or any lynching act of the said Ed person towards the other to commit county County, Johnson, jail or of Hamilton or to break enter appeal Tennessee, prevent hearing this honorable court or to Johnson, contempt his for the orders this show of the said Ed disrespectful court, or other act that would to do honorable this court. honorable (cid:127) is, it takes to vest says lawyer, he not a does not know what He case, plea jurisdiction of this but makes court with this honorable cause; lawyers of his but upon jurisdiction as to the advice part'in he no prove that he independent pleadings can Johnson, of his case Ed that on the merits lynching .the entirely he is court that inno- ready to show to this honorable stands him, if an opportunity and that made charge cent pleased present his evidence to sustain'his afforded he will be ¡him answer; in his contention as made says lynched great after Ed that the crowd He Johnson was disperse at the and he congregated bridge began that had that home, spent night; where he of the went his the remainder o’clock, ten this was and eleven as he believes. between says every respondent that he denies each and alle- Wherefore him in this gation against made cause. from, having, fully answered, prays And now to be dismissed requirements why punished of said show not be rule to cause he should contempt for a of this honorable court. V. Wil- Joe

The.-answer William Marquétte, defendants liams, Ford, Head & attorney; James .William at- Beeler, Hood, attorney, A. Ward,.John torneys; Frank as to whom UNITED v. SHIPP. STATES the rule was subsequently denied all discharged, participation in the of Ed Johnson an lynching and asserted alibi and was defendants’ accompanied numerous affidavits as to where- abouts at the time. Cartwright

Defendants A. J. and R. T. Shu- Cartwright, mate & Maddox John H. Early, attorneys, as to whom was subsequently discharged, rule answered all denying knowledge and of Ed participation lynching Johnson, asserting they were elsewhere at the time. On on 12,1906, November motion of Mr. Solicitor-General on Hoyt, assigned hearing the cause for the pre- law, without liminary questions Monday, prejudice, December 3. law, hearing preliminary questions

Motion to set down without prejudice, etc. Attorney-General up contempt calls this information The file, the answers of all the are now on shows the court' that -defendants Pool, of Paul who has not been located and the answer excepting n not and seems to be a process fugitive. served up deny an alibi or set connection with the general The answers formation, plead of its knowledge- guilty. mob or Certain rely upon the contention that this court had no of the answers also Shipp jurisdiction deputies of the case. The answer Johnson them, information be dismissed as because the prays that the authority had no to enter right of the United States Circuit Court corpus, consequently and that petition tain for habeas Johnson’s petition appealable was not dismissing order of the Circuit Court to this court. n jurisdie- question These averments and contentions raise the court, in this Court and tion Johnson’s case the Circuit entertain of this court in this consequently jurisdiction question proceeding preliminary questions and other related of law. Attorney-General respectfully, suggests therefore court set the case under the hearing down information and answers upon preliminary law, questions these suggests further shall, fit, if scope the court it sees define the nature and ques- of these

456 Appendix. 214 U. S. Further, argument, for the briefs and at the oral tions discussion application that this to set the Attorney-General expressly states hearing prejudice made without right down for is case may'be entitled to do and as' proceed as it Government to thereafter advised, case,„by testimony may upon taking be the merits of the pre- pleas guilty, under the and the thereafter claims alibi hearing upon determination the issues senting the final case of fact thus made. Attorney-General preliminary hearing suggests

The also set for questions law, made, is now application for which the. .that, day, 3 next at head the call December it will may premises now fit to make order which the court see prejudice .to ulterior operate so as frame' order without progress the case the merits. Moody, William H. Attorney-General.

Henry M.'Hoyt, Solicitor-General. 1906, 4 was heard December Argument Solicitor General n (Henry The M. the United States For ' (William H. Moody) with whom the General Attorney Hoyt) was on brief. .the Mr. Mr. Lewis the defendants Harmon, Judson

For Shep- whom Chamlee and Mr. Robert Cooke, B. Mr. G. W. herd, T. Fleming Mr. Martin A. Mr. P. Pritchard, Mr. Robert on the brief. Shepherd 203 U. arguments briefs see. S. abstracts

[For 563-570.] of law 24, 1906, -questions the preliminary

On. December by the court. were decided

n follows, the Reporter) heádnote -'(prepared 563: U. S. jurisdiction has of the United States no if the Circuit Court .Even corpus one for habeas convicted petition to entertain UNITED v. STATES court, state and this has of jurisdiction appeal court no an from the order of the petition, court, Circuit the denying Court this and this alone, court jurisdiction has to decide the properly whether case is and, it, before until its judgment declining jurisdiction announced, is authority it has: preserve to make orders conditions, to existing a willful disregard of those orders contempt. constitutes n contempt personal Where the consists presence of and overt acts those by cannot charged purged be their mere therewith disavowal of intent under oath. contempt

In proceedings is party; the court not a there is noth- that ing judges persons only affects their own and their con- cern is obeyed that the law should be and enforced. appeal by

After an been justices has allowed one of of this court, an order entered that proceedings against appellant all stayed custody be and his appeal, per- retained of pending acts order, sons such having knowledge creating .taking a mob and appellant place him, from his of confinement' and con- hanging contempt’ court, stitute of this and it is appel- immaterial whether lant’s custodian be mere regarded as a state officeror as of the bailee United under the States order. Mr. Justice the following delivered opinion, Holmes '

S,U. '571-575.' court, . This is an charging contempt information a this and is February following 11, Johnson, On 1906, effect. one a col- man, rape, a upon woman, ored was convicted white in a criminal County, in Tennessee, court of Hamilton State and was'sen- On presented petition tenced death. March 3 he a for writ of Court, corpus habeas States Circuit setting up, United among excluded, other that all had things, negroes illegally, been from the juries; petit that his grand plead- counsel been deterred from ing that challenging array fact that also ground, and asking change impartial trial, to secure an venue or for a con- to allow by tinuance the excitement to subside the fear and danger violence; mob a motion for a new appeal that trial an were prevented by the same fear. For these other reasons al- was was leged deprived that he constitutional rights, various and was deprived about to be of his life without due of law. process 10, evidence, On March after a hearing upon petition was de- nied, and it was petitioner ordered be remanded to the cus- tody County, the sheriff of by Hamilton be detained him in his TERM, 1908. S.U. custody days, petitioner for a which to period ten enable the prosecution appeal default of appeal, an prosecute' within, proceeded by to be then further state time March an appeal On this court was allowed under its sentence. .17 by Monday, On following Harlan. March a sim- Justice Mr. court, this and it was ordered ilar order further “that made stayed appellant custody be proceedings against all and the of said appellant pending be retained this appeal.” County Hamilton

The sheriff of- notified telegraph' six order, day. before receiving the news o’clock same papers Chattanooga published a. full'account of what evening And it alleged deputies court had done. sheriff and his believe, informed, and had reason to that an attempt’ would prisoner. Nevertheless, night made a mob murder the if true, early the the sheriff- in the allegations evening be withdrew the jail only customary.guard night jailer from the and left the in charge. Subsequently, alleged, defendants, it is the sheriff and the other with unknown, (cid:127)many conspired jail into others to break the for the purpose Johnson, intent lynching murdering contempt with to show for purpose and for of preventing the order this court- the it from hear- ing appeal In exercising the and Johnson furtherance rights. conspiracy mob, defendants, sheriff, this a including except the the jailer, Gibson, jail, Shipp, and the into night broke the took Johnson him, and hanged out the sheriff and Gibson to do pretending their duty, but with and abetting the mob’. The final sympathizing really acts, conspiracy, contempt. as as a alleged well the are as answered,

