The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-19

than the verest stranger. Mr.: Conover further
eeiher 10 procure the said assault 10 be committed upon
BIN. II would be altogether unnecessary 70 ate npt 70
chow thai. upon no principle Of law or reason, can or
ought criminal complaint TO be entertained upon basis
foundation like this The affidavit strikes mo clearly
insufficient far the Mayor sought 70 be implicated
70 which have been referred BY the District Attorney,
does not understand IT, take away from me the right
e o
the right to cause the arrest Of the Mayor In that case
The Recorder (lilou) upon general affidavit showing
ascertain who the perpetrators Of IL; and tho
court held that no had that right, g we'll
under the omplaint to inquire into the commission OF
other similar offences That case involved the qneon OF
OF Of the vou Se
sirous say that under general affidavit TO the
petrson ofsn offence that under affidavit showing
primd acie against certain parties any number Of
persons could be ted and detained in custody, whe
Tier implicated not by the facts stated If there Was
The Mayor under the complaint might view the
matter differently.
second-A.umins the Mayor to have given the direc
tons specified mentioned In the affidavit, does not the
privilege Of hs Office guard him against arrest impr
comment for what he said did in that character
| or capacty2 1t was assumed as . fact on the
argument Of the application before that the Mayor
acting public offcer-as Aayoron the occasion
advered t. Granting this mot think the privilege Of
his office is peri. ely absolute Were no to abuse his office
ACT corrupty maciousy and without sufficient cause,
and this fact should be established as anst hlmhe law
would hold him responsible. Is familiar principle that
abuse Of power destroys the official character Of
dvidual completely, entirely The difficulty here is that
conceded 10 be public officer, aad to have acted in thai
capacity, the Prescriptions OF lay are in the absence Of
on or performance Of his duty On these presumpions
chooee 70 repose in the absence OF express testimony i'm
Third- was insisted by the learned District Attorney
that until the Mayor finally committed upon the charge
in the warrant By the Recorder the writ shOad
not and could not legally have been issued.
This certainly differs from the pracice as have al
ways understood to exist Every part Of the statute
ave TO habeas corpus shows tina! unless In the cases
from which the writ 10 absolutely excluded in relation
to which the proceedings upon are expressly limited or
qualified in their scope or extent BY the statute the inen
ton Of the Legislature TO provide speedy mode Of
deliverance from unjust or unlawful imprisonment It s
avery common thing 70 issue writ Of certorari (which
perscn Of the party In whose vor is issued be pro
duced on the return OF W to maghtrate while proceed
ing with the examination, which the staute contAmpates
AFTER the Of accused party before the mags
uate has finally passed upon the case-tha before he
bae decided whether he would commit the party not
and yet the regularity OF the writ Is invariably admitted
ceItiorar issued under euca circumstances would DO
invalid, II the present proposition lenable Under my
present convictions cinno recognise the correctness or
the position and cannot therefore subscribe the views
the learned District Attorney Other points were raised
and discussed on both iides, which do not deem
that the Mayor must be discharged from the custody Of
the Sheriff unless the District Attorney elects 10 proce
/
he not 20 elect the der Of discharge must be absolute
Should he 70 elect the examination proceed in the
customary way This win save all the rights Of the pro-
secuiion In the premises
As the Judge had concluded the District Ator.
ney said that one Of his points in his argument was that
his honor could 20 behind the warrant me point 70
be Determined was nos whslher il should be c.ss but
whether II sho aid be case sufficient 10 issue the warrant
In regard to his THE District Asornsy') cleo
that he had anything further to do with the matter
after the decision vM rendered. The complaint
Jurisdiction attached excep. two ways First,
after Indictment II his duty 70 prosecute H. and
vice of anouce Of that fact his duty 70 attend upon
hearing, and urge to the Judge reasons Why the de
but when bis power the return wa, ended, he con
ceved that he had duty to perform In tho premises
He az. HAD said be could not At FL subscribe . hi.
Of warrant on complaint taken by another magistrate
The ms, Attorney IN conclusion ss:cryoS Ola. the
| bot that rbouli be done . oertiorari -
Judge Russell replied IL have no doubt that on witt
and no examination bad been had thai lave full power
70 direct hearing before me - magistrate, and can
Counsel for Mayor wood want 10 refer the District
Attorney TO several cases In Bakers Criminal Reports ia
which has been expressly held that the habeas corpus
| The District Aunrney-I understand that your Honor
comes to An nterlocutory dccsion-ha. is you VIII either
vii elect GO Ny points that after your Honor has
decided this habsas corpus you cannot contnuet deny
n@ lawyer
DISCHARGE or MAYOR WOOD rnox ARREsr
| Judge Russell then banded Sheriff willet who was In
attendance the following order for the discharge Of Mayor
IN vne Aaar IF ne wra Of Haesas Corpus Ared 10
Irqu.rs ,nio the Gs,se q ne Imr'sormsnt y Hrnande
Wood, june IS, 1s67-his cause having boon brought
before test the legality OF the Of Fernando
Wood for whose benefit this proceeding had, and
Wood and A. o. Hall Do District Attorney for the pco
pe Ordered, That tho ssid Fernando Wood be
from the custody OF the Sheriff OF tho city and county
New York upeps District ATTORNEY elaCta
with the usuh examination after arrest before me- should
be not 50 elect Immediately the order Of dischargo must
be absolue should he so elect the examination can pro
coed In The customary way:
The Sheriff handed II tn the pisirict Attorney, who i'm
mcdatcly appended bis declnaon 10 it.
The District Attorney declines 10 make any election, ~
TO any sucb conditional discharge or 10 impose
an election upop hin and became he denies the right Of
',he oy Judss wiisCu. o.,tioyar in aid Of the s.es.'
or by hsbess corpus change the right Of IN hear
ing from the magistrate who ssuei the warrant unless
when the result OF The decision understood by the
audience an attempt madc 10 express their approbs
ucn but The officers promptly suppressed the demonstrs
LETTER OF THE DISTRICT ATTORNEY.
| HE HAS FEAR FOR BIS PERSONAL sAYRrY AND WILL
| NOT 60 To THE CITY UALL-JuD0I RusguLL m
LIEvEs HIS ArxrETY.
crY AND Cousrr on Nrw Yoax
| Drrucr ATTORNEYS 0fncr, June 10, 1851.
To rnr How A. d RrsssrI, CIR Jupcr. Roox No crr
| HALL
SAL yave the honor TO be In recept or notice In Nc
following Words
In the matter Of the imprisonment Of Fernando Wood
Take notice. that the bearing upon the hahtas th,
day allowed by H. RUSSELL City Judge, behalf Of tho
above psuoner, viii be heard before A. D. RUSSELL Eco
City Judge Of the city Of New York. At No In the
City ball Of hc city 81 New York; On Thursday, June ~
1851 in mediaely Dated July lso in The ortrusD Is
| To A. OAKEY Hall, District Attorney"
Upon inquiry learn that room No. City Hall Ia the
oce Of the defendant In the proceeding and the
place wherein officially att ndei June IL, habeas