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


either in Jail not, for in that respect there is prob
ably difference Is it supposable that any one, e.
without any special statute, would regard this as
unlawful! And if not, then a special statute requi-
ring it could not be so, than the act, without
ny express law.
And if the legislature should see fit TO punish hom-
icide committed in state of ntoxcation, by having
the person arrested and detained until he became
Der; could he complain of the arrest and detention,
without warrant and trial by jury any more than if
ne still liable further punishment for the Of
fence, he could object to the preliminary detention I!
1t seems to it could make no difference, as the
power of the legislature, order the arrest and de-
tention of one, who had committed homicide, in a
drunken fit until he becomes sober, whether he was
made liable TO Sill further punishment afterwards or
not.
What essential difference in principle then will it
make, whether the arrest and detention is for distur
bling the public peace, in a state of drunkenness, or
committing more grievous offence When we con-
cede TO the legislature the right in case it follows
in the other unless they are restricted in way,
which is not the case, as it seems to Few per-
sons this time, would be inclined deny the right
in the case supposed And we think it follows of
course in the cas9 of a breach of the peace in state
of ntoxication much in the case supposed.
This portion of the is peculiarly expressed
and it seems TO me, needlessly minute in detail
But that done probably out of over caution, and
TO prevent msconstfuction olh purpose of the leg
islature. 1t seems to me that ''pubc and domestic
tranquility mean nothing than the public peace
The public peace is made up of the aggregate of in
dvidual peace, and domestic peace is nothing more
than the 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
tnUp
breach of public peace, although no one but the
family of which he is member is present
The statute then, on fair construction we think,
provides that if one shall be in that peculiar state of
intoxication, whereby his conduct puts those about
him in reasonable fear of bodily HARM any sheriff. or
other officer named, may take him into custody and
detan him till he is sober enough to testify. This is
the first point which it would be reasonably safe to
have such person go at large. This any citizen
might always do in England this country upon the
ground of preventing the continuance of the dis
turbance upon the ground that any one may ar
rest without warrant, to suppress rOt.-Spauldng
and PreStOn 81 VI. Reports, and cases cited, where
the subject is fully discussed.
This we think is scarcely to be regarded in the
nature of punishment for crime, or offence commit
ted by the one arrested, but to prevent the connu-
ance of an offence, or the recommisson of it. And
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. If it is not
desired to carry the restraint beyond the point of re-
turning soberness, all will perceive once the very
manifest absurdity of attempting in practice TO APP
ply the provisions of the 10th article of our State
Bill Of Rights to the matter. A formal complaint
and warrant, and formal jury trial, would be like
y 10 continue quite beyond the term of returning So
berness.
After the person arrested is sober, the proceedings
seen: - 80 70 he of he nainre Of ',ialirnnoT'' -
ceedlnes against an unknown person suspected OF an
offence against the statute connected with the prison
err. And assuming that such inquiry is in regard to
legally punishable offence, it is not necessary to 90
further and inquire whether all the provisions of the
statute, in regard to such person, strictly consti
utona If not objected to by him, the mere wit .
esses could scarcely raise any such question: certain
y not until after judicial declaration in regard
10 the matter This person is then required not to
give testimony against himself for there is nothing in
he statute, in any statute of the State which rem
lers him further punishable for the Drunkenness
But he is required to give testimony in regard 10 a
of which it may fairly be presumed he will
ordinarily have knowledge, and in which he has no
concern and which is offence against the law of
The land. This is not very different from an inquiry
Deloe BIdHu jury anu tnete is no uOuDL the court
might and would commit witness refusing to give
testimony before grand jury, unless he had some
excuse affecting himself
l have known joint perpetrators of crime often
compelled to give testimony in regard to the transac.
lion against co-olender, after having verdict in
their own favor, and no doubted such testi-
mony was legally imperative upon the witness If
one chooses to plead guilty offence there is no
doubt he may be required to give evidence against
others connected with him in the preparation of the
crime. And it make no difference that the often
der is not publicly known, that the legislature re-
qure this preliminary inquiry to be made before sim
gle 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 grand jury The law sup
poses that the rights of the witness and the accused
will he equally well protected and the legislature
seem to be of similar opinion far as the statute
is concerned.
This section of this law is not more stringent than
are the powers given to the probate court in relation
to requiring persons complained of for embezzlemen
to make this 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 jury. The only thing, as it seems to me-
which renders this provision of the statute so anoma
ous IN the eyes OF some, and which exposes it to so
much criticism, is, that it is provision of peculiar
character, in some sense, although strictly analogous
to others with which are most familiar and is not
found IN this precise FORM in regard to any other of
fence and secondly that this nquiston is entrusted
altogether to the discretion of single justice, in the
first instance.
But it will be apparent that if the Legislature think
this class OF offences difficult of detection than
any other it would be expected they would have re-
sort to other and strict and searching scrutiny