The appeared defendants have prelim certain inary questions of argued law have been which it is convenient and 'just to have settled at the outset before steps further are taken. question, naturally, The jurisdiction first is that of the of this court. jurisdiction punish for contempt .a is not denied a general as, proposition, course, abstract could it not be with Ex success. Robinson, 505, parte 510; parte Terry, 19 Wall. Ex 289, 302, 128 U. S. it argued 303. But that the jurisdiction Circuit Court no had case, corpus the habeas unless Johnson was custody violation Stat., 753, Rev. and that ofj appellate juris Constitution, § of this dependent diction court was 3, 1891, on the 517, act March c. (265 827), Lennon, Ex parte 393, § Stat. 150 U. S. that act did not exist unless the Case application involved “the construction or of the Cqnstitution.’of United If States.” the case did not involve application Constitution, by way pretense; otherwise than it is said that this court was without jurisdiction, and its that order 459 UNITED v.

. STATES 214 U. S. And impunity. inspec it is an

might urged be condemned that Court, before if tion of the-evidence the Circuit not face of the the. petition, ground alleged only pre that the the writ shows was tense. held, argument true,

We as unsound. It has it is regard this been jurisdiction that no having may orders made court to make them process liability Ex disregarded contempt. parte without 200; Fisk, 713; Ex Sawyer, parte Rowland, 113 U. S. Ex parte 104 But if jurisdiction U. S. 604. even the Circuit Court had no petition, entertain Johnson’s and if this court jurisdiction had no. court, alone, appeal, and this could such decide that jurisdiction it necessarily the law. It and alone decide whether properly question, least, the case was before it. On it was its duty permit argument required and to take time for such con Mansfield, might sideration as it need. See Michigan Coldwater& Lake Ry. Swan, 379, Co. v. U. S. 387. Until its judgment declining jurisdiction announced, had authority should be necessity from the preserve, the case to make orders to the existing conditions and the subject petition, just state court was bound to refrain from, proceedings further until the same time. Rev. Stat. 766. Act § 226, 3,1893, March e. 751. The fact that petitioner Stat. „what his case needs proof, entitled to shows no argue that the law possibility of contemplates way, a decision eithér and therefore provide provision must for it. Of course the of Rev. Stat. § until final on the further judgment appeal in the proceedings state prisoner void, court against applies every shall be deemed case. implied exception judgment happen There is no if final shall to be or that appeal should have issued should be dis writ missed. proper

It is we should we add that are unable to with the agree premises just upon which the conclusion denied is We based. cannot regard upon petition- for grounds corpus the which the habeas was presented peti- frivolous or a pretense. mere The-murder the case, impossible tioner has it that made to decide what we have unnecessary said it as a pass upon preliminary makes it deciding say question the before us. we shall no that it Therefore more than subject-matter does to us clear appear petition not that the Court, beyond jurisdiction that, opinion, in Circuit o.ur would might required the facts that have been found have the gravest petition and most anxious consideration before could have been denied. question is answered at de- general

Another to be this time.-' The 460 1908. 214

. U. S. they in their severally have denied under oath that fendants answer the. is that anything urged to do with murder. It the sworn conclusive, may if they parties prose that are false the are be answers they in proceeding tried, that this are to be if perjury, but cuted for elect, their oaths. It has been they simply by suggested that the so by the fact to and therefore leaves be decided party is a explain afterthought is mere something But this a defendant. not not a is party. nothing is There that The court understood. affects is only in own Their concern that law persons. their judges enforced, their interest no obeyed and -and is other than should be every in represent go On this occasion we shall not they case. may the notion. It be that it was an history into intrusion law, by suggested propounding of the canon is perversion yery phrase, purgation (juramentum oath and the interrogatories so, system of a fragment proof it is a does purgatorium). If which whole, theory why or as a and the reason it has not dis not prevail may rarity contempts be found in the with perhaps which appeared now, if question even the sole intent may It be ocnur. of an act, proposition apply. would But this case ambiguous presence presence If the personal overt acts. question a for dis be there would be little proved room acts should in taking part the acts consist alleged And when of intent. avowal that a denial and general be admitted affidavit in a murder it cannot The outward facts are matters known dispose of the case. should testimony way. the usual many they will ascertained Savin, parte 267, in Ex left-open question come, we and that toward the conclusion which leaning visible courts decisions entitled to adopted been state conclusion has Connecticut, 174, 200, McMahon, 48 201. Huntington respect. v. 450, 455, Case, 325, Matthews, N. H. 527. Bates’s 55 37 N. H. State v. State, 178, Texas, 12, 114. 24 Crow Snyder, 103 N. Y. 181. v. Matter of 864, Ferry Bridge Co., See Harper’s 16 W. Va. 873. Wartman State v. Case, Massachusetts, Cartwright’s. Wartman, Taney, 370. v. Plymouth County, 134 31. Whether or not U. S. v. Eilenbecker court, so it embodies the law far'as it ápplies to Rev. Stat. § power by given emasculating no goes.- We see reason nearly if con futile as it would be it were and-making'it so section, run of a slight risk willing all contemnors to mean that strued escape; can perjury conviction touched, charged the acts argument, whether question was ''The do, their and that contempt. opinion are of We

constitute inquiry, after the depend upon a nice whether, does character order 461 v. SHIPP. STATES UNITED n Appendix. 214.U. S. as bailee of the e.ourt, regarded sheriff was to be by this thie

made of the prisoner the name State alone. still held the States or United by the State suspended proceedings further way, the order Either that Iré'-should be to required forthcoming prisoner against may It be that what of this court. found further order abide the of its mem- unwillingness to the crime was the mob and led created From appeal. for the trial delay required bers submit to the appeal delay hearing and the prevent to the intent to contempt proved. is taken the step If that step. is a short will,proceed. case the trial of the being settled preliminaries These Moody in the’decision. part took no Mr. Justice 1906, following entry 24, appears Decembér And on record: preliminary questions of law herein on the opinion of the court Moody took no by Mr. Justice (Mr. Holmes Justice

was delivered proceed. was ordered and the cause part) following: there was filed the Í4, January On recognizancesto abide require arrest Motion to defendants future orders the court. preliminary questions law herein having decided The court proceed, Attorney- ordered the the defendants .case to order writs attachment issue that General the court moves may required into court and to enter brought said defendants be sums, respectively,, as to the in such court shall recognizances, into n appearance adequate proper, conditioned for-their' when seem herein, said the future orders the oourt required and abide ever sureties, approved, and sufficient good to be with recognizances given, court, appropriate to the court that the by unless it shall seem defendants, them, permitted appear should be or to. said of the-Circuit Court of the judge before the recognizances furnish such Tennessee, conformity for the Eastern District United States section of the Revised-Statutes provisions analogy States, it is further moved that the sure in which event of the United said, justice this court approved judge ties and. ' n to the Sixth assigned _ Circuit.. J. Bonaparte, Charles Attorney-General.

