The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-09

acquittd conscious innocence may make him. he mag
thus be fined In advnce and In spite Of nc
quitta through the necessity thus imposed upon him
In the present instance have employed Two coun el
when but for Mr. Homsns being retained as an ex n
from Tue outset felt t. should not s' have called upon
more than Of my Kind and distinguished friends The
District Attorney has inadvertently reversed tho order OF
the facts M cause and effect in speaking OF Mr. Hot
mans coming In to his assistance against my two counsel
The truth OF the matter il just the If this prac
tce has been occasionally allowed has been because the
point has not been raised being which counsel would
III general BE- rather reluctant to make II Is, at any
rate an abu'e without warrant Of law against the spirit
anu pos,cy OF our institutions which are hosioto any in-
ttencc Of the executive in tho Judicial department OF
'be an in al eases onerous to the accused and liable
FORMALLY presented hope that the abuse viii BE- cor
rtcted ~ this Honorable If then CONTRARY to tho
pfotaallty) Congress should deem IL desirable 10 autho
re tuch executive employment of extra prosecuting
council that body il session. and easily do
Hben closely examined, the only two in which this
po.nt has ut all occupied the attention Of judges.ho
Knapp case in 10 Pickering and the Henderson not
rlcd, will be found 10 confirm rather than initiate
ssans the views OF the question abaye suggested de
sire Il 10 bo under .ood that nothing personal in regard
10 Mr. Hoffman Is meant In any Of the reesoi above
stated against the practice protested against except tho
persona, compliment 20 his very distinsushed proics-
siohal abilities and e,cquencc which IL unalec.cdiy con-
tanfG In the very objection ~ being thus added on,
by Executive retainer apd fee extra engine OF supe
rcf and extraordinary power TO the already sufficient ma
chn'ry OF prosecution auth ,rsed provided and regulated
by law
Tbs III rc' Attorney said Il always the practice to
Holman should take part i'll the trial unless prohibited
by the Court
The Court remarked that he understood thcrc would
have been some further discussion the point and he
would have been much better sats1cd if nc had OPP
potunity 81 drawing up ha opinion u appears that in
and brings with him the learned counsel his
cate Tie counsel for the defence Objects and it beoom
the duty Of the Judge to Ray whether the objection shall
carly and he thought from the history OF early trials
was customary II was usual for the prosecuting officer
% ihc government in all important cases to call to III
cid counsel 20 assist him in the prosecution. And in
earlier times he had heard Of any objection except
the peculiar one in the casc Of Knapp. The practice
could net DC called Illegal one becguse II seems 10 hay,
passed along with The sanction If all the Courts he
thought 1t very proper practice so far The state
Courts concerned no had repeatedly had Occasion
himself when prosecuting officer of ucighborng state
TO call associate counsel to hs aid lie Thought the Court
was authorized TO take broader STILL and assume 1t
or where IL is believed that the act charged
whereby the country might have been preclpascd int
the President has perfect legal right to call other
counsel to the aid Of the prosecuting officer The Court
could not gay that the President had right to interfere
in the sainmen Of the laws Of neutrality with other
governments lie thought The objection innat be over
ruled ard Dir Hoffman be permitted to appear counsel
for the prosecution The Court would reduce this opinion
TO writing
Mr. Cutting then at considerable length proceeded to
argue that the defendants in this had the right
Is exercised in tho state Courts in reference to the
calenae of Jurors. Ito referred to stat at largcthe
design e which he submitted H. that there to be
difference in this respect between the Fedora! and the
States courts. sitting III the same state.
The District Attorney and Mr.. Hoffman contcnded that
he right 20 challenge not acknowledged in this
The jurors here all qualified to sit even in capital
cases aud the right to pcremplory challenge on the part
Of the accused is only acknowledged in capita! cases
Mr. Van Burcn followed and argued in support Of TIC
Defendants right and submitted that when court Of
the United States assemblies in the state Of New York ii
was subject to the rule Tue state courts. and that
the parties in M case wercl entitled to five percmpsory
challenges
The Court considered that the net Of 1910 merely
erreo 10 The mode Of bringing the Jurors into court tic
ihoughl wond be TOO much 10 say that u went SO ny
as to regulate the right Of chalcrgcf Congress intend
81 1t would have said So The claim is therefore over
ruled and they would proceed TO empanne the jury &C
cordng TO the usna mode of this court which bon6ncS
the riSht ot challenge 10 capital cases.
