The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-06-28

The rights and duties OF persons coming in conts 4
couIs. Of one day, to weigh ali sssss oaoo.as
Authorities and to present =, the stka@sas
cognzed in the laws Of the country rather negative
thar affirmative institution is institution Inter
posed by our constitution between the czea and unjust
prosecution by government it's OH is not
the place the duty Of the Grand Jury to become sort
nav coDsSsr :Semssve. ssSreSeS b. ses but
their DUTY TO know the thngs which 10 the duo regular
order the adDnistra OF Justice are delivered TO them
IN charge OF the court i DO Dot mean by that they
cappet notice light that reaches oy accdeot
in any way by the Information of enc Of their fellows
provided the thing altogether fairly, aud In due
cbeervspce Of decorum which should Ways attend
the administration Of justice; but mean to deoy tue
generally % Ssy are 70 Dc USED Is AZ %
private persons In tuppor OF this proposition shall OF
refer to the principle deep and fun mental 10 the
shall not be tried without being presented by his peers
II ia what the friends Of liberty struggled for in England
ra before any man is SUBJECTED 10 the pain and disgrace
h. o1sss make . Sssns
10 the next place shs claim that prosecutions rgntfuly
belong to the State and ito officers and not TO private
The law has provided sgains. uojust and irconve
the end TIE Grand Jury cannot present indictments
they ony give ntlmAton that they desire TO do So
equally clear that the District Attorney has right to
refuse Draw up Indictment It Is very certain shat
the District Attoi had the originally 10 his STATE
and has yet merely subject 10 special provision, to
10 do so when that prosecution will subser
the interests of the commonwealth.
The RecOr6er-HAve not the Grand Jury right TO take
up matters OF publs notorieiys
Nj o 5onor-I do not deny, generally their right Of
proceeding orderly and decorous rnauner, in bar
moDy with the Court Of which they are branch or With
the public officers appointed to attend to he and with
out whose aid know they could not very well got
sorg. But clam that their functions properly OF
the Kind have satsd-that they not governmental
epts to institute prosecution but rather rsru
erts to protect the citizen against unlawful
hing U,n nj n mn md
Grand Jury hold this relation TO the Court clam thai
whenever the Grand Jury, under the Old system,
the thought not proper for prosecu
ton, his duty 10 enter ,sole prosequi shall
ell that they acts OF the government and that they
originally altogether, as respected prosecution,
uuoer the direction of the anmnistrat officer OF the
governmeEt-ihe Attorney that represents the state
They still under his Control subject to power vested
in the Court sha claim that this motion before
your honor u double aspect-that it q strict
addressed TO the Court to qussh the indictment
having been mpropety presented and also as matter
addressed to your Hopors discretion advise the District
Attorney TO enter nole prrSeyuf.
THE RECoRDRR DISCLAIMs BEING A WITNESS
The Rscorcer-Bsfore Mr. Whiting opens his argum emit
one q The Witnesses in Mr.. wilkes brief Judge Rue
sells iDtertor that know nothing whatever OF Judge
Russel's inssrtop-not the least.
Mr.. Hal-We supposed that 70 be the !act-
MR.. WRITINGS ARGUMgfT.
Mr.. Whiting opened BY saving that the assent Of the
District Attorney bis (Mr. ws) cerg associated with
him for the prosecution late thathe had not
bad time 70 read all the papers in the case or to pos
bmse OF their character but be understood that
the mention Of the Recorders rawe as a witness,
in MIR. Wilkes communication 10 the Grand Jury,
was 10 refererce TO the fact OF Judge Russell
bavipg esssge his Honor not to take bail for
paraes. He complained of Mr. Balls not confnrg
himself tn the matters properly for argument but in
dueng in very strong and inemperAe expressions 70.
Grand Jury had pronounced that Judge Russell com ned
vont assault and battery. He intended 70 ansWer no
part OF such remarks except this He fhr. Ha seemed
TO intimate Mr. Wilkes had been charged by indic
ment, with felony. That utinston entirely gatrui
tous- entirely a mistake-entirey untrue. Even II
true he held that was out OF place 10 the
OF this motion. He argued that magistrate who de-
scends from the bench and engages In riot or street
fight anenAole to indictment any other person IN
the community.