Henry Hoyt, M. Solicitor-General. U. 214 S. of The motion on behalf the defendant Shipp the witnesses named deputies prayed subpoenaed place to 'attend at Be ordered to be such time and cpurt testimony cause, for in may designate hearing the this by by process ordered the court the costs incurred that it be mileage witnesses, paid the.fees and of said subpoena, including of States, in by the same manner that similar costs and fees the United States, in of in of the paid subpoenaed are case witnesses behalf United court, expedient, if in lieu of this that the it deems the same direct or in testimony by duly ap- be taken this cause a commissioner that the point to sit at or some other pointed Chattanooga designated District, of the Eastern of Southern Division Tennessee. of several of Thé motions behalf the defendants also that: prayed possessed actually is not with

Affiant sufficient-means and is unable witnesses, pay prays of said and he to to order them the fees by to that the subpoenaed, process to be direct costs incurred paid witnesses shall be and the fees the same manner that paid are case of subpoenaed similar costs and fees witnesses be- half the United States. there, 14, 1907,

On January* following: filed the summoning Motion witnesses testimony and to take herein. for In order may .that the facts be ascertained the court as to the connection of the defendants herein with the matters which the court contempt authority, has held of its Attorney-General constituted testimony moves the court to take complicity herein as to the matters, examine, such and to oath, under to be admin- defendants court, any istered witnesses ordered to be summoned in behalf defendants, the United States subpoenas therefor to be court, issued the clerk with full rights cross-examination objection as to the admission of competency, evidence and the to for parties; witnesses counsel both such to be taken in evidence open appear court unless shall to appropriate the court to appoint a- commissioner or examiner to receive and same, record the and then report testimony, such exceptions aforesaid, thereto made as forthwith the court. Bonaparte. J.

Charles ttorney-General. A Henry Hoyt, M. Solicitor-General. v. STATES UNITED Appendix, 214 S.U. also motions on behalf of certain of the defendants

And expense of witnesses at the summoning the Govern- ment.

On 14, Attorney Mr. General January Bonaparte, counsel to the consideration submitted complainant, of the court a motion to arrest- the herein and to defendants them into to abide the future require to enter recognizances taking testimony orders also a motion as court and counsel for herein, and leave defendants granted file a brief in thereto. reply afterwards, January

. wit, 17, 19Ó7,- And. defendants brief: filed following others Shipp FOR MOTION ETC. ARREST, only is to object bring The of attachments before the issuing may heard, parties contempt they the that be if charged so they Rapalje Contempts, defense on have. § discretionary any This when there is other course is with the eourt by a to procedure open. practice mode of The usual is rule show 9, 103; Anonymous, v. (Rapalje Contempts, cause. on United States § Rep. 761.) Fed. Government, information,' in the The did not ask attachments praying only for the very properly practice, but followed the usual cause, any be, day if on a of to there issuance service “a rule show certain, why punished them should not and each of said defendants as contempt this honorable court.” appearance of the personal the

According to some authorities 109.) Contempts, parties required.' (Rapalje on might § have been appearance counsel acquiesced But their the Government personally signed answers and verified. have held up in those answers been preliminary The matters set stands as-to each defendant cause, now proceeding insufficient and the is denial, oath, charged. This the offense positive under in- only verified surely as an information sufficient cause proof. We sub- produces formation and until the Government belief- open to it. only course production proof is now mit that interlocutory to an attach- its right The Government has waived ment, personal attendance right. if it It has had such waived Now, sworn against their as answer to rule. defendants information, that the- defendants denials, asks, merely on its naked TERM, 1908. 214 U. S. attempt is no in default of bail. There and committed be arrested justify a course from that taken different facts to show information. prayer subject grant this motion would the defendants submit that We justify the state the record does indignity which hardship of innocence this court has presumption would violate and which upheld. strongly so sheriff, deputies, pecu- and his all this has Joseph Shipp, As to F. justice of. They State Tennessee. liar force. are officers preserva- and the in the service of the courts required time Their Courtesy tri- to the State peace tion of the that State. inno- regard presumption for the of their bunals makes serve n just. highly appropriate as well cence TAKE MOTION TO TESTIMONY. course, testimony. consent, consent, taking We We court, testimony be taken

too, for the convenience to_be appointed by the court for person some disinterested purpose. . . however, person appointed so be directed to pray-, that the take We all the witnesses on Chattanooga, where both sides testimony any reside elsewhere we consent be found that If it should reside. desired. testimony wherever taking their believe, court, and so state to the de- I am informed exception expense to bear the without unable fendants are almost remaining during there traveling Washington hearing, justice. practical to a denial of -they would to do or. submit To have away would be in from home itself compel hearing them attend a precede punishment. and trial should punishment, a severe laws, too, place make the of the Constitution and where analogies appropriate charged to have been committed the one for the offense is deputies are parties, As the sheriff and all proof. taking also harm to the course their absence from their homes would work preservation peace in the courts and to the of their business county.

Respectfully submitted. n & Cooke Mr. Harmon, Mr. Judson Robert Pritchard, Clift for.-1 attorneys F. others. Joseph Shipp and January 21,1907, following On of record, entries appear viz.: v.

UNITED STATES U. S. Term, No. 12. October 1906.- Original. motion to require

On consideration the defendánts recognizances for their to enter here- appearances herein into (cid:127) after, It is here the court that in now ordered defendants in recognizances this cause enter into their personal penal abide the further $1,000 each, sum conditioned orders of the District Court of judge of the- court before the Eastern District Tennessee. United States taking On consideration testimony the,motion herein, is here the court that a

Tt now ordered commissioner at testimony witnesses will be to take Chatta- appointed of Tennessee, and counsel on nooga, the Eastern District in which to given' days agree upon are ten a fit both sides and communicate the for such nomina- appointment person, ’ to the court. tion following: General Attorney January 25,1907, On filed on motion to take certain Suggestion reply to brie} defendants testimony. are suggested reasons of the defendants In the filed certain brief at and the court’s testimony Chattanooga, be taken why the should appears commissioner taken before.-a it shall be directing order Attorney-General now place. The as the Chattanooga designate désignation to reconsider to. -requests' the court respectfully purpose taking for the city at least Washington, designate State's, for- the following for the United testimony of witnesses reasons: ... n attend the hearings need not The defendants themselves 1. personally present, to be unless, unlikely, wish Washington, hardship, come find no serious probably will their counsel Washington. suffer some are, fact, inconvenienced defendants If the both, ordinary are money, or these of time or

hardship loss through under They charge rest of their situation. necessary incidents out, been casé made prima A facie has tried. must be which CCXXV—30 VOL. 1908.

