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

be may commit treaCh q NE peace 10 retain his place
Mr.. Whiting admitted that Wow Of the law to be cor.
rect; but Mr. wilkes having given notice tnss ne would
body ease, had . right to have him arrested.
But that, after ali. was not question 10 be
decided decided DOW v. 70 be dsciaed WI, wnsn - his
Any man in theatre had right to applaud or 70 hiss.
any tad right to 20 there and write and publish
NJ he'd s
not originate proceeding and bill their mo-
motion without proper evidence but they m;sb take the
sepa necessary 70 procure such evidence BY statute the
Court cannot direct tho District Attorney to enter noe
Tbs Rscordsr-The Court can suggest to the District
Mr. Whiting admitted that He though. this
and District xsaornsy sgresd tina. = bill could
,ols po,su: entered Hs did NOT however think s.s
that prnctplo applied here Hs thought that Jucge Rus.
sell owed &c himself 70 have the indictment tried;
be submitted that the Court had authority under the
circumstances of this case to order to be quashed
Mr. 0'CONOk's ARGUMENT.
,p portsr, and Soye ouesticn II was question which
required very full and deliberate consi teratonoce
which should roa be lightly treated Since New York was
city this court der its present some ether name,
existed the chief sect for the of criminal
Justice and lis oers were what might be called local
rsgis,ra,s The other criminal courts were mere al
jurc,s 10 this TIE Court Of Oyer Termner has lad
Jurisdiction a the serious grades Of offences, but
even a' distinction was now broke down and this court
presiding Judge wAs, he might say, the head
q HE criminal department OF the city government
euIctoray had ad conferred upon him by statute what
q rank, and dignity and power was possessed oy
Semes: Srorebt into tbs court without the co operation
Ct of the constituted authorities OF the land, against
enc Of the presiding magistrates, on which bill Of ind'os
MEET he might, If put upon bis trial, be dragged down
from bis high station and placed at the bar "a cupr
before the petit jurors who IN tie habit OF taxing
law from his lips and Of being advised by h, in matters
formed
cence. Els acts ard his motives were 10 be subject OF
NEWSPAPER observation various as the opinions o. the
II every receptacle or vice, well IN moro
sptotsbe places throughout our community. That, he
said indeed novel spectacle ard necessarily so for,
if such spectacle had often been presented this court
could not be in existence. Decentralization, disorder
and re overthrow Of peace and 0raeT would ha
jrcgcs, and especially the high criminal judges, were
obliged from to time TO exchange places with the
criminals at the bar and answer for their judicial conduct
before rett juries. he meant TO maintain that
the courts Of justice were portion OF the gov
eminent The constitution reccgozed three great
dey ar,meris-the legislative the executive and the
Judiciary The design and intent OF the constitution
was that all these deparmerss At least 10 their higher
nary jures except In cases Of notorious guilt Members
of the Legislature 10 be expelled from the body TO
which they belonged and then 70 be punished by the IA
in their private capacity Judges to be ppeacbed
ard removed from Office srd then TO tbe tried before
I b. Gs e With the or
ncr. He should hyst be impeached stripped Of hs
ofice and then proceeded against crminally THIS was
necessary OF order this necessity
observing order had enabled the community to attain
to this year Ct grace, 1858, without ever having had
biz Judge tried such offence assault audbatery
The question here really whether small lot OF crm
pals ut the commencement OF term Of this court can go
sss .snrs s Of cur criminal
courts. which they must wear as an ornament
until they can have been tried SO, the Judge
must either remain under the degradation OF being
nocted person for months ese the acmustr Alton or
justice ust be suspended Did we live he asked, 10
but Is powerlees prevent ~ he held that there
want CT power prevent but u the contrary ali
tie principles OF Law and Of the constitution were opposed
to such state Of things 1t would be scaadalous thing
presented criminal uutred aud urscgoit,ed, should
cit she bench and direct petty jury the Law the
evidence bearing upon the case OF another maa pre-
septed by the ssme Grand jury, ara the same
cay as be was himself presented. He apprehepded
such Of things nos TO be sustained This
case was without precedent and ne hoped tnai by the
force Of his Honors judgment. 10 sncuid not become
He asked the attention OF his Honor TO the constitution Of
Grand Jury and referred to the laws bearing uron the
creapizs;cn OF that body In England they sort or
local msgatrscy, but in this country they hid only
70 hear accusatiors 70 consider whether there
evidence support ,hem and So present bills Of
ntictmeut He contended that private person had
at nton any After that had not been properly
by The public This funcionsy had tue charge
apS Hs next the Of Dis Honor
me common AS power Of the District Attorney TO enter
ncile prnseq,n-
The RecorderIdo not think that Il Il necessary, Mr.
