The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-18

therein charged and On the facts here ADM ted III
Fernando Wood, individual, had committed crime,
he was like every other citizen subject 70 arrest IT he
had done ythpg which subjected him 70 arrest under
or for any other ~ rsona wrong he was az
to sIrest az other individual IN the COMMUNITY and
would ~ quickly and az submssiveiy respond TO the law
any oher CT z,p. But the chief magistrate OF this
city, IN the discharge Of bis duty which admitted on
the papers they stood before the court that whatever
s nM s was Oo ony cass o
warrant issued by the Recorder, or by hs Honor,
for any of bis acts as Mayor, but that he was
esemps from presentmert or Indictment by the Grand
Jury. and what WAS the penalty he would have 70 pay
he acted improperly II was not petty larceny war
rant BY petty larceny msgs'rae, but the right 10
appeal to the power could supervise his proceedings
and to appeal 10 the iranchseto the people who
BIN the power TO exc rcise in their name The speaker
faidbe might appeal every charter that grant
cd to this city, either by king by repubc prove the
facts hich he stated but FOR the purposes OF his argu
granted dcspotc times when people were not snip
posed to be capable of self government He would
Gn hs xScS would S Se was OsmOs
the records Of infancy the celebrated Rump Parliament
in the time Of Charles the First to show that the Mayor
was mpt from arrest and indictment for any that
he did ny virtue of bis official position Mayor OF the
city. He would refer 10 the 49th section:-"Thc Grand
Jury OF the county may present any officer other than
BY or holding office under this charter but only upon
testimony from witnesses who personally cognzant OF
the they testify and after the peson charged
sba bave had rear enable opportunity appear before
sad Grand Jury in persor in explanation thereof This
presentment may charge such ofcer with wilfuI and
fraudulent om sion Of duty, commission or any official
act prohibited by law" TIE Mayor therefore, could mt
be presented by the Grand Jury for any official miscon
duct II was admitted by the demurrer to the answer
that whatever Fernando Wood did In this done
by him Mayor In the discharge or bis duty, and not
otherwise twas rs'hera novel idea to ndct the Mayor
for dircharging his duty.
Mr. Field, inierruptpg-By melting riot.
Copnse for the Mayor contnuinglf the Mayor ordered
duty May and could be indicted for of
thcte things that he might be called upon to do in the
exercise OF sound discretion but If he abused
that discretion, he could be removed from office. The
affidavit stated that the Mayor ordered the assault to be
made He bad right to project property and to protect
the citizen In the enjoyment Of his Office and whatever he
did in the dschMse Of bis duty a Mayor he was not
individually liable for The moment he ceased 70 act
Mayor! he acted a, an individual: and was liable - be
person interested in this matter question which
concerned the social order Of the city and Of city in
who discharged his duty subject TO arrest and 70
personal examination the statement Of somebody esc
Discretion must rest some where In city II rested with
the Mayor far AZ the Slate concerned II rested
with the Governor, and In reference to the federal
government. with the President. Taere was but one
Tor this arre.t and that was the preceoent SO
famous in New Orleans when General Jackson arrest
ed ard fined 81 600 for having discharged his duty
officer. The counsel was proud, American citizen,
say that the fine restored 10 him, with Interest,"
long years afterwards II had remained without parallel
snce 1914 until The 1867 when the Mayor Of this city
II arrested for dischargng bis duty The speaker con-
cuded by saying that he would the right 70 reply
to any argument or 70 any authorities that the other side
ihe District Attorney asked for ne authorities which
counsel relied upon.
Counsel for Mayor wood-I cite the 18th section of the
vsioR' shall be the duty Of the Mayor 10 be vgiant
and active 10 causing the ordinances Of the city TO be duly
executed and enforced" cite the 49th section, in refe-
renee 10 presenmept by the Grand Jury.