Appendix. . proofs sense that them are now to be offered they are. th,e upon may to meet charge. fairly called It assumed that it is wholly their own fault they not without are in position. De- must attend the fendants trial court at its generally place usual of session, personally either or counsel. The official duties-of some not, not, them need and should among change that rulé in this case. The entire sheriff’sforce need not be withdrawn from Hamilton County merely testimony States; listen to the the United and it is right customary, arbitrary, harsh and to bring not witnesses part a"district the court. court does not go to them. The country in present case, entire is the district only and the court city in Washington; then, sits Washington, place the natural testimony. for the of the This is taking none the less true because an officer the court and not the court itself is to testimony, take the and because the defendants have the right present, they to be if are compelled present. to be very important It seems to us testimony 3. should be eye and direct court, taken under the control of the to afford oppor- by, tunities for immediate reference to the court and instructions to, in from the court the commissioner connection unexpected may readily occur during incidents-which the examination of wit- one, wholly precedent. nesses a case like this without Finally, locality it is submitted that where this terrible (as place, took appears itself, occurrence where from the crime record, case, from the Johnson’s and from the oral argument herein preliminary law) on the questions feelings portions certain thg community been and greatly excited, have are still is an un- place examination, suitable for this at least of the witnesses for the In locality United States. the real facts can not be elicited dispassionate atmosphere, calm and free from the danger that local prejudice personal insecurity may and a sense of stifle check the frank full and utterances of the prosecution; witnesses for the and the Attorney-General duty deems it his to advise confi- possession information in the Department Justice, dential credit, a character entitled to indicates that witnesses for the Uni- may reasonably, fact, ted States and will in apprehensions entertain if danger testify themselves at Chattanooga. 28, On on motion Mr. January 1907, Solicitor General leave was counsel for the Hoyt, granted defendants to file to the suggestions briefs opposition General Attorney as to this cause and on taking testimony January 29, v. UNITED STATES 214 S. U. following the behalf of- was filed certain defendants there to Attorney

brief General require the motion of the opposing C., witnesses to at D. Washington, be examined instead of Term. Chattanooga, cause,

The court is of this and proceedings familiar with the this brief is presented opposition Attorney-General, in to a motion the means, which motion if that all the for the granted, witnesses Govern- C., ment Washington, these cases must be examined at D. 'instead of at Chattanooga, Tennessee. why reason oppose they the defendants this motion is.that are poor men,

all except sheriff, pay expenses not able to and the going from and Chattanooga Washington there remaining, with attorneys, their the time that the Government during will taking proof. its proof It cannot be said that this can be heard their absence, serious, because the and the has charges are laid down contempt the rule eases the defendants entitled to meet .are If is witnesses face to this to be had at hearing Washington face. there, and proof practically taken it will amount to a denial of justice, because not the defendants do know what the Government’s proof be, just will nor which of the defendants are liable to be affected by any necessary, therefore, of them present witness. It is for all to be lynchers at The defense of the officersand the hearing. alleged is necessarily, same, attorney not is and there no one the case in a position all; necessary represent them so that it becomes for most actively attorneys all the in these engaged who have been cases to say attend is no reason in hearings. these We that there the world why- should not tell the facts the witnesses for the Government about Tennessee, just any freely this case as as at Chattanooga, at other place. And if has commenced at hearing Chattanooga .after intimidated, power has change place witness is the court if such a hearing punish offending party, and also to case were freely, frankly, possible. opinion Public is in a mood now to hear unreservedly without Chattanooga all the facts of this case at intimi- anybody. dation towards away deprive

To these Chattanooga take witnesses these face, as necessarily defendants of the to meet them face-to must right them, if result, hardship upon particularly they is a so are great innocent, they be, especially claim to account of their poverty.

Many filed their of these defendants have heretofore affidavits they pay expenses are unable to of their wit- showing that own ' TERM, 1908. S.U. they appeal your honors now Washington, city .to the nesses hardships imposes because it Washington, at hearing to have this to some a denial bear, is as of them they cannot them that upon justice. sound earnestly insist that there is no and' respectfully We most that the witnesses for the Gov- argument for the or foundation reason C., un- facts D. are testify Washington, will ernment and when surrounded home to tell at the willing witnesses Besides, protect friends. the law sufficientto families and their own precedent established witnesses, ought there not to be get was unable that its commissioner examiner this court place because of the sentiment out witnesses truth pre- accused when the law being reported favorable to the hearing innocent of charges the accused him. sumes earnestly most submit that this honorable court should not We prevent cases the an order these that will defendants make case, opportunity the to show their innocence in this having fullest Attorney-General motion should for that the of the and reason overruled. Chamlee, attorneys.

Geo. W. Lewis Shepherd, 31, 1907, On the nomination January following to the court a' testimony of commissioner to take the filed. Attorney-General report has the

The honor to of counsel rec- for the unite with him in the ord defendants- nomination to the court Maher, Esq., Columbia, of D. of the of District to take the James tes- in this timony of the witnesses cause. day

And on same Mr. Solicitor General the Hoyt, counsel tg for the submitted the nomination con- complainant, the court. sideration the 2, 1907,

On February there was filed the following answer F; sheriff, and Joseph Shipp, deputies, to suggestion taking Attorney testimony; General Attorney-General asks this The court to reconsider its desig- order place Chattanooga the nating taking testimony case, in.this requests city the of Washington and be designated, at least for testimony purpose taking witnesses the United States. v.

UNITED STATES defendants, Joseph Jones, F.- Frank Shipp, And now come Baker, Taylor, Frawley, Galloway, Matthew A. T. V. Fred George C. Brown, Perkins, .Clark, Gibson, Joseph Marion defend- Jeremiah ants, deputies, respectfully said sheriff and his show to being the request the granting great court that of said would work hard- ship injustice. result in actual upon might them were, of the

These at the time of the happening defendants matters complained Attorney-General, of in information of things Tennessee, law, County, uphold sworn to of Hamilton officers positions public welfare occupying required which the should be law, obey and who by persons respected filled who would it. only not them uphold with failure charges information to a law, having conspiracy parties but with become to dethrone the violence, in its place law and substitute mob antithesis law. A of these defendants under the charges conviction of the informa- only infamy of perjury, tion the crime and the guilt, involves but conspiracy murder. heretofore, prior These of the infor- defendants have filing case, enjoyed of their respect mation confidence fellow- citizens, is of their importance good and it the utmost them that destroyed full, fair, names unless are convicted after a be not trial. impartial ^ purpose wrong upon any It is not of the States inflict United citizens, verily of its These defendants however humble. believe that Attorney-General the request of the would do them granting Every defendants is grievous wrong. one of these entitled be con- has witnesses him. been shown fronted It affidavits testimony many taking of them are not able to attend for all of impossible It would be the counsel all Washington. time, and a present might to be all the false witness defendants might impression of escape cross-examination and leave an proper defendants, pros- when for the truth. of the witnesses presence The examined, important right, ecution is one that should not being are an only entitled to be denied. The defendants are not the aid counsel, of the but counsel are entitled to the assistance defendants.

