made by this court, the sheriff was to be regarded as bailee of the United States or still held the prisoner in the name of the State alone. Either way, the order suspended further proceedings by the State against the prisoner and required that he should be forthcoming to abide the further order of this court. It may be found that what created the mob and led to the crime was the unwillingness of its members to submit to the delay required for the trial of the appeal. From that to the intent to prevent that delay and the hearing of the appeal is a short step. If that step is taken the contempt is proved.

These preliminaries being settled the trial of the case will proceed. MR. JUSTICE MOODY took no part in the decision.

And on December 24, 1906, the following entry appears of record:

The opinion of the court on the preliminary questions of law herein was delivered by MR. JUSTICE HOLMES (MR. JUSTICE MOODY took no part) and the cause was ordered to proceed.

On January 14, 1907, there was filed the following:

Motion to arrest defendants and require recognizances to abide the future orders of the court.

The court having decided the preliminary questions of law herein against the defendants and ordered the case to proceed, the AttorneyGeneral moves the court to order writs of attachment to issue that the said defendants may be brought into court and required to enter into recognizances, in such sums, respectively, as to the court shall seem adequate and proper, conditioned for their appearance whenever required and to abide the future orders of the court herein, said recognizances to be given, with good and sufficient sureties, approved by this court, unless it shall seem to the court appropriate that the said defendants, or any of them, should be permitted to appear and furnish such recognizances before the judge of the Circuit Court of the United States for the Eastern District of Tennessee, in conformity with or by analogy to the provisions of section 1014 of the Revised Statutes of the United States, in which event it is further moved that the sureties be approved by the said judge and by the justice of this court assigned to the Sixth Circuit.

CHARLES J. BONAPARTE,

Attorney-General.

HENRY M. HOYT,

Solicitor-General.

The motion on behalf of the defendant Shipp and his deputies prayed that the witnesses named

Be ordered to be subpoenaed to attend at such time and place as the court may designate for hearing the testimony in this cause, and that it be ordered by the court that the costs incurred by the process of subpoena, including the fees and mileage of said witnesses, be paid by the United States, in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States, or in lieu of this that the court, if it deems the same expedient, direct that the testimony be taken in this cause by a commissioner duly appointed and to sit at Chattanooga or some other designated point in the Southern Division of the Eastern District of Tennessee.

The motions on behalf of several of the defendants also prayed that:

Affiant is not possessed with sufficient means and is actually unable to pay the fees of said witnesses, and he prays the court to order them to be subpoenaed, and to direct that the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States.

On January 14, 1907, there was filed the following: Motion for the summoning of witnesses and to take testimony herein.

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

CHARLES J. BONAPARTE.
Attorney-General.

HENRY M. HOYT,

Solicitor-General.

And also motions on behalf of certain of the defendants for the summoning of witnesses at the expense of the Government.

On January 14, 1907, Mr. Attorney General Bonaparte, of counsel for the complainant, submitted to the consideration of the court a motion to arrest the defendants herein and to require them to enter into recognizances to abide the future orders of the court and also a motion as to taking testimony herein, and leave was granted to counsel for defendants to file a brief in reply thereto.

And afterwards, to wit, on January 17, 1907, defendants Shipp and others filed the following brief:

MOTION FOR ARREST, ETC.

The only object of issuing attachments is to bring before the court the parties charged with contempt so that they may be heard, if defense they have. Rapalje on Contempts, § 100.

This course is discretionary with the court when there is any other mode of procedure open. The usual practice is by a rule to show cause. (Rapalje on Contempts, § 9, 103; United States v. Anonymous, 21 Fed. Rep. 761.)

The Government did not ask for attachments in the information, but very properly followed the usual practice, praying only for the issuance and service of "a rule to show cause, if any there be, on a day certain, why said defendants and each of them should not be punished as and for a contempt of this honorable court."

According to some authorities the personal appearance of the parties might have been required: (Rapalje on Contempts, § 109.) But the Government acquiesced in their appearance by counsel and by answers personally signed and verified.

The preliminary matters set up in those answers have been held insufficient cause, and the proceeding now stands as to each defendant on his denial, under positive oath, of the offense eharged. This is surely sufficient cause as against an information verified only on information and belief until the Government produces proof. We submit that the production of that proof is now the only course open to it. The Government has waived its right to an interlocutory attachment, if it had such right. It has waived the personal attendance of the defendants in answer to the rule. Now, as against their sworn denials, it asks, merely on its naked information, that the defendants

be arrested and committed in default of bail. There is no attempt to show any facts to justify a different course from that taken in the prayer of the information.

We submit that to grant this motion would subject the defendants to hardship and indignity which the state of the record does not justify and which would violate the presumption of innocence this court has so strongly upheld.

As to Joseph F. Shipp, sheriff, and his deputies, all this has peculiar force. They are officers of justice of the State of Tennessee. Their time is required in the service of the courts and the preservation of the peace in that State. Courtesy to the State and the tribunals they serve makes regard for the presumption of their innocence highly appropriate as well as just.

MOTION TO TAKE TESTIMONY.

We consent, of course, to the taking of testimony. We consent, too, for the convenience of the court, that the testimony be taken by some disinterested person to be appointed by the court for that

purpose.

We pray, however, that the person so appointed be directed to take the testimony at Chattanooga, where all the witnesses on both sides reside. If it should be found that any reside elsewhere we consent to taking their testimony wherever desired.

I am informed and believe, and so state to the court, that the defendants are almost without exception unable to bear the expense of traveling to Washington and remaining there during the hearing, as they would have to do or submit to a practical denial of justice. To compel them to attend a hearing away from home would be in itself a severe punishment, and trial should precede punishment. The analogies of the Constitution and the laws, too, make the place where the offense is charged to have been committed the appropriate one for the taking of the proof. As the sheriff and all his deputies are parties, their absence from their homes would also work harm to the course of business in the courts and to the preservation of the peace of their county.

Respectfully submitted.

Mr. Judson Harmon, Clift & Cooke and Mr. Robert Pritchard, attorneys for Joseph F. Shipp and others.

On January 21, 1907, the following entries appear of record, viz.:

October Term, 1906. No. 12. Original.

On consideration of the motion to require the defendants herein to enter into recognizances for their appearances hereafter,

It is now here ordered by the court that the defendants in this cause enter into their personal recognizances in the penal sum of $1,000 each, conditioned to abide the further orders of the court before the judge of the District Court of the United States for the Eastern District of Tennessee.

On consideration of the motion as to the taking of testimony herein,

It is now here ordered by the court that a commissioner will be appointed to take the testimony of witnesses at Chattanooga, in the Eastern District of Tennessee, and counsel on both sides are given ten days in which to agree upon a fit person for such appointment and communicate the nomination to the court.

On January 25, 1907, the Attorney General filed the following:

Suggestion in reply to brief for certain defendants on motion to take testimony.

In the brief filed by certain of the defendants reasons are suggested why the testimony should be taken at Chattanooga, and the court's order directing that it shall be taken before a commissioner appears to designate Chattanooga as the place. The Attorney-General now respectfully requests the court to reconsider this designation and to. designate the city of Washington, at least for the purpose of taking the testimony of witnesses for the United States, for the following

reasons:

1. The defendants themselves need not attend the hearings in Washington unless, as is unlikely, they wish to be personally present, and their counsel will probably find it no serious hardship to come to Washington.

2. If the defendants are, in fact, inconvenienced and suffer some hardship through loss of time or money, or both, these are ordinary and necessary incidents of their situation. They rest under a charge which must be tried. A prima facie case has been made out, in the VOL. CCXIV-30