Mr. Hall then arose, and, amor some preliminary re-
Ss, BEEN % susou % be-
rsked 10 10 the attitude In which he placed before
your Honor, and upon this point VIII remark that Il .
buta simple warrant Of arrest upon which you are called
10 psss-a warrant OF arrcst duly Issued and legally
served Ny learned friend has fallen into very griev
should precede the warrant Of a magistrase for any
eGencc. Two casee may Arise where this would not be
required First when the maxstr.ie himself witnessed
merely verbatim gence, and that only In gener al
without specifying what the offence h This law is
possesses that vitality which will give force, and hence
absolutely necessary that sound discretion should
nation and belief An Ia, YOUR Honor l. Allowed to u
quire into Is thiswhcther there u probable that
the offence or crmo has been committed, and whether
said probable extends to the party named In the
Judge Russc-Thcre Is no doubt but tina, magistrate
may issue warrant upon ocular demonstration upon
the statement OF q citizeu.
Mr. HALL will therefore, not dwell upon thai point,
~ Of my esrnod friends II ia uuncecsary for nc 70 road
The AFFIDAVIT Tho Recorder has no, begged any question
there no suberse abo1t this mstles-we meet Il fairly
ard boldly. lf there has been . commitment end you
think he commitment insufficient, then there Is . dis
charge n appear that the party hescgally committed
then hold your honor has not the 10 bail The
defendant Nc must be remanded and bring the matter
befc We magistrate before whom uanspred the previous
Judge Russell here called Mr. HAs attention 10 another
section Of the act
~. Han then read the warrant The charge Of ncing
10 rbet, he said, In legal deduction drawn by the nass
Exs from The substance OF the aldav and the question
L. whether your honor viii take the responsibility
Of intcrceptN the action OF this warrant Tue
N tls uarsau Ar fha All
is outside, and which cannot be entertained.
Now certainly taken by surprise by tho proposition
me- ii be Of h,Ge account ths, should have been sur
Ssed, but my legal associates who have kindly consent
ed TO assist me by their valuable couses. also sur
prsed and, sir those mute law books could speak they
would say they equally surprised his bold and
prepserous proposition. have asked for Authorities
HON my learned friend, Zoe while his assertions may DO
Of great weight when pndlspuied hsve right 70 call
upon him Tor some authority 10 support his declarations,
as well as for some principle OF h~ 70 guide US 70 The
for any oct done in his official capacity my trend just
now declared, Is a monsuous proportion untenable In
~ books cwhsron. crimlDi law, s5ij Is stated ihai
any public officer could be Indicted for misconduct,
when no injury resulted from such abuse Of power.
did result. Here we have q Mayor, public oahcer,
fauduenuy exceeding his power, and 10 this
The elementary books say tina, this d lndicsAble At
common law, even when no injury results Tie q
this is also sven, because u u setting bad example
y
proposition that you might shut MP your constitution, bar
he temple Of justice, pull down The flags Of liberties
forever bid justice 10 bansh herself from the broad
domains Of q republic . United monarchy Inc crime
consists in frsudulcnty exceeding yeur duty ana Asng
your powers 70 the evil example Of The penpc whose
rights you put there n project Bot, says my learned
friend the charter hes stepped In, and this charter which
80 much abused by my learned friend, whsh oaly
know law OF The state yet this much abused char
Ter relied upon by him 70 his client from mwsoa
ment under the warrant OF magistrate or ths city m
he be inconsistent 10 abuse and depreciais thu char
tho ham xhf al tlos tioaa
with the other then may not your Honor conclude that
II his professions In fact illogical his propositions
law will bear no better tcsf There "a not
in this charter even forbiddins By.
Implication OF inc ictment In the OF public on
Ger he is amcnable efrccr and snswcra5 e mar
To punish tho and continue him In onioc would be
monstrous. For officer 70 be simply removed from Of
Gee and 70 unwhpp,d by justice would be equally
Various ways have been enacted FOR reaching such
cases. The charter provides additional onc-hai
OF presentmcnt and inpcachmenlfor all oc esospt
the Mayor, Corporation Counsel and Comptroller, which
le TO the sovereign power OF the state The clause IN
the charter that Ia the duty of The Mayor N be vgian
and active In causing the ordinances OF The city be duly
In In INV mat