0'Coror; one denies that right
Mr. OConor quoted judicial decisions the subject, to
show shat the responsibility OF and OF entering
noIle froseqs belonged TO that officer. The only qaslin
cation 10 that was the qualification contained 10 the
70, enter solIs oasS,s .iS,u The es~s Of he Cov,
These propositions afforded . basis on which 10 found
me principle to what were the duties Of Judges, Of
pubic prosecutors and OF Grand Jures was
thing necessary that every violation Of law should
be purthed. There were great many violations of
law which were better not TO be punished than 10 be
punished The Of the recos prs
cpe for vested IN the Governor an absolute power OF
Er Ulmsn end The warrant Of Judge Russell sho we'd no
ctnce and that ocer who executed the prooess
deree himself liable 70 Indictment Tor assault and battery
Was H. however aGysabe and proper that every possible
slip OF that description should subject Judicial
onctr TO public prosecutor Did the Pablo interest
que that Nay the public inerest required that should
DO, be cote And IL Grand Jury were 90 uR wise a. 10
ind Indictment such grounds the iateress O public
ustoe required that that Indictment should be SET aside
such rrt ceedipg against superior Dassrste would be
highly mrollic and no constitutional government could
ever exist that would allow is superior nagstraies
stripped OF the ermne; nrst sent bsox pr-
vs,e life, and then tried crimnaly fof TIE onsroe
they mght have committed. Ia support Of these doc
ui1es he found the English authorities very full they
showed that the general processing against magistrates
was got by Indictment ou, BY iniornuou-a proceeding
mcde 81 procedure showed the principle for snch he
contenced. On these principles DO csmed that on any
rCssite conceivable view OF the presented by
Mr.. Wilkes, the enc 10 which the great eBcs
of public Justice required that The Court the Court
Susss the ndicsmen. III. learned irissd (ar. dali
bad said that he (Mr. OC) vouia discuss
at large the quescn Of the irregularities before the Grand
Jury but there were many reasons which forbade
him 10 co clear principle. bosever, thai the
Grand Jury did rghtnliy open their doors private
complaint, urssncoued by the court Or uDntrodUcet
By tire public prosecutor. required sTecia statute 10
enable aGrstd Jury 10 administer osibs to wtnesses
Formerly witnesses had TO be sworn 10 open c0uri 80
that the Court had cozbzaDoe OF Tbs matter before
the Grand Jury. This Grand Jury he'd received n
yiol,u, philppic slap,, the og Jooss, 50 violent
that the counsel for the pryae prosecutor,
when he came 10 read IL, was obliged 10 sxip
portions OF H. and 70 confess thai he would not have
advasd tie drawing up Of such pager. Bot the Grad
Jury received Il. What else Old they receiver Ibey
ceved the record OF the Court showing that the PRIOR
Grand Jury had had the matter before them sod dis
mssed the b but, nevertheless, without the sanction
OF the Court public prosecutor they revised the action
Of the PRIOR Grand Jury and overruled t. lie assei
not thai violent scsndsous noefcDsblc proceeding on
the part OF the Grand Jury hs MAINTAIN.
Cd that the Grand Jury, as branch OF