Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1853-04-07

was made liable to still further punishment af
forwards or not.
What essential difference in principle. then
will it make, whether the arrest and detention is
for disturbing the public peace, in state of in
toxcatien, or committing more grevlous Of
fence? " hen we concede to the Legislature in
one case. it follows in the other, unless they are
restricted in some way, which is not the case, as
it seems to us. Few persons, at this time, would
be inclined to deny the right in the ,scase sup
posed And we think il follows of course in the
case Of a breach Of the peace in a state of lntox
ication, as much as in the case supposed.
This portion of the statute is peculiarly ex-
pressed. and as it seems to me, needlessly mi
mute in detail. But that was done probably out
of over caution, and to prevent misconstIuction
of the purpose of the legislature. ltseems 10 me,
that public and domestic tranquility" mean
nothing more than the public peace. The public
peace is made up Of the aggregate of individual
peace, and domestic peace IS nothing more, than
a subdivision of the one, and the aggregation Of
the other. One cannot lawfully disturb the quiet
of domestic life. by that same kind of offensive
and tumu ltuous carriage, which would any where
constitute breach Of public peace, although no
one, but The family of which he Is member,i is
present.
The statute then, on fair construction, we
think, provides that if one be in that peculiar
state OF intoxicatlon, whereby his conduct puts
those about him in reasonable fear of bodily
harm, any sheriff or other officer named may
take hm into custody, and detan HIM, until he
is sober enough to testify. This is the first point
at which it would be reasonably sale to have
such person go Of large. This any citizen
might always coin England or this country. upon
the mere ground OF preventing the continuance
Of the disturbance, on the same ground that one
may arrest. without warrant, to suppress a riot
-SpauIding and Preston. II ". Reports, and
cnSeS cited where The subject is fully discussed
This we think is scarcely to be regarded as in
the nature of punishment for II crime, or offence,
committed by the one arrested, but 10 prevent
the continuance of offence, or the re commission
oft And In whatever light II is viewed. to de-
ny the right to the conservators OF the public
peace throughout our country. would be at once
| to strike a death blow to the whole police power
of the country. Il it is not desired TO carry the
restraint beyond the point o. returning s0berness
all will perceive at once the very manifest alb
surdlty OF attempting, in practice. to apply the
provisions OF the ION arllcle OF our State Bill of
Rights TO the matter. A torln,l complaint and
warrant, and forna jury trial, would be likely
to continue quite beyond the term OF returning
suberness
After the person arrested is snber, the pro-
ceedlngs seemed to US to be of the nature OF
preliminary proceedings against an unknown
person suspected OF an offence against the
statute. connected with the prisou. Aud assnm
ing that such inquiry Is IN regard TO legally
punishable offence, it is not necessary to 20
further and Inquire whether all the provisions
of the statute, in regard to such person strict
" constitutional. II not objected to by hun,
the mo.e witnesses coudscarcey raseary such
question, certainly not until after some judicial
declaration in regHrf 10 fire ~lnaiter THIS per-
syn is thenreqpired, not to give4estimony against
himself, for there is nothing ~ the statute, or
in any statute Of the STATE, 7whlch renders him
further punishable for the drunkenness. But
he is required to give testinony.Sin regard to
transaction ot~which 1t may fairly be presumed
he wiltoldlnarly 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 grand jury.
And there is no doubt the court might. and
would commit witness refusing to give testi
nUny before grand jury. unless he had some
excuse affecting himself.
nave hllpWH gum pttpUitihhoio VI "''u'N w
ten compelled 10 give testimony, in regard to
the transaction against CO offender, after hav-
ii ing Veillct IN their own favor, and % one ever
upon the witness. n one chooses 10 plead guilty
to an offence there is no doubt he may be re-.
quired to give evidence against others connect
cd with him, in the perpertrarlon of the crime.
And it can make no difference that the offender
IS not publicly known, or that the legislature re-
: qulre this preliminary inquiry 10 be nnde before
single magistrate. 1t Is the same In law, as
if required to be made. and the testimony given,
before this court, or III county court, and
grand jury. The law slppo'es that the rights
of the witness and the accused will be equally
veil protected, and the legislature seem to be
Of similar oplnion, so far as this statute in
concerned.
This section of this law is not more stringent
than are the powers given to the probate court,
IN realonto requiring persons complained of
for eInbeSzlement, to make discovery, and not
very different from the general powers OF The
county court. in regard to compelling Witnesses
to give testimony before the court in the trials
before the traverse jury, or before the grand j''-
~. The only thing, as it seems to me, which
renders this provision of the statute 81 anoma-
lous III the eyes of some, and which ex oses it
TO sn much clrtslsm, is, that it is a provision OF
peculiar character, in some sense. although
strictly analogous 10 others with which we are
most familiar and is not found in this precise
form, IN regard to any other offence; and second
ly, that this inqulstlon is entrusted altogether
to the direction of single usllcr, in the first
Instance
But 1t will be apparent. that if the legislature
think this class OF offences more difficult of
detection than any other. It would be
expected they would have resort to other and
more strict and searching scrutiny and inQnlsl
ton In regard to them. And of all this we do
not see how any one can justly complain, or
that any one would BE- likely to complain, il he
was, and intended to keep hlmset innocent.
And whether, this shall be Conducted by one
court, or another, Is only matter of convenience
or taste, But it will be obvious, that 10 be of
any practical Importance, II would have to be
contded to pretty numerous class of persons.
This shows our opinion OF the perfect legality
and consrltuIlonalty Of this 22d section of the
act, so far as this reaor, or this case, is concern
ed.
We are now to enquire whe.her there has
been an' such itfegularity in these proceedings,
as to eniile The party TO be discharged.
We think oar statue. in terms. a lows the re-
ator to controver the return OF the cause of hIs
detention, or to prove any other facts, which the
court deem material to the deermi alton of the
case But IN the case OF Erpdrie Horsey %
VI. X and in case in Grand Isle County. an
the present curcnt, founded on convection
under the statute OF last year upon this same sub
jecl 1t was considered that upon h IDEAS corpus.
the Court would not re-exam the proceedings
OF the magistrate. 1t we were to do that, #
would be extending the re nedy, by habeas cor
pus father than it has generally been extended
in this stale---and applying it to another class of
cases from what it legally applies to.
We think the magistrate has discretion to
determine. when the person has made full and
fair DISCLOSURE, IN regard to the points upon
which he is required 10 disclose. If It wers not