The New York herald., 1851-10-16


Der N.-h the Matter Of Henry Carmei.-The argu-
this morning by the District Attorney aud stands fur
ther adjourned to this wv. dnesday) morning.
The following the brief and points OF the District
Attorney, motion TO quash writ Of error Sc l. The
motion Is dvisble into two branches going to quash
the entire proceeding the other simply vaOsts the
stay OF proceedings The motion TO quah presents
questions, one purely legal resting upon the form and
eba'aeer OF the writ the other, mixed question OF
law and fact Upon the first question. it viii be
sary to examine the history Of of error at common
Law, and the changes, II any, effected by the statute
What, then, the province power and proceed.
iDas Of and upon writs Of error at common laws
Frtt It's pre- vince was to the record for review
into the Court Of Kings Bench and from the Kings
beDch 10 the House OF Lords Second It's power to
reverse the judgment In not cspa for notorious
in the Judgment or other parts of the Iecori
ana IN capital cases to reverse attainders. Third In
cases OF mlsdemeaDors, wrts Of not allowed,
OF fcoure but on sufficient probable shown to the
grsptabls Of CONNIE right and ca deJo ustiiis
Fourth In capital cases wrs Of error were only allow
ga ca syaa and not without express warrant under the
General Chitty, CIR Law p. 749. Fifth In no case at
common law did the writ Of operate stay of
v Wilkes Burr Rep 1927 By r.. L., p 143. sec. 1,
1t was provided "that wrts Of error in all civil casee
and In criminal cases. not capital, should be considered
wrts Of right and issue Of subject the regua
tions prescribed by law and in all capital cases. wrts Of
error should be eOn,dsred wrts Of grace and should not
petition notice whereof houd be given the Attor
ney General Or prosecutor for the people" by the act
OF the Supreme Court, ard by r. L., page IA,
allowing every writ of error, is of the duties
appertainpg to the oce Of Chancellor and Judges of
the Supreme Court &c. We have thus the history at
common law and under statutes up $780, of wrts
OF error in capital cases and cases not capital The
suit Of the investigation to this tme is that writs of
error in capital were wr of grace that in case
not capital they wer, writs Of right that they were
them valid without the fiat Of the public prosecu.
tor or the aAocat of udgei and that in no did
they operate stay of execution What change any
has been effected in this respect by the revised
It important in this aspect to compare the phrase
r. l.. l4a 1t is evident by the marginal reference,
that the revisers in sections IA and l5 intended
lind two classes Of namely civil and criminal 10
not capital and criminal cases which capital. In
the former they are to issue subject to the regulations
still wts ndt Of error In
pta cases as they stood at common law and under the
former statute, writs of ,ace Sec Is, 2 X. s. 7io
re-enacs the former statute separating criminal
moi capital from civil casesleaves them at law
writs Of rights does away with the aoat Of judge or
a Of the public prosecutor except when intended to
operate stay of proceedings and then In section 10
points out the mode and manner in which they may be
made to operate The language Of section 49, the rela
tive adjective such; the singular number used namely
writ OF error the limit in the allowance Of III stay
toa justice OF the Supreme Court or Circuit Judge,
Excluding the Chanceor) clearly indicate that the
stay OF proceedings alluded TO was limited to writs of
error which were wrts Of right and did not include
wts OF error In capital cases Otherwise we have the
absurdy OF the authority being granted to the Chsnc
Vr nrs second conformity with eJustce3
OF error in capital cases, and yet this high funcionay
was not allowed at the same time TO grant stay of pro-
peculiar phraieology-"And no other officer sc, shall
be empowered to allow SUCH writs Of error that is ia
Is in this respsct 1t co fences with the word bus
no such writ OF errop /&;. Why this qualification!
why say writ! hsvs&hown that there are two kinds
OF writs OF error Irts OF grace and writs of
right. The latter rs the immediate sntecedent, is
the one Intended by the 10th section and the
are assigned by the revistrs themselves in 8 r. s,
p sol, where 1t appears they conceived that pro.
baby the issung OF writs OF error, now, Chat is,
before ls,92 Is ,ay Ct proceedings 10 all cases Il is
coIcrNeo that na IS the say should be restricted,
and the power confined to our highest Judicial officers"
Inc varlS3i sections alluded to-the word employed
stay proceedings was limited and intended so to be to
write OF error Ia criminal cases not capital on
ss,n nn,aa So 9s q, ooi sec, and keyi-
81 ayo 'oH, o;S ~ o hul IN regard 70 wrts
read sections i5 nd ,a ne same . cSnclioh.
cases not csnita Is writ ~ r;bt h, n ~ e.ru. 10
error shall stay or delay Sc unless Sc This renders
repuppancy othergiss exsting hstwaen s.nt;on ~
540 and section Is e5s no indse conrt ar on ,r
reprieye or susnepd tbe sxacni;on ~ sny eonr;t 80 ~
tesced 10 the punishment OF death sycent sbs ~ h
cases and I'm the manner berenaf.er nroy,dsd - Tba Re-
yissrs na,s 10 tbi iattar saenn Inc re
elusive (QuoteO referring 10 In. .oyisons Ear the
suspension OF executions, the Revisers say -" The
tusnens,en Of executions sesr, shsont.in s suo
sary Thoee stated are the only cases WHERE the in
terierence of anv Other norsyy tban ts. w W tn
C,overnor can he nscsssarv tW,tbo,t nr, u. ~ u ~ .e
MON whether the indces or comrs nos.ess tbc ~
su,r endnu executions 4, "a vct daamaS an n,n...
nower a. Tho conrt ~ .n.nara id, n an @
donht, and IA 40 obvions,v Ia na 10 shSs a,a s,,
with the mowers and dpt,s ~ tba Fxscn,iva ~.
ercise should be expr,sslv nrobibitsd I.nausaa 60,
hardly 20 further III Assumino that the ;ngs bsa no
mower 10 grant stav of nroceeSngs snd the rras.nt
writ OF error conaining ,cb exnre.s d;rac,;on har;
what l. The eIect Of sucb nrovsipn naas 4, avod ,h
whole writ or /, the direction hs,nc nui,v me- 49,
plusae, conceive the writ itself mn.t h sst asiss
IL the der WAS 50 parate from the writ rmn no nat
thereof the court might di.crimnate but as an
ts part Of the writ in the present case II or
Illegally allowed the whole writ must fail The C9nrt
cannot separate the writ into nars rstainn, nrosnS
rejecting the othertha excess OF M. anthoritv rsnSr
the whole void Tho writ is eventIv writ ,pdsr ths
18th and 10th sections and finas.icabs 20 ,bs l.;
hand, must fell III-The allowance Of the writ wa,
x,it a. 49, MS csnr. rrn Snns, tasss, aas osius
sa.ts b.. ,ba noror 90 rarrnln ,bi, ~ sNS
Tror,, ihs Letter ~ Jrtra Ir vt srase,