Windham County Democrat. [volume] (Brattleboro, Vt.) 1836-1853, 1853-04-13

in Grand Isle County, on the present circuit, nm
ded on conviction under the statute Of last ear
upon this subject, it was considered that, ,on
habeas corpus the Court would hot re-examiiidbo
proceedings of the magistrate II we were t,ac
that it would be extending the remedy, by hseas
corpus, farther than it has generally been extendn
this State-and applying it to another class of c,s
from what it legally applies to.
We think the magistrate has a discretion, to DID,
mine when the person has made full and fair din
sure, in regard to the points upon which he is reqit
ed to disclose If it were not so the provision cid
not practically amount to anything, and wouc Be
worse than useless. And we do not perceive nv
there is any more danger in entrustng him with Ms
discretion TO determine whether he did "reiuse TO e.
close" or when he has 'made disclosure" in the In
guage of the act than to intrust him, or any 6thx
court, with discretion to determinewhen witnsss
refuses to give his deposition, TO give testmOnyiu
any other form.
If, in of this kind, the magistrate slould re
fuse to hear the disclosure OF after it was faily mad,
should persist in mprisoning the person. WI have no
doubt upon some proper process this court would de-
wise some means TO compel the magstrateto do his
duty. But of course we should not nteiere upon
any doubtful state of the evidence. We sllmld make
the same presumption in favor of the good onduct of
the magistrate, to which every is farll entitled,
until the contrary. If volunteered to irerfere &
exercise the discretion for the magistrate cases of
this kind, should probably have more wck of the
kind than would be altogether consistent wit our 9th
err duties.
We should require in such cases proof Of abuse of
authority of clear and decided character. And we
are not satisfied that any such thing has ocurred in
the present case, that could not interere here
if the application had been in any other forl
NOTE. 1t seems to me that all the proceedings in
the administration of the police in the ctis, where
they have jury trial whatever if the Offences which
they assume to punish by fine and imprisonment,
come fairly within this provision of the Unitd States
Constitution and of the Constitution of mos of the
States altogether void and illegal and violations
of the first principles of the liberty of Eughhmen,
as defended in Magma Chorta But no such idea
that every time policeman arrested nght-wail,
or drunken brawler, in New-York or London, h.
was violating the chartered rights of the citizen o,
subject, in the manner claimed here.
And 1t is difficult for me to perceive how any kf
the criminal prosecutions before magistrates can BE-
fairly vindcated if they within the general scope
of this article of the Bill of Rights Jury of six
men is not the jury indicated by the United States
Constitution or by Magma Charta any more than h
jury OF three men, or two And jury of the couh
try in the language of Bill of Rights, means a
jury of traverse Of twelve men, no doubt. And do
not believe 1t would be regarded as constitutional for
legislatures to provide that in trials for high crimes
punishable by Imprisonment in state prison. or other
personal disability, the offender should be tried by
jury of two, or six men, even. 1t seems to me we
could not give this Constitutional provision the wide
scope asked for it without, in effect breaking down
the most efficient and essential powers of our civil
government. And we entertain not the least doubt
that it was never in any country where the common
law prevails, intended to have any such scope.
And it seems to that the relaor has no occasion
eden, or that he suffers beyond all other citizens
Drunkenness, in various ways, has always formed q
~ a6a Of h R9 Year 1885, law W MAS h ii force Fl The
whereby persons who were in danger of becoming a
charge upon the town by reason of drunkenness, or
other dissipation, might, complaint of the select
men to two Justices and notice the person. be alb
souely deprived of their property and they and their
families put under guardianship for an indefinite term
That law and Others with different notifications have
almost always existed in the State and have been en-
forced when occasion required, and no one supposed
and Constitutional provision was thereby violated
And long acquiescence in regard TO Constitutions
al law Is as important as any other prescription and
as often resorted to- In my judgment, we could not
declare this portion of the law void without involving
in principle, to very great extent, the entire police
of the State in the same category. For no Jury tri-
al is, ever was, allowed in any of these or similar
cases. ......... The prisoner was remanded,
and the petition dismissed.
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