The jurors were then merely asked If they had formed
any opinion the subject and answering in the mega
tive they sworn The following their names =:
William 5. Cummings 7--slichael Conway,
2--wiiliam b Crumbic, s--Aaron Chichester,
3-Ienry A. I,camcn 9.-1hnmas w. Branch,
4.--Anthopy l. Crontcr l0Elishs ". Fargo,
'-Jchn A. Applcby, l1--Garrei ID. BREASTED
6.--Ihtma T. Murray, l2.--licnry II. Bolinc.
TAR DrsTRlor ATTORNEYS SPEECH.
Max IL PHASE YOUR iln.on xou. GENrLEnrs o.
irHilhe Grand jury for toe southern District Of
New York, have indicted John l.. O'Suiyan Louis
Schicsengcr and Armstrong irvine Lewis, for high
handed violation Of well known law Of The United States
They charged with mi lcncunor, in having been
ngaefa in The Citing OUT OF military e1pc iiioi
arars The !ss nd # Cuba u colony Of Spaiui nation
With which the United states upon terms of the most
cable felatious The exact purpo O. Of this enterprise
unknown except to tho leaders, who set II On foot
ical or il may have bcon merccnayi may have been
suhscrt government and il may have been - plum
dora province In point Of fact il i probable chat come
= The parties had Ill these purposes in view. Asmalter
IS ISM howcs. the objects and purpose Of the czpedi
itn are OF no importance for the statue ~, forbidden
amy aud MI military enterpri against the people or
poi'y q nations with whom the United states are at
peace II provides that, if any person shall within o,r
territory jurisdiction begin sci foot provide
on prepare the means for any military expedition
enterprise. 10 be carried on from thence. :
dhat is, from the territory or jurisdiction Of the
Ix.t. GtaI.., 10. ,,r
Of any foreign prince CT state or OF any colony or district
people with whom the United states are at peace eve
- person 50 offending hall 9 guilty OF high msde.
meanor and shall he fined not exceeding three thousand
dolars. and Imprisoned not more than three years on
will perceive therefore gentlemen that the purposes aud
Objects OF prohibited expedition of this nature Of no
consequence in legal point of view they all unaw-
full and oil forbidden by Inc well considered mandates
Of the law But with regard 20 The enterpri.r itself
which will be the ui.o, Of your deliberations on the pre-
tni occasion. IL VIII appear 10 have been began aud set
foo in this city 80 far have proof on the subject.
by aliens to Spain and 10 Cuby adventures Ut all
tops: Americans Italians Poles. IIungarians and Ger
MANLY who had wrongs Of heir own to redress
soi 10 which they about to turn their invading
steps The whole adventure seems to have been ono Of
coldbloodcd calculation 10 be carried on for the most
part ~ mcrcenary men Of broken characters and despe
rote fortunes. But the expedition was Enthusiastically
ard entirely uplawl-iilcgl in it, commencement iilc
gal in it. prosecution. aud without shadow OF justicn
ton hy amy reasons of law morals II Is woestab
llshcd ard well tied principle OF the code Of nations
that individuals ball without the express sanction
lersons property Of the citizens subjects Of
other countries. with which their Is 10 peace.
The United States terms OF any and concord with
a the nations of tho earth and the policy Of govern
meDt H. and always has been to preserve that harmony
and transmit II from generation to generation, the
greatest blessing which the living bcstow upon those
no to after them IL Is true, that occasions
may arise when matter Of absolute necessity the most
racfc nation. may be compelled to throw Oft the hab-
meps Of peace and put The harness Of war and when
those evil days shall conc will be the duty OF every true
hcaitcd American to rally around the banners Of his
country But in order 10 justify this extreme measure
this ultima ratio OF nationsthe government under which
live must Judge Of the necessity the time and the
occasion and thus give legality well Us dignity to
act which by constitution. ia under the control Of
Congress and OF Congress alone The President and the
senate may make treaties Of peace, but they cannot de-
clare war. he President aud Senate may appoint am
iasad'is to foreign powers TO treat Of high national
c,rs bit they cannot grant letters Of marquc and re-
rrsnl or make rules concerning captures land
The President and Senate may keep peace; but they
cannot plunge US into That power rests with Con-
gfessthc whole Congrcssthe House ~ Representatives
wen rs the seDate and all The nwmakpg powers must
concur in order to give validity 10 an act III war.
IL that hostities be forced by the