The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09


Here, TOO. the merits of the application were
looked into; and although bail was refused, II
was not because there was an indictment, but
| because the court were equally divided upon the
merits OF the application.
i Judge CowEN cites on the same page
| as the above, TO show that a person cannot be
| let TO bail under any circumstances after m
dicfment! and yet overlooked the one cited
above!
The case cited by Judge CowEs is the case Of
| Lord AIolaun, and even in that, il does not APP
pear from the report in Salk, phefher ne had or
had NOT been indicted! The case is referred 10
| in 2 Strange, Oil, Rex rs Dalton. The Chief
Justice there said, shat the Lord Mohun's
case was at Lord Rolt's chambers and not in
court, as the book reports it and that the lords
bdiied him after indictment for murder 1cas
found
Another case may be added, Of person in
dicted for murder being let 10 bail. We refer TO
the late Of the young student who was in
dicted for the murder of Professor Davis, at the
University Of Virginia.
As to the rights of courts TO bail, there is no
| difference between cases Of murder or the high
est grades Of manslaughter.-See Sufheriands
| opinioii in IdgIoes case, 5 Con-. So.
Selfidge, indicted in Massachusetts for man
slaughter was let 10 bail after Indictment
Goodrin, indicted in New York for manslaugh-
ter, was, after one trial. and the jury not agree
ing, let 10 Dau Dy liner JusuceopeN6.-VHe ea-
| er's Grim. Cas-. 434.
Thus il will be perceived, that whilst Judge
| CowEN is not able 10 cite single case, where,
upon application to bail after indictment for
murder the court has said the fact Of an indicf-
menf rds conclusive against IL, we have been
able TO cite several cases in which the applica-
ton was made after indictment; in some OF
which the indicted person was let 10 bail, and
| i'm others refused Yet in none of these cases
| .a tha ady mi he rfy m mi p
ci,tdes all inquiry. In all Of them the poloer
is conceded but not 10 be exercised, sunless in
/ extraordinary circumstances All the cases to
be found in which the idea is advanced that an
indictment prech4des all inquiry. are cases
where no indictment had been found; and the
remarks OF the judges upon that point mere
dicfa and unworthy the character Of grave au-
ihorty. That the court have the power TO look
beyond the indictment, may he proved to the
common sense Of every one, by few examples:
Suppose, upon crcumstantial evidence before
a grand jury person is indicted for the muir
der Of another, and is arrested and imprisoned
4 TO take his trial; suppose such prisoner should
afterwards sue oui hdbeds corpus, and upon
being brought before Judge CowEN should make
proterf Of The supposed murdered man, in full
life and vigor, his identity placed beyond all
question would Judge CowEN say, there being
an indictment By grand jury preciudes az
inquiry, and yoL must continue IN prison until
court shall be held for your trial Such are
the doctrines Of his opinion
/ Suppose Robinson, the murderer of Ellen
Jeirei, should be again indicted by grand
jury, and arrested and finally brought before
Judge Edwards on habeds corpus, for a dis
4 charge, on the ground that be had been once
tried for the same offence and acquitted He
produces the record Of acqnittal; yet, by the
decision Of Judge CowEN, the Judge iuho tried
him would refuse to look behind the indictment,
would refuse discharge. and remand him TO
prison 10 wait the sitting of court, there TO go
through the form of producing before jury the
record Of his former trial and acqnttal!
Jude CowEN iancies that he has cited a case
even stronger than the one we have supposed, Of
second indictment Of Robinson. He says:
"In Rex rs Acton O. Sir ISL, the prisoner had
been tried fo the MURDER and acquitted. A,erward,
single justice OF the peace issued warrant, charg-
ing him with the same murder, upo0 which he was
again committed On an offer TO show the former ac-
quittal in the clearest manner, the court refused to
hear the proof On the authority OF this case Mr..
Chitty al the page Just cited lays down the rule that
the court will not look into exrnsic evidence at all"
Now this case is stated by the Judge entirely
wrong. The person was not arrested for the
| same offence. The defendant was the keeper
Of prison, and was indicted by four several in
diciments for four several murders, and the ques-
ton on the trial was, whether place called the
Il
derly prisoners in, the four prisoners having died
, whilst so confined. The jury acquitted the de-
, PENDANT. A single justice afterwards, upon
e nen information of a ffih person having been
put into that room, and dying, thought fit to COM
4 nit the defendant again FOR a ftfh murder.
The Court refused to bail the defendant and
he remained until the Assizes; when no bill be-
e ing found, he was discharged,
I Thus instead Of being as Judge CowEN sup
/; posed, a commitment second time, after ac-
auittal for the same offence, it was for an entire
!. mem offence. We cannot but express our sur
! prise that The Judge should, even il he had found
such monstrous case, cite II with appreciation.
: Suppose a person in 1916 had been arrested
and indicted for murder and arson committed in
i the attack on Buffalo, by the British, during The
war Suppose such person brought up by ha-
K beas corpus before the Supreme Court, claiming
i the impunity Of soldier in time of war. Could
the Court say we are satisfied that that you can
, not be guilty Of murder, but, as the grand jury
have found an indictment, we are precluded
}. from looking into the matter and you neither
/. he discharged or let 10 BAIL but must remain in
prison until the proper court sits Tor your tral2
e Such are clearly the doctrines Of Judge Cow
EN- He says:
al" is proper to add that if the matters urged in ar
gument could have any legal effect in favor of the pri-
/ soner should feel entirely clear that they would be
of nature available before the jury only. And that
according 10 the settled rules Of proceeding habeos
corpus should have power to consider them
e as ground Of discharging the prisoner"
Now. instead Of such rule prevailing, we
have seen that numerous cases, both in this coun-
try and in England, prisoners have been let TO
4 bail after indictment for murder and other crimes
]. of the highest grade We have also seen "that
j, after man has been conricfed of felony, upon
II evidence by which plainly appears to the Court
he is moi guilty he will be let to bail"
c In the famous conspiracy cases in the city OF
!, New York, after the Lamberts had, by wriis Of
n error, reversed the judgments against them, Hy-
S att and Novel, who were under sentence and