The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-05-26
the New lode a. traetAcs- T9ae Eyust Cassss
Editor Bennett versus BishOp Huglsss--At
tempt to Revive the Legal Practice OF the
Inuuls1fsOn ne0haxeS1

LIE iiiehuly suit al law which was commenced
some time ago, between Editor Bennett and Bishop
Hughes, relative to virtue, morality, philosophy,
religion, and variety of other important issues,
came before Judge Edwards, of the Circuit Court,
yesterday, aud presented some carious and inte-
resting points Of debate and difficulty, which will
probably 60 before the Supreme Court itself, and
possibly before the Court of Appeals before final
decision can be had.
1t is well known to legal gentlemen, that there
has been for long time in existence, in the Re-
vised Statutes of this State, clause providing for
the perpetuating of testimony, it is called, be-
fore trial has taken place, for the purpose of pro-
vding against the casualties and contingencies to
which human life is liable. This statute, how
ever, has very limited operation, and does
not touch the ancient rights or privileges of
parties ltigant At the last session of the Legis-
lature, a law was passed OF very strange and in
definite character, but containing some clauses
which would seem TO bear the construction, that
persons beginning asuit, or defending one, might
be mutually called upon by each other, before
Judge in court, or in chambers and thereby COM
PEELED to testify against themselves under certain
restrictions but the penalty of refusal is left in
vague and indefinite form, as is contended by
| some.
Yesterday, the first case under this new code of
procedure, brought, we have already stated, be-
fore Judge Edwards was the suit of Editor Ben
nett rs. Bishop Hughes, for some publication made
by the latter in aholy Catholic journas published
In this city, by the name of the Feeman's Journal
and Catholic Register The counsel whom Bishop
Hughes selected, were the most learned of this
city, consisting Of Charles OConor, ESQ.,, eminent
for his eloquence and legal talents, and his asso-
clate, also MIR. O'Conor, who, it may be taken
for granted, is equally learned and eminent,
although we don't know exactly to what extent
he surpasses the late Chancellor Kent or Lord
Mansfield. The counsel for Editor Bennett was
Benjamin Galbraith, ESQ.,, who is also we'll known
at the bar, and who seems, on every occasion, to
understand himself and the case of his client, Der.
fecty WELL
The case was opened at ten o'clock, Judge Ed
wards being present, the counsel arrayed on both
sides, and the witness to be questioned in attend
ance, according to- the process of the Court. AT
the opening of the case, Mr.. Galbraith presented
preliminary question for the consideration of
the Judge, to the effect, thatun the Revised Sta
tutes, well under the law passed by the last Le-
gisature, there was no authority to compel wit
to testify against himself at that stage of the
proceedings, without his own free will and consent
Mr.. O'Conor replied to this objection. He quoted
from the Revised Statutes in reference to the enact
ment about perpetuating testimony, and continued
his quotation from the law of lS47 insisting that the
witness was bound to testify, under the penalty of
fine and Imprisonment, in this case He endeavored
to impress on the mind of the Judge and the oppo-
site counsel, the accuracy of the view which he
took of the statute, and the construction which he
put upon the combined provisions of the whole
Mr.. Galbraith replied to this statement, by deny
ing entirely the authority of the Judge in chambers
to infict any penalty-either fine or Imprisonment
except such as was pointed out by the statute.
On this presentation of the case, Judge Edwards,
in few but pertinent remarks explained the con-
struction which he put on the statute-that such a
proceeding ,ods contended for By Mr.. o. Conor,
,could be inqusitorial and contrary to the ,chole
spirit of institutions; and he did not think that
such could be the meaning of the trainers of the lar,
the intention of the Legislature nor did he think
1t capable of bearing the construction pm, upon
ii by Mr.. O'Conor.
This decision upset all the proceedings which
were so nicely and so learnedly prepared by Mr.
O'Connor, and gave great and curious legal vic.
tory TO Mr. Galbraith, whose opinion and legal
acumen were sustained by the Judge. This
believe is the first defeat, in nice legal practice,
which the learned Mr.. O'Conor has sustained of
late at the bar of New York We are sorry for
him; regret his defeat; but law is law, truth is
truth, right is right, religion is religion, and hum
bug is humbug.
! We cannot let this first remarkable proceeding
under our new laws and new constitution pass by,
without word that may take effect in more places
than one, and in other minds than lawyers.
The law directing the examination of parties to
suit by statute, has been very loosely and inco-
herently worded; but yet we doubt whether il was
the intention of the Legislature to attempt the estab
lishment in this country, of those legal proceed
ings which have marked the history of the Inqul-
sition in Spain, the Court of Star Chamber in
England. The construction which was attempted
by Mr.. O'Conor to be put on this statute, had it
been concurred in by the Judge, would have been
no more nor less than the erection ola Star Cham
Der, or Holy Jesuit Inquisition, in the legal
practice of this State. We hardly think that
Mr.. O'Conor, enlightened and liberal as he
must be, would willingly or knowingly encourage
or aid in the establishment of legal practice
which was repudiated centuries ago by every in
telligent people in the old world. Perhaps he was
not aware, III the iHuitPHciy vi HIS pursuits,
or the great quantity of his learning, Of the ten
denotes of the fatal decision which he wished to
give to the new code of practice. He may have
been deceived from another quarter, more init
mately acquainted with Jesuit practice, and more
cognzant Of the consequences of first step in the
mode of conducting examinations, that would have
revived the Inquisition, and made opening for
Jesuit practice in this free country, as sort of nest
egg and retreat for the practice and code which
are now abrogated, even by his Holiness the Pope
himself and dscounenanced by every liberal mind
! in Europe. We regret TO think-thoueh can
not cry-that Mr.. O'Conor should have taken such
a step or such course for the purpose Of attempt
ing to establish such practices; but as we have
l-or., his unlincss The pcnc