It is under a charge true that these defendants rest which must be tried, to a trial they they give but submit that are entitled which will they may present, them to be right privilege so that have being by meanest faced criminal their accusers. accorded practically testimony This be should the be taken in right will denied Washington. Attorney-General may

The it be suggests fairly that assumed that 214 U.S. wholly fault are without their own these defendants it is not placed request be position in which would placed assumption these unable reconcile this but defendants granted, are to them. presumption of innocence law accords with the which proper is the suggestion Washington the further Answering testimony Washing- sits at hearing of because place for the States, say that the court whole United these defendants ton for the testimony oral has al- already it will not hear has decided that take to nominate parties counsel both commissioner lowed testimony. (3) is with- paragraph equally contained three suggestion merit, allow- impossible because conceive of this tribunal out it may every “unexpected which separate hearings incident ing witnesses,” duty readily during being occur the examination exceptions testimony, well as upon to act the commissioner “unexpected incidents.” solemnly deny

Finally, these defendants contained the averments Attorney-General. suggestion paragraph the fourth They deny any foundation for the serious and that there is fact confessedly upon based information to which charge, unusual secret access, that honorable court have neither the defendants nor this is, reason, place an unsuitable to take the testi- Chattanooga any real deny that the facts cannot be elicited mony They of witnesses. atmosphere.” They deny that dispassionate there in “a calm and testimony suppressed or prejudice would colored local be personal insecurity, or that full utterance any or sense and frank these would be of the truth witnesses for or defendants may be the the “confi- “stifled or checked.” Whatever character of Attorney-General refers, information” these de-i dential to which deny for the reason- fendants witness United States could would, fact, any apprehension ably danger entertain whatever or if at Chattanooga. he testified respectfully that the in said

Defendants submit contained charges community excited, 4 that are paragraph feelings suppressed prejudice personal or from a sense of truth would cause, insecurity, upon or from are based of an any other information mistaken, upon conception unreliable character of the facts. The “confidential” character information referred to reliability by of its these Attorney-General precludes investigation an defendants; present thereto these here- opposition but defendants Lyerly, Bachman, W. C. A. Snodgrass, the affidavits D. L. J. Frierson, Moseley, Wilcox, G. Fletcher and Wm. L. J. T. T. S. G. v. SHIPP. STATES 471

UNITED Appendix. U. S. community indicate their char- in the Allison, positions whose M. M. pray, these defendants etc. Wherefore standing. acter and com- following appointing order 4, 1907, the February On was entered: testimony missioner to take respect appointment heard on to be coming This cause herein, parties, testimony commissiqner to take special counsel, person a fit having agreed upon by their duly appearing their nomination to the and communicated appointment such .court: Maher, a of the District D. resident that Mr. It is ordered James hereby, a commission to take Columbia, be, appointed and he is powers of a testimony proceeding, return court; but in the rules of this said chancery, provided as master in or any findings fact state con- shall make commissioner ' of law. clusions testimony be com- shall taking further ordered It is of Ten- the Eastern District city Chattanooga, menced at the place as the shall possible, at such nessee, as soon as .commissioner sides, on both given thereof to be counsel notice reasonable designate, speed; and the commissioner in with all convenient proceeded and .be testimony if that shall be to take elsewhere hereby also authorized necessary, with to him or to be leave appear counsel agreed to the court for such orders apply parties to either of the they may be advised. regard report testimony to the court the promptly shall Said commissioner law, of fact or conclusion of and shall him, findings

taken without determined, his may hereafter be" compensation such receive accompany of which shall itemized statement expenses, an actual report. D. as com- oath of James Maher 1907, the February 6,

On and figures following, the words herein was filed missioner viz.: Supreme Court Maher, appointed I, commissioner D. James testimony in the cause and return States take of the United complainant, Shipp John F. et al. vs. America, States

The United I 1906), solemnly that will (No. 12, term, do swear October Original, de- perform the duties discharge and all faithfully impartially ' n commissioner, on me as such to according my volved the best of ability help me understanding. and So God.

James D. Maher. day to me this 5th February, Subscribed and sworn before of H. James McKenney, [seal.] Supreme the Court the Clerk UnitedStates. of of The Commissioner to and proceeded Chattanooga executed the commission. following into as to stipulations were entered the taking

. of and in testimony the record: appear stipulated In it is this cause agreed testimony that after the and is. typewriting reduced to it shall be submitted to for counsel the several parties examined, promptly and unless find counsel material testimony may errors in the signed by commissioner, the same be the with the force and effect as if signed same each witness. In the found, they event material errors áre shall be called to the attention of usual in the commissioner and the course shall be taken reference thereto. cause, expense proof

In this to taking save the timé and of as to to, stipulated the matters referred and agreed hereinafter follows:

That day February, 1906, on the 11th of Johnson, one Ed a citizen United States a resident and citizen of the State of Ten- nessee, and person descent, a colored of African was convicted of the rape crime of County, in the of Hamilton court held at criminal city of Chattanooga, Tennessee, of State and said court there- upon sentenced the said Ed penalty Johnson to suffer of death. day March, 1906,

That on the of 3d and before the date set for the Johnson, petition execution of the said Ed for a of habeas corpus, writ sighed by the petitioner, said Ed Johnson as duly presented to the United States Circuit Court for the Northern of Division ¡which Eastern District of Tennessee in it was alleged, among other things, upon the trial of the said Ed Johnson the criminal court of Hamilton of County, Tennessee, in the State for the crime of rape, been-convicted, for which he petitioner had said denied been trial a fair impartial jury, and had been denied the aid counsel in violation of the fifth and sixth amendments to the Federal Constitution, and petitioner that said was also denied ’secured rights under, Constitution; fourteenth amendment the Federal him v.

UNITED STATES wit, day March, application thereafter, on the -10th corpus the said for a writ of habeas came hearing Ed Johnson for. District before the said United States Court Eastern Ten- answer, replication, upon upon petition, return, nessee open couru, testimony orally and after argument witnesses given petition of counsel said Circuit Court ordered said be dis- corpus prayed-for petition of habeas said missed and that the writ denied, said petitioner be further be remanded ordered County, said Hamilton in the State Ten- custody of sheriff of custody period in his nessee, to be said detained sheriff prosecute an petitioner appeal said days ten which enable appeal should so an lie from said order should advised appeal order, prosecution an within said and in said default by. the proceeded time- the State of to be then further Tennessee its sentence. under - March, day 1906, of thereafter, application on 17th an That the Ed Johnson the Hon. John M. duly presented by was the said justice Supreme States, of Court of the United Harlan, the an associate circuit, appeal that an be allowed the asking sixth to the assigned from the rendered in judgment the Supreme Court of United States for of the Northern Division the of the United the Court Circuit States 1906, 10, his, the denying on March said of Tennessee Eastern District corpus, aforesaid, of habeas for writ Johnson’s, application Ed a day by Mr. the same allowed Justice Harlan. was on appeal which said motion made March, 1906, duly was in of day That on the 19th by repre counsel and of United States the Court the Supreme appeal an allowing- order Ed for an the said Johnson senting the the Cir judgment from of Supreme the States Court of United Division of the for the Northern cuit Court of the United States day March, Tennessee, on the 10th of rendered Eastern District Johnson!s, for a writ application his, said Ed .1906, the denying by Supreme the thereupon granted corpus, habeas which motion duly made and entered order and an the United States Court of to wit: following, figures in and the Justice the words Chief Johnson, Appellan Ed t,

vs. of Tennessee. State Hewlett, appellant, for the of counsel Mr. M. motion of E. On' the of the Circuit Court appeal an court that is the ordered b'e, the "same and of Tennessee District Eastern United States appellant allowed, against proceedings and that all hereby, TERM, 1908. custody appellant the said be retained stayed, pending and this appeal.