TIE Recorder-I do think there any doubt OF that
rs an abstract queaon; but the contrary not claimed
en- the other side.
M waiting remarked that il WAS for the purpose Of
understanding fully their grounds ha. he asked the othcr
eide II state their legal propositions fully before be id
dressed the Court Mr. W. then proceeded TO discuss
and justify the OF the Grand Jury ~ connected
HE Recorder-I am pretty strongly Of the couvio-
ton tina, the Indictment on behalf OF Daroie against
the officers for assault and battery CAMEO. be sustained
Mr. Whiting inquired there was any evidence That the
The Rsoorder-Tba, Ia the question which comes up.
Mr. Hall han omitted cay that the Court would take
OF tho fact that these parties ccers Of
the Coort and also thai the Indictments were quashed
az 10 o1e Il would necessarily be pushed A. TO ALL
Mr. Whiting cortenced that THIS Was not one OF the
facts OF which Court could take judicial knowledge, and
OF the fact that the Abraham d. Rufse narsed in tue
ndcimcIt was the same person. - was Judge Of this
Court 1he moion 10 quasb must rest entirely on what
appears the papers nothing them
A. 70 the irregularities complained Of on the other side,
81 ted than that the Grand Jury may inquire into any
offence perpetrated within the BODY Of the county, and
nay ndct the offenders, without the intervention OF the
Court ts ocsr the District Attorney and that ualess
the Indictment defective its face, could not be
set aside He though would not be seriously c,ntended
that Grand Jury, being session. cannot their At
10
complainant cannot take sucn step without violation Of
we w inc Srana jury Was supposed 70 oooss, Oh We
this Grand Jury consttutedr
Mr. Han reminded the Court that when he desired 70
CONSIDER the character 81 the panauts no called
to order now, in his turn BIO did objec, 70 this.
Mr. wbtirg said he had he bad only tried 20 keep hin
assa the ebarsc,sr Of Mr. wikes or Mr. barcie Their
character bad nsthing 70 DO with the motion.
The Recor der--Not the least
taken by Mr. Wilkes 70 have the matter brought
before the Grand Jury There were some expressions be
| if be (Nr. whslpg) had been consulted he would
Rave advised the omission Of but be con
tended that on the whole vas proper and
respect NJ The Grand Jury could have acted or act
ed sshey though, proper, on this communication but he
submitted tina, in SENDING Mt Wilkes bad violated nc
rule Of proprey and had been guilty OF no offence. Hi
Honor bnsw perfectly well that there was distinctions
between public and private prosecutions and private
prosecutions not recognized In the Lac be would Ike
know or What principle suits for malicious prosecution
could be entertained lie contended that this bort
10 snsogy 10 nas ~ Col jack, alluded 10 by Mr.. HAL
and denied that there ans thing objectionable In Mr.
Wilkes complaint 70 the Grand Jury. n the point II
cre Grand jury hndrg bill on the same papers OF
which former Grand Jury bad dismissed tfe bill has
been sde plea, might raise nice, din sult ques
ton but did no, arise on los motion
The Recorder-Does Henry Bsys sign the endorse men
chill oism'ssed" IA foreman
rr whting-Yos.
The Reoordcr-Apd do understand tina. there was y,
evidence before the second jury that nol before h'
nretY
Mr.. whitirg-There Is y proof OF that
Mr. CConor-Our argument then will be that II theJ
found bill Papers nottwcru N, u ought 20 be qusshed
and u they found II ON merely the evidence the
tns been presented to The former Grand Jury, ought
| be ausshed.
| The Reoorder--The testimony might be oral
| Mr.. Whihrg--Certsnly. SIR. A bill might be fount
either complaint erd sifdavt oral testimony, ans
ere nothing before tho Court n show how this bill
found He denied tie truth 81 the aes alton that the
sau and bstttry charged Judge Russell commute,
in an onc'a caracfy. Where was the warrant ne asked