New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-06-19


corpus the statute leaves him no discretion - the
exercise Of his right for be would forfeit 81 600 to the
party sggreyed he TO refuse TO aios the writ,
when legally applied to- beside beng liable to in
parchment Ii not indictment also z K. j., 4th ed,
i99 Sec 49,. This brings TO the consideration OF
The question submitted upon the menis OF TINS apph-
| cation.
Fr,t: l. the affidavit upon which the warrant Of ar
rest Issued sufficient or not can see nothing IN H.
in legal point of view establishing the crimnillty
Of the Mayor. II is made by Mr.. Conoyer VINO CLAIMS
10 be the Street Commi sioDer OF the CIy oil New
York and the substance Of il is that two occasions
10 wit: the 18th ard 18th inst he was fhrls' from
the possession OF bis alleged official apartments oy
the violence Of certain parties, and that one OF thet
Bennett, who is charged in the warrant with the
Mayor, stated that it was by direction of the
Mayor the latter rot being shown 10 have been pres
ent, on the contrary conceded 20 have been absent
and there being hot the least evidence beyond to con
meet him with the transaction more than the veriest
stranger Mr. Conover further states that he believes
all the defendants conspred together TO procure the
said assault 10 be committed upon him. II would be
altogether unnecessary 10 attempt to show that, upon
no principle Of law or reason can or ought criminal
complaint 10 be entertained upon basis or foundation
ike This. The affidavit strikes ME as clearly INSULT
cent far as the Mayor is sought TO be implicated.
| The Of The People W. Hicks 10 Barb;
| S. c. X. $50, TO which | have been referred
| by the Dstrict-Attorney, does not as l un1er-
| stand it, take away from me the right to examine
the complaint for the purpose Of seeing that the Re
corder, by reason of something alleged in it, had
the right TO cauce the arrest of the Mayor. In that
case the Recorder Tiloul, upon a genera. affidavit
showing the commission OF the crime, instituted an
examination TO ascertain who the perpetrators OF
IT, and The Court held that he had that right as well
as the right by of his jurisdiction under the
| complaint 70 inquire into the commission Of other
similar offenses That case involved the question Of
iuri dict on subject matter. This involves the
Que stion Of jurisdiction of the person. IL would be
nons,rous to say that under general affidavit az to
the pepeation of an off use, or that under an ahda
Wit showing prma facie Gaze az inst certain parties
any number Of persons could be arrested and deta
in custody, whether implicated or not by the facts
stated III there reasonable color Of Jur dlctlon
on the part of the Recorder the Mayor under the
| complaint might view the matter differently
Stcond Assuming the Mayor TO have given the
directions specified mentoned in the afiiiavt, does
not the privilege of his Office guard him against ARE
or imprisonment for what he said or did IN that charac-
Ter OF capacity Ii was assumed as fact on tne ar
gument Of the application before me that the Mayor
was acting as a public Oflicer-as MayOr-on the &C.
casion adverted TO. Granting this do not THINK tue
privilege of his office is perfectly absolute Were he
to abuse his oice-act cOrupty or maliclously ana
without sufficient cause and this fact should be esfao
Gshed against hm--the law would hold him respon-
sibe Ii il familiar principle that an abuse OF power
DESTROYS the official character of individual com
rletey-entrely The difficulty here is, that no such
case il made out sgainst the Mayor anu oeing con.
ceded to be public officer and to nave acted III tnae
capacity the presumptons of law are in the absence
of proof to the contrary that what he did was In the
execution or performance of his duty On these pre-
sumptions choose to Tepose In the absence o express
testimony impugnng them.
TJird IL was insisted by the learned Dstrict-At-
torney that until the Mayor was finally committed
upon the charge in the warrant, by the Recorder the
present writ should not and could not legally nave
been issued.
This certainly differs from the practice, as have
always understood it to exist Every part OF the stat
ute relative TO babeas corpus shows that unless In the
cases Um which the witt is absolutely excluded, OF III
relation 10 which the proceedings upon II are express
y limited or qualified in their scope extent by the
statute the intention of the Legislature was TO pro-
vide speedy mode Of deliverance from unjust or I'M
lawful imprisonment. 1t is a very common thing to
issue writ of certiOrari which differs from writ OF
babeas corpus in not requiring the person OF the party
in whose favor it issued TO be produced on the re-
Turn of III to magistrate while proceeding with the
examination which the statute contempates after the
arrest of an accused party and before the magistrate
has finally passed upon the case-that Is, before ne
has decided whether he would commit the party or
not and vet the regularity of the writ is invariably
admitted. A certiorari issued under such circum-
stances would be invalid if the present proposition Is
tenable. Under my present CONVICTIONS cahnot
recognize the correctness of the position and cannot
therefore subscribe to the views OF the learned Dis
rict. Attorney Other points were raised and dis
cussed both sides which do not deem it necessary
10 pass upon The conclusion Ihave arrived at is tn
the Mayor must be discharged from the custody ofthe
Sheriff. unless the Disrict-Attorney elects to proceed
with the usual examination after arrest before me-
Should he not elect the order OF discharge must be
absolute. Should be elect, the examination can
proceed in the customary way This will save all the
nights of the prosecution in the premises.
Mr. Hail. would like to address q single remark
to your Honor; understand your Honor distinctly to
state duIirg the course of my argument, that you
should not regard the point raised as to the unsufi-
cheney of the affidavit; upon which statement / was
stopped in my argument.
Judge RUSSELL said should not regard it except
so far as it bore upon the question whether the mags
trate had the color Of jurisdiction.
Mr.. Habitat was the question was about to ar.
que when your Honor stopped me. The point took,
was that your Honor had no right to base opinion
upon the afdavit-that you could not go behind the
warrant and then l was going on to argue that even
if you could look at the affidavit, the affidavit was
sufficient There was stopped by your Honor saying
that you would not regard the affidavit at all.
Judge RUSSELL do not regard it except so far as
to see whether the Recorder had the color of juris
diction
Mr.. Hail. understand you to say that you pass
distinctly upon the affidavit and say that there was
not sufficient to show case. In the next place your
Honor does me injustice in remark. / certainly
never took point that pending the return on war
rant there could be no habeas corpus issued; trust
know enough of law to know the contrary of that
proposition In regard to the last subject which fell
from yeur Honors lps-my election TO go on don't
know that / have anything to do with the matter.
complaint is made before magistrate, and my
jurisdiction never attaches except in two ways; first
after Indictment, it is my duty to attend upon the
cause and in the second place when notice Of writ
of babeas corpus is served upon me, is my duty to
attend upon hearing and there to urge the reasons
WHY the defendant should not be discharged from
,ody upon the writ of habeas corpus; but when the
hearing on my return is ended | conceive have no
n III ;ba in