Per Mr. Chief Justice-Fuller. city published circulated in said also and of Chat- That there was day March, 1906, the said evening paper 19th tanooga m., Supreme of the p. before an account action Court six o’clock appeal stay an and allowing granting of the United States part of the state courts the said further proceedings appeal Supreme of said before Ed until the determination Johnson Court of the United States. mentioned, on and subsequent all the herein during

That times defendant, Shipp, F. 19th, the above-named J. March elected, County, sheriff of Hamilton duly qualified, acting Tennessee, sheriff full and as such had and exercised State of county jail, city located Chatta- charge and control county, under the nooga, legal in said and was custodian laws duly county persons committed said under the Tennessee of all jail; imprisonment within laws of said to confinement said State Jones, Galloway, defendants, Frank Matthew A. and that C. Baker, Frauley, Brown, Gibson, Perkins, Marion Fred Jeremiah George mentioned, them, were, all the times herein and on during each duly 19, 1906, appointed, qualified, subsequent to March county under the deputy sheriffs said State said J. F. acting Shipp. stipulation may

It is be offered further that this before the agreed or complainant commissioner either the defendant as evidence of any part stipulated. Provided, or all of the matters hereinbefore competency however, relevancy that no admission is made as to the stated, merely in- stipulation being -of of the facts above stipulated proof tended as facts above with the same force and duly proven by testimony effect if of witnesses and be sub- ject exceptions testimony to respects in the same as the of wit- all be; parties expressly except nesses all to reserving right would in any stipulation upon tó of this when introduced evidence portion admissibility competency, relevancy,' to' ground relating stipulation this subject-matter of the which relates. took following

The before the Commissioner: place I thought Mr. Assistant General that had Attorney Sanford: all was so of the counsel. It intended. been submitted we understand, I all of the counsel and That, agreed in form. will it drawn up have proper STATES *. SHIPP. UNITED regard In matter of the telegram sent clerk was States, agreed by Court of United it coun- the Supreme the matter has been the Com- sel to whom mentioned that in may taken as missioner’s statement evidence personal of when that was sent its telegram the matter contents. n This telegram The Commissioner: was by myself, sent is dated, 19th, on the it March in the day neighbor- clerk, the. I hood of o’clock the afternoon. it one delivered personally corridor of office the House of at telegraph Repre- Washington, it; Capitol sentatives pre-paid under I my was made direction left Wash- before copy ington.

The put record. copy 14, 1907, On the United October States moved the court to Maher, James .D. commis- esquire, file reports special of.testimony sioner as to tbe and as to his herein, taking ex- penses.

And on motion of Mr. Assistant 14, 1907, on October of counsel for the Attorney Sanford, complainant, General taken testimony that the herein be opened, pub- was ordered day on same and on of Mr. As- lished, filed; also motion General counsel Attorney Sanford, sistant complain- file, the reports ant, granted leave the Commissioner and as to con- testimony expenses taking as to the facts, as to also counsel therewith, and stipulations nection as to .the testimony, of the taking as to misnomer defendants. certain for leave to file was made a motion 14, 1907,

On October as to defendants, taking of certain as to misnomer stipulations facts. agreed to certain testimony, Commissioner 1907, reports 14, And on October as follows: filed to expenses and as testimony taking toas United States: Supreme Court the honorable To in this entered an appointed order commissioner undersigned evi- take and return February, day such 4th on the cause respectfully reports produce, should said cause parties dence as the 476 pursuant the court that to the order opened said the commission

conferred on him in city the United States court room in the of Chat- Tennessee, tanooga, Tuesday, February 12, 1907, State at 10 m., and, respective parties o'clock a. the counsel for the present, being proceeded day to execute the said commission bn that and on the 13th, 14th, days month, when, and 15th of the same on the suggestion complainant, adjournment of the counsel for the an was taken. Pur- giyen by suant to notice undersigned respective counsel parties, taking testimony in the cause was resumed at the same place Monday, 10, 1907, 11th, 12th, June and continued on the 13th, 14th, 15th, 17th, 18th, 20th, 19th, 21st, 24th, 25th, 26th, 27th, 28th, month, days and 29th of the samé on which day, last-named the parties offering testimony, more the commissionwas closed. said commission receiving testimony was executed of the testimony, testify witnesses named in who several were sworn to truth, truth, nothing whole but the truth before giving evidence, testimony their given so them was taken down presence in the and is stenographer undersigned, herewith submitted, together with the exhibits offered evidence. testimony exhibits, typewritten contained' in

Said 20 volumes 2,283 deposited been with the clerk of containing pages, have honorable court.

Respectfully submitted.

Jambs D. Maheb, Commissioner. Supreme To the Honorable the Court of the United States: Pursuant the order of this honorable court entered on the 4th . February, 1907, day undersigned commissioner appointing testimony in to take and return the the above-entitled cause and expenses a statement of actual incurred directing taking testimony submitted, I to state that it beg said leave became Tennessee, necessary city on two Chattanooga, to travel to the June,. February .expenses separate occasions—in 1907—and. the were as follows: commissioner February: In fares., $48 .......................... 15- Railroad 1 baggage...,.......................

Cabs and 60 Room at hotel...............'.............. 15 Ó0 16 15 Meals.:......'...............'............... . 1 46 Telegrams...................................

$82 $82 36 v. UNITED STATES S. Appendix, .214U. carried forward $82

Amount 36 In June: $43

Railroad fares......'..............(cid:127).......... 00 baggage.......................... Cabs and 2 50 Hotel bill ................................ 83 75 on trains and at 5 Meals 75 club................... f 1 Telegrams..............................(cid:127).. 69 '

$136 $136 69 69 $219 total of Making a. Respectfully submitted. Maher,

James D. (cid:127) Commissioner, 4, 1907, the following On November order made: court, by Maher, here ordered the that Mr. James It now D. appointed this court take return the testi- commissioner to $800.00 cause, be, hereby, he is sum in mony in this allowed the expenses, and- sum compensation paid by his and that said be full for complainant herein. motion 22, 1908, following on for leave to April And was made: testimony additional take appearing and on behalf of United The Solicitor-General the. testimony reopen hearing States, the court to moves this Mr. D. Maher as commissioner for reappoint James case and testimony to returning additional the court taking purpose behalf. in this ' repre-: shows and of this motion the. Solicitor-General support In of'reference original under the order to the court that sents the. and the defendants took their the Government commissioner said Tenn., year .1907, Chattanooga, testimony city year; that said commissioner in June of that subse- case their closed testimony, taking which was report made quently court; while, an order published, pursuant'to opened, and.filed pf aforesaid, ás Government testimony taking closed since the. testimony, Depart- find additional no further effort has made unexpectedly was informed that two recently and of Justice ment eye- hearing were the former not examined persons who of part of the incidents lynching witnesses connected Johnson, information, prisoner, Ed which is involved in identify therewith; two of the defendants herein connected could (cid:127) department thereupon inquired caused this matter to through attorney into office the United States for the Eastern Tennessee, District of and was him persons advised that these two testify identify question. will so and will two the defendants represents The Solicitor-General further and shows the court parties that he is advised that these two previously did not make knowledge known their these facts reference to this matter on fear, account of and that was no there means which Govern- previously ment could have been advised as the information which they possessed or could obtained testimony have their former hearing. represents further and shows the court Solicitor-General application that this testimony leave to take is additional purposes delay, solely

made for justice may but be done and all material evidence brought to attention of the court. prays testimony He therefore taking may be reopened, may

and that the said reappointed commissioner, James D. Maher be as powers with same under his and original appointment, may be procéed an early directed to city convenient date to the Chattanooga, Tenn., testimony there take the of the witnesses two in question, together any testimony rebuttal which of the may defendants behalf, desire to offer in that or further testimony may which necessary rendered behalf' by Government reason of evidence, any, such if report rebuttal and to such additional testimony to the court.

