The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-06-13

dsbstseb,e question Of Law in criminal cause should
suspend their action and remit the 10 Circuit
r unlees the Questions Of Law in the Judgment OF
the Court Of character that it must udicaly declare
them both difficult and important Those suggested In the
memorandum handed me by tho defendant may of
them be new and not yet adudcsted In the United
sates Courts and perhaps were never before
necessarily clothe them with the qualities of difficult and
important Questions Of that character necessarily
arising in the administration Of criminal law. Scarcely
indictment, under old statute is brought TO
trial without there being started and seriously discussed
question after question vitality important to the defence
or perhaps to the prosecution yet the Courts cannot
consider themselves authorized to disembsrrass them
selves from the consideration and decision of those ques
tons by sdjouIning them to the Circuit Court very
often when Of the utmost Importance in the
to declare them difficult The Grand Jury at the pre-
sent term have already brought in thirteen
and yesterday presented six for offences against statutes
Of the United Staes all cf which last for offences
never prosecuted in this court since have presided in
it. Still it is no less my duty to proceed and hear the
than the old however apparent it may be that
points important to the defence Of the parties
cused may arise under many or all OF them In the
present 1t would be most grateful to my feelings
to be relieved Of the burhen Of the trial. not only be-
cause there must necessarily devove the Court great
fatigue and anxiety In prolonged and actively con-
tested surrounded with many other considera-
tops than the intrinsic merits presented by the issues
but especially because 1t plainly signi6ed in this pro-
ceeding that the defendant less to change
the Judge than the tribunal In the points submitted
by him. as the foundation of the motion, paragraph
trct Judge had in advance Of argument in his charge
to the Grand Jury given strong and decided views Of
the bearing Of the 1t is true the struck
through the lines OF the paragraph but evidently not
intended to oberate them that the sentiment should
fail being communicated to the judge take no excep
tons to the suggestion The party had right to make
it, and there would have been nothing offensive indie
eoroas in the objection Il expressed openly Most plainly
affords legal for the judge declius urisdic
ton In the case for the party to challenge the pro-
priety Of his acting in it, judge, from his Office and
pwAf
lard and from study and reflection, to have formed
opinions upon the purport Of all positive laws OF gene
is informed upon these subjects the better he quail
fed for his place. His opinions should not be in
flexible nor stubborn, but open to re examination
upon new light brought to his attention. still
his position is the of that Of juror instead OF
having mind free Of all knowledge impression on the
subject to BE- submitted to his judgment his mind ought
BE- strepgly nsbued with the he administer
N to be prepared to apprehend the business Of
criticisms or explanations applied to it. Under this
theory party acquires no benefit BY appealing or trans
uniting his cause from judcatory to another, to
avoid its being heard by judge who had formed an
opinion upon the meaning Of the law because in every
step upwards from the lowest that of last
Sort he must be presumed to meet judges of
tured and liked opinions upon the subject The policy
and advantage of this ascending scale Of review to
bring the matter ultimately before those who pre-
pared by previous study and experience to pronounce
definitely upon the subject cannot think, therefore,
that the act * Congress contempates that judge
would be justified in RENTING case to the Circuit
Court rom the District Court because he had given
particular exposition to crimes act when 1t Is not
made TO appear his exposition is in conflict with that OF
any other court When it is discovered that judges in
different sections of the United States put varying inter
prctatons upon the criminal statutes it is then cear
important that the judgment of the Supreme Court
should be invoked to give an exposition which shall
become rule to all the tribunals Of the country.
Independent Of these general considerations consider
improper to remit causes to the Circuit Court in this
district except in of manifest and grave
Importance The Circuit Judge sits in that court only
twice and unable to devote the time necessary
to dispose of the business exclusively within its uris
diction lie might be compelled. in order to clear the
ais TO lay aside his civil calendar and give his atten
on to which, BY law the District Court is required
to hear lie feel constrained to remand to the
jurisdiction, and he would be thus imposing great
delay and enhanced expense upon individuals and the
government by Of the improvident concessions
Of the District Court consider 1t my duty to dispose
OF the business cast BY the law and however
willing may be personally to be freed Of these particular
classes Of cases, l discover nothing in them which
authorizes to send them from this court to the
giving the order ked in the present and also in
those Of Lewis and Schessinger
Tho District Attorney then suggested that Is the warm
weather approaching early trial would be desr
able and though he had yesterday mentioned the fest
Tuesday in July for the trial Of the he would b.
ready on the part Of the United States, In q week
Mr.. 0sullivan said that he could be ready in q
week nor even early July 1t will be necessary for
the defence TO gt the evidence Of parties the South TO
prove what their intention really
The court unmarked that commission could not be
issued from this court criu inal
MIR. oSuivan-He would go and obtain the testimony
in person.
The court said the could be act wcdnes
day next, and might then be postponed on afhdavts