The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1853-04-06

further, and inquire whether all the pro-
| visions of the statute, in regard to such
person, are strictly constitutional If
not objected to by him, the mere witness
SEES could scarcely raise any such ques-
tion, certainly not until after some Judi.
cial declaration in regard to the matter.
This person is hen required, not to
give testimony against himself, for there
is nothing in the statute, or in any stat
ute of the state, which renders him fur.
Their punishable for the drunkenness.
But he is required to give testimony, in
regard to a transaction of which it may
fairly be presumed he will ordinarily
have knowledge, and in which he has no
concern, and which is an offence against
the law of the land. This is not very
different from an inquiry before a grand
jury. And there is no doubt the court
might, and would commit a witness re-
fusing to give testimony before a grand
jury, unless he had some excuse affect
ing himself
l have known joint perpetrators of
crime often compelled to give testimony,
in regard to the transaction against a
co offender, after having n verdictin their
own favor, and no one ever doubted such
testimony was legally imperative upon
the witness. If one chooses to plead
guilty to an offence there is no doubt he
may be required to give evidence against
others connected with him. in the per-
petration of the crime. And it can make
no difference that the offender is not
publicly known, or that the legislature
require this preliminary inquiry TO be
made before a single magistrate. 1t is
the same in law, as if required to be
made, and the testimony given, before
this court, or the county court, and a
grand jury. The law supposes hat the
| rights Of the witness and the accused
will be equally well protected, and the
= Legislature seem to be of similar opin-
ion, so far as this statute is concerned.
This section of this law is not more
G stringent, then arc the powers given to
the probate court, in relation to rcquir-
: ing persons complained of for cmbezzle-
ment, to make discovery, and not very
S different from the general powers of the
county court, in regard to compelling
witnesses to give testimony before the
court in tho trials before the traverse iu-
. ry, or before the grand jury. The only
thing, as it seems to me, which renders
e this provision of the statute so anoma-
lous in the eyes of some, and which ex-
? poses it to 50 much criticism, is, that it
@ is a provision of a peculiar character, in
:, some sense, although strictly analogous
:, to others with which we are most famil.
lar, and is not found in this precise form,
+ in regard to any other offence and sec.
ondly, that this inquisition is entrusted
e altogether to the discretion of a single
a justice, in the first instance.
e But it will be apparent, that if the leg
%islature think this class of offences more
: difficult Of detection than any other, it
would be expected they would have re.
t sort to other and more strict and search.
ing scrutiny and inquisition in regard 10
c them. And of all this we do not see how
o any one can justly complain, or hat any
one would be likely to complain. if he
was, and intended to keep himself limo.
p cent. And whether, this shall be con.
l Quoted by one court, or another, is only
matter of convenience or taste. But it
= will be obvious, that to be any practical
Y importance, it would have to be copided
to Il pretty numerous class of persons.
: This shows our opinion of the perfect le-
e gality and constitutionality of this 22nd
= section of the act, so far as this %relator,
or this case, is concerned.
We are now to enquire whether there
= has been any such irregularity in these
| proceedings, as to entitle the party to be
b, discharged.
t We think our statute, in terms, allows
/, the relator to controvcrt the return of
= the cause of his detention, or to prove
any other facts, which the cour. deem
material to the determination of the case.
But in the case Of EGDdrtc Horsley %
Vt. r. and in case in Grand Isle Coun-
ty, on the present circuit, founded on a
conviction under the statute of last year
upon this subject, it was considered that
, upon habeas corpus, the Court would
not re examine the proceedings of the
magistrate. If we were to do that, it
! would be extending the remedy, by ha-
bcas corpus, farther than it has generally
been extended in this state-and apply
ing it to another class of cases from what
it legally applies to.
, We think the magistrate has a discre-
tion, to determine, when the person has
made a full and fair disclosure, in regard
to the points, upon which he is required
to disclose. If it were not so, the pro-
vision could not practically amount to
anything, and would be worse than use.
less. And We do not perceive why there
is any more danger, in entrusting him
with this discretion, to determine wheth-
err he did refuse to disclose or when
he has made disclosure" in the Ian.
guage of the act, than to intrust him, or
any other court, with a discretion, to de-
termine when a witness refuses to give
his deposition, or to give testimony, in
any other form.
If in a case of this kind, the magis.
trate should refuse to hear the disclosure,
or after it was fairly made should per.
sist in imprisoning the person, we have
no doubt upon some proper process this
court would devise some mode 10 compel
the magistrate to do his duty. But of
course we should not interfere upon any
doubtful state of the evidence. We
should make the same presumption in
favor of the good conduct of the magis-
trate, to which every one is fairly emit
tied, until the contrary be shown. If we
volunteered to interfere and exercise the