Respectfully submitted. Henry M. Hoyt,

Solicitor-General. The defendants following submitted the answer motion for leave to take testimony: additional Joseph Jones, defendants Shipp, F. Frank Galloway, Matthew Baker, Frawley, C. A. Perkins, Fred appearing by Marion their attorneys, Harmon, Jiidson Pritchard, Robert Lynch, James J. M. H. Clift, Cooke; and Robert B. the defendants Taylor T. B. and George Brown, by attorney, their appearing Stanfield; T. W. the defendant Gibson, Jeremiah appearing by attorneys, his Cooke; Clift & the de- Joseph by fendant Clark, attorneys, his appearing Spears & Lynch; Powell, defendants Nolen, Powell,' Claude Nick Chas. J. Bart

UNITED STATES v. SHIPP. May, Varnell, Justice, Jones, Henry Padgett, William John John by attorneys, Shepherd their Lewis Handman, appearing Alfred the defendants “Sheenie” Warner and Shepherd Fleming; & Luther Chamlee; by attorney, G. Williams, their W. defendant appearing attorneys, Beeler, by his Ford & Chamlee and appearing, William G. Chamlee; Cartwright Cartwright, the defendants W. J. R. F. W. Early; by attorneys, Maddox and John H. their S. P. appearing attorneys, his Ward, appearing G. W. Chamlee defendant Frank Hood; William Marquette, appearing and the defendant and John A. Williams, attorney, answering petition of the Solicitor- Joe V. testimony say: in this case for leave to take additional General proof is that much has been taken this ease both 1. It true defendants, and' the defendants closed their and the the Government commissioner June, 1907; report has been made proof prob- It-is likewise testimony opened, published, and filed. ably made no effort to find additional true that the Government testimony. closing after the evidence for granted defendants take it that the statement that the '2. These has received the information set out Department Justice they call the attention of the honorable court motion is true. But upon subject. of the motion meagre statements vague eye- persons supposed who are to have been The names of the two connected “part lynching of the incidents witnesses .with prisoner, “part Johnson,” given. are not The nature Ed they names of the of the incidents” saw not stated. “two The. identify it is these witnesses “could supposed defendants” whom ” therewith aré not given.. connected are entitled to be fur- 3. While these defendants submit witnesses, they upon do not insist nished with the of the two names parties pre- “these two did not suggests the motion this because of these facts in reference viously. knowledge their to make known nothing of fear.” Defendants aver that what- this matter on account' or information extends to occurred, knowledge has so far as their ever in- any concealment facts has been support suggestion the that by duced fear sort. many information in this ease But there are defendants to the

4. and the defendants are not many separate of them have defenses and by The defense has been onerous represented the same counsel. all is from the statements of the motion expensive. It inferrible additional testi- be interested the that.only two will defendants expense To save the of the attendance mony to be taken. sought them, attorneys for all of these defendants and the all the defendants ' they are entitled to be furnished with respectfully submit the by will proposed defendants who be affected the ad- names two testimony testimony. ques- After of the two witnesses ditional taken, thereby shall been the defendants affected should tion have to reasonable time within which collect adduce evidence have rebuttal. no resistance to the motion further therefore offer than Defendants it is should be furnished with

to insist before allowed proposed identify it is defendants whom to. names two (cid:127)witnesses, may such time be-allowed and that additional as neces- sary rebuttal evidence. collecting adducing 1908, Hoyt General May 4,

On Mr. Solicitor submitted a herein, additional testimony for leave take motion .to D. Maher of James as for the Commissioner reappointment, and the testimony, following and return said order take to 18,1908: made on May (cid:127) of the motion to take additional testi- consideration On .leave herein, appointed that James D. Maher be commissioner mony same,, is now ordered the court said motion here take the hereby, notice of be, due the names granted, and the same proposed to be given evidence defendants affected particular evidence rebuttal. give being granted and leave 1908, Mr. Solicitor General 13, Hoyt presented On October to take additional commissioner reports appointed oral, herein, and submitted an motion the- .testimony and on his motion it was ordered of his compensation, matter herein be testimony taken' opened, pub^ the additional ' filed. lished and t 13, Í908, day, following reports the same On October filed: . Commissioner were ^ Supreme Court States: Honorable United To the by an order undersigned'commissioner-Appointed entered May, -1908, to take return such day 18th cause this- produce, parties said cause should re- evidence additional- pursuant order he reports to the said' spectfully court.that .-the Tennessee, city Chattanooga, day 28th on the proceeded him in commission the- June, opened the conferred 'v. UNITED STATES 481 , . Appendix. city 1908, on first day July, court room said United States m., and, respective parties the counsel for the being o’clock a. 10 day to execute the said commission on that present, proceeded day day parties on which last-named following, offering testimony the was closed. commission said commission any more .The testimony of by the several witnesses receiving was' executed truth, testify were sworn in the said who testimony, named truth, evidence, truth but the before their nothing giving the whole testimony so was taken givemby stenographer them down and the is herewith presence undersigned in the submitted. n Said., typewritten testimony, comprising pages, has de- been clerk of this honorable court. posited with the Respectfully submitted. Maher,

Jambs D. Commissioner. Swprefne Court the United To the Honorable States: n to the order of this honorable court entered on the 18th Pursuant 1908, May, appointing undersigned day of as commissioner cause, testimony in thé I return above entitled take and additional city Chattanooga, proceeded state that I Ten- beg leave 28, nessee, 1908, city on Washington returned to June 3, 1908, $64.35 and that July my expenses follows . . . submitted, Respectfully Commissioner. Maher, Jámes D. order was made: following 14,1908, the On October Maher, that. Mr. James IX ordered here It now this, court, entered herein by order appointed commissioner take,and cause, testimony in this 1908, return additional May 18th, $200.00 his com- full for hereby, the sum be, allowed and he is th,e complainant paid by sum be said pensation and that and expenses, herein. Attorney-

. was- made 13, a motion On October defendants. dismiss to certain General to States, moves that Attorney-General, of the United on behalf Pool, Paul to the defendants herein dismissed as information be Jones, Perkins, A. Beeler, Marion C. Taylor, William B. John T. Powell, Powell, R. F. Cart- Baker, Cartwright, A. J. J. Claude Charles Varnell, Clark, Frauley, or “Sheenie” Joseph Fred Paul wright, John Brown, Hammond, Marquette, George Warner, William Alfred - respective recognizances from their discharged and that . VOL. CCXIV—31 . 214 U. S. to an order of this pursuant into honorable court made

entered herein January, 1907, day prejudice, however, without on the 21st prosecute this proceeding of the United States each right .to1 the other defendants herein with the same and all of force and effect if the above-named proceeding defendants were not 'dismissed.

Testimony has been taken and parties the cases all All closed. testimony reported by commissioner, printed, has been pursuant to published, and filed an order of the court. process Paul Pool with "in this proceeding

Efforts serve have He left soon Chattanooga been unsuccessful. after the lynching located, has since been to our according never information. proof The fails to disclose evidence implicating defendants Taylor, Beeler, Jones, Perkins, B.. William John T. Marion C. A. Powell, Baker, Powell, Claude Charles J. A. J. R. F-. Cartwright, Cartwright, complained John Varnell the acts of in the infor- mation. is not defendant John Jones the John Jones which the Govern- The testify having witnesses lynching party.

ment seen positively'that stated party. witnesses was not the same 1908, on motion of Mr. 13, On October Solicitor General of’counsel for the Hoyt, it was ordered complainant, by the be, court that the information herein and the same is hereby, defendants, as to the Pool, dismissed Paul T. Taylor, B. Beeler, Jones, William John Marion Pérkins, A. Baker, C. Powell,' J. Powell, Claude Charles A. J. R. F. Cartwright, Cart- Varnell, John wright, Clark, Fred Joseph Frauley, Or Paul “ Sheenie"Warner, Alfred Hammond, William Marquette and Brown. George n 2 3, 1909, On March and March the case was duly argued submitted to the Court Of Supreme United. States 25, 1909, May that honorable court rendered de- its -of the cision; court was opinion delivered Mr.-Chief Fuller,1 and oh day the following Justice order was duly. entered. In which Mr. Harlan, Brewer, Mr. Justice Justice Mr. Justice Day p. ante,

Holmes concurred. See for dis Mr. Justice opinion of Mr. Peckham, senting which Mr. Justice White Justice Moody concurred; did and Mr. not sit. Justice McKenna Mr. Justice v.

UNITED STATES . AMERICA, UNITED STATES OF ss: The President of United States,’ To Supreme the Marshal of the Court States, of the United- Greeting: (seal) been ap- Whereas has made to

pear to the.Supreme Court of the Joseph United Shipp, States that F. Gibson, Williams, Jerémiah Luther Nolan, Henry Nick Mays.e and-William Padgett have been adjudged by the court, said city now in session at the in the Dis- Washington, of Columbia, contempt trict tó be in of said court. We, therefore, you you command Joseph attach the said F. Shipp, Gibson, Williams, Jeremiah Luther Nolan, Henry Nick Padgett Mayse, and William so toas their Supreme have bodies said before the of Court the city United States the Washington, of the District Columbia, day of June, 1909, on the first of at 12 o’clock noon of that day, to answer contempt, by the said court the lately of said them it, said, committed as it is further, to do and what receive our said shall in court that behalf'consider. - - not, you Hereof fail . then and have there this writ. Melville, Fuller, the Honorable W. Chief Justice of the Witness States, day May, United this of 25th A. D. 1909.

H. McKenney,

James Supreme

Clerk the Court the United States. of of 1, Í909, And and on June thereafter the marshal produced this the defendants named court and a honorable before motion been made for to having leave file a for petition re- order was hearing following the made: this, The marshal of court made return to the heretofore attachment by defendants, producing issued herein the bodies of the Joseph F. Gibson, Williams, Nolan, Nick Shipp, Henry Jeremiah Padgett Luther Mayse, appeared open who court in and William their proper per- sons, thereupon the General moved the Solicitor court for sentence named, and upon the said defendants above counsel for the said de- petition for to moved court leave file for rehearing— fendants consideration, by It is now here upon ordered Whereupon, the court hereby, be, granted the same is to file motions for leave that leave rehearing thirty days. herein within petitions to file n the said above named ordered that defendants re- is further It be Appendix.- S.U. custody marshal for the manded of United States Eastern to Ténnessee, by deputized the marshal having been District herein, entering to. attachment' to be released on into serve .the penal each, sum in the of one thousand dollars condi- recognizances court, the further order before the tinned abide judge Court of United States for the Eastern District Ten- District nessee. took following proceedings

And thereafter place, ” certificate: following appears me, Judge of for the the District United-States Eastern Before Tenneesse, came, open court, personally in the District District Division of the Eastern States the Southern- Court the United Tennessee, court, produced the marshal of-said the' District Joseph Shipp, Gibson, F. Jeremiah Luther- bodies defendants Nolan, _Henry Mayse, Williams, Padgett ap- and" who Nick William ;-.and open proper persons was at the peared in court in their same there an in this copy of order entered thé time .cause exhibited me a. 1, 1909,.directing Spates Court' of United June Supreme custody entering recognb into be released.from defendants' said each, sum of one thousand dollars con- penal me before zances in. Supreme the further order of the Court of the United ditioned abide States^; -defendants, Joseph Whereupon Shipp, of said F. Jeremiah each Nolan,- Williams, Henry Padgett Gibson, Nick and William Luther court, me as did, open recognizance enter into before re- Mayse, Court, Supreme and did him- acknowledge said order quired penal United States be'indebted America self sum. upon thousafid.dollars, obligation such void condition of one Supreme prem- order of said Court in the further should abide effect; in full force and of said de- ises; otherwise to remain each custody. thereupon by the marshal from released was fendants whereof, my day I this have hereunto set fourth In hand witness , June, 1909. ..' - Edwárí> T. Sanford, United, Judge StatesDistrict Court the Eastern District Tennessee. .for filed behalf 1909; rehearing for was on 28, .petition June On (cid:127)' Williams. defendant filed 1909, for petition rehearing 30, behalf Oh June ó and Gibson. Shipp defendants v. TENNESSEE. JOHNSON ' Opinion of the Court. 214 TJ. S. 1, Mayse Nolan for July Padgett, On motions defendants rehearing were filed. petitions

leave file STATE OF ED JOHNSON v. THE TENNESSEE. THE COURT OF THE ’UNITED FOR APPEAL FROM CIRCUIT STATES THE EASTERN DISTRICT TENNESSEE. OF 1906; 19, May 24, March Abatement 1909. No. 2. Docketed announced appellant. of death of Case abated account referred to the statement of the case of is the appeal This 386. The order Shipp, original, ante, v. No. 5, p. United States and the case docketed granted allowing appeal' On was killed under day appellant 'March forth in the statement of the case set the circumstances 386. No ante, p. proceedings' United Shipp, States v. further On after May 24,1909, announcing were had the case. United States v. holding Shipp, decision- certain bf this -guilty contempt defendants in that case killing in connection with'the appel for their conduct case announced that the Chief Justice case, lant 'this to death owing, had abated of'appellant. Hewlett on motion was attorney appellant

Mr. E. M. for, allowing -the appeal. abated death Appeal appellant, Chief Justice:'

and case -dismissed..

Case Details

Case Name: United States v. Shipp

Court Name: Supreme Court of the United States

Date Published: May 24, 1909

Citation: 214 U.S. 386

Docket Number: 5, Original

Court Abbreviation: SCOTUS